restricted.
It did not absolutely establish his legal Felicisimo to remarry, would have vested Felicidad with
FAMILY CODE CASE DOCTRINES (Arts. 1-68)
Marriage License
Niñal vs. Bayadog
The 5-year period should be computed on the basis of a
cohabitation as husband and wife where the only missing
factor is the marriage contract to validate the union. This 5-
year period should be the years immediately before the day
of the marriage and it should be a period of cohabitation
characterized by exclusivity - meaning no third party was
involved at any time within the 5 years and continuity - that is
unbroken. Otherwise, if that continuous 5-year cohabitation
is computed without any distinction as to whether the parties
were capacitated to marry each other during the entire five
years, then the law would be sanctioning immorality and
encouraging parties to have common law relationships and
placing them on the same footing with those who lived
faithfully with their spouse. There should be no exemption
from securing a marriage license unless the circumstances
clearly fall within the ambit of the exception. It should be
noted that a license is required in order to notify the public
that two persons are about to be united in matrimony and
that anyone who is aware or has knowledge of any
impediment to the union of the two shall make it known to
the local civil registrar.
Foreign Marriage
1) Garcia vs. Recio
In mixed marriages involving a Filipino and a foreigner,
Article 26 of the Family Code allows the former to
contract a subsequent marriage in case the divorce is
“validly obtained abroad by the alien spouse
capacitating him or her to remarry”. A divorce
obtained abroad by two aliens, may be recognized in
the Philippines, provided it is consistent with their
respective laws. Therefore, before our courts can
recognize a foreign divorce, the party pleading it must
prove the divorce as a fact and demonstrate its
conformity to the foreign law allowing it. On its face,
the herein Australian divorce decree contains a
restriction that reads: “A party to a marriage who
marries again before this decree becomes absolute
(unless the other party has died) commits the offence
of bigamy." This quotation bolsters our contention that
the divorce obtained by respondent may have been
capacity to remarry according to his national law.
Hence, we find no basis for the ruling of the trial court,
which erroneously assumed that the Australian
divorce ipso facto restored respondent's capacity to
remarry despite the paucity of evidence on this matter.
As it is, there is absolutely no evidence that proves
respondent's legal capacity to marry petitioner.
2) Republic vs Obrecido
Art. 26 (2) provides that where a marriage between a
Filipino citizen and a foreigner is validly celebrated and
a divorce is thereafter validly obtained abroad by the
alien spouse capacitating him or her to remarry, the
Filipino spouse shall have capacity to remarry under
the Philippine laws.” Said provision only applies to case
where at the time of the celebration of the marriage,
the parties are a Filipino citizen and a foreigner. The
legislative intent must be taken into consideration and
rule of reason must be applied. The same provision
should be construed and interpreted to include cases
involving parties who, at the time of the celebration of
the marriage were Filipino citizens, but later on, one of
then becomes naturalized as a foreign citizen and
obtains a divorce decree. The Filipino spouse should
likewise be allowed to remarry as if the other party
were a foreigner at the time of the solemnization of
the marriage.
3) San Luis vs. Sagalongos
As to the effect of the divorce on the Filipino wife, the
Court ruled that she should no longer be considered
married to the alien spouse. Further, she should not be
required to perform her marital duties and obligations.
To maintain, as private respondent does, that, under
our laws, petitioner has to be considered still
married to private respondent and still subject to a
wife's obligations under Article 109, et. seq. of the Civil
Code cannot be just. Petitioner should not be obliged
to live together with, observe respect and fidelity, and
render support to private respondent. The latter
should not continue to be one of her heirs with
possible rights to conjugal property. She should not be
discriminated against in her own country if the ends of
justice are to be served. The divorce decree allegedly
obtained by Merry Lee which absolutely allowed
Page 1 of 10
the legal personality to file the present petition as
Felicisimo’s surviving spouse. However, the records
show that there is insufficient evidence to prove the
validity of the divorce obtained by Merry Lee as well as
the marriage of Felicidad and Felicisimo under the laws
of the U.S.A.
4) Van Dorn vs. Romillo
The policy against absolute divorce cover only
Philippine nationals. However, aliens may obtain
divorce abroad, which may be recognized in the
Philippines provided they are valid according to their
national law. Thus, pursuant to his national law, private
respondent is no longer the husband of petitioner. He
would have no standing to sue in the case below as
petitioner's husband entitled to exercise control over
conjugal assets. As he is bound by the Decision of his
own country's Court, which validly exercised
jurisdiction over him, and whose decision he does not
repudiate, he is estopped by his own representation
before said Court from asserting his right over the
alleged conjugal property.
5) Pilapil vs. Ibay-Somera
The fact that private respondent obtained a valid
divorce in his country, the Federal Republic of
Germany, is admitted. Said divorce and its legal effects
may be recognized in the Philippines insofar as private
respondent is concerned in view of the nationality
principle in our civil law on the matter of status of
persons Under the same considerations and rationale,
private respondent, being no longer the husband of
petitioner, had no legal standing to commence the
adultery case under the imposture that he was the
offended spouse at the time he filed suit. Now, the law
specifically provides that in prosecutions for adultery
and concubinage the person who can legally file the
complaint should be the offended spouse, and nobody
else. Unlike the offenses of seduction, abduction, rape
and acts of lasciviousness, no provision is made for the
prosecution of the crimes of adultery and concubinage
by the parents, grandparents or guardian of the
offended party. After a divorce has been decreed, the
innocent spouse no longer has the right to institute
proceedings against the offenders where the statute
 provides that the innocent spouse shall have the
exclusive right to institute a prosecution for adultery.
Where, however, proceedings have been properly
commenced, a divorce subsequently granted can have
no legal effect on the prosecution of the criminal
proceedings to a conclusion.
6) Republic vs. Iyoy
Where a marriage between a Filipino citizen and a
foreigner is validly celebrated and a divorce is
thereafter validly obtained abroad by the alien spouse
capacitating him or her to remarry, the Filipino spouse
shall likewise have capacity to remarry under Philippine
law. As it is worded, Article 26, paragraph 2, refers to a
special situation wherein one of the married couple is a
foreigner who divorces his or her Filipino spouse. By its
plain and literal interpretation, the said provision
cannot be applied to the case of respondent Crasus
and his wife Fely because at the time Fely obtained her
divorce, she was still a Filipino citizen. Although the
exact date was not established, Fely herself admitted in
her Answer filed before the RTC that she obtained a
divorce from respondent Crasus sometime after she
left for the United States in 1984, after which she
married her American husband in 1985. In the same
Answer, she alleged that she had been an American
citizen since 1988. At the time she filed for divorce,
Fely was still a Filipino citizen, and pursuant to
the nationality principle embodied in Article 15 of the
Civil Code of the Philippines, she was still bound by
Philippine laws on family rights and duties, status,
condition, and legal capacity, even when she was
already living abroad. Philippine laws, then and even
until now, do not allow and recognize divorce between
Filipino spouses.
