FAMILY (WEEK 5) | CHAVEZ
For fifth week
a. Discuss Article 37 of the Family Code.
Art. 37. Marriages between the following are
incestuous and void from the beginning,
whether the relationship between the parties
be legitimate or illegitimate:
(1) Between ascendants and descendants
of any degree; and
(2) Between brothers and sisters, whether
of the full or half blood.
b. Discuss Article 38 of the Family Code
Art. 38. The following marriages shall be void
from the beginning for reasons of public
policy.
(1) Between collateral blood relatives,
whether legitimate or illegitimate, up
to the fourth civil degree;
(2) Between step-parents and step-
children;
(3) Between parents-in-law and children-
in-law;
(4) Between the adopted parent and the
adopted child;
(5) Between the surviving spouse of the
adopting parent and the adopted
child;
(6) Between the surviving spouse of the
adopted child and the adopter;
(7) Between an adopted child and a
legitimate child of the adopter;
(8) Between adopted children of the same
adopter; and
(9) Between parties where one, with the
intention to marry the other, killed
that other person’s spouse or his or
her own spouse.
c. Discuss Article 39 of the Family Code.
Art. 39. The action or defense for the
declaration of absolute nullity of a
marriage shall not prescribe.
d. Discuss Article 40 of the Family Code.
Art. 40. The absolute nullity of a previous
marriage may be invoked for purposes of
remarriage on the basis solely of a final
judgement declaring such previous
marriage is void.
d.1. Discuss Terre v. Terre, AM. No.
2349, 03 July 1992.
EN BANC
[A.C. No. 2349. July 3, 1992.]
DOROTHY B. TERRE, Complainant, v.
ATTY. JORDAN TERRE, Respondent.
Public Attorney’s Office for complainant.
SYLLABUS
1. LEGAL ETHICS; ADMINISTRATIVE
COMPLAINT; GROSSLY IMMORAL
CONDUCT; PENALTY OF DISBARMENT
IMPOSED IN CASE AT BAR. — We believe
and so hold that the conduct of respondent
Jordan Terre in inveigling complainant Dorothy
Terre to contract a second marriage with him; in
abandoning complainant Dorothy Terre after she
had cared for him and supported him through
law school, leaving her without means for the
safe delivery of his own child; in contracting a
second marriage with Helina Malicdem while
his first marriage with complainant Dorothy
Terre was subsisting, constituted "grossly
immoral conduct" under Section 27 of Rule 138
of the Rules of Court, affording more than
sufficient basis for disbarment of respondent
Jordan Terre. He was unworthy of admission to
the Bar in the first place. The Court will correct
this error forthwith.
1

RESOLUTION
PER CURIAM, J.:
In a sworn complaint filed with this Court on 24
December 1981, complainant Dorothy B. Terre
charged respondent Jordan Terre, a member of
the Philippine Bar with "grossly immoral
conduct," consisting of contracting a second
marriage and living with another woman other
than complainant, while his prior marriage with
complainant remained subsisting.
The Court resolved to require respondent to
answer the complaint. 1 Respondent
successfully evaded five (5) attempts to serve a
copy of the Court’s Resolution and of the
complaint by moving from one place to another,
such that he could not be found nor reached in
his alleged place of employment or residence. 2
On 24 April 1985, that is after three (3) years
and a half, with still no answer from the
respondent, the Court noted respondent’s
success in evading service of the complaint and
the Court’s Resolution and thereupon resolved
to "suspend respondent Atty. Jordan Terre from
the practice of law until after he appears and/or
files his answer to the complaint against him" in
the instant case. 3 her evidence ex parte, since respondent did not
On 28 September 1985, respondent finally filed
an Answer with a Motion to Set Aside and/or
Lift Suspension Order. In his Answer, Atty.
Terre averred that he had contracted marriage
with complainant Dorothy Terre on 14 June
1977 upon her representation that she was
single; that he subsequently learned that Dorothy
was married to a certain Merlito A. Bercenilla
sometime in 1968; that when he confronted
Dorothy about her prior marriage, Dorothy
drove him out of their conjugal residence; that
Dorothy had mockingly told him of her private
meetings with Merlito A. Bercenilla and that the
child she was then carrying (i.e., Jason Terre)
was the son of Bercenilla; that believing in good
faith that his marriage to complainant was null
and void ab initio, he contracted marriage with
FAMILY (WEEK 5) | CHAVEZ
Helina Malicdem at Dasol, Pangasinan. 4
In her reply, complainant Dorothy denied that
Jason Terre was the child of Merlito A.
Bercenilla and insisted that Jason was the child
of respondent Jordan Terre, as evidenced by
Jason’s Birth Certificate and physical
resemblance to Respondent. Dorothy further
explained that while she had given birth to Jason
Terre at the PAFGH registered as a dependent of
Merlito Bercenilla, she had done so out of
extreme necessity and to avoid risk of death or
injury to the fetus which happened to be in a
difficult breech position. According to Dorothy,
she had then already been abandoned by
respondent Jordan Terre, leaving her penniless
and without means to pay for the medical and
hospital bills arising by reason of her
pregnancy.chanrobles law library
The Court denied respondent’s Motion to Set
Aside or Lift the Suspension Order and instead
referred, by a Resolution dated 6 January 1986,
the complaint to the Office of the Solicitor
General for investigation, report and
recommendation. 5
Then Solicitor Pio C. Guerrero was appointed
investigator by the Office of the Solicitor
General. He set the case for hearing on 7 July
1986 with notice to both parties. On 7 July 1986,
complainant Dorothy appeared and presented
so appear. 6 The Investigating Solicitor
scheduled and held another hearing on 19
August 1986, where he put clarificatory
questions to the complainant; respondent once
again did not appear despite notice to do so.
Complainant finally offered her evidence and
rested her case. The Solicitor set still another
hearing for 2 October 1986, notifying
respondent to present his evidence with a
warning that should he fail once more to appear,
the case would be deemed submitted for
resolution. Respondent did not appear on 2
October 1986. The Investigating Solicitor
accordingly considered respondent to have
waived his right to present evidence and
declared the case submitted for resolution. The
parties were given time to submit their
respective memoranda. Complainant Dorothy
2

