G.R. No.
138509 July 31, 2000
IMELDA MARBELLA-BOBIS, petitioner,
vs.
ISAGANI D. BOBIS, respondent.
YNARES-SANTIAGO, J.:
On October 21, 1985, respondent contracted a first marriage with one Maria Dulce B. Javier.
Without said marriage having been annulled, nullified or terminated, the same respondent
contracted a second marriage with petitioner Imelda Marbella-Bobis on January 25, 1996 and
allegedly a third marriage with a certain Julia Sally Hernandez. Based on petitioner's
complaint-affidavit, an information for bigamy was filed against respondent on February 25,
1998, which was docketed as Criminal Case No. Q98-75611 of the Regional Trial Court,
Branch 226, Quezon City. Sometime thereafter, respondent initiated a civil action for the
judicial declaration of absolute nullity of his first marriage on the ground that it was celebrated
without a marriage license. Respondent then filed a motion to suspend the proceedings in the
criminal case for bigamy invoking the pending civil case for nullity of the first marriage as a
prejudicial question to the criminal case. The trial judge granted the motion to suspend the
criminal case in an Order dated December 29, 1998.1 Petitioner filed a motion for
reconsideration, but the same was denied.
Hence, this petition for review on certiorari. Petitioner argues that respondent should have first
obtained a judicial declaration of nullity of his first marriage before entering into the second
marriage, inasmuch as the alleged prejudicial question justifying suspension of the bigamy
case is no longer a legal truism pursuant to Article 40 of the Family Code. 2
The issue to be resolved in this petition is whether the subsequent filing of a civil action for
declaration of nullity of a previous marriage constitutes a prejudicial question to a criminal case
for bigamy.
A prejudicial question is one which arises in a case the resolution of which is a logical
antecedent of the issue involved therein.3 It is a question based on a fact distinct and separate
from the crime but so intimately connected with it that it determines the guilt or innocence of
the accused.4 It must appear not only that the civil case involves facts upon which the criminal
action is based, but also that the resolution of the issues raised in the civil action would
necessarily be determinative of the criminal case.5 Consequently, the defense must involve an
issue similar or intimately related to the same issue raised in the criminal action and its
resolution determinative of whether or not the latter action may proceed. 6 Its two essential
elements are:7
1
(a) the civil action involves an issue similar or intimately related to the issue raised in
the criminal action; and
(b) the resolution of such issue determines whether or not the criminal action may
proceed.
A prejudicial question does not conclusively resolve the guilt or innocence of the accused but
simply tests the sufficiency of the allegations in the information in order to sustain the further
prosecution of the criminal case. A party who raises a prejudicial question is deemed to have
hypothetically admitted that all the essential elements of a crime have been adequately alleged
in the information, considering that the prosecution has not yet presented a single evidence on
the indictment or may not yet have rested its case. A challenge of the allegations in the
information on the ground of prejudicial question is in effect a question on the merits of the
criminal charge through a non-criminal suit.
Article 40 of the Family Code, which was effective at the time of celebration of the second
marriage, requires a prior judicial declaration of nullity of a previous marriage before a party
may remarry. The clear implication of this is that it is not for the parties, particularly the
accused, to determine the validity or invalidity of the marriage. 8 Whether or not the first
marriage was void for lack of a license is a matter of defense because there is still no judicial
declaration of its nullity at the time the second marriage was contracted. It should be
remembered that bigamy can successfully be prosecuted provided all its elements concur –
two of which are a previous marriage and a subsequent marriage which would have been valid
had it not been for the existence at the material time of the first marriage. 9
In the case at bar, respondent's clear intent is to obtain a judicial declaration of nullity of his
first marriage and thereafter to invoke that very same judgment to prevent his prosecution for
bigamy. He cannot have his cake and eat it too. Otherwise, all that an adventurous bigamist
has to do is to disregard Article 40 of the Family Code, contract a subsequent marriage and
escape a bigamy charge by simply claiming that the first marriage is void and that the
subsequent marriage is equally void for lack of a prior judicial declaration of nullity of the first.
A party may even enter into a marriage aware of the absence of a requisite - usually the
marriage license - and thereafter contract a subsequent marriage without obtaining a
declaration of nullity of the first on the assumption that the first marriage is void. Such scenario
would render nugatory the provisions on bigamy. As succinctly held in Landicho v. Relova:10
(P)arties to a marriage should not be permitted to judge for themselves its nullity, only
competent courts having such authority. Prior to such declaration of nullity, the validity
of the first marriage is beyond question. A party who contracts a second marriage
then assumes the risk of being prosecuted for bigamy.
Respondent alleges that the first marriage in the case before us was void for lack of a marriage
license. Petitioner, on the other hand, argues that her marriage to respondent was exempt
from the requirement of a marriage license. More specifically, petitioner claims that prior to
their marriage, they had already attained the age of majority and had been living together as
husband and wife for at least five years.11 The issue in this case is limited to the existence of a
prejudicial question, and we are not called upon to resolve the validity of the first marriage. Be
that as it may, suffice it to state that the Civil Code, under which the first marriage was
celebrated, provides that "every intendment of law or fact leans toward the validity of marriage,
the indissolubility of the marriage bonds."12 [] Hence, parties should not be permitted to judge
for themselves the nullity of their marriage, for the same must be submitted to the
determination of competent courts. 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.13 No matter how obvious, manifest or patent the absence of an element is, the
intervention of the courts must always be resorted to. That is why Article 40 of the Family Code
requires a "final judgment," which only the courts can render. Thus, as ruled in Landicho v.
Relova,14 he who contracts a second marriage before the judicial declaration of nullity of the
first marriage assumes the risk of being prosecuted for bigamy, and in such a case the criminal
case may not be suspended on the ground of the pendency of a civil case for declaration of
nullity. In a recent case for concubinage, we held that the pendency of a civil case for
declaration of nullity of marriage is not a prejudicial question.15 This ruling applies here by
analogy since both crimes presuppose the subsistence of a marriage.
Ignorance of the existence of Article 40 of the Family Code cannot even be successfully
invoked as an excuse.16 The contracting of a marriage knowing that the requirements of the
law have not been complied with or that the marriage is in disregard of a legal impediment is
an act penalized by the Revised Penal Code.17 The legality of a marriage is a matter of law and
every person is presumed to know the law. As respondent did not obtain the judicial
declaration of nullity when he entered into the second marriage, why should he be allowed to
belatedly obtain that judicial declaration in order to delay his criminal prosecution and
subsequently defeat it by his own disobedience of the law? If he wants to raise the nullity of the
previous marriage, he can do it as a matter of defense when he presents his evidence during
the trial proper in the criminal case.
The burden of proof to show the dissolution of the first marriage before the second marriage
was contracted rests upon the defense,18 but that is a matter that can be raised in the trial of
the bigamy case. In the meantime, it should be stressed that not every defense raised in the
civil action may be used as a prejudicial question to obtain the suspension of the criminal
action. The lower court, therefore, erred in suspending the criminal case for bigamy. Moreover,
when respondent was indicted for bigamy, the fact that he entered into two marriage
ceremonies appeared indubitable. It was only after he was sued by petitioner for bigamy that
he thought of seeking a judicial declaration of nullity of his first marriage. The obvious intent,
therefore, is that respondent merely resorted to the civil action as a potential prejudicial
question for the purpose of frustrating or delaying his criminal prosecution. As has been
discussed above, this cannot be done.1awphi1
2
In the light of 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. Per 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.19 The reason is that, without a judicial declaration of its nullity, the first marriage is
presumed 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.20 Against this legal backdrop, 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. As stated above, respondent cannot be
permitted to use his own malfeasance to defeat the criminal action against him.21
WHEREFORE, the petition is GRANTED. The order dated December 29, 1998 of the Regional
Trial Court, Branch 226 of Quezon City is REVERSED and SET ASIDE and the trial court is
ordered to IMMEDIATELY proceed with Criminal Case No. Q98-75611.
SO ORDERED.
G.R. No. 137110 August 1, 2000
VINCENT PAUL G. MERCADO a.k.a. VINCENT G. MERCADO, petitioner,
vs.
CONSUELO TAN, respondent.
DECISION
PANGANIBAN, J.:
A judicial declaration of nullity of a previous marriage is necessary before a subsequent one
can be legally contracted. One who enters into a subsequent marriage without first obtaining
such judicial declaration is guilty of bigamy. This principle applies even if the earlier union is
characterized by statute as "void."
The Case
Before us is a Petition for Review on Certiorari assailing the July 14, 1998 Decision of the
Court of Appeals (CA)1 in CA-GR CR No. 19830 and its January 4, 1999 Resolution denying
reconsideration. The assailed Decision affirmed the ruling of the Regional Trial Court (RTC) of
Bacolod City in Criminal Case No. 13848, which convicted herein petitioner of bigamy as
follows:
"WHEREFORE, finding the guilt of accused Dr. Vincent Paul G. Mercado a.k.a. Dr. Vincent G.
Mercado of the crime of Bigamy punishable under Article 349 of the Revised Penal Code to
have been proven beyond reasonable doubt, [the court hereby renders] judgment imposing
upon him a prison term of three (3) years, four (4) months and fifteen (15) days of prision
correccional, as minimum of his indeterminate sentence, to eight (8) years and twenty-one (21)
days of prision mayor, as maximum, plus accessory penalties provided by law.
Costs against accused."2
The Facts
The facts are quoted by Court of Appeals (CA) from the trial court’s judgment, as follows:
"From the evidence adduced by the parties, there is no dispute that accused Dr. Vincent
Mercado and complainant Ma. Consuelo Tan got married on June 27, 1991 before MTCC-
Bacolod City Br. 7 Judge Gorgonio J. Ibañez [by reason of] which a Marriage Contract was
duly executed and signed by the parties. As entered in said document, the status of accused
was ‘single’. There is no dispute either that at the time of the celebration of the wedding with
complainant, accused was actually a married man, having been in lawful wedlock with Ma.
Thelma Oliva in a marriage ceremony solemnized on April 10, 1976 by Judge Leonardo B.
Cañares, CFI-Br. XIV, Cebu City per Marriage Certificate issued in connection therewith, which
matrimony was further blessed by Rev. Father Arthur Baur on October 10, 1976 in religious
rites at the Sacred Heart Church, Cebu City. In the same manner, the civil marriage between
accused and complainant was confirmed in a church ceremony on June 29, 1991 officiated by
Msgr. Victorino A. Rivas, Judicial Vicar, Diocese of Bacolod City. Both marriages were
consummated when out of the first consortium, Ma. Thelma Oliva bore accused two children,
while a child, Vincent Paul, Jr. was sired by accused with complainant Ma. Consuelo Tan.
"On October 5, 1992, a letter-complaint for bigamy was filed by complainant through counsel
with the City Prosecutor of Bacolod City, which eventually resulted [in] the institution of the
present case before this Court against said accused, Dr. Vincent G. Mercado, on March 1,
1993 in an Information dated January 22, 1993.
"On November 13, 1992, or more than a month after the bigamy case was lodged in the
Prosecutor’s Office, accused filed an action for Declaration of Nullity of Marriage against Ma.
Thelma V. Oliva in RTC-Br. 22, Cebu City, and in a Decision dated May 6, 1993 the marriage
between Vincent G. Mercado and Ma. Thelma V. Oliva was declared null and void.
"Accused is charged [with] bigamy under Article 349 of the Revised Penal Code for having
contracted a second marriage with herein complainant Ma. Consuelo Tan on June 27, 1991
when at that time he was previously united in lawful marriage with Ma. Thelma V. Oliva on
April 10, 1976 at Cebu City, without said first marriage having been legally dissolved. As
shown by the evidence and admitted by accused, all the essential elements of the crime are
present, namely: (a) that the offender has been previously legally married; (2) that the first
3
marriage has not been legally dissolved or in case the spouse is absent, the absent spouse
could not yet be presumed dead according to the Civil Code; (3) that he contract[ed] a second
or subsequent marriage; and (4) that the second or subsequent marriage ha[d] all the essential
requisites for validity. x x x
"While acknowledging the existence of the two marriage[s], accused posited the defense that
his previous marriage ha[d] been judicially declared null and void and that the private
complainant had knowledge of the first marriage of accused.
"It is an admitted fact that when the second marriage was entered into with Ma. Consuelo Tan
on June 27, 1991, accused’s prior marriage with Ma. Thelma V. Oliva was subsisting, no
judicial action having yet been initiated or any judicial declaration obtained as to the nullity of
such prior marriage with Ma. Thelma V. Oliva. Since no declaration of the nullity of his first
marriage ha[d] yet been made at the time of his second marriage, it is clear that accused was
a married man when he contracted such second marriage with complainant on June 27, 1991.
He was still at the time validly married to his first wife." 3
Ruling of the Court of Appeals
Agreeing with the lower court, the Court of Appeals stated:
"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.’ But here, the final judgment declaring null and void accused’s
previous marriage came not before the celebration of the second marriage, but after, when the
case for bigamy against accused was already tried in court. And what constitutes the crime of
bigamy is the act of any person who shall contract a second subsequent marriage ‘before’ the
former marriage has been legally dissolved."4
Hence, this Petition.5
The Issues
In his Memorandum, petitioner raises the following issues:
"A
Whether or not the element of previous legal marriage is present in order to convict
petitioner.
"B
 Whether or not a liberal interpretation in favor of petitioner of Article 349 of the
Revised Penal Code punishing bigamy, in relation to Articles 36 and 40 of the Family
Code, negates the guilt of petitioner.
"C
Whether or not petitioner is entitled to an acquittal on the basis of reasonable doubt."6
The Court’s Ruling
The Petition is not meritorious.
Main Issue:Effect of Nullity of Previous Marriage
Petitioner was convicted of bigamy under Article 349 of the Revised Penal Code, which
provides:
"The penalty of prision mayor shall be imposed upon 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."
The elements of this crime are as follows:
"1. That the offender has been legally married;
2. That the marriage has not been legally dissolved or, in case his or her spouse is
absent, the absent spouse could not yet be presumed dead according to the Civil
Code;
3. That he contracts a second or subsequent marriage;
4. That the second or subsequent marriage has all the essential requisites for
validity."7
When the Information was filed on January 22, 1993, all the elements of bigamy were present.
It is undisputed that petitioner married Thelma G. Oliva on April 10, 1976 in Cebu City. While
that marriage was still subsisting, he contracted a second marriage, this time with Respondent
Ma. Consuelo Tan who subsequently filed the Complaint for bigamy.
4
Petitioner contends, however, that he obtained a judicial declaration of nullity of his first
marriage under Article 36 of the Family Code, thereby rendering it void ab initio. Unlike
voidable marriages which are considered valid until set aside by a competent court, he argues
that a void marriage is deemed never to have taken place at all. 8 Thus, he concludes that there
is no first marriage to speak of. Petitioner also quotes the commentaries9 of former Justice Luis
Reyes that "it is now settled that if the first marriage is void from the beginning, it is a defense
in a bigamy charge. But if the first marriage is voidable, it is not a defense."
Respondent, on the other hand, admits that the first marriage was declared null and void under
Article 36 of the Family Code, but she points out that that declaration came only after the
Information had been filed. Hence, by then, the crime had already been consummated. She
argues that a judicial declaration of nullity of a void previous marriage must be obtained before
a person can marry for a subsequent time.
We agree with the respondent.
To be sure, jurisprudence regarding the need for a judicial declaration of nullity of the previous
marriage has been characterized as "conflicting." 10 In People v. Mendoza,11 a bigamy case
involving an accused who married three times, the Court ruled that there was no need for such
declaration. In that case, the accused contracted a second marriage during the subsistence of
the first. When the first wife died, he married for the third time. The second wife then charged
him with bigamy. Acquitting him, the Court held that the second marriage was void ab
initio because it had been contracted while the first marriage was still in effect. Since the
second marriage was obviously void and illegal, the Court ruled that there was no need for a
judicial declaration of its nullity. Hence, the accused did not commit bigamy when he married
for the third time. This ruling was affirmed by the Court in People v. Aragon,12 which involved
substantially the same facts.
But in subsequent cases, the Court impressed the need for a judicial declaration of nullity.
In Vda de Consuegra v. GSIS,13 Jose Consuegra married for the second time while the first
marriage was still subsisting. Upon his death, the Court awarded one half of the proceeds of
his retirement benefits to the first wife and the other half to the second wife and her children,
notwithstanding the manifest nullity of the second marriage. It held: "And with respect to the
right of the second wife, this Court observes that although the second marriage can be
presumed to be void ab initio as it was celebrated while the first marriage was still
subsisting, still there is need for judicial declaration of such nullity."
In Tolentino v. Paras,14 however, the Court again held that judicial declaration of nullity of a
void marriage was not necessary. In that case, a man married twice. In his Death Certificate,
his second wife was named as his surviving spouse. The first wife then filed a Petition to
correct the said entry in the Death Certificate. The Court ruled in favor of the first wife, holding
that "the second marriage that he contracted with private respondent during the lifetime of the
first spouse is null and void from the beginning and of no force and effect. No judicial decree is
necessary to establish the invalidity of a void marriage."
In Wiegel v. Sempio-Diy,15 the Court stressed the need for such declaration. In that case, Karl
Heinz Wiegel filed an action for the declaration of nullity of his marriage to Lilia Olivia Wiegel
on the ground that the latter had a prior existing marriage. After pretrial, Lilia asked that she be
allowed to present evidence to prove, among others, that her first husband had previously
been married to another woman. In holding that there was no need for such evidence, the
Court ruled: "x x x There is likewise no need of introducing evidence about the existing prior
marriage of her first husband at the time they married each other, for then such a marriage
though void still needs, according to this Court, a judicial declaration of such fact and for all
legal intents and purposes she would still be regarded as a married woman at the time she
contracted her marriage with respondent Karl Heinz Wiegel; x x x."
Subsequently, in Yap v. CA,16 the Court reverted to the ruling in People v. Mendoza, holding
that there was no need for such declaration of nullity.
In Domingo v. CA,17 the issue raised was whether a judicial declaration of nullity was still
necessary for the recovery and the separation of properties of erstwhile spouses. Ruling in the
affirmative, the Court declared: "The Family Code has settled once and for all the conflicting
jurisprudence on the matter. A declaration of the absolute nullity of a marriage is now explicitly
required either as a cause of action or a ground for defense; in fact, the requirement for a
declaration of absolute nullity of a marriage is also for the protection of the spouse who,
believing that his or her marriage is illegal and void, marries again. With the judicial declaration
of the nullity of his or her first marriage, the person who marries again cannot be charged with
bigamy."18
Unlike Mendoza and Aragon, Domingo as well as the other cases herein cited was not a
criminal prosecution for bigamy. Nonetheless, Domingo underscored the need for a judicial
declaration of nullity of a void marriage on the basis of a new provision of the Family Code,
which came into effect several years after the promulgation of Mendoza and Aragon.
In Mendoza and Aragon, the Court relied on Section 29 of Act No. 3613 (Marriage Law), which
provided:
"Illegal marriages. — Any marriage subsequently contracted by any person during the lifetime
of the first spouse shall be illegal and void from its performance, unless:
(a) The first marriage was annulled or dissolved;
(b) The first spouse had been absent for seven consecutive years at the time of the
second marriage without the spouse present having news of the absentee being
5
alive, or the absentee being generally considered as dead and believed to be so by
the spouse present at the time of contracting such subsequent marriage, the marriage
as contracted being valid in either case until declared null and void by a competent
court."
The Court held in those two cases that the said provision "plainly makes a subsequent
marriage contracted by any person during the lifetime of his first spouse illegal and void from
its performance, and no judicial decree is necessary to establish its invalidity, as distinguished
from mere annulable marriages."19
The provision appeared in substantially the same form under Article 83 of the 1950 Civil Code
and Article 41 of the Family Code. However, Article 40 of the Family Code, a new provision,
expressly requires a judicial declaration of nullity of the previous marriage, as follows:
"ART. 40. The absolute nullity of a previous marriage may be invoked for purposes of
remarriage on the basis solely of a final judgment declaring such marriage void."
In view of this provision, Domingo stressed that a final judgment declaring such marriage void
was necessary. Verily, the Family Code and Domingo affirm the earlier ruling in Wiegel. Thus,
a Civil Law authority and member of the Civil Code Revision Commitee has observed:
"[Article 40] is also in line with the recent decisions of the Supreme Court that the marriage of a
person may be null and void but there is need of a judicial declaration of such fact before that
person can marry again; otherwise, the second marriage will also be void (Wiegel v. Sempio-
Diy, Aug. 19/86, 143 SCRA 499, Vda. De Consuegra v. GSIS, 37 SCRA 315). This provision
changes the old rule that where a marriage is illegal and void from its performance, no judicial
decree is necessary to establish its validity (People v. Mendoza, 95 Phil. 843; People v.
Aragon, 100 Phil. 1033)."20
In this light, the statutory mooring of the ruling in Mendoza and Aragon – that there is no need
for a judicial declaration of nullity of a void marriage -- has been cast aside by Article 40 of the
Family Code. 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.
The present ruling is consistent with our pronouncement in Terre v. Terre,21 which involved an
administrative Complaint against a lawyer for marrying twice. In rejecting the lawyer’s
argument that he was free to enter into a second marriage because the first one was void ab
initio, the Court ruled: "for purposes of determining whether a person is legally free to contract
a second marriage, a judicial declaration that the first marriage was null and void ab
initio is essential." The Court further noted that the said rule was "cast into statutory form by
Article 40 of the Family Code." Significantly, it observed that the second marriage, contracted
without a judicial declaration that the first marriage was void, was "bigamous and criminal in
character."
Moreover, Justice Reyes, an authority in Criminal Law whose earlier work was cited by
petitioner, changed his view on the subject in view of Article 40 of the Family Code and wrote
in 1993 that a person must first obtain a judicial declaration of the nullity of a void marriage
before contracting a subsequent marriage:22
"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. Article 40 of the Family Code
states that x x x. The Code Commission believes that the parties to a marriage should not be
allowed to assume that their marriage is void, even if such is the fact, but must first secure a
judicial declaration of nullity of their marriage before they should be allowed to marry again. x x
x."
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.
That he subsequently obtained a judicial declaration of the nullity of the first marriage was
immaterial. To repeat, the crime had already been consummated by then. Moreover, his view
effectively encourages delay in the prosecution of bigamy cases; an accused could simply file
a petition to declare his previous marriage void and invoke the pendency of that action as a
prejudicial question in the criminal case. We cannot allow that.
Under the circumstances of the present case, he is guilty of the charge against him.
Damages
In her Memorandum, respondent prays that the Court set aside the ruling of the Court of
Appeals insofar as it denied her claim of damages and attorney’s fees.23
Her prayer has no merit. She did not appeal the ruling of the CA against her; hence, she
cannot obtain affirmative relief from this Court.24 In any event, we find no reason to reverse or
set aside the pertinent ruling of the CA on this point, which we quote hereunder:
"We are convinced from the totality of the evidence presented in this case that Consuelo Tan is
not the innocent victim that she claims to be; she was well aware of the existence of the
6
previous marriage when she contracted matrimony with Dr. Mercado. The testimonies of the
defense witnesses prove this, and we find no reason to doubt said testimonies.
xxx xxx xxx
"Indeed, the claim of Consuelo Tan that she was not aware of his previous marriage does not
inspire belief, especially as she had seen that Dr. Mercado had two (2) children with him. We
are convinced that she took the plunge anyway, relying on the fact that the first wife would no
longer return to Dr. Mercado, she being by then already living with another man.
"Consuelo Tan can therefore not claim damages in this case where she was fully conscious of
the consequences of her act. She should have known that she would suffer humiliation in the
event the truth [would] come out, as it did in this case, ironically because of her personal
instigation. If there are indeed damages caused to her reputation, they are of her own willful
making."25
WHEREFORE, the Petition is DENIED and the assailed Decision AFFIRMED. Costs against
petitioner.
SO ORDERED.
G.R. No. 150758 February 18, 2004
VERONICO TENEBRO, petitioner
vs.
THE HONORABLE COURT OF APPEALS, respondent.
DECISION
YNARES-SANTIAGO, J.:
We are called on to decide the novel issue concerning the effect of the judicial declaration of
the nullity of a second or subsequent marriage, on the ground of psychological incapacity, on
an individual’s criminal liability for bigamy. We hold that the subsequent judicial declaration of
nullity of marriage on the ground of psychological incapacity does not retroact to the date of
the celebration of the marriage insofar as the Philippines’ penal laws are concerned. As such,
an individual who contracts a second or subsequent marriage during the subsistence of a valid
marriage is criminally liable for bigamy, notwithstanding the subsequent declaration that the
second marriage is void ab initio on the ground of psychological incapacity.
Petitioner in this case, Veronico Tenebro, contracted marriage with private complainant Leticia
Ancajas on April 10, 1990. The two were wed by Judge Alfredo B. Perez, Jr. of the City Trial
Court of Lapu-lapu City. Tenebro and Ancajas lived together continuously and without
interruption until the latter part of 1991, when Tenebro informed Ancajas that he had been
previously married to a certain Hilda Villareyes on November 10, 1986. Tenebro showed
Ancajas a photocopy of a marriage contract between him and Villareyes. Invoking this previous
marriage, petitioner thereafter left the conjugal dwelling which he shared with Ancajas, stating
that he was going to cohabit with Villareyes.1
On January 25, 1993, petitioner contracted yet another marriage, this one with a certain Nilda
Villegas, before Judge German Lee, Jr. of the Regional Trial Court of Cebu City, Branch
15.2 When Ancajas learned of this third marriage, she verified from Villareyes whether the
latter was indeed married to petitioner. In a handwritten letter, 3 Villareyes confirmed that
petitioner, Veronico Tenebro, was indeed her husband.
Ancajas thereafter filed a complaint for bigamy against petitioner. 4 The Information,5 which was
docketed as Criminal Case No. 013095-L, reads:
That on the 10th day of April 1990, in the City of Lapu-lapu, Philippines, and within the
jurisdiction of this Honorable Court, the aforenamed accused, having been previously united in
lawful marriage with Hilda Villareyes, and without the said marriage having been legally
dissolved, did then and there willfully, unlawfully and feloniously contract a second marriage
with LETICIA ANCAJAS, which second or subsequent marriage of the accused has all the
essential requisites for validity were it not for the subsisting first marriage.
CONTRARY TO LAW.
When arraigned, petitioner entered a plea of "not guilty".6
During the trial, petitioner admitted having cohabited with Villareyes from 1984-1988, with
whom he sired two children. However, he denied that he and Villareyes were validly married to
each other, claiming that no marriage ceremony took place to solemnize their union.7 He
alleged that he signed a marriage contract merely to enable her to get the allotment from his
office in connection with his work as a seaman.8 He further testified that he requested his
brother to verify from the Civil Register in Manila whether there was any marriage at all
between him and Villareyes, but there was no record of said marriage. 9
On November 10, 1997, the Regional Trial Court of Lapu-lapu City, Branch 54, rendered a
decision finding the accused guilty beyond reasonable doubt of the crime of bigamy under
Article 349 of the Revised Penal Code, and sentencing him to four (4) years and two (2)
months of prision correccional, as minimum, to eight (8) years and one (1) day of prision
7
mayor, as maximum.10 On appeal, the Court of Appeals affirmed the decision of the trial court.
Petitioner’s motion for reconsideration was denied for lack of merit.
Hence, the instant petition for review on the following assignment of errors:
I. THE HONORABLE COURT OF APPEALS GRAVELY ERRED, AND THIS ERROR
IS CORRECTIBLE IN THIS APPEAL – WHEN IT AFFIRMED THE DECISION OF
THE HONORABLE COURT A QUO CONVICTING THE ACCUSED FOR (sic) THE
CRIME OF BIGAMY, DESPITE THE NON-EXISTENCE OF THE FIRST MARRIAGE
AND INSUFFICIENCY OF EVIDENCE.
II. THE COURT ERRED IN CONVICTING THE ACCUSED FOR (sic) THE CRIME
OF BIGAMY DESPITE CLEAR PROOF THAT THE MARRIAGE BETWEEN THE
ACCUSED AND PRIVATE COMPLAINANT HAD BEEN DECLARED NULL AND
VOID AB INITIO AND WITHOUT LEGAL FORCE AND EFFECT.11
After a careful review of the evidence on record, we find no cogent reason to disturb the
assailed judgment.
Under Article 349 of the Revised Penal Code, the elements of the crime of Bigamy are:
(1) that the offender has been legally married;
(2) that the first marriage has not been legally dissolved or, in case his or her spouse
is absent, the absent spouse could not yet be presumed dead according to the Civil
Code;
(3) that he contracts a second or subsequent marriage; and
(4) that the second or subsequent marriage has all the essential requisites for
validity.12
Petitioner’s assignment of errors presents a two-tiered defense, in which he (1) denies the
existence of his first marriage to Villareyes, and (2) argues that the declaration of the nullity of
the second marriage on the ground of psychological incapacity, which is an alleged indicator
that his marriage to Ancajas lacks the essential requisites for validity, retroacts to the date on
which the second marriage was celebrated.13 Hence, petitioner argues that all four of the
elements of the crime of bigamy are absent, and prays for his acquittal. 14
Petitioner’s defense must fail on both counts.
First, the prosecution presented sufficient evidence, both documentary and oral, to prove the
existence of the first marriage between petitioner and Villareyes. Documentary evidence
presented was in the form of: (1) a copy of a marriage contract between Tenebro and
Villareyes, dated November 10, 1986, which, as seen on the document, was solemnized at the
Manila City Hall before Rev. Julieto Torres, a Minister of the Gospel, and certified to by the
Office of the Civil Registrar of Manila;15 and (2) a handwritten letter from Villareyes to Ancajas
dated July 12, 1994, informing Ancajas that Villareyes and Tenebro were legally married. 16
To assail the veracity of the marriage contract, petitioner presented (1) a certification issued by
the National Statistics Office dated October 7, 1995;17 and (2) a certification issued by the City
Civil Registry of Manila, dated February 3, 1997.18 Both these documents attest that the
respective issuing offices have no record of a marriage celebrated between Veronico B.
Tenebro and Hilda B. Villareyes on November 10, 1986.
To our mind, the documents presented by the defense cannot adequately assail the marriage
contract, which in itself would already have been sufficient to establish the existence of a
marriage between Tenebro and Villareyes.
All three of these documents fall in the category of public documents, and the Rules of Court
provisions relevant to public documents are applicable to all. Pertinent to the marriage
contract, Section 7 of Rule 130 of the Rules of Court reads as follows:
Sec. 7. Evidence admissible when original document is a public record. – When the original of
a document is in the custody of a public officer or is recorded in a public office, its contents
may be proved by a certified copy issued by the public officer in custody thereof (Emphasis
ours).
This being the case, the certified copy of the marriage contract, issued by a public officer in
custody thereof, was admissible as the best evidence of its contents. The marriage contract
plainly indicates that a marriage was celebrated between petitioner and Villareyes on
November 10, 1986, and it should be accorded the full faith and credence given to public
documents.
Moreover, an examination of the wordings of the certification issued by the National Statistics
Office on October 7, 1995 and that issued by the City Civil Registry of Manila on February 3,
1997 would plainly show that neither document attests as a positive fact that there was no
marriage celebrated between Veronico B. Tenebro and Hilda B. Villareyes on November 10,
1986. Rather, the documents merely attest that the respective issuing offices have no record of
such a marriage. Documentary evidence as to the absence of a record is quite different from
documentary evidence as to the absence of a marriage ceremony, or documentary evidence
as to the invalidity of the marriage between Tenebro and Villareyes.
8
The marriage contract presented by the prosecution serves as positive evidence as to the
existence of the marriage between Tenebro and Villareyes, which should be given greater
credence than documents testifying merely as to absence of any record of the marriage,
especially considering that there is absolutely no requirement in the law that a marriage
contract needs to be submitted to the civil registrar as a condition precedent for the validity of a
marriage. The mere fact that no record of a marriage exists does not invalidate the marriage,
provided all requisites for its validity are present. 19 There is no evidence presented by the
defense that would indicate that the marriage between Tenebro and Villareyes lacked any
requisite for validity, apart from the self-serving testimony of the accused himself. Balanced
against this testimony are Villareyes’ letter, Ancajas’ testimony that petitioner informed her of
the existence of the valid first marriage, and petitioner’s own conduct, which would all tend to
indicate that the first marriage had all the requisites for validity.
Finally, although the accused claims that he took steps to verify the non-existence of the first
marriage to Villareyes by requesting his brother to validate such purported non-existence, it is
significant to note that the certifications issued by the National Statistics Office and the City
Civil Registry of Manila are dated October 7, 1995 and February 3, 1997, respectively. Both
documents, therefore, are dated after the accused’s marriage to his second wife, private
respondent in this case.
As such, this Court rules that there was sufficient evidence presented by the prosecution to
prove the first and second requisites for the crime of bigamy.
The second tier of petitioner’s defense hinges on the effects of the subsequent judicial
declaration20 of the nullity of the second marriage on the ground of psychological incapacity.
Petitioner argues that this subsequent judicial declaration retroacts to the date of the
celebration of the marriage to Ancajas. As such, he argues that, since his marriage to Ancajas
was subsequently declared void ab initio, the crime of bigamy was not committed. 21
This argument is not impressed with merit.
Petitioner makes much of the judicial declaration of the nullity of the second marriage on the
ground of psychological incapacity, invoking Article 36 of the Family Code. What petitioner fails
to realize is that a declaration of the nullity of the second marriage on the ground of
psychological incapacity is of absolutely no moment insofar as the State’s penal laws are
concerned.
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.22 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.
Thus, as soon as the second marriage to Ancajas was celebrated on April 10, 1990, during the
subsistence of the valid first marriage, the crime of bigamy had already been consummated.
To our mind, there is no cogent reason for distinguishing between a subsequent marriage that
is null and void purely because it is a second or subsequent marriage, and a subsequent
marriage that is null and void on the ground of psychological incapacity, at least insofar as
criminal liability for bigamy is concerned. The State’s penal laws protecting the institution of
marriage are in recognition of the sacrosanct character of this special contract between
spouses, and punish an individual’s deliberate disregard of the permanent character of the
special bond between spouses, which petitioner has undoubtedly done.
Moreover, the declaration of the nullity of the second marriage on the ground of psychological
incapacity is not an indicator that petitioner’s marriage to Ancajas lacks the essential requisites
for validity. The requisites for the validity of a marriage are classified by the Family Code into
essential (legal capacity of the contracting parties and their consent freely given in the
presence of the solemnizing officer)23 and formal (authority of the solemnizing officer, marriage
license, and marriage ceremony wherein the parties personally declare their agreement to
marry before the solemnizing officer in the presence of at least two witnesses).24 Under Article
5 of the Family Code, any male or female of the age of eighteen years or upwards not under
any of the impediments mentioned in Articles 3725 and 3826 may contract marriage.27
In this case, all the essential and formal requisites for the validity of marriage were satisfied by
petitioner and Ancajas. Both were over eighteen years of age, and they voluntarily contracted
the second marriage with the required license before Judge Alfredo B. Perez, Jr. of the City
Trial Court of Lapu-lapu City, in the presence of at least two witnesses.