7) Llorente vs. CA
Once proven that respondent was no longer a Filipino
citizen when he obtained the divorce from petitioner,
the ruling in Van Dorn would become applicable and
petitioner could "very well lose her right to inherit"
from him. Owing to the nationality principle embodied
in Article 15 of the Civil Code, only Philippine nationals
are covered by the policy against absolute divorces, the
same being considered contrary to our concept of
public policy and morality. In the same case, and strengthen the family as a basic autonomous social
the Court ruled that aliens may obtain divorces abroad, institution. With this cardinal state policy in mind, we
provided they are valid according to their national law. held in Republic v. Court of Appeals that the burden of
proof to show the nullity of marriage belongs to the
Void Marriages plaintiff (respondent Manuel herein). Any doubt should
be resolved in favor of the existence and continuation
1) Chi Ming Tsoi vs. CA
of the marriage and against its dissolution and nullity.
What emerges from the psychological report of Dr.
If a spouse, although physically capable but simply
Garcia as well as from the testimonies of the parties
refuses to perform his or her essential marriage
and their witnesses is that the only essential marital
obligations, and the refusal is senseless and constant,
obligation which respondent Manuel was not able to
Catholic marriage tribunals attribute the causes to
fulfill, if any, is the obligation of fidelity. Sexual
psychological incapacity than to stubborn refusal.
infidelity, per se, however, does not constitute
Senseless and protracted refusal is equivalent to
psychological incapacity within the contemplation of
psychological incapacity. Thus, the prolonged refusal of
the Family Code. It must be shown that respondent
a spouse to have sexual intercourse with his or her
Manuel's unfaithfulness is a manifestation of a
spouse is considered a sign of psychological incapacity.
disordered personality which makes him completely
Evidently, one of the essential marital obligations
unable to discharge the essential obligations of the
under the Family Code is ‘to procreate children based
marital state and not merely due to his ardent wish to
on the universal principle that procreation of children
have a child of his own flesh and blood. Semper
through sexual cooperation is the basic end of
praesumitur pro matrimonio. Mere showing of
marriage.’ Constant non- fulfillment of this obligation
"irreconcilable differences" and "conflicting
will finally destroy the integrity or wholeness of the
personalities" in no wise constitutes psychological
marriage. In the case at bar, the senseless and
incapacity.
protracted refusal of one of the parties to fulfill the
3) Republic vs. Molina
above marital obligation is equivalent to psychological
incapacity.
Psychological incapacity should refer to no less than a
mental (not physical) incapacity . . . and that (t)here is
2) Carating-Siayngco vs Siayngco
hardly any doubt that the intendment of the law has
been to confine the meaning of 'psychological
Whether or not psychological incapacity exists in a
incapacity' to the most serious cases of personality
given case calling for the declaration of the nullity of
disorders clearly demonstrative of an utter insensitivity
the marriage depends crucially on the facts of the case.
or inability to give meaning and significance to the
Each case must be closely scrutinized and judged
marriage. This psychologic condition must exist at the
according to its own facts as there can be no case that
time the marriage is celebrated. The psychological
is on “all fours” with another. In Santos, where we
incapacity must be characterized by (a) gravity, (b)
declared that "psychological incapacity" under Article
juridical antecedence, and (c) incurability. On the other
36 of the Family Code is not meant to comprehend all
hand, in the present case, there is no clear showing to
possible cases of psychoses. It should refer, rather, to
us that the psychological defect spoken of is an
no less than a mental (not physical) incapacity that
incapacity. It appears to us to be more of a "difficulty,"
causes a party to be truly incognitive of the basic
if not outright "refusal" or "neglect" in the
marital covenants that concomitantly must be
performance of some marital obligations. Mere
assumed and discharged by the parties to the
showing of 'irreconcilable differences" and "conflicting
marriage. Psychological incapacity must be
personalities" in no wise constitutes psychological
characterized by (a) gravity, (b) juridical antecedence,
incapacity. It is not enough to prove that the parties
and (c) incurability. The state has a high stake in the
failed to meet their responsibilities and duties as
preservation of marriage rooted in its recognition of
married persons; it is essential that they must be
the sanctity of married life and its mission to protect
Page 2 of 10
 shown to be incapable of doing so, due to some
psychological (not physical) illness. The following
guidelines in the interpretation and application of Art.
36 of the Family Code are hereby handed down for the
guidance of the bench and the bar: (1) The burden of
proof to show the nullity of the marriage belongs to
the plaintiff. Any doubt should be resolved in favor of
the existence and continuation of the marriage and
against its dissolution and nullity. (2) The root cause of
the psychological incapacity must be (a) medically or
clinically identified, (b) alleged in the complaint, (c)
sufficiently proven by experts and (d) clearly explained
in the decision. (3) The incapacity must be proven to be
existing at "the time of the celebration" of the
marriage. (4) Such incapacity must also be shown to be
medically or clinically permanent or incurable. Such
incurability may be absolute or even relative only in
regard to the other spouse, not necessarily absolutely
against everyone of the same sex. (5) Such illness must
be grave enough to bring about the disability of the
party to assume the essential obligations of marriage
(6) The essential marital obligations must be those
embraced by Articles 68 up to 71 of the Family Code as
regards the husband and wife as well as Articles 220,
221 and 225 of the same Code in regard to parents and
their children. Such non-complied marital obligation(s)
must also be stated in the petition, proven by evidence
and included in the text of the decision. (7)
Interpretations given by the National Appellate
Matrimonial Tribunal of the Catholic Church in the
Philippines, while not controlling or decisive, should be
given great respect by our courts. (8) The trial court
must order the prosecuting attorney or fiscal and the
Solicitor General to appear as counsel for the state. No
decision shall be handed down unless the Solicitor
General issues a certification, which will be quoted in
the decision, briefly stating therein his reasons for his
agreement or opposition, as the case may be, to the
petition.
4) Marcos vs. Marcos
Personal medical or psychological examination of
respondent is not required for a declaration of
psychological incapacity, but the totality of the
evidence petitioner presented does not show such
incapacity to be permanent or incurable and to have
existed at the time of the celebration of the marriage.
In this case, respondent left and failed to support his
family because he lost his job for more than six years.
