Republic of the Philippines

SUPREME COURT
Manila

EN BANC

A.M. No. 02-11-11-SC March 4, 2003

RE: PROPOSED RULE ON LEGAL SEPARATION

RESOLUTION

Acting on the letter of the Chairman of the Committee on Revision of the Rules of Court submitting for this Court's consideration and approval the
Proposed Rule on Legal Separation, the Court Resolved to APPROVED the same.

The Rule shall take effect on March 15, 2003 following its publication in a newspaper of general circulation not later than March 7, 2003

March 4, 2003

Davide Jr. C.J., Bellosillo, Puno, Vitug, Mendoza, Panganiban, Quisumbing, Sandoval Gutierrez, Carpio, Austria-Martinez, Carpio-Morales, Callejo, Sr. and Azcuna, JJ.
Ynares-Santiago, on leave,
Corona, officially on leave.

RULE ON LEGAL SEPARATION

Section 1. Scope. - This Rule shall govern petitions for legal separation under the Family Code of the Philippines.

The Rules of Court shall apply suppletorily.

Section 2. Petition. - (a) Who may and when to file. - (1) A petition for legal separation may be filed only by the husband or the wife, as the case may be within
five years from the time of the occurrence of any of the following causes:

(a) Repeated physical violence or grossly abusive conduct directed against the petitioner, a common child, or a child of the petitioner;

(b) Physical violence or moral pressure to compel the petitioner to change religious or political affiliation;

(c) Attempt of respondent to corrupt or induce the petitioner, a common child, or a child of the petitioner, to engage in prostitution,
or connivance in such corruption or inducement;

(d) Final judgment sentencing the respondent to imprisonment of more than six years, even if pardoned;

(e) Drug addiction or habitual alcoholism of the respondent;

(f) Lesbianism or homosexuality of the respondent;

(g) Contracting by the respondent of a subsequent bigamous marriage, whether in or outside the Philippines;

(h) Sexual infidelity or perversion of the respondent;

(i) Attempt on the life of petitioner by the respondent; or

(j) Abandonment of petitioner by respondent without justifiable cause for more than one year.

(b) Contents and form. - The petition for legal separation shall:

(1) Allege the complete facts constituting the cause of action.

(2) State the names and ages of the common children of the parties, specify the regime governing their property relations, the
properties involved, and creditors, if any. If there is no adequate provision in a written agreement between the parties, the petitioner
may apply for a provisional order for spousal support, custody and support of common children, visitation rights, administration of
community or conjugal property, and other similar matters requiring urgent action,
 (3) Be verified and accompanied by a certification against forum shopping. The verification and certification must be personally
signed by the petitioner. No petition may be filed solely by counsel or through an attorney-in-fact. If the petitioner is in a foreign
country, the verification and certification against forum shopping shall be authenticated by the duly authorized officer of the
Philippine embassy or legation, consul general, consul or vice-consul or consular agent in said country

(4) Be filed in six copies. The petitioner shall, within five days from such filing, furnish a copy of the petition to the City or Provincial
Prosecutor and the creditors, if any, and submit to the court proof of such service within the same period.

Failure to comply with the preceding requirements may be a ground for immediate dismissal of the petition.

(c) Venue. - The petition shall be filed in the Family Court of the province or city where the petitioner or the respondent has been residing for at
least six months prior to the date of filing "or in The case of a non-resident respondent, where he may be found in the Philippines, at the
election of the petitioner.

Section 3. Summons. - The service of summons shall be governed by Rule 14 of the Rules of Court and by the following rules:

(a) Where the respondent cannot be located at his given address or his whereabouts are unknown and cannot be ascertained by diligent inquiry,
service of summons may, by leave of court, be effected upon him by publication once a week for two consecutive weeks in a newspaper of
general circulation in the Philippines and in such place as the court may order. In addition, a copy of the summons shall be served on
respondent at his last known address by registered mail or by any other means the court may deem sufficient.

(b) The summons to be published shall be contained in an order of the court with the following data; (1) title of the case; (2) docket number; (3)
nature of the petition; (4) principal grounds of the petition and the reliefs prayed for, and (5) a directive for respondent to answer within thirty
days from the last issue of publication.

Section 4. Motion to Dismiss. - No motion to dismiss the petition shall be allowed except on the ground of lack of jurisdiction over the subject matter or
over the parties; provided, however, that any other ground that might warrant a dismissal of the case may be raised as an affirmative defense in an answer.

Section 5. Answer. - (a) The respondent shall file his answer within fifteen days from receipt of summons, or within thirty days from the last issue of
publication in case of service of summons by publication. The answer must be verified by respondent himself and not by counsel or attorney-in-fact.

(b) If the respondent fails to file an answer, the court shall not declare him in default.

(c) Where no answer is filed/or if the answer does not tender an issue the court shall order the public prosecutor to investigate whether
collusion exists between the parties.

Section 6. Investigation Report of Public Prosecutor. - (a) Within one one month after receipt of the court order mentioned in paragraph (c) of the preceeding
section, the public prosecutor shall submit a report to the court on whether the parties are in collusion and serve copies on the parties and their respective
counsels, if any.

(b) If the public prosecutor finds that collusion exists, he shall state the basis thereof in his report. The parties shall file their respective
comments on the finding of collusion within ten days from receipt of copy of the report. The court shall set the report for hearing and if
convinced that parties are in collusion,-it shall dismiss the petition.

(c) If the public prosecutor reports that no collusion exists, the court shall set the case for pre-trial. It shall be the duty of the public prosecutor
to appear for the State at the pre-trial.

Section 7. Social Worker. - The court may require a social worker to conduct a case study and to submit the corresponding report at least three days before
the pre-trial. The court may also require a case study at any stage of the case whenever necessary,

Section 8. Pre-trial. -

(a) Pre-trial mandatory.-A pre-trial is mandatory. On motion or motu proprio, the court shall set the pre-trial after the last pleading has been served
and filed, or upon receipt of the report of the public prosecutor that no collusion exists between the parties on a date not earlier than six months
from date of the filing of the petition.

(b) Notice of Pre-trial.-(1) The notice of pre-trial shall contain:

(a) the date of pre-trial conference; and

(b) an order directing the parties to file and serve their respective pre-trial briefs in such manner as shall ensure the receipt
thereof by the adverse party at least three days before the date of pre-trial.
 (2) The notice shall be served separately on the parties and their respective counsels as well as on the public prosecutor. It shall be
their duty to appear personally at the pre-trial.

(3) Notice of pre-trial shall be sent to the respondent even if he fails to file an answer. In case of summons by publication and the
respondent failed to file his answer, notice of pre-trial shall be sent to respondent at his last known address.

Section 9. Contents of pre-trial brief. - The pre-trial brief shall contain the following:

(1) A statement of the willingness of the parties to enter into agreements as may be allowed by law, indicating the desired terms thereof;

(2) A concise statement of their respective claims together with the applicable laws and authorities;

(3) Admitted facts and proposed stipulations of facts, as well as the disputed factual and legal issues;

(4) All the evidence to be presented, including expert opinion, if any, briefly stating or describing the nature and purpose thereof;

(5) The number and names of the witnesses and their respective affidavits; and

(6) Such other matters as the court may require.

Failure to file the pre-trial brief or to comply with its required contents shall have the same effect as failure to appear at the pre-trial under the
succeeding section.

Section 10. Effect of failure to appear at the pre-trial. - (1) If the petitioner fails to appear personally, the case shall be dismissed unless his counsel or a duly
authorized representative appears in court and proves a valid excuse for the non-appearance of the petitioner.

(2) If the respondent filed his answer but fails to appear, the court shall proceed with the pre-trial and require the public prosecutor to
investigate the non-appearance of the respondent and submit within fifteen days a report to the court stating whether his non-appearance is due
to any collusion between the parties/ If there is no collusion the court shall require the public prosecutor to intervene for the State during the
trial on the.merits to prevent suppression or fabrication of evidence.

Section 11. Pre-trial conference. - At the pre-trial conference, the court may refer the issues to a mediator who shall assist the parties in reaching an agreement
on matters not prohibited by law.

The mediator shall render a report within one month from referral which, for good reasons, the court may extend for a period not exceeding one
month.

In case mediation is not availed of or where it fails, the court shall proceed with the pre-trial conference, on which occasion it shall consider the
advisability of receiving expert testimony and such other matters as may aid in the prompt disposition of the petition.

Section 12. Pre-trial order. - (a) The proceedings in the pre-trial shall be recorded. Upon termination of the pre-trial, the court shall issue a pre-trial order
which shall recite in detail the matters taken up in the conference, the action taken thereon, the amendments allowed on the pleadings, and, except as to
the ground of legal separation, the agreements or admissions made by the parties on any of the matters considered, including any provisional order that
may be necessary or agreed upon by the parties.

(b) Should the action proceed to trial, the order shall contain a recital of the following:

(1) Facts undisputed, admitted, and those which need not be proved subject to Section 13 of this Rule;

(2) Factual and legal issues to be litigated;

(3) Evidence, including objects and documents, that have been marked and will be presented;

(4) Names of witnesses who will be presented and their testimonies in the form of affidavits; and

(5) Schedule of the presentation of evidence.

The pre-trial order shall also contain a directive to the public prosecutor to appear for the State and take steps to prevent collusion
between the parties at any stage of the proceedings and fabrication or suppression of evidence during the trial on the merits.

(c) The parties shall not be allowed to raise issues or present witnesses and evidence other than those stated in the pre-trial order. The order
shall control the trial of the case unless modified by the court to prevent manifest injustice.
 (d) The parties shall have five days from receipt of the pre-trial order to propose corrections or modifications.

Section 13. Prohibited compromise. - The court shall not allow compromise on prohibited matters, such as the following:

(1) The civil status of persons;

(2) The validity of a marriage or of a legal separation;

(3) Any ground lor legal separation;

(4) Future support;

(5) The jurisdiction of courts; and

(6) Future legitime.

Section 14. Trial. - (a) The presiding judge shall personally conduct the trial of the case. No delegation of the reception of evidence to a commissioner
shall be allowed except as to matters involving property relations of the spouses.

(b) The grounds for legal separation must be proved. No judgment on the pleadings, summary judgment, or confession of judgment shall be
allowed.

(c) The court may order the exclusion from the courtroom of all persons, including members of the press, who do not have a direct interest in
the case. Such an order may be made if the court determines on the record othat requiring a party to testify in open court would not enhance the
ascertainment of truth; would cause to the party psychological harm or inability to effectively communicate due to embarrassment, fear, or
timidity; would violate the party's right to privacy; or would be offensive to decency

(d) No copy shall be taken nor any examination or perusal of the records of the case or parts thereof be made by any person other than a party
or counsel of a party, except by order of the court.

Section 15. Memoranda. - The court may require the parties and the public prosecutor to file their respective memoranda in support of their claims within
fifteen days from the date the trial is terminated. No other pleadings or papers may be submitted without leave of court. After the lapse of the period
herein provided, the case will be considered submitted for decision, with or without the memoranda.

Section 16. Decision. - (a) The court shall deny the petition on any of the following grounds:

(1) The aggrieved party has condoned the offense or act complained of or has consented to the commission of the offense or act
complained of;

(2) There is connivance in the commission of the offense-or act constituting the ground for legal separation;

(3) Both parties have given ground for legal separation;

(4) There is collusion between the parties to obtain the decree of legal separation; or

(5) The action is barred by prescription.

(b) If the court renders a decision granting the petition, it shall declare therein that the Decree of Legal Separation shall be issued by the court
only after full compliance with liquidation under the Family Code.

However, in the absence of any property of.the parties, the court shall forthwith issue a Decree of Legal Separation which shall be
registered in the Civil Registry where the marriage was recorded and in the Civil Registry where the Family Court granting the legal separation is
located.

(c) The decision shall likewise declare that:

(1) The spouses are entitled to live separately from each other but the marriage bond is not severed;

(2) The obligation of mutual support between the spouses ceases; and
 (3) The offending spouse is disqualified from inheriting from the innocent spouse by intestate succession, and provisions in favor of
the offending spouse made in the will of the innocent spouse are revoked by operation of law.

(d) The parties, including the Solicitor General and the public prosecutor, shall be served with copies of the decision personally or by registered
mail. If the respondent summoned by publication failed to appear in the action, the dispositive part of the decision shall also be published once
in a newspaper of general circulation.

Section 17. Appeal. -

(a) Pre-condition. - No appeal from the decision shall be allowed unless the appellant has filed a motion for reconsideration or new trial within
fifteen days from notice of judgment.

(b) Notice of Appeal - An aggrieved party or the Solicitor General may appeal from the decision by filing a Notice of Appeal within fifteen days
from notice of denial of the motion for reconsideration or new trial. The appellant shall serve a copy of the notice of appeal upon the adverse
parties.

Section 18. Liquidation, partition and distribution, custody, and support of minor children. - Upon entry of the judgment granting the petition, or, in case of appeal,
upon receipt of the entry of judgment of the appellate court granting the petition, the Family Court, on motion of either party, shall proceed with the
liquidation, partition and distribution of the properties of the spouses, including custody and support of common children, under the Family Code unless
such matters had been adjudicated in previous judicial proceedings.

Section 19. Issuance of Decree of Legal Separation. - (a) The court shall issue the Decree of Legal Separation after:

(1) registration of the entry of judgment granting the petition tor legal separation in the Civil Registry where the marriage was
celebrated and in the Civil Registry where the Family Court is located; and

(2) registration of the approved partition and distribution of the properties of the spouses, in the proper Register of Deeds where the
real properties are located.

(b) The court shall quote in the Decree the dispositive portion of the judgment entered and attach to the Decree the approved deed of partition.

Section 20. Registration and publication of the Decree of Legal Separation; decree as best evidence. -

(a) Registration of decree.-The prevailing party shall cause the registration of the Decree in the Civil Registry where the marriage was registered,
in the Civil Registry of the place where the Family Court is situated, and in the National Census and Statistics Office. He shall report to the
court compliance with this requirement within thirty days iron receipt of the copy of the Decree.

(b) Publication of decree.-- In case service of summons was made by publication, the parties shall cause the publication of the Decree once in a
newspaper of general circulation.

(c) Best evidence.-The registered Decree shall be the best evidence to prove the legal separation of the parties and shall serve as notice to third
persons concerning the properties of petitioner and respondent.

Section 21. Effect of death of a party; duty of the Family Court or Appellate Court. - (a) In case a party dies at any stage of me proceedings before the entry of
judgment, the court shall order the case closed and terminated without prejudice to the settlement of estate proper proceedings in the regular courts.

(b) If the party dies after the entry of judgment, the same shall be binding upon the parties and their successors in interest in the settlement of
the estate in the regular courts.

Section 22. Petition for revocation of donations. - (a) Within five (5) years from the date the decision granting the petition for legal separation has become final,
the innocent spouse may file a petition under oath the same proceeding for legal separation to revoke the donations in favor of the offending spouse.

(b)The revocation of the donations shall be recorded in the Register of Deeds of Deeds in the places where the properties are located.

(c)Alienations, liens, and encumbrances registered in good faith. before the recording of the petition for revocation in the registries of property
shall be respected.

(d)After the issuance of the Decree of Legal Separation, the innocent spouse may revoke the designation of the offending spouse as a
beneficiary in any insurance policy even if such designation be stipulated as irrevocable. The revocation or change shall take effect upon written
notification thereof to the insurer.

Section 23. Decree of Reconciliation. - (a) If the spouses had reconciled, a joint manifestation under oath, duly signed by the spouses, may be filed in the same
proceeding for legal separation.
 (b) If the reconciliation occurred while the proceeding for legal separation is pending, the court shall immediately issue an order terminating the
proceeding.

(c) If the reconciliation occurred after the rendition of the judgment granting the petition for legal separation but before the issuance of the
Decree, the spouses shall express in their manifestation whether or not they agree to revive the former regime of their property relations or
choose a new regime.

The court shall immediately issue a Decree of Reconciliation declaring that the legal separation proceeding is set aside and specifying the
regime of property relations under which the spouses shall be covered.

(d) If the spouses reconciled after the issuance of the Decree, the court, upon proper motion, shall issue a decree of reconciliation declaring
therein that the Decree is set aside but the separation of property and any forfeiture of the share of the guilty spouse already effected subsists,
unless the spouses have agreed to revive their former regime of property relations or adopt a new regime.

(e) In case of paragraphs (b), (c), and (d). if the reconciled spouses choose to adopt a regime of property relations different from that which they
had prior to the filing of the petition for legal separation, the spouses shall comply with Section 24 hereof.