Although the judicial declaration of the nullity of a marriage on the ground of psychological
incapacity retroacts to the date of the celebration of the marriage insofar as the vinculum
between the spouses is concerned, it is significant to note that said marriage is not without
legal effects. Among these effects is that children conceived or born before the judgment of
absolute nullity of the marriage shall be considered legitimate. 28 There is therefore a
recognition written into the law itself that such a marriage, although void ab initio, may still
produce legal consequences. Among these legal consequences is incurring criminal liability for
bigamy. To hold otherwise would render the State’s penal laws on bigamy completely
nugatory, and allow individuals to deliberately ensure that each marital contract be flawed in
9
some manner, and to thus escape the consequences of contracting multiple marriages, while
beguiling throngs of hapless women with the promise of futurity and commitment.
As such, we rule that the third and fourth requisites for the crime of bigamy are present in this
case, and affirm the judgment of the Court of Appeals.
As a final point, we note that based on the evidence on record, petitioner contracted marriage
a third time, while his marriages to Villareyes and Ancajas were both still subsisting. Although
this is irrelevant in the determination of the accused’s guilt for purposes of this particular case,
the act of the accused displays a deliberate disregard for the sanctity of marriage, and the
State does not look kindly on such activities. Marriage is a special contract, the key
characteristic of which is its permanence. When an individual manifests a deliberate pattern of
flouting the foundation of the State’s basic social institution, the State’s criminal laws on
bigamy step in.
Under Article 349 of the Revised Penal Code, as amended, the penalty for the crime of bigamy
is prision mayor, which has a duration of six (6) years and one (1) day to twelve (12) years.
There being neither aggravating nor mitigating circumstance, the same shall be imposed in its
medium period. Applying the Indeterminate Sentence Law, petitioner shall be entitled to a
minimum term, to be taken from the penalty next lower in degree, i.e., prision correccional
which has a duration of six (6) months and one (1) day to six (6) years. Hence, the Court of
Appeals correctly affirmed the decision of the trial court which sentenced petitioner to suffer an
indeterminate penalty of four (4) years and two (2) months of prision correccional, as minimum,
to eight (8) years and one (1) day of prision mayor, as maximum.
WHEREFORE, in view of all the foregoing, the instant petition for review is DENIED. The
assailed decision of the Court of Appeals in CA-G.R. CR No. 21636, convicting petitioner
Veronico Tenebro of the crime of Bigamy and sentencing him to suffer the indeterminate
penalty of four (4) years and two (2) months of prision correccional, as minimum, to eight (8)
years and one (1) day of prision mayor, as maximum, is AFFIRMED in toto.
SO ORDERED.
G.R. No. 164435 September 29, 2009
VICTORIA S. JARILLO, Petitioner,
vs.
PEOPLE OF THE PHILIPPINES, Respondent.
DECISION
DEL CASTILLO, J.:
This resolves the Petition for Review on Certiorari under Rule 45 of the Rules of Court, praying
that the Decision1 of the Court of Appeals (CA), dated July 21, 2003, and its Resolution 2 dated
July 8, 2004, be reversed and set aside.
On May 31, 2000, petitioner was charged with Bigamy before the Regional Trial Court (RTC)
of Pasay City, Branch 117 under the following Information in Criminal Case No. 00-08-11:
INFORMATION
The undersigned Assistant City Prosecutor accuses VICTORIA S. JARILLO of the crime of
BIGAMY, committed as follows:
That on or about the 26th day of November 1979, in Pasay City, Metro Manila, Philippines and
within the jurisdiction of this Honorable Court, the above-named accused, Victoria S. Jarillo,
being previously united in lawful marriage with Rafael M. Alocillo, and without the said
marriage having been legally dissolved, did then and there willfully, unlawfully and feloniously
contract a second marriage with Emmanuel Ebora Santos Uy which marriage was only
discovered on January 12, 1999.
Contrary to law.
On July 14, 2000, petitioner pleaded not guilty during arraignment and, thereafter, trial
proceeded.
The undisputed facts, as accurately summarized by the CA, are as follows.
On May 24, 1974, Victoria Jarillo and Rafael Alocillo were married in a civil wedding ceremony
solemnized by Hon. Monico C. Tanyag, then Municipal Mayor of Taguig, Rizal (Exhs. A, A-1,
H, H-1, H-2, O, O-1, pp. 20-21, TSN dated November 17, 2000).
On May 4, 1975, Victoria Jarillo and Rafael Alocillo again celebrated marriage in a church
wedding ceremony before Rev. Angel Resultay in San Carlos City, Pangasinan (pp. 25-26,
TSN dated November 17, 2000). Out of the marital union, appellant begot a daughter,
Rachelle J. Alocillo on October 29, 1975 (Exhs. F, R, R-1).
Appellant Victoria Jarillo thereafter contracted a subsequent marriage with Emmanuel Ebora
Santos Uy, at the City Court of Pasay City, Branch 1, before then Hon. Judge Nicanor Cruz on
November 26, 1979 (Exhs. D, J, J-1, Q, Q-1, pp. 15-18, TSN dated November 22, 2000).
On April 16, 1995, appellant and Emmanuel Uy exchanged marital vows anew in a church
wedding in Manila (Exh. E).
10
In 1999, Emmanuel Uy filed against the appellant Civil Case No. 99-93582 for annulment of
marriage before the Regional Trial Court of Manila.
Thereafter, appellant Jarillo was charged with bigamy before the Regional Trial Court of Pasay
City x x x.
xxxx
Parenthetically, accused-appellant filed against Alocillo, on October 5, 2000, before the
Regional Trial Court of Makati, Civil Case No. 00-1217, for declaration of nullity of their
marriage.
On July 9, 2001, the court a quo promulgated the assailed decision, the dispositive portion of
which states:
WHEREFORE, upon the foregoing premises, this court hereby finds accused Victoria Soriano
Jarillo GUILTY beyond reasonable doubt of the crime of BIGAMY.
Accordingly, said accused is hereby sentenced to suffer an indeterminate penalty of SIX (6)
YEARS of prision correccional, as minimum, to TEN (10) YEARS of prision mayor, as
maximum.
This court makes no pronouncement on the civil aspect of this case, such as the nullity of
accused’s bigamous marriage to Uy and its effect on their children and their property. This
aspect is being determined by the Regional Trial Court of Manila in Civil Case No. 99-93582.
Costs against the accused.
The motion for reconsideration was likewise denied by the same court in that assailed Order
dated 2 August 2001.3
For her defense, petitioner insisted that (1) her 1974 and 1975 marriages to Alocillo were null
and void because Alocillo was allegedly still married to a certain Loretta Tillman at the time of
the celebration of their marriage; (2) her marriages to both Alocillo and Uy were null and void
for lack of a valid marriage license; and (3) the action had prescribed, since Uy knew about her
marriage to Alocillo as far back as 1978.
On appeal to the CA, petitioner’s conviction was affirmed in toto. In its Decision dated July 21,
2003, the CA held that petitioner committed bigamy when she contracted marriage with
Emmanuel Santos Uy because, at that time, her marriage to Rafael Alocillo had not yet been
declared null and void by the court. This being so, the presumption is, her previous marriage to
Alocillo was still existing at the time of her marriage to Uy. The CA also struck down, for lack of
sufficient evidence, petitioner’s contentions that her marriages were celebrated without a
marriage license, and that Uy had notice of her previous marriage as far back as 1978.
In the meantime, the RTC of Makati City, Branch 140, rendered a Decision dated March 28,
2003, declaring petitioner’s 1974 and 1975 marriages to Alocillo null and void ab initio on the
ground of Alocillo’s psychological incapacity. Said decision became final and executory on July
9, 2003. In her motion for reconsideration, petitioner invoked said declaration of nullity as a
ground for the reversal of her conviction. However, in its Resolution dated July 8, 2004, the
CA, citing Tenebro v. Court of Appeals,4 denied reconsideration and ruled that "[t]he
subsequent declaration of nullity of her first marriage on the ground of psychological
incapacity, while it retroacts to the date of the celebration of the marriage insofar as the
vinculum between the spouses is concerned, the said marriage is not without legal
consequences, among which is incurring criminal liability for bigamy." 5
Hence, the present petition for review on certiorari under Rule 45 of the Rules of Court where
petitioner alleges that:
V.1. THE COURT OF APPEALS COMMITTED REVERSIBLE ERROR IN PROCEEDING
WITH THE CASE DESPITE THE PENDENCY OF A CASE WHICH IS PREJUDICIAL TO THE
OUTCOME OF THIS CASE.
V.2. THE COURT OF APPEALS COMMITTED REVERSIBLE ERROR IN AFFIRMING THE
CONVICTION OF PETITIONER FOR THE CRIME OF BIGAMY DESPITE THE
SUPERVENING PROOF THAT THE FIRST TWO MARRIAGES OF PETITIONER TO
ALOCILLO HAD BEEN DECLARED BY FINAL JUDGMENT NULL AND VOID AB INITIO.
V.3. THE COURT OF APPEALS COMMITTED REVERSIBLE ERROR IN NOT
CONSIDERING THAT THERE IS A PENDING ANNULMENT OF MARRIAGE AT THE
REGIONAL TRIAL COURT BRANCH 38 BETWEEN EMMANUEL SANTOS AND VICTORIA
S. JARILLO.
V.4. THE COURT OF APPEALS COMMITTED REVERSIBLE ERROR IN NOT
CONSIDERING THAT THE INSTANT CASE OF BIGAMY HAD ALREADY PRESCRIBED.
V.5. THE COURT OF APPEALS COMMITTED REVERSIBLE ERROR IN NOT
CONSIDERING THAT THE MARRIAGE OF VICTORIA JARILLO AND EMMANUEL SANTOS
UY HAS NO VALID MARRIAGE LICENSE.
V.6. THE COURT OF APPEALS COMMITTED REVERSIBLE ERROR IN NOT ACQUITTING
THE PETITIONER BUT IMPOSED AN ERRONEOUS PENALTY UNDER THE REVISED
PENAL CODE AND THE INDETERMINATE SENTENCE LAW.
11
The first, second, third and fifth issues, being closely related, shall be discussed jointly. It is
true that right after the presentation of the prosecution evidence, petitioner moved for
suspension of the proceedings on the ground of the pendency of the petition for declaration of
nullity of petitioner’s marriages to Alocillo, which, petitioner claimed involved a prejudicial
question. In her appeal, she also asserted that the petition for declaration of nullity of her
marriage to Uy, initiated by the latter, was a ground for suspension of the proceedings. The
RTC denied her motion for suspension, while the CA struck down her arguments. In Marbella-
Bobis v. Bobis,6 the Court categorically stated that:
x x x as ruled in Landicho v. Relova, he who contracts a second marriage before the judicial
declaration of nullity of the first marriage assumes the risk of being prosecuted for bigamy, and
in such a case the criminal case may not be suspended on the ground of the pendency of a
civil case for declaration of nullity. x x x
xxxx
x x x The reason is that, without a judicial declaration of its nullity, the first marriage is
presumed 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. Against this legal backdrop, 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. x x x7
The foregoing ruling had been reiterated in Abunado v. People,8 where it was held thus:
The subsequent judicial declaration of the nullity of the first marriage was immaterial because
prior to the declaration of nullity, the crime had already been consummated. Moreover,
petitioner’s assertion would only delay the prosecution of bigamy cases considering that an
accused could simply file a petition to declare his previous marriage void and invoke the
pendency of that action as a prejudicial question in the criminal case. We cannot allow that.
The outcome of the civil case for annulment of petitioner’s marriage to [private complainant]
had no bearing upon the determination of petitioner’s innocence or guilt in the criminal case for
bigamy, because all that is required for the charge of bigamy to prosper is that the first
marriage be subsisting at the time the second marriage is contracted.
Thus, under the law, a marriage, even one which is void or voidable, shall be deemed valid
until declared otherwise in a judicial proceeding. In this case, even if petitioner eventually
obtained a declaration that his first marriage was void ab initio, the point is, both the first and
the second marriage were subsisting before the first marriage was annulled.9
For the very same reasons elucidated in the above-quoted cases, petitioner’s conviction of the
crime of bigamy must be affirmed. The subsequent judicial declaration of nullity of petitioner’s
two marriages to Alocillo cannot be considered a valid defense in the crime of bigamy. The
moment petitioner contracted a second marriage without the previous one having been
judicially declared null and void, the crime of bigamy was already consummated because at
the time of the celebration of the second marriage, petitioner’s marriage to Alocillo, which had
not yet been declared null and void by a court of competent jurisdiction, was deemed valid and
subsisting. Neither would a judicial declaration of the nullity of petitioner’s marriage to Uy make
any difference.10 As held in Tenebro, "[s]ince 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. x x x A plain reading of [Article 349
of the Revised Penal Code], therefore, would indicate that the provision penalizes the mere act
of contracting a second or subsequent marriage during the subsistence of a valid marriage." 11
Petitioner’s defense of prescription is likewise doomed to fail.
Under Article 349 of the Revised Penal Code, bigamy is punishable by prision mayor, which is
classified under Article 25 of said Code as an afflictive penalty. Article 90 thereof provides that
"[c]rimes punishable by other afflictive penalties shall prescribe in fifteen years," while Article
91 states that "[t]he period of prescription shall commence to run from the day on which the
crime is discovered by the offended party, the authorities, or their agents x x x ."
Petitioner asserts that Uy had known of her previous marriage as far back as 1978; hence,
prescription began to run from that time. Note that the party who raises a fact as a matter of
defense has the burden of proving it. The defendant or accused is obliged to produce evidence
in support of its defense; otherwise, failing to establish the same, it remains self-
serving.12 Thus, for petitioner’s defense of prescription to prosper, it was incumbent upon her
to adduce evidence that as early as the year 1978, Uy already obtained knowledge of her
previous marriage.
A close examination of the records of the case reveals that petitioner utterly failed to present
sufficient evidence to support her allegation. Petitioner’s testimony that her own mother told Uy
in 1978 that she (petitioner) is already married to Alocillo does not inspire belief, as it is totally
unsupported by any corroborating evidence. The trial court correctly observed that:
x x x She did not call to the witness stand her mother – the person who allegedly actually told
Uy about her previous marriage to Alocillo. It must be obvious that without the confirmatory
testimony of her mother, the attribution of the latter of any act which she allegedly did is
hearsay.13
As ruled in Sermonia v. Court of Appeals,14 "the prescriptive period for the crime of bigamy
should be counted only from the day on which the said crime was discovered by the offended
party, the authorities or their [agents]," as opposed to being counted from the date of
12
registration of the bigamous marriage.15 Since petitioner failed to prove with certainty that the
period of prescription began to run as of 1978, her defense is, therefore, ineffectual.1avvphi1
Finally, petitioner avers that the RTC and the CA imposed an erroneous penalty under the
Revised Penal Code. Again, petitioner is mistaken.
The Indeterminate Sentence Law provides that the accused shall be sentenced to an
indeterminate penalty, the maximum term of which shall be that which, in view of the attending
circumstances, could be properly imposed under the Revised Penal Code, and the minimum of
which shall be within the range of the penalty next lower than that prescribed by the Code for
the offense, without first considering any modifying circumstance attendant to the commission
of the crime. The Indeterminate Sentence Law leaves it entirely within the sound discretion of
the court to determine the minimum penalty, as long as it is anywhere within the range of the
penalty next lower without any reference to the periods into which it might be subdivided. The
modifying circumstances are considered only in the imposition of the maximum term of the
indeterminate sentence.16
Applying the foregoing rule, it is clear that the penalty imposed on petitioner is proper. Under
Article 349 of the Revised Penal Code, the imposable penalty for bigamy is prision mayor. The
penalty next lower is prision correccional, which ranges from 6 months and 1 day to 6 years.
The minimum penalty of six years imposed by the trial court is, therefore, correct as it is still
within the duration of prision correccional. There being no mitigating or aggravating
circumstances proven in this case, the prescribed penalty of prision mayor should be imposed
in its medium period, which is from 8 years and 1 day to 10 years. Again, the trial court
correctly imposed a maximum penalty of 10 years.
However, for humanitarian purposes, and considering that petitioner’s marriage to Alocillo has
after all been declared by final judgment17 to be void ab initio on account of the latter’s
psychological incapacity, by reason of which, petitioner was subjected to manipulative abuse,
the Court deems it proper to reduce the penalty imposed by the lower courts. Thus, petitioner
should be sentenced to suffer an indeterminate penalty of imprisonment from Two (2) years,
Four (4) months and One (1) day of prision correccional, as minimum, to 8 years and 1 day of
prision mayor, as maximum.
IN VIEW OF THE FOREGOING, the petition is PARTLY GRANTED. The Decision of the
Court of Appeals dated July 21, 2003, and its Resolution dated July 8, 2004 are hereby
MODIFIED as to the penalty imposed, but AFFIRMED in all other respects. Petitioner is
sentenced to suffer an indeterminate penalty of imprisonment from Two (2) years, Four (4)
months and One (1) day of prision correccional, as minimum, to Eight (8) years and One (1)
day of prision mayor, as maximum.
SO ORDERED.
G.R. No. 183824 December 8, 2010
MYRNA P. ANTONE, Petitioner,
vs.
LEO R. BERONILLA, Respondent.
DECISION
PEREZ, J.:
Before us is a petition for review on certiorari under Rule 45 of the Rules of Court seeking to
nullify and set aside the issuances of the Court of Appeals in CA-G.R. SP No. 102834, to wit:
(a) the Resolution1 dated 29 April 2008 dismissing the petition for certiorari under Rule 65,
which assailed the trial court’s Orders2 dated 20 September 2007 and 6 December 2007 in
Criminal Case No. 07-0907-CFM for Bigamy; and (b) the Resolution3 dated 18 July 2008
denying the motion for reconsideration of the first resolution.
The trial court quashed the Information on the ground that the elements of Bigamy were
rendered incomplete after herein respondent presented documents to prove a fact, which the
court believed would negate the allegation in the Information that there was a first valid
marriage. The evidence presented showed that respondent later obtained a judicial declaration
of nullity of the first union following the celebration of a subsequent marriage.
The Antecedents
On 12 March 2007, herein petitioner Myrna P. Antone executed an Affidavit-Complaint4 for
Bigamy against Leo R. Beronilla before the Office of the City Prosecutor of Pasay City. She
alleged that her marriage with respondent in 1978 had not yet been legally dissolved when the
latter contracted a second marriage with one Cecile Maguillo in 1991.
On 21 June 2007, the prosecution filed the corresponding Information 5 before the Regional
Trial Court, Pasay City. The case was docketed as Criminal Case No. 07-0907-CFM and
raffled to Branch 115.
Pending the setting of the case for arraignment, herein respondent moved to quash the
Information on the ground that the facts charged do not constitute an offense.6 He informed the
court that his marriage with petitioner was declared null and void by the Regional Trial Court,
Branch 16, Naval, Biliran on 26 April 2007;7 that the decision became final and executory on
15 May 200[7];8 and that such decree has already been registered with the Municipal Civil
Registrar on 12 June 2007.9 He argued that since the marriage had been declared null and
void from the beginning, there was actually no first marriage to speak of. Absent a first valid
marriage, the facts alleged in the Information do not constitute the crime of bigamy. 10
13
In its comment/opposition to the motion,11 the prosecution, through herein petitioner,
maintained that the respondent committed an act which has all the essential requisites of
bigamy. The prosecution pointed out that the marriage of petitioner and respondent on 18
November 1978 has not yet been severed when he contracted a second marriage on 16
February 1991, for which reason, bigamy has already been committed before the court
declared the first marriage null and void on 27 April 2007. 12 The prosecution also invoked the
rulings of the Supreme Court holding that a motion to quash is a hypothetical admission of the
facts alleged in the information, and that facts contrary thereto are matters of defense which
may be raised only during the presentation of evidence. 13
After a hearing on the motion,14 the court quashed the Information.15 Applying Morigo v.
People,16 it ruled:
Hence, contrary to what was stated in the Information, accused Beronilla was actually never
legally married to Myrna Antone. On this score alone, the first element appears to be missing.
Furthermore, the statement in the definition of Bigamy which reads "before the first marriage
has been legally dissolved" clearly contemplates that the first marriage must at least be
annullable or voidable but definitely not void, as in this case. xxx [I]n a similar case, [the
Supreme Court] had the occasion to state:
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." xxx 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. xxx17
The prosecution, through herein petitioner, moved for reconsideration of the said Order18 on
the ground, among others, that the facts and the attending circumstances in Morigo are not on
all fours with the case at bar. It likewise pointed out that, in Mercado v. Tan, 19 this Court has
already settled that "(a) declaration of the absolute nullity of a marriage is now explicitly
required either as a cause of action or a ground for defense."20
In its Order of 6 December 2007,21 the court denied the motion for reconsideration stating that
Mercado has already been superseded by Morigo.
In the interim, in a Petition for Relief from Judgment22 before the Regional Trial Court of Naval,
Biliran, petitioner questioned the validity of the proceedings in the petition for the declaration of
nullity of marriage in Civil Case No. B-1290 on 5 October 2007. On 24 March 2008, the court
set aside its Decision of 26 April 2007 declaring the marriage of petitioner with respondent null
and void, and required herein petitioner (respondent in Civil Case No. B-1290) to file her
"answer to the complaint."23 On 21 July 2008, the court DISMISSED the petition for nullity of
marriage for failure of herein respondent (plaintiff in Civil Case No. B-1290) to submit his pre-
trial brief.24 Respondent, however, challenged the orders issued by the court before the Court
of Appeals.25 The matter is still pending resolution thereat.26
Meanwhile, in a petition for certiorari under Rule 65 of the Rules of Court filed on 26 March
2008 before the Court of Appeals,27 herein petitioner alleged that the Pasay City trial court
acted without or in excess of jurisdiction or with grave abuse of discretion amounting to lack or
excess of jurisdiction when it dismissed the case of bigamy and denied her motion for
reconsideration.
In its Resolution of 29 April 2008, the Court of Appeals dismissed the petition stating that:
The present petition xxx is fatally infirm in form and substance for the following reasons:
1. The verification is defective as it does not include the assurance that the
allegations in the petition are based on authentic records.
2. Since the petition assails the trial court’s dismissal of the criminal information for
bigamy filed against private respondent Leo Beronilla, the petition, if at all warranted,
should be filed in behalf of the People of the Philippines by the Office of the Solicitor
General, being its statutory counsel in all appealed criminal cases.
3. There is a violation of the rule on double jeopardy as the dismissal of the subject
criminal case is tantamount to an acquittal based on the trial court’s finding that the
first essential element of bigamy, which is a first valid marriage contracted by private
respondent is wanting. There is no clear showing in the petition that the dismissal was
tainted with arbitrariness which violated petitioner’s right to due process. Notably,
petitioner filed her comment/opposition to private respondent’s motion to quash
before the trial court issued its Order dated September 20, 2007 dismissing the
information. Hence, if there is no denial of due process, there can be no grave abuse
of discretion that would merit the application of the exception to the double jeopardy
rule. 28
On 18 July 2008, the Court of Appeals denied respondent’s Motion for Reconsideration of the
aforequoted Resolution for lack of merit. 29
Hence, this petition.30
Our Ruling
I
14
We are convinced that this petition should be given due course despite the defect in the
pleading and the question of legal standing to bring the action.
The Rules of Court provides that a pleading required to be verified which lacks a proper
verification shall be treated as unsigned pleading.31
This, notwithstanding, we have, in a number of cases, opted to relax the rule in order that the
ends of justice may be served.32 The defect being merely formal and not jurisdictional, we
ruled that the court may nevertheless order the correction of the pleading, or even act on the
pleading "if the attending circumstances are such that xxx strict compliance with the rule may
be dispensed with in order that the ends of justice xxx may be served." 33 At any rate, a
pleading is required to be verified only to ensure that it was prepared in good faith, and that the
allegations were true and correct and not based on mere speculations.34
There is likewise no dispute that it is the Office of the Solicitor General (OSG) which has the
authority to represent the government in a judicial proceeding before the Court of Appeals. The
Administrative Code specifically defined its powers and functions to read, among others:
Sec. 35. Powers and Functions. - The Office of the Solicitor General shall 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. xxx It shall
have the following specific powers and functions:
(1) Represent the Government in the Supreme Court and the Court of Appeals in all criminal
proceedings; represent the Government and its officers in the Supreme Court, Court of
Appeals, and all other courts or tribunals in all civil actions and special proceedings in which
the Government or any officer thereof in his official capacity is a party. 35
As an exception to this rule, the Solicitor General is allowed to:
(8) Deputize legal officers of government departments, bureaus, agencies and offices to assist
the Solicitor General and appear or represent the Government in cases involving their
respective offices, brought before the courts and exercise supervision and control over such
legal officers with respect to such cases.36
Thus, in Republic v. Partisala,37 we held that the summary dismissal of an action in the name
of the Republic of the Philippines, when not initiated by the Solicitor General, is in order.38 Not
even the appearance of the conformity of the public prosecutor in a petition for certiorari would
suffice because the authority of the City Prosecutor or his assistant to represent the People of
the Philippines is limited to the proceedings in the trial court. 39
We took exceptions, however, and gave due course to a number of actions even when the
respective interests of the government were not properly represented by the Office of the
Solicitor General.
In Labaro v. Panay,40 this Court dealt with a similar defect in the following manner:
It must, however, be stressed that if the public prosecution is aggrieved by any order or ruling
of the trial judge in a criminal case, the OSG, and not the prosecutor, must be the one to
question the order or ruling before us.41 xxx
Nevertheless, since the challenged order affects the interest of the State or the plaintiff People
of the Philippines, we opted not to dismiss the petition on this technical ground. Instead, we
required the OSG to comment on the petition, as we had done before in some cases. 42 In light
of its Comment, we rule that the OSG has ratified and adopted as its own the instant petition
for the People of the Philippines. (Emphasis supplied.)
In Cooperative Development Authority v. Dolefil Agrarian Reform Beneficiaries Cooperative,
Inc.,43 without requiring the Office of the Solicitor General to file a comment on the petition, this
Court determined the merits of the case involving a novel issue on the nature and scope of
jurisdiction of the Cooperative Development Authority to settle cooperative disputes as well as
the battle between two (2) factions concerning the management of the Dolefil Agrarian Reform
Beneficiaries Cooperative, Inc. (DARBCI) "that inevitably threatens the very existence of one of
the country’s major cooperatives."44
And, lest we defeat the ends of justice, we opt to look into the merit of the instant petition even
absent the imprimatur of the Solicitor General. After all, "for justice to prevail, the scales must
balance, for justice is not to be dispensed for the accused alone." 45 To borrow the words of
then Justice Minita V. Chico-Nazario in another case where the dismissal of a criminal case
pending with the trial court was sought:
[T]he task of the pillars of the criminal justice system is to preserve our democratic society
under the rule of law, ensuring that all those who [come or are brought to court] are afforded a
fair opportunity to present their side[s]. xxx The State, like any other litigant, is entitled to its
day in court, and to a reasonable opportunity to present its case. 46
II
We cannot agree with the Court of Appeals that the filing of this petition is in violation of the
respondent’s right against double jeopardy on the theory that he has already been practically
acquitted when the trial court quashed the Information.
Well settled is the rule that for jeopardy to attach, the following requisites must concur:
15
(1) there is a complaint or information or other formal charge sufficient in form and substance
to sustain a conviction; (2) the same is filed before a court of competent jurisdiction; (3) there is
a valid arraignment or plea to the charges; and (4) the accused is convicted or acquitted or the
case is otherwise dismissed or terminated without his express consent. 47
The third and fourth requisites are clearly wanting in the instant case as (a) respondent has not
yet entered his plea to the charge when he filed the Motion to Quash the Information, and (2)
the case was dismissed not merely with his consent but, in fact, at his instance. 48
We reiterate, time and again, that jeopardy does not attach in favor of the accused on account
of an order sustaining a motion to quash.49 More specifically, the granting of a motion to quash
anchored on the ground that the facts charged do not constitute an offense is "not a bar to
another prosecution for the same offense."50 Thus:
It will be noted that the order sustaining the motion to quash the complaint against petitioner
was based on Subsection (a) of Section 2 of Rule 117 of the Rules of Court – that the facts
charged in the complaint do not constitute an offense. If this is so then the dismissal of said
complaint will not be a bar to another prosecution for the same offense, for it is provided in
Section 8 of Rule 117 of the Rules of Court [now Section 6 of the 2000 Rules of Criminal
Procedure] that an order sustaining the motion to quash is not a bar to another prosecution for
the same offense unless the motion was based on the grounds specified in Section 2,
Subsection[s] (f) and (h) of this rule [now substantially reproduced in Section 3, Subsections
(g) and (i) of the 2000 Rules of Criminal Procedure] xxx.51
III
We now determine the merit of the petition ˗ did the trial court act without or in excess of
jurisdiction or grave abuse of discretion when it sustained respondent’s motion to quash on the
basis of a fact contrary to those alleged in the information?
Petitioner maintains that the trial court did so because the motion was a hypothetical
admission of the facts alleged in the information and any evidence contrary thereto can only be
presented as a matter of defense during trial.
Consistent with existing jurisprudence, we agree with the petitioner.
We define a motion to quash an Information as ˗
the mode by which an accused assails the validity of a criminal complaint or Information filed
against him for insufficiency on its face in point of law, or for defects which are apparent in the
face of the Information.52
This motion is "a hypothetical admission of the facts alleged in the Information," 53 for which
reason, the court cannot consider allegations contrary to those appearing on the face of the
information.54
As further elucidated in Cruz, Jr. v. Court of Appeals: 55
It is axiomatic that a complaint or information must state every single fact necessary to
constitute the offense charged; otherwise, a motion to dismiss/quash on the ground that it
charges no offense may be properly sustained. The fundamental test in considering a motion
to quash on this ground is whether the facts alleged, if hypothetically admitted, will establish
the essential elements of the offense as defined in the law.
Contrary to the petitioner’s contention, a reading of the information will disclose that the
essential elements of the offense charged are sufficiently alleged. It is not proper therefore to
resolve the charges at the very outset, in a preliminary hearing only and without the benefit of
a full-blown trial. The issues require a fuller examination. Given the circumstances of this case,
we feel it would be unfair to shut off the prosecution at this stage of the proceedings and to
dismiss the informations on the basis only of the petitioner’s evidence, such as [this]. 56
As in the recent case of Los Baños v. Pedro,57 where we found no merit in respondent’s
allegation that the facts charged do not constitute an offense because "the Information duly
charged a specific offense and provide[d] the details on how the offense was committed," 58 we
see no apparent defect in the allegations in the Information in the case at bar. Clearly, the facts
alleged in its accusatory portion, which reads:
That on or about the 16th day of February, 1991, in Pasay City, Metro Manila, Philippines and
within the jurisdiction of this Honorable Court, the above-named accused, LEO R.
BERONILLA, having been united in a lawful marriage with one MYRNA A. BERONILLA, which
marriage is still in force and subsisting and without having been legally dissolved, did then and
there willfully, unlawfully and feloniously contract a second marriage with one Cecile Maguillo,
which subsequent marriage of the accused has all the essential requisites for validity. 59
sufficiently constitute an offense. It contained all the elements of the crime of Bigamy under
Article 349 of the Revised Penal Code hereunder enumerated:
(1) that the offender has been legally married;
(2) that the first marriage has not been legally dissolved or, in case his or her spouse
is absent, the absent spouse could not yet be presumed dead according to the Civil
Code;
(3) that he contracts a second or subsequent marriage; and
16
(4) that the second or subsequent marriage has all the essential requisites for
validity.60
The documents showing that: (1) the court has decreed that the marriage of petitioner and
respondent is null and void from the beginning; and (2) such judgment has already become
final and executory and duly registered with the Municipal Civil Registrar of Naval, Biliran are
pieces of evidence that seek to establish a fact contrary to that alleged in the Information ˗ that
a first valid marriage was subsisting at the time the respondent contracted a subsequent
marriage. This should not have been considered at all because matters of defense cannot be
raised in a motion to quash.
Neither do we find a justifiable reason for sustaining the motion to quash even after taking into
consideration the established exceptions to the rule earlier recognized by this Court, among
others: (1) when the new allegations are admitted by the prosecution; 61 (2) when the Rules so
permit, such as upon the grounds of extinction of criminal liability and double jeopardy; 62 and
(3) when facts have been established by evidence presented by both parties which destroyed
the prima facie truth of the allegations in the information during the hearing on a motion to
quash based on the ground that the facts charged do not constitute an offense, and "it would
be pure technicality for the court to close its eyes to said facts and still give due course to the
prosecution of the case already shown to be weak even to support possible conviction xxx." 63
For of what significance would the document showing the belated dissolution of the first
marriage offer? Would it serve to prevent the impracticability of proceeding with the trial in
accordance with People v. dela Rosa thereby warranting the non-observance of the settled
rule that a motion to quash is a hypothetical admission of the facts alleged in the information?
We quote:
[W]here in the hearing on a motion to quash predicated on the ground that the allegations of
the information do not charge an offense, facts have been brought out by evidence presented
by both parties which destroy the prima facie truth accorded to the allegations of the
information on the hypothetical admission thereof, as is implicit in the nature of the ground of
the motion to quash, it would be pure technicality for the court to close its eyes to said facts
and still give due course to the prosecution of the case already shown to be weak even to
support possible conviction, and hold the accused to what would clearly appear to be a merely
vexatious and expensive trial, on her part, and a wasteful expense of precious time on the part
of the court, as well as of the prosecution.64 (Emphasis supplied.)
We find that there is none.
With the submission of the documents showing that the court has declared the first marriage
void ab initio, respondent heavily relied on the rulings 65 in People v. Mendoza and Morigo
declaring that: (a) a case for bigamy based on a void ab initio marriage will not prosper
because there is no need for a judicial decree to establish that a void ab initio marriage is
invalid;66 and (b) a marriage declared void ab initio has retroactive legal effect such that there
would be no first valid marriage to speak of after all, which renders the elements of bigamy
incomplete.67
Both principles, however, run contrary to the new provision of the Family Code, which was
promulgated by the late President Corazon C. Aquino in 1987, a few years before
respondent’s subsequent marriage was celebrated in 1991.
The specific provision, which reads:
ART. 40. The absolute nullity of a previous marriage may be invoked for purposes of
remarriage on the basis solely of a final judgment declaring such marriage void.
was exhaustively discussed in Mercado,68 where this Court settled the "conflicting"
jurisprudence on "the need for a judicial declaration of nullity of the previous marriage." After
establishing that Article 40 is a new provision expressly requiring a judicial declaration of nullity
of a prior marriage and examining a long line of cases, 69 this Court, concluded, in essence,
that under the Family Code a subsequent judicial declaration of the nullity of the first marriage
is immaterial in a bigamy case because, by then, the crime had already been consummated.
