DECLARATION OF PRESUMPTIVE DEATH
death.
Republic v. Callejo
G.R. No. 159614, 9 December 2005
FACTS:
Alan Alegro, the petitioner, was married with Lea in January 1995. Lea arrived home
late in February 1995 and Alan told her that if she enjoys life of a single person, it will
be better for her to go back to her parents. Lea left after that fight. Allan checked if
she went to her parents’ house but was not there and even inquired to her friends. He
went back to the parents-in-law’s house and learned that Lea had been to their house
but left without notice. He then sought help from the Barangay Captain. For some
time, Alan decided to work as part-time taxi driver and during his free time he would
look for Lea in the malls. In June 2001, Alan reported Lea’s disappearance to the
local police station and an alarm notice was issued. He also reported the
disappearance in NBI on July 2001. Alan filed a petition in March 2001 for the
declaration of presumptive death of his wife.
ISSUE:
Whether Alan has a well-founded belief that his wife is already dead.
RULING:
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.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
1
throw light on their intentions, competence evidence on the ultimate question of his
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. 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,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 bekieve what they wish to be true.
The court ruled that Alan failed to prove that he has a well-founded belief, before he
filed his petition with RTC, that his spouse was dead. He failed to present a witness
other than the Barangay Captain. He even failed to present those friends of Lea which
he inquired to corroborate his testimony. He also failed to make inquiries from his
parents-in-law regarding Lea’s whereabouts before filing his petition in the RTC. It
could have enhanced his credibility had he made inquiries from his parents-in-law
about Lea’s whereabouts considering that Lea’s father was the owner of Radio DYMS.
He did report and seek help of the local police authorities and NBI to locate Lea but
he did so only after the OSG file its notice to dismiss his petition in RTC.
Valdez v. Republic
G.R. No. 180863, 8 September 2009
FACTS:
Angelita Valdez was married with Sofio in January 1971. She gave birth to a baby girl
named Nancy. They argued constantly because Sofio was unemployed and did not
bring home any money. In March 1972, the latter left their house. Angelita and her
child waited until in May 1972, they decided to go back to her parent’s home. 3 years
have passed without any word from Sofio until in October 1975 when he showed up
and they agreed to separate and executed a document to that effect. It was the last
time they saw each other and had never heard of ever since. Believing that Sofio was
already dead, petitioner married Virgilio Reyes in June 1985. Virgilio’s application for
naturalization in US was denied because petitioner’s marriage with Sofio was
subsisting. Hence, in March 2007, petitioner filed a petition seeking declaration of
presumptive death of Sofio.
ISSUE:
Whether or not petitioner’s marriage with Virgilio is valid despite lack of declaration
of presumptive death of Sofio.
RULING:
Yes. Petitioner’s marriage with Virgilio is valid despite lack of declaration of
presumptive death of Sofio.
Pursuant to Article 83 of the Civil Code, 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.
Therefore, under the Civil Code, the presumption of death is established by law 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, 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.
2
Armas v. Calisterio
G.R. No. 136467, 6 April 2000
FACTS:
Teodorico Calisterio died intestate, leaving several parcels of land with an estimated
value of P604,750.00. Teodorico was survived by his wife Marietta Calisterio.
Teodorico was the second husband of Marietta who had previously been married to
James William Bounds. James Bounds disappeared without a trace on 11 February
1947. Teodorico and Marietta were married eleven years later without Marietta
having priorly secured a court declaration that James was presumptively dead.
Petitioner Antonia Armas y Calisterio, a surviving sister of Teodorico, filed 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 and 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.
ISSUE:
Whether the marriage between Teodorico and Marietta is valid.
RULING:
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 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.
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. 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. The Court does not find these circumstances to be here extant.
Judicial declaration of absence of the absentee spouse is not necessary as long as the
prescribed period of absence is met. It is equally noteworthy that the marriage in
these exceptional cases is, 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.
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
3
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 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.
Social Security System v. Bailon
G.R. No. 165545, 24 March 2006
FACTS:
In 1955, Clemente Bailon and Alice Diaz married in Barcelona, Sorsogon. More than
15 years later, Clemente filed an action to declare the presumptive death of Alice, she
being an absentee. The petition was granted in 1970.
In 1983, Clemente married Jarque. The two live together until Clemente’s death in
1998. Jarque then sought to claim her husband’s SSS benefits and the same were
granted her. On the other hand, a certain Cecilia Bailon-Yap who claimed that she is
the daughter of Bailon to a certain Elisa Jayona petitioned before the SSS that they be
given the reimbursement for the funeral spending for it was actually them who
shouldered the burial expenses of Clemente.