(f) The decree of reconciliation shall be recorded in the Civil Registries where the marriage and the Decree had been registered.

Section 24. Revival of property regime or adoption of another. -

(a) In case of reconciliation under Section 23, paragraph (c) above, the parties shall file a verified motion for revival of regime of property
relations or the adoption of another regime of property relations in the same proceeding for legal separation attaching to said motion their
agreement for the approval of the court.

(b) The agreement which shall be verified shall specify the following:

(1) The properties to be contributed to the restored or new regime;

(2) Those to be retained as separate properties of each spouse; and

(3) The names of all their known creditors, their addresses, and the amounts owing to each.

(c) The creditors shall be furnished with copies of the motion and the agreement.

(d) The court shall require the spouses to cause the publication of their verified motion for two consecutive weeks in a newspaper of general
circulation.

(e) After due hearing, and the court decides to grant the motion, it shall issue an order directing the parties to record the order in the proper
registries of property within thirty days from receipt of a copy of the order and submit proof of compliance within the same period.

Section 25. Effectivity. - This Rule shall take effect on March 15,2003 following its publication in a newspaper of general circulation not later than March 7,
2003.
 Supreme Court of the Philippines
SECOND DIVISION
G.R. No. 132592, January 23, 2002
AIDA P. BAÑEZ, PETITIONER, VS. GABRIEL B. BAÑEZ,
RESPONDENT.
[G.R. No. 133628. January 23, 2002]
AIDA P. BAÑEZ, PETITIONER, VS. GABRIEL B. BAÑEZ,
RESPONDENT.
DECISION
QUISUMBING, J.:
These two petitions stem from the decision[1] dated September 23, 1996
of the Regional Trial Court of Cebu, Branch 20, in Civil Case No. CEB-
16765. The first[2] seeks the reversal of the Court of Appeals’ decision
dated March 21, 1997, setting aside the orders dated October 1 and
November 22, 1996 of the Regional Trial Court. The second[3] prays for
the reversal of the resolution dated February 10, 1998, of the Court of
Appeals in CA-G.R. No. CV-56265, denying the motion to dismiss.
The antecedent facts, as gathered from the parties’ pleadings, are as
follows:
On September 23, 1996, the Regional Trial Court of Cebu, Branch 20,
decided Civil Case No. CEB-16765, decreeing among others the legal
separation between petitioner Aida Bañez and respondent Gabriel
Bañez on the ground of the latter’s sexual infidelity; the dissolution of
their conjugal property relations and the division of the net conjugal
assets; the forfeiture of respondent’s one-half share in the net conjugal
assets in favor of the common children; the payment to petitioner’s
counsel of the sum of P100,000 as attorney’s fees to be taken from
petitioner’s share in the net assets; and the surrender by respondent of
the use and possession of a Mazda motor vehicle and the smaller
residential house located at Maria Luisa Estate Park Subdivision to
petitioner and the common children within 15 days from receipt of the
decision.
Thereafter, petitioner filed an urgent ex-parte motion to modify said
decision, while respondent filed a Notice of Appeal.
The trial court granted petitioner Aida Banez’ urgent ex-parte motion to
modify the decision on October 1, 1996 by approving the Commitment
of Fees dated December 22, 1994; obliging petitioner to pay as
attorney’s fees the equivalent of 5% of the total value of respondent’s
ideal share in the net conjugal assets; and ordering the administrator to
pay petitioner’s counsel, Atty. Adelino B. Sitoy, the sum of P100,000 as
advance attorney’s fees chargeable against the aforecited 5%.[4]
In another motion to modify the decision, petitioner Aida Bañez sought
moral and exemplary damages, as well as litigation expenses. On
October 9, 1996, she filed a motion for execution pending appeal.
Respondent Gabriel Bañez filed a consolidated written opposition to
the two motions, and also prayed for the reconsideration of the
October 1, 1996 order.
On November 22, 1996, the trial court denied Aida’s motion for moral
and exemplary damages and litigation expenses but gave due course to
the execution pending appeal. Thus:
WHEREFORE, in view of all the foregoing premises, the petitioner’s
motion to modify decision is hereby ordered denied. But, petitioner’s
motion for execution of decision pending appeal is hereby granted.
Consequently, let a writ of execution be issued in this case to enforce
the decision for (1) respondent to vacate the premises of the small
residential house situated in Maria Luisa Estate Park Subdivision,
Lahug, Cebu City and for (2) respondent to surrender the use and
possession of said Mazda motor vehicle together with its keys and
accessories thereof to petitioner.
Atty. Edgar Gica, the Special Administrator, appointed in this case, is
hereby ordered to make the necessary computation of the value of the
one-half (1/2) share of petitioner in the net remaining conjugal assets of
the spouses within 10 days from receipt of this order.
The petitioner is hereby ordered to post a bond in the amount of
P1,500,000.00 to answer for all the damages that respondent may suffer
arising from the issuance of said writ of execution pending appeal and
to further answer for all the advances that petitioner may have received
from the Special Administrator in this case pending final termination of
this present case.[5]
In turn, in a petition for certiorari, Gabriel Bañez elevated the case to
the Court of Appeals. On March 21, 1997, the appellate court rendered
its decision, thus:
WHEREFORE, the Order dated October 1, 1996 and the Omnibus
Order dated November 22, 1996, insofar as (1) it authorized the release
of the sum of P100,000.00 to private respondent’s counsel as the
advanced share of private respondent [Aida Bañez] in the net remaining
conjugal assets, and (2) granted the motion for execution pending
appeal by ordering petitioner [Gabriel Bañez] to vacate the premises of
the small residential house situated in Maria Luisa Estate Park
Subdivision, Lahug, Cebu City, and to surrender the use and possession
of the Mazda Motor vehicle to private respondent are hereby SET
ASIDE. The writ of execution dated December 2, 1996 and the Order
dated December 10, 1996 granting the motion filed by the sheriff to
make symbolic delivery of the subject house and motor vehicle to the
administrator of the partnership are also SET ASIDE.
As prayed for by petitioner, the Administrator of the conjugal
partnership is hereby ordered to cause the reimbursement by counsel
for the private respondent [Aida Bañez] of the amount of P100,000.00
released to him as advance payment of attorney’s fees.
SO ORDERED.[6]
On February 10, 1998, the Court of Appeals denied Aida’s motion for
reconsideration. Hence, the petition in G.R. No. 132592, filed by herein
petitioner.
In the meantime, the trial court gave due course to Gabriel’s Notice of
Appeal and elevated on April 15, 1997 the entire case records to the
Court of Appeals. Aida filed with the Court of Appeals a motion to
dismiss the appeal on the ground that Gabriel had failed to file with the
appellate court a Record on Appeal. On February 10, 1998, the Court of
Appeals decided the motion, thus:
WHEREFORE, premises considered, the petitioner–appellant’s motion
to dismiss filed on November 3, 1997 is hereby DENIED. The
appointment of the petitioner-appellee as administratix of the conjugal
properties is hereby AFFIRMED.
In view of petitioner’s Motion to Withdraw her own appeal filed on
November 27, 1997, and for failing to pay the required docket fee
within the prescribed period under Rule 41, Section 4 of the 1997 Rules
of Civil Procedure, the appeal instituted by the petitioner Aida P. Bañez
is hereby DISMISSED.
In continuance of the appeal of respondent-appellant [Gabriel Bañez],
he is hereby ordered to file his brief with the court within 45 days from
receipt of this resolution. The petitioner-appellee [Aida Bañez] shall file
her own brief with the court within 45 days from receipt of the
petitioner-appellant’s [Gabriel Bañez] brief.
SO ORDERED.[7]
The appellate court also denied herein petitioner’s motion for
reconsideration, hence, the petition in G.R. No. 133628.
On January 19, 2000, we consolidated the two petitions. Petitioner Aida
Bañez now avers that the Court of Appeals erred:
I. G.R. No. 132592
... IN SETTING ASIDE THE GRANT OF EXECUTION
PENDING APPEAL BY THE TRIAL COURT OF THE
PORTIONS OF ITS DECISION ORDERING RESPONDENT TO
VACATE THE SMALLER RESIDENTIAL HOUSE LOCATED AT
THE MARIA LUISA ESTATE PARK SUBDIVISION, CEBU CITY,
AND TO PAY P100,000.00 TO PETITIONER’S COUNSEL AS
ATTORNEY’S FEES TO BE TAKEN FROM HER SHARE IN
THE NET CONJUGAL ASSETS.[8]
II. G.R. No. 133628:
... IN NOT GRANTING PETITIONER’S MOTION TO DISMISS
RESPONDENT’S ORDINARY APPEAL AND/OR NOT
RETURNING THE RECORDS OF CIVIL CASE NO. CEB-16765
TO THE REGIONAL TRIAL COURT OF CEBU.[9]
In G.R. No. 132592, petitioner manifested that she no longer questions
the Court of Appeals’ decision on the Mazda vehicle because
respondent repossessed it. As to the residential house, she claimed that
being conjugal in nature, justice requires that she and her children be
allowed to occupy and enjoy the house considering that during the
entire proceedings before the trial court, she did not have the chance to
occupy it. Further, she posted a bond of P1,500,000 for the damages
which respondent may suffer.[10] For these reasons, she asked for
execution pending appeal. The amount of P100,000 as advance payment
to her counsel was a “drop in the bucket” compared to the bond she
posted, according to her. She also suggested as an alternative that she
simply be required to put up an additional bond. She also agreed to
submit to an accounting as regular administratrix and the advance
attorney’s fees be charged to her share in the net conjugal assets.
In his comment, respondent denied petitioner’s allegation that she did
not have the chance to occupy the residential house. He averred that
she could have, had she chosen to. According to him, as the inventory
of the couple’s properties showed, petitioner owned two houses and
lots and two motor vehicles in the United States, where she is a
permanent resident. Respondent contended that there was no
compelling reason for petitioner to have the judgment executed pending
appeal.
Essentially, the core issue in G.R. No. 132592 is whether execution of
judgment pending appeal was justified.
As held in Echaus vs. Court of Appeals, 199 SCRA 381, 386 (1991),
execution pending appeal is allowed when superior circumstances
demanding urgency outweigh the damages that may result from the
issuance of the writ. Otherwise, instead of being an instrument of
solicitude and justice, the writ may well become a tool of oppression In Roman Catholic Archbishop of Manila v. Court of Appeals, 258 SCRA 186,
and inequity.[11] 194 (1996), this Court held:
xxx Multiple appeals are allowed in special proceedings, in actions for
In this case, considering the reasons cited by petitioner, we are of the recovery of property with accounting, in actions for partition of
view that there is no superior or urgent circumstance that outweighs the property with accounting, in the special civil actions of eminent domain
damage which respondent would suffer if he were ordered to vacate the and foreclosure of mortgage. The rationale behind allowing more than
house. We note that petitioner did not refute respondent’s allegations one appeal in the same case is to enable the rest of the case to proceed
that she did not intend to use said house, and that she has two (2) other in the event that a separate and distinct issue is resolved by the court
houses in the United States where she is a permanent resident, while he and held to be final.
had none at all. Merely putting up a bond is not sufficient reason to
In said case, the two issues raised by therein petitioner that may
justify her plea for execution pending appeal. To do so would make
allegedly be the subject of multiple appeals arose from the same cause
execution routinary, the rule rather than the exception.[12]
of action, and the subject matter pertains to the same lessor-lessee
relationship between the parties. Hence, splitting the appeals in that
Similarly, we are not persuaded that the P100,000 advance payment to
case would only be violative of the rule against multiplicity of appeals.
petitioner’s counsel was properly granted. We see no justification to
pre-empt the judgment by the Court of Appeals concerning said
The same holds true in an action for legal separation. The issues
amount of P100,000 at the time that the trial court’s judgment was
involved in the case will necessarily relate to the same marital
already on appeal.
relationship between the parties. The effects of legal separation, such as
entitlement to live separately, dissolution and liquidation of the absolute
In G.R. No. 133628, petitioner Aida Bañez contends that an action for
community or conjugal partnership, and custody of the minor children,
legal separation is among the cases where multiple appeals may be
follow from the decree of legal separation.[19] They are not separate or
taken. According to her, the filing of a record on appeal, pursuant to
distinct matters that may be resolved by the court and become final
Section 2(a), Rule 41 of the Rules of Court,[13] is required in this
prior to or apart from the decree of legal separation. Rather, they are
case. She concludes that respondent’s appeal should have been
mere incidents of legal separation.[20] Thus, they may not be subject to
dismissed for his failure to file the record on appeal within the
multiple appeals.
reglementary period, as provided under Section 1-b, Rule 50 of the
Rules of Court.[14]
Petitioner’s alternative prayers that in case we do not dismiss the appeal,
we return the records to the trial court and require respondent to file a
Petitioner likewise prays that, in the event that we do not dismiss
record on appeal, or we return the records to the trial court and retain
Gabriel Bañez’ appeal, we should direct the appellate court to return the
only the pleadings and orders relevant to the appeal, are untenable. If
records of the case to the RTC of Cebu. Thereafter, according to her,
we grant the first, we are effectively saying that the instant case is one
respondent should file his record on appeal for approval and transmittal
involving multiple appeals, which it is not. If we allow the second, we
to the Court of Appeals. In the alternative, she prays that the appellate
are effectively applying by analogy, Section 6, Rule 44 and Section 6,
court retain only the pleadings and evidence necessary to resolve
Rule 135 of the Rules of Court, without petitioner showing support
respondent’s appeal pursuant to Section 6, Rule 44[15] and Section 6,
therefor in law or jurisprudence.[21]
Rule 135[16] of the Rules of Court, and return the rest of the case
records to the RTC.
WHEREFORE, the instant petitions are DENIED for lack of merit.
The decision and resolution of the Court of Appeals in CA-G.R. SP
In turn, respondent argues that Section 39 of B.P. 129[17] expressly
No. 42663 and CA-G.R. No. CV-56265, respectively, are hereby
abolished the requirement of a record on appeal, except in appeals in
AFFIRMED, so that the Order dated October 1, 1996, of the Regional
special proceedings in accordance with Rule 109,[18] and other cases
Trial Court authorizing the release of P100,000 to petitioner’s counsel;
wherein multiple appeals are allowed. An action for legal separation, he
the Omnibus Order dated November 22, 1996 granting the motion
avers, is neither a special proceeding nor one where multiple appeals are
pending appeal; the writ of execution dated December 2, 1996; and the
allowed.
Order dated December 10, 1996 granting the motion by the sheriff to
make symbolic delivery of the house and vehicle are SET
Now, is an action for legal separation one where multiple appeals are
ASIDE. Further, the Administrator of the conjugal partnership is
allowed? We do not think so.
ORDERED to cause the reimbursement by petitioner’s counsel of the
released amount of P100,000. The Court of Appeals is hereby
DIRECTED to give due course to respondent’s appeal, and the
Division Clerk of Court of this Court is likewise DIRECTED to
promptly remand the record of these cases to the Court of Appeals.

Costs against petitioner.

SO ORDERED.

Bellosillo, (Chairman), Mendoza, Buena, and De Leon, Jr., JJ., concur.