Otherwise stated, this Court declared that a person, who contracts a subsequent marriage
absent a prior judicial declaration of nullity of a previous one, is guilty of bigamy. 70
Notably, Morigo, was indeed promulgated years after Mercado. Nevertheless, we cannot
uphold the Order dated 6 December 2007 of the trial court, which maintained that Morigo has
already superseded Mercado. In fact, in Morigo, this Court clearly distinguished the two (2)
cases from one another, and explained:
The present case is analogous to, but must be distinguished from Mercado v. Tan. In the latter
case, the judicial declaration of nullity of the first marriage was likewise obtained after the
second marriage was already celebrated. xxx
It bears stressing though that in Mercado, the first marriage was actually solemnized xxx.
Ostensibly, at least, the first marriage appeared to have transpired, although later declared
void ab initio.
In the instant case, however, no marriage ceremony at all was performed by a duly authorized
solemnizing officer. Petitioner and Lucia Barrete merely signed a marriage contract on their
own. The mere private act of signing a marriage contract bears no semblance to a valid
marriage and thus, needs no judicial declaration of nullity. Such act alone, without more,
cannot be deemed to constitute an ostensibly valid marriage for which petitioner might be held
liable for bigamy unless he first secures a judicial declaration of nullity before he contracts a
subsequent marriage.71
17
The application of Mercado to the cases following Morigo even reinforces the position of this
Court to give full meaning to Article 40 of the Family Code. Thus, in 2004, this Court ruled in
Tenebro v. Court of Appeals:72
Although the judicial declaration of the nullity of a marriage on the ground of psychological
incapacity retroacts to the date of the celebration of the marriage insofar as the vinculum
between the spouses is concerned, xxx said marriage is not without legal
effects.1avvphil.zw+ Among these effects is that children conceived or born before the
judgment of absolute nullity of the marriage shall be considered legitimate. There is therefore a
recognition written into the law itself that such a marriage, although void ab initio, may still
produce legal consequences. Among these legal consequences is incurring criminal liability for
bigamy. xxx.73 (Emphasis supplied.)
Finally, in Re: Complaint of Mrs. Corazon S. Salvador against Spouses Noel and Amelia
Serafico,74 this Court pronounced:
In a catena of cases,75 the Court has consistently held that a judicial declaration of nullity is
required before a valid subsequent marriage can be contracted; or else, what transpires is a
bigamous marriage, reprehensible and immoral. xxx
To conclude, the issue on the declaration of nullity of the marriage between petitioner and
respondent only after the latter contracted the subsequent marriage is, therefore, immaterial
for the purpose of establishing that the facts alleged in the information for Bigamy does not
constitute an offense. Following the same rationale, neither may such defense be interposed
by the respondent in his motion to quash by way of exception to the established rule that facts
contrary to the allegations in the information are matters of defense which may be raised only
during the presentation of evidence.
All considered, we find that the trial court committed grave abuse of discretion when, in so
quashing the Information in Criminal Case No. 07-0907-CFM, it considered an evidence
introduced to prove a fact not alleged thereat disregarding the settled rules that a motion to
quash is a hypothetical admission of the facts stated in the information; and that facts not
alleged thereat may be appreciated only under exceptional circumstances, none of which is
obtaining in the instant petition.
WHEREFORE, the Orders dated 20 September 2007 and 6 December 2007 of the Regional
Trial Court, Branch 115, Pasay City as well as the Resolutions dated 29 April 2008 and 18 July
2008 of the Court of Appeals are hereby SET ASIDE. Criminal Case No. 07-0907-CFM is
REMANDED to the trial court for further proceedings.
SO ORDERED.
G.R. No. 172060 September 13, 2010
JOSELITO R. PIMENTEL, Petitioner,
vs.
MARIA CHRYSANTINE L. PIMENTEL and PEOPLE OF THE PHILIPPINES, Respondents.
DECISION
CARPIO, J.:
The Case
Before the Court is a petition for review1 assailing the Decision2 of the Court of Appeals,
promulgated on 20 March 2006, in CA-G.R. SP No. 91867.
The Antecedent Facts
The facts are stated in the Court of Appeals’ decision:
On 25 October 2004, Maria Chrysantine Pimentel y Lacap (private respondent) filed an action
for frustrated parricide against Joselito R. Pimentel (petitioner), docketed as Criminal Case No.
Q-04-130415, before the Regional Trial Court of Quezon City, which was raffled to Branch 223
(RTC Quezon City).
On 7 February 2005, petitioner received summons to appear before the Regional Trial Court of
Antipolo City, Branch 72 (RTC Antipolo) for the pre-trial and trial of Civil Case No. 04-7392
(Maria Chrysantine Lorenza L. Pimentel v. Joselito Pimentel) for Declaration of Nullity of
Marriage under Section 36 of the Family Code on the ground of psychological incapacity.
On 11 February 2005, petitioner filed an urgent motion to suspend the proceedings before the
RTC Quezon City on the ground of the existence of a prejudicial question. Petitioner asserted
that since the relationship between the offender and the victim is a key element in parricide,
the outcome of Civil Case No. 04-7392 would have a bearing in the criminal case filed against
him before the RTC Quezon City.
The Decision of the Trial Court
The RTC Quezon City issued an Order dated 13 May 2005 3 holding that the pendency of the
case before the RTC Antipolo is not a prejudicial question that warrants the suspension of the
criminal case before it. The RTC Quezon City held that the issues in Criminal Case No. Q-04-
18
130415 are the injuries sustained by respondent and whether the case could be tried even if
the validity of petitioner’s marriage with respondent is in question. The RTC Quezon City ruled:
WHEREFORE, on the basis of the foregoing, the Motion to Suspend Proceedings On the
[Ground] of the Existence of a Prejudicial Question is, for lack of merit, DENIED.
SO ORDERED.4
Petitioner filed a motion for reconsideration. In its 22 August 2005 Order, 5 the RTC Quezon
City denied the motion.
Petitioner filed a petition for certiorari with application for a writ of preliminary injunction and/or
temporary restraining order before the Court of Appeals, assailing the 13 May 2005 and 22
August 2005 Orders of the RTC Quezon City.
The Decision of the Court of Appeals
In its 20 March 2006 Decision, the Court of Appeals dismissed the petition. The Court of
Appeals ruled that in the criminal case for frustrated parricide, the issue is whether the offender
commenced the commission of the crime of parricide directly by overt acts and did not perform
all the acts of execution by reason of some cause or accident other than his own spontaneous
desistance. On the other hand, the issue in the civil action for annulment of marriage is
whether petitioner is psychologically incapacitated to comply with the essential marital
obligations. The Court of Appeals ruled that even if the marriage between petitioner and
respondent would be declared void, it would be immaterial to the criminal case because prior
to the declaration of nullity, the alleged acts constituting the crime of frustrated parricide had
already been committed. The Court of Appeals ruled that all that is required for the charge of
frustrated parricide is that at the time of the commission of the crime, the marriage is still
subsisting.
Petitioner filed a petition for review before this Court assailing the Court of Appeals’ decision.
The Issue
The only issue in this case is whether the resolution of the action for annulment of marriage is
a prejudicial question that warrants the suspension of the criminal case for frustrated parricide
against petitioner.
The Ruling of this Court
The petition has no merit.
 Civil Case Must be Instituted
Before the Criminal Case
Section 7, Rule 111 of the 2000 Rules on Criminal Procedure6 provides:
Section 7. Elements of Prejudicial Question. - The elements of a prejudicial question are: (a)
the previously instituted civil action involves an issue similar or intimately related to the issue
raised in the subsequent criminal action and (b) the resolution of such issue determines
whether or not the criminal action may proceed.
The rule is clear that the civil action must be instituted first before the filing of the criminal
action. In this case, the Information7 for Frustrated Parricide was dated 30 August 2004. It was
raffled to RTC Quezon City on 25 October 2004 as per the stamped date of receipt on the
Information. The RTC Quezon City set Criminal Case No. Q-04-130415 for pre-trial and trial on
14 February 2005. Petitioner was served summons in Civil Case No. 04-7392 on 7 February
2005.8 Respondent’s petition9 in Civil Case No. 04-7392 was dated 4 November 2004 and was
filed on 5 November 2004. Clearly, the civil case for annulment was filed after the filing of the
criminal case for frustrated parricide. As such, the requirement of Section 7, Rule 111 of the
2000 Rules on Criminal Procedure was not met since the civil action was filed subsequent to
the filing of the criminal action.
Annulment of Marriage is not a Prejudicial Question
in Criminal Case for Parricide
Further, the resolution of the civil action is not a prejudicial question that would warrant the
suspension of the criminal action.
There is a prejudicial question when a civil action and a criminal action are both pending, and
there exists in the civil action an issue which must be preemptively resolved before the criminal
action may proceed because howsoever the issue raised in the civil action is resolved would
be determinative of the guilt or innocence of the accused in the criminal case. 10 A prejudicial
question is defined as:
x x x one that arises in a case the resolution of which is a logical antecedent of the issue
involved therein, and the cognizance of which pertains to another tribunal. It is a question
based on a fact distinct and separate from the crime but so intimately connected with it that it
determines the guilt or innocence of the accused, and for it to suspend the criminal action, it
must appear not only that said case involves facts intimately related to those upon which the
criminal prosecution would be based but also that in the resolution of the issue or issues raised
in the civil case, the guilt or innocence of the accused would necessarily be determined. 11
19
The relationship between the offender and the victim is a key element in the crime of
parricide,12 which punishes any person "who shall kill his father, mother, or child, whether
legitimate or illegitimate, or any of his ascendants or descendants, or his spouse." 13 The
relationship between the offender and the victim distinguishes the crime of parricide from
murder14 or homicide.15 However, the issue in the annulment of marriage is not similar or
intimately related to the issue in the criminal case for parricide. Further, the relationship
between the offender and the victim is not determinative of the guilt or innocence of the
accused.
The issue in the civil case for annulment of marriage under Article 36 of the Family Code is
whether petitioner is psychologically incapacitated to comply with the essential marital
obligations. The issue in parricide is whether the accused killed the victim. In this case, since
petitioner was charged with frustrated parricide, the issue is whether he performed all the acts
of execution which would have killed respondent as a consequence but which, nevertheless,
did not produce it by reason of causes independent of petitioner’s will. 16 At the time of the
commission of the alleged crime, petitioner and respondent were married. The subsequent
dissolution of their marriage, in case the petition in Civil Case No. 04-7392 is granted, will have
no effect on the alleged crime that was committed at the time of the subsistence of the
marriage. In short, even if the marriage between petitioner and respondent is annulled,
petitioner could still be held criminally liable since at the time of the commission of the alleged
crime, he was still married to respondent.1avvphi1
We cannot accept petitioner’s reliance on Tenebro v. Court of Appeals17 that "the judicial
declaration of the nullity of a marriage on the ground of psychological incapacity retroacts to
the date of the celebration of the marriage insofar as the vinculum between the spouses is
concerned x x x." First, the issue in Tenebro is the effect of the judicial declaration of nullity of
a second or subsequent marriage on the ground of psychological incapacity on a criminal
liability for bigamy. There was no issue of prejudicial question in that case. Second, the Court
ruled in Tenebro that "[t]here is x x x a recognition written into the law itself that such a
marriage, although void ab initio, may still produce legal consequences."18 In fact, the Court
declared in that case that "a declaration of the nullity of the second marriage on the ground of
psychological incapacity is of absolutely no moment insofar as the State’s penal laws are
concerned."19
In view of the foregoing, the Court upholds the decision of the Court of Appeals. The trial in
Criminal Case No. Q-04-130415 may proceed as the resolution of the issue in Civil Case No.
04-7392 is not determinative of the guilt or innocence of petitioner in the criminal case.
WHEREFORE, we DENY the petition. We AFFIRM the 20 March 2006 Decision of the Court
of Appeals in CA-G.R. SP No. 91867.
SO ORDERED.
G.R. No. 191566 July 17, 2013
PEOPLE OF PHILIPPINES, Petitioner,
vs.
EDGARDO V. ODTUHAN, Respondent.
DECISION
PERALTA, J.:
This is a petition for review on certiorari under Rule 45 of the Rules of Court filed by petitioner
People of the Philippines, represented by the Office of the Solicitor General, against
respondent Edgardo V. Odtuhan assailing the Court of Appeals Decision 1 dated December 17,
2009 and Resolution2 dated March 4, 2010 in CA-G.R. SP No. 108616. The assailed decision
granted the petition for certiorari filed by respondent, and ordered the Regional Trial Court
(RTC) of Manila, Branch 27, to give due course to and receive evidence on respondent's
motion to quash and resolve the case with dispatch, while the assailed resolution denied
petitioner's motion for reconsideration.
The facts of the case follow:
On July 2, 1980, respondent married Jasmin Modina (Modina). 3 On October 28, 1993,
respondent married Eleanor A. Alagon (Alagon).4 Sometime in August 1994, he filed a petition
for annulment of his marriage with Modina.5 On February 23, 1999, the RTC of Pasig City,
Branch 70 granted respondent’s petition and declared his marriage with Modina void ab initio
for lack of a valid marriage license.6 On November 10, 2003, Alagon died. In the meantime, in
June 2003, private complainant Evelyn Abesamis Alagon learned of respondent’s previous
marriage with Modina.7 She thus filed a Complaint-Affidavit8 charging respondent with Bigamy.
On April 15, 2005, respondent was indicted in an Information 9 for Bigamy committed as
follows:
That on or about October 28, 1993, in the City of Manila, Philippines, the said accused being
then legally married to JASMIN MODINA and without such marriage having been legally
dissolved, did then and there willfully, unlawfully and feloniously contract a second or
subsequent marriage with ELEANOR A. ALAGON, which second/subsequent marriage has all
the essential requisites for validity.
Contrary to law.10
20
On February 5, 2008, respondent filed an Omnibus Motion 11 praying that he be allowed to
present evidence to support his motion; that his motion to quash be granted; and that the case
be dismissed. Respondent moved for the quashal of the information on two grounds, to wit: (1)
that the facts do not charge the offense of bigamy; and (2) that the criminal action or liability
has been extinguished.12
On September 4, 2008, the RTC13 issued an Order14 denying respondent’s Omnibus Motion.
The RTC held that the facts alleged in the information – that there was a valid marriage
between respondent and Modina and without such marriage having been dissolved,
respondent contracted a second marriage with Alagon – constitute the crime of bigamy. The
trial court further held that neither can the information be quashed on the ground that criminal
liability has been extinguished, because the declaration of nullity of the first marriage is not one
of the modes of extinguishing criminal liability. Respondent’s motion for reconsideration was
likewise denied in an Order15 dated February 20, 2009.
Aggrieved, respondent instituted a special civil action on certiorari under Rule 65 of the Rules
of Court16 before the CA, assailing the denial of his motion to quash the information despite the
fact that his first marriage with Modina was declared null and void ab initio prior to the filing of
the bigamy case.17
On December 17, 2009, the CA rendered the assailed decision, the dispositive portion of
which reads:
WHEREFORE, premises considered, the instant petition for certiorari is hereby GRANTED.
The RTC, Branch 27, Manila is hereby ordered to give due course to and receive evidence on
the petitioner’s motion to quash and resolve the case with dispatch.
SO ORDERED.18
The CA applied the conclusion made by the Court in Morigo v. People,19 and held that there is
cogent basis in looking into the motion to quash filed by respondent, for if the evidence would
establish that his first marriage was indeed void ab initio, one essential element of the crime of
bigamy would be lacking.20 The appellate court further held that respondent is even better off
than Morigo which thus calls for the application of such doctrine, considering that respondent
contracted the second marriage after filing the petition for the declaration of nullity of his first
marriage and he obtained the favorable declaration before the complaint for bigamy was filed
against him.21 The CA thus concluded that the RTC gravely abused its discretion in denying
respondent’s motion to quash the information, considering that the facts alleged in the
information do not charge an offense.22
With the denial of the motion for reconsideration before the CA, petitioner filed a petition before
the Court in this petition for review on certiorari under Rule 45 of the Rules of Court based on
the following grounds:
THE COURT OF APPEALS COMMITTED REVERSIBLE ERROR WHEN IT RENDERED ITS
DECISION DATED DECEMBER 17, 2009 GRANTING RESPONDENT’S PETITION FOR
CERTIORARI AND THE RESOLUTION DATED MARCH 4, 2010 DENYING PETITIONER’S
MOTION FOR RECONSIDERATION, CONSIDERING THAT:
I.
THE INFORMATION CHARGING RESPONDENT OF BIGAMY SUFFICIENTLY ALLEGES
ALL THE ELEMENTS CONSTITUTING SAID OFFENSE.
II.
THE SUBSEQUENT COURT JUDGMENT DECLARING RESPONDENT’S FIRST MARRIAGE
VOID AB INITIO DID NOT EXTINGUISH RESPONDENT’S CRIMINAL LIABILITY WHICH
ALREADY ATTACHED PRIOR TO SAID JUDGMENT.23
The petition is meritorious.
The issues are not novel and have been squarely ruled upon by this Court in Montañez v.
Cipriano,24 Teves v. People,25 and Antone v. Beronilla.26
In Montañez, respondent Cipriano married Socrates in April 1976, but during the subsistence
of their marriage on January 24, 1983, respondent married Silverio. In 2001, respondent filed a
petition for the annulment of her marriage with Socrates on the ground of psychological
incapacity which was granted on July 18, 2003. On May 14, 2004, petitioner filed a complaint
for bigamy against respondent. The latter, however, moved for the quashal of the information
and dismissal of the criminal complaint alleging that her first marriage had already been
declared void ab initio prior to the filing of the bigamy case.
In Teves, petitioner married Thelma on November 26, 1992. During the subsistence of their
marriage on December 10, 2001, he again married Edita. On May 4, 2006, petitioner obtained
a declaration of her marriage with Thelma null and void on the ground that the latter is
physically incapacitated to comply with her marital obligations. On June 8, 2006, an
Information for Bigamy was filed against petitioner. The court eventually convicted petitioner of
the crime charged.
21
In Antone, petitioner married respondent in 1978, but during the subsistence of their marriage,
respondent contracted a second marriage in 1991. On April 26, 2007, respondent obtained a
declaration of nullity of her first marriage which decision became final and executory on May
15, 2007. On June 21, 2007, the prosecution filed an information for bigamy against
respondent which the latter sought to be quashed on the ground that the facts charged do not
constitute an offense.
The present case stemmed from similar procedural and factual antecedents as in the above
cases. As in Antone and Montañez, respondent moved to quash the information on the
grounds that the facts do not charge the offense of bigamy and that his criminal liability has
been extinguished both because of the declaration of nullity of the first marriage. The RTC
refused to quash the information. On petition for certiorari, the CA, however, reached a
different conclusion.
As defined in Antone, "a motion to quash information is the mode by which an accused assails
the validity of a criminal complaint or information filed against him for insufficiency on its face in
point of law, or for defects which are apparent in the face of the information." It is a
hypothetical admission of the facts alleged in the information. The fundamental test in
determining the sufficiency of the material averments in an Information is whether or not the
facts alleged therein, which are hypothetically admitted, would establish the essential elements
of the crime defined by law. Evidence aliunde or matters extrinsic of the information are not to
be considered.27 To be sure, a motion to quash should be based on a defect in the information
which is evident on its fact.28 Thus, if the defect can be cured by amendment or if it is based on
the ground that the facts charged do not constitute an offense, the prosecution is given by the
court the opportunity to correct the defect by amendment. 29 If the motion to quash is sustained,
the court may order that another complaint or information be filed30 except when the
information is quashed on the ground of extinction of criminal liability or double jeopardy.31
An examination of the information filed against respondent, however, shows the sufficiency of
the allegations therein to constitute the crime of bigamy as it contained all the elements of the
crime as provided for in Article 34932 of the Revised Penal Code, to wit:
(1) That the offender has been legally married;
(2) That the first marriage has not been legally dissolved or, in case his or her spouse
is absent, the absent spouse could not yet be presumed dead according to the Civil
Code;
(3) That he contracts a second or subsequent marriage; and
(4) That the second or subsequent marriage has all the essential requisites for
validity.33
Here, the information contained the following allegations: (1) that respondent is legally married
to Modina; (2) that without such marriage having been legally dissolved; (3) that respondent
willfully, unlawfully, and feloniously contracted a second marriage with Alagon; and (4) that the
second marriage has all the essential requisites for validity. Respondent’s evidence showing
the court’s declaration that his marriage to Modina is null and void from the beginning because
of the absence of a marriage license is only an evidence that seeks to establish a fact contrary
to that alleged in the information that a first valid marriage was subsisting at the time he
contracted the second marriage. This should not be considered at all, because matters of
defense cannot be raised in a motion to quash.34 It is notproper, therefore, to resolve the
charges at the very outset without the benefit of a full blown trial. The issues require a fuller
examination and it would be unfair to shut off the prosecution at this stage of the proceedings
and to quash the information on the basis of the document presented by respondent. 35 With
the presentation of the court decree, no facts have been brought out which destroyed the
prima facie truth accorded to the allegations of the information on the hypothetical admission
thereof.
Respondent’s motion to quash was founded on the trial court’s declaration that his marriage
with Modina is null and void ab initio. He claims that with such declaration, one of the elements
of the crime is wanting. Thus, the allegations in the information do not charge the offense of
bigamy, or at the very least, such court decree extinguished his criminal liability. Both
respondent and the CA heavily relied on the Court’s pronouncement in Morigo v.
People36 where the accused therein was acquitted because the elements of the crime of
bigamy were incomplete. In said case, the first marriage was declared null and void, because
the parties only signed the marriage contract without the presence of a solemnizing officer.
Considering, therefore, that the declaration of nullity retroacts to the date of the first marriage,
the Court held that there was no marriage to speak of when the accused contracted the
second marriage. Logically, the accused was acquitted.
The Family Code has settled once and for all the conflicting jurisprudence on the
matter.1âwphi1 A declaration of the absolute nullity of a marriage is now explicitly required
either as a cause of action or a ground for defense.37 It has been held in a number of cases
that a judicial declaration of nullity is required before a valid subsequent marriage can be
contracted; or else, what transpires is a bigamous marriage, reprehensible and immoral. 38
What makes a person criminally liable for bigamy is when he contracts a second or
subsequent marriage during the subsistence of a valid marriage. 39 Parties to the marriage
should not be permitted to judge for themselves its nullity, for the same must be submitted to
the judgment of 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.40 If we allow
respondent’s line of defense and the CA’s ratiocination, a person who commits bigamy can
simply evade prosecution by immediately filing a petition for the declaration of nullity of his
22
earlier marriage and hope that a favorable decision is rendered therein before anyone
institutes a complaint against him.41
Respondent, likewise, claims that there are more reasons to quash the information against
him, because he obtained the declaration of nullity of marriage before the filing of the
complaint for bigamy against him. Again, we cannot sustain such contention. In addition to the
discussion above, settled is the rule that criminal culpability attaches to the offender upon the
commission of the offense and from that instant, liability appends to him until extinguished as
provided by law and that the time of filing of the criminal complaint or information is material
only for determining prescription.42
Thus, as held in Antone:
To conclude, the issue on the declaration of nullity of the marriage between petitioner and
respondent only after the latter contracted the subsequent marriage is, therefore, immaterial
for the purpose of establishing that the facts alleged in the information for Bigamy does not
constitute an offense. Following the same rationale, neither may such defense be interposed
by the respondent in his motion to quash by way of exception to the established rule that facts
contrary to the allegations in the information are matters of defense which may be raised only
during the presentation of evidence.43
In view of the foregoing, the CA erred in granting the petition for certiorari filed by respondent.
The RTC did not commit grave abuse of discretion in denying his motion to quash and to allow
him to present evidence to support his omnibus motion.
WHEREFORE, the petition is hereby GRANTED. The Court of Appeals Decision dated
December 17, 2009 and Resolution dated March 4, 2010 in CA-G.R. SP No. 108616 are SET
ASIDE. Criminal Case No. 05-235814 is REMANDED to the Regional Trial Court of Manila,
Branch 27 for further proceedings.
SO ORDERED.
F.DAMAGES
G.R. No. 127406 November 27, 2000
OFELIA P. TY, petitioner,
vs.
THE COURT OF APPEALS, and EDGARDO M. REYES, respondents.
DECISION
QUISUMBING, J.:
This appeal seeks the reversal of the decision dated July 24, 1996, of the Court of Appeals in
C.A. – G.R. CV 37897, which affirmed the decision of the Regional Trial Court of Pasig,
Branch 160, declaring the marriage contract between private respondent Edgardo M. Reyes
and petitioner Ofelia P. Ty null and void ab initio. It also ordered private respondent to pay
P15,000.00 as monthly support for their children Faye Eloise Reyes and Rachel Anne Reyes.
As shown in the records of the case, private respondent married Anna Maria Regina
Villanueva in a civil ceremony on March 29, 1977, in Manila. Then they had a church wedding
on August 27, 1977. However, on August 4, 1980, the Juvenile and Domestic Relations Court
of Quezon City declared their marriage null and void ab initio for lack of a valid marriage
license. The church wedding on August 27, 1977, was also declared null and void ab initio for
lack of consent of the parties.
Even before the decree was issued nullifying his marriage to Anna Maria, private respondent
wed Ofelia P. Ty, herein petitioner, on April 4, 1979, in ceremonies officiated by the judge of
the City Court of Pasay. On April 4, 1982, they also had a church wedding in Makati, Metro
Manila.
On January 3, 1991, private respondent filed a Civil Case 1853-J with the RTC of Pasig,
Branch 160, praying that his marriage to petitioner be declared null and void. He alleged that
they had no marriage license when they got married. He also averred that at the time he
married petitioner, he was still married to Anna Maria. He stated that at the time he married
petitioner the decree of nullity of his marriage to Anna Maria had not been issued. The decree
of nullity of his marriage to Anna Maria was rendered only on August 4, 1980, while his civil
marriage to petitioner took place on April 4, 1979.
Petitioner, in defending her marriage to private respondent, pointed out that his claim that their
marriage was contracted without a valid license is untrue. She submitted their Marriage
License No. 5739990 issued at Rosario, Cavite on April 3, 1979, as Exh. 11, 12 and 12-A. He
did not question this document when it was submitted in evidence. Petitioner also submitted
the decision of the Juvenile and Domestic Relations Court of Quezon City dated August 4,
1980, which declared null and void his civil marriage to Anna Maria Regina Villanueva
celebrated on March 29, 1977, and his church marriage to said Anna Maria on August 27,
1977. These documents were submitted as evidence during trial and, according to petitioner,
are therefore deemed sufficient proof of the facts therein. The fact that the civil marriage of
private respondent and petitioner took place on April 4, 1979, before the judgment declaring
his prior marriage as null and void is undisputed. It also appears indisputable that private
respondent and petitioner had a church wedding ceremony on April 4, 1982.1
The Pasig RTC sustained private respondent’s civil suit and declared his marriage to herein
petitioner null and void ab initio in its decision dated November 4, 1991. Both parties appealed
23
to respondent Court of Appeals. On July 24, 1996, the appellate court affirmed the trial court’s
decision. It ruled that a judicial declaration of nullity of the first marriage (to Anna Maria) must
first be secured before a subsequent marriage could be validly contracted. Said the appellate
court:
We can accept, without difficulty, the doctrine cited by defendant’s counsel that ‘no judicial
decree is necessary to establish the invalidity of void marriages.’ It does not say, however, that
a second marriage may proceed even without a judicial decree. While it is true that if a
marriage is null and void, ab initio, there is in fact no subsisting marriage, we are unwilling to
rule that the matter of whether a marriage is valid or not is for each married spouse to
determine for himself – for this would be the consequence of allowing a spouse to proceed to a
second marriage even before a competent court issues a judicial decree of nullity of his first
marriage. The results would be disquieting, to say the least, and could not have been the
intendment of even the now-repealed provisions of the Civil Code on marriage.
xxx
WHEREFORE, upon the foregoing ratiocination, We modify the appealed Decision in this wise:
1. The marriage contracted by plaintiff-appellant [herein private respondent] Eduardo
M. Reyes and defendant-appellant [herein petitioner] Ofelia P. Ty is declared null and
void ab initio;
2. Plaintiff-appellant Eduardo M. Reyes is ordered to give monthly support in the
amount of P15,000.00 to his children Faye Eloise Reyes and Rachel Anne Reyes
from November 4, 1991; and
3. Cost against plaintiff-appellant Eduardo M. Reyes.
SO ORDERED.2
Petitioner’s motion for reconsideration was denied. Hence, this instant petition asserting that
the Court of Appeals erred:
I.
BOTH IN THE DECISION AND THE RESOLUTION, IN REQUIRING FOR THE
VALIDITY OF PETITIONER’S MARRIAGE TO RESPONDENT, A JUDICIAL
DECREE NOT REQUIRED BY LAW.
II
 IN THE RESOLUTION, IN APPLYING THE RULING IN DOMINGO VS. COURT OF
APPEALS.
III
IN BOTH THE DECISION AND RESOLUTION IN NOT CONSIDERING THE CIVIL
EFFECTS OF THE RELIGIOUS RATIFICATION WHICH USED THE SAME
MARRIAGE LICENSE.
IV
IN THE DECISION NOT GRANTING MORAL AND EXEMPLARY DAMAGES TO
THE DEFENDANT-APPELLANT.
The principal issue in this case is whether the decree of nullity of the first marriage is required
before a subsequent marriage can be entered into validly? To resolve this question, we shall
go over applicable laws and pertinent cases to shed light on the assigned errors, particularly
the first and the second which we shall discuss jointly.
In sustaining the trial court, the Court of Appeals declared the marriage of petitioner to private
respondent null and void for lack of a prior judicial decree of nullity of the marriage between
private respondent and Villanueva. The appellate court rejected petitioner’s claim that People
v. Mendoza3 and People v. Aragon4 are applicable in this case. For these cases held that
where a marriage is void from its performance, no judicial decree is necessary to establish its
invalidity. But the appellate court said these cases, decided before the enactment of the Family
Code (E.O. No. 209 as amended by E.O No. 227), no longer control. A binding decree is now
needed and must be read into the provisions of law previously obtaining.5
In refusing to consider petitioner’s appeal favorably, the appellate court also said:
Terre v. Attorney Terre, Adm. Case No. 2349, 3 July 1992 is mandatory precedent for this
case. Although decided by the High Court in 1992, the facts situate it within the regime of the
now-repealed provisions of the Civil Code, as in the instant case.
xxx
For purposes of determining whether a person is legally free to contract a second marriage, a
judicial declaration that the first marriage was null and void ab initio is essential. . . .6
At the outset, we must note that private respondent’s first and second marriages contracted in
1977 and 1979, respectively, are governed by the provisions of the Civil Code. The present
24
case differs significantly from the recent cases of Bobis v. Bobis7 and Mercado v. Tan,8 both
involving a criminal case for bigamy where the bigamous marriage was contracted during the
effectivity of the Family Code,9 under which a judicial declaration of nullity of marriage is clearly
required.
Pertinent to the present controversy, Article 83 of the Civil Code provides that:
Art. 83. Any marriage subsequently contracted by any person during the lifetime of the first
spouse of such person with any person other than such first spouse shall be illegal and void
from its performance, unless:
(1) The first marriage was annulled or dissolved; or
(2) The first spouse had been absent for seven consecutive years at the time of the
second marriage without the spouse present having news of the absentee being
alive, or if the absentee, though he has been absent for less than seven years, is
generally considered as dead and before any person believed to be so by the spouse
present at the time of contracting such subsequent marriage, or if the absentee is
presumed dead according to articles 390 and 391. The marriage so contracted shall
be valid in any of the three cases until declared null and void by a competent court.
As to whether a judicial declaration of nullity of a void marriage is necessary, the Civil Code
contains no express provision to that effect. Jurisprudence on the matter, however, appears to
be conflicting.
Originally, in People v. Mendoza,10 and People v. Aragon,11 this Court held that no judicial
decree is necessary to establish the nullity of a void marriage. Both cases involved the same
factual milieu. Accused contracted a second marriage during the subsistence of his first
marriage. After the death of his first wife, accused contracted a third marriage during the
subsistence of the second marriage. The second wife initiated a complaint for bigamy. The
Court acquitted accused on the ground that the second marriage is void, having been
contracted during the existence of the first marriage. There is no need for a judicial declaration
that said second marriage is void. Since the second marriage is void, and the first one
terminated by the death of his wife, there are no two subsisting valid marriages. Hence, there
can be no bigamy. Justice Alex Reyes dissented in both cases, saying that it is not for the
spouses but the court to judge whether a marriage is void or not.
In Gomez v. Lipana,12 and Consuegra v. Consuegra,13 however, we recognized the right of the
second wife who entered into the marriage in good faith, to share in their acquired estate and
in proceeds of the retirement insurance of the husband. The Court observed that although the
second marriage can be presumed to be void ab initio as it was celebrated while the first
marriage was still subsisting, still there was a need for judicial declaration of such nullity (of the
second marriage). And since the death of the husband supervened before such declaration,
we upheld the right of the second wife to share in the estate they acquired, on grounds of
justice and equity.14
But in Odayat v. Amante (1977),15 the Court adverted to Aragon and Mendoza as precedents.
We exonerated a clerk of court of the charge of immorality on the ground that his marriage to
Filomena Abella in October of 1948 was void, since she was already previously married to one
Eliseo Portales in February of the same year. The Court held that no judicial decree is
necessary to establish the invalidity of void marriages. This ruling was affirmed in Tolentino v.
Paras.16
Yet again in Wiegel v. Sempio-Diy (1986),17 the Court held that there is a need for a judicial
declaration of nullity of a void marriage. In Wiegel, Lilia married Maxion in 1972. In 1978, she
married another man, Wiegel. Wiegel filed a petition with the Juvenile Domestic Relations
Court to declare his marriage to Lilia as void on the ground of her previous valid marriage. The
Court, expressly relying on Consuegra, concluded that:18
There is likewise no need of introducing evidence about the existing prior marriage of her first
husband at the time they married each other, for then such a marriage though void still needs
according to this Court a judicial declaration (citing Consuegra) of such fact and for all legal
intents and purposes she would still be regarded as a married woman at the time she
contracted her marriage with respondent Karl Heinz Wiegel; accordingly, the marriage of
petitioner and respondent would be regarded VOID under the law. (Emphasis supplied).
In Yap v. Court of Appeals,19 however, the Court found the second marriage void without need
of judicial declaration, thus reverting to the Odayat, Mendoza and Aragon rulings.
At any rate, the confusion under the Civil Code was put to rest under the Family Code. Our
rulings in Gomez, Consuegra, and Wiegel were eventually embodied in Article 40 of the Family
Code.20 Article 40 of said Code expressly required a judicial declaration of nullity of marriage –
Art. 40. The absolute nullity of a previous marriage may be invoked for purposes of remarriage
on the basis solely of a final judgment declaring such previous marriage void.
In Terre v. Terre (1992)21 the Court, applying Gomez, Consuegra and Wiegel, categorically
stated that a judicial declaration of nullity of a void marriage is necessary. Thus, we disbarred a
lawyer for contracting a bigamous marriage during the subsistence of his first marriage. He
claimed that his first marriage in 1977 was void since his first wife was already married in
1968. We held that Atty. Terre should have known that the prevailing case law is that "for
purposes of determining whether a person is legally free to contract a second marriage, a
judicial declaration that the first marriage was null and void ab initio is essential."