did so on 8 December 1986. Respondent Terre
did not file his memorandum.
On 26 February 1990, the Office of the Solicitor
General submitted its "Report and
Recommendation" to this Court. The Report
summarized the testimony of the complainant in
the following manner:jgc:chanrobles.com.ph
"Complainant Dorothy Terre took the witness
stand and testified substantially as follows: she
and respondent met for the first time in 1979 as
fourth year high school classmates in Cadiz City
High School (tsn, July 7, 1986, p. 9); she was
then married to Merlito Bercenilla, while
respondent was single (id.); respondent was
aware of her marital status (ibid, p. 14); it was
then that respondent started courting her but
nothing happened of the courtship (ibid, p. 10);
they [complainant and respondent] moved to
Manila were they respectively pursued their
education, respondent as a law student at the
Lyceum University (tsn, July 7, 1986, p. 12, 15-
16); respondent continued courting her, this time
with more persistence (ibid, p. 11); she decided
nothing would come of it since she was married
but he [respondent] explained to her that their
marriage was void ab initio since she and her
first husband were first cousins (ibid. p . 12);
convinced by his explanation and having
secured favorable advice from her mother and
ex-in-laws, she agreed to marry him
[respondent] (ibid, 12-13, 16); in their marriage
license, despite her [complainant’s] objection,
he [respondent] wrote ‘single’ as her status
explaining that since her marriage was void ab
initio, there was no need to go to court to declare
it as such (ibid, 14-15); they were married
before Judge Priscilla Mijares of the City Court
of Manila on June 14, 1977 (Exhibit A; tsn, July
7, 1986, pp. 16-17); Jason Terre was born of
their union on June 25, 1981 (Exhibit B, tsn,
July 7, 1986, p. 18); all through their married
state up to the time he [respondent] disappeared
in 1981, complainant supported respondent, in
addition to the allowance the latter was getting
from his parents (ibid, pp. 19-20); she was
unaware of the reason for his disappearance until
she found out later that respondent married a
certain Vilma [sic] Malicdem (Exhibit C, tsn,
July 7, 1986, pp. 21-22); she then filed a case for
FAMILY (WEEK 5) | CHAVEZ
abandonment of minor with the City Fiscal of
Pasay City (ibid, p. 23) which was subsequently
filed before Branch II of the City Court of Pasay
City as Criminal Case No. 816159 (Exhibit D;
tsn, July 7, 1986, p. 24); she likewise filed a case
for bigamy against respondent and Helina
Malicdem with the office of the Provincial
Fiscal of Pangasinan, where a prima facie case
was found to exist (Exhibit E; tsn, July 7, pp.
25-26); additionally, complainant filed an
administrative case against respondent with the
Commission on Audit where he was employed,
which case however was considered closed for
being moot and academic when respondent was
considered automatically separated from the
service for having gone on absence without
official leave (Exhibit F; tsn, July 7, 1986, pp.
28-29)." 7
There is no dispute over the fact that
complainant Dorothy Terre and respondent
Jordan Terre contracted marriage on 14 July
1977 before Judge Priscila Mijares. There is
further no dispute over the fact that on 3 May
1981, respondent Jordan Terre married Helina
Malicdem in Dasol, Pangasinan. When the
second marriage was entered into, respondent’s
prior marriage with complainant was subsisting,
no judicial action having been initiated or any
judicial declaration obtained as to the nullity of
such prior marriage of respondent with
complainant.chanrobles lawlibrary : rednad
Respondent Jordan Terre sought to defend
himself by claiming that he had believed in good
faith that his prior marriage with complainant
Dorothy Terre was null and void ab initio and
that no action for a judicial declaration of nullity
was necessary.
The Court considers this claim on the part of
respondent Jordan Terre as a spurious defense.
In the first place, respondent has not rebutted
complainant’s evidence as to the basic facts
which underscores the bad faith of respondent
Terre. In the second place, that pretended
defense is the same argument by which he had
inveigled complainant into believing that her
prior marriage to Merlito A. Bercenilla being
incestuous and void ab initio (Dorothy and
Merlito being allegedly first cousins to each
3