 Supreme Court of the Philippines
G.R. No. L-30977, January 31, 1972
CARMEN LAPUZ SY, REPRESENTED BY HER
SUBSTITUTE MACARIO LAPUZ, PETITIONER AND
APPELLANT, VS. EUFEMIO S. EUFEMIO ALIAS EUFEMIO
SY UY, RESPONDENT AND APPELLEE.
DECISION
REYES, J.B.L., J.:
Petition, filed after the effectivity of Republic Act 5440, for review by
certiorari of an order, dated 29 July 1969, of the Juvenile and Domestic
Relations Court of Manila, in its Civil Case No. 20387, dismissing said
case for legal separation on the ground that the death of the therein
plaintiff, Carmen O. Lapuz Sy, which occurred during the pendency of
the case, abated the cause of action as well as the action itself. The
dismissal order was issued over the objection of Macario Lapuz, the heir
of the deceased plaintiff (and petitioner herein) who sought to
substitute the deceased and to have the case prosecuted to final
judgment.
On 18 August 1953, Carmen O. Lapuz Sy filed a petition for legal
separation against Eufemio S. Eufemio, alleging, in the main, that they
were married civilly on 21 September 1934 and canonically on 30
September 1934; that they had lived together as husband and wife
continuously until 1943 when her husband abandoned her, that they
had no child; that they acquired properties during their marriage; and
that she discovered her husband cohabiting with a Chinese woman
named Go Hiok at 1319 Sisa Street, Manila, on or about March
1949. She prayed for the issuance of a decree of legal separation, which,
among others, would order that the defendant Eufemio S. Eufemio
should be deprived of his share of the conjugal partnership profits.
In his second amended answer to the petition, herein respondent
Eufemio S. Eufemio alleged affirmative and special defenses, and, along
with several other claims involving money and other properties,
counterclaimed for the declaration of nullity ab initio of his marriage
with Carmen O. Lapuz Sy, on the ground of his prior and subsisting
marriage, celebrated according to Chinese law and customs, with one
Go Hiok, alias Ngo Hiok.
Issues having been joined, trial proceeded and the parties adduced their
respective evidence. But before the trial could be completed (the
respondent was already scheduled to present surrebuttal evidence on 9
and 18 June 1969), petitioner Carmen O. Lapuz Sy died in a vehicular
accident on 31 May 1969. Counsel for petitioner duly notified the court
of her death.
On 9 June 1969, respondent Eufemio moved to dismiss the "petition
for legal separation"[1] on two (2) grounds, namely: that the petition for
legal separation was filed beyond the one-year period provided for in
Article 102 of the Civil Code; and that the death of Carmen abated the
action for legal separation.
On 26 June 1969, counsel for deceased petitioner moved to substitute
the deceased Carmen by her father, Macario Lapuz. Counsel for
Eufemio opposed the motion.
On 29 July 1969, the court issued the order under review, dismissing the
case.[2] In the body of the order, the court stated that the motion to
dismiss and the motion for substitution had to be resolved on the
question of whether or not the plaintiff's cause of action has survived,
which the court resolved in the negative. Petitioner's counsel moved to
reconsider but the motion was denied on 15 September 1969.
After first securing an extension of time to file a petition for review of
the order of dismissal issued by the juvenile and domestic relations
court, the petitioner filed the present petition on 14 October 1969. The
same was given due course and answer thereto was filed by respondent,
who prayed for the affirmance of the said order.[3]
Although the defendant below, the herein respondent Eufemio S.
Eufemio, filed counterclaims, he did not pursue them after the court
below dismissed the case. He acquiesced in the dismissal of said
counterclaims by praying for the affirmance of the order that dismissed
not only the petition for legal separation but also his counterclaim to
declare the Eufemio-Lapuz marriage to be null and void ab initio.
But petitioner Carmen O. Lapuz Sy (through her self-assumed
substitute – for the lower court did not act on the motion for
substitution) stated the principal issue to be as follows:
"When an action for legal separation is converted by the counterclaim
into one for a declaration of nullity of a marriage, does the death of a
party abate the proceedings?"
The issue as framed by petitioner injects into it a supposed conversion
of a legal separation suit to one for declaration of nullity of a marriage,
which is without basis, for even petitioner asserted that "the respondent
has acquiesced to the dismissal of his counterclaim" (Petitioner's Brief,
page 22). Not only this. The petition for legal separation and the
counterclaim to declare the nullity of the self same marriage can stand
independent and separate adjudication. They are not inseparable nor
was the action for legal separation converted into one for a declaration
of nullity by the counterclaim, for legal separation presupposes a valid
marriage, while the petition for nullity has a voidable marriage as a
precondition.
The first real issue in this case is: Does the death of the plaintiff before
final decree, in an action for legal separation, abate the action? If it
does, will abatement also apply if the action involves property rights?
An action for legal separation which involves nothing more than the
bed-and-board separation of the spouses (there being no absolute
divorce in this jurisdiction) is purely personal. The Civil Code of the
Philippines recognizes this in its Article 100, by allowing only the
innocent spouse (and no one else) to claim legal separation; and in its
Article 108, by providing that the spouses can, by their reconciliation,
stop or abate the proceedings and even rescind a decree of legal
separation already rendered. Being personal in character, it follows that
the death of one party to the action causes the death of the action itself
– actio personalis moritur cum persona.
* * * When one of the spouses is dead, there is no need for divorce,
because the marriage is dissolved. The heirs cannot even continue the
suit, if the death of the spouse takes place during the course of the suit
(Article 244, Section 3). The action is absolutely dead (Cass., July 27,
1871, D. 71. 1. 81; Cass. req., May 8, 1933, D.H. 1933, 332."[4]
"Marriage is a personal relation or status, created under the sanction of
law, and an action for divorce is a proceeding brought for the purpose
of effecting a dissolution of that relation. The action is one of a
personal nature. In the absence of a statute to the contrary, the death of
one of the parties to such action abates the action, for the reason that
death has settled the question of separation beyond all controversy and
deprived the court of jurisdiction, both over the persons of the parties
to the action and of the subject-matter of the action itself. For this
reason the courts are almost unanimous in holding that the death of
either party to a divorce proceeding, before final decree, abates the
action. 1 Corpus Juris, 208; Wren vs. Moss, 2 Gilman, 72; Danforth vs.
Danforth, 111 III. 236; Matter of Grandall, 196 N.Y. 127, 89 N.E. 578,
134 Am St. Rep. 830, 17 Ann. Cas. 874; Wilcon vs. Wilson, 73 Mich.
620, 41 N.W. 817; Strickland vs. Strickland, 80 Ark. 452, 97 S. W. 659;
McCurley vs. McCurley, 60 Md. 185, 45 Am. Rep. 717; Begbie vs.
Begbie, 128 Cal. 155, 60 Pac. 667, 49 L. R. A. 141."[5]
The same rule is true of causes of action and suits for separation and
maintenance (Johnson vs. Bates, Ark. 101 SW 412; 1 Corpus Juris 208).
A review of the resulting changes in property relations between spouses
shows that they are solely the effect of the decree of legal separation;
hence, they can not survive the death of the plaintiff if it occurs prior to
the decree. On this point, Article 106 of the Civil Code provides:
"Art. 106. The decree of legal separation shall have the following
effects:
"(1) The spouses shall be entitled to live separately from each other,
but the marriage bonds shall not be severed;
"(2) The conjugal partnership of gains or the absolute conjugal
community of property shall be dissolved and liquidated, but the
offending spouse shall have no right to any share of the profits earned
by the partnership or community, without prejudice to the provisions of
article 176;
"(3) The custody of the minor children shall be awarded to the
innocent spouse, unless otherwise directed by the court in the interest
of said minors, for whom said court may appoint a guardian;
"(4) The offending spouse shall be disqualified from inheriting from
the innocent spouse by intestate succession. Moreover, provisions in
favor of the offending spouse made in the will of the innocent one shall
be revoked by operation of law." * * *
From this article it is apparent that the right to the dissolution of the
conjugal partnership of gains (or of the absolute community of
property), the loss of right by the offending spouse to any share of the
profits earned by the partnership or community, or his disqualification
to inherit by intestacy from the innocent spouse as well as the
revocation of testamentary provisions in favor of the offending spouse
made by the innocent one, are all rights and disabilities that, by the very
terms of the Civil Code article, are vested exclusively in the persons of
the spouses; and by their nature and intent, such claims and disabilities
are difficult to conceive as assignable or transmissible. Hence, a claim
to said rights is not a claim that "is not thereby extinguished" after a
party dies, under Section 17, Rule 3, of the Rules of Court, to warrant
continuation of the action through a substitute of the deceased party.
"Sec. 17. Death of party. After a party dies and the claim is not thereby
extinguished, the court shall order, upon proper notice, the legal
representative of the deceased to appear and to be substituted for the
deceased, within a period of thirty (30) days, or within such time as may
be granted. * * *."
The same result flows from a consideration of the enumeration of the
actions that survive for or against administrators in Section 1, Rule 87,
of the Revised Rules of Court:
"SECTION 1. Actions which may and which may not be brought against Concepcion, C.J., Makalintal, Zaldivar, Castro, Fernando, Teehankee, Barredo,
executor or administrator. No action upon a claim for the recovery of Villamor, and Makasiar, JJ., concur.
money or debt or interest thereon shall be commenced against the
executor or administrator; but actions to recover real or personal
property, or an interest therein, from the estate, or to enforce a lien
thereon, and actions to recover damages for an injury to person or
property, real or personal, may be commenced against him."

Neither actions for legal separation or for annulment of marriage can be

deemed fairly included in the enumeration.

A further reason why an action for legal separation is abated by the

death of the plaintiff, even if property rights are involved, is that these
rights are mere effects of a decree of separation, their source being the
decree itself; without the decree such rights do not come into existence,
so that before the finality of a decree, these claims are merely rights in
expectation. If death supervenes during the pendency of the action, no
decree can be forthcoming, death producing a more radical and
definitive separation; and the expected consequential rights and claims
would necessarily remain unborn.

As to the petition of respondent-appellee Eufemio for a declaration of

nullity ab initio of his marriage to Carmen Lapuz, it is apparent that such
action became moot and academic upon the death of the latter, and
there could be no further interest in continuing the same after her
demise, that automatically dissolved the questioned union. Any
property rights acquired by either party as a result of Article 144 of the
Civil Code of the Philippines[6] could be resolved and determined in a
proper action for partition by either the appellee or by the heirs of the
appellant.

In fact, even if the bigamous marriage had not been void ab initio but
only voidable under Article 83, paragraph 2, of the Civil Code, because
the second marriage had been contracted with the first wife having been
an absentee for seven consecutive years, or when she had been generally
believed dead, still the action for annulment became extinguished as
soon as one of the three persons involved had died, as provided in
Article 87, paragraph 2, of the Code, requiring that the action for
annulment should be brought during the lifetime of any one of the
parties involved. And furthermore, the liquidation of any conjugal
partnership that might have resulted from such voidable marriage must
be carried out "in the testate or intestate proceedings of the deceased
spouse," as expressly provided in Section 2 of the Revised Rule 73, and
not in the annulment proceeding.

ACCORDINGLY , the appealed judgment of the Manila Court of

Juvenile and Domestic Relations is hereby affirmed. No special
pronouncement as to costs.
 Supreme Court of the Philippines
G.R. No. L-9667, July 31, 1956
LUIS MA. ARANETA, PETITIONER, VS. HONORABLE
HERMOGENES CONCEPCION, AS JUDGE OF THE
COURT OF FIRST INSTANCE OF MANILA, BRANCH VI
AND EMMA BENITEZ ARANETA, RESPONDENTS.
DECISION
LABRADOR, J.:
The main action was brought by petitioner against his wife, one of the
respondent herein, for legal separation on the ground of
adultery. After the issues were joined defendant therein filed an
omnibus petition to secure custody of their three minor children, a
monthly support of P5,000 for herself and said children, and the return
of her passport, to enjoin plaintiff from ordering his hirelings from
harassing and molesting her, and to have plaintiff therein pay for the
fees of her attorney in the action. The petition is supported by her
affidavit. Plaintiff opposed the petition, denying the misconduct
imputed to him and alleging that defendant had abandoned the children;
alleging that conjugal properties were worth only P80,000,
not one million pesos as alleged by defendant; denying the taking of
her passport or the supposed vexation, and contesting her right
to attorney's fees. Plaintiff prayed that as the petition for custody and
support cannot be determined without evidence, the
parties be required to submit their respective evidence. He also
contended that defendant is not entitled to the custody of the children
as she had abandoned them and had committed adultery, that by her
conduct she had become unfit to educate her children, being unstable
in her emotions and unable to give the children the love,
respect and care of a true mother and without means to
educate them. As to the claim for support, plaintiff claims that there
are no conjugal assets and she is not entitled to support because of her
infidelity and that she was able to support herself. Affidavits
and documents were submitted both in support and against the
omnibus petition.
The respondent judge resolved the omnibus petition, granting the
custody of the children to defendant and a monthly allowance
of P2,300 for support for her and the children, P300 for a house and
P2,000 as attorney's fees. Upon refusal of the judge to reconsider the
order, petitioner filed the present petition for certiorari against said
order and for mandamus to compel the respondent judge to require the
parties to submit evidence before deciding the omnibus petition. We
granted a writ of preliminary injunction against the order.
The main reason given by the judge, for refusing plaintiff's request
that evidence be allow«d to be introduced on the issues, is the
prohibition contained in Article 103 of the Civil Code, which
reads as follows:
"ART. 103. An action for legal separation shall in no case be
tried before six months shall have elapsed since the filing of the
petition."
Interpreting the spirit and policy of the provision the trial judge says:
"This provision of the code is mandatory. This case cannot be tried
within the period of six months from the filing of the complaint The
court understands that the introduction of any evidence, be it on the
merits of the case or on any incident, is prohibited. The law, up to the
last minute, exerts efforts at preserving the family and the home from
utter ruin. Interpreting the intent of said article, the court understands
that every step it should take within the period of six months above
stated should be taken toward reconciling the parties. Admitting
evidence now will make reconciliation difficult if not impossible. In
this case the court should act as if nothing yet had
happened. The children must be given for custody to him or her who
by family custom and tradition is the custodian of the children. The
court should ignore that defendant had committed any act
of adultery or the plaintiff, any act of cruelty to his wife. The status
quo of the family must be restored as much as possible. In this
country, unlike perhaps in any other country of the globe, a family or
a home is a petite corporation. The father is the administrator who
earns the family funds, dictates rules in the. home for all to follow,
and protects all members of his family. The mother keeps
home, keeps children in her company and custody, and keeps the
treasure of that family. In a typical Filipino family, the wife prepares
home budget and makes little investment without the knowledge
of her husband. A husband who holds the purse is un-Filipino. He
is shunned in Filipino community. The court therefore, in
taking action on petition No. 1 should be guided by the above
considerations." (pp. 116-117, Record on Appeal.)
It may be noted that since more than six months have elapsed since
the filing of the petition the question offered may not be
allowed. It is, however, believed that the reasons for granting the
preliminary injunction should be given that the scope of the article
cited may be explained. It is conceded that the period of six months
fixed therein Article 103 (Civil Code) is evidently intended as a cooling
off period to make possible a reconciliation between the
spouses. The recital of their grievances against each other in court
may only fan their already inflamed passions against one another, and
the lawmaker has imposed the period to give them opportunity for
dispassionate reflection. But this practical expedient, necessary to carry opinion. The court's order fixing the alimony and requiring payment is
out legislative policy, does not have the effect of overriding other reversed. Without costs,.
provisions such as the determination of the custody of the children
and alimony and support pendente lite according Paras, C. J., Bengzon, Padilla, Montemayor, Reyes A., Bautista Angelo,
to the circumstances. (Article 105, Civil Concepcion, Reyes, J. B. L., and Endencia, JJ., concur.
Code.) The law expressly enjoins that these should be determined by
the court according to the circumstances. If these are ignored or the
courts close their eyes to actual facts, rank in justice may be caused.