25
The Court applied this ruling in subsequent cases. In Domingo v. Court of
Appeals (1993),22 the Court held:
Came the Family Code which settled once and for all the conflicting jurisprudence on the
matter. A declaration of absolute nullity of marriage is now explicitly required either as a cause
of action or a ground for defense. (Art. 39 of the Family Code). 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. (Family Code, Art. 40; See also arts. 11, 13,
42, 44, 48, 50, 52, 54, 86, 99, 147, 148).23
However, a recent case applied the old rule because of the peculiar circumstances of the case.
In Apiag v. Cantero, (1997)24 the first wife charged a municipal trial judge of immorality for
entering into a second marriage. The judge claimed that his first marriage was void since he
was merely forced into marrying his first wife whom he got pregnant. On the issue of nullity of
the first marriage, we applied Odayat, Mendoza and Aragon. We held that since the second
marriage took place and all the children thereunder were born before the promulgation
of Wiegel and the effectivity of the Family Code, there is no need for a judicial declaration of
nullity of the first marriage pursuant to prevailing jurisprudence at that time.
Similarly, in the present case, the second marriage of private respondent was entered into in
1979, before Wiegel. At that time, the prevailing rule was found in Odayat,
Mendoza and Aragon. The first marriage of private respondent being void for lack of license
and consent, there was no need for judicial declaration of its nullity before he could contract a
second marriage. In this case, therefore, we conclude that private respondent’s second
marriage to petitioner is valid.
Moreover, we find that the provisions of the Family Code cannot be retroactively applied to the
present case, for to do so would prejudice the vested rights of petitioner and of her children. As
held in Jison v. Court of Appeals,25 the Family Code has retroactive effect unless there be
impairment of vested rights. In the present case, that impairment of vested rights of petitioner
and the children is patent. Additionally, we are not quite prepared to give assent to the
appellate court’s finding that despite private respondent’s "deceit and perfidy" in contracting
marriage with petitioner, he could benefit from her silence on the issue. Thus, coming now to
the civil effects of the church ceremony wherein petitioner married private respondent using
the marriage license used three years earlier in the civil ceremony, we find that petitioner now
has raised this matter properly. Earlier petitioner claimed as untruthful private respondent’s
allegation that he wed petitioner but they lacked a marriage license. Indeed we find there was
a marriage license, though it was the same license issued on April 3, 1979 and used in both
the civil and the church rites. Obviously, the church ceremony was confirmatory of their civil
marriage. As petitioner contends, the appellate court erred when it refused to recognize the
validity and salutary effects of said canonical marriage on a technicality, i.e. that petitioner had
failed to raise this matter as affirmative defense during trial. She argues that such failure does
not prevent the appellate court from giving her defense due consideration and weight. She
adds that the interest of the State in protecting the inviolability of marriage, as a legal and
social institution, outweighs such technicality. In our view, petitioner and private respondent
had complied with all the essential and formal requisites for a valid marriage, including the
requirement of a valid license in the first of the two ceremonies. That this license was used
legally in the celebration of the civil ceremony does not detract from the ceremonial use thereof
in the church wedding of the same parties to the marriage, for we hold that the latter rites
served not only to ratify but also to fortify the first. The appellate court might have its reasons
for brushing aside this possible defense of the defendant below which undoubtedly could have
tendered a valid issue, but which was not timely interposed by her before the trial court. But we
are now persuaded we cannot play blind to the absurdity, if not inequity, of letting the
wrongdoer profit from what the CA calls "his own deceit and perfidy."
On the matter of petitioner’s counterclaim for damages and attorney’s fees.1âwphi1 Although
the appellate court admitted that they found private respondent acted "duplicitously and
craftily" in marrying petitioner, it did not award moral damages because the latter did not
adduce evidence to support her claim.26
Like the lower courts, we are also of the view that no damages should be awarded in the
present case, but for another reason. Petitioner wants her marriage to private respondent held
valid and subsisting. She is suing to maintain her status as legitimate wife. In the same breath,
she asks for damages from her husband for filing a baseless complaint for annulment of their
marriage which caused her mental anguish, anxiety, besmirched reputation, social humiliation
and alienation from her parents. Should we grant her prayer, we would have a situation where
the husband pays the wife damages from conjugal or common funds. To do so, would make
the application of the law absurd. Logic, if not common sense, militates against such
incongruity. Moreover, our laws do not comprehend an action for damages between husband
and wife merely because of breach of a marital obligation. 27 There are other remedies.28
WHEREFORE, the petition is GRANTED. The assailed Decision of the Court of Appeals dated
July 24, 1996 and its Resolution dated November 7, 1996, are reversed partially, so that the
marriage of petitioner Ofelia P. Ty and private respondent Edgardo M. Reyes is hereby
DECLARED VALID AND SUBSISTING; and the award of the amount of P15,000.00 is
RATIFIED and MAINTAINED as monthly support to their two children, Faye Eloise Reyes and
Rachel Anne Reyes, for as long as they are of minor age or otherwise legally entitled thereto.
Costs against private respondent.
SO ORDERED.
G.DECLARATION OF PRESUMPTIVE DEATH
G.R. No. 159614 December 9, 2005
26
REPUBLIC OF THE PHILIPPINES, Petitioner,
vs.
THE HONORABLE COURT OF APPEALS (TENTH DIVISION), and ALAN B.
ALEGRO, Respondents.
DECISION
CALLEJO, SR., J.:
On March 29, 2001, Alan B. Alegro filed a petition in the Regional Trial Court (RTC) of
Catbalogan, Samar, Branch 27, for the declaration of presumptive death of his wife, Rosalia
(Lea) A. Julaton.
In an Order1 dated April 16, 2001, the court set the petition for hearing on May 30, 2001 at 8:30
a.m. and directed that a copy of the said order be published once a week for three (3)
consecutive weeks in the Samar Reporter, a newspaper of general circulation in the Province
of Samar, and
that a copy be posted in the court’s bulletin board for at least three weeks before the next
scheduled hearing. The court also directed that copies of the order be served on the Solicitor
General, the Provincial Prosecutor of Samar, and Alan, through counsel, and that copies be
sent to Lea by registered mail. Alan complied with all the foregoing jurisdictional requirements. 2
On May 28, 2001, the Republic of the Philippines, through the Office of the Solicitor General
(OSG), filed a Motion to Dismiss3 the petition, which was, however, denied by the court for
failure to comply with Rule 15 of the Rules of Court.4
At the hearing, Alan adduced evidence that he and Lea were married on January 20, 1995 in
Catbalogan, Samar.5 He testified that, on February 6, 1995, Lea arrived home late in the
evening and he berated her for being always out of their house. He told her that if she enjoyed
the life of a single person, it would be better for her to go back to her parents.6 Lea did not
reply. Alan narrated that, when he reported for work the following day, Lea was still in the
house, but when he arrived home later in the day, Lea was nowhere to be found. 7 Alan thought
that Lea merely went to her parents’ house in Bliss, Sto. Niño, Catbalogan, Samar.8 However,
Lea did not return to their house anymore.
Alan further testified that, on February 14, 1995, after his work, he went to the house of Lea’s
parents to see if she was there, but he was told that she was not there. He also went to the
house of Lea’s friend, Janeth Bautista, at Barangay Canlapwas, but he was informed by
Janette’s brother-in-law, Nelson Abaenza, that Janeth had left for Manila.9 When Alan went
back to the house of his parents-in-law, he learned from his father-in-law that Lea had been to
their house but that she left without notice.10 Alan sought the help of Barangay Captain Juan
Magat, who promised to help him locate his wife. He also inquired from his friends of Lea’s
whereabouts but to no avail.11
Sometime in June 1995, he decided to go to Manila to look for Lea, but his mother asked him
to leave after the town fiesta of Catbalogan, hoping that Lea may come home for the fiesta.
Alan agreed.12 However, Lea did not show up. Alan then left for Manila on August 27, 1995. He
went to a house in Navotas where Janeth, Lea’s friend, was staying. When asked where Lea
was, Janeth told him that she had not seen her.13 He failed to find out Lea’s whereabouts
despite his repeated talks with Janeth. Alan decided to work as a part-time taxi driver. On his
free time, he would look for Lea in the malls but still to no avail. He returned to Catbalogan in
1997 and again looked for his wife but failed.14
On June 20, 2001, Alan reported Lea’s disappearance to the local police station. 15 The police
authorities issued an Alarm Notice on July 4, 2001.16 Alan also reported Lea’s disappearance
to the National Bureau of Investigation (NBI) on July 9, 2001. 17
Barangay Captain Juan Magat corroborated the testimony of Alan. He declared that on
February 14, 1995, at 2:00 p.m., Alan inquired from him if Lea passed by his house and he told
Alan that she did not. Alan also told him that Lea had disappeared. He had not seen Lea in
the barangay ever since.18 Lea’s father, who was his compadre and the owner of Radio DYMS,
told him that he did not know where Lea was.19
After Alan rested his case, neither the Office of the Provincial Prosecutor nor the Solicitor
General adduced evidence in opposition to the petition.
On January 8, 2002, the court rendered judgment granting the petition. The fallo of the
decision reads:
WHEREFORE, and in view of all the foregoing, petitioner’s absent spouse ROSALIA
JULATON is hereby declared PRESUMPTIVELY DEAD for the purpose of the petitioner’s
subsequent marriage under Article 41 of the Family Code of the Philippines, without prejudice
to the effect of reappearance of the said absent spouse.
SO ORDERED.20
The OSG appealed the decision to the Court of Appeals (CA) which rendered judgment on
August 4, 2003, affirming the decision of the RTC.21 The CA cited the ruling of this Court
in Republic v. Nolasco.22
The OSG filed a petition for review on certiorari of the CA’s decision alleging that respondent
Alan B. Alegro failed to prove that he had a well-founded belief that Lea was already dead.23 It
averred that the respondent failed to exercise reasonable and diligent efforts to locate his wife.
27
The respondent even admitted that Lea’s father told him on February 14, 1995 that Lea had
been to their house but left without notice. The OSG pointed out that the respondent reported
his wife’s disappearance to the local police and also to the NBI only after the petitioner filed a
motion to dismiss the petition. The petitioner avers that, as gleaned from the evidence, the
respondent did not really want to find and locate Lea. Finally, the petitioner averred:
In view of the summary nature of proceedings under Article 41 of the Family Code for the
declaration of presumptive death of one’s spouse, the degree of due diligence set by this
Honorable Court in the above-mentioned cases in locating the whereabouts of a missing
spouse must be strictly complied with. There have been times when Article 41 of the Family
Code had been resorted to by parties wishing to remarry knowing fully well that their alleged
missing spouses are alive and well. It is even possible that those who cannot have their
marriages x x x declared null and void under Article 36 of the Family Code resort to Article 41
of the Family Code for relief because of the x x x summary nature of its proceedings.
It is the policy of the State to protect and strengthen the family as a basic social institution.
Marriage is the foundation of the family. Since marriage is an inviolable social institution that
the 1987 Constitution seeks to protect from dissolution at the whim of the parties. For
respondent’s failure to prove that he had a well-founded belief that his wife is already
dead and that he exerted the required amount of diligence in searching for his missing wife,
the petition for declaration of presumptive death should have been denied by the trial court and
the Honorable Court of Appeals.24
The petition is meritorious.
Article 41 of the Family Code of the Philippines reads:
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 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 Code for the
declaration of presumptive death of the absentee, without prejudice to the effect of
reappearance of the absent spouse.25
The spouse present is, thus, burdened to prove that his spouse has been absent and that he
has a well-founded belief that the absent spouse is already dead before the present spouse
may contract a subsequent marriage. The law does not define what is meant by a well-
grounded belief. Cuello Callon writes that "es menester que su creencia sea firme se funde en
motivos racionales."26
Belief is a state of the mind or condition prompting the doing of an overt act. It may be proved
by direct evidence or circumstantial evidence which may tend, even in a slight degree, to
elucidate the inquiry or assist to a determination probably founded in truth. Any fact or
circumstance relating to the character, habits, conditions, attachments, prosperity and objects
of life which usually control the conduct of men, and are the motives of their actions, was, so
far as it tends to explain or characterize their disappearance or throw light on their
intentions,27 competence evidence on the ultimate question of his death.
The belief of the present spouse must be the result of proper and honest to goodness inquiries
and efforts to ascertain the whereabouts of the absent spouse and whether the absent spouse
is still alive or is already dead. Whether or not the spouse present acted on a well-founded
belief of death of the absent spouse depends upon the inquiries to be drawn from a great
many circumstances occurring before and after the disappearance of the absent spouse and
the nature and extent of the inquiries made by present spouse.28
Although testimonial evidence may suffice to prove the well-founded belief of the present
spouse that the absent spouse is already dead, in Republic v. Nolasco,29 the Court warned
against collusion between the parties when they find it impossible to dissolve the marital bonds
through existing legal means. It is also the maxim that "men readily believe what they wish to
be true."
In this case, the respondent failed to present a witness other than Barangay Captain Juan
Magat. The respondent even failed to present Janeth Bautista or Nelson Abaenza or any other
person from whom he allegedly made inquiries about Lea to corroborate his testimony. On the
other hand, the respondent admitted that when he returned to the house of his parents-in-law
on February 14, 1995, his father-in-law told him that Lea had just been there but that she left
without notice.
The respondent declared that Lea left their abode on February 7, 1995 after he chided her for
coming home late and for being always out of their house, and told her that it would be better
for her to go home to her parents if she enjoyed the life of a single person. Lea, thus, left their
conjugal abode and never returned. Neither did she communicate with the respondent after
leaving the conjugal abode because of her resentment to the chastisement she received from
him barely a month after their marriage. What is so worrisome is that, the respondent failed to
make inquiries from his parents-in-law regarding Lea’s whereabouts before filing his petition in
the RTC. It could have enhanced the credibility of the respondent had he made inquiries from
his parents-in-law about Lea’s whereabouts considering that Lea’s father was the owner of
Radio DYMS.
28
The respondent did report and seek the help of the local police authorities and the NBI to
locate Lea, but it was only an afterthought. He did so only after the OSG filed its notice to
dismiss his petition in the RTC.
In sum, the Court finds and so holds that the respondent failed to prove that he had a well-
founded belief, before he filed his petition in the RTC, that his spouse Rosalia (Lea) Julaton
was already dead.
IN LIGHT OF ALL THE FOREGOING, the petition is GRANTED. The Decision of the Court of
Appeals in CA-G.R. CV No. 73749 is REVERSED and SET ASIDE. Consequently, the
Regional Trial Court of Catbalogan, Samar, Branch 27, is ORDERED to DISMISS the
respondent’s petition.
SO ORDERED.
G.R. No. 180863 September 8, 2009
ANGELITA VALDEZ, Petitioner,
vs.
REPUBLIC OF THE PHILIPPINES, Respondent.
DECISION
NACHURA, J.:
Before this Court is a Petition for Review on Certiorari under Rule 45 of the Rules of Court
assailing the Decision of the Regional Trial Court (RTC) of Camiling, Tarlac dated November
12, 2007 dismissing petitioner Angelita Valdez’s petition for the declaration of presumptive
death of her husband, Sofio Polborosa (Sofio).
The facts of the case are as follows:
Petitioner married Sofio on January 11, 1971 in Pateros, Rizal. On December 13, 1971,
petitioner gave birth to the spouses’ only child, Nancy. According to petitioner, she and Sofio
argued constantly because the latter was unemployed and did not bring home any money. In
March 1972, Sofio left their conjugal dwelling. Petitioner and their child waited for him to return
but, finally, in May 1972, petitioner decided to go back to her parents’ home in Bancay 1st,
Camiling, Tarlac. Three years passed without any word from Sofio. In October 1975, Sofio
showed up at Bancay 1st. He and petitioner talked for several hours and they agreed to
separate. They executed a document to that effect.1 That was the last time petitioner saw him.
After that, petitioner didn’t hear any news of Sofio, his whereabouts or even if he was alive or
not.2
Believing that Sofio was already dead, petitioner married Virgilio Reyes on June 20,
1985.3 Subsequently, however, Virgilio’s application for naturalization filed with the United
States Department of Homeland Security was denied because petitioner’s marriage to Sofio
was subsisting.4 Hence, on March 29, 2007, petitioner filed a Petition before the RTC of
Camiling, Tarlac seeking the declaration of presumptive death of Sofio.
The RTC rendered its Decision5 on November 12, 2007, dismissing the Petition for lack of
merit. The RTC held that Angelita "was not able to prove the well-grounded belief that her
husband Sofio Polborosa was already dead." It said that under Article 41 of the Family Code,
the present spouse is burdened to prove that her spouse has been absent and that she has a
well-founded belief that the absent spouse is already dead before the present spouse may
contract a subsequent marriage. This belief, the RTC said, must be the result of proper and
honest-to-goodness inquiries and efforts to ascertain the whereabouts of the absent spouse.
The RTC found that, by petitioner’s own admission, she did not try to find her husband
anymore in light of their mutual agreement to live separately. Likewise, petitioner’s daughter
testified that her mother prevented her from looking for her father. The RTC also said there is a
strong possibility that Sofio is still alive, considering that he would have been only 61 years old
by then, and people who have reached their 60s have not become increasingly low in health
and spirits, and, even assuming as true petitioner’s testimony that Sofio was a chain smoker
and a drunkard, there is no evidence that he continues to drink and smoke until now.
Petitioner filed a motion for reconsideration.6 She argued that it is the Civil Code that applies in
this case and not the Family Code since petitioner’s marriage to Sofio was celebrated on
January 11, 1971, long before the Family Code took effect. Petitioner further argued that she
had acquired a vested right under the provisions of the Civil Code and the stricter provisions of
the Family Code should not be applied against her because Title XIV of the Civil Code, where
Articles 384 and 390 on declaration of absence and presumption of death, respectively, can be
found, was not expressly repealed by the Family Code. To apply the stricter provisions of the
Family Code will impair the rights petitioner had acquired under the Civil Code.
The RTC denied the Motion for Reconsideration in a Resolution dated December 10, 2007. 7
Petitioner now comes before this Court seeking the reversal of the RTC Decision and Motion
for Reconsideration.
In its Manifestation and Motion,8 the Office of the Solicitor General (OSG) recommended that
the Court set aside the assailed RTC Decision and grant the Petition to declare Sofio
presumptively dead. The OSG argues that the requirement of "well-founded belief" under
29
Article 41 of the Family Code is not applicable to the instant case. It said that petitioner could
not be expected to comply with this requirement because it was not yet in existence during her
marriage to Virgilio Reyes in 1985. The OSG further argues that before the effectivity of the
Family Code, petitioner already acquired a vested right as to the validity of her marriage to
Virgilio Reyes based on the presumed death of Sofio under the Civil Code. This vested right
and the presumption of Sofio’s death, the OSG posits, could not be affected by the obligations
created under the Family Code.9
Next, the OSG contends that Article 390 of the Civil Code was not repealed by Article 41 of the
Family Code.10 Title XIV of the Civil Code, the OSG said, was not one of those expressly
repealed by the Family Code. Moreover, Article 256 of the Family Code provides that its
provisions shall not be retroactively applied if they will prejudice or impair vested or acquired
rights.11
The RTC Decision, insofar as it dismissed the Petition, is affirmed. However, we must state
that we are denying the Petition on grounds different from those cited in the RTC Decision.
Initially, we discuss a procedural issue. Under the Rules of Court, a party may directly appeal
to this Court from a decision of the trial court only on pure questions of law. A question of law
lies, on one hand, when the doubt or difference arises as to what the law is on a certain set of
facts; on the other hand, a question of fact exists when the doubt or difference arises as to the
truth or falsehood of the alleged facts. Here, the facts are not disputed; the controversy merely
relates to the correct application of the law or jurisprudence to the undisputed facts.12
The RTC erred in applying the provisions of the Family Code and holding that petitioner
needed to prove a "well-founded belief" that Sofio was already dead. The RTC applied Article
41 of the Family Code, to wit:
Art. 41. A marriage contracted by any person during 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 has a well-founded belief
that the absent spouse was already dead. In case of disappearance where there is danger
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 a subsequent marriage under the preceding paragraph, the
spouse present must institute a summary proceeding as provided in this Code for the
declaration of presumptive death of the absentee, without prejudice to the effect of
reappearance of the absent spouse.
It is readily apparent, however, that the marriages of petitioner to Sofio and Virgilio on January
11, 1971 and June 20, 1985, respectively, were both celebrated under the auspices of the Civil
Code.
The pertinent provision of the Civil Code is Article 83:
Art. 83. Any marriage subsequently contracted by any person during the lifetime of the first
spouse of such person with any person other than such first spouse shall be illegal and void
from its performance, unless:
(1) The first marriage was annulled or dissolved; or
(2) The first spouse had been absent for seven consecutive years at the time of the
second marriage without the spouse present having news of the absentee being
alive, of if the absentee, though he has been absent for less than seven years, is
generally considered as dead and believed to be so by the spouse present at the time
of contracting such subsequent marriage, or if the absentee is presumed dead
according to Articles 390 and 391. The marriage so contracted shall be valid in any of
the three cases until declared null and void by a competent court.
Article 390 of the Civil Code states:
Art. 390. After an absence of seven years, it being unknown whether or not the absentee still
lives, he shall be presumed dead for all purposes, except for those of succession.
The absentee shall not be presumed dead for the purpose of opening his succession till after
an absence of ten years. If he disappeared after the age of seventy-five years, an absence of
five years shall be sufficient in order that his succession may be opened.
The Court, on several occasions, had interpreted the above-quoted provision in this wise:
For the purposes of the civil marriage law, it is not necessary to have the former spouse
judicially declared an absentee. The declaration of absence made in accordance with the
provisions of the Civil Code has for its sole purpose to enable the taking of the necessary
precautions for the administration of the estate of the absentee. For the celebration of civil
marriage, however, the law only requires that the former spouse has been absent for seven
consecutive years at the time of the second marriage, that the spouse present does not know
his or her former spouse to be living, that such former spouse is generally reputed to be dead
and the spouse present so believes at the time of the celebration of the marriage. 13
30
Further, the Court explained that presumption of death cannot be the subject of court
proceedings independent of the settlement of the absentee’s estate.
In re Szatraw14 is instructive. In that case, petitioner contracted marriage with a Polish national
in 1937. They lived together as husband and wife for three years. Sometime in 1940, the
husband, on the pretext of visiting some friends, left the conjugal abode with their child and
never returned. After inquiring from friends, petitioner found that her husband went to
Shanghai, China. However, friends who came from Shanghai told her that the husband was
not seen there. In 1948, petitioner filed a petition for the declaration of presumptive death of
her husband arguing that since the latter had been absent for more than seven years and she
had not heard any news from him and about her child, she believes that he is dead. In deciding
the case, the Court said:
The petition is not for the settlement of the estate of Nicolai Szatraw, because it does not
appear that he possessed property brought to the marriage and because he had acquired no
property during his married life with the petitioner. The rule invoked by the latter is merely one
of evidence which permits the court to presume that a person is dead after the fact that such
person had been unheard from in seven years had been established. This presumption may
arise and be invoked and made in a case, either in an action or in a special proceeding, which
is tried or heard by, and submitted for decision to, a competent court. Independently of such an
action or special proceeding, the presumption of death cannot be invoked, nor can it be made
the subject of an action or special proceeding. In this case, there is no right to be enforced nor
is there a remedy prayed for by the petitioner against her absent husband. Neither is there a
prayer for the final determination of his right or status or for the ascertainment of a particular
fact (Hagans v. Wislizenus, 42 Phil. 880), for the petition does not pray for a declaration that
the petitioner's husband is dead, but merely asks for a declaration that he be presumed dead
because he had been unheard from in seven years. If there is any pretense at securing a
declaration that the petitioner's husband is dead, such a pretension cannot be granted
because it is unauthorized. The petition is for a declaration that the petitioner's husband is
presumptively dead. But this declaration, even if judicially made, would not improve the
petitioner's situation, because such a presumption is already established by law. A judicial
pronouncement to that effect, even if final and executory, would still be a prima facie
presumption only. It is still disputable. It is for that reason that it cannot be the subject of a
judicial pronouncement or declaration, if it is the only question or matter involved in a case, or
upon which a competent court has to pass. The latter must decide finally the controversy
between the parties, or determine finally the right or status of a party or establish finally a
particular fact, out of which certain rights and obligations arise or may arise; and once such
controversy is decided by a final judgment, or such right or status determined, or such
particular fact established, by a final decree, then the judgment on the subject of the
controversy, or the decree upon the right or status of a party or upon the existence of a
particular fact, becomes res judicata, subject to no collateral attack, except in a few rare
instances especially provided by law. It is, therefore, clear that a judicial declaration that a
person is presumptively dead, because he had been unheard from in seven years, being a
presumption juris tantum only, subject to contrary proof, cannot reach the stage of finality or
become final. Proof of actual death of the person presumed dead because he had been
unheard from in seven years, would have to be made in another proceeding to have such
particular fact finally determined.1avvphi1 If a judicial decree declaring a person presumptively
dead, because he had not been heard from in seven years, cannot become final and executory
even after the lapse of the reglementary period within which an appeal may be taken, for such
presumption is still disputable and remains subject to contrary proof, then a petition for such a
declaration is useless, unnecessary, superfluous and of no benefit to the petitioner. 15
In Lukban v. Republic,16 petitioner Lourdes G. Lukban contracted marriage with Francisco
Chuidian on December 10, 1933. A few days later, on December 27, Francisco left Lourdes
after a violent quarrel. She did not hear from him after that day. Her diligent search, inquiries
from his parents and friends, and search in his last known address, proved futile. Believing her
husband was already dead since he had been absent for more than twenty years, petitioner
filed a petition in 1956 for a declaration that she is a widow of her husband who is presumed to
be dead and has no legal impediment to contract a subsequent marriage. On the other hand,
the antecedents in Gue v. Republic17 are similar to Szatraw. On January 5, 1946, Angelina
Gue’s husband left Manila where they were residing and went to Shanghai, China. From that
day on, he had not been heard of, had not written to her, nor in anyway communicated with her
as to his whereabouts. Despite her efforts and diligence, she failed to locate him. After 11
years, she asked the court for a declaration of the presumption of death of Willian Gue,
pursuant to the provisions of Article 390 of the Civil Code of the Philippines.
In both cases, the Court reiterated its ruling in Szatraw. It held that a petition for judicial
declaration that petitioner's husband is presumed to be dead cannot be entertained because it
is not authorized by law.18
From the foregoing, it can be gleaned that, under the Civil Code, the presumption of death is
established by law19 and no court declaration is needed for the presumption to arise. Since
death is presumed to have taken place by the seventh year of absence,20 Sofio is to be
presumed dead starting October 1982.
Consequently, at the time of petitioner’s marriage to Virgilio, there existed no impediment to
petitioner’s capacity to marry, and the marriage is valid under paragraph 2 of Article 83 of the
Civil Code.
Further, considering that it is the Civil Code that applies, proof of "well-founded belief" is not
required. Petitioner could not have been expected to comply with this requirement since the
Family Code was not yet in effect at the time of her marriage to Virgilio. The enactment of the
Family Code in 1988 does not change this conclusion. The Family Code itself states:
Art. 256. This Code shall have retroactive effect insofar as it does not prejudice or impair
vested or acquired rights in accordance with the Civil Code or other laws.
31
To retroactively apply the provisions of the Family Code requiring petitioner to exhibit "well-
founded belief" will, ultimately, result in the invalidation of her second marriage, which was
valid at the time it was celebrated. Such a situation would be untenable and would go against
the objectives that the Family Code wishes to achieve.
In sum, we hold that the Petition must be dismissed since no decree on the presumption of
Sofio’s death can be granted under the Civil Code, the same presumption having arisen by
operation of law. However, we declare that petitioner was capacitated to marry Virgilio at the
time their marriage was celebrated in 1985 and, therefore, the said marriage is legal and valid.
WHEREFORE, the foregoing premises considered, the Petition is DENIED.
SO ORDERED.
G.R. No. 136467 April 6, 2000
ANTONIA ARMAS Y CALISTERIO, petitioner,
vs.
MARIETTA CALISTERIO, respondent.
VITUG, J.:
On 24 April 1992, Teodorico Calisterio died intestate, leaving several parcels of land with an
estimated value of P604,750.00. Teodorico was survived by his wife, herein respondent
Marietta Calisterio.
Teodorico was the second husband of Marietta who had previously been married to James
William Bounds on 13 January 1946 at Caloocan City. James Bounds disappeared without a
trace on 11 February 1947. Teodorico and Marietta were married eleven years later, or on 08
May 1958, without Marietta having priorly secured a court declaration that James was
presumptively dead.
On 09 October 1992, herein petitioner Antonia Armas y Calisterio, a surviving sister of
Teodorico, filed with the Regional Trial Court ("RTC") of Quezon City, Branch 104, a petition
entitled, "In the Matter of Intestate Estate of the Deceased Teodorico Calisterio y Cacabelos,
Antonia Armas, Petitioner," claiming to be inter alia, the sole surviving heir of Teodorico
Calisterio, the marriage between the latter and respondent Marietta Espinosa Calisterio being
allegedly bigamous and thereby null and void. She prayed that her son Sinfroniano C. Armas,
Jr., be appointed administrator, without bond, of the estate of the deceased and that the
inheritance be adjudicated to her after all the obligations of the estate would have been settled.
Respondent Marietta opposed the petition. Marietta stated that her first marriage with James
Bounds had been dissolved due to the latter's absence, his whereabouts being unknown, for
more than eleven years before she contracted her second marriage with Teodorico.
Contending to be the surviving spouse of Teodorico, she sought priority in the administration of
the estate of the decedent.
On 05 February 1993, the trial court issued an order appointing jointly Sinfroniano C. Armas,
Jr., and respondent Marietta administrator and administratrix, respectively, of the intestate
estate of Teodorico.
On 17 January 1996, the lower court handed down its decision in favor of petitioner Antonia; it
adjudged:
WHEREFORE, judgment is hereby rendered finding for the petitioner and against the
oppositor whereby herein petitioner, Antonia Armas y Calisterio, is declared as the
sole heir of the estate of Teodorico Calisterio y Cacabelos. 1
Respondent Marietta appealed the decision of the trial court to the Court of Appeals,
formulating that —
1. The trial court erred in applying the provisions of the Family Code in the instant
case despite the fact that the controversy arose when the New Civil Code was the law
in force.
2. The trial court erred in holding that the marriage between oppositor-appellant and
the deceased Teodorico Calisterio is bigamous for failure of the former to secure a
decree of the presumptive death of her first spouse.
3. The trial court erred in not holding that the property situated at No. 32 Batangas
Street, San Francisco del Monte, Quezon City, is the conjugal property of the
oppositor-appellant and the deceased Teodorico Calisterio.
4. The trial court erred in holding that oppositor-appellant is not a legal heir of
deceased Teodorico Calisterio.
5. The trial court erred in not holding that letters of administration should be granted
solely in favor of oppositor-appellant. 2
32
On 31 August 1998, the appellate court, through Mr. Justice Conrado M. Vasquez, Jr.,
promulgated its now assailed decision, thus:
IN VIEW OF ALL THE FOREGOING, the Decision appealed from is REVERSED
AND SET ASIDE, and a new one entered declaring as follows:
(a) Marietta Calisterio's marriage to Teodorico remains valid;
(b) The house and lot situated at #32 Batangas Street, San Francisco del
Monte, Quezon City, belong to the conjugal partnership property with the
concomitant obligation of the partnership to pay the value of the land to
Teodorico's estate as of the time of the taking;
(c) Marietta Calisterio, being Teodorico's compulsory heir, is entitled to one
half of her husband's estate, and Teodorico's sister, herein petitioner Antonia
Armas and her children, to the other half;
(d) The trial court is ordered to determine the competence of Marietta E.
Calisterio to act as administrator of Teodorico's estate, and if so found
competent and willing, that she be appointed as such; otherwise, to
determine who among the deceased's next of kin is competent and willing to
become the administrator of the estate. 3
On 23 November 1998, the Court of Appeals denied petitioner's motion for
reconsideration, prompting her to interpose the present appeal. Petitioner
asseverates:
It is respectfully submitted that the decision of the Court of Appeals reversing and
setting aside the decision of the trial court is not in accord with the law or with the
applicable decisions of this Honorable Court. 4
It is evident that the basic issue focuses on the validity of the marriage between the deceased
Teodorico and respondent Marietta, that, in turn, would be determinative of her right as a
surviving spouse.
The marriage between the deceased Teodorico and respondent Marietta was solemnized on
08 May 1958. The law in force at that time was the Civil Code, not the Family Code which took
effect only on 03 August 1988. Article 256 of the Family Code 5 itself limited its retroactive
governance only to cases where it thereby would not prejudice or impair vested or acquired
rights in accordance with the Civil Code or other laws.
Verily, the applicable specific provision in the instant controversy is Article 83 of the New Civil
Code which provides:
Art. 83. Any marriage subsequently contracted by any person during the lifetime of
the first spouse of such person with any person other than such first spouse shall be
illegal and void from its performance, unless:
(1) The first marriage was annulled or dissolved; or
(2) The first spouse had been absent for seven consecutive years at the time of the
second marriage without the spouse present having news of the absentee being
alive, or if the absentee, though he has been absent for less than seven years, is
generally considered as dead and believed to be so by the spouse present at the time
of contracting such subsequent marriage, or if the absentee is presumed dead
according to articles 390 and 391. The marriage so contracted shall be valid in any of
the three cases until declared null and void by a competent court.
Under the foregoing provisions, a subsequent marriage contracted during the lifetime of the
first spouse is illegal and void ab initio unless the prior marriage is first annulled or dissolved.
Paragraph (2) of the law gives exceptions from the above rule. For the subsequent marriage
referred to in the three exceptional cases therein provided, to be held valid, the spouse present
(not the absentee spouse) so contracting the later marriage must have done so in good
faith. 6 Bad faith imports a dishonest purpose or some moral obliquity and conscious doing of
wrong — it partakes of the nature of fraud, a breach of a known duty through some motive of
interest or ill will. 7 The Court does not find these circumstances to be here extant.
A judicial declaration of absence of the absentee spouse is not necessary8 as long as the
prescribed period of absence is met. It is equally noteworthy that the marriage in these
exceptional cases are, by the explicit mandate of Article 83, to be deemed valid "until declared
null and void by a competent court." It follows that the burden of proof would be, in these
cases, on the party assailing the second marriage.
In contrast, 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 9 , in relation to Article 40, 10 of the Family Code.
33
In the case at bar, it remained undisputed that respondent Marietta's first husband, James
William Bounds, had been absent or had disappeared for more than eleven years before she
entered into a second marriage in 1958 with the deceased Teodorico Calisterio. This second
marriage, having been contracted during the regime of the Civil Code, should thus be deemed
valid notwithstanding the absence of a judicial declaration of presumptive death of James
Bounds.