other), she was free to contract a second
marriage with the Respondent. Respondent
Jordan Terre, being a lawyer, knew or should
have known that such an argument ran counter
to the prevailing case law of this court which
holds 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.
8 Even if we were to assume, arguendo merely,
that Jordan Terre held that mistaken belief in
good faith, the same result will follow. For if we
are to hold Jordan Terre to his own argument,
his first marriage to complainant Dorothy Terre
must be deemed valid, with the result that his
second marriage to Helina Malicdem must be
regarded as bigamous and criminal in character.
That the moral character of respondent Jordan
Terre was deeply flawed is shown by other
circumstances. As noted, he convinced the
complainant that her prior marriage to Bercenilla
was null and void ab initio, that she was still
legally single and free to marry him. When
complainant and respondent had contracted their
marriage, respondent went through law school
while being supported by complainant, with
some assistance from respondent’s parents.
After respondent had finished his law course and
gotten complainant pregnant, respondent
abandoned the complainant without support and
without the wherewithal for delivering his own
child safely in a hospital.chanrobles virtual
lawlibrary
Thus, we agree with the Solicitor General that
respondent Jordan Terre, by his actions,
"eloquently displayed, not only his unfitness to
remain as a member of the Bar, but likewise his
inadequacy to uphold the purpose and
responsibility of his gender" because marriage is
a basic social institution. 9 .
In Pomperada v. Jochico, 10 the Court, in
rejecting a petition to be allowed to take the oath
as a member of the Bar and to sign the Roll of
Attorneys, said through Mme. Justice Melencio-
Herrera:jgc:chanrobles.com.ph
"It is evident that respondent fails to meet the
standard of moral fitness for membership in the
FAMILY (WEEK 5) | CHAVEZ
legal profession. Whether the marriage was a
joke as respondent claims, or a trick played on
her as claimed by complainant, it does not speak
well of respondent’s moral values. Respondent
had made a mockery of marriage, a basic social
institution which public policy cherishes and
protects (Article 216, Civil Code)." 11
In Bolivar v. Simbol, 12 the Court found the
respondent there guilty of "grossly immoral
conduct" because he made "a dupe of
complainant, living on her bounty and allowing
her to spend for his schooling and other personal
necessities while dangling before her the mirage
of a marriage, marrying another girl as soon as
he had finished his studies, keeping his marriage
a secret while continuing to demand money
from complainant. . . ." The Court held such acts
"indicative of a character not worthy of a
member of the Bar." 13
We believe and so hold that the conduct of
respondent Jordan Terre in inveigling
complainant Dorothy Terre to contract a second
marriage with him; in abandoning complainant
Dorothy Terre after she had cared for him and
supported him through law school, leaving her
without means for the safe delivery of his own
child; in contracting a second marriage with
Helina Malicdem while his first marriage with
complainant Dorothy Terre was subsisting,
constituted "grossly immoral conduct" under
Section 27 of Rule 138 of the Rules of Court,
affording more than sufficient basis for
disbarment of respondent Jordan Terre. He was
unworthy of admission to the Bar in the first
place. The Court will correct this error
forthwith.chanrobles.com:cralaw:red
WHEREFORE, the Court Resolved to DISBAR
respondent Jordan Terre and to STRIKE OUT
his name from the Roll of Attorneys. A copy of
this decision shall be spread on the personal
record of respondent Jordan Terre in the Bar
Confidant’s Office. A copy of this resolution
shall also be furnished to the Integrated Bar of
the Philippines and shall be circularized to all
the courts of the land.
Narvasa, C.J., Gutierrez, Jr., Cruz, Paras,
Feliciano, Padilla, Bidin, Griño-Aquino,
4

Medialdea, Regalado, Davide, Jr., Romero,
Nocon, and Bellosillo, JJ., concur.
d.2. Discuss Atienza v. Judge
Brillantes, Jr., AM. No. MTJ—92-
706, 29 March 1995.
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
 
A.M. No. MTJ-92-706 March 29, 1995
LUPO ALMODIEL ATIENZA, complainant,
vs.
JUDGE FRANCISCO F. BRILLANTES, JR.,
Metropolitan Trial Court, Branch 28, Manila,
respondent.
QUIASON, J.:
This is a complaint by Lupo A. Atienza for
Gross Immorality and Appearance of
Impropriety against Judge Francisco Brillantes,
Jr., Presiding Judge of the Metropolitan Trial
Court, Branch 20, Manila.
Complainant alleges that he has two children
with Yolanda De Castro, who are living together
at No. 34 Galaxy Street, Bel-Air Subdivision,
Makati, Metro Manila. He stays in said house,
which he purchased in 1987, whenever he is in
Manila.
In December 1991, upon opening the door to his
bedroom, he saw respondent sleeping on his
(complainant's) bed. Upon inquiry, he was told
by the houseboy that respondent had been
cohabiting with De Castro. Complainant did not
bother to wake up respondent and instead left
the house after giving instructions to his
houseboy to take care of his children.
FAMILY (WEEK 5) | CHAVEZ
Thereafter, respondent prevented him from
visiting his children and even alienated the
affection of his children for him.
Complainant claims that respondent is married
to one Zenaida Ongkiko with whom he has five
children, as appearing in his 1986 and 1991
sworn statements of assets and liabilities.
Furthermore, he alleges that respondent caused
his arrest on January 13, 1992, after he had a
heated argument with De Castro inside the
latter's office.
For his part, respondent alleges that complainant
was not married to De Castro and that the filing
of the administrative action was related to
complainant's claim on the Bel-Air residence,
which was disputed by De Castro.
Respondent denies that he caused complainant's
arrest and claims that he was even a witness to
the withdrawal of the complaint for Grave
Slander filed by De Castro against complainant.
According to him, it was the sister of De Castro
who called the police to arrest complainant.
Respondent also denies having been married to
Ongkiko, although he admits having five
children with her. He alleges that while he and
Ongkiko went through a marriage ceremony
before a Nueva Ecija town mayor on April 25,
1965, the same was not a valid marriage for lack
of a marriage license. Upon the request of the
parents of Ongkiko, respondent went through
another marriage ceremony with her in Manila
on June 5, 1965. Again, neither party applied for
a marriage license. Ongkiko abandoned
respondent 17 years ago, leaving their children
to his care and custody as a single parent.
Respondent claims that when he married De
Castro in civil rites in Los Angeles, California
on December 4, 1991, he believed, in all good
faith and for all legal intents and purposes, that
he was single because his first marriage was
solemnized without a license.
Under the Family Code, there must be a judicial
declaration of the nullity of a previous marriage
5

