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Romualdez-Marcos vs. COMELEC Case Digest

Facts:
Imelda Romualdez-Marcos, filed her certificate of
candidacy for the position of Representative of Leyte First District.
On March 23, 1995, private respondent Cirilio Montejo, also a
candidate for the same position, filed a petition for disqualification
of the petitioner with COMELEC on the ground that petitioner did
not meet the constitutional requirement for residency. On March
29, 1995, petitioner filed an amended certificate of candidacy,
changing the entry of seven months to since childhood in item no.
8 in said certificate. However, the amended certificate was not
received since it was already past deadline. She claimed that she
always maintained Tacloban City as her domicile and residence. The
Second Division of the COMELEC with a vote of 2 to 1 came up with
a resolution finding private respondents petition for disqualification
meritorious.

Issue:
Whether or not petitioner lost her domicile of origin by
operation of law as a result of her marriage to the late President
Marcos.

Held:
For election purposes, residence is used synonymously
with domicile. The Court upheld the qualification of petitioner,
despite her own declaration in her certificate of candidacy that she
had resided in the district for only 7 months, because of the
following: (a) a minor follows the domicile of her
parents; Taclobanbecame petitioners domicile of origin by
operation of law when her father brought the family to Leyte; (b)
domicile of origin is lost only when there is actual removal orchange
of domicile, a bona fide intention of abandoning the former
residence and establishing a new one, and acts which correspond
with the purpose; in the absence of clear and positive proof of the
concurrence of all these, the domicile of origin should be deemed to
continue; (c) the wife does not automatically gain the husbands
domicile because the term residence in Civil Law does not mean
the same thing in Political Law; when petitioner
married President Marcos in 1954, she kept her domicile of origin
and merely gained a new home, not a domicilium necessarium; (d)
even assuming that she gained a new domicile after her marriage
and acquired the right to choose a new one only after her husband
died, her acts following her return to the country clearly indicate
that she chose Tacloban, her domicile of origin, as her domicile of
choice.

Morigo vs. People
GR No. 145226, February 6, 2004

FACTS:

Lucio Morigo and Lucia Barrete were boardmates in Bohol. They
lost contacts for a while but after receiving a card from Barrete and
various exchanges of letters, they became sweethearts. They got
married in 1990. Barrete went back to Canada for work and in 1991
she filed petition for divorce in Ontario Canada, which was granted.
In 1992, Morigo married Lumbago. He subsequently filed a
complaint for judicial declaration of nullity on the ground that there
was no marriage ceremony. Morigo was then charged with bigamy
and moved for a suspension of arraignment since the civil case
pending posed a prejudicial question in the bigamy case. Morigo
pleaded not guilty claiming that his marriage with Barrete was void
ab initio. Petitioner contented he contracted second marriage in
good faith.

ISSUE: Whether Morigo must have filed declaration for the nullity of
his marriage with Barrete before his second marriage in order to be
free from the bigamy case.

HELD: Morigos marriage with Barrete is void ab initio considering
that there was no actual marriage ceremony performed between
them by a solemnizing officer instead they just merely signed a
marriage contract. The petitioner does not need to file declaration
of the nullity of his marriage when he contracted his second
marriage with Lumbago. Hence, he did not commit bigamy and is
acquitted in the case filed.
Ninal vs. Bayadog Case Digest
Nial vs. Bayadog
328 SCRA 122

Facts: Pepito Nial was married to Teodulfa Bellones on September
26, 1974. Out of their marriage were born herein petitioners. Pepito
resulting to her death on April 24, 1985 shot Teodulfa. One year and
8 months thereafter or on December 24, 1986, Pepito and
respondent Norma Bayadog got married without any marriage
license. In lieu thereof, Pepito and Norma executed an affidavit
dated December 11, 1986 stating that they had lived together as
husband and wife for at least 5 years and were thus exempt from
securing a marriage license.

After Pepitos death on February 19, 1997, petitioners filed a
petition for declaration of nullity of the marriage of Pepito and
Norma alleging that the said marriage was void for lack of a
marriage license.

Issue: What nature of cohabitation is contemplated under Article 76
of the Civil Code (now Article 34 of the Family Code) to warrant the
counting of the 5-year period in order to exempt the future spouses
from securing a marriage license.

Ruling: The 5-year common law cohabitation period, which is
counted back from the date of celebration of marriage, should be a
period of legal union had it not been for the absence of the
marriage. This 5-year period should be the years immediately before
the day of the marriage and it should be a period of cohabitation
characterized by exclusivity-meaning no third party was involved at
any time within the 5 years and continuity is unbroken.

Any marriage subsequently contracted during the lifetime of the first
spouse shall be illegal and void, subject only to the exception in
cases of absence or where the prior marriage was dissolved or
annulled.

In this case, at the time Pepito and respondents marriage, it cannot
be said that they have lived with each other as husband and wife for
at least 5 years prior to their wedding day. From the time Pepitos
first marriage was dissolved to the time of his marriage with
respondent, only about 20 months had elapsed. Pepito had a
subsisting marriage at the time when he started cohabiting with
respondent. It is immaterial that when they lived with each other,
Pepito had already been separated in fact from his lawful spouse.

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The subsistence of the marriage even where there is was actual
severance of the filial companionship between the spouses cannot
make any cohabitation by either spouse with any third party as
being one as husband and wife.

Having determined that the second marriage involve in this case is
not covered by the exception to the requirement of a marriage
license, it is void ab initio because of the absence of such element.

Manzano vs. Sanchez
AM No. MTJ-001329, March 8, 2001


FACTS:

Herminia Borja-Manzano was the lawful wife of the late David
Manzano having been married on May 21, 1966 in San Gabriel
Archangel Parish in Caloocan. They had four children. On March 22,
1993, her husband contracted another marriage with Luzviminda
Payao before respondent Judge. The marriage contract clearly
stated that both contracting parties were separated thus,
respondent Judge ought to know that the marriage was void and
bigamous. He claims that when he officiated the marriage of David
and Payao, he knew that the two had been living together as
husband and wife for seven years as manifested in their joint
affidavit that they both left their families and had never cohabit or
communicated with their spouses due to constant quarrels.

ISSUE: Whether the solemnization of a marriage between two
contracting parties who both have an existing marriage can contract
marriage if they have been cohabitating for 5 years under Article 34
of Family Code.

HELD:

Among the requisites of Article 34 is that parties must have no legal
impediment to marry each other. Considering that both parties has
a subsisting marriage, as indicated in their marriage contract that
they are both separated is an impediment that would make their
subsequent marriage null and void. Just like separation, free and
voluntary cohabitation with another person for at least 5 years does
not severe the tie of a subsisting previous marriage. Clearly,
respondent Judge Sanchez demonstrated gross ignorance of the law
when he solemnized a void and bigamous marriage.

Republic vs. Dayot
GR No. 175581, March 28, 2008

FACTS:

Jose and Felisa Dayot were married at the Pasay City Hall on
November 24, 1986. In lieu of a marriage license, they executed a
sworn affidavit that they had lived together for at least 5years. On
August 1990, Jose contracted marriage with a certain Rufina
Pascual. They were both employees of the National Statistics and
Coordinating Board. Felisa then filed on June 1993 an action for
bigamy against Jose and an administrative complaint with the Office
of the Ombudsman. On the other hand, Jose filed a complaint on
July 1993 for annulment and/or declaration of nullity of marriage
where he contended that his marriage with Felisa was a sham and
his consent was secured through fraud.

ISSUE: Whether or not Joses marriage with Felisa is valid
considering that they executed a sworn affidavit in lieu of the
marriage license requirement.

HELD:

CA indubitably established that Jose and Felisa have not lived
together for five years at the time they executed their sworn
affidavit and contracted marriage. Jose and Felisa started living
together only in June 1986, or barely five months before the
celebration of their marriage on November 1986. Findings of facts
of the Court of Appeals are binding in the Supreme Court.

The solemnization of a marriage without prior license is a clear
violation of the law and invalidates a marriage. Furthermore, the
falsity of the allegation in the sworn affidavit relating to the period
of Jose and Felisas cohabitation, which would have qualified their
marriage as an exception to the requirement for a marriage license,
cannot be a mere irregularity, for it refers to a quintessential fact
that the law precisely required to be deposed and attested to by the
parties under oath. Hence, Jose and Felisas marriage is void ab
initio. The court also ruled that an action for nullity of marriage is
imprescriptible. The right to impugn marriage does not prescribe
and may be raised any time.

Cosca vs. Palaypayon
237 SCRA 249

FACTS:

The following are the complainants: Juvy N. Cosca (Stenographer 1),
Edmundo B. Peralta (Interpreter 1), Ramon C. Sambo (Clerk II) and
Apollo Villamora (Process Server). Respondents are Judge Lucio
Palaypayon Jr., the presiding judge, and Nelia B. Esmeralda-Baroy,
clerk of court II. All work in MTC-Tinambac, Camarines Sur.

Complainants alleged that Palaypayon solemnized marriages even
without the requisite of a marriage license. Hence, the following
couples were able to get married just by paying the marriage fees to
respondent Baroy: Alano P. Abellano & Nelly Edralin; Francisco Selpo
& Julieta Carrido; Eddie Terrobias & Maria Gacer; Renato Gamay &
Maricris Belga; Arsenio Sabater & Margarita Nacario; Sammy Bocaya
& Gina Bismonte. As a consequence, the marriage contracts of the
following couples did not reflect any marriage license number. In
addition, Palaypayon did not sign the marriage contracts and did not
indicate the date of solemnization reasoning out that he allegedly
had to wait for the marriage license to be submitted by the parties
which happens usually several days after the marriage ceremony.

Palaypayon contends that marriage between Abellano & Edralin falls
under Article 34 of the Civil Code thus exempted from the marriage
license requirement. According to him, he gave strict instructions to
complainant Sambo to furnish the couple copy of the marriage
contract and to file the same with the civil registrar but the latter
failed to do so. In order to solve the problem, the spouses
subsequently formalized the marriage by securing a marriage license
and executing their marriage contract, a copy of which was then
filed with the civil registrar. The other five marriages were not
illegally solemnized because Palaypayon did not sign their marriage
contracts and the date and place of marriage are not included. It
was alleged that copies of these marriage contracts are in the
custody of complainant Sambo. The alleged marriage of Selpo &
Carrido, Terrobias & Gacer, Gamay & Belga, Sabater & Nacario were
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not celebrated by him since he refused to solemnize them in the
absence of a marriage license and that the marriage of Bocaya &
Bismonte was celebrated even without the requisite license due to
the insistence of the parties to avoid embarrassment with the guests
which he again did not sign the marriage contract.

An illegal solemnization of marriage was charged against the
respondents.

ISSUE: Whether the marriage solemnized by Judge Palaypayon were
valid.

HELD:

Bocaya & Besmontes marriage was solemnized without a marriage
license along with the other couples. The testimonies of Bocay and
Pompeo Ariola including the photographs taken showed that it was
really Judge Palaypayon who solemnized their marriage. Bocaya
declared that they were advised by judge to return after 10 days
after the solemnization and bring with them their marriage license.
They already started living together as husband and wife even
without the formal requisite. With respect to the photographs,
judge explained that it was a simulated solemnization of marriage
and not a real one. However, considering that there were pictures
from the start of the wedding ceremony up to the signing of the
marriage certificates in front of him. The court held that it is hard to
believe that it was simulated.

On the other hand, Judge Palaypayon admitted that he solemnized
marriage between Abellano & Edralin and claimed it was under
Article 34 of the Civil Code so the marriage license was dispensed
with considering that the contracting parties executed a joint
affidavit that they have been living together as husband and wife for
almost 6 years already. However, it was shown in the marriage
contract that Abellano was only 18 yrs 2months and 7 days old. If he
and Edralin had been living together for 6 years already before they
got married as what is stated in the joint affidavit, Abellano must
have been less than 13 years old when they started living together
which is hard to believe. Palaypayon should have been aware, as it
is his duty to ascertain the qualification of the contracting parties
who might have executed a false joint affidavit in order to avoid the
marriage license requirement.