The conjugal property of Teodorico and Marietta, no evidence having been adduced to indicate
another property regime between the spouses, pertains to them in common. Upon its
dissolution with the death of Teodorico, the property should rightly be divided in two equal
portions — one portion going to the surviving spouse and the other portion to the estate of the
deceased spouse. The successional right in intestacy of a surviving spouse over the net
estate 11 of the deceased, concurring with legitimate brothers and sisters or nephews and
nieces (the latter by right of representation), is one-half of the inheritance, the brothers and
sisters or nephews and nieces, being entitled to the other half. Nephews and nieces, however,
can only succeed by right of representation in the presence of uncles and aunts; alone, upon
the other hand, nephews and nieces can succeed in their own right which is to say that
brothers or sisters exclude nephews and nieces except only in representation by the latter of
their parents who predecease or are incapacitated to succeed. The appellate court has thus
erred in granting, in paragraph (c) of the dispositive portion of its judgment, successional
rights, to petitioner's children, along with their own mother Antonia who herself is invoking
successional rights over the estate of her deceased brother.1âwphi1
WHEREFORE, the assailed judgment of the Court of Appeals in CA G.R. CV No. 51574 is
AFFIRMED except insofar only as it decreed in paragraph (c) of the dispositive portion thereof
that the children of petitioner are likewise entitled, along with her, to the other half of the
inheritance, in lieu of which, it is hereby DECLARED that said one-half share of the decedent's
estate pertains solely to petitioner to the exclusion of her own children. No costs.
SO ORDERED.1âwphi1.nêt
G.R. No. 165545 March 24, 2006
SOCIAL SECURITY SYSTEM, Petitioner,
vs.
TERESITA JARQUE VDA. DE BAILON, Respondent.
DECISION
CARPIO MORALES,J.:
The Court of Appeals Decision1 dated June 23, 20042 and Resolution dated September 28,
20043 reversing the Resolution dated April 2, 20034 and Order dated June 4, 20035 of the
Social Security Commission (SSC) in SSC Case No. 4-15149-01 are challenged in the present
petition for review on certiorari.
On April 25, 1955, Clemente G. Bailon (Bailon) and Alice P. Diaz (Alice) contracted marriage in
Barcelona, Sorsogon.6
More than 15 years later or on October 9, 1970, Bailon filed before the then Court of First
Instance (CFI) of Sorsogon a petition7 to declare Alice presumptively dead.
By Order of December 10, 1970,8 the CFI granted the petition, disposing as follows:
WHEREFORE, there being no opposition filed against the petition notwithstanding the
publication of the Notice of Hearing in a newspaper of general circulation in the country, Alice
Diaz is hereby declared to [sic] all legal intents and purposes, except for those of
succession, presumptively dead.
SO ORDERED.9 (Underscoring supplied)
Close to 13 years after his wife Alice was declared presumptively dead or on August 8, 1983,
Bailon contracted marriage with Teresita Jarque (respondent) in Casiguran, Sorsogon. 10
On January 30, 1998, Bailon, who was a member of the Social Security System (SSS) since
1960 and a retiree pensioner thereof effective July 1994, died. 11
Respondent thereupon filed a claim for funeral benefits, and was granted P12,00012 by the
SSS.
Respondent filed on March 11, 1998 an additional claim for death benefits 13 which was also
granted by the SSS on April 6, 1998.14
Cecilia Bailon-Yap (Cecilia), who claimed to be a daughter of Bailon and one Elisa Jayona
(Elisa) contested before the SSS the release to respondent of the death and funeral benefits.
She claimed that Bailon contracted three marriages in his lifetime, the first with Alice, the
second with her mother Elisa, and the third with respondent, all of whom are still alive; she,
together with her siblings, paid for Bailon’s medical and funeral expenses; and all the
documents submitted by respondent to the SSS in support of her claims are spurious.
In support of her claim, Cecilia and her sister Norma Bailon Chavez (Norma) submitted an
Affidavit dated February 13, 199915 averring that they are two of nine children of Bailon and
34
Elisa who cohabited as husband and wife as early as 1958; and they were reserving their right
to file the necessary court action to contest the marriage between Bailon and respondent as
they personally know that Alice is "still very much alive." 16
In the meantime, on April 5, 1999, a certain Hermes P. Diaz, claiming to be the brother and
guardian of "Aliz P. Diaz," filed before the SSS a claim for death benefits accruing from
Bailon’s death,17 he further attesting in a sworn statement18 that it was Norma who defrayed
Bailon’s funeral expenses.
Elisa and seven of her children19 subsequently filed claims for death benefits as Bailon’s
beneficiaries before the SSS.20
Atty. Marites C. de la Torre of the Legal Unit of the SSS Bicol Cluster, Naga City
recommended the cancellation of payment of death pension benefits to respondent and the
issuance of an order for the refund of the amount paid to her from February 1998 to May 1999
representing such benefits; the denial of the claim of Alice on the ground that she was not
dependent upon Bailon for support during his lifetime; and the payment of the balance of the
five-year guaranteed pension to Bailon’s beneficiaries according to the order of preference
provided under the law, after the amount erroneously paid to respondent has been collected.
The pertinent portions of the Memorandum read:
1. Aliz [sic] Diaz never disappeared. The court must have been misled by
misrepresentation in declaring the first wife, Aliz [sic] Diaz, as presumptively dead.
xxxx
x x x the Order of the court in the "Petition to Declare Alice Diaz Presumptively
Dead," did not become final. The presence of Aliz [sic] Diaz, is contrary proof that
rendered it invalid.
xxxx
3. It was the deceased member who abandoned his wife, Aliz [sic] Diaz. He, being in
bad faith, and is the deserting spouse, his remarriage is void, being bigamous.
xxxx
In this case, it is the deceased member who was the deserting spouse and who remarried,
thus his marriage to Teresita Jarque, for the second time was void as it was bigamous. To
require affidavit of reappearance to terminate the second marriage is not necessary as there is
no disappearance of Aliz [sic] Diaz, the first wife, and a voidable marriage [sic], to speak
of.21 (Underscoring supplied)
In the meantime, the SSS Sorsogon Branch, by letter of August 16, 2000, 22 advised
respondent that as Cecilia and Norma were the ones who defrayed Bailon’s funeral expenses,
she should return the P12,000 paid to her.
In a separate letter dated September 7, 1999,23 the SSS advised respondent of the
cancellation of her monthly pension for death benefits in view of the opinion rendered by its
legal department that her marriage with Bailon was void as it was contracted while the latter’s
marriage with Alice was still subsisting; and the December 10, 1970 CFI Order declaring Alice
presumptively dead did not become final, her "presence" being "contrary proof" against the
validity of the order. It thus requested respondent to return the amount of P24,000 representing
the total amount of monthly pension she had received from the SSS from February 1998 to
May 1999.
Respondent protested the cancellation of her monthly pension for death benefits by letter to
the SSS dated October 12, 1999.24 In a subsequent letter dated November 27, 199925 to the
SSC, she reiterated her request for the release of her monthly pension, asserting that her
marriage with Bailon was not declared before any court of justice as bigamous or unlawful,
hence, it remained valid and subsisting for all legal intents and purposes as in fact Bailon
designated her as his beneficiary.
The SSS, however, by letter to respondent dated January 21, 2000,26 maintained the denial of
her claim for and the discontinuance of payment of monthly pension. It advised her, however,
that she was not deprived of her right to file a petition with the SSC.
Respondent thus filed a petition27 against the SSS before the SSC for the restoration to her of
her entitlement to monthly pension.
In the meantime, respondent informed the SSS that she was returning, under protest, the
amount of P12,000 representing the funeral benefits she received, she alleging that Norma
and her siblings "forcibly and coercively prevented her from spending any amount during
Bailon’s wake."28
After the SSS filed its Answer29 to respondent’s petition, and the parties filed their respective
Position Papers, one Alicia P. Diaz filed an Affidavit30 dated August 14, 2002 with the SSS
Naga Branch attesting that she is the widow of Bailon; she had only recently come to know of
the petition filed by Bailon to declare her presumptively dead; it is not true that she
disappeared as Bailon could have easily located her, she having stayed at her parents’
residence in Barcelona, Sorsogon after she found out that Bailon was having an extramarital
affair; and Bailon used to visit her even after their separation.
35
By Resolution of April 2, 2003, the SSC found that the marriage of respondent to Bailon was
void and, therefore, she was "just a common-law-wife." Accordingly it disposed as follows,
quoted verbatim:
WHEREFORE, this Commission finds, and so holds, that petitioner Teresita Jarque-Bailon is
not the legitimate spouse and primary beneficiary of SSS member Clemente Bailon.
Accordingly, the petitioner is hereby ordered to refund to the SSS the amount of P24,000.00
representing the death benefit she received therefrom for the period February 1998 until May
1999 as well as P12,000.00 representing the funeral benefit.
The SSS is hereby ordered to pay Alice (a.k.a. Aliz) Diaz-Bailon the appropriate death benefit
arising from the demise of SSS member Clemente Bailon in accordance with Section 8(e) and
(k) as well as Section 13 of the SS Law, as amended, and its prevailing rules and regulations
and to inform this Commission of its compliance herewith.
SO ORDERED.31 (Underscoring supplied)
In so ruling against respondent, the SSC ratiocinated.
After a thorough examination of the evidence at hand, this Commission comes to the inevitable
conclusion that the petitioner is not the legitimate wife of the deceased member.
xxxx
There is x x x ample evidence pointing to the fact that, contrary to the declaration of the then
CFI of Sorsogon (10th Judicial District), the first wife never disappeared as the deceased
member represented in bad faith. This Commission accords credence to the findings of the
SSS contained in its Memorandum dated August 9, 1999,32 revealing that Alice (a.k.a. Aliz)
Diaz never left Barcelona, Sorsogon, after her separation from Clemente Bailon x x x.
As the declaration of presumptive death was extracted by the deceased member using artifice
and by exerting fraud upon the unsuspecting court of law, x x x it never had the effect of giving
the deceased member the right to marry anew. x x x [I]t is clear that the marriage to the
petitioner is void, considering that the first marriage on April 25, 1955 to Alice Diaz was not
previously annulled, invalidated or otherwise dissolved during the lifetime of the parties thereto.
x x x as determined through the investigation conducted by the SSS, Clemente Bailon was the
abandoning spouse, not Alice Diaz Bailon.
xxxx
It having been established, by substantial evidence, that the petitioner was just a common-law
wife of the deceased member, it necessarily follows that she is not entitled as a primary
beneficiary, to the latter’s death benefit. x x x
xxxx
It having been determined that Teresita Jarque was not the legitimate surviving spouse and
primary beneficiary of Clemente Bailon, it behooves her to refund the total amount of death
benefit she received from the SSS for the period from February 1998 until May 1999 pursuant
to the principle of solutio indebiti x x x
Likewise, it appearing that she was not the one who actually defrayed the cost of the wake and
burial of Clemente Bailon, she must return the amount of P12,000.00 which was earlier given
to her by the SSS as funeral benefit.33 (Underscoring supplied)
Respondent’s Motion for Reconsideration34 having been denied by Order of June 4, 2003, she
filed a petition for review35 before the Court of Appeals (CA).
By Decision of June 23, 2004, the CA reversed and set aside the April 2, 2003 Resolution and
June 4, 2003 Order of the SSC and thus ordered the SSS to pay respondent all the pension
benefits due her. Held the CA:
x x x [T]he paramount concern in this case transcends the issue of whether or not the decision
of the then CFI, now RTC, declaring Alice Diaz presumptively dead has attained finality but,
more importantly, whether or not the respondents SSS and Commission can validly re-
evaluate the findings of the RTC, and on its own, declare the latter’s decision to be bereft of
any basis. On similar import, can respondents SSS and Commission validly declare the first
marriage subsisting and the second marriage null and void?
xxxx
x x x while it is true that a judgment declaring a person presumptively dead never attains
finality as the finding that "the person is unheard of in seven years is merely a
presumption juris tantum," the second marriage contracted by a person with an absent spouse
endures until annulled. It is only the competent court that can nullify the second marriage
pursuant to Article 87 of the Civil Code and upon the reappearance of the missing spouse,
which action for annulment may be filed. Nowhere does the law contemplates [sic] the
possibility that respondent SSS may validly declare the second marriage null and void on the
basis alone of its own investigation and declare that the decision of the RTC declaring one to
be presumptively dead is without basis.
36
Respondent SSS cannot arrogate upon itself the authority to review the decision of the regular
courts under the pretext of determining the actual and lawful beneficiaries of its members.
Notwithstanding its opinion as to the soundness of the findings of the RTC, it should extend
due credence to the decision of the RTC absent of [sic] any judicial pronouncement to the
contrary. x x x
x x x [A]ssuming arguendo that respondent SSS actually possesses the authority to declare
the decision of the RTC to be without basis, the procedure it followed was offensive to the
principle of fair play and thus its findings are of doubtful quality considering that petitioner
Teresita was not given ample opportunity to present evidence for and her behalf.
xxxx
Respondent SSS is correct in stating that the filing of an Affidavit of Reappearance with the
Civil Registry is no longer practical under the premises. Indeed, there is no more first marriage
to restore as the marital bond between Alice Diaz and Clemente Bailon was already terminated
upon the latter’s death. Neither is there a second marriage to terminate because the second
marriage was likewise dissolved by the death of Clemente Bailon.
However, it is not correct to conclude that simply because the filing of the Affidavit of
Reappearance with the Civil Registry where parties to the subsequent marriage reside is
already inutile, the respondent SSS has now the authority to review the decision of the RTC
and consequently declare the second marriage null and void.36 (Emphasis and underscoring
supplied)
The SSC and the SSS separately filed their Motions for Reconsideration 37 which were both
denied for lack of merit.
Hence, the SSS’ present petition for review on certiorari 38 anchored on the following grounds:
I
THE DECISION OF THE HONORABLE COURT OF APPEALS IS CONTRARY TO LAW.
II
THE HONORABLE COURT OF APPEALS GRAVELY ABUSED ITS DISCRETION
AMOUNTING TO LACK OF JURISDICTION.39
The SSS faults the CA for failing to give due consideration to the findings of facts of the SSC
on the prior and subsisting marriage between Bailon and Alice; in disregarding the authority of
the SSC to determine to whom, between Alice and respondent, the death benefits should be
awarded pursuant to Section 540 of the Social Security Law; and in declaring that the SSS did
not give respondent due process or ample opportunity to present evidence in her behalf.
The SSS submits that "the observations and findings relative to the CFI proceedings are of no
moment to the present controversy, as the same may be considered only as obiter dicta in
view of the SSC’s finding of the existence of a prior and subsisting marriage between Bailon
and Alice by virtue of which Alice has a better right to the death benefits."41
The petition fails.
That the SSC is empowered to settle any dispute with respect to SSS coverage, benefits and
contributions, there is no doubt. In so exercising such power, however, it cannot review, much
less reverse, decisions rendered by courts of law as it did in the case at bar when it declared
that the December 10, 1970 CFI Order was obtained through fraud and subsequently
disregarded the same, making its own findings with respect to the validity of Bailon and Alice’s
marriage on the one hand and the invalidity of Bailon and respondent’s marriage on the other.
In interfering with and passing upon the CFI Order, the SSC virtually acted as an appellate
court. The law does not give the SSC unfettered discretion to trifle with orders of regular courts
in the exercise of its authority to determine the beneficiaries of the SSS.
The two marriages involved herein having been solemnized prior to the effectivity on August 3,
1988 of the Family Code, the applicable law to determine their validity is the Civil Code which
was the law in effect at the time of their celebration.42
Article 83 of the Civil Code43 provides:
Art. 83. Any marriage subsequently contracted by any person during the lifetime of the first
spouse of such person with any person other than such first spouse shall be illegal and void
from its performance, unless:
(1) The first marriage was annulled or dissolved; or
(2) The first spouse had been absent for seven consecutive years at the time of the
second marriage without the spouse present having news of the absentee being
alive, or if the absentee, though he has been absent for less than seven years, is
generally considered as dead and believed to be so by the spouse present at the time
of contracting such subsequent marriage, or if the absentee is presumed dead
according to Articles 390 and 391. The marriage so contracted shall be valid in any
of the three cases until declared null and void by a competent court. (Emphasis and
underscoring supplied)
37
Under the foregoing provision of the Civil Code, a subsequent marriage contracted during the
lifetime of the first spouse is illegal and void ab initio unless the prior marriage is first annulled
or dissolved or contracted under any of the three exceptional circumstances. It bears noting
that the marriage under any of these exceptional cases is deemed valid "until declared null and
void by a competent court." It follows that the onus probandi in these cases rests on the party
assailing the second marriage.44
In the case at bar, as found by the CFI, Alice had been absent for 15 consecutive years 45 when
Bailon sought the declaration of her presumptive death, which judicial declaration was not
even a requirement then for purposes of remarriage.46
Eminent jurist Arturo M. Tolentino (now deceased) commented:
Where a person has entered into two successive marriages, a presumption arises in favor of
the validity of the second marriage, and the burden is on the party attacking the validity of the
second marriage to prove that the first marriage had not been dissolved; it is not enough to
prove the first marriage, for it must also be shown that it had not ended when the second
marriage was contracted. The presumption in favor of the innocence of the defendant from
crime or wrong and of the legality of his second marriage, will prevail over the presumption of
the continuance of life of the first spouse or of the continuance of the marital relation with such
first spouse.47 (Underscoring supplied)
Under the Civil Code, a subsequent marriage being voidable,48 it is terminated by final
judgment of annulment in a case instituted by the absent spouse who reappears or by either of
the spouses in the subsequent marriage.
Under the Family Code, no judicial proceeding to annul a subsequent marriage is necessary.
Thus Article 42 thereof provides:
Art. 42. The subsequent marriage referred to in the preceding Article shall be automatically
terminated by the recording of the affidavit of reappearance of the absent spouse, unless
there is a judgment annulling the previous marriage or declaring it void ab initio.
A sworn statement of the fact and circumstances of reappearance shall be recorded in the civil
registry of the residence of the parties to the subsequent marriage at the instance of any
interested person, with due notice to the spouses of the subsequent marriage and without
prejudice to the fact of reappearance being judicially determined in case such fact is disputed.
(Emphasis and underscoring supplied)
The termination of the subsequent marriage by affidavit provided by the above-quoted
provision of the Family Code does not preclude the filing of an action in court to prove the
reappearance of the absentee and obtain a declaration of dissolution or termination of the
subsequent marriage.49
If the absentee reappears, but no step is taken to terminate the subsequent marriage, either by
affidavit or by court action, such absentee’s mere reappearance, even if made known to the
spouses in the subsequent marriage, will not terminate such marriage.50 Since the second
marriage has been contracted because of a presumption that the former spouse is dead, such
presumption continues inspite of the spouse’s physical reappearance, and by fiction of law, he
or she must still be regarded as legally an absentee until the subsequent marriage is
terminated as provided by law.51
If the subsequent marriage is not terminated by registration of an affidavit of reappearance or
by judicial declaration but by death of either spouse as in the case at bar, Tolentino submits:
x x x [G]enerally if a subsequent marriage is dissolved by the death of either spouse, the
effects of dissolution of valid marriages shall arise. The good or bad faith of either spouse can
no longer be raised, because, as in annullable or voidable marriages, the marriage cannot be
questioned except in a direct action for annulment.52 (Underscoring supplied)
Similarly, Lapuz v. Eufemio53 instructs:
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.54 (Emphasis and underscoring
supplied)
It bears reiterating that a voidable marriage cannot be assailed collaterally except in a direct
proceeding. Consequently, such marriages can be assailed only during the lifetime of the
parties and not after the death of either, in which case the parties and their offspring will be left
as if the marriage had been perfectly valid.55 Upon the death of either, the marriage cannot be
impeached, and is made good ab initio.56
In the case at bar, as no step was taken to nullify, in accordance with law, Bailon’s and
respondent’s marriage prior to the former’s death in 1998, respondent is rightfully the
dependent spouse-beneficiary of Bailon.
38
In light of the foregoing discussions, consideration of the other issues raised has been
rendered unnecessary.
WHEREFORE, the petition is DENIED.
No costs.
SO ORDERED.
G.R. No. 187061, October 08, 2014
CELERINA J. SANTOS, Petitioner, v. RICARDO T. SANTOS, Respondent.
DECISION
LEONEN, J.:
The proper remedy for a judicial declaration of presumptive death obtained by
extrinsic fraud is an action to annul the judgment. An affidavit of reappearance is
not the proper remedy when the person declared presumptively dead has never
been absent.
This is a petition for review on certiorari filed by Celerina J. Santos, assailing the
Court of Appeals' resolutions dated November 28, 2008 and March 5, 2009. The
Court of Appeals dismissed the petition for the annulment of the trial court's
judgment declaring her presumptively dead.
On July 27, 2007, the Regional Trial Court of Tarlac City declared petitioner
Celerina J. Santos (Celerina) presumptively dead after her husband, respondent
Ricardo T. Santos (Ricardo), had filed a petition for declaration of absence or
presumptive death for the purpose of remarriage on June 15, 2007.1 Ricardo
remarried on September 17, 2008.2chanrobleslaw
In his petition for declaration of absence or presumptive death, Ricardo alleged
that he and Celerina rented an apartment somewhere in San Juan, Metro Manila;
after they had gotten married on June 18, 1980.3 After a year, they moved to
Tarlac City. They were engaged in the buy and sell business.4chanrobleslaw
Ricardo claimed that their business did not prosper.5 As a result, Celerina
convinced him to allow her to work as a domestic helper in Hong Kong.6 Ricardo
initially refused but because of Celerina's insistence, he allowed her to work
abroad.7 She allegedly applied in an employment agency in Ermita, Manila, in
February 1995. She left Tarlac two months after and was never heard from
again.8chanrobleslaw
Ricardo further alleged that he exerted efforts to locate Celerina.9 He went to
Celerina's parents in Cubao, Quezon City, but they, too, did not know their
daughter's whereabouts.10 He also inquired about her from other relatives and
friends, but no one gave him any information.11chanrobleslaw
Ricardo claimed that it was almost 12 years from the date of his Regional Trial
Court petition since Celerina left. He believed that she had passed
away.12chanrobleslaw
Celerina claimed that she learned about Ricardo's petition only sometime in
October 2008 when she could no longer avail the remedies of new trial, appeal,
petition for relief, or other appropriate remedies.13chanrobleslaw
On November 17, 2008, Celerina filed a petition for annulment of
judgment14 before the Court of Appeals on the grounds of extrinsic fraud and lack
of jurisdiction. She argued that she was deprived her day in court when Ricardo,
despite his knowledge of her true residence, misrepresented to the court that she
was a resident of Tarlac City.15 According to Celerina, her true residence was in
Neptune Extension, Congressional Avenue, Quezon City.16 This residence had been
her and Ricardo's conjugal dwelling since 1989 until Ricardo left in May 2008.17 As
a result of Ricardo's misrepresentation, she was deprived of any notice of and
opportunity to oppose the petition declaring her presumptively
dead.18chanrobleslaw
Celerina claimed that she never resided in Tarlac. She also never left and worked
as a domestic helper abroad.20 Neither did she go to an employment agency in
February 1995.21 She also claimed that it was not true that she had been absent
for 12 years. Ricardo was aware that she never left their conjugal dwelling in
Quezon City.22 It was he who left the conjugal dwelling in May 2008 to cohabit
with another woman.23 Celerina referred to a joint affidavit executed by their
children to support her contention that Ricardo made false allegations in his
petition.24chanrobleslaw
Celerina also argued that the court did not acquire jurisdiction over Ricardo's
petition because it had never been published in a newspaper.25 She added that the
Office of the Solicitor General and the Provincial Prosecutor's Office were not
furnished copies of Ricardo's petition.26chanrobleslaw
39
The Court of Appeals issued the resolution dated November 28, 2008, dismissing
Celerina's petition for annulment of judgment for being a wrong mode of
remedy.27 According to the Court of Appeals, the proper remedy was to file a
sworn statement before the civil registry, declaring her reappearance in
accordance with Article 42 of the Family Code.28chanrobleslaw
Celerina filed a motion for reconsideration of the Court of Appeals' resolution dated
November 28, 2008.29 The Court of Appeals denied the motion for reconsideration
in the resolution dated March 5, 2009.30chanrobleslaw
Hence, this petition was filed.
The issue for resolution is whether the Court of Appeals erred in dismissing
Celerina's petition for annulment of judgment for being a wrong remedy for a
fraudulently obtained judgment declaring presumptive death.
Celerina argued that filing an affidavit of reappearance under Article 42 of the
Family Code is appropriate only when the spouse is actually absent and the spouse
seeking the declaration of presumptive death actually has a well-founded belief of
the spouse's death.31 She added that it would be inappropriate to file an affidavit
of reappearance if she did not disappear in the first place.32 She insisted that an
action for annulment of judgment is proper when the declaration of presumptive
death is obtained fraudulently.33chanrobleslaw
Celerina further argued that filing an affidavit of reappearance under Article 42 of
the Family Code would not be a sufficient remedy because it would not nullify the
legal effects of the judgment declaring her presumptive death.34chanrobleslaw
In Ricardo's comment,35 he argued that a petition for annulment of judgment is
not the proper remedy because it cannot be availed when there are other
remedies available. Celerina could always file an affidavit of reappearance to
terminate the subsequent marriage. Ricardo iterated the Court of Appeals' ruling
that the remedy afforded to Celerina under Article 42 of the Family Code is the
appropriate remedy.
The petition is meritorious.
Annulment of judgment is the remedy when the Regional Trial Court's judgment,
order, or resolution has become final, and the "remedies of new trial, appeal,
petition for relief (or other appropriate remedies) are no longer available through
no fault of the petitioner."36chanrobleslaw
The grounds for annulment of judgment are extrinsic fraud and lack of
jurisdiction.37 This court defined extrinsic fraud in Stilianopulos v. City of
Legaspi:38chanrobleslaw
For fraud to become a basis for annulment of judgment, it has to be extrinsic or
actual. It is intrinsic when the fraudulent acts pertain to an issue involved in the
original action or where the acts constituting the fraud were or could have been
litigated, It is extrinsic or collateral when a litigant commits acts outside of the
trial which prevents a parly from having a real contest, or from presenting all of
his case, such that there is no fair submission of the controversy.39 (Emphasis
supplied)
Celerina alleged in her petition for annulment of judgment that there was fraud
when Ricardo deliberately made false allegations in the court with respect to her
residence.40 Ricardo also falsely claimed that she was absent for 12 years. There
was also no publication of the notice of hearing of Ricardo's petition in a
newspaper of general circulation.41 Celerina claimed that because of these, she
was deprived of notice and opportunity to oppose Ricardo's petition to declare her
presumptively dead.42chanrobleslaw
Celerina alleged that all the facts supporting Ricardo's petition for declaration of
presumptive death were false.43 Celerina further claimed that the court did not
acquire jurisdiction because the Office of the Solicitor General and the Provincial
Prosecutor's Office were not given copies of Ricardo's petition.44chanrobleslaw
These are allegations of extrinsic fraud and lack of jurisdiction. Celerina alleged in
her petition with the Court of Appeals sufficient ground/s for annulment of
judgment.
Celerina filed her petition for annulment of judgment 45 on November 17, 2008.
This was less than two years from the July 27, 2007 decision declaring her
presumptively dead and about a month from her discovery of the decision in
October 2008. The petition was, therefore, filed within the four-year period
allowed by law in case of extrinsic fraud, and before the action is barred by laches,
which is the period allowed in case of lack of jurisdiction.46chanrobleslaw
There was also no other sufficient remedy available to Celerina at the time of her
discovery of the fraud perpetrated on her.
The choice of remedy is important because remedies carry with them certain
admissions, presumptions, and conditions.
40
The Family Code provides that it is the proof of absence of a spouse for four
consecutive years, coupled with a well-founded belief by the present spouse that
the absent spouse is already dead, that constitutes a justification for a second
marriage during the subsistence of another marriage.47chanrobleslaw
The Family Code also provides that the second marriage is in danger of being
terminated by the presumptively dead spouse when he or she reappears.
Thus:chanRoblesvirtualLawlibrary
Article 42. The subsequent marriage referred to in the preceding Article shall be
automatically terminated by the recording of the affidavit of reappearance of the
absent spouse, unless there is a judgment annulling the previous marriage or
declaring it void ab initio.
A sworn statement of the fact and circumstances of reappearance shall be
recorded in the civil registry of the residence of the parties to the subsequent
marriage at the instance of any interested person, with due notice to the spouses
of the subsequent marriage and without prejudice to the fact of reappearance
being judicially determined in case such fact is disputed. (Emphasis supplied)
In other words, the Family Code provides the presumptively dead spouse with the
remedy of terminating the subsequent marriage by mere reappearance.
The filing of an affidavit of reappearance is an admission on the part of the first
spouse that his or her marriage to the present spouse was terminated when he or
she was declared absent or presumptively dead.
Moreover, a close reading of the entire Article 42 reveals that the termination of
the subsequent marriage by reappearance is subject to several conditions: (1) the
non-existence of a judgment annulling the previous marriage or declaring it
void ab initio; (2) recording in the civil registry of the residence of the parties to
the subsequent marriage of the sworn statement of fact and circumstances of
reappearance; (3) due notice to the spouses of the subsequent marriage of the
fact of reappearance; and (4) the fact of reappearance must either be undisputed
or judicially determined.
The existence of these conditions means that reappearance does not always
immediately cause the subsequent marriage's termination. Reappearance of the
absent or presumptively dead spouse will cause the termination of the subsequent
marriage only when all the conditions enumerated in the Family Code are present.
Hence, the subsequent marriage may still subsist despite the absent or
presumptively dead spouse's reappearance (1) if the first marriage has already
been annulled or has been declared a nullity; (2) if the sworn statement of the
reappearance is not recorded in the civil registry of the subsequent spouses'
residence; (3) if there is no notice to the subsequent spouses; or (4) if the fact of
reappearance is disputed in the proper courts of law, and no judgment is yet
rendered confirming, such fact of reappearance.
When subsequent marriages are contracted after a judicial declaration of
presumptive death, a presumption arises that the first spouse is already dead and
that the second marriage is legal. This presumption should prevail over the
continuance of the marital relations with the first spouse.48 The second marriage,
as with all marriages, is presumed valid.49 The burden of proof to show that the
first marriage was not properly dissolved rests on the person assailing the validity
of the second marriage.50chanrobleslaw
This court recognized the conditional nature of reappearance as a cause for
terminating the subsequent marriage in Social Security System v. Vda. de
Bailon.51 This court noted52 that mere reappearance will not terminate the
subsequent marriage even if the parties to the subsequent marriage were notified
if there was "no step . . . taken to terminate the subsequent marriage, either by
[filing an] affidavit [of reappearance] or by court action[.]"53 "Since the second
marriage has been contracted because of a presumption that the former spouse is
dead, such presumption continues inspite of the spouse's physical reappearance,
and by fiction of law, he or she must still be regarded as legally an absentee until
the subsequent marriage is terminated as provided by law."54chanrobleslaw
The choice of the proper remedy is also important for purposes of determining the
status of the second marriage and the liabilities of the spouse who, in bad faith,
claimed that the other spouse was absent.
A second marriage is bigamous while the first subsists. However, a bigamous
subsequent marriage may be considered valid when the following are
present:chanRoblesvirtualLawlibrary
1) The prior spouse had been absent for four consecutive years;
2) The spouse present has a well-founded belief that the absent spouse was
already dead;
3) There must be a summary proceeding for the declaration of presumptive
death of the absent spouse; and
4) There is a court declaration of presumptive death of the absent spouse.55
41
A subsequent marriage contracted in bad faith, even if it was contracted after a
court declaration of presumptive death, lacks the requirement of a well-founded
belief56 that the spouse is already dead. The first marriage will not be considered
as. validly terminated. Marriages contracted prior to the valid termination of a
subsisting marriage are generally considered bigamous and void.57 Only a
subsequent marriage contracted in good faith is protected by law.
Therefore, the party who contracted the subsequent marriage in bad faith is also
not immune from an action to declare his subsequent marriage void for being
bigamous. The prohibition against marriage during the subsistence of another
marriage still applies.58chanrobleslaw
If, as Celerina contends, Ricardo was in bad faith when he filed his petition to
declare her presumptively dead and when he contracted the subsequent marriage,
such marriage would be considered void for being bigamous under Article 35(4) of
the Family Code. This is because the circumstances lack the element of "well-
founded belief under Article 41 of the Family Code, which is essential for the
exception to the rule against bigamous marriages to apply.59chanrobleslaw
The provision on reappearance in the Family Code as a remedy to effect the
termination of the subsequent marriage does not preclude the spouse who was
declared presumptively dead from availing other remedies existing in law. This
court had, in fact, recognized that a subsequent marriage may also be terminated
by filing "an action in court to prove the reappearance of the absentee and obtain
a declaration of dissolution or termination of the subsequent
marriage."60chanrobleslaw
Celerina does not admit to have been absent. She also seeks not merely the
termination of the subsequent marriage but also the nullification of its effects. She
contends that reappearance is not a sufficient remedy because it will only
terminate the subsequent marriage but not nullify the effects of the declaration of
her presumptive death and the subsequent marriage.
Celerina is correct. Since an undisturbed subsequent marriage under Article 42 of
the Family Code is valid until terminated, the "children of such marriage shall be
considered legitimate, and the property relations of the spouse[s] in such marriage
will be the same as in valid marriages."61 If it is terminated by mere reappearance,
the children of the subsequent marriage conceived before the termination shall still
be considered legitimate.62 Moreover, a judgment declaring presumptive death is a
defense against prosecution for bigamy.63chanrobleslaw
It is true that in most cases, an action to declare the nullity of the subsequent
marriage may nullify the effects of the subsequent marriage, specifically, in
relation to the status of children and the prospect of prosecuting a respondent for
bigamy.
However, "a Petition for Declaration of Absolute Nullity of Void Marriages may be
filed solely by the husband or wife."64 This means that even if Celerina is a real
party in interest who stands to be benefited or injured by the outcome of an action
to nullify the second marriage,65 this remedy is not available to her.
Therefore, for the purpose of not only terminating the subsequent marriage but
also of nullifying the effects of the declaration of presumptive death and the
subsequent marriage, mere filing of an affidavit of reappearance would not suffice.
Celerina's choice to file an action for annulment of judgment will, therefore, lie.
WHEREFORE, the case is REMANDED to the Court of Appeals for determination
of the existence of extrinsic fraud, grounds for nullity/annulment of the first
marriage, and the merits of the petition.
SO ORDERED.cralawlawlibrary
G.R. No. 184621 December 10, 2013
REPUBLIC OF THE PHILIPPINES, Petitioner,
vs.
MARIA FE ESPINOSA CANTOR, Respondent.
DECISION
BRION, J.:
The petition for review on certiorari1 before us assails the decision2 dated August 27, 2008 of
the Court of Appeals (CA) in CA-G.R. SP No. 01558-MIN which affirmed be order3 dated
December 15, 2006 of the Regional Trial Court (RTC), Branch 25, Koronadal City, South
Cotabato, in SP Proc. Case No. 313-25, declaring Jerry F. Cantor, respondent Maria Fe
Espinosa Cantor’s husband, presumptively dead under Article 41 of the Family Code.
The Factual Antecedents
The respondent and Jerry were married on September 20, 1997. They lived together as
husband and wife in their conjugal dwelling in Agan Homes, Koronadal City, South Cotabato.