before a party thereto can enter into a second
marriage. Article 40 of said Code provides:
The absolute nullity of a previous marriage may
be invoked for the purposes of remarriage on the
basis solely of a final judgment declaring such
previous marriage void.
Respondent argues that the provision of Article
40 of the Family Code does not apply to him
considering that his first marriage took place in
1965 and was governed by the Civil Code of the
Philippines; while the second marriage took
place in 1991 and governed by the Family Code.
Article 40 is applicable to remarriages entered
into after the effectivity of the Family Code on
August 3, 1988 regardless of the date of the first
marriage. Besides, under Article 256 of the
Family Code, said Article is given "retroactive
effect insofar as it does not prejudice or impair
vested or acquired rights in accordance with the
Civil Code or other laws." This is particularly
true with Article 40, which is a rule of
procedure. Respondent has not shown any
vested right that was impaired by the application
of Article 40 to his case.
The fact that procedural statutes may somehow
affect the litigants' rights may not preclude their
retroactive application to pending actions. The
retroactive application of procedural laws is not
violative of any right of a person who may feel
that he is adversely affected (Gregorio v. Court
of Appeals, 26 SCRA 229 [1968]). The reason is
that as a general rule no vested right may attach
to, nor arise from, procedural laws (Billones v.
Court of Industrial Relations, 14 SCRA 674
[1965]).
Respondent is the last person allowed to invoke
good faith. He made a mockery of the institution
of marriage and employed deceit to be able to
cohabit with a woman, who beget him five
children.
Respondent passed the Bar examinations in
1962 and was admitted to the practice of law in
1963. At the time he went through the two
marriage ceremonies with Ongkiko, he was
FAMILY (WEEK 5) | CHAVEZ
already a lawyer. Yet, he never secured any
marriage license. Any law student would know
that a marriage license is necessary before one
can get married. Respondent was given an
opportunity to correct the flaw in his first
marriage when he and Ongkiko were married for
the second time. His failure to secure a marriage
license on these two occasions betrays his
sinister motives and bad faith.
It is evident that respondent failed to meet the
standard of moral fitness for membership in the
legal profession.
While the deceit employed by respondent
existed prior to his appointment as a
Metropolitan Trial Judge, his immoral and
illegal act of cohabiting with De Castro began
and continued when he was already in the
judiciary.
The Code of Judicial Ethics mandates that the
conduct of a judge must be free of a whiff of
impropriety, not only with respect to his
performance of his judicial duties but also as to
his behavior as a private individual. There is no
duality of morality. A public figure is also
judged by his private life. A judge, in order to
promote public confidence in the integrity and
impartiality of the judiciary, must behave with
propriety at all times, in the performance of his
judicial duties and in his everyday life. These are
judicial guideposts too self-evident to be
overlooked. No position exacts a greater demand
on moral righteousness and uprightness of an
individual than a seat in the judiciary (Imbing v.
Tiongzon, 229 SCRA 690 [1994]).
WHEREFORE, respondent is DISMISSED
from the service with forfeiture of all leave and
retirement benefits and with prejudice to
reappointment in any branch, instrumentality, or
agency of the government, including
government-owned and controlled corporations.
This decision is immediately executory.
SO ORDERED.
6

d.3. Discuss Carino v. Carina, G. R.
No. 132529, 02 February 2001.
FIRST DIVISION
G.R. No. 132529. February 2, 2001
SUSAN NICDAO CARIÑO, petitioner,
vs.
SUSAN YEE CARIÑO, respondent.
DECISION
YNARES-SANTIAGO, J.:
The issue for resolution in the case at bar hinges
on the validity of the two marriages contracted
by the deceased SPO4 Santiago S. Cariño,
whose “death benefits” is now the subject of the
controversy between the two Susans whom he
married. 1âwphi1.nêt
Before this Court is a petition for review on
certiorari seeking to set aside the decision 1 of
the Court of Appeals in CA-G.R. CV No. 51263,
which affirmed in toto the decision 2 of the
Regional Trial Court of Quezon City, Branch 87,
in Civil Case No. Q-93-18632.
During the lifetime of the late SPO4 Santiago S.
Cariño, he contracted two marriages, the first
was on June 20, 1969, with petitioner Susan
Nicdao Cariño (hereafter referred to as Susan
Nicdao), with whom he had two offsprings,
namely, Sahlee and Sandee Cariño; and the
FAMILY (WEEK 5) | CHAVEZ
second was on November 10, 1992, with
respondent Susan Yee Cariño (hereafter referred
to as Susan Yee), with whom he had no children
in their almost ten year cohabitation starting way
back in 1982.
In 1988, SPO4 Santiago S. Cariño became ill
and bedridden due to diabetes complicated by
pulmonary tuberculosis. He passed away on
November 23, 1992, under the care of Susan
Yee, who spent for his medical and burial
expenses. Both petitioner and respondent filed
claims for monetary benefits and financial
assistance pertaining to the deceased from
various government agencies. Petitioner Susan
Nicdao was able to collect a total of
P146,000.00 from “MBAI, PCCUI,
Commutation, NAPOLCOM, [and] Pag-ibig,” 3
while respondent Susan Yee received a total of
P21,000.00 from “GSIS Life, Burial (GSIS) and
burial (SSS).” 4
On December 14, 1993, respondent Susan Yee
filed the instant case for collection of sum of
money against petitioner Susan Nicdao praying,
inter alia, that petitioner be ordered to return to
her at least one-half of the one hundred forty-six
thousand pesos (P146,000.00) collectively
denominated as “death benefits” which she
(petitioner) received from “MBAI, PCCUI,
Commutation, NAPOLCOM, [and] Pag-ibig.”
Despite service of summons, petitioner failed to
file her answer, prompting the trial court to
declare her in default.
Respondent Susan Yee admitted that her
marriage to the deceased took place during the
subsistence of, and without first obtaining a
judicial declaration of nullity of, the marriage
between petitioner and the deceased. She,
however, claimed that she had no knowledge of
the previous marriage and that she became
aware of it only at the funeral of the deceased,
where she met petitioner who introduced herself
as the wife of the deceased. To bolster her action
for collection of sum of money, respondent
contended that the marriage of petitioner and the
deceased is void ab initio because the same was
solemnized without the required marriage
license. In support thereof, respondent
7