Article 4 of the Family Code pertinently provides that in the
absence of any of the essential or formal requisites shall render the
marriage void ab initio whereas an irregularity in the formal
requisite shall not affect the validity of the marriage but the party or
parties responsible for the irregularity shall be civilly, criminally, and
administratively liable.

REINEL ANTHONY B. DE CASTRO, Petitioner, vs. ANNABELLE
ASSIDAO-DE CASTRO, Respondent.

Petitioner and respondent met and became sweethearts in 1991.
They planned to get married, thus they applied for a marriage
license with the Office of the Civil Registrar of Pasig City in
September 1994. They had their first sexual relation sometime in
October 1994, and had regularly engaged in sex thereafter. When
the couple went back to the Office of the Civil Registrar, the
marriage license had already expired. Thus, in order to push through
with the plan, in lieu of a marriage license, they executed an
affidavit dated 13 March 1995 stating that they had been living
together as husband and wife for at least five years. The couple got
married on the same date, with Judge Jose C. Bernabe, presiding
judge of the Metropolitan Trial Court of Pasig City, administering the
civil rites. Nevertheless, after the ceremony, petitioner and
respondent went back to their respective homes and did not live
together as husband and wife. Respondent filed a complaint for
support against petitioner before the Regional Trial Court. In her
complaint, respondent alleged that she is married to petitioner and
that the latter has failed on his responsibility/obligation to
financially support her as his wife and Reinna Tricia as his child.

Petitioner denied that he is married to respondent, claiming that
their marriage is void ab initio since the marriage was facilitated by a
fake affidavit; and that he was merely prevailed upon by respondent
to sign the marriage contract to save her from embarrassment and
possible administrative prosecution due to her pregnant state; and
that he was not able to get parental advice from his parents before
he got married. He also averred that they never lived together as
husband and wife and that he has never seen nor acknowledged the
child. Trial court ruled that the marriage between petitioner and
respondent is not valid because it was solemnized without a
marriage license. However, it declared petitioner as the natural
father of the child, and thus obliged to give her support. Petitioner
elevated the case to the Court of Appeals, arguing that the lower
court committed grave abuse of discretion when, on the basis of
mere belief and conjecture, it ordered him to provide support to the
child when the latter is not, and could not have been, his own child.

ISSUES: First, whether the trial court had the jurisdiction to
determine the validity of the marriage between petitioner and
respondent in an action for support and second.

Anent the first issue, the Court holds that the trial court had
jurisdiction to determine the validity of the marriage between
petitioner and respondent. The validity of a void marriage may be
collaterally attacked. However, other than for purposes of
remarriage, no judicial action is necessary to declare a marriage an
absolute nullity. For other purposes, such as but not limited to
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 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 is the basis
of a final judgment declaring such previous marriage void in Article
40 of the Family Code connotes that such final judgment need not
be obtained only for purpose of remarriage.
The falsity of the affidavit cannot be considered as a mere
irregularity in the formal requisites of marriage. The law dispenses
with the marriage license requirement for a man and a woman who
have lived together and exclusively with each other as husband and
wife for a continuous and unbroken period of at least five years
before the marriage. The aim of this provision is to avoid exposing
the parties to humiliation, shame and embarrassment concomitant
with the scandalous cohabitation of persons outside a valid marriage
due to the publication of every applicants name for a marriage
license. In the instant case, there was no scandalous cohabitation
to protect; in fact, there was no cohabitation at all. The false
affidavit which petitioner and respondent executed so they could
push through with the marriage has no value whatsoever; it is a
mere scrap of paper. They were not exempt from the marriage
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license requirement. Their failure to obtain and present a marriage
license renders their marriage void ab initio.

Tenchavez vs Escano
15 SCRA 355

FACTS:
27 years old Vicenta Escano who belong to a prominent Filipino
Family of Spanish ancestry got married on Feburary 24, 1948 with
Pastor Tenchavez, 32 years old engineer, and ex-army officer before
Catholic chaplain Lt. Moises Lavares. The marriage was a
culmination of the love affair of the couple and was duly registered
in the local civil registry. A certain Pacita Noel came to be their
match-maker and go-between who had an amorous relationship
with Tenchavez as written by a San Carlos college student where she
and Vicenta are studying. Vicenta and Pastor are supposed to renew
their vows/ marriage in a church as suggested by Vicentas parents.
However after translating the said letter to Vicentas dad , he
disagreed for a new marriage. Vicenta continued leaving with her
parents in Cebu while Pastor went back to work in Manila.

Vicenta applied for a passport indicating that she was single and
when it was approved she left for the United States and filed a
complaint for divorce against Pastor which was later on approved
and issued by the Second Judicial Court of the State of Nevada. She
then sought for the annulment of her marriage to the Archbishop of
Cebu. Vicenta married Russell Leo Moran, an American, in Nevada
and has begotten children. She acquired citizenship on August 8,
1958. Petitioner filed a complaint against Vicenta and her parents
whom he alleged to have dissuaded Vicenta from joining her
husband.



ISSUE: Whether the divorce sought by Vicenta Escano is valid and
binding upon courts of the Philippines.



HELD:
Civil Code of the Philippines does not admit divorce. Philippine
courts cannot give recognition on foreign decrees of absolute
divorce between Filipino citizens because it would be a violation of
the Civil Code. Such grant would arise to discrimination in favor of
rich citizens who can afford divorce in foreign countries. The
adulterous relationship of Escano with her American husband is
enough grounds for the legal separation prayed by Tenchavez. In
the eyes of Philippine laws, Tenchavez and Escano are still married.
A foreign divorce between Filipinos sought and decreed is not
entitled to recognition neither is the marriage of the divorcee
entitled to validity in the Philippines. Thus, the desertion and
securing of an invalid divorce decree by one spouse entitled the
other for damages.

WHEREFORE, the decision under appeal is hereby modified as
follows;
(1) Adjudging plaintiff-appellant Pastor Tenchavez entitled to a
decree of legal separation from defendant Vicenta F. Escao;
(2) Sentencing defendant-appellee Vicenta Escao to pay plaintiff-
appellant Tenchavez the amount of P25,000 for damages and
attorneys' fees;
(3) Sentencing appellant Pastor Tenchavez to pay the appellee,
Mamerto Escao and the estate of his wife, the deceased Mena
Escao, P5,000 by way of damages and attorneys' fees.
ALICE REYES VAN DORN, petitioner, v. HON. MANUEL V. ROMILLO,
JR. AND RICHARD UPTON, respondents.
No. L-68470. October 8, 1985.
Facts:
Petitioner Alicia Reyes Van is citizen of the Philippines while private
respondent Richard Upton is acitizen of the United States, were
married on 1972 at Hongkong. On 1982, they got divorced in
Nevada, United States; and the petitioner remarried to Theodore
Van Dorn.
On July 8, 1983, private respondent filed suit against petitioner,
asking that the petitioner be ordered to render an accounting of her
business in Ermita, Manila, and be declared with right to manage the
conjugal property. Petitioner moved to dismiss the case on the
ground that the cause of action is barred by previous judgement in
the divorce proceeding before Nevada Court where respondent
acknowledged that they had no community property. The lower
court denied the motion to dismiss on the ground that the property
involved is located in the Philippines, that the Divorce Decree has no
bearing in the case. Respondent avers that Divorce Decree abroad
cannot prevail over the prohibitive laws of the Philippines.
Issue:
(1) Whether or not the divorce obtained the spouse valid to each of
them.
(2) Whether or not Richard Upton may assert his right on
conjugal properties.
Held:
As to Richard Upton the divorce is binding on him as an American
Citizen. As he is bound by the Decision of his own countrys Court,
which validly exercised jurisdiction over him, and whose decision he
does not repudiate, he is estopped by his own representation before
said Court from asserting his right over the alleged conjugal
property. Only Philippine Nationals are covered by the policy against
absolute divorce the same being considered contrary to our concept
of public policy and morality. Alicia Reyes under our National law is
still considered married to private respondent. However, petitioner
should not be obliged to live together with, observe respect and
fidelity, and render support to private respondent. The latter should
not continue to be one of her heirs with possible rights to conjugal
property. She should not be discriminated against her own country if
the ends of justice are to be served.
Imelda Manalaysay Pilapil v Hon. Corona Ibay-Somera
CITATION: GR No. 80116, June 30, 1989| 174 SCRA 653


FACTS:

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Imelda M. Pilapil, a Filipino citizen, was married with private
respondent, Erich Ekkehard Geiling, a German national before the
Registrar of Births, Marriages and Deaths at Friedensweiler, Federal
Republic of Germany. They have a child who was born on April 20,
1980 and named Isabella Pilapil Geiling. Conjugal disharmony
eventuated in private respondent and he initiated a divorce
proceeding against petitioner in Germany before the Schoneberg
Local Court in January 1983. The petitioner then filed an action for
legal separation, support and separation of property before the RTC
Manila on January 23, 1983.
The decree of divorce was promulgated on January 15, 1986 on the
ground of failure of marriage of the spouses. The custody of the
child was granted to the petitioner.
On June 27, 1986, private respondent filed 2 complaints for adultery
before the City Fiscal of Manila alleging that while still married to
Imelda, latter had an affair with William Chia as early as 1982 and
another man named Jesus Chua sometime in 1983.

ISSUE: Whether private respondent can prosecute petitioner on the
ground of adultery even though they are no longer husband and
wife as decree of divorce was already issued.

HELD:
The law specifically provided that in prosecution for adultery and
concubinage, the person who can legally file the complaint should
be the offended spouse and nobody else. Though in this case, it
appeared that private respondent is the offended spouse, the latter
obtained a valid divorce in his country, the Federal Republic of
Germany, and said divorce and its legal effects may be recognized in
the Philippines in so far as he is concerned. Thus, under the same
consideration and rationale, private respondent is no longer the
husband of petitioner and has no legal standing to commence the
adultery case under the imposture that he was the offended spouse
at the time he filed suit.
Republic vs. Orbecido Case Digest

Republic vs. Orbecido
472 SCRA 114

Facts:
On May 24, 1981, Cipriano Orbecido III and Lady Myros
Villanueva were married in Lam-an, Ozamis City and were blessed
with a son and a daughter. In 1986, Lady Myros left for the U.
S. bringing along their son and after a few years she was naturalized
as an American citizen.
Sometime in 2000, respondent Orbecido learned from his son
who was living with his wife in the States that his wife had
remarried after obtaining her divorce decree. Thereafter, he filed a
petition for authority to remarry with the trial court invoking par. 2
of Art. 26 of the Family Code.
Having no opposition, on May 15, 2002, the Regional Trial
Court of Zamboanga del Sur granted the petition of the respondent
and allowed him to remarry.
The Solicitor Generals motion for reconsideration was denied.
In view of that, petitioner filed this petition for review on certiorari
of the Decision of the Regional Trial Court. Herein petitioner raised
the issue of the applicability of Art. 26 par. 2 to the instant case.

Issue:
Whether or not Orbecido can remarry under Article 26(2).