They further claim that Clemente contracted three marriages; one with Alice, another
with Elisa and the other with Jarque. Cecilia also averred that Alice is alive and
kicking and Alice subsequently emerged. Cecilia claimed that Clemente obtained the
declaration of Alice’s presumptive death in bad faith for he was aware of the
whereabouts of Alice or if not he could have easily located her in her parent’s place.
She was in Sorsogon all along in her parents’ place. She went there upon learning that
Clemente had been having extra-marital affairs.
SSS then ruled that Jarque should reimburse what had been granted her and to
return the same to Cecilia since she shouldered the burial expenses and that the
benefits should go to Alice because her reappearance had terminated Clemente’s
marriage with Harque. Further, SSS ruled that the RTC’s decision in declaring Alice
to be presumptively death is erroneous. Teresita appealed the decision of the SSS
before the Social Security Commission and the SSC affirmed SSS. The CA however
ruled the contrary.
ISSUE:
Whether or not the mere appearance of the absent spouse declared presumptively
dead automatically terminates the subsequent marriage.
RULING:
No. 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.
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.
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, the action for annulment became extinguished as provided in Article 87,
paragraph 2, of the Civil Code, requiring that the action for annulment should be
brought during the lifetime of any one of the parties involved.
Voidable marriage under Article 83, paragraph 2, of the Civil Code, 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
4
which case the parties and their offspring will be left as if the marriage had been
perfectly valid.
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.
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.
CELERINA J. SANTOS v. RICARDO T. SANTOS, GR No. 187061, 2014-10-08
Facts:
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.[... business did not prosper.[5] As a result, Celerina convinced
him to allow her to work as a domestic helper in Hong Kong.[6]
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.[8]... icardo further
alleged that he exerted efforts to locate Celerina.[
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.[11
Ricardo claimed that it w... as almost 12 years from the date of his Regional Trial
Court petition since Celerina left. He believed that she had passed away.[12]
C... elerina 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.[13]
On November 17, 2008, Celerina filed a petition for annulment of judgment[14] be...
efor... e... he Court of Appeals on the grounds of extrinsic fraud an... nd... lack of
jurisdiction. S
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.[18
Cel
. death is... obtained fraudulently.[33]
elerina 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.[2
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.
he 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.[28]
Issues:
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.
Ruling:
The petition is meritorious
5
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
Principles:
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
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.[
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."[36]
The grounds for annulment of judgment are extrinsic fraud and lack of jurisdiction.
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
Celerina claimed that because of these, she was deprived of notice and opportunity to
oppose Ricardo's petition to declare her presumptively... dead.
elerina 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.[44]
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
The choice of remedy is important because remedies carry with them certain
admissions, presumptions, and conditions.
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
A second marriage is bigamous while the first subsists. However, a bigamous
subsequent marriage may be considered valid when the following are present:
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]
Marriages contracted prior to the valid termination of a subsisting marriage are
generally considered bigamous and void.
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.
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
6
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
REPUBLIC v. MARIA FE ESPINOSA CANTOR, GR No. 184621, 2013-12-10
Facts:
CASE:
The petition for review on certiorari... assails the decision... declaring Jerry F. Cantor,
respondent Maria Fe Espinosa Cantor's husband, presumptively dead under Article
41 of the Family
Code.
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. 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 petition[4] for her husband's declaration of
presumptive death
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.
RTC Ruling: Petition granted... 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.
CA Ruling: Affirmed RTC, dismissed OSG petition.
The case reached the CA through a petition for certiorari[6] filed 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.
OSG's argument:... 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.
Issues:
respondent
(2) Whether the respondent had a well-founded belief that Jerry is already dead.
Ruling:
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:
7
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;
That the present spouse wishes to remarry;
That the present spouse has a well-founded belief that the absentee is dead; and
That the present spouse files a summary proceeding for the declaration of
presumptive death of the absentee.
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.
Declaration of Presumptive Death Under Article 41 of the Family Code Imposes a
Stricter Standard
Article 41 of the Family Code, compared to the old provision of the Civil Code which it
superseded, imposes a stricter standard.
In Republic vs. Nolasco, the Court noted the differences between Art. 41 of the Family
Code and Art. 83 of the Civil Code:
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.