presented: 1) the marriage certificate of the
deceased and the petitioner which bears no
marriage license number; 5 and 2) a certification
dated March 9, 1994, from the Local Civil
Registrar of San Juan, Metro Manila, which
reads –
This is to certify that this Office has no record of
marriage license of the spouses SANTIAGO
CARINO (sic) and SUSAN NICDAO, who are
married in this municipality on June 20, 1969.
Hence, we cannot issue as requested a true copy
or transcription of Marriage License number
from the records of this archives.
This certification is issued upon the request of
Mrs. Susan Yee Cariño for whatever legal
purpose it may serve. 6
On August 28, 1995, the trial court ruled in
favor of respondent, Susan Yee, holding as
follows:
WHEREFORE, the defendant is hereby ordered
to pay the plaintiff the sum of P73,000.00, half
of the amount which was paid to her in the form
of death benefits arising from the death of SPO4
Santiago S. Cariño, plus attorney’s fees in the
amount of P5,000.00, and costs of suit.
IT IS SO ORDERED. 7
On appeal by petitioner to the Court of Appeals,
the latter affirmed in toto the decision of the trial
court. Hence, the instant petition, contending
that:
I.
THE HONORABLE COURT OF
APPEALS GRAVELY ERRED IN
AFFIRMING THE FINDINGS OF THE
LOWER COURT THAT VDA. DE
CONSUEGRA VS. GSIS IS
APPLICABLE TO THE CASE AT
BAR.
II.
FAMILY (WEEK 5) | CHAVEZ
THE HONORABLE COURT OF
APPEALS GRAVELY ERRED IN
APPLYING EQUITY IN THE
INSTANT CASE INSTEAD OF THE
CLEAR AND UNEQUIVOCAL
MANDATE OF THE FAMILY CODE.
III.
THE HONORABLE COURT OF
APPEALS GRAVELY ERRED IN
NOT FINDING THE CASE OF VDA.
DE CONSUEGRA VS GSIS TO HAVE
BEEN MODIFIED, AMENDED AND
EVEN ABANDONED BY THE
ENACTMENT OF THE FAMILY
CODE. 8
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. Meaning, where the
absolute nullity of a previous marriage is sought
to be invoked for purposes of contracting a
second marriage, the sole basis acceptable in
law, for said projected marriage to be free from
legal infirmity, is a final judgment declaring the
previous marriage void. 9 However, for purposes
other than remarriage, no judicial action is
necessary to declare a marriage an absolute
nullity. For other purposes, such as but not
limited to the determination of heirship,
legitimacy or illegitimacy of a child, settlement
of estate, dissolution of property regime, or a
criminal case for that matter, the court may pass
upon the validity of marriage even after the
death of the parties thereto, and even in a suit
not directly instituted to question the validity of
said marriage, so long as it is essential to the
determination of the case. 10 In such instances,
evidence must be adduced, testimonial or
documentary, to prove the existence of grounds
rendering such a previous marriage an absolute
nullity. These need not be limited solely to an
earlier final judgment of a court declaring such
previous marriage void. 11
It is clear therefore that the Court is clothed with
sufficient authority to pass upon the validity of
8

the two marriages in this case, as the same is
essential to the determination of who is
rightfully entitled to the subject “death benefits”
of the deceased.
Under the Civil Code, which was the law in
force when the marriage of petitioner Susan
Nicdao and the deceased was solemnized in
1969, a valid marriage license is a requisite of
marriage, 12 and the absence thereof, subject to
certain exceptions, 13 renders the marriage void
ab initio. 14
In the case at bar, there is no question that the
marriage of petitioner and the deceased does not
fall within the marriages exempt from the
license requirement. A marriage license,
therefore, was indispensable to the validity of
their marriage. This notwithstanding, the records
reveal that the marriage contract of petitioner
and the deceased bears no marriage license
number and, as certified by the Local Civil
Registrar of San Juan, Metro Manila, their office
has no record of such marriage license. In
Republic v. Court of Appeals, 15 the Court held
that such a certification is adequate to prove the
non-issuance of a marriage license. Absent any
circumstance of suspicion, as in the present case,
the certification issued by the local civil registrar
enjoys probative value, he being the officer
charged under the law to keep a record of all
data relative to the issuance of a marriage
license.
Such being the case, the presumed validity of
the marriage of petitioner and the deceased has
been sufficiently overcome. It then became the
burden of petitioner to prove that their marriage
is valid and that they secured the required
marriage license. Although she was declared in
default before the trial court, petitioner could
have squarely met the issue and explained the
absence of a marriage license in her pleadings
before the Court of Appeals and this Court. But
petitioner conveniently avoided the issue and
chose to refrain from pursuing an argument that
will put her case in jeopardy. Hence, the
presumed validity of their marriage cannot
stand.
FAMILY (WEEK 5) | CHAVEZ
It is beyond cavil, therefore, that the marriage
between petitioner Susan Nicdao and the
deceased, having been solemnized without the
necessary marriage license, and not being one of
the marriages exempt from the marriage license
requirement, is undoubtedly void ab initio.
It does not follow from the foregoing
disquisition, however, that since the marriage of
petitioner and the deceased is declared void ab
initio, the “death benefits” under scrutiny would
now be awarded to respondent Susan Yee. To
reiterate, under Article 40 of the Family Code,
for purposes of remarriage, there must first be a
prior judicial declaration of the nullity of a
previous marriage, though void, before a party
can enter into a second marriage, otherwise, the
second marriage would also be void.
Accordingly, the declaration in the instant case
of nullity of the previous marriage of the
deceased and petitioner Susan Nicdao does not
validate the second marriage of the deceased
with respondent Susan Yee. The fact remains
that their marriage was solemnized without first
obtaining a judicial decree declaring the
marriage of petitioner Susan Nicdao and the
deceased void. Hence, the marriage of
respondent Susan Yee and the deceased is,
likewise, void ab initio.
One of the effects of the declaration of nullity of
marriage is the separation of the property of the
spouses according to the applicable property
regime. 16 Considering that the two marriages are
void ab initio, the applicable property regime
would not be absolute community or conjugal
partnership of property, but rather, be governed
by the provisions of Articles 147 and 148 of the
Family Code on “Property Regime of Unions
Without Marriage.”
Under Article 148 of the Family Code, which
refers to the property regime of bigamous
marriages, adulterous relationships, relationships
in a state of concubine, relationships where both
man and woman are married to other persons,
multiple alliances of the same married man, 17 -
9