Ruling:
Article 26 par. 2 of the Family Code only applies to case
where at the time of the celebration of the marriage, the parties are
a Filipino citizen and a foreigner. The instant case is one where at
the time the marriage was solemnized, the parties were two Filipino
citizens, but later on, the wife was naturalized as an American citizen
and subsequently obtained a divorce granting her capacity to
remarry, and indeed she remarried an American citizen while
residing in the U. S. A. Therefore, the 2nd par. of Art. 26 does not
apply to the instant case.
The reckoning point is not the citizenship of the parties at
the time of the celebration of the marriage, but their citizenship at
the time a valid divorce is obtained abroad by the alien spouse
capacitating the latter to remarry.
In this case, when Ciprianos wife was naturalized as an
American citizen, there was still a valid marriage that has been
celebrated between her and Cipriano. As fate would have it, the
naturalized alien wife subsequently obtained a valid divorce
capacitating her to remarry. Clearly, the twin requisites for the
application of Paragraph 2 of Article 26 are both present in this case.
Thus Cipriano, the divorced Filipino spouse, should be allowed to
remarry.
However, since Cipriano was not able to prove as fact his
wifes naturalization he is still barred from remarrying.
Respondent Orbecido who has the burden of proof, failed to submit
competent evidence showing his allegations that his naturalized
American wife had obtained a divorce decree and had remarried.
WOLFGANG O. ROEHR, petitioner, vs. MARIA CARMEN D.
RODRIGUEZ, HON. JUDGE JOSEFINA GUEVARA-SALONGA, Presiding
Judge of Makati RTC, Branch 149, respondents.
G.R. No. 142820
June 20, 2003

Facts:
Petitioner Wolfgang, a German citizen and resident of
Germany, married private respondent Carmen, a Filipina, on 11
December 1980 in Hamburg, Gemany. Early 1981, the marriage was
ratified in Tayasan, Negros Oriental. They had two daughters,
Carolyne and Alexandria Kristine.
Private respondent filed a petition for the declaration of
nullity of marriage before the Regional Trial Court of Makati on 28
August 1996. Petitioner filed a motion to dismiss but was denied by
trial court. A motion for reconsideration was filed by private
respondent but was again denied by the trial court.
In 1997, petitioner obtained a decree of divorce from the
Court of First Instance of Hamburg-Blankenese and granting the
custody of the children to the father.
It was June 14, 1999 when public respondent issued an
order granting the petitioners motion to dismiss, but was partially
set aside on September 1999 for the purpose of tackling issues
regarding property relations of the spouses as well as support and
custody of their children. Petitioner assailed for the trial courts lack
of jurisdiction, and grave abuse of discretion on the part of the
respondent judge.

Issue:
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Whether or not the Philippine courts can determine the
legal effects of a decree of divorce from a foreign country.

Held:
Yes. Our courts can determine the legal effects of a divorce
obtained from a foreign country such as those concerning with
support and custody of the children.
In this case, the decree did not touch as to who the
offending spouse was. The trial court was correct in setting the issue
for hearing to determine the issue of parental custody, care, support
and education of the best interests of the children. After all, the
childs welfare is always the paramount consideration in all
questions concerning his care and custody.
WHEREFORE, the orders of the Regional Trial Court of
Makati, Branch 149, issued on September 30, 1999 and March 31,
2000 are AFFIRMED with MODIFICATION. We hereby declare that
the trial court has jurisdiction over the issue between the parties as
to who has parental custody, including the care, support and
education of the children, namely Carolyne and Alexandra Kristine
Roehr. Let the records of this case be remanded promptly to the trial
court for continuation of appropriate proceedings. No
pronouncement as to costs.
SO ORDERED.
Garcia vs. Recio Case Digest

Garcia vs. Recio
G.R. No. 138322 October 2, 2001

Facts:
Article 26; The respondent, Rederick Recio, a Filipino was
married to Editha Samson, an Australian citizen, in Rizal in 1987.
They lived together as husband and wife in Australia. In 1989, the
Australian family court issued a decree of divorce supposedly
dissolving the marriage. In 1992, respondent acquired Australian
citizenship. In 1994, he married Grace Garcia, a Filipina, herein
petitioner, inCabanatuan City. In their application for marriage
license, respondent was declared as single and Filipino. Since
October 1995, they lived separately, and in 1996 while in Australia,
their conjugal assets were divided. In 1998, petitioner filed
Complaint for Declaration of Nullity of Marriage on the ground of
bigamy, claiming that she learned of the respondents former
marriage only in November. On the other hand, respondent claims
that he told petitioner of his prior marriage in 1993, before they
were married. Respondent also contended that his first marriage
was dissolved by a divorce a decree obtained in Australia in 1989
and hence, he was legally capacitated to marry petitioner in 1994.
The trial court declared that the first marriage was dissolved on the
ground of the divorce issued in Australia as valid and recognized in
the Philippines. Hence, this petition was forwarded before the
Supreme Court.

Issue:
Whether or not respondent has legal capacity to marry
Grace Garcia.

Ruling:
In mixed marriages involving a Filipino and a foreigner,
Article 26 of the Family Code allows the former to contract a
subsequent marriage in case the divorce is validly obtained abroad
by the alien spouse capacitating him or her to remarry. A divorce
obtained abroad by two aliens, may be recognized in thePhilippines,
provided it is consistent with their respective laws. Therefore,
before our courts can recognize a foreign divorce, the party pleading
it must prove the divorce as a fact and demonstrate its conformity
to the foreign law allowing it. In this case, the divorce decree
between the respondent and
Samson appears to be authentic, issued by an Australian family
court. Although, appearance is not sufficient, and compliance with
the rules on evidence regarding alleged foreign laws must be
demonstrated, the decree was admitted on account of petitioners
failure to object properly because he objected to the fact that it was
not registered in the Local Civil Registry of Cabanatuan City, not to
its admissibility. Respondent claims that the Australian divorce
decree, which was validly admitted as evidence, adequately
established his legal capacity to marry under Australian law. Even
after the divorce becomes absolute, the court may under some
foreign statutes, still restrict remarriage. Respondent also failed to
produce sufficient evidence showing the foreign law governing his
status. Together with other evidences submitted, they dont
absolutely establish his legal capacity to remarry.
CORPUZ VS. STO. TOMAS Case Digest
GERBERT CORPUZ VS. DAISYLYN STO. TOMAS
G.R. No. 186571, August 11, 2010

FACTS: Gerbert Corpuz was a former Filipino citizen who acquired
Canadian citizenship through naturalization on Nov. 2000. On, Jan.
18 2005, he married a Filipina named Daisylyn Sto. Tomas. Due to
work and other professional commitments, Gerbert left for Canada
soon after their wedding. He returned to the Philippines sometime
in April 2005 to surprise her wife but was shocked to discover that
Daisylyn was having an affair with another man. Hurt and
disappointed, Gerbert went back to Canada and filed a petition for
divorce and was granted.

Two years after, Gerbert fell in love with another Filipina. In his
desire to marry his new Filipina fiance, Gerbert went to Pasig City
Civil Registry Office and registered the Canadian divorce decree on
their marriage certificate. Despite its registration, an NSO official
informed Gerbert that their marriage still exists under Philippine
Law; and to be enforceable, the foreign divorce decree must be
judicially recognized by a Philippine court.

Gerbert filed a petition for judicial recognition of foreign divorce
and/or declaration of marriage as dissolved, with the RTC. Daisylyn
offered no opposition and requested for the same prayer.

RTC denied Gerberts petition contending that Art. 26 (2) applies
only to Filipinos and not to aliens. Gerbert appealed by certiorari to
the Supreme Court under Rule 45.

ISSUE: Whether the registration of the foreign divorce decree was
properly made.

HELD: Supreme Court held in the negative. Article 412 of the Civil
Code declares that no entry in a civil register shall be changed or
corrected, without judicial order. The Rules of Court supplements
Article 412 of the Civil Code by specifically providing for a special
remedial proceeding by which entries in the civil registry may be
judicially cancelled or corrected. Rule 108 of the Rules of Court sets
in detail the jurisdictional and procedural requirements that must be
complied with before a judgment, authorizing the cancellation or
correction, may be annotated in the civil registry.

MARCOS V. MARCOS
Facts
7

Plaintiff Brenda B. Marcos married Wilson Marcos in 1982 and they
had five children. Alleging that the husband failed to provide
material support to the family and have resorted to physical abuse
and abandonment, Brenda filed a case for the nullity of the marriage
for psychological incapacity. The RTC declared the marriage null and
void under Art. 36 which was however reversed by CA.

Issues
Whether personal medical or psychological examination of the
respondent by a physician is a requirement for a declaration of
psychological incapacity.
Whether the totality of evidence presented in this case show
psychological incapacity.

Held
Psychological incapacity as a ground for declaring the nullity of a
marriage, may be established by the totality of evidence presented.
There is no requirement, however that the respondent be examined
by a physician or a psychologist as a condition sine qua non for such
declaration. Although this Court is sufficiently convinced that
respondent failed to provide material support to the family and may
have resorted to physical abuse and abandonment, the totality of
his acts does not lead to a conclusion of psychological incapacity on
his part. There is absolutely no showing that his defects were
already present at the inception of the marriage or that they are
incurable. Verily, the behavior of respondent can be attributed to
the fact that he had lost his job and was not gainfully employed for a
period of more than six years. It was during this period that he
became intermittently drunk, failed to give material and moral
support, and even left the family home. Thus, his alleged
psychological illness was traced only to said period and not to the
inception of the marriage. Equally important, there is no evidence
showing that his condition is incurable, especially now that he is
gainfully employed as a taxi driver. In sum, this Court cannot declare
the dissolution of the marriage for failure of the petitioner to show
that the alleged psychological incapacity is characterized by gravity,
juridical antecedence and incurabilty and for her failure to observe
the guidelines as outline in Republic v. CA and Molina.

Nilda Navales vs Reynaldo Navales

Article 36: Psychological Incapacity
In 1986, Nilda and Reynaldo met in a local bar where Nilda was a
waitress. Because of his fear that Nilda may be wed to an American,
Reynaldo proposed to Nilda and they got married in 1988. Reynaldo
is aware that Nilda has an illegitimate child out of wedlock. The 1st
year of their marriage went well until Nilda began to work when she
neglected some of her duties as a wife. She later worked as a gym
instructor and according to Reynaldos allegations; her job makes
her flirt with her male clients. She also drives home with other guys
even though Reynaldo would be there to fetch her. She also
projected herself as single. And she refused to have a child with
Reynaldo because that would only destroy her figure. Reynaldo then
filed a petition to have their marriage be annulled. He presented her
cousin as a witness that attested that Nilda was flirting with other
guys even with Reynaldos presence. Reynaldo also presented the
findings of a psychologist who concluded that based on Nildas acts,
Nilda is a nymphomaniac, who has a borderline personality, a social
deviant, an alcoholic, and suffering from anti-social personality
disorder, among others, which illnesses are incurable and are the
causes of Nildas psychological incapacity to perform her marital role
as wife to Reynaldo. Nilda on her part attacked Reynaldos
allegations. She said that it is actually Reynaldo who is a womanizer
and that in fact she has filed a case of concubinage against him
which was still pending. She also said that she only needs the job in
order to support herself because Reynaldo is not supporting her. She
also showed proof that she projected herself as a married woman
and that she handles an aerobics class which is exclusive to females
only. The RTC and the CA ruled in favor of Reynaldo.
ISSUE: Whether the marriage between Reynaldo and Nilda is null
and void on the ground of Nildas psychological incapacity.
HELD: The petition must be granted because the States
participation in this case is wanting. There were no other pleadings,
motions, or position papers filed by the Public Prosecutor or OSG;
and no controverting evidence presented by them before the
judgment was rendered. And even if the SC would consider the case
based on the merits, the petition would still be granted. The acts
presented by Reynaldo by themselves are insufficient to establish a
psychological or mental defect that is serious, incurable or grave as
contemplated by Article 36 of the Family Code. Article 36
contemplates downright incapacity or inability to take cognizance of
and to assume basic marital obligations. Mere difficulty, refusal
or neglect in the performance of marital obligations or ill will on
the part of the spouse is different from incapacity rooted on some
debilitating psychological condition or illness. Indeed, irreconcilable
differences, sexual infidelity or perversion, emotional immaturity
and irresponsibility, and the like, do not by themselves warrant a
finding of psychological incapacity under Article 36, as the same may
only be due to a persons refusal or unwillingness to assume the
essential obligations of marriage and not due to some psychological
illness that is contemplated by said rule. The SC also finds the finding
of the psychological expert to be insufficient to prove the PI of Nilda.
The testimonies presented by people the expert interviewed were
not concretely established as the fact as to how those people came
up with their respective information was not as well shown. There is
no proof as well that Nilda had had sex with different guys a
condition for nymphomia. There being doubt as to Nildas PI the SC
ruled that this case be resolved in favor of the validity of marriage.