42
Sometime in January 1998, the couple had a violent quarrel brought about by: (1) the
respondent’s inability to reach "sexual climax" whenever she and Jerry would have intimate
moments; and (2) Jerry’s expression of animosity toward the respondent’s father.
After their quarrel, Jerry left their conjugal dwelling and this was the last time that the
respondent ever saw him. Since then, she had not seen, communicated nor heard anything
from Jerry or about his whereabouts.
On May 21, 2002, or more than four (4) years from the time of Jerry’s disappearance, the
respondent filed before the RTC a petition4for her husband’s declaration of presumptive death,
docketed as SP Proc. Case No. 313-25. She claimed that she had a well-founded belief that
Jerry was already dead. She alleged that she had inquired from her mother-in-law, her
brothers-in-law, her sisters-in-law, as well as her neighbors and friends, but to no avail. In the
hopes of finding Jerry, she also allegedly made it a point to check the patients’ directory
whenever she went to a hospital. All these earnest efforts, the respondent claimed, proved
futile, prompting her to file the petition in court.
The Ruling of the RTC
After due proceedings, the RTC issued an order granting the respondent’s petition and
declaring Jerry presumptively dead. It concluded that the respondent had a well-founded belief
that her husband was already dead since more than four (4) years had passed without the
former receiving any news about the latter or his whereabouts. The dispositive portion of the
order dated December 15, 2006 reads:
WHEREFORE, the Court hereby declares, as it hereby declared that respondent Jerry F.
Cantor is presumptively dead pursuant to Article 41 of the Family Code of the Philippines
without prejudice to the effect of the reappearance of the absent spouse Jerry F. Cantor. 5
The Ruling of the CA
The case reached the CA through a petition for certiorari6filed by the petitioner, Republic of the
Philippines, through the Office of the Solicitor General (OSG). In its August 27, 2008 decision,
the CA dismissed the petitioner’s petition, finding no grave abuse of discretion on the RTC’s
part, and, accordingly, fully affirmed the latter’s order, thus:
WHEREFORE, premises foregoing (sic), the instant petition is hereby DISMISSED and the
assailed Order dated December 15, 2006 declaring Jerry F. Cantor presumptively dead is
hereby AFFIRMED in toto.7
The petitioner brought the matter via a Rule 45 petition before this Court. The Petition The
petitioner contends that certiorari lies to challenge the decisions, judgments or final orders of
trial courts in petitions for declaration of presumptive death of an absent spouse under Rule 41
of the Family Code. It maintains that although judgments of trial courts in summary judicial
proceedings, including presumptive death cases, are deemed immediately final and executory
(hence, not appeal able under Article 247 of the Family Code), this rule does not mean that
they are not subject to review on certiorari.
The petitioner also posits that the respondent did not have a well-founded belief to justify the
declaration of her husband’s presumptive death. It claims that the respondent failed to conduct
the requisite diligent search for her missing husband. Likewise, the petitioner invites this
Court’s attention to the attendant circumstances surrounding the case, particularly, the degree
of search conducted and the respondent’s resultant failure to meet the strict standard under
Article 41 of the Family Code.
The Issues
The petition poses to us the following issues:
(1) Whether certiorarilies to challenge the decisions, judgments or final orders of trial
courts in petitions for declaration of presumptive death of an absent spouse under
Article 41 of the Family Code; and
(2) Whether the respondent had a well-founded belief that Jerry is already dead.
The Court’s Ruling
We grant the petition.
a. On the Issue of the Propriety of Certiorari as a Remedy
Court’s Judgment in the Judicial
Proceedings for Declaration of
Presumptive Death Is Final and
Executory, Hence, Unappealable
The Family Code was explicit that the court’s judgment in summary proceedings, such as the
declaration of presumptive death of an absent spouse under Article 41 of the Family Code,
shall be immediately final and executory.
Article 41,in relation to Article 247, of the Family Code provides:
43
Art. 41. A marriage contracted by any person during 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 has 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 Code for the
declaration of presumptive death of the absentee, without prejudice to the effect of
reappearance of the absent spouse.
Art. 247. The judgment of the court shall be immediately final and executory. [underscores
ours]
With the judgment being final, it necessarily follows that it is no longer subject to an appeal, the
dispositions and conclusions therein having become immutable and unalterable not only as
against the parties but even as against the courts.8 Modification of the court’s ruling, no matter
how erroneous is no longer permissible. The final and executory nature of this summary
proceeding thus prohibits the resort to appeal. As explained in Republic of the Phils. v.
Bermudez-Lorino,9 the right to appeal is not granted to parties because of the express
mandate of Article 247 of the Family Code, to wit:
In Summary Judicial Proceedings under the Family Code, there is no reglementary period
within which to perfect an appeal, precisely because judgments rendered thereunder, by
express provision of [Article] 247, Family Code, supra, are "immediately final and executory." It
was erroneous, therefore, on the part of the RTCto give due course to the Republic’s appeal
and order the transmittal of the entire records of the case to the Court of Appeals.
An appellate court acquires no jurisdiction to review a judgment which, by express provision of
law, is immediately final and executory. As we have said in Veloria vs. Comelec, "the right to
appeal is not a natural right nor is it a part of due process, for it is merely a statutory privilege."
Since, by express mandate of Article 247 of the Family Code, all judgments rendered in
summary judicial proceedings in Family Law are "immediately final and executory," the right to
appeal was not granted to any of the parties therein. The Republic of the Philippines, as
oppositor in the petition for declaration of presumptive death, should not be treated differently.
It had no right to appeal the RTC decision of November 7, 2001. [emphases ours; italics
supplied]
Certiorari Lies to Challenge the
Decisions, Judgments or Final
Orders of Trial Courts in a Summary
Proceeding for the Declaration of Presumptive
Death Under the Family Code
A losing party in this proceeding, however, is not entirely left without a remedy. While
jurisprudence tells us that no appeal can be made from the trial court's judgment, an aggrieved
party may, nevertheless, file a petition for certiorari under Rule 65 of the Rules of Court to
question any abuse of discretion amounting to lack or excess of jurisdiction that transpired.
As held in Delos Santos v. Rodriguez, et al.,10 the fact that a decision has become final does
not automatically negate the original action of the CA to issue certiorari, prohibition and
mandamus in connection with orders or processes issued by the trial court. Certiorari may be
availed of where a court has acted without or in excess of jurisdiction or with grave abuse of
discretion, and where the ordinary remedy of appeal is not available. Such a procedure finds
support in the case of Republic v. Tango,11 wherein we held that:
This case presents an opportunity for us to settle the rule on appeal of judgments rendered in
summary proceedings under the Family Code and accordingly, refine our previous decisions
thereon.
Article 238 of the Family Code, under Title XI: SUMMARY JUDICIAL PROCEEDINGS IN THE
FAMILY LAW, establishes the rules that govern summary court proceedings in the Family
Code:
"ART. 238. Until modified by the Supreme Court, the procedural rules in this Title shall apply in
all cases provided for in this Code requiring summary court proceedings. Such cases shall be
decided in an expeditious manner without regard to technical rules."
In turn, Article 253 of the Family Code specifies the cases covered by the rules in chapters two
and three of the same title. It states:
"ART. 253. The foregoing rules in Chapters 2and 3 hereof shall likewise govern summary
proceedings filed under Articles 41, 51, 69, 73, 96, 124 and 217, insofar as they are
applicable."(Emphasis supplied.)
In plain text, Article 247 in Chapter 2 of the same title reads:
"ART.247. The judgment of the court shall be immediately final and executory."
By express provision of law, the judgment of the court in a summary proceeding shall be
immediately final and executory. As a matter of course, it follows that no appeal can be had of
the trial court's judgment ina summary proceeding for the declaration of presumptive death of
44
an absent spouse under Article 41 of the Family Code. It goes without saying, however, that an
aggrieved party may file a petition for certiorari to question abuse of discretion amounting to
lack of jurisdiction. Such petition should be filed in the Court of Appeals in accordance with the
Doctrine of Hierarchy of Courts. To be sure, even if the Court's original jurisdiction to issue a
writ of certiorari is concurrent with the RTCs and the Court of Appeals in certain cases, such
concurrence does not sanction an unrestricted freedom of choice of court forum. [emphasis
ours]
Viewed in this light, we find that the petitioner’s resort to certiorari under Rule 65 of the Rules
of Court to question the RTC’s order declaring Jerry presumptively dead was proper.
b. On the Issue of the Existence of Well-Founded Belief
The Essential Requisites for the
Declaration of Presumptive Death
Under Article 41 of the Family Code
Before a judicial declaration of presumptive death can be obtained, it must be shown that the
prior spouse had been absent for four consecutive years and the present spouse had a well-
founded belief that the prior spouse was already dead. Under Article 41 of the Family Code,
there are four (4) essential requisites for the declaration of presumptive death:
1. That the absent spouse has been missing for four consecutive years, or two
consecutive years if the disappearance occurred where there is danger of death
under the circumstances laid down in Article 391, Civil Code;
2. That the present spouse wishes to remarry;
3. That the present spouse has a well-founded belief that the absentee is dead; and
4. That the present spouse files a summary proceeding for the declaration of
presumptive death of the absentee.12
The Present Spouse Has the Burden
of Proof to Show that All the
Requisites Under Article 41 of the
Family Code Are Present
The burden of proof rests on the present spouse to show that all the requisites under Article 41
of the Family Code are present. Since it is the present spouse who, for purposes of declaration
of presumptive death, substantially asserts the affirmative of the issue, it stands to reason that
the burden of proof lies with him/her. He who alleges a fact has the burden of proving it and
mere allegation is not evidence.13
Declaration of Presumptive Death
Under Article 41 of the Family Code
Imposes a Stricter Standard
Notably, Article 41 of the Family Code, compared to the old provision of the Civil Code which it
superseded, imposes a stricter standard. It requires a "well-founded belief " that the absentee
is already dead before a petition for declaration of presumptive death can be granted. We have
had occasion to make the same observation in Republic v. Nolasco,14 where we noted the
crucial differences between Article 41 of the Family Code and Article 83 of the Civil Code, to
wit:
Under Article 41, the time required for the presumption to arise has been shortened to four (4)
years; however, there is need for a judicial declaration of presumptive death to enable the
spouse present to remarry. Also, Article 41 of the Family Code imposes a stricter standard
than the Civil Code: Article 83 of the Civil Code merely requires either that there be no news
that such absentee is still alive; or the absentee is generally considered to be dead and
believed to be so by the spouse present, or is presumed dead under Articles 390 and 391 of
the Civil Code. The Family Code, upon the other hand, prescribes as "well founded belief" that
the absentee is already dead before a petition for declaration of presumptive death can be
granted.
Thus, mere absence of the spouse (even for such period required by the law), lack of any
news that such absentee is still alive, failure to communicate or general presumption of
absence under the Civil Code would not suffice. This conclusion proceeds from the premise
that Article 41 of the Family Code places upon the present spouse the burden of proving the
additional and more stringent requirement of "well-founded belief" which can only be
discharged upon a showing of proper and honest-to-goodness inquiries and efforts to ascertain
not only the absent spouse’s whereabouts but, more importantly, that the absent spouse is still
alive or is already dead.15
The Requirement of Well-Founded Belief
The law did not define what is meant by "well-founded belief." It depends upon the
circumstances of each particular case. Its determination, so to speak, remains on a case-to-
case basis. To be able to comply with this requirement, the present spouse must prove that
his/her belief was the result of diligent and reasonable efforts and inquiries to locate the absent
spouse and that based on these efforts and inquiries, he/she believes that under the
circumstances, the absent spouseis already dead. It requires exertion of active effort (not a
mere passive one).
45
To illustrate this degree of "diligent and reasonable search" required by the law, an analysis of
the following relevant cases is warranted:
i. Republic of the Philippines v. Court of Appeals (Tenth Div.)16
In Republic of the Philippines v. Court of Appeals (Tenth Div.),17 the Court ruled that the
present spouse failed to prove that he had a well-founded belief that his absent spouse was
already dead before he filed his petition. His efforts to locate his absent wife allegedly
consisted of the following:
(1) He went to his in-laws’ house to look for her;
(2) He sought the barangay captain’s aid to locate her;
(3) He went to her friends’ houses to find her and inquired about her whereabouts
among his friends;
(4) He went to Manila and worked as a part-time taxi driver to look for her in malls
during his free time;
(5) He went back to Catbalogan and again looked for her; and
(6) He reported her disappearance to the local police station and to the NBI.
Despite these alleged "earnest efforts," the Court still ruled against the present spouse. The
Court found that he failed to present the persons from whom he allegedly made inquiries and
only reported his wife’s absence after the OSG filed its notice to dismiss his petition in the
RTC.
The Court also provided the following criteria for determining the existence of a "well-founded
belief" under Article 41 of the Family Code:
The belief of the present spouse must be the result of proper and honest to goodness inquiries
and efforts to ascertain the whereabouts of the absent spouse and whether the absent spouse
is still alive or is already dead. Whether or not the spouse present acted on a well-founded
belief of death of the absent spouse depends upon the inquiries to be drawn from a great
many circumstances occurring before and after the disappearance of the absent spouse and
the nature and extent of the inquiries made by [the] present spouse. 18
ii. Republic v. Granada19
Similarly in Granada, the Court ruled that the absent spouse failed to prove her "well-founded
belief" that her absent spouse was already dead prior to her filing of the petition. In this case,
the present spouse alleged that her brother had made inquiries from their relatives regarding
the absent spouse’s whereabouts. The present spouse did not report to the police nor seek the
aid of the mass media. Applying the standards in Republic of the Philippines v. Court of
Appeals (Tenth Div.),20 the Court ruled against the present spouse, as follows:
Applying the foregoing standards to the present case, petitioner points out that respondent
Yolanda did not initiate a diligent search to locate her absent husband. While her brother
Diosdado Cadacio testified to having inquiredabout the whereabouts of Cyrus from the latter’s
relatives, these relatives were not presented to corroborate Diosdado’s testimony. In short,
respondent was allegedly not diligent in her search for her husband. Petitioner argues that if
she were, she would have sought information from the Taiwanese Consular Office or
assistance from other government agencies in Taiwan or the Philippines. She could have also
utilized mass media for this end, but she did not. Worse, she failed to explain these omissions.
iii.Republic v. Nolasco21
In Nolasco, the present spouse filed a petition for declaration of presumptive death of his wife,
who had been missing for more than four years. He testified that his efforts to find her
consisted of:
(1) Searching for her whenever his ship docked in England;
(2) Sending her letters which were all returned to him; and
(3) Inquiring from their friends regarding her whereabouts, which all proved fruitless.
The Court ruled that the present spouse’s investigations were too sketchy to form a
basis that his wife was already dead and ruled that the pieces of evidence only
proved that his wife had chosen not to communicate with their common
acquaintances, and not that she was dead.
iv.The present case
In the case at bar, the respondent’s "well-founded belief" was anchored on her alleged
"earnest efforts" to locate Jerry, which consisted of the following:
(1) She made inquiries about Jerry’s whereabouts from her in-laws, neighbors and
friends; and
46
(2) Whenever she went to a hospital, she saw to it that she looked through the
patients’ directory, hoping to find Jerry.
These efforts, however, fell short of the "stringent standard" and degree of diligence required
by jurisprudence for the following reasons:
First, the respondent did not actively look for her missing husband.1âwphi1 It can be inferred
from the records that her hospital visits and her consequent checking of the patients’ directory
therein were unintentional. She did not purposely undertake a diligent search for her husband
as her hospital visits were not planned nor primarily directed to look for him. This Court thus
considers these attempts insufficient to engender a belief that her husband is dead.
Second, she did not report Jerry’s absence to the police nor did she seek the aid of the
authorities to look for him. While a finding of well-founded belief varies with the nature of the
situation in which the present spouse is placed, under present conditions, we find it proper and
prudent for a present spouse, whose spouse had been missing, to seek the aid of the
authorities or, at the very least, report his/her absence to the police.
Third, she did not present as witnesses Jerry’s relatives or their neighbors and friends, who
can corroborate her efforts to locate Jerry. Worse, these persons, from whom she allegedly
made inquiries, were not even named. As held in Nolasco, the present spouse’s bare assertion
that he inquired from his friends about his absent spouse’s whereabouts is insufficient as the
names of the friends from whom he made inquiries were not identified in the testimony nor
presented as witnesses.
Lastly, there was no other corroborative evidence to support the respondent’s claim that she
conducted a diligent search. Neither was there supporting evidence proving that she had a
well-founded belief other than her bare claims that she inquired from her friends and in-laws
about her husband’s whereabouts. In sum, the Court is of the view that the respondent merely
engaged in a "passive search" where she relied on uncorroborated inquiries from her in-laws,
neighbors and friends. She failed to conduct a diligent search because her alleged efforts are
insufficient to form a well-founded belief that her husband was already dead. As held
in Republic of the Philippines v. Court of Appeals (Tenth Div.),22 "[w]hether or not the spouse
present acted on a well-founded belief of death of the absent spouse depends upon the
inquiries to be drawn from a great many circumstances occurring before and after the
disappearance of the absent spouse and the natureand extent of the inquiries made by [the]
present spouse."
Strict Standard Approach Is
Consistent with the State’s Policy
to Protect and Strengthen Marriage
In the above-cited cases, the Court, fully aware of the possible collusion of spouses in
nullifying their marriage, has consistently applied the "strictstandard" approach. This is to
ensure that a petition for declaration of presumptive death under Article 41 of the Family Code
is not used as a tool to conveniently circumvent the laws. Courts should never allow procedural
shortcuts and should ensure that the stricter standard required by the Family Code is met.
In Republic of the Philippines v. Court of Appeals (Tenth Div.),23 we emphasized that:
In view of the summary nature of proceedings under Article 41 of the Family Code for the
declaration of presumptive death of one’s spouse, the degree of due diligence set by this
Honorable Court in the above-mentioned cases in locating the whereabouts of a missing
spouse must be strictly complied with. There have been times when Article 41 of the Family
Code had been resorted to by parties wishing to remarry knowing fully well that their alleged
missing spouses are alive and well. It is even possible that those who cannot have their
marriages xxx declared null and void under Article 36 of the Family Code resort to Article 41 of
the Family Code for relief because of the xxx summary nature of its proceedings.
The application of this stricter standard becomes even more imperative if we consider the
State’s policy to protect and strengthen the institution of marriage.24 Since marriage serves as
the family’s foundation25 and since it is the state’s policy to protect and strengthen the family as
a basic social institution,26 marriage should not be permitted to be dissolved at the whim of the
parties. In interpreting and applying Article 41, this is the underlying rationale –to uphold the
sanctity of marriage. Arroyo, Jr.v. Court of Appeals27 reflected this sentiment when we
stressed:
[The]protection of the basic social institutions of marriage and the family in the preservation of
which the State has the strongest interest; the public policy here involved is of the most
fundamental kind. In Article II, Section 12 of the Constitution there is set forth the following
basic state policy:
The State recognizes the sanctity of family life and shall protect and strengthen the family as a
basic autonomous social institution.
Strict Standard Prescribed Under
Article 41 of the Family Code
Is for the Present Spouse’s Benefit
The requisite judicial declaration of presumptive death of the absent spouse (and
consequently, the application of a stringent standard for its issuance) is also for the present
spouse's benefit. It is intended to protect him/her from a criminal prosecution of bigamy under
Article 349 of the Revised Penal Code which might come into play if he/she would prematurely
remarry sans the court's declaration.
47
Upon the issuance of the decision declaring his/her absent spouse presumptively dead, the
present spouse's good faith in contracting a second marriage is effectively established. The
decision of the competent court constitutes sufficient proof of his/her good faith and his/her
criminal intent in case of remarriage is effectively negated. 28 Thus, for purposes of remarriage,
it is necessary to strictly comply with the stringent standard and have the absent spouse
judicially declared presumptively dead.
Final Word
As a final word, it has not escaped this Court's attention that the strict standard required in
petitions for declaration of presumptive death has not been fully observed by the lower courts.
We need only to cite the instances when this Court, on review, has consistently ruled on the
sanctity of marriage and reiterated that anything less than the use of the strict standard
necessitates a denial. To rectify this situation, lower courts are now expressly put on notice of
the strict standard this Court requires in cases under Article 41 of the Family Code.
WHEREFORE, in view of the foregoing, the assailed decision dated August 27, 2008 of the
Court of Appeals, which affirmed the order dated December 15, 2006 of the Regional Trial
Court, Branch 25, Koronadal City, South Cotabato, declaring Jerry F. Cantor presumptively
dead is hereby REVERSED and SET ASIDE.
SO ORDERED.
G.R. No. 160258 January 19, 2005
REPUBLIC OF THE PHILIPPINES, petitioner,
vs.
GLORIA BERMUDEZ-LORINO, respondent.
DECISION
GARCIA, J.:
Via this petition for review on certiorari under Rule 45 of the Rules of Court, petitioner Republic
of the Philippines, represented by the Office of the Solicitor General (OSG), seeks the reversal
and setting aside of the decision dated September 23, 2003 of the Court of Appeals in CA-
G.R. CV No. 73884, which affirmed on appeal an earlier decision of the Regional Trial Court
(RTC) at San Mateo, Rizal in a summary judicial proceeding thereat commenced by the herein
respondent Gloria Bermudez-Lorino for the declaration of the presumptive death of her absent
spouse, Francisco Lorino, Jr., based on the provisions of Article 41 of the Family Code, for
purposes of remarriage.
The facts may be summarized, as follows:
Respondent Gloria Bermudez-Lorino (Gloria for brevity), and her husband were married on
June 12, 1987. Out of this marriage, she begot three (3) children, namely: Francis Jeno, Fria
Lou and Fatima.1a\^/phi1.net
Before they got married in 1987, Gloria was unaware that her husband was a habitual drinker,
possessed with violent character/attitude, and had the propensity to go out with friends to the
extent of being unable to engage in any gainful work.
Because of her husband’s violent character, Gloria found it safer to leave him behind and
decided to go back to her parents together with her three (3) children. In order to support the
children, Gloria was compelled to work abroad.
From the time of her physical separation from her husband in 1991, Gloria has not heard of
him at all. She had absolutely no communications with him, or with any of his relatives.
On August 14, 2000, nine (9) years after she left her husband, Gloria filed a verified petition
with the Regional Trial Court (RTC) at San Mateo, Rizal under the rules on Summary Judicial
Proceedings in the Family Law provided for in the Family Code, which petition was docketed in
the same court as Special Proceeding No. 325-00 SM.
On August 28, 2000, the RTC issued an order directing, inter alia, the publication of the
petition in a newspaper of general circulation, thus:
A verified petition was filed by herein petitioner through counsel alleging that she married
Francisco Lorino, Jr. on June 12, 1987 but because of the violent character of his husband,
she decided to go back to her parents and lived separately from her husband. After nine (9)
years, there was absolutely no news about him and she believes that he is already dead and is
now seeking through this petition for a Court declaration that her husband is judicially
presumed dead for the purpose of remarriage.
Finding the said petition to be sufficient in form and substance, the same is hereby set for
hearing before this Court on September 18, 2000 at 8:30 o’clock in the morning at which place,
date and time, any or all persons who may claim any interest thereto may appear and show
cause why the same should not be granted.
Let a copy of this Order be published in a newspaper of general circulation in this province
once a week for three (3) consecutive weeks and be posted in the bulletin boards of the Hall of
Justice and the Municipal Hall, San Mateo, Rizal, all at the expense of the
petitioner.1awphi1.nét
48
Furnish the Office of the Solicitor General a copy of this Order together with a copy of the
petition. Further, send a copy of this Order to the last known address of Francisco Lorino, Jr. at
719 Burgos St., Sta. Elena, Marikina City.
SO ORDERED1
The evidence in support of the summary judicial proceeding are: the order of publication dated
August 28, 2000 (Exhibit "A"); affidavit of publication dated September 16, 2000 (Exhibit "B") 2 ;
copies of the newspapers where the order appeared (Exhibits "C" to "E-1")3 ; a deposition
dated September 4, 2000 of Gloria taken in Hong Kong (Exhibit "G")4 ; Gloria’s affidavit dated
October 21, 1999, also executed in Hong Kong (Exhibit "G-1")5 ; and a certification by
Department of Foreign Affairs Authentication Officer, Catalina C. Gonzalez, dated November
3, 1999, therein certifying that the signature of Vice Consul Adriane Bernie C. Candolada,
appearing below the jurat in Gloria’s affidavit of October 21, 1999, is authentic (Exhibit "G-2")6 .
In a decision dated November 7, 2001, the RTC, finding merit in the summary petition,
rendered judgment granting the same, to wit:
WHEREFORE, this Court in view of the facts and circumstances obtaining, finds the petition
with merit and hereby grants its imprimatur to the petition. Judgment is hereby rendered
declaring the presumptive death/absence of Francisco Lorino, Jr. pursuant to Art. 41 of the
New Family Code but subject to all restrictions and conditions provided therein.
SO ORDERED.7
Despite the judgment being immediately final and executory under the provisions of Article 247
of the Family Code, thus:
Art. 247. The judgment of the court shall be immediately final and executory,
the Office of the Solicitor General, for the Republic of the Philippines, nevertheless filed a
Notice of Appeal.8 Acting thereon, the RTC had the records elevated to the Court of Appeals
which docketed the case as CA-G.R. CV No. 73884.
In a decision dated September 23, 2003, the Court of Appeals, treating the case as an ordinary
appealed case under Rule 41 of the Revised Rules on Civil Procedure, denied the Republic’s
appeal and accordingly affirmed the appealed RTC decision:
WHEREFORE, based on the foregoing premises, the instant appeal is DENIED. Accordingly,
the appealed November 7, 2001 Decision of the Regional Trial Court of San Mateo, Rizal in
Spec. Proc. No. 325-00 SM is hereby AFFIRMED.
SO ORDERED.9
Without filing any motion for reconsideration, petitioner Republic directly went to this Court via
the instant recourse under Rule 45, maintaining that the petition raises a pure question of law
that does not require prior filing of a motion for reconsideration.
The foregoing factual antecedents present to this Court the following issues:
WHETHER OR NOT THE COURT OF APPEALS DULY ACQUIRED JURISDICTION OVER
THE APPEAL ON A FINAL AND EXECUTORY JUDGMENT OF THE REGIONAL TRIAL
COURT; and
WHETHER OR NOT THE FACTUAL AND LEGAL BASES FOR A JUDICIAL DECLARATION
OF PRESUMPTIVE DEATH UNDER ARTICLE 41 OF THE FAMILY CODE WERE DULY
ESTABLISHED IN THIS CASE.
The Court rules against petitioner Republic.
Article 238 of the Family Code, under Title XI: SUMMARY JUDICIAL PROCEEDINGS IN THE
FAMILY LAW, sets the tenor for cases covered by these rules, to wit:
Art. 238. Until modified by the Supreme Court, the procedural rules in this Title shall apply in
all cases provided for in this Code requiring summary court proceedings. Such cases shall be
decided in an expeditious manner without regard to technical rules.
Judge Elizabeth Balquin-Reyes of RTC, Branch 75, San Mateo, Rizal duly complied with the
above-cited provision by expeditiously rendering judgment within ninety (90) days after the
formal offer of evidence by therein petitioner, Gloria Bermudez-Lorino.
The problem came about when the judge gave due course to the Republic’s appeal upon the
filing of a Notice of Appeal, and had the entire records of the case elevated to the Court of
Appeals, stating in her order of December 18, 2001, as follows:
Notice of Appeal having been filed through registered mail on November 22, 2001 by the
Office of the Solicitor General who received a copy of the Decision in this case on November
14, 2001, within the reglementary period fixed by the Rules, let the entire records of this case
be transmitted to the Court of Appeals for further proceedings.
SO ORDERED.10
49
In Summary Judicial Proceedings under the Family Code, there is no reglementary period
within which to perfect an appeal, precisely because judgments rendered thereunder, by
express provision of Section 247, Family Code, supra, are "immediately final and executory". It
was erroneous, therefore, on the part of the RTC to give due course to the Republic’s appeal
and order the transmittal of the entire records of the case to the Court of Appeals.
An appellate court acquires no jurisdiction to review a judgment which, by express provision of
law, is immediately final and executory. As we have said in Veloria vs. Comelec, 11 "the right to
appeal is not a natural right nor is it a part of due process, for it is merely a statutory privilege."
Since, by express mandate of Article 247 of the Family Code, all judgments rendered in
summary judicial proceedings in Family Law are "immediately final and executory", the right to
appeal was not granted to any of the parties therein. The Republic of the Philippines, as
oppositor in the petition for declaration of presumptive death, should not be treated differently.
It had no right to appeal the RTC decision of November 7, 2001.
It was fortunate, though, that the Court of Appeals, acting through its Special Fourth Division,
with Justice Elvi John S. Asuncion as Acting Chairman and ponente, denied the Republic’s
appeal and affirmed without modification the final and executory judgment of the lower court.
For, as we have held in Nacuray vs. NLRC :12
Nothing is more settled in law than that when a judgment becomes final and executory it
becomes immutable and unalterable. The same may no longer be modified in any respect,
even if the modification is meant to correct what is perceived to be an erroneous conclusion of
fact or law, and whether made by the highest court of the land (citing Nunal v. Court of
Appeals, G.R. No. 94005, 6 April 1993, 221 SCRA 26).
But, if only to set the records straight and for the future guidance of the bench and the bar, let it
be stated that the RTC’s decision dated November 7, 2001, was immediately final and
executory upon notice to the parties. It was erroneous for the OSG to file a notice of appeal,
and for the RTC to give due course thereto. The Court of Appeals acquired no jurisdiction over
the case, and should have dismissed the appeal outright on that ground.
This judgment of denial was elevated to this Court via a petition for review on certiorari under
Rule 45. Although the result of the Court of Appeals’ denial of the appeal would apparently be
the same, there is a big difference between having the supposed appeal dismissed for lack of
jurisdiction by virtue of the fact that the RTC decision sought to be appealed is immediately
final and executory, and the denial of the appeal for lack of merit. In the former, the supposed
appellee can immediately ask for the issuance of an Entry of Judgment in the RTC, whereas,
in the latter, the appellant can still raise the matter to this Court on petition for review and the
RTC judgment cannot be executed until this Court makes the final pronouncement.
The Court, therefore, finds in this case grave error on the part of both the RTC and the Court of
Appeals. To stress, the Court of Appeals should have dismissed the appeal on ground of lack
of jurisdiction, and reiterated the fact that the RTC decision of November 7, 2001 was
immediately final and executory. As it were, the Court of Appeals committed grave reversible
error when it failed to dismiss the erroneous appeal of the Republic on ground of lack of
jurisdiction because, by express provision of law, the judgment was not appealable.
WHEREFORE, the instant petition is hereby DENIED for lack of merit.1a\^/phi1.net No
pronouncement as to costs.
SO ORDERED.
VIII. Legal Separation
A. GROUNDS
[ No. 47101 . April 25, 1941 ]
GODOFREDO BUCCAT , plaintiff and appellant, against LUIDA Mangonon OF BUCCAT , demanded and
appealed.
MARRIAGE ; Validity. - Marriage is a most sacred institution is the foundation upon which the society.
You can stop this are necessary clear and convincing evidence. In this case there are no such evidence.
APPEAL from a judgment of the Court of First Instance of Baguio. Carlos, J.
The facts are stated in the Court's decision.
D. Feliciano Leviste , D. Thomas P. Panganiban and Mrs. N. Sotera Megia for appellant.
Doña Luida Mangonon of Buccat on its own behalf.
HORRILLENO , M .:
This matter has been raised to this superiority by the Court of First Instance of Baguio, since only raises
an issue purely of law.
The March 20, 1939 the plaintiff commenced the present case, where the defendant did not appear,
despite having been duly summoned. So, I allowed the applicant to submit its evidence, the lower
court ruled the case in favor of the defendant. Hence this appeal.
20
20
PHILIPPINE ANNOTATED REPORTS
Buccat vs. Buccat
The applicant seeks the annulment of his marriage with the defendant been Luida Buccat Mangonon of
the November 26, 1938, in Baguio City, on the ground that, in consenting to the marriage, he did it
because the defendant had assured him that she was virgin.
The decision of the lower court the following facts:
The claimant knew the defendant March 1938. After several interviews, both were committed on 19
September of the same year. On 26 November the same year, the plaintiff married the defendant in
50
the Catholic cathedral in the city of Baguio. After living cohabiting for a period of eighty-nine days the
defendant gave birth to a child for nine months, on 23 February 1939. As a result of this event, the
plaintiff gave the defendant and did not make marital life it.
We see no reason to overturn the original ruling. Indeed, it is unlikely the appellant plaintiff's claim and
he had not even suspected the gravid state of the defendant, being this, as is proved in pregnant
condition well advanced. So there is no need to estimate the fraud speaking the appellant. The
allegations of this in the sense that it is not rare to find people tuck developed, it seems puerile to
deserve our consideration, especially as the applicant was freshman of law.
Marriage is a most sacred institution: the foundation upon which the society. You can stop this are
necessary clear and convincing evidence. In this case there are no such evidence.
Finding the original ruling in accordance with law, it should be confirmed, as hereby confirm it, in its
entirety, with costs to the appellant. So it is ordered.
Avanceña , Pres., Imperial , Diaz, and Laurel , JJ., concur.
It is confirmed the sentence. [Buccat vs. Buccat, 72 Phil. 19(1941)]
G.R. No. L-15853 July 27, 1960
FERNANDO AQUINO, petitioner,
vs.
CONCHITA DELIZO, respondent.
GUTIERREZ DAVID, J.:
This is a petition for certiorari to review a decision of the Court of Appeals affirming that of the
Court of First Instance of Rizal which dismissed petitioner's complaint for annulment of his
marriage with respondent Conchita Delizo.
The dismissed complaint, which was filed on September 6, 1955, was based on the ground of
fraud, it being alleged, among other things, that defendant Conchita Delizo, herein respondent,
at the date of her marriage to plaintiff, herein petitioner Fernando Aquino, on December 27,
1954, concealed from the latter that fact that she was pregnant by another man, and sometime
in April, 1955, or about four months after their marriage, gave birth to a child. In her answer,
defendant claimed that the child was conceived out of lawful wedlock between her and the
plaintiff.
At the trial, the attorney's for both parties appeared and the court a quo ordered Assistant
Provincial Fiscal Jose Goco to represent the State in the proceedings to prevent collusion.
Only the plaintiff however, testified and the only documentary evidence presented was the
marriage contract between the parties. Defendant neither appeared nor presented any
evidence despite the reservation made by her counsel that he would present evidence on a
later date.
On June 16, 1956, the trial court — noting that no birth certificate was presented to show that
the child was born within 180 days after the marriage between the parties, and holding that
concealment of pregnancy as alleged by the plaintiff does not constitute such fraud sa would
annul a marriage — dismissed the complaint. Through a verified "petition to reopen for
reception of additional evidence", plaintiff tried to present the certificates of birth and delivery of
the child born of the defendant on April 26, 1955, which documents, according to him, he had
failed to secure earlier and produce before the trial court thru excusable negligence. The
petition, however, was denied.