“... [O]nly the properties acquired by both of
the parties through their actual joint
contribution of money, property, or industry
shall be owned by them in common in
proportion to their respective contributions ...”
In this property regime, the properties acquired
by the parties through their actual joint
contribution shall belong to the co-ownership.
Wages and salaries earned by each party belong
to him or her exclusively. Then too,
contributions in the form of care of the home,
children and household, or spiritual or moral
inspiration, are excluded in this regime. 18
Considering that the marriage of respondent
Susan Yee and the deceased is a bigamous
marriage, having been solemnized during the
subsistence of a previous marriage then
presumed to be valid (between petitioner and the
deceased), the application of Article 148 is
therefore in order.
The disputed P146,000.00 from MBAI [AFP
Mutual Benefit Association, Inc.],
NAPOLCOM, Commutation, Pag-ibig, and
PCCUI, are clearly renumerations, incentives
and benefits from governmental agencies earned
by the deceased as a police officer. Unless
respondent Susan Yee presents proof to the
contrary, it could not be said that she contributed
money, property or industry in the acquisition of
these monetary benefits. Hence, they are not
owned in common by respondent and the
deceased, but belong to the deceased alone and
respondent has no right whatsoever to claim the
same. By intestate succession, the said “death
benefits” of the deceased shall pass to his legal
heirs. And, respondent, not being the legal wife
of the deceased is not one of them.
As to the property regime of petitioner Susan
Nicdao and the deceased, Article 147 of the
Family Code governs. This article applies to
unions of parties who are legally capacitated and
not barred by any impediment to contract
marriage, but whose marriage is nonetheless
void for other reasons, like the absence of a
marriage license. Article 147 of the Family Code
reads -
FAMILY (WEEK 5) | CHAVEZ
Art. 147. When a man and a woman who are
capacitated to marry each other, live exclusively
with each other as husband and wife without the
benefit of marriage or under a void marriage,
their wages and salaries shall be owned by them
in equal shares and the property acquired by
both of them through their work or industry
shall be governed by the rules on co-ownership.
In the absence of proof to the contrary,
properties acquired while they lived together
shall be presumed to have been obtained by
their joint efforts, work or industry, and shall be
owned by them in equal shares. For purposes of
this Article, a party who did not participate in
the acquisition by the other party of any
property shall be deemed to have contributed
jointly in the acquisition thereof if the former’s
efforts consisted in the care and maintenance of
the family and of the household.
xxx
When only one of the parties to a void marriage
is in good faith, the share of the party in bad
faith in the co-ownership shall be forfeited in
favor of their common children. In case of
default of or waiver by any or all of the common
children or their descendants, each vacant share
shall belong to the respective surviving
descendants. In the absence of descendants,
such share shall belong to the innocent party. In
all cases, the forfeiture shall take place upon
termination of the cohabitation.
In contrast to Article 148, under the foregoing
article, wages and salaries earned by either party
during the cohabitation shall be owned by the
parties in equal shares and will be divided
equally between them, even if only one party
earned the wages and the other did not
contribute thereto. 19 Conformably, even if the
disputed “death benefits” were earned by the
deceased alone as a government employee,
Article 147 creates a co-ownership in respect
thereto, entitling the petitioner to share one-half
thereof. As there is no allegation of bad faith in
the present case, both parties of the first
marriage are presumed to be in good faith. Thus,
one-half of the subject “death benefits” under
10