Te vs. Te
GR No. 161793, February 13, 2009



FACTS:

Petitioner Edward Te first met respondent Rowena Te in a gathering
organized by the Filipino-Chinese association in their college.
Initially, he was attracted to Rowenas close friend but, as the latter
already had a boyfriend, the young man decided to court Rowena,
which happened in January 1996. It was Rowena who asked that
they elope but Edward refused bickering that he was young and
jobless. Her persistence, however, made him relent. They left
Manila and sailed to Cebu that month; he, providing their travel
money of P80,000 and she, purchasing the boat ticket.

They decided to go back to Manila in April 1996. Rowena proceeded
to her uncles house and Edward to his parents home. Eventually
they got married but without a marriage license. Edward was
prohibited from getting out of the house unaccompanied and was
threatened by Rowena and her uncle. After a month, Edward
escaped from the house, and stayed with his parents. Edwards
parents wanted them to stay at their house but Rowena refused and
8

demanded that they have a separate abode. In June 1996, she said
that it was better for them to live separate lives and they then
parted ways.

After four years in January 2000, Edward filed a petition for the
annulment of his marriage to Rowena on the basis of the latters
psychological incapacity.

ISSUE: Whether the marriage contracted is void on the ground of
psychological incapacity.

HELD:

The parties whirlwind relationship lasted more or less six months.
They met in January 1996, eloped in March, exchanged marital vows
in May, and parted ways in June. The psychologist who provided
expert testimony found both parties psychologically incapacitated.
Petitioners behavioral pattern falls under the classification of
dependent personality disorder, and respondents, that of the
narcissistic and antisocial personality disorder

There is no requirement that the person to be declared
psychologically incapacitated be personally examined by a physician,
if the totality of evidence presented is enough to sustain a finding of
psychological incapacity. Verily, the evidence must show a link,
medical or the like, between the acts that manifest psychological
incapacity and the psychological disorder itself.

The presentation of expert proof presupposes a thorough and in-
depth assessment of the parties by the psychologist or expert, for a
conclusive diagnosis of a grave, severe and incurable presence of
psychological incapacity.

Indeed, petitioner, afflicted with dependent personality disorder,
cannot assume the essential marital obligations of living together,
observing love, respect and fidelity and rendering help and support,
for he is unable to make everyday decisions without advice from
others, and allows others to make most of his important decisions
(such as where to live). As clearly shown in this case, petitioner
followed everything dictated to him by the persons around him. He
is insecure, weak and gullible, has no sense of his identity as a
person, has no cohesive self to speak of, and has no goals and clear
direction in life.

As for the respondent, her being afflicted with antisocial personality
disorder makes her unable to assume the essential marital
obligations on account for her disregard in the rights of others, her
abuse, mistreatment and control of others without remorse, and her
tendency to blame others. Moreover, as shown in this case,
respondent is impulsive and domineering; she had no qualms in
manipulating petitioner with her threats of blackmail and of
committing suicide.

Both parties being afflicted with grave, severe and incurable
psychological incapacity, the precipitous marriage that they
contracted on April 23, 1996 is thus, declared null and void.
Case Digest on PEOPLE V. MENDOZA (Bigamy)

Arturo Mendoza and Jovita de Asis were married on Aug. 5, 1936 in
Marikina. While the marriage was still subsisting, Mendoza got
married to Olga Lema in Manila on May 14, 1941. de Asis died on
Feb. 2, 1943. Then, Mendoza contracted another marriage with
Carmencita Panlilio in Calamba, Laguna on Aug. 19, 1949. He was
sued and convicted of bigamy for the second marriage.
ISSUE: WON Mendoza is liable for bigamy?
HELD: No. Acquitted.
RATIO:
1. Sec. 29, Marriage Law Act 3613: Any marriage subsequently
contracted by any person during the lifetime of the first spouse shall
be illegal and void unless first marriage has been annulled, dissolved
or first spouse has been absent for 7 consecutive years without
news if he/she is still alive. Judicial declaration of nullity is only
necessary for third case. THUS, HIS MARRIAGE WITH LEMA IS NULL
AND VOID WITHOUT NEED FOR JUDICIAL DECLARATION.
2. Third marriage was contracted after the death of the first spouse,
thus not bigamous.
Wiegel vs Sempio-Dy
Wiegel vs. Sempio-Dy
143 SCRA 449

FACTS:

Karl Wiegel was married to Lilia Wiegel on July 1978. Lilia was
married with a certain Eduardo Maxion in 1972. Karl then filed a
petition in the Juvenile and Domestic Relations Court for the
declaration of nullity of his marriage with Lilia on the ground of
latters former marriage. Having been allegedly force to enter into a
marital union, she contents that the first marriage is null and void.
Lilia likewise alleged that Karl was married to another woman before
their marriage.

ISSUE: Whether Karls marriage with Lilia is void.

HELD:

It was not necessary for Lilia to prove that her first marriage was
vitiated with force because it will not be void but merely voidable.
Such marriage is valid until annulled. Since no annulment has yet
been made, it is clear that when she married Karl, she is still validly
married to her first husband. Consequently, her marriage to Karl is
void. Likewise, there is no need of introducing evidence on the prior
marriage of Karl for then such marriage though void still needs a
judicial declaration before he can remarry. Accordingly, Karl and
Lilias marriage are regarded void under the law.
Domingo vs CA
Domingo vs. CA
226 SCRA 572



FACTS:

Soledad Domingo, married with Roberto Domingo in 1976, filed a
petition for the declaration of nullity of marriage and separation of
property. She did not know that Domingo had been previously
married to Emerlinda dela Paz in 1969. She came to know the
previous marriage when the latter filed a suit of bigamy against her.
Furthermore, when she came home from Saudi during her one-
month leave from work, she discovered that Roberto cohabited with
another woman and had been disposing some of her properties
which is administered by Roberto. The latter claims that because
their marriage was void ab initio, the declaration of such voidance is
unnecessary and superfluous. On the other hand, Soledad insists
the declaration of the nullity of marriage not for the purpose of
9

remarriage, but in order to provide a basis for the separation and
distribution of properties acquired during the marriage.

ISSUE: Whether or not a petition for judicial declaration should only
be filed for purposes of remarriage.

HELD:

The declaration of the nullity of marriage is indeed required for
purposed of remarriage. However, it is also necessary for the
protection of the subsequent spouse who believed in good faith that
his or her partner was not lawfully married marries the same. With
this, the said person is freed from being charged with bigamy.

When a marriage is declared void ab initio, law states that final
judgment shall provide for the liquidation, partition and distribution
of the properties of the spouses, the custody and support of the
common children and the delivery of their presumptive legitimes,
unless such matters had been adjudicated in previous judicial
proceedings. Soledads prayer for separation of property will simply
be the necessary consequence of the judicial declaration of absolute
nullity of their marriage. Hence, the petitioners suggestion that for
their properties be separated, an ordinary civil action has to be
instituted for that purpose is baseless. The Family Code has clearly
provided the effects of the declaration of nullity of marriage, one of
which is the separation of property according to the regime of
property relations governing them.
CASE DIGEST ON ATIENZA V. BRILLANTES
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CASE DIGEST ON ATIENZA V. BRILLANTES [243 SCRA 32 (1995)] - F:
This is an administrative complaint filed by Atienza for Gross
Immorality and Appearance of Impropriety against J. Brillantes,
Presiding Judge of MTC, Mla. It was alleged in the complaint that
Brillantes has been cohabiting w/ Yolanda De Castro (w/ whom
Atienza had 2 children) when he (Brillantes) was already married to
one Zenaida Ongkiko w/ whom he has 5 children. xxx Resp. denies
having been married to Ongkiko, although he admits having 5
children w/ her. He alleges that while he and Ongkiko went through
a marriage ceremony, the same was not valid for lack of marriage
license. The second marriage bet. the two also lacked the required
license. He claims that when he married De Castro in LA, California,
he believed, in all GF and for all legal intents and purposes, that he
was single bec. his first marriage was solemnized w/o a license.

HELD: Under the FC, there must be a judicial decl. of the nullity of a
previous marriage bef. a party thereto can enter into a 2nd
marriage. (Art. 40.) Art. 40 is applicable to remarriages entered into
after the effectivity of the FC regardless of the date of the first
marriage. Said art. is given "retroactive effect insofar as it does not
prejudice or impair vested or acquired rights in accordance w/ the
NCC or other laws." (Art. 256, FC.) This is particularly true w/ Art. 40
w/c is a rule of procedure. Resp. has not shown any vested right that
was impaired by the application of Art. 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. The reason is that as a general rule no vested right may
attach to, nor arise from, procedural laws.
Bobis vs Bobis Case Digest
Imelda Marbella-Bobis (petitioner), vs. Isagani D. Bobis (respondent)

Facts:
Respondent was married to the petitioner on January 25,
1996. Unknown to the petitioner, her other half has contracted his
first marriage with a Maria Dulce B. Javier on October 21, 1985 and
has not been nullified. The respondent once again entered into
marriage with a certain Julia Sally Hernandez. A case of bigamy was
filed against the respondent on the Quezon City Regional Trial Court,
consequently he initiated a civil action for the judicial declaration of
his first marriage on the ground that it was celebrated without a
license. Respondent has filed a motion to suspend the trial and has
been granted. Petitioner filed for a motion for reconsideration but
has been denied.

ISSUE:
Whether or not the subsequent declaration of nullity of a
previous marriage constitutes a question to a criminal case for
bigamy
RULING

No, respondents subsequent declaration of nullity of a
previous marriage constitutes a question to a criminal case for
bigamy. During the time when he contracted his second marriage,
he was considered already considered as a married man even if it
was a marriage without a marriage license. Article 40 of the Family
Code, which has already been promulgateSd on his second marriage,
requires a prior judicial declaration of nullity of a previous marriage
before the respondent could have married for the second time.
Whether or not the first marriage was void for lack of a license is a
matter of defense because there is still no declaration of its nullity at
the time the second marriage was contracted. It is not for the
parties, especially the accused to determine if his first marriage was
null or void, but of a court. The respondents clear intent is to obtain
a judicial declaration of nullity of his first marriage in order to escape
the bigamy charge by simply claiming that the first marriage is void
and that the subsequent marriage is also void due to the absence of
judicial declaration of nullity of the first. Thus, the decision in the
civil action has been reversed and may proceed with the criminal
case.
Mercado vs Tan
Mercado vs. Tan
337 SCRA 122

FACTS:

Dr. Vicent Mercado was previously married with Thelma Oliva in
1976 before he contracted marriage with Consuelo Tan in 1991
which the latter claims she did not know. Tan filed bigamy against
Mercado and after a month the latter filed an action for declaration
of nullity of marriage against Oliva. The decision in 1993 declared
marriage between Mercado and Oliva null and void.

ISSUE: Whether Mercado committed bigamy in spite of filing the
declaration of nullity of the former marriage.

10

HELD:

A judicial declaration of nullity of a previous marriage is necessary
before a subsequent one can be legally contracted. One who enters
into a subsequent marriage without first obtaining such judicial
declaration is guilty of bigamy. This principle applies even if the
earlier union is characterized by statute as void.

In the case at bar, Mercado only filed the declaration of nullity of his
marriage with Oliva right after Tan filed bigamy case. Hence, by
then, the crime had already been consummated. He contracted
second marriage without the judicial declaration of the nullity. The
fact that the first marriage is void from the beginning is not a
defense in a bigamy charge.
Morigo vs People
Morigo vs. People
GR No. 145226, February 6, 2004

FACTS:

Lucio Morigo and Lucia Barrete were boardmates in Bohol. They
lost contacts for a while but after receiving a card from Barrete and
various exchanges of letters, they became sweethearts. They got
married in 1990. Barrete went back to Canada for work and in 1991
she filed petition for divorce in Ontario Canada, which was granted.
In 1992, Morigo married Lumbago. He subsequently filed a
complaint for judicial declaration of nullity on the ground that there
was no marriage ceremony. Morigo was then charged with bigamy
and moved for a suspension of arraignment since the civil case
pending posed a prejudicial question in the bigamy case. Morigo
pleaded not guilty claiming that his marriage with Barrete was void
ab initio. Petitioner contented he contracted second marriage in
good faith.

ISSUE: Whether Morigo must have filed declaration for the nullity of
his marriage with Barrete before his second marriage in order to be
free from the bigamy case.