His condition is also not incurable because now he is
gainfully employed as a taxi driver. At best, the
petitioner presented evidence which referred only to
grounds for legal separation, not for declaring a
marriage void. Verily, the behavior of respondent can
be attributed to the fact that he had lost his job and
was not gainfully employed for a period of more than
six years. It was during this period that he became
intermittently drunk, failed to give material and moral
support, and even left the family home.
Thus, his alleged psychological illness was traced only
to said period and not to the inception of the marriage.
5) Buenaventura vs CA
A marriage contracted by any party who, at the time of
the celebration, was psychologically incapacitated to
comply with the essential marital obligations of
marriage, shall likewise be void even if such incapacity
becomes manifest only after its solemnization. It is
contradictory to characterize acts as a product of
psychological incapacity, and hence beyond the control
of the party because of an innate inability, while at the
same time considering the same set of acts as willful.
By declaring the petitioner as psychologically
incapacitated, the possibility of awarding moral
damages on the same set of facts was negated. The
award of moral damages should be predicated, not on
the mere act of entering into the marriage, but on
specific evidence that it was done deliberately and with
malice by a party who had knowledge of his or her
disability and yet willfully concealed the same.
6) Bobis vs. Bobis
In Article 40 of the Family Code, respondent, without
first having obtained the judicial declaration of nullity
of the first marriage, can not be said to have validly
entered into the second marriage. In the current
jurisprudence, a marriage though void still needs a
judicial declaration of such fact before any party can
marry again; otherwise the second marriage will also
be void. The reason is that, without a judicial
declaration of its nullity, the first marriage is presumed
Page 3 of 10
to be subsisting. In the case at bar, respondent was for
all legal intents and purposes regarded as a married
man at the time he contracted his second marriage
with petitioner. Any decision in the civil action for
nullity would not erase the fact that respondent
entered into a second marriage during the subsistence
of a first marriage. Thus, a decision in the civil case is
not essential to the determination of the criminal
charge. It is, therefore, not a prejudicial question.
7) Morigo vs. People
The first element of bigamy as a crime requires that
the accused must have been legally married. But in this
case, legally speaking, the petitioner was never married
to Lucia Barrete. Thus, there is no first marriage to
speak of. Under the principle of retroactivity of a
marriage being declared void ab initio, the two were
never married “from the beginning.” The contract of
marriage is null; it bears no legal effect. Taking this
argument to its logical conclusion, for legal purposes,
petitioner was not married to Lucia at the time he
contracted the marriage with Maria Jececha. The
existence and the validity of the first marriage being an
essential element of the crime of bigamy, it is but
logical that a conviction for said offense cannot be
sustained where there is no first marriage to speak of.
The petitioner, must, perforce be acquitted of the
instant charge.
8) Gomez vs. Lipana
Where the marriage contracted is bigamous and null
and void for being in violation of Sec. 29 of the
Marriage Law, Act 3613, which became effective on
December 4, 1929, the marriage is subject to collateral
attack in the intestate proceedings instituted by the
judicial administratrix for the forfeiture of the
husband's share in the conjugal property. Section 30
on annullable marriages cannot be relied upon in the
instant case where a second marriage was contracted
while the first was valid and subsisting for the
controlling statute is Section 29 of Act 3613 of the
Philippine Legislature, the Marriage Law, which
became effective on December 4, 1929. To the general
rule stated in Sec. 29 that any marriage contracted by
any person during the lifetime of his first spouse with
 any person other than such first spouse shall be illegal
and void from its performance, there are only two
exceptions -- those mentioned in sub-section (a) when
the first marriage was annulled or dissolved and (b)
when the first spouse has been absent for seven
consecutive years. The burden is on the party invoking
the exception to prove that he comes under it. while
insofar as the second wife was concerned, she having
acted in good faith, her marriage produced civil effects
and gave rise just the same to the formation of a
conjugal partnership, wherein she was entitled to an
equal share upon dissolution, no action lies for the
forfeiture of the husband's share in her favor, much
less in favor of her estate. The only just and equitable
solution in this case would be to recognize the right of
the second wife to her share of one-half of the
property acquired by her and her husband, and
consider the other half as pertaining to the conjugal
partnership of the first marriage.
9) Niñal vs. Bayadog
Article 47 pertains to the grounds, periods and persons
who can file an annulment suit, not a suit for
declaration of nullity of marriage. The Code is silent as
to who can file a petition to declare the nullity of a
marriage. Voidable and void marriages are not
identical. A marriage that is annullable is valid until
otherwise declared by the court; whereas a marriage
that is void ab initio is considered as having never to
have taken place and cannot be the source of rights.
The first can be generally ratified or confirmed by free
cohabitation or prescription while the other can never
be ratified. A voidable marriage cannot be assailed
collaterally except in a direct proceeding while a void
marriage can be attacked collaterally. Consequently,
void marriages can be questioned even after the death
of either party but voidable marriages can be assailed
only during the lifetime of the parties and not after
death of either, in which case the parties and their
offspring will be left as if the marriage had been
perfectly valid. That is why the action or defense for
nullity is imprescriptible, unlike voidable marriages
where the action prescribes. Only the parties to a
voidable marriage can assail it but any proper
interested party may attack a void marriage. Void
marriages have no legal effects except those declared
by law concerning the properties of the alleged
spouses, regarding co-ownership or ownership through
actual joint contribution, and its effect on the children
born to such void marriages as provided in Article 50 in
relation to Article 43 and 44 as well as Article 51, 53
and 54 of the Family Code. On the contrary, the
property regime governing voidable marriages is
generally conjugal partnership and the children
conceived before its annulment are legitimate.
10) Villanueva vs. CA
The Court is not convinced that appellant's
apprehension of danger to his person is so
overwhelming as to deprive him of the will to enter
voluntarily to a contract of marriage. It is not disputed
that at the time he was allegedly being harassed,
appellant worked as a security guard in a bank. Given
his employment at that time, it is reasonable to
assume that appellant knew the rudiments of self-
defense, or, at the very least, the proper way to keep
himself out of harm's way. For sure, it is even doubtful
if threats were indeed made to bear upon appellant,
what with the fact that he never sought the
assistance of the security personnel of his school nor
the police regarding the activities of those who were
threatening him. And neither did he inform the judge
about his predicament prior to solemnizing their
marriage. Appellant also invoked fraud to annul his
marriage, as he was made to believe by appellee that
the latter was pregnant with his child when they were
married. Appellant's excuse that he could not have
impregnated the appellee because he did not have an
erection during their tryst is flimsy at best, and an
outright lie at worst. The complaint is bereft of any
reference to his inability to copulate with the appellee.