scrutiny shall go to the petitioner as her share in
the property regime, and the other half
pertaining to the deceased shall pass by, intestate
succession, to his legal heirs, namely, his
children with Susan Nicdao.
In affirming the decision of the trial court, the
Court of Appeals relied on the case of Vda. de
Consuegra v. Government Service Insurance
System, 20 where the Court awarded one-half of
the retirement benefits of the deceased to the
first wife and the other half, to the second wife,
holding that:
“... [S]ince the defendant’s first marriage has
not been dissolved or declared void the conjugal
partnership established by that marriage has
not ceased. Nor has the first wife lost or
relinquished her status as putative heir of her
husband under the new Civil Code, entitled to
share in his estate upon his death should she
survive him. Consequently, whether as conjugal
partner in a still subsisting marriage or as such
putative heir she has an interest in the
husband’s share in the property here in
dispute....” And with respect to the right of the
second wife, this 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 is need
for judicial declaration of such nullity. And
inasmuch as the conjugal partnership formed by
the second marriage was dissolved before
judicial declaration of its nullity, “[t]he only
just and equitable solution in this case would be
to recognize the right of the second wife to her
share of one-half in the property acquired by
her and her husband, and consider the other
half as pertaining to the conjugal partnership of
the first marriage.” 21
It should be stressed, however, that the
aforecited decision is premised on the rule
which requires a prior and separate judicial
declaration of nullity of marriage. This is the
reason why in the said case, the Court
determined the rights of the parties in
accordance with their existing property regime.
FAMILY (WEEK 5) | CHAVEZ
In Domingo v. Court of Appeals, 22 however, the
Court, construing Article 40 of the Family Code,
clarified that a prior and separate declaration of
nullity of a marriage is an all important
condition precedent only for purposes of
remarriage. That is, if a party who is previously
married wishes to contract a second marriage, he
or she has to obtain first a judicial decree
declaring the first marriage void, before he or
she could contract said second marriage,
otherwise the second marriage would be void.
The same rule applies even if the first marriage
is patently void because the parties are not free
to determine for themselves the validity or
invalidity or their marriage. However, for
purposes other than to remarry, like for filing a
case for collection of sum of money anchored on
a marriage claimed to be valid, no prior and
separate judicial declaration of nullity is
necessary. All that a party has to do is to present
evidence, testimonial or documentary, that
would prove that the marriage from which his or
her rights flow is in fact valid. Thereupon, the
court, if material to the determination of the
issues before it, will rule on the status of the
marriage involved and proceed to determine the
rights of the parties in accordance with the
applicable laws and jurisprudence. Thus, in
Niñal v. Bayadog, 23 the Court explained:
[T]he court may pass upon the validity of
marriage even in a suit not directly instituted to
question the same so long as it is essential to the
determination of the case. This is without
prejudice to any issue that may arise in the case.
When such need arises, a final judgment of
declaration of nullity is necessary even if the
purpose is other than to remarry. The clause
“on the basis of a final judgment declaring such
previous marriage void” in Article 40 of the
Family Code connoted that such final judgment
need not be obtained only for purpose of
remarriage.
WHEREFORE, the petition is GRANTED, and
the decision of the Court of Appeals in CA-G.R.
CV No. 51263 which affirmed the decision of
the Regional Trial Court of Quezon City
ordering petitioner to pay respondent the sum of
P73,000.00 plus attorney’s fees in the amount of
P5,000.00, is REVERSED and SET ASIDE. The
11

complaint in Civil Case No. Q-93-18632, is
hereby DISMISSED. No pronouncement as to
costs.1âwphi1.nêt
SO ORDERED.
d.4. Discuss Bobis v. Bobis, G. R.
No.138509, 31 July 2000.
FIRST DIVISION
G.R. No. 138509. July 31, 2000
IMELDA MARBELLA-BOBIS, Petitioner, v.
ISAGANI D. BOBIS, respondent.
DECISION
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 petitioners
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.
1 7
FAMILY (WEEK 5) | CHAVEZ
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.2cräläwvirtualibräry
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:7cräläwvirtualibräry
(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.
2
3
4
5
12

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.9cräläwvirtualibräry
In the case at bar, respondents 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
8 12
9 13
FAMILY (WEEK 5) | CHAVEZ
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.
10
Relova: cräläwvirtualibräry
(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
10
11
13

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
14
15
16
17
18
FAMILY (WEEK 5) | CHAVEZ
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.
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.21cräläwvirtualibräry
WHEREFORE, the petition is GRANTED. The
order dated December 29, 1998 of the Regional
19
20
21
14

Trial Court, Branch 226 of Quezon City is
REVERSEDand SETASIDE and the trial court
is ordered to IMMEDIATELYproceed with
Criminal Case No. Q98-75611.
SO ORDERED.
e. What is a voidable bigamous
marriage?
- In Jones vs. Hortiguela, it was held
that for purposes of remarriage it
was not necessary for the absent
spouse to be declared absent and
that the only purpose of such
declaration is for the administration
of the estate of the deceased. In Re:
Szatraw, it was ruled that unless the
case involved the distribution of
property, a declaration of
presumptive death will not be given
by the court. In Gue vs. Republic, it
was held there can be no judicial
declaration of presumptive death.
- Things are now clarified. Judicial
declaration of presumptive death is
now authorized for purposes of
remarriage. The present spouse must
institute summary proceedings for
declaration of presumptive death of
the absentee. The ordinary rules of
procedure in trial will not be
followed. Affidavits will suffice
with possible clarificatory
examinations of affiants if the Judge
finds it necessary for a full grasp of
the facts.
- The judgement declaring an
absentee as presumptively dead is
without prejudice to the effect of
reappearance of the said absentee.
- There is now a complete harmony
between the present Article and
Article 349 of the Revised Penal
Code.
- Art. 349. Bigamy.—The penalty of
prision mayor shall be imposed
upon any person who shall
FAMILY (WEEK 5) | CHAVEZ
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
judgement rendered in the proper
proceedings.
- There is a need for the institution of
summary proceedings for the
declaration of the presumptive death
of the absentee. Otherwise, there is
bigamy if a subsequent marriage is
rashly entered into.
Art. 41. A marriage contracted by any
person during the subsistence of a
previous marriage shall be null and void,
unless before the celebration of the
subsequent marriage, the prior spouse
had been absent for four consecutive
years and the spouse present had a well
founded belief that the absent spouse was
already dead. In case of disappearance
where there is danger of death under the
circumstances set forth in the provisions
of Article 391 of the Civil Code, an
absence of only two years shall be
sufficient.
For the purpose of contracting the
subsequent marriage under the preceding
paragraph, the spouse present must
institute a summary proceeding as
provided in this Code for the declaration
of presumptive death of the absentee,
without prejudice to the effect of
reappearance of the absent spouse.
f. Discuss Article 41 of the Family Code
in relation to Article 391 of the Civil
Code.
- Art. 41 of the Family Code did not
repeal Art. 390 of the Civil Code.
In fact, both articles are
incorporated under the Rule on
Rebuttable Presumptions in the
law on Evidence.
- Regardless of the number of years
of absence of the missing spouse
whose whereabouts are unknown,
15