HELD:

Morigos marriage with Barrete is void ab initio considering that
there was no actual marriage ceremony performed between them
by a solemnizing officer instead they just merely signed a marriage
contract. The petitioner does not need to file declaration of the
nullity of his marriage when he contracted his second marriage with
Lumbago. Hence, he did not commit bigamy and is acquitted in the
case filed.
JARILLIO V. PEOPLE
G.R. No. 164435, [June 29, 2010]
DOCTRINE:
He who contracts a second marriage before the judicial declaration
of nullity of the first marriage assumes the risk of being prosecuted
for bigamy.
FACTS:
On November 1979, the accused Victoria S. Jarillo,being previously
united in lawful marriage with Rafael M. Alocillo in 1974, and
without the said marriage having been legally dissolved, contracted
a second marriage with Emmanuel Ebora Santos Uy which marriage
was only discovered in 1999.
On the same year, Emmanuel Uy (2
nd
husband) filed against the
appellant a civil case for annulment of marriage before the RTC.
Parenthetically, Jarillo filed for declaration of nullity of their
marriage against Alocillo in 2000.
For her defense, petitioner insisted that (1) her marriage to Alocillo
was null and void because Alocillo was allegedly still married to a
certain Loretta Tillman at the time of the celebration of their
marriage; (2) her marriages to both Alocillo and Uy were null and
void for lack of a valid marriage license; and (3) the action had
prescribed, since Uy knew about her marriage to Alocillo as far back
as 1978. Notwithstanding her defenses, the RTC found Jarillo guilty
for the crime of bigamy in 2001 and was sentenced to suffer
imprisonment of six years to ten years of prision mayor.
On appeal to the CA, petitioners conviction was affirmed. It held
that petitioner committed bigamy when she contracted marriage
with Emmanuel Santos Uy because, at that time, her marriage to
Rafael Alocillo had not yet been declared null and void by the court.
This being so, the presumption is, her previous marriage to Alocillo
was still existing at the time of her marriage to Uy. The CA also
struck down, for lack of sufficient evidence, petitioners contentions
that her marriages were celebrated without a marriage license, and
that Uy had notice of her previous marriage as far back as 1978.
In the meantime, the RTC rendered a decision in 2003, declaring
petitioners 1974 marriage to Alocillo null and void ab initio on the
ground of Alocillos psychological incapacity. Said decision became
final and executory. In her motion for reconsideration, petitioner
invoked said declaration of nullity as a ground for the reversal of her
conviction.
ISSUE:
W/N CA committed a reversible error in affirming the conviction of
Jarillo for the crime of bigamy despite the supervening proof that
her marriage to Alocillo had been declared void.
HELD:
No. Jarillos conviction of the crime of bigamy must be affirmed. The
subsequent judicial declaration of nullity of her marriage to Alocillo
cannot be considered a valid defense in the crime of bigamy. The
moment petitioner contracted a second marriage without the
previous one having been judicially declared null and void, the crime
of bigamy was already consummated. Under the law, a marriage,
even one which is void or voidable, shall be deemed valid until
declared otherwise in a judicial proceeding.
The outcome of the civil case for annulment of petitioners marriage
to [private complainant] had no bearing upon the determination of
petitioners innocence or guilt in the criminal case for bigamy,
because all that is required for the charge of bigamy to prosper is
11

that the first marriage be subsisting at the time the second marriage
is contracted.
Without a judicial declaration of nullity of the first marriage, it is
presumed to be subsisting. Any decision in the civil action for nullity
would not erase the fact that the guilty party 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.
Cario vs Cario Case Digest

Susan Nicdao Cario vs. Susan Yee Cario GR No. 132529

FACTS:
SPO4 Santiago CArio married petitioner Susan Nicdao on
June 20, 1969, with whom he had two children, Sahlee and Sandee.
On November 10, 1982, SPO4 Cario also married respondent Susan
Yee. In 1988, SPO4 Cario became bedridden due to diabetes and
tuberculosis, and died on November 23, 1992, under the care of
Susan Yee who spent for his medical and burial expenses. Both
Susans filed claims for monetary benefits and financial assistance
from various government agencies pertaining to the deceased.
Nicdao was able to collect P146,000 from MBAI, PCCVI,
commutation, NAPOLCOM and Pag-ibig, while Yee received a total
of P21,000 from GSIS burial and SSS burial insurance.
On December 14, 1993, Yee filed for collection of money
against NIcdao, praying that Nicdao be ordered to return to her at
least one-half of the P146,000 NIcdao had collected. For failing to
file her answer, Nicdao was declared in default.
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 Nicdao and Cario.
But she claimed good faith, having no knowledge of the previous
marriage until at the funeral where she met Nicdao who introduced
herself as the wife of the deceased. Yee submitted that Carios
marriage to Nicdao was void because it was solemnized without the
required marriage license.

ISSUES:
1. Whether or not the subsequent marriage is null
and void;
2. Whether or not, if yes to above, the wife of the
deceased is entitled to collect the death benefits from
government agencies despite the nullity of their marriage.

HELD:
Under Article 40 of the Family Code, the nullity of a
previous marriage may be invoked for purposes of remarriage on
the basis solely of a final judgment declaring such 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. 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.
Under the Civil Code which was the law in force when the
marriage of petitioner and the deceased was solemnized in 1969, a
valid marriage license is a requisite of marriage, and the absence
therof, subject to certain exceptions, renders the marriage void ab
initio.
It does not follow, however, that since the marriage of
Nicdao and the deceased was void ab initio, the death benefits
would now be awarded to Yee. To reiterate, under Article 40 of the
Family Code, for purposes of remarriage, there must 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.
One of the effects of the declaration of nullity of marriage
is the separation of the property.
Republic vs Nolasco
Republic vs. Nolasco
220 SCRA 20

FACTS:

Gregorio Nolasco is a seaman. He met Janet Parker, a British, in bar
in England. After that, Janet started living with Nolasco in his ship
for six months. It lasted until the contract of Nolasco expired then
he brought her to his hometown in Antique. They got married in
January 1982. Due to another contract, Nolasco left the province.
In 1983, Nolasco received a letter from his mother informing him
that his son had been born but 15 days after, Janet left. Nolasco
went home and cut short his contract to find Janets whereabouts.
He did so by securing another seamans contract going to London.
He wrote several letters to the bar where they first met but it was all
returned. Gregorio petitioned in 1988 for a declaration of
presumptive death of Janet.

ISSUE: Whether or not Nolasco had a well-founded belief that his
wife, Janet, is already dead?

HELD:

The Supreme Court ruled that Nolascos efforts to locate Janet were
not persistent to show that he has a well-founded belief that his
wife was already dead because instead of seeking assistance of local
authorities and the British Embassy, he even secured another
contract. More so, while he was in London, he did not even try to
solicit help of the authorities to find his wife.
Republic vs CA
Republic vs. CA
GR No. 159614, December 9, 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-laws house and learned that Lea
had been to their house but left without notice. He then sought help
from the Barangay Captain. For sometime, 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 Leas disappearance to the
12

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.


HELD:


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 Leas 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 filed its notice to
dismiss his petition in RTC.
Valdez vs Republic

Valdez vs. Republic
GR No. 180863, September 8, 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 parents
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.
Virgilios application for naturalization in US was denied because
petitioners marriage with Sofio was subsisting. Hence, in March
2007, petitioner filed a petition seeking declaration of presumptive
death of Sofio.

ISSUE: Whether or not petitioners marriage with Virgilio is valid
despite lack of declaration of presumptive death of Sofio.

HELD:

The court ruled that no decree on the presumption of Sofios death
is necessary because Civil Code governs during 1971 and not Family
Code where at least 7 consecutive years of absence is only needed.
Thus, petitioner was capacitated to marry Virgilio and their marriage
is legal and valid.






























13

Republic of the Philippines
SUPREME COURT
Manila
EN BANC

G.R. No. 119976 September 18, 1995
IMELDA ROMUALDEZ-MARCOS, petitioner,
vs.
COMMISSION ON ELECTIONS and CIRILO ROY
MONTEJO, respondents.

KAPUNAN, J.:
A constitutional provision should be construed as to give it effective
operation and suppress the mischief at which it is aimed.
1
The 1987
Constitution mandates that an aspirant for election to the House of
Representatives be "a registered voter in the district in which he
shall be elected, and a resident thereof for a period of not less than
one year immediately preceding the election."
2
The mischief which
this provision reproduced verbatim from the 1973 Constitution
seeks to prevent is the possibility of a "stranger or newcomer
unacquainted with the conditions and needs of a community and
not identified with the latter, from an elective office to serve that
community."
3

Petitioner Imelda Romualdez-Marcos filed her Certificate of
Candidacy for the position of Representative of the First District of
Leyte with the Provincial Election Supervisor on March 8, 1995,
providing the following information in item no. 8:
4

RESIDENCE IN THE CONSTITUENCY WHERE I SEEK
TO BE ELECTED IMMEDIATELY PRECEDING THE
ELECTION: __________ Years and seven Months.
On March 23, 1995, private respondent Cirilo Roy Montejo, the
incumbent Representative of the First District of Leyte and a
candidate for the same position, filed a "Petition for Cancellation
and Disqualification"
5
with the Commission on Elections alleging
that petitioner did not meet the constitutional requirement for
residency. In his petition, private respondent contended that Mrs.
Marcos lacked the Constitution's one year residency requirement for
candidates for the House of Representatives on the evidence of
declarations made by her in Voter Registration Record 94-No.
3349772
6
and in her Certificate of Candidacy. He prayed that "an
order be issued declaring (petitioner) disqualified and canceling the
certificate of candidacy."
7

On March 29, 1995, petitioner filed an Amended/Corrected
Certificate of Candidacy, changing the entry "seven" months to
"since childhood" in item no. 8 of the amended certificate.
8
On the
same day, the Provincial Election Supervisor of Leyte informed
petitioner that:
[T]his office cannot receive or accept the
aforementioned Certificate of Candidacy on the
ground that it is filed out of time, the deadline
for the filing of the same having already lapsed
on March 20, 1995. The Corrected/Amended
Certificate of Candidacy should have been filed
on or before the March 20, 1995 deadline.
9

Consequently, petitioner filed the Amended/Corrected Certificate of
Candidacy with the COMELEC's Head Office in Intramuros, Manila on
March 31, 1995. Her Answer to private respondent's petition in SPA
No. 95-009 was likewise filed with the head office on the same day.
In said Answer, petitioner averred that the entry of the word
"seven" in her original Certificate of Candidacy was the result of an
"honest misinterpretation"
10
which she sought to rectify by adding
the words "since childhood" in her Amended/Corrected Certificate
of Candidacy and that "she has always maintained Tacloban City as
her domicile or residence.
11
Impugning respondent's motive in filing
the petition seeking her disqualification, she noted that:
When respondent (petitioner herein) announced
that she was intending to register as a voter in
Tacloban City and run for Congress in the First
District of Leyte, petitioner immediately opposed
her intended registration by writing a letter
stating that "she is not a resident of said city but
of Barangay Olot, Tolosa, Leyte. After
respondent had registered as a voter in Tolosa
following completion of her six month actual
residence therein, petitioner filed a petition with
the COMELEC to transfer the town of Tolosa
from the First District to the Second District and
pursued such a move up to the Supreme Court,
his purpose being to remove respondent as
petitioner's opponent in the congressional
election in the First District. He also filed a bill,
along with other Leyte Congressmen, seeking
the creation of another legislative district to
remove the town of Tolosa out of the First
District, to achieve his purpose. However, such
bill did not pass the Senate. Having failed on
such moves, petitioner now filed the instant
petition for the same objective, as it is obvious
that he is afraid to submit along with respondent
for the judgment and verdict of the electorate of
the First District of Leyte in an honest, orderly,
peaceful, free and clean elections on May 8,
1995.
12