The Requirement of Well-Founded Belief... 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 spouse is already dead. It requires
exertion of active effort (not... a mere passive one).
Previous jurisprudence on what is a "diligent and reasonable search"... i. Republic of
the Philippines v. Court of Appeals (Tenth Div.)
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.
ii. Republic v. 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.
8
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 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 inquired about 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. 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.
The present case:... 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
(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.
her hospital visits and her consequent checking of the patients' directory therein were
unintentional.
Second, she did not report Jerry's absence to the police nor did she seek the aid of the
authorities to look for him.
Third, she did not present as witnesses Jerry's relatives or their neighbors and
friends, who can corroborate her efforts to locate Jerry.
Lastly, there was no other corroborative evidence to support the respondent's claim
that she conducted a diligent search.
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 nature and extent of
the inquiries made by [the] present spouse."
Rationale behind the strict standard approach:
Strict Standard Approach Is Consistent with the State's Policy to Protect and
Strengthen Marriage
a.... possible collusion of spouses
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.
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
9
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.
Since marriage serves as the family's foundation[25] 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.
Strict Standard Prescribed Under Article 41 of the Family Code Is 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.
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.
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.
Principles:
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.
The Requirement of Well-Founded Belief
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 spouse is already dead. It requires exertion of active effort
(not... a mere passive one).
 REPUBLIC OF THE PHILIPPINES, petitioner, v.
GLORIA BERMUDEZ-LORINO, respondent.
G.R. No. 160258. January 19, 2005
Facts:
Petitioner Gloria Bermudez-Lorino filed a verified petition with the Regional Trial
Court under the rules on Summary Judicial Proceedings in the Family Law provided
for in the Family Code to declare her husband judicially presumed dead for the
purpose of remarriage. She averred that she 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
prior to their marriage. 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 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. The RTC granted the petition and rendered the
decision final and executory. Nevertheless, the CA studied the case upon appeal of the
Solicitor General representing the republic, but affirmed the decision of the RTC;
hence this petition.
Issue:
Whether the appeal was correct considering that the decision was rendered as final
and executor.
Ruling:
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. 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.
The petition is therefore denied.
10
VIII. Legal Separation
A. GROUNDS
Buccat v. Buccat
G.R. No. 47101, 25 April 1941
FACTS:
It was established before the trial court: The Plaintiff met the defendant in March
1938. After several interviews, both were committed on September 19 of that year .On
November 26 the same year, the plaintiff married the defendant in a Catholic
Cathedral in Baguio. They, then, cohabited for about eighty-nine days. Defendant
gave birth to a child of nine months on February 23, 1939. Following this event,
Plaintiff and Defendant separated. On March 20, 1939 the plaintiff filed an action for
annulment of marriage before the CFI of Baguio City. The plaintiff claimed that he
consented to the marriage because the defendant assured him that she was virgin.
The trial court dismissed the complaint.
Hence, this appeal. Basically, Godofredo Buccat (Plaintiff) and Luida Mangonon
(Defendant) got married on November 26, 1938. Luida gave birth after 89 days and
on March 20, 1939 Godofredo filed for annulment of marriage before the CFI because
he was led to believe by Luida that she was a virgin. The trial court dismissed the
complaint, so Godofredo appealed.
ISSUE:
Should the annulment for Godofredo Buccat’s marriage be granted on the grounds
that Luida concealed her pregnancy before the marriage?
RULING:
No. Clear and authentic proof is needed in order to nullify a marriage, a sacred
institution in which the State is interested and where society rests.
In this case, the court did not find any proof that there was concealment of pregnancy
constituting fraud as a ground for annulment. It was unlikely that Godofredo, a first-
year law student, did not suspect anything about Luida’s condition considering that
she was in an advanced stage of pregnancy (highly developed physical manifestation,
ie. enlarged stomach ) when they got married. As she gave birth less than 3 months
after they got married, she must have looked very pregnant even before they were
married. Thus, consent freely given: ARTICLE 4 and 45 FC.
SC affirmed the lower court’s decision. Costs to plaintiff-appellant.
Aquino v. Delizo
G.R. No. L-15853, 27 July 1960
FACTS:
The trial court dismissed the complaint for Aquino did not show any birth certificate
to show the child was born within 180 days after the marriage between the parties.