the present spouse who wants to
remarry must first secure a
judgement declaring the missing
spouse as presumptively dead even
if the absentee has been missing for
more than seven (7) years.
Otherwise, bigamy attaches in the
subsequent marriage.
- The missing person under Article
390 (NCC) may be any person other
than a spouse. He/she may be any
member of the family like a parent,
brother or sister, unless under Art.
41 of the Family Code, where the
missing person must be the husband
or wife of the present spouse. The
purpose of the article is to authorize
a valid remarriage by the present
spouse to avoid bigamy.
- If the subject person who has been
missing for more than ten (10) years
is not a spouse, and there is a need
for example, to settle his or her
estate, it is not necessary to seek
first a declaration of his/her
presumptive death. The fact of
disappearance or absence for more
than ten (10) years will be
considered or proved in the testate
or intestate proceedings.
- It must be noted, under Article 41,
there is no opening of succession
whatsoever of the estate of the
missing spouse.
- When the absent spouse had been
absent for more than seven (7)
years, there is no need of judicial
declaration of his presumptive death
for purposes of the remarriage of the
present spouse.
- The ruling in Manuel vs. People
should be reexamined in future
cases. At most, the possible
amendment may apply only to a
situation where the missing person
is a spouse and not when any other
person is involved.
- In Article 41, Family Code, the
missing person is a spouse; in
Article 390, New Civil Code, it can
be another person not necessarily
FAMILY (WEEK 5) | CHAVEZ
a spouse. The better rule is to let
two (2) articles stand
independently of each other and
not to perturb existing
jurisprudence.
- If the disappearance of the spouse is
due to the dangerous circumstances
mentioned under Article 391, New
Civil Code, instead of the ordinary
four-year period, two years absence
will suffice for the declaration of
presumptive death of the absentee.
- Art. 391. The following shall be
presumed dead for all purposes,
including the division od the estate
among the heirs:
(1) A person on board a vessel lost
during a sea voyage, or an
aeroplane which is missing, who
has not been heard of for four
years since the loss of the vessel
or aeroplane;
(2) A person in the armed forces
who has taken part in war, and
has been missing for four years;
(3) A person who has been in
danger of death under other
circumstances and his existence
has not been known for four
years.
- Except for its special application
to Article 41, Family Code, the
four-year period in Art, 391
remains operative.
- Requisites of Remarriage Under Art
41. —
(1) Absent spouse must have been
absent for at least four
consecutive years or at least for
two years if the disappearance is
due to any of the circumstances
in Art. 391, NCC;
(2) Present spouse had been a well-
founded belief (not suspicion)
that the absent spouse was
already dead;
(3) Institution of an action
(summary proceedings) for the
16

declaration of the presumptive
death of the absentee; and
(4) Favorable judgement in favor of
the present spouse.
g. Discuss Article 42 of the Family Code.
Art. 42. The subsequent marriage referred to
in the preceding Article shall be
automatically terminated by the recording of
the affidavit or reappearance of the absent
spouse, unless there is a judgement 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.
h. How may the subsequent bigamous
marriage be terminated?
- The subsequent marriage in the
immediately preceding article is
terminated without any need of
judicial pronouncement upon the
recording of the affidavit of
reappearance of said absent spouse
and not upon the mere reappearance.
The only exception is when the
previous marriage with the absent
spouse had been judicially annulled
or declared void ab initio in the
meantime.
- Under the New Civil Code (Art.
83), to terminate the subsequent
marriage there must still be a
final judgement of annulment
because it was considered merely
as voidable. Under the present
article, termination is automatic
upon the recording of the affidavit
of reappearance with the
appropriate civil registry and with
notice to the parties of the
subsequent marriage.
FAMILY (WEEK 5) | CHAVEZ
- The recording shall be in the civil
registry of the residence of the
parties to the subsequent marriage at
the instance of any interested party
with notice to the former and
without prejudice to any issue raised
against the fact of reappearance if
this is disputed.
- The affidavit may be executed by
the absent spouse or by any
interested person. If the affidavit is
false and is recorded, the same may
be questioned in court.
i. Discuss Article 43 of the Family Code.
Art. 43. The termination of the subsequent
marriage referred to in the preceding Article
shall produce the following effects:
(1) The children of the subsequent
marriage conceived prior to its
termination shall be considered
legitimate;
(2) The absolute community of property
or the conjugal partnership, as the
case may be, shall be dissolved and
liquidated, but if either spouse
contracted said marriage in bad faith,
his or her share of the net profits of
the community property or conjugal
partnership property shall be
forfeited in favor of the common
children or, if there are none, the
children of the guilty spouse by a
previous marriage or in default of
children, the innocent spouse;
(3) Donations by reason of marriage shall
remain valid, except that if the donee
contracted the marriage in bad faith,
such donations made to said donee
are revoked by operation of law;
(4) The innocent spouse may revoke the
designation of the other spouse who
acted in bad faith as beneficiary in
any insurance policy, even if such
designation be stipulated as
irrevocable; and
(5) The spouse who contracted the
subsequent marriage in bad faith
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 FAMILY (WEEK 5) | CHAVEZ

shall be disqualified to inherit from

the innocent spouse by testate and
intestate succession.

j. Discuss Article 44 of the Family Code.

Art. 44. If both spouses of the subsequent

marriage acted in bad faith, said marriage
shall be void ab initio and all donations by
reason of marriage and testamentary
dispositions made by one in favor of the other
are revoked by operation of law.

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