On April 24, 1995, the Second Division of the Commission on
Elections (COMELEC), by a vote of 2 to 1,
13
came up with a
Resolution 1) finding private respondent's Petition for
Disqualification in SPA 95-009 meritorious; 2) striking off petitioner's
Corrected/Amended Certificate of Candidacy of March 31, 1995; and
3) canceling her original Certificate of Candidacy.
14
Dealing with two
primary issues, namely, the validity of amending the original
Certificate of Candidacy after the lapse of the deadline for filing
certificates of candidacy, and petitioner's compliance with the one
year residency requirement, the Second Division held:
14

Respondent raised the affirmative defense in her
Answer that the printed word "Seven" (months)
was a result of an "honest misinterpretation or
honest mistake" on her part and, therefore, an
amendment should subsequently be allowed.
She averred that she thought that what was
asked was her "actual and physical" presence in
Tolosa and not residence of origin or domicile in
the First Legislative District, to which she could
have responded "since childhood." In an
accompanying affidavit, she stated that her
domicile is Tacloban City, a component of the
First District, to which she always intended to
return whenever absent and which she has
never abandoned. Furthermore, in her
memorandum, she tried to discredit petitioner's
theory of disqualification by alleging that she has
been a resident of the First Legislative District of
Leyte since childhood, although she only became
a resident of the Municipality of Tolosa for seven
months. She asserts that she has always been a
resident of Tacloban City, a component of the
First District, before coming to the Municipality
of Tolosa.
Along this point, it is interesting to note that
prior to her registration in Tolosa, respondent
announced that she would be registering in
Tacloban City so that she can be a candidate for
the District. However, this intention was
rebuffed when petitioner wrote the Election
Officer of Tacloban not to allow respondent
since she is a resident of Tolosa and not
Tacloban. She never disputed this claim and
instead implicitly acceded to it by registering in
Tolosa.
This incident belies respondent's claim of
"honest misinterpretation or honest mistake."
Besides, the Certificate of Candidacy only asks
for RESIDENCE. Since on the basis of her Answer,
she was quite aware of "residence of origin"
which she interprets to be Tacloban City, it is
curious why she did not cite Tacloban City in her
Certificate of Candidacy. Her explanation that
she thought what was asked was her actual and
physical presence in Tolosa is not easy to believe
because there is none in the question that
insinuates about Tolosa. In fact, item no. 8 in the
Certificate of Candidacy speaks clearly of
"Residency in the CONSTITUENCY where I seek to
be elected immediately preceding the election."
Thus, the explanation of respondent fails to be
persuasive.
From the foregoing, respondent's defense of an
honest mistake or misinterpretation, therefore,
is devoid of merit.
To further buttress respondent's contention that
an amendment may be made, she cited the case
ofAlialy v. COMELEC (2 SCRA 957). The reliance
of respondent on the case of Alialy is misplaced.
The case only applies to the "inconsequential
deviations which cannot affect the result of the
election, or deviations from provisions intended
primarily to secure timely and orderly conduct of
elections." The Supreme Court in that case
considered the amendment only as a matter of
form. But in the instant case, the amendment
cannot be considered as a matter of form or an
inconsequential deviation. The change in the
number of years of residence in the place where
respondent seeks to be elected is a substantial
matter which determines her qualification as a
candidacy, specially those intended to suppress,
accurate material representation in the original
certificate which adversely affects the filer. To
admit the amended certificate is to condone the
evils brought by the shifting minds of
manipulating candidate, of the detriment of the
integrity of the election.
Moreover, to allow respondent to change the
seven (7) month period of her residency in order
to prolong it by claiming it was "since childhood"
is to allow an untruthfulness to be committed
before this Commission. The arithmetical
accuracy of the 7 months residency the
respondent indicated in her certificate of
candidacy can be gleaned from her entry in her
Voter's Registration Record accomplished on
January 28, 1995 which reflects that she is a
resident of Brgy. Olot, Tolosa, Leyte for 6 months
at the time of the said registration (Annex A,
Petition). Said accuracy is further buttressed by
her letter to the election officer of San Juan,
Metro Manila, dated August 24, 1994,
requesting for the cancellation of her
registration in the Permanent List of Voters
thereat so that she can be re-registered or
transferred to Brgy. Olot, Tolosa, Leyte. The
dates of these three (3) different documents
show the respondent's consistent conviction
that she has transferred her residence to Olot,
Tolosa, Leyte from Metro Manila only for such
limited period of time, starting in the last week
of August 1994 which on March 8, 1995 will only
sum up to 7 months. The Commission, therefore,
cannot be persuaded to believe in the
respondent's contention that it was an error.
xxx xxx xxx
Based on these reasons the Amended/Corrected
Certificate of Candidacy cannot be admitted by
this Commission.
xxx xxx xxx
Anent the second issue, and based on the
foregoing discussion, it is clear that respondent
15

has not complied with the one year residency
requirement of the Constitution.
In election cases, the term "residence" has
always been considered as synonymous with
"domicile" which imports not only the intention
to reside in a fixed place but also personal
presence in-that place, coupled with conduct
indicative of such intention. Domicile denotes a
fixed permanent residence to which when
absent for business or pleasure, or for like
reasons, one intends to return. (Perfecto Faypon
vs. Eliseo Quirino, 96 Phil 294; Romualdez vs.
RTC-Tacloban, 226 SCRA 408). In respondent's
case, when she returned to the Philippines in
1991, the residence she chose was not Tacloban
but San Juan, Metro Manila. Thus, her animus
revertendi is pointed to Metro Manila and not
Tacloban.
This Division is aware that her claim that she has
been a resident of the First District since
childhood is nothing more than to give her a
color of qualification where she is otherwise
constitutionally disqualified. It cannot hold
ground in the face of the facts admitted by the
respondent in her affidavit. Except for the time
that she studied and worked for some years
after graduation in Tacloban City, she
continuously lived in Manila. In 1959, after her
husband was elected Senator, she lived and
resided in San Juan, Metro Manila where she
was a registered voter. In 1965, she lived in San
Miguel, Manila where she was again a registered
voter. In 1978, she served as member of the
Batasang Pambansa as the representative of the
City of Manila and later on served as the
Governor of Metro Manila. She could not have
served these positions if she had not been a
resident of the City of Manila. Furthermore,
when she filed her certificate of candidacy for
the office of the President in 1992, she claimed
to be a resident of San Juan, Metro Manila. As a
matter of fact on August 24, 1994, respondent
wrote a letter with the election officer of San
Juan, Metro Manila requesting for the
cancellation of her registration in the permanent
list of voters that she may be re-registered or
transferred to Barangay Olot, Tolosa, Leyte.
These facts manifest that she could not have
been a resident of Tacloban City since childhood
up to the time she filed her certificate of
candidacy because she became a resident of
many places, including Metro Manila. This
debunks her claim that prior to her residence in
Tolosa, Leyte, she was a resident of the First
Legislative District of Leyte since childhood.
In this case, respondent's conduct reveals her
lack of intention to make Tacloban her domicile.
She registered as a voter in different places and
on several occasions declared that she was a
resident of Manila. Although she spent her
school days in Tacloban, she is considered to
have abandoned such place when she chose to
stay and reside in other different places. In the
case of Romualdez vs. RTC(226 SCRA 408) the
Court explained how one acquires a new
domicile by choice. There must concur: (1)
residence or bodily presence in the new locality;
(2) intention to remain there; and (3) intention
to abandon the old domicile. In other words
there must basically be animus
manendi with animus non revertendi. When
respondent chose to stay in Ilocos and later on in
Manila, coupled with her intention to stay there
by registering as a voter there and expressly
declaring that she is a resident of that place, she
is deemed to have abandoned Tacloban City,
where she spent her childhood and school days,
as her place of domicile.
Pure intention to reside in that place is not
sufficient, there must likewise be conduct
indicative of such intention. Respondent's
statements to the effect that she has always
intended to return to Tacloban, without the
accompanying conduct to prove that intention, is
not conclusive of her choice of residence.
Respondent has not presented any evidence to
show that her conduct, one year prior the
election, showed intention to reside in Tacloban.
Worse, what was evident was that prior to her
residence in Tolosa, she had been a resident of
Manila.
It is evident from these circumstances that she
was not a resident of the First District of Leyte
"since childhood."
To further support the assertion that she could
have not been a resident of the First District of
Leyte for more than one year, petitioner
correctly pointed out that on January 28, 1995
respondent registered as a voter at precinct No.
18-A of Olot, Tolosa, Leyte. In doing so, she
placed in her Voter Registration Record that she
resided in the municipality of Tolosa for a period
of six months. This may be inconsequential as
argued by the respondent since it refers only to
her residence in Tolosa, Leyte. But her failure to
prove that she was a resident of the First District
of Leyte prior to her residence in Tolosa leaves
nothing but a convincing proof that she had
been a resident of the district for six months
only.
15

In a Resolution promulgated a day before the May 8, 1995 elections,
the COMELEC en banc denied petitioner's Motion for
Reconsideration
16
of the April 24, 1995 Resolution declaring her not
qualified to run for the position of Member of the House of
Representatives for the First Legislative District of Leyte.
17
The
Resolution tersely stated:
16

After deliberating on the Motion for
Reconsideration, the Commission RESOLVED to
DENY it, no new substantial matters having been
raised therein to warrant re-examination of the
resolution granting the petition for
disqualification.
18

On May 11, 1995, the COMELEC issued a Resolution allowing
petitioner's proclamation should the results of the canvass show
that she obtained the highest number of votes in the congressional
elections in the First District of Leyte. On the same day, however,
the COMELEC reversed itself and issued a second Resolution
directing that the proclamation of petitioner be suspended in the
event that she obtains the highest number of votes.
19

In a Supplemental Petition dated 25 May 1995, petitioner averred
that she was the overwhelming winner of the elections for the
congressional seat in the First District of Leyte held May 8, 1995
based on the canvass completed by the Provincial Board of
Canvassers on May 14, 1995. Petitioner alleged that the canvass
showed that she obtained a total of 70,471 votes compared to the
36,833 votes received by Respondent Montejo. A copy of said
Certificate of Canvass was annexed to the Supplemental Petition.
On account of the Resolutions disqualifying petitioner from running
for the congressional seat of the First District of Leyte and the public
respondent's Resolution suspending her proclamation, petitioner
comes to this court for relief.
Petitioner raises several issues in her Original and Supplemental
Petitions. The principal issues may be classified into two general
areas:
I. The issue of Petitioner's qualifications
Whether or not petitioner was a resident, for
election purposes, of the First District of Leyte
for a period of one year at the time of the May 9,
1995 elections.
II. The Jurisdictional Issue
a) Prior to the elections
Whether or not the COMELEC properly exercised
its jurisdiction in disqualifying petitioner outside
the period mandated by the Omnibus Election
Code for disqualification cases under Article 78
of the said Code.
b) After the Elections
Whether or not the House of Representatives
Electoral Tribunal assumed exclusive jurisdiction
over the question of petitioner's qualifications
after the May 8, 1995 elections.
I. Petitioner's qualification
A perusal of the Resolution of the COMELEC's Second Division
reveals a startling confusion in the application of settled concepts of
"Domicile" and "Residence" in election law. While the COMELEC
seems to be in agreement with the general proposition that for the
purposes of election law, residence is synonymous with domicile,
the Resolution reveals a tendency to substitute or mistake the
concept of domicile for actual residence, a conception not intended
for the purpose of determining a candidate's qualifications for
election to the House of Representatives as required by the 1987
Constitution. As it were, residence, for the purpose of meeting the
qualification for an elective position, has a settled meaning in our
jurisdiction.
Article 50 of the Civil Code decrees that "[f]or the exercise of civil
rights and the fulfillment of civil obligations, the domicile of natural
persons is their place of habitual residence." In Ong
vs. Republic
20
this court took the concept of domicile to mean an
individual's "permanent home", "a place to which, whenever absent
for business or for pleasure, one intends to return, and depends on
facts and circumstances in the sense that they disclose
intent."
21
Based on the foregoing, domicile includes the twin
elements of "the fact of residing or physical presence in a fixed
place" and animus manendi, or the intention of returning there
permanently.
Residence, in its ordinary conception, implies the factual
relationship of an individual to a certain place. It is the physical
presence of a person in a given area, community or country. The
essential distinction between residence and domicile in law is that
residence involves the intent to leave when the purpose for which
the resident has taken up his abode ends. One may seek a place for
purposes such as pleasure, business, or health. If a person's intent
be to remain, it becomes his domicile; if his intent is to leave as soon
as his purpose is established it is residence.
22
It is thus, quite
perfectly normal for an individual to have different residences in
various places. However, a person can only have a single domicile,
unless, for various reasons, he successfully abandons his domicile in
favor of another domicile of choice. In Uytengsu vs. Republic,
23
we
laid this distinction quite clearly:
There is a difference between domicile and
residence. "Residence" is used to indicate a
place of abode, whether permanent or
temporary; "domicile" denotes a fixed
permanent residence to which, when absent,
one has the intention of returning. A man may
have a residence in one place and a domicile in
another. Residence is not domicile, but domicile
is residence coupled with the intention to
remain for an unlimited time. A man can have
but one domicile for the same purpose at any
time, but he may have numerous places of
residence. His place of residence is generally his
place of domicile, but it is not by any means
necessarily so since no length of residence
without intention of remaining will constitute
domicile.
For political purposes the concepts of residence and domicile are
dictated by the peculiar criteria of political laws. As these concepts
have evolved in our election law, what has clearly and unequivocally
17