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

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

"The practical inquiry in litigation is usually to determine what a

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

Thus the determination of the custody and alimony should be given

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

The writ prayed for is hereby issued and the respondent judge or
whosoever takes his place is ordered to proceed on the question of
custody and support pendente lite in accordance with this
 Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. L-34132 July 29, 1972
LUCY SOMOSA-RAMOS, petitioner,
vs.
THE HONORABLE CIPRIANO VAMENTA, JR., Presiding
Judge of the Court of First Instance of Negros Oriental and
CLEMEN G. RAMOS, respondents.
T. R. Reyes & Associates for petitioner.
Soleto J. Erames for respondents.
FERNANDO, J.:p
The question raised in this petition for certiorari is whether or not Article
103 of the Civil Code prohibiting the hearing of an action for legal
separation before the lapse of six months from the filing of the petition,
would likewise preclude the court from acting on a motion for
preliminary mandatory injunction applied for as an ancillary remedy to
such a suit. Respondent Cipriano Vamenta, Jr., of the Court of First
Instance of Negros Oriental, answered the question in the affirmative,
in view of the absolute tenor of such Civil Code provision, which reads
thus: "An action for legal separation shall in no case be tried before six
months shall have elapsed since the filing of the petition." He therefore
ordered the suspension, upon the plea of the other respondent the
husband Clemente G. Ramos, of the hearing on a motion for a writ of
preliminary mandatory injunction filed by petitioner at the same time
the suit for legal separation was instituted. Petitioner, Lucy Somosa-
Ramos, the wife who brought the action for legal separation would
dispute such a ruling. Hence, this certiorari proceeding. As will be shown
later there is justification for such a move on the part of petitioner. The
respondent Judge ought to have acted differently. The plea for a writ
of certiorari must be granted.
The pleadings show that on June 18, 1971, petitioner filed Civil Case
No. 5274 in the sala of respondent Judge against respondent Clemente
Ramos for legal separation, on concubinage on the respondent's part
and an attempt by him against her life being alleged. She likewise sought
the issuance of a writ of preliminary mandatory injunction for the return
to her of what she claimed to be her paraphernal and exclusive
property, then under the administration and management of respondent
Clemente Ramos. There was an opposition to the hearing of such a
motion, dated July 3, 1971, based on Article 103 of the Civil Code. It
was further manifested by him in a pleading dated July 16, 1971, that if
the motion asking for preliminary mandatory injunction were heard, the
prospect of the reconciliation of the spouses would become even more
dim. Respondent Judge ordered the parties to submit their respective
memoranda on the matter. Then on September 3, 1971, petitioner
received an order dated August 4, 1971 of respondent Judge granting
the motion of respondent Ramos to suspend the hearing of the petition
for a writ of mandatory preliminary injunction. That is the order
complained of in this petition for certiorari. Respondents were required
to answer according to our resolution of October 5, 1971. The answer
was filed December 2 of that year. Then on January 12, 1972 came a
manifestation from parties in the case submitting the matter without
further arguments.
After a careful consideration of the legal question presented, it is the
holding of this Court that Article 103 the Civil Code is not an absolute
bar to the hearing motion for preliminary injunction prior to the
expiration of the six-month period.
1. It is understandable why there should be a period during which the
court is precluded from acting. Ordinarily of course, no such delay is
permissible. Justice to parties would not thereby be served. The sooner
the dispute is resolved, the better for all concerned. A suit for legal
separation, however, is something else again. It involves a relationship
on which the law for the best reasons would attach the quality of
permanence. That there are times when domestic felicity is much less
than it ought to be is not of course to be denied. Grievances, whether
fancied or real, may be entertained by one or both of the spouses. There
may be constant bickering. The loss affection on the part of one or
both may be discernible. Nonetheless, it will not serve public interest,
much less the welfare of the husband or the wife, to allow them to go
their respective ways. Where there are offspring, the reason for
maintaining the conjugal union is even more imperative. It is a mark of
realism of the law that for certain cases, adultery on the part of the wife
and concubinage on the part of the husband, or an attempt of one
spouse against the life of the other,1 it recognizes, albeit reluctantly, that
the couple is better off apart. A suit for legal separation lies. Even then,
the hope that the parties may settle their differences is not all together
abandoned. The healing balm of time may aid in the process. Hopefully,
the guilty parties may mend his or her ways, and the offended party may
in turn exhibit magnanimity. Hence, the interposition of a six-month
period before an action for legal separation is to be tried.
The court where the action is pending according to Article 103 is to
remain passive. It must let the parties alone in the meanwhile. It is
precluded from hearing the suit. There is then some plausibility for the
view of the lower court that an ancillary motion such as one for
preliminary mandatory injunction is not to be acted on. If it were
otherwise, there would be a failure to abide by the literal language of
such codal provision. That the law, however, remains cognizant of the
need in certain cases for judicial power to assert itself is discernible
from what is set forth in the following article. It reads thus: "After the
filing of the petition for legal separation, the spouse shall be entitled to
live separately from each other and manage their respective property.
The husband shall continue to manage the conjugal partnership
property but if the court deems it proper, it may appoint another to
manage said property, in which case the administrator shall have the
same rights and duties as a guardian and shall not be allowed to dispose
of the income or of the capital except in accordance with the orders of
the court."2 There would appear to be then a recognition that the
question of management of their respective property need not be left
unresolved even during such six-month period. An administrator may
even be appointed for the management of the property of the conjugal
partnership. The absolute limitation from which the court suffers under
the preceding article is thereby eased. The parties may in the meanwhile
be heard. There is justification then for the petitioner's insistence that
her motion for preliminary mandatory injunction should not be ignored
by the lower court. There is all the more reason for this response from
respondent Judge, considering that the husband whom she accused of
concubinage and an attempt against her life would in the meanwhile
continue in the management of what she claimed to be her paraphernal
property, an assertion that was not specifically denied by him. What was
held by this Court in Araneta v. Concepcion,3 thus possesses relevance: "It
is conceded that the period of six months fixed therein Article 103
(Civil Code) is evidently intended as a cooling off period to make
possible a reconciliation between the spouses. The recital of their
grievances against each other in court may only fan their already
inflamed passions against one another, and the lawmaker has imposed
the period to give them opportunity for dispassionate reflection. But
this practical expedient, necessary to carry out legislative policy, does
not have the effect of overriding other provisions such as the
determination of the custody of the children and alimony and support
pendente lite according to the circumstance ... The law expressly enjoins
that these should be determined by the court according to the
circumstances. If these are ignored or the courts close their eyes to
actual facts, rank injustice may be caused."4 At any rate, from the time
of the issuance of the order complained of on August 4, 1971, more
than six months certainly had elapsed. Thus there can be no more
impediment for the lower court acting on the motion of petitioner for
the issuance of a writ of preliminary mandatory injunction.

WHEREFORE, the plea of petitioner for a writ of certiorari is granted,

and the order of respondent Court of August 4, 1971, suspending the
hearing on the petition for a writ of preliminary mandatory injunction is
set aside. Respondent Judge is directed to proceed without delay to hear
the motion for preliminary mandatory injunction. Costs against
respondent Clemente G. Ramos.

Concepcion, C.J., Makalintal, Zaldivar, Castro, Teehankee, Barredo, Makasiar,

Antonio and Esguerra, JJ., concur.
 Supreme Court of the Philippines
THIRD DIVISION
G.R. No. 53880, March 17, 1994
ENRICO L. PACETE, CLARITA DE LA CONCEPCION,
EMELDA C. PACETE, EVELINA C. PACETE AND
EDUARDO C. PACETE, PETITIONERS, VS. HON.
GLICERIO V. CARRIAGA, JR. AND CONCEPCION
(CONCHITA) ALANIS PACETE RESPONDENTS.
DECISION
VITUG, J.:
The issue in this petition for certiorari is whether or not the Court of
First Instance (now Regional Trial Court) of Cotabato, Branch I, in
Cotabato City, gravely abused its discretion in denying petitioners’
motion for extension of time to file their answer in Civil Case No. 2518,
in declaring petitioners in default and in rendering its decision of 17
March 1980 which, among other things, decreed the legal separation of
petitioner Enrico L. Pacete and private respondent Concepcion Alanis
and held to be null and void ab initio the marriage of Enrico L. Pacete
to Clarita de la Concepcion.
On 29 October 1979, Concepcion Alanis filed with the court below a
complaint for the declaration of nullity of the marriage between her
erstwhile husband Enrico L. Pacete and one Clarita de la Concepcion,
as well as for legal separation (between Alanis and Pacete), accounting
and separation of property. In her complaint, she averred that she was
married to Pacete on 30 April 1938 before the Justice of the Peace of
Cotabato, Cotabato; that they had a child named Consuelo who was
born on 11 March 1943; that Pacete subsequently contracted (in 1948) a
second marriage with Clarita de la Concepcion in Kidapawan, North
Cotabato; that she learned of such marriage only on 01 August 1979;
that during her marriage to Pacete, the latter acquired vast property
consisting of large tracts of land, fishponds and several motor vehicles;
that he fraudulently placed the several pieces of property either in his
name and Clarita or in the names of his children with Clarita and other
"dummies;" that Pacete ignored overtures for an amicable settlement;
and that reconciliation between her and Pacete was impossible since he
evidently preferred to continue living with Clarita.
The defendants were each served with summons on 15 November
1979. They filed a motion for an extension of twenty (20) days from 30
November 1979 within which to file an answer. The court granted the
motion. On 18 December 1979, appearing through a new counsel, the
defendants filed a second motion for an extension of another thirty (30)
days from 20 December 1979. On 07 January 1980, the lower court
granted the motion but only for twenty (20) days to be counted from 20
December 1979 or until 09 January 1980. The Order of the court was
mailed to defendants' counsel on 11 January 1980. Likely still unaware
of the court order, the defendants, on 05 February 1980, again filed
another motion (dated 18 January 1980) for an extension of "fifteen
(15) days counted from the expiration of the 30-day period previously
sought" within which to file an answer. The following day, or on 06
February 1980, the court denied this last motion on the ground that it
was "filed after the original period given x x x as first extension had
expired."[1]
The plaintiff thereupon filed a motion to declare the defendants in
default, which the court forthwith granted. The plaintiff was then
directed to present her evidence.[2] The court received plaintiff's
evidence during the hearings held on 15, 20, 21 and 22 February 1980.
On 17 March 1980, the court[3] promulgated the herein questioned
decision, disposing of the case, thus -
“WHEREFORE, order is hereby issued ordering:
"1. The issuance of a Decree of Legal Separation of the marriage
between, the plaintiff, Concepcion (Conchita) Alanis Pacete and the
herein defendants, Enrico L. Pacete, in accordance with the Philippine
laws and with consequences, as provided for by our laws;
"2. That the following properties are hereby declared as the conjugal
properties of the partnership of the plaintiff, Concepcion (Conchita)
Alanis Pacete and the defendant, Enrico L. Pacete, half and half, to wit:
"1. The parcel of land covered by TCT No. V-815 which is a parcel of
land situated in the barrio of Langcong, Municipality of Matanog
(previously of Parang), province of Maguindanao (previously of
Cotabato province) with an area of 45,256 square meters registered in
the name of Enrico Pacete, Filipino, of legal age, married to Conchita
Alanis as shown in Exhibits 'B' and 'B-1' for the plaintiff.
"2. A parcel of land covered by Transfer Certificate of Title No. T-
20442, with an area of 538 square meters and covered by Tax
Declaration No. 2650 (74) in the name of Enrico Pacete, situated in the
Poblacion of Kidapawan, North Cotabato, together with all its
improvements, which parcel of land, as shown by Exhibits ‘K-1’ was
acquired by way of absolute deed of sale executed by Amrosio Mondog
on January 14, 1965.
"3. A parcel of land covered by Transfer Certificate of Title No. T-
20424 and covered by Tax Declaration No. 803 (74), with an area of
5.1670 hectares, more or less, as shown by Exhibit 'R', the same was
registered in the name of Enrico Pacete and the same was acquired by
Enrico Pacete last February 17, 1967 from Ambag Ampoy, as shown by registration of the same in the joint name of Concepcion (Conchita)
Exhibit 'R-1’, situated at Musan, Kidapawan, North Cotabato. Alanis Pacete and Enrico L. Pacete as their conjugal property, with
address on the part of Concepcion (Conchita) Alanis Pacete at Parang,
“4. A parcel of land situated at Lanao, Kidapawan, North Cotabato,
Maguindanao and on the part of Enrico L. Pacete at Kidapawan, North
with an area of 5.0567 hectares, covered by Tax Declaration No. 4332
Cotabato.
(74), as shown by Exhibit ‘S’, and registered in the name of Enrico
Pacete. "4. Ordering likewise the cancellation of Original Certificate of Title
No. V-20101, covering Lot No. 77, in the name of Eduardo C. Pacete,
“5. A parcel of land covered by Transfer Certificate of Title No. T-
situated at New Lawaan, Mlang, North Cotabato, and the issuance of a
9750, situated at Lika, Mlanng, North Cotabato, with an area of 4.9841
new Transfer Certificate of Title in the joint name of (half and half)
hectares and the same is covered by Tax Declaration No. 803 (74) and
Concepcion (Conchita) Alanis Pacete and Enrico L. Pacete.
registered in the name of Enrico Pacete and which land was acquired by
Enrico Pacete from Salvador Pacete on September 24, 1962, as shown “5. Ordering likewise the cancellation of Original Certificate of Title
by Exhibit 'Q-1’. No. P-29890, covering Lot 1068, situated at Kiab, Matalam, North
Cotabato, with an area of 12.1031 hectares, in the name of Emelda C.
"6. A parcel of land covered by Transfer Certificate of Title No. T-9944,
Pacete, and the issuance of a new Transfer Certificate of Title in the
with an area of 9.9566 and also covered by Tax Declaration No.
joint name (half and half) of Concepcion (Conchita) Alanis Pacete and
8608(74) and registered in the name of the defendant Enrico L. Pacete
Enrico L. Pacete; and declaring that the fishpond situated at Barrio
which Enrico L. Pacete acquired from Sancho Balingcos last October
Tumanan, Bislig, Surigao Del Sur, with an area of 48 hectares and
22, 1962, as shown by Exhibit ‘L-1’ and which parcel of land is situated
covered by Fishpond Lease Agreement of Emelda C. Pacete, dated July
at (Kialab), Kiab, Matalam, North Cotabato.
29, 1977 be cancelled and in lieu thereof, the joint name of Concepcion
“7. A parcel of land covered by Transfer Certificate of Title No. T-
(Conchita) Alanis Pacete and her husband, Enrico L. Pacete, be
9227, situated at Kiab, Matalam, North Cotabato, with an area of
registered as their joint property, including the 50 hectares fishpond
12.04339 hectares, more or less, and also covered by Tax Declaration
situated in the same place, Barrio Timanan, Bislig, Surigao del Sur.
No. 8607(74) both in the name of the defendant Enrico L. Pacete which
"6. Ordering the following motor vehicles to be the joint properties of
he acquired last October 15, 1962 from Minda Bernardino, as shown by
the conjugal partnership of Concepcion (Conchita) Alanis Pacete and
Exhibit 'M-1'.
Enrico L. Pacete, viz:
“8. A parcel of land covered by Transfer Certificate of Title No. T-
"a. Motor vehicle with Plate No. T-RG?783; Make, Dodge; Motor No.
9228, situated at Kiab, Matalam, North Cotabato, with an area of
T137-20561; Chassis No. 83920393, and Type, Mcarrier;
10.8908 hectares, registered in the name of Enrico Pacete and also
covered by Tax Declaration No. 5781 (74) in the name of Enrico Pacete "b. Motor vehicle with Plate No. T-RG?784; Make, Dodge; Motor No.
and which parcel of land he acquired last September 25, 1962 from T214-229547; Chassis No. 10D-1302-C; and Type, Mcarrier;
Conchita dela Torre, as shown by Exhibit 'P-1'.
"c. Motor vehicle with Plate No. J-PR-818; Make, Ford; Motor No.
“9. A parcel of land covered by Transfer Certificate of Title No. T- GPW-116188; Chassis No. HOCC-GPW-1161-88-C; Type, Jeep;
10301, situated at Linao, Matalam, North Cotabato, with an area of
"d. Motor vehicle with Plate No. TH-5J?583; Make, Ford; Motor No.
7.2547 hectares, registered in the name of Enrico Pacete and also
F70MU5-11111; Chassis No. HOCC-GPW-116188-G; Type, Stake;
covered by Tax Declaration No. 8716(74) also in the name of Enrico
"e. Motor vehicle with Plate No. TH-5J?584; Make, Hino; Motor No.
Pacete which Enrico Pacete acquired from Agustin Bijo last July 16,
ED300-45758; Chassis No. KB222-22044; Type, Stake; and
1963, as shown by Exhibit 'N-1'.
"f. Motor vehicle with Plate No. TH-5J?585; Make, Ford; Motor No.
"10. A parcel of land covered by Transfer Certificate of Title No. 12728
LTC-780-Dv; Chassis No. 10F-13582-K; Type, Stake.
in the name of the defendant, Enrico L. Pacete, with an area of 10.9006
hectares, situated at Linao, Matalam, North Cotabato and is also "7. Ordering the defendant Enrico L. Pacete to pay the plaintiff the sum
covered by Tax Declaration No. 5745(74) in the name of Enrico Pacete, of P46,950.00 which is the share of the plaintiff in the unaccounted
as shown on Exhibit ‘O’ and which Enrico Pacete acquired last income of the ricemill and corn sheller for three years from 1971 to
December 31, 1963 from Eliseo Pugni, as shown on Exhibit 'O-1'. 1973.

“3. Ordering the Cancellation of Original Certificate of Title No. P- “8. Ordering the defendant, Enrico L. Pacete, to reimburse the plaintiff
34243 covering Lot No. 1066, issued in the name of Evelina Pacete, the monetary equivalent of 30% of whatever the plaintiff has recovered
situated at Kiab, Matalam, North Cotabato, and ordering the as attorney’s fees;
“9. Declaring the subsequent marriage between defendant Enrico L.
Pacete and Clarita de la Concepcion to be void ab initio; and
“10. Ordering the defendants to pay the costs of this suit."[4]
Article 103 of the Civil Code, now Article 58 of the Family Code,
further mandates that an action for legal separation must "in no case be
tried before six months shall have elapsed since the filing of the
petition," obviously in order to provide the parties a "cooling-off"

Hence, the instant special civil action of certiorari. period. In this interim, the court should take steps toward getting the
parties to reconcile.