Later on Aquino presented evidence to show proof of the child’s birth but still his
petition was denied. The CA denied Aquino’s appeal on the theory that it was not
impossible for the parties to have sex during their engagement so that the child could
be their own and finding it absurd for Aquino not to notice or suspect that Delizo was
pregnant when he married her. In a motion for reconsideration filed by Aquino,
Delizo and her counsel did not file an answer thus the motion for reconsideration was
denied.
ISSUE:
Whether or not the dismissal of Aquino’s complaint is correct.
RULING:
No. The dismissal is not correct. 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.
11
Concealment of the wife the fact that at the time of the marriage she was pregnant by
a man other than his husband constitutes fraud and is a ground for annulment of
marriage.
Here the defendant wife was alleged to be only more than four months pregnant at
the time of her marriage to plaintiff. At that stage, we are not prepared to say that her
pregnancy was readily apparent, especially since she was “naturally plump” or fat as
alleged by plaintiff.
According to medical authorities, even on the 5th month of pregnancy, the
enlargement of a woman’s abdomen is still below the umbilicus, that is to say, the
enlargement is limited to the lower part of the abdomen so that it is hardly noticeable
and may, if noticed, be attributed only to fat formation on the lower part of the
abdomen. It is only on the 6th month of pregnancy that the enlargement of the
woman’s abdomen reaches a height above the umbilicus, making the roundness of
the abdomen more general and apparent.
Jimenez v. Canizares
L-12790, 31 August 1960
FACTS:
Joel Jimenez, the petitioner, filed a petition for the annulment of his marriage with
Remedios Canizares on the ground that the orifice of her genitals or vagina was too
small to allow the penetration of a male organ for copulation. It has existed at the
time of the marriage and continues to exist that led him to leave the conjugal home
two nights and one day after the marriage. The court summoned and gave a copy to
the wife but the latter did not file any answer. The wife was ordered to submit herself
to physical examination and to file a medical certificate within 10 days. She was given
another 5 days to comply or else it will be deemed lack of interest on her part and
therefore rendering judgment in favor of the petitioner.
ISSUE:
Whether or not the marriage can be annulled with only the testimony of the husband.
RULING:
No. 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,
because 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.
Impotency being an abnormal condition should not be presumed. The presumption is
in favor of potency. 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
CARMEN LAPUZ SY v. EUFEMIO S. EUFEMIO, GR No. L-30977, 1972-01-31
Facts:
Carmen O. Lapuz Sy filed a petition for legal separation against Eufemio S. Eufemio...
they had lived together as husband and wife... continuously until 1943 when her
husband abandoned her, that they had no child; that they acquired properties during
their marriage; and that she discovered her husband cohabiting with a Chinese
woman named Go Hiok at 1319 Sisa Street, Manila, on or about March 1949. She...
prayed for the issuance of a decree of legal separation, which, among others, would
order that the defendant Eufemio S. Eufemio should be deprived of his share of the
conjugal partnership profits.
12
Eufemio S. Eufemio alleged affirmative and special defenses, and, along with several
other claims involving money and other properties, counterclaimed for the
declaration of nullity ab initio of his... marriage with Carmen O. Lapuz Sy, on the
ground of his prior and subsisting marriage, celebrated according to Chinese law and
customs, with one Go Hiok, alias Ngo Hiok.
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 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.
Although the defendant below, the herein respondent Eufemio S. Eufemio, filed
counterclaims, he did not pursue them after the court below dismissed the case.
Issues:
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?
Ruling:
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.
"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.
The same rule is true of causes of action and suits for separation and maintenance
A review of the resulting changes in property relations between spouses shows that
they are solely the effect of the decree of legal separation; hence, they can not survive
the death of the plaintiff if it occurs prior to the decree. On this point, Article 106 of
the
Civil Code provides:
"(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;
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.
A further reason why an action for legal separation is abated by the death of the
plaintiff, even if property rights are involved, is that these rights are mere effects of a
decree of separation, their source being the decree itself; without the decree such
rights do not come... into existence, so that before the finality of a decree, these
claims are merely rights in expectation. If death supervenes during the pendency of
the action, no decree can be forthcoming, death producing a more radical and
definitive separation; and the expected... consequential rights and claims would
necessarily remain unborn.
As to the petition of respondent-appellee Eufemio for a declaration of nullity ab
initio of his marriage to Carmen Lapuz, it is apparent that such action became moot
and academic upon the death of the latter, and there could be no further interest in
continuing... the same after her demise, that automatically dissolved the questioned
union.