emerged is the fact that residence for election purposes is used
synonymously with domicile.
In Nuval vs. Guray,
24
the Court held that "the term residence. . . is
synonymous with domicile which imports not only intention to
reside in a fixed place, but also personal presence in that place,
coupled with conduct indicative of such intention."
25
Larena
vs. Teves
26
reiterated the same doctrine in a case involving the
qualifications of the respondent therein to the post of Municipal
President of Dumaguete, Negros Oriental. Faypon vs. Quirino,
27
held
that the absence from residence to pursue studies or practice a
profession or registration as a voter other than in the place where
one is elected does not constitute loss of residence.
28
So settled is
the concept (of domicile) in our election law that in these and other
election law cases, this Court has stated that the mere absence of an
individual from his permanent residence without the intention to
abandon it does not result in a loss or change of domicile.
The deliberations of the 1987 Constitution on the residence
qualification for certain elective positions have placed beyond doubt
the principle that when the Constitution speaks of "residence" in
election law, it actually means only "domicile" to wit:
Mr. Nolledo: With respect to Section 5, I
remember that in the 1971 Constitutional
Convention, there was an attempt to require
residence in the place not less than one year
immediately preceding the day of the elections.
So my question is: What is the Committee's
concept of residence of a candidate for the
legislature? Is it actual residence or is it the
concept of domicile or constructive residence?
Mr. Davide: Madame President, insofar as the
regular members of the National Assembly are
concerned, the proposed section merely
provides, among others, "and a resident
thereof", that is, in the district for a period of not
less than one year preceding the day of the
election. This was in effect lifted from the 1973
Constitution, the interpretation given to it was
domicile.
29

xxx xxx xxx
Mrs. Rosario Braid: The next question is on
Section 7, page 2. I think Commissioner Nolledo
has raised the same point that "resident" has
been interpreted at times as a matter of
intention rather than actual residence.
Mr. De los Reyes: Domicile.
Ms. Rosario Braid: Yes, So, would the gentleman
consider at the proper time to go back to actual
residence rather than mere intention to reside?
Mr. De los Reyes: But we might encounter some
difficulty especially considering that a provision
in the Constitution in the Article on Suffrage says
that Filipinos living abroad may vote as enacted
by law. So, we have to stick to the original
concept that it should be by domicile and not
physical residence.
30

In Co vs. Electoral Tribunal of the House of Representatives,
31
this
Court concluded that the framers of the 1987 Constitution obviously
adhered to the definition given to the term residence in election
law, regarding it as having the same meaning as domicile.
32

In the light of the principles just discussed, has petitioner Imelda
Romualdez Marcos satisfied the residency requirement mandated
by Article VI, Sec. 6 of the 1987 Constitution? Of what significance is
the questioned entry in petitioner's Certificate of Candidacy stating
her residence in the First Legislative District of Leyte as seven (7)
months?
It is the fact of residence, not a statement in a certificate of
candidacy which ought to be decisive in determining whether or not
and individual has satisfied the constitution's residency qualification
requirement. The said statement becomes material only when there
is or appears to be a deliberate attempt to mislead, misinform, or
hide a fact which would otherwise render a candidate ineligible. It
would be plainly ridiculous for a candidate to deliberately and
knowingly make a statement in a certificate of candidacy which
would lead to his or her disqualification.
It stands to reason therefore, that petitioner merely committed an
honest mistake in jotting the word "seven" in the space provided for
the residency qualification requirement. The circumstances leading
to her filing the questioned entry obviously resulted in the
subsequent confusion which prompted petitioner to write down the
period of her actual stay in Tolosa, Leyte instead of her period of
residence in the First district, which was "since childhood" in the
space provided. These circumstances and events are amply detailed
in the COMELEC's Second Division's questioned resolution, albeit
with a different interpretation. For instance, when herein petitioner
announced that she would be registering in Tacloban City to make
her eligible to run in the First District, private respondent Montejo
opposed the same, claiming that petitioner was a resident of Tolosa,
not Tacloban City. Petitioner then registered in her place of actual
residence in the First District, which is Tolosa, Leyte, a fact which she
subsequently noted down in her Certificate of Candidacy. A close
look at said certificate would reveal the possible source of the
confusion: the entry for residence (Item No. 7) is followed
immediately by the entry for residence in the constituency where a
candidate seeks election thus:
7. RESIDENCE (complete Address): Brgy. Olot,
Tolosa, Leyte
POST OFFICE ADDRESS FOR ELECTION
PURPOSES: Brgy. Olot, Tolosa, Leyte
8. RESIDENCE IN THE CONSTITUENCY WHERE I
SEEK TO
BE ELECTED IMMEDIATELY PRECEDING THE
ELECTION:_________ Years and Seven Months.
18

Having been forced by private respondent to register in her place of
actual residence in Leyte instead of petitioner's claimed domicile, it
appears that petitioner had jotted down her period of stay in her
legal residence or domicile. The juxtaposition of entries in Item 7
and Item 8 the first requiring actual residence and the second
requiring domicile coupled with the circumstances surrounding
petitioner's registration as a voter in Tolosa obviously led to her
writing down an unintended entry for which she could be
disqualified. This honest mistake should not, however, be allowed to
negate the fact of residence in the First District if such fact were
established by means more convincing than a mere entry on a piece
of paper.
We now proceed to the matter of petitioner's domicile.
In support of its asseveration that petitioner's domicile could not
possibly be in the First District of Leyte, the Second Division of the
COMELEC, in its assailed Resolution of April 24,1995 maintains that
"except for the time when (petitioner) studied and worked for some
years after graduation in Tacloban City, she continuously lived in
Manila." The Resolution additionally cites certain facts as indicative
of the fact that petitioner's domicile ought to be any place where
she lived in the last few decades except Tacloban, Leyte. First,
according to the Resolution, petitioner, in 1959, resided in San Juan,
Metro Manila where she was also registered voter. Then, in 1965,
following the election of her husband to the Philippine presidency,
she lived in San Miguel, Manila where she as a voter. In 1978 and
thereafter, she served as a member of the Batasang Pambansa and
Governor of Metro Manila. "She could not, have served these
positions if she had not been a resident of Metro Manila," the
COMELEC stressed. Here is where the confusion lies.
We have stated, many times in the past, that an individual does not
lose his domicile even if he has lived and maintained residences in
different places. Residence, it bears repeating, implies a factual
relationship to a given place for various purposes. The absence from
legal residence or domicile to pursue a profession, to study or to do
other things of a temporary or semi-permanent nature does not
constitute loss of residence. Thus, the assertion by the COMELEC
that "she could not have been a resident of Tacloban City since
childhood up to the time she filed her certificate of candidacy
because she became a resident of many places" flies in the face of
settled jurisprudence in which this Court carefully made distinctions
between (actual) residence and domicile for election law purposes.
In Larena vs. Teves,
33
supra, we stressed:
[T]his court is of the opinion and so holds that a
person who has his own house wherein he lives
with his family in a municipality without having
ever had the intention of abandoning it, and
without having lived either alone or with his
family in another municipality, has his residence
in the former municipality, notwithstanding his
having registered as an elector in the other
municipality in question and having been a
candidate for various insular and provincial
positions, stating every time that he is a resident
of the latter municipality.
More significantly, in Faypon vs. Quirino,
34
We explained that:
A citizen may leave the place of his birth to look
for "greener pastures," as the saying goes, to
improve his lot, and that, of course includes
study in other places, practice of his avocation,
or engaging in business. When an election is to
be held, the citizen who left his birthplace to
improve his lot may desire to return to his native
town to cast his ballot but for professional or
business reasons, or for any other reason, he
may not absent himself from his professional or
business activities; so there he registers himself
as voter as he has the qualifications to be one
and is not willing to give up or lose the
opportunity to choose the officials who are to
run the government especially in national
elections. Despite such registration, the animus
revertendi to his home, to his domicile or
residence of origin has not forsaken him. This
may be the explanation why the registration of a
voter in a place other than his residence of origin
has not been deemed sufficient to constitute
abandonment or loss of such residence. It finds
justification in the natural desire and longing of
every person to return to his place of birth. This
strong feeling of attachment to the place of
one's birth must be overcome by positive proof
of abandonment for another.
From the foregoing, it can be concluded that in its above-cited
statements supporting its proposition that petitioner was ineligible
to run for the position of Representative of the First District of Leyte,
the COMELEC was obviously referring to petitioner's various places
of (actual) residence, not her domicile. In doing so, it not only
ignored settled jurisprudence on residence in election law and the
deliberations of the constitutional commission but also the
provisions of the Omnibus Election Code (B.P. 881).
35

What is undeniable, however, are the following set of facts which
establish the fact of petitioner's domicile, which we lift verbatim
from the COMELEC's Second Division's assailed Resolution:
36

In or about 1938 when respondent was a little
over 8 years old, she established her domicile in
Tacloban, Leyte (Tacloban City). She studied in
the Holy Infant Academy in Tacloban from 1938
to 1949 when she graduated from high school.
She pursued her college studies in St. Paul's
College, now Divine Word University in Tacloban,
where she earned her degree in Education.
Thereafter, she taught in the Leyte Chinese
School, still in Tacloban City. In 1952 she went to
Manila to work with her cousin, the late speaker
Daniel Z. Romualdez in his office in the House of
Representatives. In 1954, she married ex-
President Ferdinand E. Marcos when he was still
a congressman of Ilocos Norte and registered
there as a voter. When her husband was elected
Senator of the Republic in 1959, she and her
husband lived together in San Juan, Rizal where
she registered as a voter. In 1965, when her
husband was elected President of the Republic
of the Philippines, she lived with him in
19

Malacanang Palace and registered as a voter in
San Miguel, Manila.
[I]n February 1986 (she claimed that) she and
her family were abducted and kidnapped to
Honolulu, Hawaii. In November 1991, she came
home to Manila. In 1992, respondent ran for
election as President of the Philippines and filed
her Certificate of Candidacy wherein she
indicated that she is a resident and registered
voter of San Juan, Metro Manila.
Applying the principles discussed to the facts found by COMELEC,
what is inescapable is that petitioner held various residences for
different purposes during the last four decades. None of these
purposes unequivocally point to an intention to abandon her
domicile of origin in Tacloban, Leyte. Moreover, while petitioner was
born in Manila, as a minor she naturally followed the domicile of her
parents. She grew up in Tacloban, reached her adulthood there and
eventually established residence in different parts of the country for
various reasons. Even during her husband's presidency, at the height
of the Marcos Regime's powers, petitioner kept her close ties to her
domicile of origin by establishing residences in Tacloban, celebrating
her birthdays and other important personal milestones in her home
province, instituting well-publicized projects for the benefit of her
province and hometown, and establishing a political power base
where her siblings and close relatives held positions of power either
through the ballot or by appointment, always with either her
influence or consent. These well-publicized ties to her domicile of
origin are part of the history and lore of the quarter century of
Marcos power in our country. Either they were entirely ignored in
the COMELEC'S Resolutions, or the majority of the COMELEC did not
know what the rest of the country always knew: the fact of
petitioner's domicile in Tacloban, Leyte.
Private respondent in his Comment, contends that Tacloban was not
petitioner's domicile of origin because she did not live there until
she was eight years old. He avers that after leaving the place in
1952, she "abandoned her residency (sic) therein for many years and
. . . (could not) re-establish her domicile in said place by merely
expressing her intention to live there again." We do not agree.
First, minor follows the domicile of his parents. As domicile, once
acquired is retained until a new one is gained, it follows that in spite
of the fact of petitioner's being born in Manila, Tacloban, Leyte was
her domicile of origin by operation of law. This domicile was not
established only when her father brought his family back to Leyte
contrary to private respondent's averments.
Second, domicile of origin is not easily lost. To successfully effect a
change of domicile, one must demonstrate:
37