His counsel also conceded before the lower court that
his client had a sexual relationship with the appellee . .
. . He also narrated . . . that sometime in January 1988,
he and the appellee went to a hotel where "the
sexual act was consummated, with the defendant on
top" . . . . Instead of providing proofs that he was
tricked into marrying his wife, appellant resorted to
undermining the credibility of the latter by citing her
testimony that her child was born, and died, on August
29, 1989, a year off from August 29, 1988, the
date of fetal death as appearing in the
Page 4 of 10
registry of deaths of the Office of the Civil
Registrar of Puerto Princesa City. Also,
lack of cohabitation is, per se, not a ground to annul a
marriage. Otherwise, the validity of a marriage will
depend upon the will of the spouses who can
terminate the marital union by refusing to cohabitate.
The failure to cohabit becomes relevant only if it arises
as a result of the perpetration of any of the grounds for
annulling the marriage, such as lack of parental
consent, insanity, fraud, intimidation, or undue
influence.
11) Santos vs. CA
Pyschological incapacity must be characterized by (a)
GRAVITY (b) JURIDICAL ANTECEDENCE (c)
INCURABILITY. Psychological incapacity should refer to
no less than a mental (not physical) incapacity that
causes a party to be truly incognitive of the basic
marital covenants that concomitantly must be
assumed and discharged by the parties to the marriage
which, as so expressed by Art. 68 of the Family Code,
include their mutual obligations to live together,
observe love, respect and fidelity and render help and
support. The intendment of the law has been to
confine the meaning of “PSYCHOLOGICALINCAPACITY”
to the most serious cases of personality disorders
clearly demonstrative of an utter insensitivity or
inability to give meaning and significance to
the marriage. This psychological condition must exist at
the time the marriage is celebrated.
12) Hernandez vs. CA
Private respondent's alleged habitual alcoholism,
sexual infidelity or perversion, and abandonment do
not by themselves constitute grounds for finding that
he is suffering from a psychological incapacity within
the contemplation of the Family Code. It must be
shown that these acts are manifestations of a
disordered personality which make private
respondent's completely unable to discharge the
essential obligations of the marital state, and not
merely due to private respondent's youth and self-
conscious feeling of being handsome, as the appellate
court held. As pointed out in Republic of the Philippines
 v. Court of Appeals: The root cause of the psychological
incapacity must be: (a) medically or clinically identified,
(b) alleged in the complaint, (c) sufficiently proven by
the experts and (d) clearly explained in the decision.
Article 36 of the Family Code requires that the
incapacity must be psychological — not physical,
although its manifestations and/or symptoms may be
physical. The evidence must convince the court that
the parties, or one of them was mentally or physically
ill to such an extent that the person could not have
known the obligations he was assuming, or knowing
them, could not have given valid assumption thereof.
Although no example of such incapacity need be given
here so as not to limit the application of the provision
under the principle of ejusdem generis, nevertheless
such root cause must be identified as a psychological
illness and its incapacitating nature fully explained.
Expert evidence may be given by qualified psychiatrists
and clinical psychologists.
13) Dedel vs. CA
Respondent's sexual infidelity can hardly qualify as
being mentally or psychically ill to such an extent that
she could not have known the obligations she was
assuming, or knowing them, could not have given a
valid assumption thereof. It appears that respondent's
promiscuity did not exist prior to or at the
inception of the marriage. What is, in fact, disclosed by
the records is a blissful marital union at its celebration,
later affirmed in church rites, and which produced four
children. Respondent's sexual infidelity or perversion
and abandonment do not by themselves constitute
psychological incapacity within the
contemplation of the Family Code. Neither could her
emotional immaturity and irresponsibility be equated
with psychological incapacity. It must be shown that
these acts are manifestations of a disordered
personality which make respondent completely unable
to discharge the essential obligations of the marital
state, not merely due to her youth, immaturity or
sexual promiscuity. At best, the circumstances relied
upon by petitioner are grounds for legal separation
under Article 55.
14) Lam vs. Chua
Insofar as the declaration of nullity of the marriage
between Adriana and Jose for being bigamous is
concerned, the decision rendered by the Pasay RTC
could be declared as invalid for having been issued
beyond its jurisdiction. Nonetheless, considering that
Jose, did not assail the declaration of nullity of his
marriage with Adriana in his motion for
reconsideration which he filed with the Pasay RTC. In
the petitions he filed in the Court of Appeals and with
us, he likewise did not raise the issue of jurisdiction of
the Pasay RTC to receive evidence and render
judgment on his previous marriages with other woman
which were not alleged in the petition filed by Adriana.
Petitioner Jose is estopped from questioning the
declaration of nullity of his marriage with Adriana and
therefore, the Court will not undo the judgment of the
Pasay RTC declaring the marriage of Adriana and Jose
null and void for being bigamous. It is an axiomatic rule
that while a jurisdictional question may be raised at
any time, this, however, admits of an exception where
estoppel has supervened.
15) Mallion vs. Alcantara
Res judicata in this sense requires the concurrence of
the following requisites: (1) the former judgment
is final; (2) it is rendered by a court
having jurisdiction over the subject matter and the
parties; (3) it is a judgment or an order on the merits;
and (4) there is — between the first and the second
actions — identity of parties, of subject matter, and of
causes of action. The issue on nullity of marriage
between M and A has already been settled. In fact, in
the first petition, Mallion claimed that their marriage
was solemnized and celebrated in accordance with law.
This admission prevents him from taking a different
stand in the present case where he claims otherwise.
The court does not favor those who present their
claims in pieces on different actions.
16) Navarro vs. Cecilio-Navarro
Psychological Incapacity must be characterized by
gravity, juridical antecedence, and incurability for it to
nullify a marriage. It must be a mental incapacity that
truly renders a person incapable of performing basic
marital obligations such as ³living together, observing
Page 5 of 10
mutual love, respect and fidelity as well as render
mutual help and support´. It must be confined to the
most serious cases that would truly remove the
significance of marriage. In this case, the quarrels and
bickering as well as the constant arguments cannot be
considered as psychological incapacity. Difficulty,
refusal or neglect in performing then marital
obligations is not sufficient, it must be some
psychological illness. As to proving psychological
incapacity by plaintiff, the testimony of the marriage
counselor was based only on the claims of petitioner
and has no probative value and the statement of the
other witness is highly debatable, hence there is doubt.