Under ordinary circumstances, the petition would have outrightly been

dismissed, for, as also pointed out by private respondents, the proper The significance of the above substantive provisions of the law is

remedy of petitioners should have instead been either to appeal from further underscored by the inclusion of the following provision in Rule

the judgment by default or to file a petition for relief from judgment.[5] 18 of the Rules of Court:

This rule, however, is not inflexible; a petition for certiorari is allowed

"SEC. 6. No defaults in actions for annulments of marriage or for legal
when the default order is improperly declared, or even when it is
separation. - If the defendant in an action for annulment of marriage or
properly declared, where grave abuse of discretion attended such
for legal separation fails to answer, the court shall order the prosecuting
declaration.[6] In these exceptional instances, the special civil action of
attorney to investigate whether or not a collusion between the parties
certiorari to declare the nullity of a judgment by default is available.[7] In
exists, and if there is no collusion, to intervene for the State in order to
the case at bench, the default order unquestionably is not legally
see to it that the evidence submitted is not fabricated."
sanctioned. The Civil Code provides:

The special proscriptions on actions that can put the integrity of

"Art. 101. No decree of legal separation shall be promulgated upon a
marriage to possible jeopardy are impelled by no less than the State's
stipulation of facts or by confession of judgment.
interest in the marriage relation and its avowed intention not to leave
"In case of non-appearance of the defendant, the court shall order the
the matter within the exclusive domain and the vagaries of the parties to
prosecuting attorney to inquire whether or not a collusion between the
alone dictate.
parties exists. If there is no collusion, the prosecuting attorney shall
intervene for the State in order to take care that the evidence for the It is clear that the petitioner did, in fact, specifically pray for legal
plaintiff is not fabricated." separation.[11] That other remedies, whether principal or incidental, have
likewise been sought in the same action cannot dispense, nor excuse
The provision has been taken from Article 30 of the California Civil
compliance, with any of the statutory requirements aforequoted.
Code,[8] and it is, in substance, reproduced in Article 60 of the Family
Code.[9] WHEREFORE, the petition for certiorari is hereby GRANTED and
the proceedings below, including the Decision of 17 March 1980
Article 101 reflects the public policy on marriages, and it should easily
appealed from, are NULLIFIED and SET ASIDE. No costs.
explain the mandatory tenor of the law. In Brown v. Yambao,[10] the
Court has observed: SO ORDERED.

"The policy of Article 101 of the new Civil Code, calling for the Feliciano, (Chairman), Bidin, Romero, and Melo, JJ., concur.
intervention of the state attorneys in case of uncontested proceedings
for legal separation (and of annulment of marriages, under Article 88), is
to emphasize that marriage is more than a mere contract; that it is a
social institution in which the state is vitally interested, so that its
continuation or interruption can not be made to depend upon the
parties themselves (Civil Code, Article 52; Adong vs. Cheong Gee, 43
Phil. 43; Ramirez v. Gmur, 42 Phil. 855; Goitia v. Campos, 35 Phil.
252). It is consonant with this policy that the inquiry by the Fiscal
should be allowed to focus upon any relevant matter that may indicate
whether the proceedings for separation or annulment are fully justified
or not."
 Supreme Court of the Philippines
FIRST DIVISION
G.R. No. 106169, February 14, 1994
SAMSON T. SABALONES, PETITIONER, VS. THE COURT
OF APPEALS AND REMEDIOS GAVIOLA-SABALONES,
RESPONDENTS.
After trial, Judge Mariano M. Umali, found that the petitioner had
indeed contracted a bigamous marriage on October 5, 1981, with
Thelma Cumareng, to whom he had returned upon his retirement in
1985 at a separate residence. The court thus decreed the legal separation
of the spouses and the forfeiture of the petitioner's share in the conjugal
properties, declaring as well that he was not entitled to support from his
respondent wife.[1]

This decision was appealed to the respondent court. Pendente lite, the
DECISION respondent wife filed a motion for the issuance of a writ of preliminary
injunction to enjoin the petitioner from interfering with the
CRUZ, J.: administration of their properties in Greenhills and Forbes Park. She
alleged inter alia that he had harassed the tenant of the Forbes Park
The subject of this petition is the preliminary injunction issued by the
property by informing him that his lease would not be renewed. She
respondent court pending resolution of a case on appeal. We deal only
also complained that the petitioner had disposed of one of their
with this matter and not the merits of the case.
valuable conjugal properties in the United States in favor of his
paramour, to the prejudice of his legitimate wife and children.
As a member of our diplomatic service assigned to different countries
during his successive tours of duties, petitioner Samson T. Sabalones
The petitioner opposed this motion and filed his own motion to
left to his wife, herein respondent Remedios Gaviola-Sabalones, the
prevent his wife from entering into a new contract of lease over the
administration of some of their conjugal properties for fifteen years.
Forbes Park property with its present tenant, or with future tenants,
without his consent.
Sabalones retired as ambassador in 1985 and came back to the
Philippines but not to his wife and their children. Four years later, he
After hearing, the Court of Appeals, in an order dated April 7, 1992,
filed an action for judicial authorization to sell a building and lot located
granted the preliminary injunction prayed for by the wife.[2]
at #17 Eisenhower St., Greenhills, San Juan, Metro Manila, belonging
to the conjugal partnership. He claimed that he was sixty-eight years
The petitioner now assails this order, arguing that since the law provides
old, very sick and living alone without any income, and that he would
for a joint administration of the conjugal properties by the husband and
use his share of the proceeds of the sale to defray the prohibitive cost of
wife, no injunctive relief can be issued against one or the other because
his hospitalization and medical treatment.
no right will be violated. In support of this contention, he cites Art. 124
of the Family Code, reading as follows:
In her answer, the private respondent opposed the authorization and
Art. 124. The administration and enjoyment of the conjugal partnership
filed a counterclaim for legal separation. She alleged that the house in
property shall belong to both spouses jointly. In case of disagreement,
Greenhills was being occupied by her and their six children and that
the husband's decision shall prevail, subject to recourse to the court by
they were depending for their support on the rentals from another
the wife for proper remedy, which must be availed of within five years
conjugal property, a building and lot in Forbes Park which was on lease
from the date of the contract implementing such decision.
to Nobumichi Izumi. She also informed the court that despite her
husband's retirement, he had not returned to his legitimate family and
In the event that one spouse is incapacitated or otherwise unable to
was instead maintaining a separate residence in Don Antonio Heights,
participate in the administration of the conjugal properties, the other
Fairview, Quezon City, with Thelma Cumareng and their three children.
spouse may assume sole powers of the administration. These powers do
not include disposition or encumbrance without authority of the court
In her prayer, she asked the court to grant the decree of legal separation
or the written consent of the other spouse. In the absence of such
and order the liquidation of the conjugal properties, with forfeiture of
authority or consent, the disposition or encumbrance shall be void.
her husband's share therein because of his adultery. She also prayed that
However, the transaction shall be construed as a continuing offer on the
it enjoin the petitioner and his agents from a) disturbing the occupants
part of the consenting spouse and the third person, and may be
of the Forbes Park property and b) disposing of or encumbering any of
perfected as a binding contract upon the acceptance by the other spouse
the conjugal properties.
or the authorization by the court before the offer is withdrawn by either Its province is to afford relief against future acts which are against
or both offerors. equity and good conscience and to keep and preserve the thing in the
status quo, rather than to remedy what is past or to punish for wrongful
He further notes that the respondent court failed to appoint an
acts already committed. It may issue to prevent future wrongs although
administrator of the conjugal assets as mandated by Art. 61 of the Code,
no right has yet been violated."[4]
thus:
Art. 61. After the filing of the petition for legal separation, the spouses
The Court notes that the wife has been administering the subject
shall be entitled to live separately from each other.
properties for almost nineteen years now, apparently without complaint
on the part of the petitioner. He has not alleged, much less shown, that
The court, in the absence of a written agreement between the spouses,
her administration has caused prejudice to the conjugal partnership.
shall designate either of them or a third person to administer the
What he merely suggests is that the lease of the Forbes Park property
absolute community or conjugal partnership property. The
could be renewed on better terms, or he should at least be given his
administrator appointed by the court shall have the same powers and
share of the rentals.
duties as those of a guardian under the Rules of Court.

The Court has carefully considered the issues and the arguments of the
In her motion for the issuance of a preliminary injunction, the
parties and finds that the petition has no merit.
respondent wife alleged that the petitioner's harassment of their tenant
at Forbes Park would jeopardize the lease and deprive her and her
We agree with the respondent court that pending the appointment of an
children of the income therefrom on which they depend for their
administrator over the whole mass of conjugal assets, the respondent
subsistence. She also testified the numerous other conjugal properties,
court was justified in allowing the wife to continue with her
real and personal, in the sole custody of the husband,[*] including
administration. It was also correct, taking into account the evidence
various dollar accounts, two houses in Quezon City and Cebu City, and
adduced at the hearing, in enjoining the petitioner from interfering with
a Mercedes Benz. The private respondent also complained that on June
his wife's administration pending resolution of the appeal.
10, 1991, the petitioner executed a quitclaim over their conjugal
property in Apple Valley, San Bernardino, California, U.S.A., in favor of
The law does indeed grant to the spouses joint administration over the
Thelma Curameng, to improve his paramour's luxurious lifestyle to the
conjugal properties as clearly provided in the above-cited Article 124 of
prejudice of his legitimate family.
the Family Code. However, Article 61, also above quoted, states that
after a petition for legal separation has been filed, the trial court shall, in
These allegations, none of which was refuted by the husband, show that
the absence of a written agreement between the couple, appoint either
the injunction is necessary to protect the interests of the private
one of the spouses or a third person to act as the administrator.
respondent and her children and prevent the dissipation of the conjugal
assets.
While it is true that no formal designation of the administrator has been
made, such designation was implicit in the decision of the trial court
The twin requirements of a valid injunction are the existence of a right
denying the petitioner any share in the conjugal properties (and thus
and its actual or threatened violation.[5] Regardless of the outcome of
also disqualifying him as administrator thereof). That designation was in
the appeal, it cannot be denied that as the petitioner's legitimate wife
effect approved by the Court of Appeals when it issued in favor of the
(and the complainant and injured spouse in the action for legal
respondent wife the preliminary injunction now under challenge.
separation), the private respondent has a right to a share (if not the
whole) of the conjugal estate. There is also, in our view, enough
The primary purpose of the provisional remedy of injunction is to
evidence to raise the apprehension that entrusting said estate to the
preserve the status quo of the things subject of the action or the relations
petitioner may result in its improvident disposition to the detriment of
between the parties and thus protect the rights of the plaintiff
his wife and children. We agree that inasmuch as the trial court had
respecting these matters during the pendency of the suit. Otherwise, the
earlier declared the forfeiture of the petitioner's share in the conjugal
defendant may, before final judgment, do or continue doing the act
properties, it would be prudent not to allow him in the meantime to
which the plaintiff asks the court to restrain and thus make ineffectual
participate in its management.
the final judgment that may be rendered afterwards in favor of the
plaintiff.[3]
Let it be stressed that the injunction has not permanently installed the
respondent wife as the administrator of the whole mass of conjugal
As observed by Francisco, "Injunction is primarily a preventive remedy.
assets. It has merely allowed her to continue administering the
properties in the meantime without interference from the petitioner,
pending the express designation of the administrator in accordance with
Article 61 of the Family Code.

WHEREFORE, the petition is DENIED for lack of merit. It is so

ordered.

Davide, Jr., Bellosillo, Quiason, and Kapunan, JJ., concur.

 Supreme Court of the Philippines Reynaldo brought his children home to the Philippines, but because his
assignment in Pittsburgh was not yet completed, he was sent back by
THIRD DIVISION his company to Pittsburgh. He had to leave his children with his sister,
co-petitioner Guillerma Layug and her family.
G.R. No. 115640, March 15, 1995
Teresita claims that she did not immediately follow her children because
REYNALDO ESPIRITU AND GUILLERMA LAYUG, Reynaldo had filed a criminal case for bigamy against her and she was
PETITIONERS, VS. COURT OF APPEALS, AND TERESITA afraid of being arrested. The judgment of conviction in the bigamy case
MASAUDING, RESPONDENTS. was actually rendered only on September 29, 1994. (Per Judge Harriet
O. Demetriou, Branch 70, RTC, Pasig, pp. 210-222, Rollo ). Teresita,
DECISION meanwhile, decided to return to the Philippines and on December 8,
1992 and filed the petition for a writ of habeas corpus against herein
MELO, J.: two petitioners to gain custody over the children, thus starting the
whole proceedings now reaching this Court.
This case concerns a seemingly void marriage and a relationship which
went sour. The innocent victims are two children born out of the same
On June 30, 1993, the trial court dismissed the petition for habeas
union. Upon this Court now falls the not too welcome task of deciding
corpus. It suspended Teresita's parental authority over Rosalind and
the issue of who, between the father and mother, is more suitable and
Reginald and declared Reynaldo to have sole parental authority over
better qualified in helping the children to grow into responsible, well-
them but with rights of visitation to be agreed upon by the parties and
adjusted, and happy young adulthood.
to be approved by the Court.

Petitioner Reynaldo Espiritu and respondent Teresita Masauding first

On February 16, 1994, the Court of Appeals per Justice Isnani, with
met sometime in 1976 in Iligan City where Reynaldo was employed by
Justices de Pano and Ibay-Somera concurring, reversed the trial court's
the National Steel Corporation and Teresita was employed as a nurse in
decision. It gave custody to Teresita and visitation rights on weekends
a local hospital. In 1977, Teresita left for Los Angeles, California to
to Reynaldo.
work as a nurse. She was able to acquire immigrant status sometime
later. In 1984, Reynaldo was sent by his employer, the National Steel
Petitioners now come to this Court on a petition for review, in the main
Corporation, to Pittsburgh, Pennsylvania as its liaison officer and
contending that the Court of Appeals disregarded the factual findings of
Reynaldo and Teresita then began to maintain a common law
the trial court; that the Court of Appeals further engaged in speculations
relationship of husband and wife. On August 16, 1986, their daughter,
and conjectures, resulting in its erroneous conclusion that custody of
Rosalind Therese, was born. On October 7, 1987, while they were on a
the children should be given to respondent Teresita.
brief vacation in the Philippines, Reynaldo and Teresita got married,
and upon their return to the United States, their second child, a son, this
We believe that respondent court resolved the question of custody over
time, and given the name Reginald Vince, was born on January 12,
the children through an automatic and blind application of the age
1988.
proviso of Article 363 of the Civil Code which reads:

The relationship of the couple deteriorated until they decided to

Art. 363. In all questions on the care, custody, education and property
separate sometime in 1990. Teresita blamed Reynaldo for the break-up,
of the children, the latter's welfare shall be paramount. No mother shall
stating he was always nagging her about money matters. Reynaldo, on
be separated from her child under seven years of age, unless the court
the other hand, contended that Teresita was a spendthrift, buying
finds compelling reasons for such measure.
expensive jewelry and antique furniture instead of attending to
household expenses.
and of Article 213 of the Family Code which in turn provides:

Instead of giving their marriage a second chance as allegedly pleaded by

Art. 213. In case of separation of the parents, parental authority shall be
Reynaldo, Teresita left Reynaldo and the children and went back to
exercised by the parent designated by the Court. The Court shall take
California. She claims, however, that she spent a lot of money on long
into account all relevant considerations, especially the choice of the
distance telephone calls to keep in constant touch with her children.
child over seven years of age, unless the parent chosen is unfit.
The decision under review is based on the report of the Code
Commission which drafted Article 213 that a child below seven years
still needs the loving, tender care that only a mother can give and which,
presumably, a father cannot give in equal measure. The commentaries
of a member of the Code Commission, former Court of Appeals Justice
Alicia Sempio-Diy, in a textbook on the Family Code, were also taken
into account. Justice Diy believes that a child below seven years should
still be awarded to her mother even if the latter is a prostitute or is
unfaithful to her husband. This is on the theory that moral dereliction
has no effect on a baby unable to understand such action. (Handbook
on the Family Code of the Philippines, 1988 Ed., p. 297.)
The Court of Appeals was unduly swayed by an abstract presumption of
law rather than an appreciation or relevant facts and the law which
should apply to those facts. The task of choosing the parent to whom
custody shall be awarded is not a ministerial function to be determined
by a simple determination of the age of a minor child. Whether a child
is under or over seven years of age, the paramount criterion must always
be the child's interests. Discretion is given to the court to decide who
can best assure the welfare of the child, and award the custody on the
basis of that consideration. In Unson III vs. Navarro (101 SCRA 183
[1980]), we laid down the rule that "in all controversies regarding the
custody of minors, the sole and foremost consideration is the physical,
education, social and moral welfare of the child concerned, taking into
account the respective resources and social and moral situations of the
contending parents" and in Medina vs. Makabali (27 SCRA 502 [1969]),
where custody of the minor was given to a non-relative as against the
mother, then the country's leading civilist, Justice J.B.L. Reyes,
explained its basis in this manner:
... While our law recognizes the right of a parent to the custody of her
child. Courts must not lose sight of the basic principle that "in all
questions on the care, custody, education and property of children, the
latter's welfare shall be paramount" (Civil Code of the Philippines, Art.
363), and that for compelling reasons, even a child under seven may be
ordered separated from the mother (do.). This is as it should be, for in
the continual evolution of legal institutions, the patria potestas has been
transformed from the jus vitae ac necis (right of life and death) of the
Roman law, under which the offspring was virtually a chattel of his
parents, into a radically different institution, due to the influence of
Christian faith and doctrines. The obligational aspect is now supreme.
As pointed out by Puig Pena, now "there is no power, but a task; no
complex of rights (of parents) but a sum of duties; no sovereignty, but a
sacred trust for the welfare of the minor."
As a result, the right of parents to the company and custody of their
children is but ancillary to the proper discharge of parental duties to
provide the children with adequate support, education, moral,
intellectual and civic training and development (Civil Code, Art. 356).
(pp. 504-505.)
In ascertaining the welfare and best interests of the child, courts are
mandated by the Family Code to take into account all relevant
considerations. If a child is under seven years of age, the law presumes
that the mother is the best custodian. The presumption is strong but it
is not conclusive. It can be overcome by "compelling reasons". If a
child is over seven, his choice is paramount but, again, the court is not
bound by that choice. In its discretion, the court may find the chosen
parent unfit and award custody to the other parent, or even to a third
party as it deems fit under the circumstances.
In the present case, both Rosalind and Reginald are now over seven
years of age. Rosalind celebrated her seventh birthday on August 16,
1993 while Reginald reached the same age on January 12, 1995. Both are
studying in reputable schools and appear to be fairly intelligent children,
quite capable of thoughtfully determining the parent with whom they
would want to live. Once the choice has been made, the burden returns
to the court to investigate if the parent thus chosen is unfit to assume
parental authority and custodial responsibility.
Herein lies the error of the Court of Appeals. Instead of scrutinizing the
records to discover the choice of the children and rather than verifying
whether that parent is fit or unfit, respondent court simply followed
statutory presumptions and general propositions applicable to ordinary
or common situations. The seven-year age limit was mechanically
treated as an arbitrary cut off period and not a guide based on a strong
presumption.
A scrutiny of the pleadings in this case indicates that Teresita, or at
least, her counsel are more intent on emphasizing the "torture and
agony" of a mother separated from her children and the humiliation she
suffered as a result of her character being made a key issue in court
rather than the feelings and future, the best interests and welfare of her
children. While the bonds between a mother and her small child are
special in nature, either parent, whether father or mother, is bound to
suffer agony and pain if deprived of custody. One cannot say that his or
her suffering is greater than that of the other parent. It is not so much
the suffering, pride, and other feelings of either parent but the welfare
of the child which is the paramount consideration.
We are inclined to sustain the findings and conclusions of the regional
trial court because it gave greater attention to the choice of Rosalind
and considered in detail all the relevant factors bearing on the issue of
custody.

When she was a little over 5 years old, Rosalind was referred to a child
psychologist, Rita Flores Macabulos, to determine the effects of
uprooting her from the Assumption College where she was studying.
Four different tests were administered. The results of the tests are quite
revealing. The responses of Rosalind about her mother were very
negative, causing the psychologist to delve deeper into the child's
anxiety. Among the things revealed by Rosalind was an incident where
she saw her mother hugging and kissing a "bad" man who lived in their
house and worked for her father. Rosalind refused to talk to her mother
even on the telephone. She tended to be emotionally emblazed because
of constant fears that she may have to leave school and her aunt's family
to go back to the United States to live with her mother. The 5-1/2 page
report deals at length with feelings of insecurity and anxiety arising from
strong conflict with the mother. The child tried to compensate by
having fantasy activities. All of the 8 recommendations of the child
psychologist show that Rosalind chooses petitioners over the private
respondent and that her welfare will be best served by staying with them
(pp. 199-205, Rollo ).
At about the same time, a social welfare case study was conducted for
the purpose of securing the travel clearance required before minors may
go abroad. Social Welfare Officer Emma D. Estrada Lopez, stated that
the child Rosalind refused to go back to the United States and be
reunited with her mother. She felt unloved and uncared for. Rosalind
was more attached to her Yaya who did everything for her and
Reginald. The child was found suffering from emotional shock caused
by her mother's infidelity. The application for travel clearance was
recommended for denial (pp. 206-209, Rollo ).
Respondent Teresita, for her part, argues that the 7-year age reference
in the law applies to the date when the petition for a writ of habeas corpus
is filed, not to the date when a decision is rendered. This argument is
flawed. Considerations involving the choice made by a child must he
ascertained at the time that either parent is given custody over the child.
The matter of custody is not permanent and unalterable. If the parent
who was given custody suffers a future character change and becomes
unfit, the matter of custody can always be re-examined and adjusted
(Unson III v. Navarro supra, at p. 189). To be sure, the welfare, the best
interests, the benefit, and the good of the child must be determined as
of the time that either parent is chosen to be the custodian. At the
present time, both children are over 7 years of age and are thus perfectly
capable of making a fairly intelligent choice.
According to respondent Teresita, she and her children had a tearful
reunion in the trial court, with the children crying, grabbing, and
embracing her to prevent the father from taking them away from her.
We are more inclined to believe the father's contention that the children
ignored Teresita in court because such an emotional display as
described by Teresita in her pleadings could not have been missed by
the trial court. Unlike the Justices of the Court of Appeals Fourth
Division, Judge Lucas P. Bersamin personally observed the children and
their mother in the courtroom. What the Judge found is diametrically
opposed to the contentions of respondent Teresita. The Judge had this
to say on the matter:
And, lastly, the Court cannot look at petitioner [Teresita} in similar
light, or with more understanding, especially as her conduct and
demeanor in the courtroom (during most of the proceedings) or
elsewhere (but in the presence of the undersigned presiding judge)
demonstrated her ebulent temper that tended to corroborate the alleged
violence of her physical punishment of the children (even if only for
ordinary disciplinary purposes) and emotional instability, typified by her
failure (or refusal ?) to show deference and respect to the Court and the
other parties (pp. 12-13, RTC Decision)
Respondent Teresita also questions the competence and impartiality of
the expert witnesses. Respondent court, in turn, states that the trial
court should have considered the fact that Reynaldo and his sister,
herein petitioner GuiIlerma Layug, hired the two expert witnesses.
Actually, this was taken into account by the trial court which stated that
the allegations of bias and unfairness made by Teresita against the
psychologist and social worker were not substantiated.
The trial court stated that the professional integrity and competence of
the expert witnesses and the objectivity of the interviews were unshaken
and unimpeached. We might add that their testimony remain
uncontroverted. We also note that the examinations made by the
experts were conducted in late 1991, well over a year before the filing by
Teresita of the habeas corpus petition in December, 1992. Thus, the
examinations were at that time not intended to support petitioners'
position in litigation, because there was then not even an impending
possibility of one. That they were subsequently utilized in the case a quo
when it did materialize does not change the tenor in which they were
first obtained.
Furthermore, such examinations, when presented to the court must be
construed to have been presented not to sway the court in favor of any
of the parties, but to assist the court in the determination of the issue
before it. The persons who effected such examinations were presented
in the capacity of expert witnesses testifying on matters within their
respective knowledge and expertise. On this matter, this Court had
occasion to rule in the case of Sali vs. Abukakar et. al (17 SCRA 988
[1966]).
The fact that, in a particular litigation, an NBI expert examines certain
contested documents, at the request, not of a public officer or agency of
the Government, but of a private litigant, does not necessarily nullify
the examination thus made. Its purpose, presumably, to assist the court
having jurisdiction over said litigation, in the performance of its duty to
settle correctly the issues relative to said documents. Even a non-expert
private individual may examine the same, if there are facts within his
knowledge which may help the court in the determination of said issue.
Such examination, which may properly be undertaken by a non-expert
private individual, does not, certainly become null and void when the
examiner is an expert and/or an officer of the NBI.
(pp. 991-992.)
In regard to testimony of expert witnesses it was held in Salomon et. al. vs
Intermediate Appellate Court et. al. (185 SCRA 352 [1990]):
... Although courts are not ordinarily bound by expert testimonies, they
may place whatever weight they choose upon such testimonies in
accordance with the facts of the case. The relative weight and
sufficiency of expert testimony is peculiarly within the province of the
trial court to decide, considering the ability and character of the witness,
his actions upon the witness stand, the weight and process of the
reasoning by which he has supported his opinion, his possible bias in
favor of the side for whom he testifies, the fact that he is a paid witness,
the relative opportunities for study and observation of the matters
about which he testifies, and any other matters which reserve to
illuminate his statements. The opinion of the expert may not be
arbitrarily rejected; it is to be considered by the court in view of all the
facts and circumstances in the case and when common knowledge
utterly fails, the expert opinion may be given controlling effect (20 Am.
Jur., 1056-1058). The problem of the credibility of the expert witness
and the evaluation of his testimony is left to the discretion of the trial
court whose ruling thereupon is not reviewable in the absence of an
abuse of that discretion.
(p. 359.)
It was in the exercise of this discretion, coupled with the opportunity to
assess the witnesses' character and to observe their respective demeanor
that the trial court opted to rely on their testimony, and we believe that
the trial court was correct in its action.
Under direct examination on February 4, 1993, Social Worker Lopez
stated that Rosalind and her aunt were about to board a plane when
they were off-loaded because there was no required clearance. They
were referred to her office, at which time Reginald was also brought
along and interviewed. One of the regular duties of Social Worker
Lopez in her job appears to be the interview of minors who leave for
abroad with their parents or other persons. The interview was for
purposes of foreign travel by a 5-year old child and had nothing to do
with any pending litigation. On cross-examination, Social Worker Lopez
stated that her assessment of the minor's hatred for her mother was
based on the disclosures of the minor. It is inconceivable, much less
presumable that Ms. Lopez would compromise her position, ethics, and
the public trust reposed on a person of her position in the course of
doing her job by falsely testifying just to support the position of any
litigant.
The psychologist, Ms. Macabulos, is a B.S. magna cum laude graduate in
Psychology and an M.A. degree holder also in Psychology with her
thesis graded "Excellent". She was a candidate for a doctoral degree at
the time of the interview. Petitioner Reynaldo may have shouldered the
cost of the interview but Ms. Macabulos' services were secured because
Assumption College wanted an examination of the child for school
purposes and not because of any litigation. She may have been paid to
examine the child and to render a finding based on her examination, but
she was not paid to fabricate such findings in favor of the party who
retained her services. In this instance it was not even petitioner
Reynaldo but the school authorities who initiated the same. It cannot be
presumed that a professional of her potential and stature would
compromise her professional standing.
Teresita questions the findings of the trial court that:
1. Her morality is questionable as shown by her marrying
Reynaldo at the time she had a subsisting marriage with
another man.
2. She is guilty of grave indiscretion in carrying on a love affair
with one of the Reynaldo's fellow NSC employees.
3. She is incapable of providing the children with necessities and
conveniences commensurate to their social standing because
she does not even own any home in the Philippines.
4. She is emotionally unstable with ebullient temper.
It is contended that the above findings do not constitute the compelling
reasons under the law which would justify depriving her of custody over
the children; worse, she claims, these findings are non-existent and have
not been proved by clear and convincing evidence.
Public and private respondents give undue weight to the matter of a
child under 7 years of age not to be separated from the mother, without
considering what the law itself denominates as compelling reasons or
relevant considerations to otherwise decree. In the Unson III case, earlier
mentioned, this Court stated that it found no difficulty in not awarding
custody to the mother, it being in the best interest of the child "to be
freed from the obviously unwholesome, not to say immoral influence,
that the situation where [the mother] had placed herself …might create
in the moral and social outlook of [the child] who was in her formative
and most impressionable stage …”
Then too, it must be noted that both Rosalind and Reginald are now
over 7 years of age. They understand the difference between right and
wrong, ethical behavior and deviant immorality. Their best interests
would be better served in an environment characterized by emotional
stability and a certain degree of material sufficiency. There is nothing in
the records to show that Reynaldo is an "unfit" person under Article
213 of the Family Code. In fact, he has been trying his best to give the
children the kind of attention and care which the mother is not in a
position to extend.
The argument that the charges against the mother are false is not
supported by the records. The findings of the trial court are based on
evidence.
Teresita does not deny that she was legally married to Roberto Lustado
on December 17, 1984 in California (p. 13, Respondent's
Memorandum; p. 238, Rollo ; pp. 11, RTC Decision). Less than a year
later, she had already driven across the continental United States to
commence living with another man, petitioner Reynaldo, in Pittsburgh.
The two were married on October 7, 1987. Of course, to dilute this
disadvantage on her part, this matter of her having contracted a
bigamous marriage later with Reynaldo, Teresita tried to picture
Reynaldo as a rapist, alleging further that she told Reynaldo about her
marriage to Lustado on the occasion when she was raped by Reynaldo.
Expectedly, Judge Harriet Demetriou of the Pasig RTC lent no weight
to such tale. And even if this story were given credence, it adds to and
not subtracts from the conviction of this Court about Teresita's values.
Rape is an insidious crime against privacy. Confiding to one's potential
rapist about a prior marriage is not a very convincing indication that the
potential victim is averse to the act. The implication created is that the
act would be acceptable if not for the prior marriage.
More likely is Reynaldo's story that he learned of the prior marriage only
much later. In fact, the rape incident itself is unlikely against a woman
who had driven three days and three nights from California, who went
straight to the house of Reynaldo in Pittsburgh and upon arriving went
to bed and, who immediately thereafter started to live with him in a
relationship which is marital in nature if not in fact.
Judge Bersamin of the court a quo believed the testimony of the various
witnesses that while married to Reynaldo, Teresita entered into an illicit
relationship with Perdencio Gonzales right there in the house of
petitioner Reynaldo and respondent Teresita. Perdencio had been
assigned by the National Steel Corporation to assist in the project in
Pittsburgh and was staying with Reynaldo, his co-employee, in the
latter's house. The record shows that the daughter Rosalind suffered
emotional disturbance caused by the traumatic effect of seeing her
mother hugging and kissing a boarder in their house. The record also
shows that it was Teresita who left the conjugal home and the children,
bound for California. When Perdencio Gonzales was reassigned to the
Philippines, Teresita followed him and was seen in his company in a
Cebu hotel, staying in one room and taking breakfast together. More
significant is that letters and written messages from Teresita to
Perdencio were submitted in evidence (p. 12, RTC Decision).
The argument that moral laxity or the habit of flirting from one man to
another does not fall under "compelling reasons" is neither meritorious
nor applicable in this case. Not only are the children over seven years
old and their clear choice is the father, but the illicit or immoral
activities of the mother had already caused emotional disturbances,
personality conflicts, and exposure to conflicting moral values, at least
in Rosalind. This is not to mention her conviction for the crime of
bigamy, which from the records appears to have become final (pp. 210-
222, Rollo ).
Respondent court's finding that the father could not very well perform
the role of a sole parent and substitute mother because his job is in the
United States while the children will be left behind with their aunt in the
Philippines is misplaced. The assignment of Reynaldo in Pittsburgh is or
was a temporary one. He was sent there to oversee the purchase of a
steel mill component and various equipment needed by the National
Steel Corporation in the Philippines. Once the purchases are completed,
there is nothing to keep him there anymore. In fact, in a letter dated
January 30, 1995, Reynaldo informs this Court of the completion of his
assignment abroad and of his permanent return to the Philippines (ff. p
263, Rollo ).
The law is more than satisfied by the judgment of the trial court. The
children are now both over seven years old. Their choice of the parent
with whom they prefer to stay is clear from the record. From all
indications, Reynaldo is a fit person, thus meeting the two requirements
found in the first paragraph of Article 213 of the Family Code. The
presumption under the second paragraph of said article no longer
applies as the children are over seven years. Assuming that the
presumption should have persuasive value for children only one or two
years beyond the age of seven years mentioned in the statute, there are
compelling reasons and relevant considerations not to grant custody to
the mother. The children understand the unfortunate shortcomings of
their mother and have been affected in their emotional growth by her
behavior.