On appeal to the Court of Appeals, that court held that there has been excusable neglect in
plaintiff's inability to present the proof of the child's birth, through her birth certificate, and for
that reason the court a quo erred in denying the motion for reception of additional evidence.
On the theory, however, that it was not impossible for plaintiff and defendant to have had
sexual intercourse during their engagement so that the child could be their own, and finding
unbelievable plaintiff's claim that he did not notice or even suspect that defendant was
pregnant when he married her, the appellate court, nevertheless, affirmed the dismissal of the
complaint.
On March 17, 1959, plaintiff filed a motion praying that the decision be reconsidered, or, if such
reconsideration be denied, that the case be remanded to the lower court for new trial. In
support of the motion, plaintiff attached as annexes thereof the following documents:
1. Affidavit of Cesar Aquino (Annex A) (defendant's brother-in-law and plaintiff's
brother, with whom defendant was living at the time plaintiff met, courted and married
her, and with whom defendant has begotten two more children, aside from her first
born, in common-law relationship) admitting that he is the father of defendant's first
born, Catherine Bess Aquino, and that he and defendant hid her pregnancy from
plaintiff at the time of plaintiff's marriage to defendant;
2. Affidavit of defendant, Conchita Delizo (Annex "B") admitting her pregnancy by
Cesar Aquino, her brother-in-law and plaintiff's own brother, at the time of her
marriage to plaintiff and her having hidden this fact from plaintiff before and up to the
time of their marriage;
3. Affidavit of Albert Powell (Annex "C") stating that he knew Cesar Aquino and
defendant lived together as husband and wife before December 27, 1954, the date of
plaintiff's marriage to defendant;
4. Birth Certificate of defendant's first born, Catherine Bess Aquino showing her date
of birth to be April 26, 1955;
51
5. Birth Certificate (Annex "D") of Carolle Ann Aquino, the second child of defendant
with Cesar Aquino, her brother-in-law;
6. Birth Certificate (Annex "E") of Chris Charibel Aquino, the third child of Cesar
Aquino and defendant; and
7. Pictures of defendant showing her natural plumpness as early as 1952 to as late as
November, 1954, the November, 1954 photo itself does not show defendant's
pregnancy which must have been almost four months old at the time the picture was
taken.
Acting upon the motion, the Court of Appeals ordered the defendant Conchita Delizo and
Assistant Provincial Fiscal of Rizal, who was representing the Government, to answer the
motion for reconsideration, and deferred action on the prayer for new trial until after the case is
disposed of. As both the defendant and the fiscal failed to file an answer, and stating that it
"does not believe the veracity of the contents of the motion and its annexes", the Court of
Appeals, on August 6, 1959, denied the motion. From that order, the plaintiff brought the case
to this Court thru the present petition for certiorari.
After going over the record of the case, we find that the dismissal of plaintiff's complaint cannot
be sustained.
Under the new Civil Code, 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 ground for
annulment of marriage. (Art. 85, par. (4) in relation to Art. 86, par. (3). In the case of Buccat vs.
Buccat (72 Phil., 19) cited in the decision sought to be reviewed, which was also an action for
the annulment of marriage on the ground of fraud, plaintiff's claim that he did not even suspect
the pregnancy of the defendant was held to be unbelievable, it having been proven that the
latter was already in an advanced stage of pregnancy (7th month) at the time of their marriage.
That pronouncement, however, cannot apply to the case at bar. 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. (XI
Cyclopedia of Medicine, Surgery, etc. Pregnancy, p. 10).
The appellate court also said that it was not impossible for plaintiff and defendant to have had
sexual intercourse before they got married and therefore the child could be their own. This
statement, however, is purely conjectural and finds no support or justification in the record.
Upon the other hand, the evidence sought to be introduced at the new trial, taken together with
what has already been adduced would, in our opinion, be sufficient to sustain the fraud alleged
by plaintiff. The Court of Appeals should, therefore, not have denied the motion praying for
new trial simply because defendant failed to file her answer thereto. Such failure of the
defendant cannot be taken as evidence of collusion, especially since a provincial fiscal has
been ordered of represent the Government precisely to prevent such collusion. As to the
veracity of the contents of the motion and its annexes, the same can best be determined only
after hearing evidence. In the circumstance, we think that justice would be better served if a
new trial were ordered.
Wherefore, the decision complained of is set aside and the case remanded to the court a quo
for new trial. Without costs.
G.R. No. L-12790 August 31, 1960
JOEL JIMENEZ, plaintiff-appellee,
vs.
REMEDIOS CAÑIZARES, defendant.
Republic of the Philippines, intervenor-appellant.
Acting Solicitor General Guillermo E. Torres and Solicitor Pacifico P. de Castro for appellant.
Climaco, Ascarraga and Silang for appellee.
PADILLA, J.:
In a complaint filed on 7 June 1955 in the Court of First Instance of Zamboanga the plaintiff
Joel Jimenez prays for a decree annulling his marriage to the defendant Remedios Cañizares
contracted on 3 August 1950 before a judge of the municipal court of Zamboanga City, upon
the ground that the office of her genitals or vagina was to small to allow the penetration of a
male organ or penis for copulation; that the condition of her genitals as described above
existed at the time of marriage and continues to exist; and that for that reason he left the
conjugal home two nights and one day after they had been married. On 14 June 1955 the wife
was summoned and served a copy of the complaint. She did not file an answer. On 29
September 1956, pursuant to the provisions of article 88 of the Civil Code, the Court directed
the city attorney of Zamboanga to inquire whether there was a collusion, to intervene for the
52
State to see that the evidence for the plaintiff is not a frame-up, concocted or fabricated. On 17
December 1956 the Court entered an order requiring the defendant to submit to a physical
examination by a competent lady physician to determine her physical capacity for copulation
and to submit, within ten days from receipt of the order, a medical certificate on the result
thereof. On 14 March 1957 the defendant was granted additional five days from notice to
comply with the order of 17 December 1956 with warning that her failure to undergo medical
examination and submit the required doctor's certificate would be deemed lack of interest on
her part in the case and that judgment upon the evidence presented by her husband would be
rendered.
After hearing, at which the defendant was not present, on 11 April 1957 the Court entered a
decree annulling the marriage between the plaintiff and the defendant. On 26 April 1957 the
city attorney filed a motion for reconsideration of the decree thus entered, upon the ground,
among others, that the defendant's impotency has not been satisfactorily established as
required by law; that she had not been physically examined because she had refused to be
examined; that instead of annulling the marriage the Court should have punished her for
contempt of court and compelled her to undergo a physical examination and submit a medical
certificate; and that the decree sought to be reconsidered would open the door to married
couples, who want to end their marriage to collude or connive with each other by just alleging
impotency of one of them. He prayed that the complaint be dismissed or that the wife be
subjected to a physical examination. Pending resolution of his motion, the city attorney timely
appealed from the decree. On 13 May 1957 the motion for reconsideration was denied.
The question to determine is whether the marriage in question may be annulled on the
strength only of the lone testimony of the husband who claimed and testified that his wife was
and is impotent. The latter did not answer the complaint, was absent during the hearing, and
refused to submit to a medical examination.
Marriage in this country is an institution in which the community is deeply interested. The state
has surrounded it with safeguards to maintain its purity, continuity and permanence. The
security and stability of the state are largely dependent upon it. It is the interest of each and
every member of the community to prevent the bringing about of a condition that would shake
its foundation and ultimately lead to its destruction. The incidents of the status are governed by
law, not by will of the parties. The law specifically enumerates the legal grounds, that must be
proved to exist by indubitable evidence, to annul a marriage. In the case at bar, the annulment
of the marriage in question was decreed upon the sole testimony of the husband who was
expected to give testimony tending or aiming at securing the annulment of his marriage he
sought and seeks. Whether the wife is really impotent cannot be deemed to have been
satisfactorily established, becase from the commencement of the proceedings until the entry of
the decree she had abstained from taking part therein. Although her refusal to be examined or
failure to appear in court show indifference on her part, yet from such attitude the presumption
arising out of the suppression of evidence could not arise or be inferred because women of this
country are by nature coy, bashful and shy and would not submit to a physical examination
unless compelled to by competent authority. This the Court may do without doing violence to
and infringing in this case is not self-incrimination. She is not charged with any offense. She is
not being compelled to be a witness against herself.1 "Impotency being an abnormal condition
should not be presumed. The presumption is in favor of potency." 2 The lone testimony of the
husband that his wife is physically incapable of sexual intercourse is insufficient to tear
asunder the ties that have bound them together as husband and wife.
The decree appealed from is set aside and the case remanded to the lower court for further
proceedings in accordance with this decision, without pronouncement as to costs.
B. CAUSE OF ACTION
G.R. No. L-30977 January 31, 1972
CARMEN LAPUZ SY, represented by her substitute MACARIO LAPUZ, petitioner-
appellant,
vs.
EUFEMIO S. EUFEMIO alias EUFEMIO SY UY, respondent-appellee.
Jose W. Diokno for petitioner-appellant.
D. G. Eufemio for respondent-appellee.
REYES J.B.L., J.:p
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
53
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, counter-claimed 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 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 pre-supposes a valid marriage, while the
petition for nullity has a voidable marriage as a pre-condition.
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 v. Moss, 2 Gilman, 72; Danforth v.
Danforth, 111 Ill. 236; Matter of Grandall, 196 N.Y. 127, 89 N.E. 578; 134
Am St. Rep. 830; 17 Ann. Cas. 874; Wilcon v. Wilson, 73 Mich, 620, 41 N.W.
54
817; Strickland v. Strickland, 80 Ark. 452, 97 S. W. 659; McCurley v.
McCurley, 60 Md. 185, 45 Am. Rep. 717; Begbie v. 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 the 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
executor or administrator. No action upon a claim for the recovery of 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 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
55
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.
G.R. No. L-38287 October 23, 1981
ANTONIO MACADANGDANG, petitioner,
vs.
THE COURT OF APPEALS; HONORABLE ALEJANDRO E. SEBASTIAN, in his capacity
as Presiding Judge, Court of First Instance of Davao, 16th Judicial District, Sala 1,
Tagum, Davao del Norte; FILOMENA GAVIANA, MACADANGDANG; and ROLANDO
RAMA, respondents.
RESOLUTION
MAKASIAR, J.:
This petition for certiorari, prohibition and injunction with prayer for temporary restraining order
presents for review the Court of Appeal's resolution dated December 21, 1973, which
dismissed the petition in CA-G.R. No. Sp-02656-R, petitioner's motion for reconsideration of
the said resolution having been denied on January 29, 1974.
From the records, it appears that respondent Filomena Gaviana Macadangdang (hereinafter
referred to as private respondent) and petitioner Antonio Macadangdang contracted marriage
in 1946 after having lived together for two years. From a humble buy-and-sell business and
sari-sari store operation in Davao City, the spouses moved to Mawab Davao del Norte where,
through hard work and good fortune, their small business grew and expanded into
merchandising, trucking, transportation, rice and corn mill business, abaca stripping, real
estate and others. They were blessed with six children, three of whom were already of majority
age and the other three were still minors as of the time this case was initiated in the lower
court. With their established businesses and accumulated wealth, their once simple life
became complicated and their relationship started to suffer setbacks. While the economic or
material aspect of their marriage was stabilized the physical and spiritual aspects became
shaky. Both accused each other of indulging in extramarital relations. Married life for them
became so intolerable that they separated in 1965 when private respondent left for Cebu for
good. When she returned to Davao in 1971, she learned of the illicit affairs of her estranged
husband. Then and there, she decided to take the initial action.
On April 28, 1971, private respondent (plaintiff therein) instituted a complaint for legal
separation in the Court of First Instance of Davao, Branch VI I I at Tagum, Davao, which
complaint was docketed as Civil Case No. 109 and entitled "Filomena Gaviana Macadangdang
vs. Antonio Macadangdang" [P. 156, rec].
Petitioner (then defendant) filed his answer with counterclaim dated May 31, 1971 [p. 158, rec].
On February 9, 1972, private respondent filed a petition for appointment of administrator, to
administer the estate of the conjugal partnership pending the termination of the case [p. 100,
rec.].
Petitioner opposed the aforesaid petition in a pleading dated February 21, 1972 [P. 102, rec]
On January 4, 1973, the petition for appointment of administrator not having been acted upon,
the trial court handed down its decision, the dispositive portion of which states thus:
Wherefore, judgment is hereby rendered ordering the legal separation of
plaintiff and the defendant, or what under the old law was separation from
bed and board — a mensa et thoro — with all the legal effects attendant
thereto, particularly the dissolution and liquidation of the conjugal community
of property. Since there is no complete list of the community property which
has to be divided, pending the dissolution of the conjugal property, the
defendant is ordered to pay to plaintiff P10,000.00 for her support, for any
way he had been disposing some of the properties or mortgaging them
without sharing the plaintiff any part of the fruits or proceeds thereof until the
court can appoint an administrator, as prayed for by plaintiff in a separate
petition, who will take over the administration and management of all the
conjugal partnership properties, and act as guardian of the minor children; to
protect said properties from dissipation, and who will submit a complete
inventory of said properties so that the Court can make a just division, such
division to be embodied in a supplemental decision. ... [pp. 104-115, rec.].
On August 7, 1973, private respondent filed a motion praying that she be allowed to withdraw
P10,000.00 from the lease rental of a portion of their conjugal property deposited by Francisco
Dizon [p. 116, rec.].
Respondent Judge acted on the aforesaid motion by issuing the order of August 13, 1973
which directed the clerk of court "to deliver, under receipt, to plaintiff Filomena Gaviana
Macadangdang and/or to her counsel, Atty. Marcial Fernandez, the amount of P10,000.00" [p.
118, rec].
56
On August 25, 1973, private respondent filed another motion for the appointment of an
administrator, reiterating her previous petition and urging favorable action thereon "to impede
unlawful sequestration of some conjugal assets and clandestine transfers" by petitioner [p.
120, rec.]. Petitioner again filed his opposition dated September 6, 1973 [p. 122, rec.].
On September 20, 1973, respondent Judge issued an order directing plaintiff's counsel "to
submit three (3) names for appointment as administrator, including in the list, if possible, a
banking institution authorized to handle cases of administration of properties, furnishing a copy
of said list to defendant, who shag be given three (3) days from receipt thereof to present his
observations and objections to said recommended persons or entity, after which the Court will
select the administrator as may seem best suited for the purpose" [pp. 126-127, rec]
Petitioner then filed a motion for reconsideration dated October 3, 1973 of the order of
September 20, 1973 with prayer that he be allowed to continue administering the conjugal
properties in accordance with law [p. 128, rec.]. This motion for reconsideration was denied in
the order of October 13, 1973 [p. 133, rec].
On October 13, 1973, herein private respondent filed a motion for appointment of administrator
and submission of complete fist of conjugal assets by defendant, submitting therein three
nominees for administrator [p. 135, rec].
On October 23, 1973, petitioner filed his second motion for reconsideration praying therein that
the orders of September 20, 1973 and October 13, 1973 be reconsidered by not proceeding
with the appointment of an administrator of the conjugal properties of the parties [p. 137, rec].
Respondent Judge denied the aforesaid second motion for reconsideration in his order of
November 19, 1973, reiterating therein his ruling that the decree of legal separation had
become final [p. 141, rec].
Petitioner brought the case to the Court of Appeals in a petition for certiorari and prohibition
with writ of preliminary injunction and/or temporary restraining order filed on December 18,
1973. Said petition sought to review, set aside and declare null and void the orders of
September 20, 1973, October 13, 1973 and November 19, 1973 of respondent Judge; to
prohibit respondent Judge from carrying out and executing the aforecited orders; and to
prohibit him from treating, regarding and construing his decision of January 4, 1973 as being
"final and executory" as well as from enforcing the same in any manner whatsoever [pp. 1, 4, &
5, CA rec.].
The Court of Appeals, in its resolution of December 21, 1973, ruled that the questioned
January 4, 1973 decision of the lower court had become final and, consequently, the
appointment of an administrator was valid and that the petition was not sufficient in substance,
since the applicable law and jurisprudence afford the petitioner no valid cause to impugn the
three questioned orders. The appellate court accordingly dismissed the petition [pp. 70-80,
rec].
Hence, this appeal from the resolution of December 21, 1973.
On February 6, 1980, counsel for petitioner, through a notice of death and motion to dismiss,
informed this Court that petitioner Antonio Macadangdang died on November 30, 1979 and as
a consequence thereof, this case and Civil Case No. 109 of the Court of First Instance of
Davao have become moot and academic [p. 516, rec.].
Private respondent, when required to comment on the aforesaid motion, moved for a resolution
of this case although she believes that petitioner's death has posed new intervening
circumstances that would affect the entire purpose in filing the same. In effect, private
respondent agrees with petitioner's counsel that her husband's death has rendered the instant
petition moot and academic [pp. 522, 524, rec.].
Petitioner had averred that the Court of Appeals gravely erred in holding that respondent
Judge's incomplete decision of January 4, 1973 had become final and executory and that the
same Court committed an error in holding that the appointment of an administrator in the case
below was proper.
Private respondent, upon the other hand, has always maintained that —
1. the decision of January 4, 1973 had become final and executory when the
petitioner failed to appeal therefrom within the reglementary period of 30
days from receipt thereof, despite the non-issuance of a supplemental
decision regarding the division of the conjugal properties; and
2. the appointment of an administrator pending the actual division of said
properties is proper being a must and an exercise of the sound discretion of
the Honorable Presiding Judge in the Court of First Instance of Davao,
Branch VIII in Tagum [pp. 193-194, rec].
Did petitioner's death on November 30, 1979 render the case moot and academic? Legal
problems do not cease simply because one of the parties dies; the same problems may come
up again in another case of similar magnitude. Considering also the far-reaching significance
and implications of a pronouncement on the very important issues involved, this Court feels
bound to meet said issues frontally and come out with a decisive resolution of the same.
Thus, the questions for resolution have been narrowed down to the following:
57
1. Whether the decision of the trial court dated January 4, 1973 in Civil Case
No. 109 finding herein petitioner guilty of concubinage and decreeing legal
separation between him and his wife Filomena Gaviana Macadangdang
(private respondent herein) had already become final and executory long
before the herein petition was filed;
2. Should the children of both spouses predecease the surviving spouse,
whether the intestate heirs of the deceased could inherit from the innocent
surviving spouse, particularly where the latter's share in the conjugal assets
is concerned, in view of Article 106, No. 4 of the New Civil Code; and
3. The effect of the pendency of Special Proceedings No. 134 in the Court of
First Instance of Davao for the settlement of the estate of the deceased
petitioner herein, on the decision in Civil Case No. 109 as well as on the
instant petition.
In support of his contention that the Court of Appeals committed grave error in holding that
respondent Judge's incomplete decision of January 4, 1973 had become final and executory,
petitioner had consistently asserted the following reasons:
1. Private respondent's complaint for legal separation and division of
properties was a single complaint. Thus, she explicitly prayed:
xxx xxx xxx
3. That upon trial of this action judgment be rendered ordering the legal
separation of the plaintiff and the defendant and the division of all the assets
of the conjugal partnership, ... [p. 157, rec)
In this single action, private respondent asked the trial court to decide if petitioner and she
should be legally separated, and if they should, what properties would form part of the conjugal
regime and which properties would be assigned to each spouse.
2. Of the aforesaid issues, the lower court resolved only the issue of legal separation and
reserved for supplemental decision the division of the conjugal properties. Petitioner had
further argued that —
Inasmuch as the Decision failed to dispose of all the issues before the Court,
which necessitated the announcement of a forthcoming supplemental
decision, petitioner respectfully submits that the Decision was an incomplete
judgment. In Santos v. de Guzman, 1 SCRA 1048, is found this very
succinct explanation of what an incomplete judgment is:
 ... There was but one case before the lower court. Its first decision (of June
12, 1956) was, as already stated, incomplete the same not having resolved
the issues involved in the litigation. For this reason the trial had to be
reopened and a supplemental decision had to be rendered ... (at p. 1053;
emphasis supplied).
WE do not find merit in petitioner's submission that the questioned decision had not become
final and executory since the law explicitly and clearly provides for the dissolution and
liquidation of the conjugal partnership of gains of the absolute community of property as
among the effects of the final decree of legal separation. Article 106 of the Civil Code thus
reads:
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;
xxx xxx xxx
[emphasis supplied].
The aforequoted provision mandates the dissolution and liquidation of the property regime of
the spouses upon finality of the decree of legal separation. Such dissolution and liquidation are
necessary consequences of the final decree. This legal effect of the decree of legal
separation ipso facto or automatically follows, as an inevitable incident of, the judgment
decreeing legal separation—for the purpose of determining the share of each spouse in the
conjugal assets.
Even American courts have made definite pronouncements on the aforestated legal effect of a
divorce (legal separation) decree.
Generally speaking, the purpose of a decree in divorce insofar as the disposition of property is
concerned is to fix and make certain the property rights and interests of the parties (Mich-
Westgate vs. Westgate, 288 N.W. 860, 291 Mich. 18, 300 [1] p. 354, C.J.S. Vol. 27B); and it
has been held that the provisions of the decree should definitely and finally determine the
property rights and interests of the parties (Wash.-Shaffer vs. Shaffer, 262 P. 2d. 763, 43
Wash. 2d 629; 300 [11 p. 354 C.J.S. Vol. 27B); and that any attempted reservation of such
58
questions for future determination is improper and error (Mich.-Karwowski vs. Karwowski, 20
N.W. 2d 851, 313 Mich. 167, 300 11] p. 354, C.J.S., Vol. 27B; emphasis supplied).
Some statutes providing for the division or disposition of the property of the parties to a divorce
have been held mandatory and hence to require the court to decree some division of their
property rights (U.S.—Pearce vs. CIR, 62 S. Ct. 154, 315 U.S. 543, 86 L. ed. 1016, construing
Texas statute; 291 [1] p. 263 C.J.S. Vol. 27B).
Likewise, it has been held that the settlement of some pro-property rights between the parties
is an incident of every decree of divorce where there is any property involved (Utah-Smith vs.
Smith, 291 P. 298, 77 Utah 60, 291 [1] p. 264, C.J.S., Vol. 27B).
It has been held that notwithstanding the division of property between the parties, the subject
matter of a divorce action remains the marital status of the parties, the settlement of the
property rights being merely incidental (Wash.-State ex rel. Atkins vs. Superior Court of King
Country, 97 P. 2d. 139, 1 Wash. 2d 677; 291 [1] p. 264 C.J.S., Vol. 27B; emphasis supplied).
Under other authorities, by the very nature of the litigation, all property rights growing out of
marital relations are settled and included in divorce proceedings (Ind.-Novak vs. Novak, 133
N.E. 2d 578, 126 Ind. App. 428) and a decree of divorce is an adjudication of all property rights
connected with the marriage and precludes the parties as to all matters which might have been
legitimately proved in support of charges or defenses in the action (U.S.—Spreckles vs.
Wakefield, C.C.A. 286 F. 465) and bars any action thereafter brought by either party to
determine the question of property rights (Fla.—Cooper vs. Cooper, 69 So. 2d 881; Finston vs.
Finston, 37 So. 2d 423,160 Fla. 935; p. 751, C.J.S. Vol. 27A).
An absolute divorce ordinarily terminates all property rights and interests, not actually vested,
of divorced persons in property of each other, which are dependent on the marriage (U.S.—
Cockrill vs. Woodson, D.C. Mo., 70 F. 752), at least where no proceedings have been taken to
vacate or modify the decree by appeal until the statutory time therefor has expired (Kan.—
Roberts vs. Fagan 92 P. 559, 76 Kan. 536). Accordingly, unless the court granting the decree
is without jurisdiction, inchoate rights of the wife in the husband's property are usually cut off
(Ky—Bowling vs. Little, 206 S.W. 1, 182 Ky 86) especially where by the terms of the decree all
property obtained by either spouse from or through the other during the marriage is restored to
such spouse (Tex. Houston, etc., R. Co. vs. Helm, Civ. App. 93 S.W. 697; pp. 752-753, C.J.S.
Vol. 27A).
Enunciating with directness and finality, one U.S. court held: "The part of a divorce suit
regarding property is a part of the very divorce action itself" (Tex.—Ex parte Scott 123 S.W. 2d.
306, 313, 133 Tex. 1, answers to certified questions conformed to, Civ. App. 126, S.W. 2d 525;
291 [1] p. 264, C.J.S. Vol. 27B).
Petitioner erred in invoking the case of Vda. de Zaldarriaga vs. Zaldarriaga which in turn cited
the doctrine of Fuentebella vs. Carrascoso, which We have already declared abrogated in the
case of Miranda vs. Court of Appeals (L-33007, 71 SCRA 295, [June 18, 1976]). In this case,
this Court explicitly stated:
For the guidance of the bench and bar, the court declares as abandoned the
doctrine of Fuentebella vs. Carrascoso and adopts the opposite rule that
judgments for recovery with accounting are final and appealable (without
need of awaiting the accounting) and would become final and executory if
not appealed within the reglementary period.
In resolving the question of whether or not the judgment directing an accounting in an action
for recovery of properties is final and appealable, this Court further explained:
The judgment "directing an accounting is appealable, regardless of whether
the accounting is the principal relief sought or a mere incident or
consequence of the judgment which grants recovery and delivery of
absconded properties as the principal relief and expressly provides that"a
judgment or order directing an accounting in an action, shall not be stayed
after its rendition and before an appeal is taken or during the pendency of an
appeal.
xxx xxx xxx
If a judgment which directs solely an accounting is appealable
notwithstanding that it "does not finally dispose of the action and the
accounting has yet to be rendered to complete the relief sought," much more
so is a judgment which orders accounting as a mere incident appealable,
because the judgment which orders the delivery of properties does finally
dispose of the action on its merits,
xxx xxx xxx
Imperative and controlling considerations of public policy and of sound
practice in the courts to achieve the desideratum of just, speedy and
inexpensive determination of every action militate against such
a novel and unprecedented situation where a judgment on the merits for
recovery of properties would be left dangling and would be considered as
"interlocutory" and subject to revision and alteration at will for as long as
the accounting ordered as a mere incident and logical consequence has not
been rendered and acted upon by the trial court.
59
xxx xxx xxx
The Court, however, deems it proper for the guidance of the bench and bar
to now declare as is clearly indicated from the compelling reasons and
considerations herein-above stated:— that the court considers the better rule
to be that stated in H.E. Heacock Co. vs. American Trading Co. (53 Phil. 481
[19291, to wit, that where the primary purpose of a case is to ascertain and
determine who between plaintiff and defendant is the true owner and entitled
to the exclusive use of the disputed property, "the judgment ... rendered by
the lower court [is] a judgment on the merits as to those questions, and (that)
the order of the court for an accounting was based upon and is incidental to
the judgment on the merits. That is to say, that the judgment ... (is)
a final judgment ... ; that in this kind of a case an accounting is a
mere incident to the judgment; that an appeal lies from the rendition of the
judgment as rendered ...
xxx xxx xxx
—that accordingly, the contrary ruling in Fuentebella vs. Carrascoso which
expressly reversed the Heacock case and a line of similar decisions (Africa
vs. Africa, 42 Phil. 934; Villanueva vs. Capistrano; Prophylactic Brush Co., et
al. vs. Court of Appeals, G.R. No. 46254, Nov. 23, 1938 [Unpublished) and
ruled that such a decision for recovery of property with accounting 'is not
final but merely interlocutory and therefore not appealable and subsequent
cases Adhering to the same Zaldarriaga vs. Enriquez, 1 SCRA 1188) must
be now in turn abandoned and set aside.
xxx xxx xxx
The Court's considered opinion is that imperative considerations of public
policy and of sound practice in the courts and adherence to the constitutional
mandate of simplified, just, speedy and inexpensive determination of every
action can for considering such judgments for recovery of property with
accounting as final judgments which are duly appealable (and would
therefore become final and executory if not appealed within the reglementary
period) with the accounting as a mere incident of the judgment to be
rendered during the course of the appeal as provided in Rule 39, section 4
or to be implemented at the execution stage upon final affirmance on appeal
of the judgment (as in Court of Industrial Relations unfair labor practice
cases ordering reinstatement of the worker with accounting, computation
and payment of his backwages less earnings elsewhere during his layoff)
and that the only reason given in Fuentebella for the contrary ruling, viz, "the
 general harm that would follow from throwing the door open to multiplicity of
appeals in a single case is of lesser import and consequence".
Considering the aforestated well-established jurisprudence on the matter, the clear mandate of
Article 106 of the Civil Code and the aforequoted ruling in the Miranda case, the decision of the
trial court dated January 4, 1973 decreeing the legal separation between then spouses Antonio
Macadangdang and Filomena Gaviana Macadangdang had long become final and executory
and the division of the conjugal property in a "supplemental decision" is a mere incident of the
decree of legal separation.
Since We have ruled on the finality of the judgment decreeing the spouses' legal separation as
of January 4, 1973, the remaining issue for Our resolution is the final disposition of their
conjugal partnership of gains which partnership, by reason of the final decree, had been
automatically dissolved. The law (Articles 106, 107 and 176 of the Civil Code) clearly spells out
the effects of a final decree of legal separation on the conjugal property.
The death on November 30, 1979 of herein petitioner who was declared the guilty spouse by
the trial court, before the liquidation of the conjugal property is effected, poses a new problem
which can be resolved simply by the application of the rules on intestate succession with
respect to the properties of the deceased petitioner.
Thus, the rules on dissolution and liquidation of the conjugal partnership of gains under the
aforecited provisions of the Civil Code would be applied effective January 4, 1973 when the
decree of legal separation became final. Upon the liquidation and distribution conformably with
the law governing the effects of the final decree of legal separation, the law on intestate
succession should take over in the disposition of whatever remaining properties have been
allocated to petitioner. This procedure involves details which properly pertain to the lower
court.
The properties that may be allocated to the deceased petitioner by virtue of the liquidation of
the conjugal assets, shall be distributed in accordance with the laws of intestate succession in
Special Proceedings No. 134.
WHEREFORE, THIS PETITION IS HEREBY DISMISSED, WITH COSTS AGAINST
PETITIONER'S ESTATE.
SO ORDERED.
C. COOLING OFF
[G.R. No. L-9667. July 31, 1956.]
60
LUIS MA. ARANETA, Petitioner, vs. HONORABLE HERMOGENES CONCEPCION, as judge of the Court of
First Instance of Manila, Branch VI and EMMA BENITEZ ARANETA, Respondents.
DECISION
LABRADOR, J.:
The main action was brought by Petitioner against his wife, one of the Respondent herein, for legal
separation on the ground of adultery. After the issues were joined Defendant therein filed an omnibus
petition to secure custody of their three minor children, a monthly support of P5,000 for herself and
said children, and the return of her passport, to enjoin Plaintiff from ordering his hirelings from
harassing and molesting her, and to have Plaintiff therein pay for the fees of her attorney in the action.
The petition is supported by her affidavit. Plaintiff opposed the petition, denying the misconduct
imputed to him and alleging that Defendant had abandoned the children; chan
roblesvirtualawlibraryalleging that conjugal properties were worth only P80,000, not one million pesos
as alleged by Defendant; chan roblesvirtualawlibrarydenying the taking of her passport or the
supposed vexation, and contesting her right to 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 allowed to be
introduced on the issues, is the prohibition contained in Article 103 of the Civil Code, which reads as
follows:chanroblesvirtuallawlibrary
“ART. 103. An action for legal separation shall in no case be tried before six months shall have elapsed
since the filing of the petition.”
Interpreting the spirit and policy of the provision the trial judge says:chanroblesvirtuallawlibrary
“This provision of the code is mandatory. This case cannot be tried within the period of six months
from the filing of the complaint. The court understands that the introduction of any evidence, be it on
the merits of the case or on any incident, is prohibited. The law, up to the last minute, exerts efforts at
preserving the family and the home from utter ruin. Interpreting the intent of said article, the court
understands that every step it should take within the period of six months above stated should be
taken toward reconciling the parties. Admitting evidence now will make reconciliation difficult if not
impossible. In this case the court should act as if nothing yet had happened. The children must be given
for custody to him or her who by family custom and tradition is the custodian of the children. The court
should ignore that Defendant had committed any act of adultery or the Plaintiff, any act of cruelty to
his wife. The status quo of the family must be restored as much as possible. In this country, unlike
perhaps in any other country of the globe, a family or a home is a petite corporation. The father is the
administrator who earns the family funds, dictates rules in the home for all to follow, and protects all
members of his family. The mother keeps home, keeps children in her company and custody, and
keeps the treasure of that family. In a typical Filipino family, the wife prepares home budget and makes
little investment without the knowledge of her husband. A husband who holds the purse is un-Filipino.
He is shunned in Filipino community. The court therefore, in taking action on petition No. 1 should be
guided by the above considerations.” (pp. 116-117, Record on Appeal.)
It may be noted that since more than six months have elapsed since the filing of the petition the
question offered may not be allowed. It is, however, believed that the reasons for granting the
preliminary injunction should be given that the scope of the article cited may be explained.
It is conceded that the period of six months fixed therein Article 103 (Civil Code) is evidently intended
as a cooling off period to make possible a reconciliation between the spouses. The recital of their
grievances against each other in court may only fan their already inflamed passions against one
another, and the lawmaker has imposed the period to give them opportunity for dispassionate
reflection. But this practical expedient, necessary to carry out legislative policy, does not have the
effect of overriding other provisions such as the determination of the custody of the children and
alimony and support pendente lite according to the circumstances. (Article 105, Civil Code.) The law
expressly enjoins that these should be determined by the court according to the circumstances. If
these are ignored or the courts close their eyes to actual facts, rank in justice may be caused.
Take the case at bar, for instance. Why should the court ignore the claim of adultery by 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
61
not in parts or sections and is animated by one general purpose and intend. Consequently, each part of
section should be construed in connection with every other part or section so as to produce a
harmonious whole. Thus it is not proper to confine interpretation to the one section to be construed.”
(Southerland, Statutory Construction section 4703, pp. 336-337.)
Thus the determination of the custody and alimony should be given effect and force provided it does
not go to the extent of violating the policy of the cooling off period. That is, evidence not affecting the
cause of the separation, like the actual custody of the children, the means conducive to their welfare
and convenience during the pendency of the case, these should be allowed that the court may
determine which is best for their custody.
The writ prayed for is hereby issued and the Respondent judge or whosoever takes his place is ordered
to proceed on the question of custody and support pendente lite in accordance with this opinion. The
court’s order fixing the alimony and requiring payment is reversed. Without costs.
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.
62
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.
D. COLLUSION
G.R. No. L-13553 February 23, 1960
JOSE DE OCAMPO, petitioner,
vs.
SERAFINA FLORENCIANO, respondent.
Joselito J. Coloma for petitioner.
BENGZON, J.:
Action for legal separation by Jose de Ocampo against his wife Serafina, on the ground of
adultery. The court of first instance of Nueva Ecija dismissed it. The Court of Appeals affirmed,
holding there was confession of judgment, plus condonation or consent to the adultery and
prescription.