17) Antonio vs. Reyes
Psychological incapacity pertains to the inability to
understand the obligations of marriage as opposed to a
mere inability to comply with them. The petitioner,
aside from his own testimony presented a psychiatrist
and clinical psychologist who attested that constant
lying and extreme jealousy of Reyes is abnormal and
pathological and corroborated his allegations on his
wife’s behavior, which amounts to psychological
incapacity. Respondent’s fantastic ability to invent,
fabricate stories and letters of fictitious characters
enabled her to live in a world of make-believe that
made her psychologically incapacitated as it rendered
her incapable of giving meaning and significance to her
marriage. The root causes of Reyes’ psychological
incapacity have been medically or clinically identified
that was sufficiently proven by experts. The gravity of
respondent’s psychological incapacity was considered
so grave that a restrictive clause was appended to the
sentence of nullity prohibited by the National Appellate
Matrimonial Tribunal from contracting marriage
without their consent. It would be difficult for an
inveterate pathological liar to commit the basic tenets
of relationship between spouses based on love, trust
and respect.
18) Republic vs. Quintero-Hamano
Abandonment cannot be considered psychological in
nature. For psychological incapacity to prosper, the
failure of performance of the marital obligation must
be due to the psychological incapacity or illness of a
 person not mere failure or dismissal of a marital
obligation.
19) Landicho vs. Relova
Annulment cases do not always raise a prejudicial
question that would render it a hindrance to a criminal
proceeding. Also, an annulment of marriage is not for
the parties to decide but should be left to the
determination of the competent courts. A subsequent
marriage cannot be contracted before a judicial
declaration of the nullity of the previous marriage is
shown. Otherwise, the party contracting a subsequent
marriage is at risk of being charged of bigamy.
20) Donato vs. Luna
Petitioner cannot apply the rule on prejudicial question
since a case for annulment of marriage can be
considered as a prejudicial question to the bigamy case
against the accused only if it is proved that the
petitioner’s consent to such marriage was obtained by
means of duress, violence, and intimidation in order to
establish that his act in the subsequent marriage was
an involuntary one and as such the same cannot be the
basis for conviction. The preceding elements do not
exist in case at bar. Another event which militates
against petitioner’s contentions is the fact that it was
only when the civil case was filed on September 28,
1979, or more than the lapse of one year from the
solemnization of the second marriage that petitioner
came up with the story that his consent to the
marriage was secured through the use of force,
violence, intimidation, and undue influence. Petitioner
also continued to live with private respondent until
November 1978, when the latter left their abode upon
learning that Leonilo Donato was already previously
married.
21) Wiegel vs. Sempio-Dy
The marriage is just voidable because assuming there is
force, it only falls under the Article 80 of the Civil Code
wherein force is classified. This means that the
marriage is valid until annulled. With this it can be said
that there was a marriage subsisting when Lilia married
Karl making their marriage void. The presentation of
evidence with regard to the marriage of the first
husband to another is also unnecessary because a
marriage needs a judicial declaration of its nullity
before it can be considered as a void marriage.
22) Domingo vs CA
A declaration of the absolute nullity of a marriage is
now explicitly required either as a cause of action or a
ground for defense. Where the absolute nullity of a
previous marriage is sought to be invoked for purposes
of contracting a second marriage, the sole basis
acceptable in law for said projected marriage be free
from legal infirmity is a final judgment declaring the
previous marriage void.
23) Beltran vs. People
The import of Article 40 of the Family Code is that for
purposes of remarriage, the only legally acceptable
basis for declaring a previous marriage an absolute
nullity is a final judgment declaring such previous
marriage void, whereas, for purposes of other than
remarriage, other evidence is acceptable. So that in a
case for concubinage, the accused, like the herein
petitioner, need not present a final judgment declaring
his remarriage void for he can adduce evidence in the
criminal case of the nullity of his marriage other than
proof of a final judgment declaring his marriage void.
Assuming that the first marriage was null and void on
the ground alleged by petitioner, that fact would not
be material to the outcome of the criminal case.
Parties to the marriage should not be permitted to
judge for themselves its nullity, for the same must be
submitted to the judgment of the competent courts
and only when the nullity of the marriage is so
declared can it be held as void, and so long as there is
no such declaration the presumption is that the
marriage exists. Therefore, he who contracts a second
marriage before the judicial declaration of nullity of the
first marriage assumes the risk of being prosecuted for
bigamy.
24) Mercado vs. Tan
Page 6 of 10
Article 40 of the Family Code, a new provision,
expressly requires a judicial declaration of nullity of the
previous marriage. Such declaration is now necessary
before one can contract a second marriage. Absent
that declaration, we hold that one may be charged
with and convicted of bigamy. It is now settled that the
fact that the first marriage is void from the beginning is
not a defense in a bigamy charge. As with a voidable
marriage, there must be a judicial declaration of the
nullity of a marriage before contracting the second
marriage. In the instant case, petitioner contracted a
second marriage although there was yet no judicial
declaration of nullity of his first marriage. In fact, he
instituted the Petition to have the first marriage
declared void only after complainant had filed a letter-
complaint charging him with bigamy. By contracting a
second marriage while the first was still subsisting, he
committed the acts punishable under Article 349 of the
Revised Penal Code.
25) Republic vs. Nolasco
One of the requirements for the declaration of
presumptive death is that it is based on a well founded
belief. The others are the year of absence and the wish
to remarry. In the present case, Nolasco claims that he
searched for Janet in England, asked friends and wrote
to a bar. It can be seen that his search was not a
diligent one. He merely depended on chance when he
looked for her in a big city abroad and asked
acquaintances. He did not, as he should have, acquired
the help and assistance of authorities both local and
that of the British Embassy so as to perform a better
search. The court thus cannot declare Janet
presumptively dead by reason of lack of well founded
belief.
26) Armas vs. Calisterio
During said year it was the Civil Code which was in
force and the provision governing their marriage states
that a subsequent marriage may validly be contacted
so long as the spouse has been absent for seven
consecutive years and it is with good faith that the
spouse left remarries. Since James Bounds has been
absent for 11 years before the marriage between
Teodorico and Marietta took place, the marriage must
be declared valid. A judicial declaration was not yet
deemed necessary at that time so long as the party
 involved is able to show that they have complied with 28)
the necessary requisites.