WHEREFORE, the petition is hereby GRANTED. The decision of

the Court of Appeals is reversed and set aside, and the decision of
Branch 96 of the Regional Trial Court of the National Capital Judicial
Region stationed in Quezon City and presided over by the Honorable
Lucas P. Bersamin in its Civil Case No. Q-92-14206 awarding custody
of the minors Rosalind and Reginald Espiritu to their father, Reynaldo
Espiritu, is reinstated. No special pronouncement is made as to costs.

SO ORDERED.

Feliciano, (Chairman), Romero, Vitug, and Francisco, JJ., concur.

 Supreme Court of the Philippines
G.R. No. L-30977, January 31, 1972
CARMEN LAPUZ SY, REPRESENTED BY HER
SUBSTITUTE MACARIO LAPUZ, PETITIONER AND
APPELLANT, VS. EUFEMIO S. EUFEMIO ALIAS EUFEMIO
SY UY, RESPONDENT AND APPELLEE.
DECISION
REYES, J.B.L., J.:
Petition, filed after the effectivity of Republic Act 5440, for review by
certiorari of an order, dated 29 July 1969, of the Juvenile and Domestic
Relations Court of Manila, in its Civil Case No. 20387, dismissing said
case for legal separation on the ground that the death of the therein
plaintiff, Carmen O. Lapuz Sy, which occurred during the pendency of
the case, abated the cause of action as well as the action itself. The
dismissal order was issued over the objection of Macario Lapuz, the heir
of the deceased plaintiff (and petitioner herein) who sought to
substitute the deceased and to have the case prosecuted to final
judgment.
On 18 August 1953, Carmen O. Lapuz Sy filed a petition for legal
separation against Eufemio S. Eufemio, alleging, in the main, that they
were married civilly on 21 September 1934 and canonically on 30
September 1934; that they had lived together as husband and wife
continuously until 1943 when her husband abandoned her, that they
had no child; that they acquired properties during their marriage; and
that she discovered her husband cohabiting with a Chinese woman
named Go Hiok at 1319 Sisa Street, Manila, on or about March
1949. She prayed for the issuance of a decree of legal separation, which,
among others, would order that the defendant Eufemio S. Eufemio
should be deprived of his share of the conjugal partnership profits.
In his second amended answer to the petition, herein respondent
Eufemio S. Eufemio alleged affirmative and special defenses, and, along
with several other claims involving money and other properties,
counterclaimed for the declaration of nullity ab initio of his marriage
with Carmen O. Lapuz Sy, on the ground of his prior and subsisting
marriage, celebrated according to Chinese law and customs, with one
Go Hiok, alias Ngo Hiok.
Issues having been joined, trial proceeded and the parties adduced their
respective evidence. But before the trial could be completed (the
respondent was already scheduled to present surrebuttal evidence on 9
and 18 June 1969), petitioner Carmen O. Lapuz Sy died in a vehicular
accident on 31 May 1969. Counsel for petitioner duly notified the court
of her death.
On 9 June 1969, respondent Eufemio moved to dismiss the "petition
for legal separation"[1] on two (2) grounds, namely: that the petition for
legal separation was filed beyond the one-year period provided for in
Article 102 of the Civil Code; and that the death of Carmen abated the
action for legal separation.
On 26 June 1969, counsel for deceased petitioner moved to substitute
the deceased Carmen by her father, Macario Lapuz. Counsel for
Eufemio opposed the motion.
On 29 July 1969, the court issued the order under review, dismissing the
case.[2] In the body of the order, the court stated that the motion to
dismiss and the motion for substitution had to be resolved on the
question of whether or not the plaintiff's cause of action has survived,
which the court resolved in the negative. Petitioner's counsel moved to
reconsider but the motion was denied on 15 September 1969.
After first securing an extension of time to file a petition for review of
the order of dismissal issued by the juvenile and domestic relations
court, the petitioner filed the present petition on 14 October 1969. The
same was given due course and answer thereto was filed by respondent,
who prayed for the affirmance of the said order.[3]
Although the defendant below, the herein respondent Eufemio S.
Eufemio, filed counterclaims, he did not pursue them after the court
below dismissed the case. He acquiesced in the dismissal of said
counterclaims by praying for the affirmance of the order that dismissed
not only the petition for legal separation but also his counterclaim to
declare the Eufemio-Lapuz marriage to be null and void ab initio.
But petitioner Carmen O. Lapuz Sy (through her self-assumed
substitute – for the lower court did not act on the motion for
substitution) stated the principal issue to be as follows:
"When an action for legal separation is converted by the counterclaim
into one for a declaration of nullity of a marriage, does the death of a
party abate the proceedings?"
The issue as framed by petitioner injects into it a supposed conversion
of a legal separation suit to one for declaration of nullity of a marriage,
which is without basis, for even petitioner asserted that "the respondent
has acquiesced to the dismissal of his counterclaim" (Petitioner's Brief,
page 22). Not only this. The petition for legal separation and the
counterclaim to declare the nullity of the self same marriage can stand
independent and separate adjudication. They are not inseparable nor
was the action for legal separation converted into one for a declaration
of nullity by the counterclaim, for legal separation presupposes a valid
marriage, while the petition for nullity has a voidable marriage as a
precondition.
The first real issue in this case is: Does the death of the plaintiff before
final decree, in an action for legal separation, abate the action? If it
does, will abatement also apply if the action involves property rights?
An action for legal separation which involves nothing more than the
bed-and-board separation of the spouses (there being no absolute
divorce in this jurisdiction) is purely personal. The Civil Code of the
Philippines recognizes this in its Article 100, by allowing only the
innocent spouse (and no one else) to claim legal separation; and in its
Article 108, by providing that the spouses can, by their reconciliation,
stop or abate the proceedings and even rescind a decree of legal
separation already rendered. Being personal in character, it follows that
the death of one party to the action causes the death of the action itself
– actio personalis moritur cum persona.
* * * When one of the spouses is dead, there is no need for divorce,
because the marriage is dissolved. The heirs cannot even continue the
suit, if the death of the spouse takes place during the course of the suit
(Article 244, Section 3). The action is absolutely dead (Cass., July 27,
1871, D. 71. 1. 81; Cass. req., May 8, 1933, D.H. 1933, 332."[4]
"Marriage is a personal relation or status, created under the sanction of
law, and an action for divorce is a proceeding brought for the purpose
of effecting a dissolution of that relation. The action is one of a
personal nature. In the absence of a statute to the contrary, the death of
one of the parties to such action abates the action, for the reason that
death has settled the question of separation beyond all controversy and
deprived the court of jurisdiction, both over the persons of the parties
to the action and of the subject-matter of the action itself. For this
reason the courts are almost unanimous in holding that the death of
either party to a divorce proceeding, before final decree, abates the
action. 1 Corpus Juris, 208; Wren vs. Moss, 2 Gilman, 72; Danforth vs.
Danforth, 111 III. 236; Matter of Grandall, 196 N.Y. 127, 89 N.E. 578,
134 Am St. Rep. 830, 17 Ann. Cas. 874; Wilcon vs. Wilson, 73 Mich.
620, 41 N.W. 817; Strickland vs. Strickland, 80 Ark. 452, 97 S. W. 659;
McCurley vs. McCurley, 60 Md. 185, 45 Am. Rep. 717; Begbie vs.
Begbie, 128 Cal. 155, 60 Pac. 667, 49 L. R. A. 141."[5]
The same rule is true of causes of action and suits for separation and
maintenance (Johnson vs. Bates, Ark. 101 SW 412; 1 Corpus Juris 208).
A review of the resulting changes in property relations between spouses
shows that they are solely the effect of the decree of legal separation;
hence, they can not survive the death of the plaintiff if it occurs prior to
the decree. On this point, Article 106 of the Civil Code provides:
"Art. 106. The decree of legal separation shall have the following
effects:
"(1) The spouses shall be entitled to live separately from each other,
but the marriage bonds shall not be severed;
"(2) The conjugal partnership of gains or the absolute conjugal
community of property shall be dissolved and liquidated, but the
offending spouse shall have no right to any share of the profits earned
by the partnership or community, without prejudice to the provisions of
article 176;
"(3) The custody of the minor children shall be awarded to the
innocent spouse, unless otherwise directed by the court in the interest
of said minors, for whom said court may appoint a guardian;
"(4) The offending spouse shall be disqualified from inheriting from
the innocent spouse by intestate succession. Moreover, provisions in
favor of the offending spouse made in the will of the innocent one shall
be revoked by operation of law." * * *
From this article it is apparent that the right to the dissolution of the
conjugal partnership of gains (or of the absolute community of
property), the loss of right by the offending spouse to any share of the
profits earned by the partnership or community, or his disqualification
to inherit by intestacy from the innocent spouse as well as the
revocation of testamentary provisions in favor of the offending spouse
made by the innocent one, are all rights and disabilities that, by the very
terms of the Civil Code article, are vested exclusively in the persons of
the spouses; and by their nature and intent, such claims and disabilities
are difficult to conceive as assignable or transmissible. Hence, a claim
to said rights is not a claim that "is not thereby extinguished" after a
party dies, under Section 17, Rule 3, of the Rules of Court, to warrant
continuation of the action through a substitute of the deceased party.
"Sec. 17. Death of party. After a party dies and the claim is not thereby
extinguished, the court shall order, upon proper notice, the legal
representative of the deceased to appear and to be substituted for the
deceased, within a period of thirty (30) days, or within such time as may
be granted. * * *."
The same result flows from a consideration of the enumeration of the
actions that survive for or against administrators in Section 1, Rule 87,
of the Revised Rules of Court:
"SECTION 1. Actions which may and which may not be brought against Concepcion, C.J., Makalintal, Zaldivar, Castro, Fernando, Teehankee, Barredo,
executor or administrator. No action upon a claim for the recovery of Villamor, and Makasiar, JJ., concur.
money or debt or interest thereon shall be commenced against the
executor or administrator; but actions to recover real or personal
property, or an interest therein, from the estate, or to enforce a lien
thereon, and actions to recover damages for an injury to person or
property, real or personal, may be commenced against him."

Neither actions for legal separation or for annulment of marriage can be

deemed fairly included in the enumeration.

A further reason why an action for legal separation is abated by the

death of the plaintiff, even if property rights are involved, is that these
rights are mere effects of a decree of separation, their source being the
decree itself; without the decree such rights do not come into existence,
so that before the finality of a decree, these claims are merely rights in
expectation. If death supervenes during the pendency of the action, no
decree can be forthcoming, death producing a more radical and
definitive separation; and the expected consequential rights and claims
would necessarily remain unborn.

As to the petition of respondent-appellee Eufemio for a declaration of

nullity ab initio of his marriage to Carmen Lapuz, it is apparent that such
action became moot and academic upon the death of the latter, and
there could be no further interest in continuing the same after her
demise, that automatically dissolved the questioned union. Any
property rights acquired by either party as a result of Article 144 of the
Civil Code of the Philippines[6] could be resolved and determined in a
proper action for partition by either the appellee or by the heirs of the
appellant.

In fact, even if the bigamous marriage had not been void ab initio but
only voidable under Article 83, paragraph 2, of the Civil Code, because
the second marriage had been contracted with the first wife having been
an absentee for seven consecutive years, or when she had been generally
believed dead, still the action for annulment became extinguished as
soon as one of the three persons involved had died, as provided in
Article 87, paragraph 2, of the Code, requiring that the action for
annulment should be brought during the lifetime of any one of the
parties involved. And furthermore, the liquidation of any conjugal
partnership that might have resulted from such voidable marriage must
be carried out "in the testate or intestate proceedings of the deceased
spouse," as expressly provided in Section 2 of the Revised Rule 73, and
not in the annulment proceeding.

ACCORDINGLY , the appealed judgment of the Manila Court of

Juvenile and Domestic Relations is hereby affirmed. No special
pronouncement as to costs.
 Supreme Court of the Philippines
G. R. No. L-18008, October 30, 1962
ELISEA LAPERAL, PETITIONER, VS. REPUBLIC OF THE
PHILIPPINES, OPPOSITOR
DECISION
BARRERA, J.:
On May 10, 1960, Elisea Laperal filed in the Court of First Instance of
Baguio (Sp. Proc. No. 433) a petition which reads:
"1. That petitioner has been a bona fide resident of the City of Baguio
for the last three years prior to the date of the filing of this petition;
"2. That petitioner's maiden name is ELISEA LAPERAL; that on
March 24, 1939, she married Mr. Enrique R. Santamaria; that in a partial
decision entered on this Honorable Court on January 18, 1958, in Civil
Case No. 356 of this Court, entitled 'Enrique R. Santamaria vs. Elisea L.
Santamaria,' Mr. Enrique Santamaria was given a decree of legal
separation from her; that the said partial decision is now final;
"3. That during her marriage to Enrique R. Santamaria, she naturally
used, instead of her maiden name, that of Elisea L. Santamaria; that
aside from her legal separation from Enrique R. Santamaria, she has
also ceased to live with him for many years now;
"4. That in view of the fact that she has been legally separated from Mr.
Enrique R. Santamaria and has likewise ceased to live with him for
many years, it is desirable that she be allowed to change her name
and/or be permitted to resume using her maiden name, to wit: ELISEA
LAPERAL.
"Wherefore, petitioner respectfully prayed that after the necessary
proceedings are had, she be allowed to resume using her maiden name
of Elisea Laperal."
The petition was opposed by the City Attorney of Baguio on the
ground that the same violates the provisions of Article 370 (should be
372) of the Civil Code, and that it is not sanctioned by the Rules of
Court.
In its decision of October 31, 1960, the court denied the petition for the
reason that Article 372 of the Civil Code requires the wife, even after
she is decreed legally separated from her husband, to continue using the
name and surname she employed before the legal separation. Upon
petitioner's motion, however, the court, treating the petition as one for
change of name, reconsidered its decision and granted the petition on
the ground that to allow petitioner, who is a businesswoman decreed
legally separated from her husband, to continue using her married name
would give rise to confusion in her finances and the eventual liquidation
of the conjugal assets. Hence, this appeal by the State.
The contention of the Republic finds support in the provisions of
Article 372 of the New Civil Code which reads:
"ART. 372. When legal separation has been granted, the wife shall
continue using her name and surname employed before the legal
separation". (Italics supplied)
Note that the language of the statute is mandatory that the wife, even
after the legal separation has been decreed, shall continue using her
name and surname employed before the legal separation. This is so
because her married status is unaffected by the separation, there being
no severance of the vinculum. It seems to be the policy of the law that
the wife should continue to use the name indicative of her unchanged
status for the benefit of all concerned.
The appellee contends, however, that the petition is substantially for
change of her name from Elisea L. Santa-maria, the one she has been
using, since her marriage, to Elisea Laperal, her maiden name, giving as
reason or cause therefor her being legally separated from the husband,
Enrique R. Santamaria, and the fact that they have ceased to live
together for many years.
There seems to be no dispute that in the institution of these
proceedings, the procedure prescribed in Rule 103 of the Rules of Court
for change of name has been observed. But from the petition quoted in
full at the beginning of this opinion, the only reason relied upon for the
change of name is the fact that petitioner is legally separated from her
husband and has, in fact, ceased to live with him for many years. It is
doubtful, to say the least, whether Rule 103 which refers to change of
name in general, may prevail over the specific provisions of Article 372
of the New Civil Code with regards to married women legally separated
from their husbands. Even, however, applying Rule 103 to this case, the
fact of legal separation alone which is the only basis for the petition at
bar—is, in our opinion, not a sufficient ground to justify a change of
the name of herein petitioner, for to hold otherwise would be to
provide an easy circumvention of the mandatory provisions of the said
Article 372.
It is true that in the second decision which reconsidered the first it is
stated that as petitioner owns extensive business interests, the continued
use of her husband's surname may cause undue confusion in her
finances and the eventual liquidation of the conjugal assets. This finding
is however without basis. In the first place, these were not the causes
upon which the petition was based; hence, obviously no evidence to this
effect had been adduced. Secondly, with the issuance of the decree of
legal separation in 1958, the conjugal partnership between petitioner
and her husband had automatically been dissolved and liquidated. (Art.
106[2], Civil Code.) Consequently, there could be no more occasion for
an eventual liquidation of the conjugal assets.

Wherefore, the order of the lower court of December 1, 1960, granting

the petition, is hereby set aside and the petition dismissed. Without
costs. So ordered.