13
Macadangdang vs CA
GR No. 38287, October 23, 1981
FACTS:
Respondent Filomena Gaviana Macadangdang and petitioner Antonio
Macadangdang were married in 1946 after having lived together for two years and
had 6 children. They started a buy and sell business and sari-sari store in Davao City.
Through hard work and good fortune, their business grew and expanded into
merchandising, trucking, transportation, rice and corn mill business, abaca stripping,
real estate etc. Their relationship became complicated and both indulged in
extramarital relations. Married life became intolerable so they separated in 1965
when private respondent left for Cebu for good. When she returned in Davao in 1971,
she learned of the illicit affairs of her estranged husband. She then decided to take
the initial action. In April 1971, she instituted a complaint for legal separation.
ISSUE: Whether or not the death of a spouse after a final decree of legal separation
has effect on the legal separation.
HELD:
The death of a spouse after a final decree of legal separation has no effect on the legal
separation. When the decree itself is issued, the finality of the separation is complete
after the lapse of the period to appeal the decision to a higher court even if the effects,
such as the liquidation of the property, have not yet been commenced nor terminated.
The law clearly spells out the effect of a final decree of legal separation on the
conjugal property. Therefore, upon the liquidation and distribution conformably with
the effects of such final decree, the law on intestate succession should take over the
disposition of whatever remaining properties have been allocated to the deceased
spouse.
Such dissolution and liquidation are necessary consequences of the final decree.
Article 106 of the Civil Code, now Article 63 of the Family Code provides the effects of
the decree of legal separation. These legal effects 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.
C. COOLING OFF
Araneta vs. Hon. Concepcion Case Digest
Facts:
Luis Araneta filed an action for legal separation on the ground of adultery against his
wife Emma. After the issues were joined, Emma filed an omnibus petition, supported
by her Affidavit, to secure custody of their three minor children, a monthly support
for herself and said children, the return of her passport, to enjoin Luis from ordering
his hirelings from harassing and molesting her. Luis opposed the petition, denying
the misconduct imputed to him and alleging that Emma had abandoned the
children. He prayed that the parties be required to submit their respective evidence.
Judge Concepcion resolved the omnibus petition, granting the custody of the children
to Emma 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, Luis filed a 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.
The main reason given by the judge, for refusing Luis’ 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:
“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.” (now Art 58, Family Code)
Issue:
Does the rule prohibiting the hearing of an action for legal separation before the lapse
of six months from the filing of the petition preclude the court from acting on an
omnibus petition for support and custody?
14
Held:
It is conceded that the period of six months fixed therein 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, now Art. 49,
Family 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 injustice may be caused.
The rule is that all the provisions of the law even if apparently contradictory, should
be allowed to stand and given effect by reconciling them if necessary.
“The practical inquiry in litigation is usually to determine what a particular
provision, clause or word means. To answer it one must proceed as he would with any
other composition — construe it with reference to the leading idea or purpose of the
whole instrument. A statute is passed as a whole and not in parts or sections and is
animated by one general purpose and intend. Consequently, each part of section
should be construed in connection with every other part or section so as to produce a
harmonious whole. Thus it is not proper to confine interpretation to the one section
to be construed.” (Southerland, Statutory Construction section 4703, pp. 336-337.)
Thus the determination of the custody and alimony should be given effect and force
provided it does not go to the extent of violating the policy of the cooling off period.
That is, evidence not affecting the cause of the separation, like the actual custody of
the children, the means conducive to their welfare and convenience during the
pendency of the case, these should be allowed that the court may determine which is
best for their custody.
The writ prayed for is hereby issued and the Respondent judge or whosoever takes his
place is ordered to proceed on the question of custody and support pendente lite in
accordance with this opinion. The court’s order fixing the alimony and requiring
payment is reversed. Without costs. (Araneta vs. Hon. Concepcion, G.R. No. L-9667,
July 31, 1956)
Somosa-Ramos vs. Hon. Vamenta Case Digest
Facts:
Lucy filed a case for legal separation against Clemente on the ground of concubinage
and an attempt by him against her life. 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 Clemente. Clemente opposed the motion based on Article 103 of the Civil Code
which provides: "An action for legal separation shall in no case be tried before six
months shall have elapsed since the filing of the petition” (now Art 58, Family
Code). He manifested that if the motion were heard, the prospect of the
reconciliation of the spouses would become even more dim. Judge Vamenta granted
the motion of Clemente and suspended the hearing of the petition for a writ of
mandatory preliminary injunction. Thus, Lucy filed a petition for certiorari.