27) Manuel vs. People
Art. 41. A marriage contracted by any person during
the subsistence of a previous marriage shall be null and
void, unless before the celebration of the subsequent
marriage, the prior spouse had been absent for four
consecutive years and the spouse present had a well-
founded belief that the absent spouse was already
dead. In case of disappearance where there is danger
of death under the circumstances set forth in the
provisions of Article 391 of the Civil Code, an absence
of only two years shall be sufficient. For the purpose of
contracting the subsequent marriage under the
preceding paragraph, the spouse present must
institute a summary proceeding as provided in this
Court for the declaration of presumptive death of the
absentee, without prejudice to the effect of
reappearance of the absent spouse. With the
effectivity of the Family Code, the period of seven
years under the first paragraph of Article 390 of the
29)
Civil Code was reduced to four consecutive years. Thus,
before the spouse present may contract a subsequent
marriage, he or she must institute summary
proceedings for the declaration of the presumptive
death of the absentee spouse, without prejudice to the
effect of the reappearance of the absentee spouse.
Under the 1988 Family Code, in order that a
subsequent bigamous marriage may exceptionally be
considered valid, the following conditions must concur,
viz.: (a) The prior spouse of the contracting party must
have been absent for four consecutive years, or two
years where there is danger of death under the
circumstances stated in Article 391 of the Civil Code at
the time of disappearance; (b) the spouse present has
a well-founded belief that the absent spouse is already
dead; and (c) there is, unlike the old rule, a judicial
declaration of presumptive death of the absentee for
which purpose the spouse present can institute a
summary proceeding in court to ask for that
declaration. The last condition is consistent and in
consonance with the requirement of judicial
intervention in subsequent marriages as so provided in
Article 41, in relation to Article 40, of the Family Code.
Tenebro vs .CA
As a second or subsequent marriage contracted during
the subsistence of petitioner’s valid marriage to
Villareyes, petitioner’s marriage to Ancajas would be
null and void ab initio completely regardless of
petitioner’s psychological capacity or incapacity. Since
a marriage contracted during the subsistence of a valid
marriage is automatically void, the nullity of this
second marriage is not per se an argument for the
avoidance of criminal liability for bigamy. Pertinently,
Article 349 of the Revised Penal Code criminalizes “any
person who shall contract a second or subsequent
marriage before the former marriage has been legally
dissolved, or before the absent spouse has been
declared presumptively dead by means of a judgment
rendered in the proper proceedings”. A plain reading
of the law, therefore, would indicate that the provision
penalizes the mere act of contracting a second or a
subsequent marriage during the subsistence of a valid
marriage.
Cariño vs. Cariño
Under Article 40 of the Family Code, the absolute
nullity of a previous marriage may be invoked for
purposes of remarriage on the basis solely of a final
judgment declaring such previous marriage void.
30)
Meaning, where the absolute nullity of a previous
marriage is sought to be invoked for purposes of
contracting a second marriage, the sole basis
acceptable in law, for said projected marriage to be
free from legal infirmity, is a final judgment declaring
the previous marriage void. However, for purposes
other than remarriage, no judicial action is necessary
to declare a marriage an absolute nullity. For other
purposes, such as but not limited to the determination
of heirship, legitimacy or illegitimacy of a child,
settlement of estate, dissolution of property regime, or
a criminal case for that matter, the court may pass
upon the validity of marriage even after the death of
the parties thereto, and even in a suit not directly
instituted to question the validity of said marriage, so
long as it is essential to the determination of the case.
In such instances, evidence must be adduced,
testimonial or documentary, to prove the existence of
grounds rendering such a previous marriage an
Page 7 of 10
absolute nullity. These need not be limited solely to an
earlier final judgment of a court declaring such
previous marriage void. Under the Civil Code, which
was the law in force when the marriage of petitioner
Susan Nicdao and the deceased was solemnized in
1969, a valid marriage license is a requisite of
marriage, and the absence thereof, subject to certain
exceptions, renders the marriage void ab initio. In the
case at bar, there is no question that the marriage of
petitioner and the deceased does not fall within the
marriages exempt from the license requirement. A
marriage license, therefore, was indispensable to the
validity of their marriage. This notwithstanding, the
records reveal that the marriage contract of petitioner
and the deceased bears no marriage license number
and, as certified by the Local Civil Registrar of San Juan,
Metro Manila, their office has no record of such
marriage license. Accordingly, the declaration in the
instant case of nullity of the previous marriage of the
deceased and petitioner Susan Nicdao does not
validate the second marriage of the deceased with
respondent Susan Yee. The fact remains that their
marriage was solemnized without first obtaining a
judicial decree declaring the marriage of petitioner
Susan Nicdao and the deceased void. Hence, the
marriage of respondent Susan Yee and the deceased is,
likewise, void ab initio.
Ty vs. CA
Art. 40 of the FC provides that the absolute nullity of a
previous marriage may be invoked for purposes of
remarriage on the basis solely of a final judgment
declaring such previous marriage void. This means that
before one can enter into a second marriage, he must
first require a judicial declaration of the nullity of the
previous marriage and such declaration may be
invoked on the basis solely of a final judgment
declaring the previous marriage as void. For purposes
other than remarriage, other evidences may be
presented and the declaration can be passed upon by
the courts. In the case at bar, the lower court and the
CA cannot apply the provision of the FC. The old CC did
not have any provision that states that there must be
such a declaration before remarriage can be done
hence Ofelia‘s marriage with Reyes is valid. The
provisions of the FC (took effect in ‘87) cannot be
 applied retroactively especially because they would
impair the vested rights of O.
Voidable Marriages
1) Sarao vs Guevarra
A marriage may be annulled if the party was, at the
time of the marriage, physically incapable of entering
into the married state and such incapacity remains
incurable. Impotency has been defined as the inability
to copulate, not procreate. Barrenness of the woman
does render the marriage invalid. Moreover, the
woman’s sexual organs have been removed, by effect
rendering her sterile, but such did not make her
sexually unfit.
2) Buccat vs. Buccat
Clear and authentic proof is needed in order to nullify a
marriage, a sacred institution in which the State is
interested and where society rests. In this case, the
court did not find any proof that there was
concealment of pregnancy constituting fraud as a
ground for annulment. It was unlikely that Godofredo,
a first-year law student, did not suspect anything about
Luida’s condition considering that she was in an
advanced stage of pregnancy when they got married.
3) Aquino vs. Delizo
Concealment by the wife of the fact that at the time of
the marriage, she was pregnant by a man other than
her husband constitutes fraud and is a ground for
annulment of marriage. Here the defendant wife was
alleged to be only more than four months pregnant at
the time of her marriage to plaintiff. At that stage, we
are not prepared to say that her pregnancy was readily
apparent, especially since she was "naturally plump" or
fat as alleged by plaintiff. According to medical
authorities, even on the 5th month of pregnancy, the
enlargement of a woman's abdomen is still below the
umbilicus, that is to say, the enlargement is limited to
the lower part of the abdomen so that it is hardly
noticeable and may, if noticed, be attributed only to fat
formation on the lower part of the abdomen. It is only
on the 6th month of pregnancy that the enlargement
of the woman's abdomen reaches a height above the
umbilicus, making the roundness of the abdomen more
general and apparent. (See Lull, Clinical Obstetrics, p.