Bengzon, C. J., Padilla, Bautista Angelo, Labrador, Concepcion, Reyes, J. B.L.,

Paredes, Dizon, Regala and Makalintal, JJ., concur.
 Supreme Court of the Philippines
Meanwhile, on 29 June 1994, the Cavite RTC rendered a decision[6] in
SECOND DIVISION the legal separation case, the dispositive portion of which reads:

G.R. No. 169900, March 18, 2010
MARIO SIOCHI, PETITIONER, VS. ALFREDO GOZON,
WINIFRED GOZON, GIL TABIJE, INTER-DIMENSIONAL
REALTY, INC., AND ELVIRA GOZON, RESPONDENTS.
[G.R. NO. 169977]
INTER-DIMENSIONAL REALTY, INC., PETITIONER, VS.
MARIO SIOCHI, ELVIRA GOZON, ALFREDO GOZON, AND
WINIFRED GOZON, RESPONDENTS.
RESOLUTION
WHEREFORE, judgment is hereby rendered decreeing the legal
separation between petitioner and respondent. Accordingly, petitioner
Elvira Robles Gozon is entitled to live separately from respondent
Alfredo Gozon without dissolution of their marriage bond. The
conjugal partnership of gains of the spouses is hereby declared
DISSOLVED and LIQUIDATED. Being the offending spouse,
respondent is deprived of his share in the net profits and the same is
awarded to their child Winifred R. Gozon whose custody is awarded to
petitioner.
Furthermore, said parties are required to mutually support their child
Winifred R. Gozon as her needs arises.

SO ORDERED.[7]
CARPIO, J.:

As regards the property, the Cavite RTC held that it is deemed conjugal
This is a consolidation of two separate petitions for review,[1] assailing
property.
the 7 July 2005 Decision[2] and the 30 September 2005 Resolution[3] of
the Court of Appeals in CA-G.R. CV No. 74447.
On 22 August 1994, Alfredo executed a Deed of Donation over the
property in favor of their daughter, Winifred Gozon (Winifred). The
This case involves a 30,000 sq.m. parcel of land (property) covered by
Register of Deeds of Malabon, Gil Tabije, cancelled TCT No. 5357 and
TCT No. 5357.[4] The property is situated in Malabon, Metro Manila
issued TCT No. M-10508[8] in the name of Winifred, without
and is registered in the name of "Alfredo Gozon (Alfredo), married to
annotating the Agreement and the notice of lis pendens on TCT No. M-
Elvira Gozon (Elvira)."
10508.

On 23 December 1991, Elvira filed with the Cavite City Regional Trial
On 26 October 1994, Alfredo, by virtue of a Special Power of
Court (Cavite RTC) a petition for legal separation against her husband
Attorney[9] executed in his favor by Winifred, sold the property to Inter-
Alfredo. On 2 January 1992, Elvira filed a notice of lis pendens, which
Dimensional Realty, Inc. (IDRI) for P18 million.[10] IDRI paid Alfredo
was then annotated on TCT No. 5357.
P18 million, representing full payment for the property.[11]
Subsequently, the Register of Deeds of Malabon cancelled TCT No. M-
On 31 August 1993, while the legal separation case was still pending,
10508 and issued TCT No. M-10976[12] to IDRI.
Alfredo and Mario Siochi (Mario) entered into an Agreement to Buy
and Sell[5] (Agreement) involving the property for the price of P18
Mario then filed with the Malabon Regional Trial Court (Malabon RTC)
million. Among the stipulations in the Agreement were that Alfredo
a complaint for Specific Performance and Damages, Annulment of
would: (1) secure an Affidavit from Elvira that the property is Alfredo's
Donation and Sale, with Preliminary Mandatory and Prohibitory
exclusive property and to annotate the Agreement at the back of TCT
Injunction and/or Temporary Restraining Order.
No. 5357; (2) secure the approval of the Cavite RTC to exclude the
property from the legal separation case; and (3) secure the removal of
On 3 April 2001, the Malabon RTC rendered a decision,[13] the
the notice of lis pendens pertaining to the said case and annotated on
dispositive portion of which reads:
TCT No. 5357. However, despite repeated demands from Mario,
Alfredo failed to comply with these stipulations. After paying the P5
WHEREFORE, premises considered, judgment is hereby rendered as
million earnest money as partial payment of the purchase price, Mario
follows:
took possession of the property in September 1993. On 6 September
1993, the Agreement was annotated on TCT No. 5357.
01. On the preliminary mandatory and prohibitory injunction:
1.1 The same is hereby made permanent by:
1.1.1 Enjoining defendants Alfredo Gozon, Winifred Gozon, Inter-
Dimensional Realty, Inc. and Gil Tabije, their agents, representatives
and all persons acting in their behalf from any attempt of commission
or continuance of their wrongful acts of further alienating or disposing
of the subject property;
1.1.2. Enjoining defendant Inter-Dimensional Realty, Inc. from entering
and fencing the property;
1.1.3. Enjoining defendants Alfredo Gozon, Winifred Gozon, Inter-
Dimensional Realty, Inc. to respect plaintiff's possession of the
property.
02. The Agreement to Buy and Sell dated 31 August 1993, between
plaintiff and defendant Alfredo Gozon is hereby approved, excluding
the property and rights of defendant Elvira Robles-Gozon to the
undivided one-half share in the conjugal property subject of this case.
03. The Deed of Donation dated 22 August 1994, entered into by and
between defendants Alfredo Gozon and Winifred Gozon is hereby
nullified and voided.
04. The Deed of Absolute Sale dated 26 October 1994, executed by
defendant Winifred Gozon, through defendant Alfredo Gozon, in favor
of defendant Inter-Dimensional Realty, Inc. is hereby nullified and
voided.
05. Defendant Inter-Dimensional Realty, Inc. is hereby ordered to
deliver its Transfer Certificate of Title No. M-10976 to the Register of
Deeds of Malabon, Metro Manila.
06. The Register of Deeds of Malabon, Metro Manila is hereby ordered
to cancel Certificate of Title Nos. 10508 "in the name of Winifred
Gozon" and M-10976 "in the name of Inter-Dimensional Realty, Inc.,"
and to restore Transfer Certificate of Title No. 5357 "in the name of
Alfredo Gozon, married to Elvira Robles" with the Agreement to Buy
and Sell dated 31 August 1993 fully annotated therein is hereby ordered.
07. Defendant Alfredo Gozon is hereby ordered to deliver a Deed of
Absolute Sale in favor of plaintiff over his one-half undivided share in
the subject property and to comply with all the requirements for
registering such deed.
08. Ordering defendant Elvira Robles-Gozon to sit with plaintiff to
agree on the selling price of her undivided one-half share in the subject
property, thereafter, to execute and deliver a Deed of Absolute Sale
over the same in favor of the plaintiff and to comply with all the
requirements for registering such deed, within fifteen (15) days from the
receipt of this DECISION.
09. Thereafter, plaintiff is hereby ordered to pay defendant Alfredo
Gozon the balance of Four Million Pesos (P4,000,000.00) in his one-
half undivided share in the property to be set off by the award of
damages in plaintiff's favor.
10. Plaintiff is hereby ordered to pay the defendant Elvira Robles-
Gozon the price they had agreed upon for the sale of her one-half
undivided share in the subject property.
11. Defendants Alfredo Gozon, Winifred Gozon and Gil Tabije are
hereby ordered to pay the plaintiff, jointly and severally, the following:
11.1 Two Million Pesos (P2,000,000.00) as actual and compensatory
damages;
11.2 One Million Pesos (P1,000,000.00) as moral damages;
11.3 Five Hundred Thousand Pesos (P500,000.00) as exemplary
damages;
11.4 Four Hundred Thousand Pesos (P400,000.00) as attorney's fees;
and
11.5 One Hundred Thousand Pesos (P100,000.00) as litigation
expenses.
11.6 The above awards are subject to set off of plaintiff's obligation in
paragraph 9 hereof.
12. Defendants Alfredo Gozon and Winifred Gozon are hereby ordered
to pay Inter-Dimensional Realty, Inc. jointly and severally the following:
12.1 Eighteen Million Pesos (P18,000,000.00) which constitute the
amount the former received from the latter pursuant to their Deed of
Absolute Sale dated 26 October 1994, with legal interest therefrom;
12.2 One Million Pesos (P1,000,000.00) as moral damages;
12.3 Five Hundred Thousand Pesos (P500,000.00) as exemplary
damages; and
12.4 One Hundred Thousand Pesos (P100,000.00) as attorney's fees.
13. Defendants Alfredo Gozon and Winifred Gozon are hereby ordered
to pay costs of suit.
SO ORDERED.[14]
On appeal, the Court of Appeals affirmed the Malabon RTC's decision
with modification. The dispositive portion of the Court of Appeals'
Decision dated 7 July 2005 reads:
WHEREFORE, premises considered, the assailed decision dated April
3, 2001 of the RTC, Branch 74, Malabon is hereby AFFIRMED with
MODIFICATIONS, as follows:
1. The sale of the subject land by defendant Alfredo Gozon to plaintiff-
appellant Siochi is declared null and void for the following reasons:
a) The conveyance was done without the consent of defendant-appellee
Elvira Gozon;
b) Defendant Alfredo Gozon's one-half (½) undivided share has been
forfeited in favor of his daughter, defendant Winifred Gozon, by virtue
of the decision in the legal separation case rendered by the RTC, Branch
16, Cavite;
2. Defendant Alfredo Gozon shall return/deliver to plaintiff-appellant
Siochi the amount of P5 Million which the latter paid as earnest money
in consideration for the sale of the subject land;
3. Defendants Alfredo Gozon, Winifred Gozon and Gil Tabije are
hereby ordered to pay plaintiff-appellant Siochi jointly and severally, the
following:
a) P100,000.00 as moral damages;
b) P100,000.00 as exemplary damages;
c) P50,000.00 as attorney's fees;
d) P20,000.00 as litigation expenses; and
e) The awards of actual and compensatory damages are hereby ordered
deleted for lack of basis.
4. Defendants Alfredo Gozon and Winifred Gozon are hereby ordered
to pay defendant-appellant IDRI jointly and severally the following:
a) P100,000.00 as moral damages;
b) P100,000.00 as exemplary damages; and
c) P50,000.00 as attorney's fees.
Defendant Winifred Gozon, whom the undivided one-half share of
defendant Alfredo Gozon was awarded, is hereby given the option
whether or not to dispose of her undivided share in the subject land.
The rest of the decision not inconsistent with this ruling stands.
SO ORDERED.[15]
Only Mario and IDRI appealed the decision of the Court of Appeals. In
his petition, Mario alleges that the Agreement should be treated as a
continuing offer which may be perfected by the acceptance of the other
spouse before the offer is withdrawn. Since Elvira's conduct signified
her acquiescence to the sale, Mario prays for the Court to direct Alfredo
and Elvira to execute a Deed of Absolute Sale over the property upon
his payment of P9 million to Elvira.
On the other hand, IDRI alleges that it is a buyer in good faith and for
value. Thus, IDRI prays that the Court should uphold the validity of
IDRI's TCT No. M-10976 over the property.
We find the petitions without merit.
This case involves the conjugal property of Alfredo and Elvira. Since
the disposition of the property occurred after the effectivity of the
Family Code, the applicable law is the Family Code. 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 the 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. (Emphasis supplied)
In this case, Alfredo was the sole administrator of the property because
Elvira, with whom Alfredo was separated in fact, was unable to
participate in the administration of the conjugal property. However, as
sole administrator of the property, Alfredo still cannot sell the property
without the written consent of Elvira or the authority of the court.
Without such consent or authority, the sale is void.[16] The absence of
the consent of one of the spouse renders the entire sale void, including
the portion of the conjugal property pertaining to the spouse who
contracted the sale.[17] Even if the other spouse actively participated in
negotiating for the sale of the property, that other spouse's written
consent to the sale is still required by law for its validity.[18] The
Agreement entered into by Alfredo and Mario was without the written
consent of Elvira. Thus, the Agreement is entirely void. As regards
Mario's contention that the Agreement is a continuing offer which may
be perfected by Elvira's acceptance before the offer is withdrawn, the
fact that the property was subsequently donated by Alfredo to Winifred
and then sold to IDRI clearly indicates that the offer was already
withdrawn.
However, we disagree with the finding of the Court of Appeals that the
one-half undivided share of Alfredo in the property was already
forfeited in favor of his daughter Winifred, based on the ruling of the
Cavite RTC in the legal separation case. The Court of Appeals
misconstrued the ruling of the Cavite RTC that Alfredo, being the
offending spouse, is deprived of his share in the net profits and the
same is awarded to Winifred.

The Cavite RTC ruling finds support in the following provisions of the
Family Code:
Art. 63. The decree of legal separation shall have the following effects:
(1) The spouses shall be entitled to live separately from each other, but
the marriage bonds shall not be severed;
(2) The absolute community or the conjugal partnership shall be
dissolved and liquidated but the offending spouse shall have no
right to any share of the net profits earned by the absolute
community or the conjugal partnership, which shall be forfeited in
accordance with the provisions of Article 43(2);
(3) The custody of the minor children shall be awarded to the innocent
spouse, subject to the provisions of Article 213 of this Code; and
The offending spouse shall be disqualified from inheriting from the
innocent spouse by intestate succession. Moreover, provisions in favor
of the offending spouse made in the will of the innocent spouse shall be
revoked by operation of law.
Art. 43. The termination of the subsequent marriage referred to in the
preceding Article shall produce the following effects:
xxx
(2) The absolute community of property or the conjugal partnership, as
the case may be, shall be dissolved and liquidated, but if either spouse
contracted said marriage in bad faith, his or her share of the net
profits of the community property or conjugal partnership
property shall be forfeited in favor of the common children or, if
there are none, the children of the guilty spouse by a previous marriage
or, in default of children, the innocent spouse; (Emphasis supplied)
Thus, among the effects of the decree of legal separation is that the
conjugal partnership is dissolved and liquidated and the offending
spouse would have no right to any share of the net profits earned by the
conjugal partnership. It is only Alfredo's share in the net profits which
is forfeited in favor of Winifred. Article 102(4) of the Family Code
provides that "[f]or purposes of computing the net profits subject to
forfeiture in accordance with Article 43, No. (2) and 63, No. (2), the
said profits shall be the increase in value between the market value of
the community property at the time of the celebration of the marriage
and the market value at the time of its dissolution." Clearly, what is
forfeited in favor of Winifred is not Alfredo's share in the conjugal
partnership property but merely in the net profits of the conjugal
partnership property.
With regard to IDRI, we agree with the Court of Appeals in holding
that IDRI is not a buyer in good faith. As found by the RTC Malabon
and the Court of Appeals, IDRI had actual knowledge of facts and
circumstances which should impel a reasonably cautious person to make
further inquiries about the vendor's title to the property. The
representative of IDRI testified that he knew about the existence of the
notice of lis pendens on TCT No. 5357 and the legal separation case filed
before the Cavite RTC. Thus, IDRI could not feign ignorance of the
Cavite RTC decision declaring the property as conjugal.
Furthermore, if IDRI made further inquiries, it would have known that
the cancellation of the notice of lis pendens was highly irregular. Under
Section 77 of Presidential Decree No. 1529,[19] the notice of lis pendens
may be cancelled (a) upon order of the court, or (b) by the Register of
Deeds upon verified petition of the party who caused the registration of
the lis pendens. In this case, the lis pendens was cancelled by the Register of
Deeds upon the request of Alfredo. There was no court order for the
cancellation of the lis pendens. Neither did Elvira, the party who caused
the registration of the lis pendens, file a verified petition for its
cancellation.
Besides, had IDRI been more prudent before buying the property, it
would have discovered that Alfredo's donation of the property to
Winifred was without the consent of Elvira. Under Article 125[20] of the
Family Code, a conjugal property cannot be donated by one spouse
without the consent of the other spouse. Clearly, IDRI was not a buyer
in good faith.
Nevertheless, we find it proper to reinstate the order of the Malabon
RTC for the reimbursement of the P18 million paid by IDRI for the
property, which was inadvertently omitted in the dispositive portion of
the Court of Appeals' decision.
WHEREFORE, we DENY the petitions. We AFFIRM the 7 July
2005 Decision of the Court of Appeals in CA-G.R. CV No. 74447 with
the following MODIFICATIONS:
(1) We DELETE the portions regarding the forfeiture of Alfredo
Gozon's one-half undivided share in favor of Winifred Gozon and the
grant of option to Winifred Gozon whether or not to dispose of her
undivided share in the property; and
(2) We ORDER Alfredo Gozon and Winifred Gozon to pay Inter-
Dimensional Realty, Inc. jointly and severally the Eighteen Million
Pesos (P18,000,000) which was the amount paid by Inter-Dimensional
Realty, Inc. for the property, with legal interest computed from the
finality of this Decision.

SO ORDERED.

Brion, Del Castillo, Abad, and Perez, JJ., concur.