We granted certiorari to consider the application of articles 100 and 101 of the New Civil Code,
which for convenience are quoted herewith:
ART. 100.—The legal separation may be claimed only by the innocent spouse,
provided there has been no condonation of or consent to the adultery or concubinage.
Where both spouses are offenders, a legal separation cannot be claimed by either of
them. Collusion between the parties to obtain legal separation shall cause the
dismissal of the petition.
ART. 101.—No decree of legal separation shall be promulgated upon a stipulation of
facts or by confession of judgment.
In case of non-appearance of the defendant, the court shall order the prosecuting
attorney to inquire whether or not a collusion between the parties exists. If there is no
collusion, the prosecuting attorney shall intervene for the State in order to take care
that the evidence for the plaintiff is not fabricated.
The record shows that on July 5, 1955, the complaint for legal separation was filed. As
amended, it described their marriage performed in 1938, and the commission of adultery by
Serafina, in March 1951 with Jose Arcalas, and in June 1955 with Nelson Orzame.
Because the defendant made no answer, the court defaulted her, and pursuant to Art. 101
above, directed the provincial fiscal to investigate whether or not collusion existed between the
parties. The fiscal examined the defendant under oath, and then reported to the Court that
there was no collusion. The plaintiff presented his evidence consisting of the testimony of
63
Vicente Medina, Ernesto de Ocampo, Cesar Enriquez, Mateo Damo, Jose de Ocampo and
Capt. Serafin Gubat.
According to the Court of Appeals, the evidence thus presented shows that "plaintiff and
defendant were married in April 5, 1938 by a religious ceremony in Guimba, Nueva Ecija, and
had lived thereafter as husband and wife. They begot several children who are now living with
plaintiff. In March, 1951, plaintiff discovered on several occasions that his wife was betraying
his trust by maintaining illicit relations with one Jose Arcalas. Having found the defendant
carrying marital relations with another man plaintiff sent her to Manila in June 1951 to study
beauty culture, where she stayed for one year. Again, plaintiff discovered that while in the said
city defendant was going out with several other men, aside from Jose Arcalas. Towards the
end of June, 1952, when defendant had finished studying her course, she left plaintiff and
since then they had lived separately.
"On June 18, 1955, plaintiff surprised his wife in the act of having illicit relations with another
man by the name of Nelson Orzame. Plaintiff signified his intention of filing a petition for legal
separation, to which defendant manifested her conformity provided she is not charged with
adultery in a criminal action. Accordingly, plaintiff filed on July 5, 1955, a petition for legal
separation."
The Court of Appeals held that the husband's right to legal separation on account of the
defendant's adultery with Jose Arcalas had prescribed, because his action was not filed within
one year from March 1951 when plaintiff discovered her infidelity. (Art. 102, New Civil Code)
We must agree with the Court of Appeals on this point.1
As to the adultery with Nelson Orzame, the appellate court found that in the night of June 18,
1955, the husband upon discovering the illicit connection, expressed his wish to file a petition
for legal separation and defendant readily agreed to such filing. And when she was questioned
by the Fiscal upon orders of the court, she reiterated her conformity to the legal separation
even as she admitted having had sexual relations with Nelson Orzame. Interpreting these facts
virtually to mean a confession of judgment the Appellate Court declared that under Art. 101,
legal separation could not be decreed.
As we understand the article, it does not exclude, as evidence, any admission or confession
made by the defendant outside of the court. It merely prohibits a decree of separation upon a
confession of judgment. Confession of judgment usually happens when the defendant appears
in court and confesses the right of plaintiff to judgment or files a pleading expressly agreeing to
the plaintiff's demand.2 This is not occur.
Yet, even supposing that the above statement of defendant constituted practically a confession
of judgment, inasmuch as there is evidence of the adultery independently of such statement,
the decree may and should be granted, since it would not be based on her confession, but
upon evidence presented by the plaintiff. What the law prohibits is a judgment based
exclusively or mainly on defendant's confession. If a confession defeats the action ipso facto,
any defendant who opposes the separation will immediately confess judgment, purposely to
prevent it.
The mere circumstance that defendants told the Fiscal that she "like also" to be legally
separated from her husband, is no obstacle to the successful prosecution of the action. When
she refused to answer the complaint, she indicated her willingness to be separated. Yet, the
law does not order the dismissal. Allowing the proceeding to continue, it takes precautions
against collusion, which implies more than consent or lack of opposition to the agreement.
Needless to say, when the court is informed that defendant equally desires the separation and
admitted the commission of the offense, it should be doubly careful lest a collusion exists. (The
Court of Appeals did not find collusion.)
Collusion in divorce or legal separation means the agreement.
. . . between husband and wife for one of them to commit, or to appear to commit, or
to be represented in court as having committed, a matrimonial offense, or to suppress
evidence of a valid defense, for the purpose of enabling the other to obtain a divorce.
This agreement, if not express, may be implied from the acts of the parties. It is a
ground for denying the divorce. (Griffiths vs. Griffiths, 69 N. J. Eq. 689 60 Atl. 1099;
Sandoz vs. Sandoz, 107 Ore. 282, 214 Pas. 590.).
In this case, there would be collusion if the parties had arranged to make it appear that a
matrimonial offense had been committed although it was not, or if the parties had connived to
bring about a legal separation even in the absence of grounds therefor.
Here, the offense of adultery had really taking place, according to the evidence. The defendant
could not have falsely told the adulterous acts to the Fiscal, because her story might send her
to jail the moment her husband requests the Fiscal to prosecute. She could not have practiced
deception at such a personal risk.
In this connection, it has been held that collusion may not be inferred from the mere fact that
the guilty party confesses to the offense and thus enables the other party to procure evidence
necessary to prove it. (Williams vs. Williams, [N. Y.] 40 N. E. (2d) 1017; Rosenweig vs.
Rosenweig, 246 N. Y. Suppl. 231; Conyers, vs. Conyers, 224 S. W. [2d] 688.).
And proof that the defendant desires the divorce and makes no defense, is not by itself
collusion. (Pohlman vs. Pohlman, [N. J.] 46 Atl. Rep. 658.).
We do not think plaintiff's failure actively to search for defendant and take her home (after the
latter had left him in 1952) constituted condonation or consent to her adulterous relations with
64
Orzame. It will be remembered that she "left" him after having sinned with Arcalas and after he
had discovered her dates with other men. Consequently, it was not his duty to search for her to
bring her home. Hers was the obligation to return.
Two decisions3 are cited wherein from apparently similar circumstances, this Court inferred the
husband's consent to or condonation of his wife's misconduct. However, upon careful
examination, a vital difference will be found: in both instances, the husband had abandoned his
wife; here it was the wife who "left" her husband.
Wherefore, finding no obstacles to the aggrieved husband's petition we hereby reverse the
appealed decision and decree a legal separation between these spouse, all the consequent
effects. Costs of all instances against Serafina Florenciano. So ordered.
G.R. No. 137590 March 26, 2001
FLORENCE MALCAMPO-SIN, petitioner,
vs.
PHILIPP T. SIN, respondent.
PARDO, J.:
The Family Code emphasizes the permanent nature of marriage, hailing it as the foundation of
the family.1 It is this inviolability which is central to our traditional and religious concepts of
morality and provides the very bedrock on which our society finds stability.2 Marriage is
immutable and when both spouses give their consent to enter it, their consent becomes
irrevocable, unchanged even by their independent wills.
However, this inviolability depends on whether the marriage exists and is valid. If it is void ab
initio, the "permanence" of the union becomes irrelevant, and the Court can step in to declare it
so. Article 36 of the Family Code is the justification.3 Where it applies and is duly proven, a
judicial declaration can free the parties from the rights, obligations, burdens and consequences
stemming from their marriage.
A declaration of nullity of marriage under Article 36 of the Family Code requires the application
of procedural and substantive guidelines. While compliance with these requirements mostly
devolves upon petitioner, the State is likewise mandated to actively intervene in the procedure.
Should there be non-compliance by the State with its statutory duty, there is a need to remand
the case to the lower court for proper trial.
The Case
What is before the Court4 is an appeal from a decision of the Court of Appeals 5 which affirmed
the decision of the Regional Trial Court, Branch 158, Pasig City6 dismissing petitioner Florence
Malcampo-Sin's (hereafter "Florence") petition for declaration of nullity of marriage due to
psychological incapacity for insufficiency of evidence.
The Facts
On January 4, 1987, after a two-year courtship and engagement, Florence and respondent
Philipp T. Sin (hereafter "Philipp"), a Portugese citizen, were married at St. Jude Catholic
Parish in San Miguel, Manila.7
On September 20, 1994, Florence filed with the Regional Trial Court, Branch 158, Pasig City, a
complaint for "declaration of nullity of marriage" against Philipp. 8 Trial ensued and the parties
presented their respective documentary and testimonial evidence.
On June 16, 1995, the trial court dismissed Florence's petition. 9
On December 19, 1995, Florence filed with the trial court a notice of appeal to the Court of
Appeals.10
After due proceedings, on April 30, 1998, the Court of Appeals promulgated its decision, the
dispositive portion of which reads:
"IN THE LIGHT OF ALL THE FOREGOING, the Appeal is DISMISSED. The Decision
appealed from is AFFIRMED. Cost against the Appellant." 11
On June 23, 1998, petitioner filed with the Court of Appeals a motion for reconsideration of the
aforequoted decision.12
On January 19, 1999, the Court of Appeals denied petitioner's motion for reconsideration. 13
Hence, this appeal.14
The Court's Ruling
We note that throughout the trial in the lower court, the State did not participate in the
proceedings. While Fiscal Jose Danilo C. Jabson15 filed with the trial court a manifestation
dated November 16, 1994, stating that he found no collusion between the parties, 16 he did not
actively participate therein. Other than entering his appearance at certain hearings of the case,
65
nothing more was heard from him. Neither did the presiding Judge take any step to encourage
the fiscal to contribute to the proceedings.
The Family Code mandates:
"ARTICLE 48. In all cases of annulment or declaration of absolute nullity of marriage,
the Court shall order the prosecuting attorney or fiscal assigned to it to appear on
behalf of the State to take steps to prevent collusion between the parties and to take
care that evidence is not fabricated or suppressed (italics ours).
"In the cases referred to in the preceding paragraph, no judgment shall be based
upon a stipulation of facts or confession of judgment."
It can be argued that since the lower court dismissed the petition, the evil sought to be
prevented (i.e., dissolution of the marriage) did not come about, hence, the lack of participation
of the State was cured. Not so. The task of protecting marriage as an inviolable social
institution requires vigilant and zealous participation and not mere pro-forma compliance. The
protection of marriage as a sacred institution requires not just the defense of a true and
genuine union but the exposure of an invalid one as well. This is made clear by the following
pronouncement:
"(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,17 briefly stating therein his reasons for his agreement or opposition as the
case may be, to the petition. The Solicitor-General shall discharge the equivalent
function of the defensor vinculi contemplated under Canon 1095 (italics ours)." 18
The records are bereft of any evidence that the State participated in the prosecution of the
case not just at the trial level but on appeal with the Court of Appeals as well. Other than the
"manifestation" filed with the trial court on November 16, 1994, the State did not file any
pleading, motion or position paper, at any stage of the proceedings.
In Republic of the Philippines v. Erlinda Matias Dagdag,19 while we upheld the validity of the
marriage, we nevertheless characterized the decision of the trial court as "prematurely
rendered" since the investigating prosecutor was not given an opportunity to present
controverting evidence before the judgment was rendered. This stresses the importance of the
participation of the State.
Having so ruled, we decline to rule on the factual disputes of the case, this being within the
province of the trial court upon proper re-trial.
 Obiter Dictum
For purposes of re-trial, we guide the parties thus: In Republic vs. Court of Appeals,20 the
guidelines in the interpretation and application of Article 36 of the Family Code are as follows
(omitting guideline [8] in the enumeration as it was already earlier quoted):
"(1) The burden of proof to show the nullity of the marriage belongs to the plaintiff.
Any doubt should be resolved in favor of the existence and continuation of the
marriage and against its dissolution and nullity. This is rooted in the fact that both our
Constitution and our laws cherish the validity of marriage and unity of the family.
Thus, our Constitution devotes an entire Article on the Family, recognizing it "as the
foundation of the nation." It decrees marriage as legally "inviolable," thereby
protecting it from dissolution at the whim of the parties. Both the family and marriage
are to be "protected" by the state. The Family Code echoes this constitutional edict on
marriage and the family and emphasizes their permanence, inviolability and solidarity.
"(2) The root cause of the psychological incapacity must be: a) medically or clinically
identified, b) alleged in the complaint, c) sufficiently proven by experts and d) clearly
explained in the decision. Article 36 of the Family Code requires that the incapacity
must be psychological — not physical, although its manifestations and/or symptoms
may be physical. The evidence must convince the court that the parties, or one of
them, was mentally or psychically (sic) ill to such an extent that the person could not
have known the obligations he was assuming, or knowing them, could not have given
valid assumption thereof. Although no example of such incapacity need be given here
so as not to limit the application of the provision under the principle of ejusdem
generis, nevertheless such root cause must be identified as a psychological illness
and its incapacitating nature fully explained. Expert evidence may be given by
qualified psychiatrists and clinical psychologists.
"(3) The incapacity must be proven to be existing at "the time of the celebration" of
the marriage. The evidence must show that the illness was existing when the parties
exchanged their "I do's." The manifestation of the illness need not be perceivable at
such time, but the illness itself must have attached at such moment, or prior thereto.
"(4) Such incapacity must also be shown to be medically or clinically permanent or
incurable. Such incurability may be absolute or even relative only in regard to the
other spouse, not necessarily absolutely against everyone of the same sex.
Furthermore, such incapacity must be relevant to the assumption of marriage
obligations, not necessarily to those not related to marriage, like the exercise of a
profession or employment in a job. Hence, a pediatrician may be effective in
diagnosing illnesses of children and prescribing medicine to cure them but may not be
psychologically capacitated to procreate, bear and raise his/her own children as an
essential obligation of marriage.
66
"(5) Such illness must be grave enough to bring about the disability of the party to
assume the essential obligations of marriage. Thus, "mild characteriological
peculiarities, mood changes, occasional emotional outbursts" cannot be accepted as
root causes. The illness must be shown as downright incapacity or inability, not
refusal, neglect or difficulty, much less ill will. In other words, there is a natal or
supervening disabling factor in the person, an adverse integral element in the
personality structure that effectively incapacitates the person from really accepting
and thereby complying with the obligations essential to marriage.
"(6) The essential marital obligations must be those embraced by Articles 68 up to 71
of the Family Code as regards the husband and wife as well as Articles 220, 221 and
225 of the same Code in regard to parents and their children. Such non-complied
marital obligation(s) must also be stated in the petition, proven by evidence and
included in the text of the decision.
"(7) Interpretations given by the National Appellate Matrimonial Tribunal of the
Catholic Church in the Philippines, while not controlling or decisive, should be given
great respect by our courts."
The Fallo
WHEREFORE, the Court REVERSES and SETS ASIDE the appealed decision of the Court of
Appeals in CA-G.R. CV No. 51304, promulgated on April 30, 1998 and the decision of the
Regional Trial Court, Branch 158, Pasig City in Civil Case No. 3190, dated June 16, 1995.
Let the case be REMANDED to the trial court for proper trial.
No costs.
SO ORDERED.
G.R. No. 145370 March 4, 2004
MARIETTA B. ANCHETA, petitioner,
vs.
RODOLFO S. ANCHETA, respondent.
DECISION
CALLEJO, SR., J.:
This is a petition for review on certiorari of the Resolution 1 of the Court of Appeals in CA-G.R.
SP No. 59550 which dismissed the petitioner’s petition under Rule 47 of the 1997 Rules of
Civil Procedure to annul the Order2 of the Regional Trial Court of Naic, Cavite, Branch 15 in
Special Proceedings No. NC-662 nullifying the marriage of the petitioner and the respondent
Rodolfo S. Ancheta, and of the resolution of the appellate court denying the motion for
reconsideration of the said resolution.
This case arose from the following facts:
After their marriage on March 5, 1959, the petitioner and the respondent resided in Muntinlupa,
Metro Manila. They had eight children during their coverture, whose names and dates of births
are as follows:
a. ANA MARIE B . ANCHETA – born October 6, 1959
b. RODOLFO B. ANCHETA, JR. – born March 7, 1961
c. VENANCIO MARIANO B. ANCHETA – born May 18, 1962
d. GERARDO B. ANCHETA – born April 8, 1963
e. KATHRINA B. ANCHETA – born October 29, 1965
f. ANTONIO B. ANCHETA – born March 6, 1967
g. NATASHA MARTINA B. ANCHETA - born August 2, 1968
h. FRITZIE YOLANDA B. ANCHETA – born November 19, 19703
On December 6, 1992, the respondent left the conjugal home and abandoned the petitioner
and their children. On January 25, 1994, petitioner Marietta Ancheta filed a petition with the
Regional Trial Court of Makati, Branch 40, against the respondent for the dissolution of their
conjugal partnership and judicial separation of property with a plea for support and support
pendente lite. The case was docketed as Sp. Proc. No. M-3735. At that time, the petitioner
was renting a house at No. 72 CRM Avenue cor. CRM Corazon, BF Homes, Almanza, Las
Piñas, Metro Manila.4
On April 20, 1994, the parties executed a Compromise Agreement5 where some of the
conjugal properties were adjudicated to the petitioner and her eight children, including the
following:
67
b. A parcel of land (adjoining the two lots covered by TCT Nos. 120082 and TCT No. 120083-
Cavite) located at Bancal, Carmona, Cavite, registered in the name of the family Ancheta.
Biofood Corporation under TCT No. 310882, together with the resort Munting Paraiso, Training
Center, four-storey building, pavilion, swimming pool and all improvements. All of the shares of
stocks of Ancheta Biofoods Corporation were distributed one-third (1/3) to the petitioner and
the eight children one-twelfth (1/12) each.6
The court rendered judgment based on the said compromise agreement. Conformably thereto,
the respondent vacated, on June 1, 1994, the resort Munting Paraiso and all the buildings and
improvements thereon. The petitioner, with the knowledge of the respondent, thenceforth
resided in the said property.
In the meantime, the respondent intended to marry again. On June 5, 1995, he filed a petition
with the Regional Trial Court of Naic, Cavite, Branch 15, for the declaration of nullity of his
marriage with the petitioner on the ground of psychological incapacity. The case was docketed
as Sp. Proc. No. NC-662. Although the respondent knew that the petitioner was already
residing at the resort Munting Paraiso in Bancal, Carmona, Cavite, he, nevertheless, alleged in
his petition that the petitioner was residing at No. 72 CRM Avenue corner CRM Corazon, BF
Homes, Almanza, Las Piñas, Metro Manila, "where she may be served with summons."7 The
clerk of court issued summons to the petitioner at the address stated in the petition. 8 The
sheriff served the summons and a copy of the petition by substituted service on June 6, 1995
on the petitioner’s son, Venancio Mariano B. Ancheta III, at his residence in Bancal, Carmona,
Cavite.9
On June 21, 1995, Sheriff Jose R. Salvadora, Jr. submitted a Return of Service to the court
stating that the summons and a copy of the petition were served on the petitioner through her
son Venancio Mariano B. Ancheta III on June 6, 1995:
RETURN OF SERVICE
This is to certify that the summons together with the copy of the complaint and its annexes was
received by the herein defendant thru his son Venancio M.B. Ancheta [III] as evidenced by the
signature appearing on the summons. Service was made on June 6, 1995.
June 21, 1995, Naic, Cavite.
(Sgd.) JOSE R. SALVADORA, JR.
Sheriff10
The petitioner failed to file an answer to the petition. On June 22, 1995, the respondent filed an
"Ex-Parte Motion to Declare Defendant as in Default" setting it for hearing on June 27, 1995 at
8:30 a.m. During the hearing on the said date, there was no appearance for the petitioner. The
public prosecutor appeared for the State and offered no objection to the motion of the a. ₱1,000,000.00 as moral damages;
respondent who appeared with counsel. The trial court granted the motion and declared the
petitioner in default, and allowed the respondent to adduce evidence ex-parte. The respondent b. ₱500,000.00 as exemplary damages;
testified in his behalf and adduced documentary evidence. On July 7, 1995, the trial court
issued an Order granting the petition and declaring the marriage of the parties void ab
initio.11 The clerk of court issued a Certificate of Finality of the Order of the court on July 16, c. ₱200,000.00 as attorney’s fees plus P7,500.00 per diem for every
1996.12 hearing;

On February 14, 1998, Valentine’s Day, the respondent and Teresita H. Rodil were married in
civil rights before the municipal mayor of Indang, Cavite.13
On July 7, 2000, the petitioner filed a verified petition against the respondent with the Court of
Appeals under Rule 47 of the Rules of Court, as amended, for the annulment of the order of
the RTC of Cavite in Special Proceedings No. NC-662. The case was docketed as CA-G.R.
SP No. 59550. The petitioner alleged, inter alia, that the respondent committed gross
misrepresentations by making it appear in his petition in Sp. Proc. No. NC-662 that she was a
resident of No. 72 CRM Avenue cor. CRM Corazon, BF Homes, Almanza, Las Piñas, Metro
Manila, when in truth and in fact, the respondent knew very well that she was residing at
Munting Paraiso, Bancal, Carmona, Cavite. According to the petitioner, the respondent did so
to deprive her of her right to be heard in the said case, and ultimately secure a favorable
judgment without any opposition thereto. The petitioner also alleged that the respondent
caused the service of the petition and summons on her by substituted service through her
married son, Venancio Mariano B. Ancheta III, a resident of Bancal, Carmona, Cavite, where
the respondent was a resident. Furthermore, Venancio M.B. Ancheta III failed to deliver to her
the copy of the petition and summons. Thus, according to the petitioner, the order of the trial
court in favor of the respondent was null and void (1) for lack of jurisdiction over her person;
and (2) due to the extrinsic fraud perpetrated by the respondent. She further contended that
there was no factual basis for the trial court’s finding that she was suffering from psychological
incapacity. Finally, the petitioner averred that she learned of the Order of the RTC only on
January 11, 2000. Appended to the petition, inter alia, were the affidavits of the petitioner and
of Venancio M.B. Ancheta III.
d. ₱100,000.00 as litigation expenses;
e. Costs of suit.14
On July 13, 2000, the CA issued a Resolution dismissing the petition on the following ground:
We cannot give due course to the present petition in default or in the absence of any clear and
specific averment by petitioner that the ordinary remedies of new trial, appeal, petition for relief
or other appropriate remedies are no longer available through no fault of petitioner. Neither is
there any averment or allegation that the present petition is based only on the grounds of
extrinsic fraud and lack of jurisdiction. Nor yet that, on the assumption that extrinsic fraud can
be a valid ground therefor, that it was not availed of, or could not have been availed of, in a
motion for new trial, or petition for relief.15
The petitioner filed a motion for the reconsideration of the said resolution, appending thereto
an amended petition in which she alleged, inter alia, that:
4. This petition is based purely on the grounds of extrinsic fraud and lack of
jurisdiction.
5. This petition has not prescribed; it was filed within the four-year period after
discovery of the extrinsic fraud.

The petitioner prayed that, after due proceedings, judgment be rendered in her favor, thus:
6. The ground of extrinsic fraud has not been availed of, or could not have been
availed of in a motion for new trial or petition for relief.
WHEREFORE, petitioner respectfully prays this Honorable Court to render Judgment granting
the Petition.
7. The ground of lack of jurisdiction is not barred by laches and/or estoppel.

1. Declaring null and void the Order dated June 7, 1995 (of the Regional Trial Court,
8. The ordinary remedies of new trial, appeal, petition for relief or other appropriate
Branch 14, Naic, Cavite).
remedies were no longer available through no fault of petitioner; neither has she ever
availed of the said remedies. This petition is the only available remedy to her.16
2. Ordering respondent to pay petitioner

68
The petitioner also alleged therein that the order of the trial court nullifying her and the
respondent’s marriage was null and void for the court a quo’s failure to order the public
prosecutor to conduct an investigation on whether there was collusion between the parties,
and to order the Solicitor General to appear for the State.
On September 27, 2000, the CA issued a Resolution denying the said motion.
The petitioner filed a petition for review on certiorari with this Court alleging that the CA erred
as follows:
1. In failing to take into consideration the kind of Order which was sought to be
annulled.
2. In finding that the Petition was procedurally flawed.
3. In not finding that the Petition substantially complied with the requirements of the
Rules of Court.
4. In failing to comply with Section 5, Rule 47, Rules of Court.
5. In not even considering/resolving Petitioner’s Motion to Admit the Amended
Petition; and in not admitting the Amended Petition.
6. In failing to apply the Rules of Procedure with liberality.17
The petition is meritorious.
An original action in the Court of Appeals under Rule 47 of the Rules of Court, as amended, to
annul a judgment or final order or resolution in civil actions of the RTC may be based on two
grounds: (a) extrinsic fraud; or (b) lack of jurisdiction. If based on extrinsic fraud, the remedy is
subject to a condition precedent, namely, the ordinary remedies of new trial, appeal, petition
for relief or other appropriate remedies are no longer available through no fault of the
petitioner.18 The petitioner must allege in the petition that the ordinary remedies of new trial,
appeal, petition for relief from judgment, under Rule 38 of the Rules of Court are no longer
available through no fault of hers; otherwise, the petition will be dismissed. If the petitioner fails
to avail of the remedies of new trial, appeal or relief from judgment through her own fault or
negligence before filing her petition with the Court of Appeals, she cannot resort to the remedy
under Rule 47 of the Rules; otherwise, she would benefit from her inaction or negligence. 19
It is not enough to allege in the petition that the said remedies were no longer available
through no fault of her own. The petitioner must also explain and justify her failure to avail of
69
such remedies. The safeguard was incorporated in the rule precisely to avoid abuse of the
remedy.20 Access to the courts is guaranteed. But there must be limits thereto. Once a
litigant’s rights have been adjudicated in a valid final judgment of a competent court, he should
not be granted an unbridled license to sue anew. The prevailing party should not be vexed by
subsequent suits.21
In this case, the petitioner failed to allege in her petition in the CA that the ordinary remedies of
new trial, appeal, and petition for relief, were no longer available through no fault of her own.
She merely alleged therein that she received the assailed order of the trial court on January
11, 2000. The petitioner’s amended petition did not cure the fatal defect in her original petition,
because although she admitted therein that she did not avail of the remedies of new trial,
appeal or petition for relief from judgment, she did not explain why she failed to do so.
We, however, rule that the Court of Appeals erred in dismissing the original petition and
denying admission of the amended petition. This is so because apparently, the Court of
Appeals failed to take note from the material allegations of the petition, that the petition was
based not only on extrinsic fraud but also on lack of jurisdiction over the person of the
petitioner, on her claim that the summons and the copy of the complaint in Sp. Proc. No. NC-
662 were not served on her. While the original petition and amended petition did not state a
cause of action for the nullification of the assailed order on the ground of extrinsic fraud, we
rule, however, that it states a sufficient cause of action for the nullification of the assailed order
on the ground of lack of jurisdiction of the RTC over the person of the petitioner,
notwithstanding the absence of any allegation therein that the ordinary remedy of new trial or
reconsideration, or appeal are no longer available through no fault of the petitioner.
In a case where a petition for the annulment of a judgment or final order of the RTC filed under
Rule 47 of the Rules of Court is grounded on lack of jurisdiction over the person of the
defendant/respondent or over the nature or subject of the action, the petitioner need not allege
in the petition that the ordinary remedy of new trial or reconsideration of the final order or
judgment or appeal therefrom are no longer available through no fault of her own. This is so
because a judgment rendered or final order issued by the RTC without jurisdiction is null and
void and may be assailed any time either collaterally or in a direct action or by resisting such
judgment or final order in any action or proceeding whenever it is invoked,22 unless barred by
laches.23
In this case, the original petition and the amended petition in the Court of Appeals, in light of
the material averments therein, were based not only on extrinsic fraud, but also on lack of
jurisdiction of the trial court over the person of the petitioner because of the failure of the sheriff
to serve on her the summons and a copy of the complaint. She claimed that the summons and
complaint were served on her son, Venancio Mariano B. Ancheta III, who, however, failed to
give her the said summons and complaint.
Even a cursory reading of the material averments of the original petition and its annexes will
show that it is, prima facie meritorious; hence, it should have been given due course by the
Court of Appeals.
In Paramount Insurance Corporation v. Japzon,24 we held that jurisdiction is acquired by a trial
court over the person of the defendant either by his voluntary appearance in court and his
submission to its authority or by service of summons. The service of summons and the
complaint on the defendant is to inform him that a case has been filed against him and, thus,
enable him to defend himself. He is, thus, put on guard as to the demands of the plaintiff or the
petitioner. Without such service in the absence of a valid waiver renders the judgment of the
court null and void.25 Jurisdiction cannot be acquired by the court on the person of the
defendant even if he knows of the case against him unless he is validly served with
summons.26
Summons and complaint may be served on the defendant either by handing a copy thereof to
him in person, or, if he refuses to receive and sign for it, by tendering it to her. 27 However, if
there is impossibility of prompt service of the summons personally on the defendant despite
diligent efforts to find him, service of the summons may be effected by substituted service as
provided in Section 7, Rule 14 of the said Rules:
SEC. 7. Substituted service.— If, for justifiable causes, the defendant cannot be served within
a reasonable time as provided in the preceding section, service may be effected (a) by leaving
copies of the summons at the defendant’s residence with some person of suitable age and
discretion then residing therein, or (b) by leaving the copies of defendant’s office or regular
place of business with some competent person in charge thereof.28
In Miranda v. Court of Appeals,29 we held that the modes of service should be strictly followed
in order that the court may acquire jurisdiction over the person of the defendant. Thus, it is only
when a defendant cannot be served personally within a reasonable time that substituted
service may be made by stating the efforts made to find him and personally serve on him the
summons and complaint and the fact that such effort failed.30 This statement should be made
in the proof of service to be accomplished and filed in court by the sheriff. This is necessary
because substituted service is a derogation of the usual method of service. It has been held
that substituted service of summons is a method extraordinary in character; hence, may be
used only as prescribed and in the circumstances categorized by statutes. 31
As gleaned from the petition and the amended petition in the CA and the annexes thereof, the
summons in Sp. Proc. No. NC-662 was issued on June 6, 1995.32 On the same day, the
summons was served on and received by Venancio Mariano B. Ancheta III, 33 the petitioner’s
son. When the return of summons was submitted to the court by the sheriff on June 21, 1995,
no statement was made on the impossibility of locating the defendant therein within a
reasonable time, or that any effort was made by the sheriff to locate the defendant. There was
no mention therein that Venancio Mariano Ancheta III was residing at No. 72 CRM Avenue cor.
70
CRM Corazon, BF Homes, Almanza, Las Piñas, where the petitioner (defendant therein) was
allegedly residing. It turned out that Venancio Mariano B. Ancheta III had been residing at
Bancal, Carmona, Cavite, and that his father merely showed him the summons and the
complaint and was made to affix his signature on the face of the summons; he was not
furnished with a copy of the said summons and complaint.
4. From the time my father started staying at Munting Paraiso, Bancal, Carmona,
Cavite, I have been residing on the adjoining land consisting of two (2) lots later
apportioned to my father as his share of the conjugal partnership. Since then, I have
been residing therein up to the present.
5. On June 6, 1995, at Bancal, Carmona, Cavite (at my residence situated on my
father’s lot), my father came to see me and then asked me to sign and I did sign
papers which he (my father) and the Sheriff did not allow me to read. Apparently,
these papers are for the Summons to my mother in the case for annulment of
marriage filed by my father against her. I was not given any copy of the Summons
and/or copy of the complaint/petition.34
We, thus, rule that the Court of Appeals acted arbitrarily in dismissing the original petition of
the petitioner and the amended petition for annulment of the assailed order grounded on lack
of jurisdiction over the person of the petitioner.
The action in Rule 47 of the Rules of Court does not involve the merits of the final order of the
trial court. However, we cannot but express alarm at what transpired in the court a quo as
shown by the records. The records show that for the petitioner’s failure to file an answer to the
complaint, the trial court granted the motion of the respondent herein to declare her in default.
The public prosecutor condoned the acts of the trial court when he interposed no objection to
the motion of the respondent. The trial court forthwith received the evidence of the respondent
ex-parte and rendered judgment against the petitioner without a whimper of protest from the
public prosecutor. The actuations of the trial court and the public prosecutor are in defiance of
Article 48 of the Family Code, which reads:
Article 48. In all cases of annulment or declaration of absolute nullity of marriage, the Court
shall order the prosecuting attorney or fiscal assigned to it to appear on behalf of the State to
take steps to prevent collusion between the parties and to take care that evidence is not
fabricated or suppressed.
In the cases referred to in the preceding paragraph, no judgment shall be based upon a
stipulation of facts or confession of judgment.35
The trial court and the public prosecutor also ignored Rule 18, Section 6 of the 1985 Rules of
Court (now Rule 9, Section 3[e] of the 1997 Rules of Civil Procedure) which provides:
Sec. 6. No defaults in actions for annulment of marriage or for legal separation.— If the
defendant in an action for annulment 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 exits, and if there is no collusion, to intervene for the State in order to see to it that the
evidence submitted is not fabricated.36
than on good, solid and happy families. The break-up of families weakens our social and moral
fabric; hence, their preservation is not the concern of the family members alone.43 Whether or
not a marriage should continue to exist or a family should stay together must not depend on
the whims and caprices of only one party, who claims that the other suffers psychological
imbalance, incapacitating such party to fulfill his or her marital duties and obligations.

In the case of Republic v. Court of Appeals,37 this Court laid down the guidelines in the IN LIGHT OF ALL THE FOREGOING, the petition is GRANTED. The Resolutions of the Court
interpretation and application of Art. 48 of the Family Code, one of which concerns the role of of Appeals dated July 13, 2000 and September 27, 2000 in CA-G.R. SP No. 59550 are hereby
the prosecuting attorney or fiscal and the Solicitor General to appear as counsel for the State: SET ASIDE and REVERSED. Let the records of CA-G.R. SP No. 59550 be remanded to the
Court of Appeals for further proceedings conformably with the Decision of this Court and Rule
(8) The trial court must order the prosecuting attorney or fiscal and the Solicitor General to 47 of the Rules of Court, as amended.
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 SO ORDERED.
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 1095.38

This Court in the case of Malcampo-Sin v. Sin39 reiterated its pronouncement in Republic v.
Court of Appeals,40 regarding the role of the prosecuting attorney or fiscal and the Solicitor
General to appear as counsel for the State.41 The trial court, abetted by the ineptitude, if not
sheer negligence of the public prosecutor, waylaid the Rules of Court and the Family Code, as
well as the rulings of this Court.

The task of protecting marriage as an inviolable social institution requires vigilant and zealous
participation and not mere pro-forma compliance. The protection of marriage as a sacred
institution requires not just the defense of a true and genuine union but the exposure of an
invalid one as well.42

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.

Our constitution is committed to the policy of strengthening the family as a basic social
institution. Our family law is based on the policy that marriage is not a mere contract, but a
social institution in which the State is vitally interested. The State can find no stronger anchor

71