122.) If, as claimed by plaintiff, defendant is "naturally
plump", he could hardly be expected to know, merely
by looking, whether or not she was pregnant at the
time of their marriage, more so because she must have
attempted to conceal the true state of affairs. Even
physicians and surgeons, with the aid of the woman
herself who shows and gives her subjective and
objective symptoms, can only claim positive diagnosis
of pregnancy in 33 % at five months and 50% at six
months.
4) Tuason vs. CA
A grant of annulment of marriage or legal separation
by default is fraught with the danger of collusion.
Hence, in all cases for annulment, declaration of nullity
of marriage and legal separation, the prosecuting
attorney or fiscal is ordered to appear on behalf of the
state for the purpose of preventing any collusion
between the parties and to take care that their
evidence is not fabricated or suppressed. If the
defendant spouse fails to answer the complaint, the
court cannot declare him or her in default but instead,
should order the prosecuting attorney to determine if
collusion exists between the parties. The prosecuting
attorney or fiscal may oppose the application for legal
separation or annulment through the presentation of
his own evidence, if in his opinion, the proof adduced is
dubious and fabricated. Non-interference of a
prosecuting attorney is not fatal to the validity of the
proceedings in the trial court if petitioner vehemently
opposed the annulment of their marriage in the said
court.
5) Corpus vs. Ochotorena
Section 3, Rule 9 of the 1997 Rules of Civil Procedure
states: "If the , defending party in an action for
annulment or declaration of nullity of marriage or for
legal separation fails to answer, the court shall order
the prosecuting attorney to investigate whether or not
a collusion between the parties exists, and if there is no
collusion, to intervene for the State in order to see to it
that the evidence submitted is not fabricated." Thus,
Page 8 of 10
the report of the Public Prosecutor is a condition sine
qua non for further proceedings to go on in the case. –
This is true even if during the hearing the fiscal
participated and cross-examined the witnesses.
6) Cervantes vs. Fajardo
It is undisputed that respondent Conrado Fajardo is
legally married to a woman other than respondent
Gina Carreon, and his relationship with the latter is a
common-law husband and wife relationship. His open
cohabitation with co-respondent Gina Carreon will not
accord the minor that desirable atmosphere where she
can grow and develop into an upright and moral-
minded person. Besides, respondent Gina Carreon had
previously given birth to another child by another
married man with whom she lived for almost three (3)
years but who eventually left her and vanished. For a
minor (like Angelie Anne C. Cervantes) to grow up with
a sister whose “father” is not her true father, could
also affect the moral outlook and values of said minor.
Upon the other hand, petitioners who are legally
married appear to be morally, physically, financially,
and socially capable of supporting the minor and giving
her a future better than what the natural mother
(herein respondent Gina Carreon), who is not only
jobless but also maintains an illicit relation with a
married man, can most likely give her.
Besides, the minor has been legally adopted by
petitioners with the full knowledge and consent of
respondents. A decree of adoption has the effect,
among others, of dissolving the authority vested in
natural parents over the adopted child, except where
the adopting parent is the spouse of the natural parent
of the adopted, in which case, parental authority over
the adopted shall be exercised jointly by both spouses.
The adopting parents have the right to the care and
custody of the adopted child and exercise parental
authority and responsibility over him.
7) Republic vs. Iyoy
That Article 48 does not expressly mention the Solicitor
General does not bar him or his Office from intervening
in proceedings for annulment or declaration of nullity
of marriages. Executive Order No. 292,otherwise
known as the Administrative Code of 1987, appoints
 the Solicitor General as the principal law officer and
legal defender of the Government. His Office is tasked
to represent the Government of the Philippines, its
agencies and instrumentalities and its officials and
agents in any litigation, proceeding, investigation or
matter requiring the services of lawyers. The Office of
the Solicitor General shall constitute the law office of
the Government and, as such, shall discharge duties
requiring the services of lawyers. The intent of Article
48 of the Family Code of the Philippines is to ensure
that the interest of the State is represented and
protected in proceedings for annulment and
declaration of nullity of marriages by preventing
collusion between the parties, or the fabrication or
suppression of evidence. The general rule is that only
the Solicitor General is authorized to bring or defend
actions on behalf of the People or the Republic of the
Philippines once the case is brought before this Court
or the Court of Appeals. While it is the prosecuting
attorney or fiscal who actively participates, on behalf
of the State, in a proceeding for annulment or
declaration of nullity of marriage before the RTC, the
Office of the Solicitor General takes over when the
case is elevated to the Court of Appeals or this Court.
Since it shall be eventually responsible for taking the
case to the appellate courts when circumstances
demand, then it is only reasonable and practical that
even while the proceeding is still being held before the
RTC, the Office of the Solicitor General can already
exercise supervision and control over the conduct of
the prosecuting attorney or fiscal therein to better
guarantee the protection of the interests of the State.
The trial court must order the prosecuting attorney or
fiscal and the Solicitor General to appear as counsel for
the state. No decision shall be handed down unless the
Solicitor General issues a certification, which will be
quoted in the decision, briefly stating therein his
reasons for his agreement or opposition, as the case
may be, to the petition. The Solicitor General, along
with the prosecuting attorney, shall submit to the court
such certification within fifteen (15) days from the date
the case is deemed submitted for resolution of the
court. The Solicitor General shall discharge the
equivalent function of the defensor vinculi
contemplated under Canon 1095.
8) Espiritu vs. CA
In cases of care, custody, education and property of
children, the latter’s welfare shall be the paramount
concern and that even a child under 7 years of age may
be ordered to be separated from the mother for
compelling reasons. The presumption that the mother
is the best custodian for a child under seven years of
age is strong but not conclusive. At the time the
judgment was rendered, the 2 children were both over
7 years of age. The choice of the child to whom she
preferred to stay must be considered. It is evident in
the records submitted that Rosalind chose to stay with
his father/aunt. She was found of suffering from
emotional shock caused by her mother’s
infidelity. Furthermore, there was nothing in the
records to show that Reynaldo is unfit well in fact he
has been trying his best to give the children the kind of
attention and care which their mother is not in the
position to extend. On the other hand, the mother’s
conviction for the crime of bigamy and her illicit
relationship had already caused emotional
disturbances and personality conflicts at least with the
daughter.