Issue:
Does the rule prohibiting the hearing of an action for legal separation before the lapse
of six months from the filing of the petition preclude the court from acting on a
motion for preliminary mandatory injunction applied for as an ancillary remedy to
such a suit?
Held:
No. 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.
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.
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." (now Art. 61, Family Code)
15
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, thus possesses relevance: It is
conceded that the period of six months fixed therein 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, now Art. 49,
Family 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 injustice may be caused. (Somosa-Ramos vs. Hon. Vamenta, G.R.
No. L-34132, July 29, 1972)
D. COLLUSION
Ocampo v. Florenciano
G.R. No. L-13553, 23 February 1960
FACTS:
Jose de Ocampo and Serafina Florenciano were married in 1938. They begot several
children who are not living with plaintiff. In March 1951, latter discovered on several
occasions that his wife was betraying his trust by maintaining illicit relations with
Jose Arcalas. Having found out, he sent the wife to Manila in June 1951 to study
beauty culture where she stayed for one year. Again plaintiff discovered that the wife
was going out with several other men other than Arcalas. In 1952, when the wife
finished her studies, she left plaintiff and since then they had lived separately. In
June 1955, plaintiff surprised his wife in the act of having illicit relations with Nelson
Orzame. He signified his intention of filing a petition for legal separation to which
defendant manifested conformity provided she is not charged with adultery in a
criminal action. Accordingly, Ocampo filed a petition for legal separation in 1955.
ISSUE:
Whether the confession made by Florenciano constitutes the confession of judgment
disallowed by the Family Code.
RULING:
Florenciano’s admission to the investigating fiscal that she committed adultery, in the
existence of evidence of adultery other than such confession, is not the confession of
judgment disallowed by Article 48 of the Family Code. What is prohibited is a
confession of judgment, a confession done in court or through a pleading. Where
there is evidence of the adultery independent of the defendant’s statement agreeing to
the legal separation, the decree of separation should be granted since it would not be
based on the confession but upon the evidence presented by the plaintiff. What the
law prohibits is a judgment based exclusively on defendant’s confession. The petition
should be granted based on the second adultery, which has not yet prescribed.
Sin vs. Sin
GR No. 137590, March 26, 2001
FACTS:
Florence, the petitioner, was married with Philipp, a Portuguese citizen in January
1987. Florence filed in September 1994, a complaint for the declaration of nullity of
their marriage. Trial ensued and the parties presented their respective documentary
and testimonial evidence. In June 1995, trial court dismissed Florence’s petition and
throughout its trial, the State did not participate in the proceedings. While Fiscal
16
Jabson filed with the trial court a manifestation dated November 1994 stating that he
found no collusion between the parties, he did not actively participated therein.
Other than having appearance at certain hearings, nothing more was heard of him.
ISSUE: Whether the declaration of nullity may be declared even with the absence of
the participation of the State in the proceedings.
HELD:
Article 48 of the Family Code states that “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.
The trial court should have ordered 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 briefly stating his reasons for
his agreement or opposition as the case may be, to the petition. The records are
bereft of an evidence that the State participated in the prosecution of the case thus,
the case is remanded for proper trial.
G.R. No. 145370 March 4, 2004
MARIETTA B. ANCHETA, petitioner, vs. RODOLFO S. ANCHETA, respondent.
CALLEJO, SR.,
Facts:
On December 6, 1992, the respondent left the conjugal home and abandoned the
petitioner and their children. The Respondent intended to marry again and filed a
petition with RTC Cavite for the declaration of nullity of his marriage with petitioner
on the ground of psychological incapacity. The clerk of court issued summons to the the application for legal separation or annulment through the presentation of his own
petitioner at the address stated in the petition. The sheriff served the summons and a evidence, if in his opinion, the proof adduced is dubious and fabricated.
copy of the petition by substituted service on June 6, 1995 on the petitioner’s son,
Venancio Mariano B. Ancheta III, 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.

The petitioner failed to file an answer to the petition. 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 respondent who appeared with
counsel. And the Court Grant the petition and declaring the marriage of the parties
void ab initio.

Issue:

Whether or not, the decision of the trial court and the public prosecutor is right and
fair despite of that there was no appearance of the petitioner.

Held:

No,

The Court held that, the trial court and the public prosecutor ignored Rule 18, Section
6 of the 1985 Rules of Court 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
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.

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

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