Legal Separation
9) Mangonon vs. CA
1)
Respondents, by their actuations, have shown beyond
doubt that the twins are the children of Federico. In
view however of Federico’s incapacities, the obligation
to furnish said support should be borne by Francisco,
Federico’s father
Under Art.199 of the Family Code, respondent
Francisco, as the next immediate relative of Rica and
Rina, is tasked to give support to his granddaughters in
default of their parents. Moreover, Francisco insists
that the twins should move here to the Philippines to
study in any of the local universities as he has the
option under the law as to how he could perform his
obligation to support the them. This option however
cannot be availed of in case there are circumstances,
legal or moral, which should be considered.
10) Anaya vs. Palaroan
Non-disclosure of a husband's pre-marital relationship
with another woman is not one of the enumerated
Page 9 of 10
circumstances that would constitute a ground for
annulment; and it is further excluded by the last
paragraph of the article, providing that "no other
misrepresentation or deceit as to . . . chastity" shall
give ground for an action to annul a marriage. While a
woman may detest such non-disclosure of premarital
lewdness or feel having been thereby cheated into
giving her consent to the marriage, nevertheless the
law does not assuage her grief after her consent was
solemnly given, for upon marriage she entered into an
institution in which society, and not herself alone, is
interested. The lawmaker's intent being plain, the
Court's duty is to give effect to the same, whether it
agrees with the rule or not. Any secret intention on the
husband's part not to perform his marital duties must
have been discovered by the wife soon after the
marriage: hence her action for annulment based on
that fraud should have been brought within four years
after the marriage. Since appellant's wedding was
celebrated in December of 1953, and this ground was
only pleaded in 1966, it must be declared already
barred.
Francisco vs. Tayao
The grounds for divorce are two: Adultery on the part
of the wife or concubinage on the part of the husband.
The Philippine Divorce Law, Act No. 2710, is
emphatically clear in this respect. Section 1 of the law
reads: "A petition for divorce can only be filed for
adultery on the part of the wife or concubinage on the
part of the husband…" Note well the adverb "only" and
the conjunctive "or." The same thought is again
emphasized in section 3 of the Divorce Law which
provides that "The divorce may be claimed only by the
innocent spouse, provided there has been no
condonation of or consent to the
adultery or concubinage, as the case may be…" Later
on comes section 8 providing that "A divorce shall not
be granted without the guilt of the defendant being
established by final sentence in a criminal action"—
that is, in relation with section 1 of the same law, by
final sentence in a criminal action for adultery on the
part of the wife or concubinage on the part of the
husband. Act No. 2716, amendatory of article 437 of
 the Penal Code, adds nothing to the Divorce Law
except as it clarifies the meaning of concubinage.
2) Gandionco vs. Peñaranda
A civil action for legal separation on the ground of
concubinage may proceed ahead of, or simultaneously
with, a criminal action for concubinage, because said
civil action is not one to enforce the civil liability arising
from the offense, even if both the civil and criminal
actions arise from or are related to the same
offense. Such civil action is one intended to obtain the
right to live separately, with the legal consequences
thereof including the dissolution of the conjugal
partnership of gains, custody of the children, support
and disqualifications from inheriting from the innocent
spouse. Decree of legal separation may be issued upon
proof by preponderance of evidence, where no
criminal proceeding or conviction is necessary.
3) Ong vs. Ong
It is true that a decree of legal separation should not
be granted when both parties have given ground for
legal separation (Art 56 (4) FC). However, the
abandonment referred to in the Family Code
is abandonment without justifiable cause for more
than one year. Also, it was established that Lucita left
William due to his abusive conduct which does not
constitute the abandonment contemplated in the said
provision. The petition was denied for lack of merit.
4) Republic vs. Iyoy
Irreconcilable differences, conflicting personalities,
emotional immaturity and irresponsibility, physical
abuse, habitual alcoholism, sexual infidelity or
perversion, and abandonment, by themselves, also do
not warrant a finding of psychological incapacity under
Article 36. Article 36 "is not to be confused with a
divorce law that cuts the marital bond at the time the
causes therefore manifest themselves. It refers to a
serious psychological illness afflicting a party even
before the celebration of marriage. It is a malady so
grave and so permanent as to deprive one of
awareness of the duties and responsibilities of the
matrimonial bond one is about to assume.”
5) Bugayong vs Ginez
Granting that the infidelities amounting to adultery
were committed by the wife, the act of the husband in
persuading her to come along with him, and the fact
that she went with him and together they slept as
husband and wife, deprives him, as the alleged
offended spouse, of any action for legal separation
against the offending wife, because his said conduct
comes within the restriction of Article 100 of the Civil
Code. Any cohabitation with the guilty party, after the
commission of the offense, and with the knowledge or
belief on the part of the injured party of its
commission, will amount to conclusive evidence of
condonation; but this presumption may be rebutted by
evidence.
6) Lapuz-Sy vs. Eufemio
An action for legal separation is abated by the death of
the plaintiff, even if property rights are involved. These
rights are mere effects of 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.
7) Cervantes vs. Fajardo
It is undisputed that respondent Conrado Fajardo is
legally married to a woman other than respondent
Gina Carreon, and his relationship with the latter is a
common-law husband and wife relationship. His open
cohabitation with co-respondent Gina Carreon will not
accord the minor that desirable atmosphere where she
can grow and develop into an upright and moral-
minded person. Besides, respondent Gina Carreon had
previously given birth to another child by another
married man with whom she lived for almost three (3)
years but who eventually left her and vanished. For a
minor (like Angelie Anne C.Cervantes) to grow up with
a sister whose "father" is not her true father, could also
affect the moral outlook and values of said minor.
Page 10 of 10
Upon the other hand, petitioners who are legally
married appear to be morally, physically, financially,
and socially capable of supporting the minor and giving
her a future better than what the natural mother
(herein respondent Gina Carreon), who is not only
jobless but also maintains an illicit relation with a
married man, can most likely give her. Besides, the
minor has been legally adopted by petitioners with the
full knowledge and consent of respondents. A decree
of adoption has the effect, among others, of dissolving
the authority vested in natural parents over the
adopted child, except where the adopting parent is the
spouse of the natural parent of the adopted, in which
case, parental authority over the adopted shall be
exercised jointly by both spouses. The adopting
parents have the right to the care and custody of the
adopted child and exercise parental authority and
responsibility over him.
8) Espiritu vs. CA
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 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. Considerations involving the
choice made by a child must be 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. 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.