1. An actual removal or an actual change of
domicile;
2. A bona fide intention of abandoning the
former place of residence and establishing a new
one; and
3. Acts which correspond with the purpose.
In the absence of clear and positive proof based on these criteria,
the residence of origin should be deemed to continue. Only with
evidence showing concurrence of all three requirements can the
presumption of continuity or residence be rebutted, for a change of
residence requires an actual and deliberate abandonment, and one
cannot have two legal residences at the same time.
38
In the case at
bench, the evidence adduced by private respondent plainly lacks the
degree of persuasiveness required to convince this court that an
abandonment of domicile of origin in favor of a domicile of choice
indeed occurred. To effect an abandonment requires the voluntary
act of relinquishing petitioner's former domicile with an intent to
supplant the former domicile with one of her own choosing
(domicilium voluntarium).
In this connection, it cannot be correctly argued that petitioner lost
her domicile of origin by operation of law as a result of her marriage
to the late President Ferdinand E. Marcos in 1952. For there is a
clearly established distinction between the Civil Code concepts of
"domicile" and "residence."
39
The presumption that the wife
automatically gains the husband's domicile by operation of law upon
marriage cannot be inferred from the use of the term "residence" in
Article 110 of the Civil Code because the Civil Code is one area
where the two concepts are well delineated. Dr. Arturo Tolentino,
writing on this specific area explains:
In the Civil Code, there is an obvious difference
between domicile and residence. Both terms
imply relations between a person and a place;
but in residence, the relation is one of fact while
in domicile it is legal or juridical, independent of
the necessity of physical presence.
40

Article 110 of the Civil Code provides:
Art. 110. The husband shall fix the residence
of the family. But the court may exempt the wife
from living with the husband if he should live
abroad unless in the service of the Republic.
A survey of jurisprudence relating to Article 110 or to the concepts
of domicile or residence as they affect the female spouse upon
marriage yields nothing which would suggest that the female spouse
automatically loses her domicile of origin in favor of the husband's
choice of residence upon marriage.
Article 110 is a virtual restatement of Article 58 of the Spanish Civil
Code of 1889 which states:
La mujer esta obligada a seguir a su marido
donde quiera que fije su residencia. Los
Tribunales, sin embargo, podran con justa causa
eximirla de esta obligacion cuando el marido
transende su residencia a ultramar o' a pais
extranjero.
Note the use of the phrase "donde quiera su fije de residencia" in the
aforequoted article, which means wherever (the husband) wishes to
establish residence. This part of the article clearly contemplates only
actual residence because it refers to a positive act of fixing a family
home or residence. Moreover, this interpretation is further
20

strengthened by the phrase "cuando el marido translade su
residencia" in the same provision which means, "when the
husband shall transfer his residence," referring to another positive
act of relocating the family to another home or place of actual
residence. The article obviously cannot be understood to refer to
domicile which is a fixed,
fairly-permanent concept when it plainly connotes the possibility of
transferring from one place to another not only once, but as often as
the husband may deem fit to move his family, a circumstance more
consistent with the concept of actual residence.
The right of the husband to fix the actual residence is in harmony
with the intention of the law to strengthen and unify the family,
recognizing the fact that the husband and the wife bring into the
marriage different domiciles (of origin). This difference could, for the
sake of family unity, be reconciled only by allowing the husband to
fix a single place of actual residence.
Very significantly, Article 110 of the Civil Code is found under Title V
under the heading: RIGHTS AND OBLIGATIONS BETWEEN HUSBAND
AND WIFE. Immediately preceding Article 110 is Article 109 which
obliges the husband and wife to live together, thus:
Art. 109. The husband and wife are obligated
to live together, observe mutual respect and
fidelity and render mutual help and support.
The duty to live together can only be fulfilled if the husband and
wife are physically together. This takes into account the situations
where the couple has many residences (as in the case of the
petitioner). If the husband has to stay in or transfer to any one of
their residences, the wife should necessarily be with him in order
that they may "live together." Hence, it is illogical to conclude that
Art. 110 refers to "domicile" and not to "residence." Otherwise, we
shall be faced with a situation where the wife is left in the domicile
while the husband, for professional or other reasons, stays in one of
their (various) residences. As Dr. Tolentino further explains:
Residence and Domicile Whether the word
"residence" as used with reference to particular
matters is synonymous with "domicile" is a
question of some difficulty, and the ultimate
decision must be made from a consideration of
the purpose and intent with which the word is
used. Sometimes they are used synonymously,
at other times they are distinguished from one
another.
xxx xxx xxx
Residence in the civil law is a material fact,
referring to the physical presence of a person in
a place. A person can have two or more
residences, such as a country residence and a
city residence. Residence is acquired by living in
place; on the other hand, domicile can exist
without actually living in the place. The
important thing for domicile is that, once
residence has been established in one place,
there be an intention to stay there permanently,
even if residence is also established in some
other
place.
41

In fact, even the matter of a common residence between the
husband and the wife during the marriage is not an iron-clad
principle; In cases applying the Civil Code on the question of a
common matrimonial residence, our jurisprudence has recognized
certain situations
42
where the spouses could not be compelled to
live with each other such that the wife is either allowed to maintain
a residence different from that of her husband or, for obviously
practical reasons, revert to her original domicile (apart from being
allowed to opt for a new one). In De la Vina vs. Villareal
43
this Court
held that "[a] married woman may acquire a residence or domicile
separate from that of her husband during the existence of the
marriage where the husband has given cause for divorce."
44
Note
that the Court allowed the wife either to obtain new residence or to
choose a new domicile in such an event. In instances where the wife
actually opts, .under the Civil Code, to live separately from her
husband either by taking new residence or reverting to her domicile
of origin, the Court has held that the wife could not be compelled to
live with her husband on pain of contempt. In Arroyo vs. Vasques de
Arroyo
45
the Court held that:
Upon examination of the authorities, we are
convinced that it is not within the province of
the courts of this country to attempt to compel
one of the spouses to cohabit with, and render
conjugal rights to, the other. Of course where
the property rights of one of the pair are
invaded, an action for restitution of such rights
can be maintained. But we are disinclined to
sanction the doctrine that an order, enforcible
(sic) by process of contempt, may be entered to
compel the restitution of the purely personal
right of consortium. At best such an order can be
effective for no other purpose than to compel
the spouses to live under the same roof; and he
experience of those countries where the courts
of justice have assumed to compel the
cohabitation of married people shows that the
policy of the practice is extremely questionable.
Thus in England, formerly the Ecclesiastical Court
entertained suits for the restitution of conjugal
rights at the instance of either husband or wife;
and if the facts were found to warrant it, that
court would make a mandatory decree,
enforceable by process of contempt in case of
disobedience, requiring the delinquent party to
live with the other and render conjugal rights.
Yet this practice was sometimes criticized even
by the judges who felt bound to enforce such
orders, and in Weldon v. Weldon (9 P.D. 52),
decided in 1883, Sir James Hannen, President in
the Probate, Divorce and Admiralty Division of
the High Court of Justice, expressed his regret
that the English law on the subject was not the
same as that which prevailed in Scotland, where
a decree of adherence, equivalent to the decree
for the restitution of conjugal rights in England,
could be obtained by the injured spouse, but
could not be enforced by imprisonment.
Accordingly, in obedience to the growing
21

sentiment against the practice, the Matrimonial
Causes Act (1884) abolished the remedy of
imprisonment; though a decree for the
restitution of conjugal rights can still be
procured, and in case of disobedience may serve
in appropriate cases as the basis of an order for
the periodical payment of a stipend in the
character of alimony.
In the voluminous jurisprudence of the United
States, only one court, so far as we can discover,
has ever attempted to make a preemptory order
requiring one of the spouses to live with the
other; and that was in a case where a wife was
ordered to follow and live with her husband,
who had changed his domicile to the City of New
Orleans. The decision referred to (Bahn v. Darby,
36 La. Ann., 70) was based on a provision of the
Civil Code of Louisiana similar to article 56 of the
Spanish Civil Code. It was decided many years
ago, and the doctrine evidently has not been
fruitful even in the State of Louisiana. In other
states of the American Union the idea of
enforcing cohabitation by process of contempt is
rejected. (21 Cyc., 1148).
In a decision of January 2, 1909, the Supreme
Court of Spain appears to have affirmed an order
of the Audiencia Territorial de Valladolid
requiring a wife to return to the marital
domicile, and in the alternative, upon her failure
to do so, to make a particular disposition of
certain money and effects then in her possession
and to deliver to her husband, as administrator
of the ganancial property, all income, rents, and
interest which might accrue to her from the
property which she had brought to the marriage.
(113 Jur. Civ., pp. 1, 11) But it does not appear
that this order for the return of the wife to the
marital domicile was sanctioned by any other
penalty than the consequences that would be
visited upon her in respect to the use and
control of her property; and it does not appear
that her disobedience to that order would
necessarily have been followed by imprisonment
for contempt.
Parenthetically when Petitioner was married to then Congressman
Marcos, in 1954, petitioner was obliged by virtue of Article 110 of
the Civil Code to follow her husband's actual place of residence
fixed by him. The problem here is that at that time, Mr. Marcos had
several places of residence, among which were San Juan, Rizal and
Batac, Ilocos Norte. There is no showing which of these places Mr.
Marcos did fix as his family's residence. But assuming that Mr.
Marcos had fixed any of these places as the conjugal residence, what
petitioner gained upon marriage was actual residence. She did not
lose her domicile of origin.
On the other hand, the common law concept of "matrimonial
domicile" appears to have been incorporated, as a result of our
jurisprudential experiences after the drafting of the Civil Code of
1950, into the New Family Code. To underscore the difference
between the intentions of the Civil Code and the Family Code
drafters, the term residence has been supplanted by the term
domicile in an entirely new provision (Art. 69) distinctly different in
meaning and spirit from that found in Article 110. The provision
recognizes revolutionary changes in the concept of women's rights
in the intervening years by making the choice of domicile a product
of mutual agreement between the spouses.
46

Without as much belaboring the point, the term residence may
mean one thing in civil law (or under the Civil Code) and quite
another thing in political law. What stands clear is that insofar as the
Civil Code is concerned-affecting the rights and obligations of
husband and wife the term residence should only be interpreted
to mean "actual residence." The inescapable conclusion derived
from this unambiguous civil law delineation therefore, is that when
petitioner married the former President in 1954, she kept her
domicile of origin and merely gained a new home, not a domicilium
necessarium.
Even assuming for the sake of argument that petitioner gained a
new "domicile" after her marriage and only acquired a right to
choose a new one after her husband died, petitioner's acts following
her return to the country clearly indicate that she not only impliedly
but expressly chose her domicile of origin (assuming this was lost by
operation of law) as her domicile. This "choice" was unequivocally
expressed in her letters to the Chairman of the PCGG when
petitioner sought the PCGG's permission to "rehabilitate (our)
ancestral house in Tacloban and Farm in Olot, Leyte. . . to make
them livable for the Marcos family to have a home in our
homeland."
47
Furthermore, petitioner obtained her residence
certificate in 1992 in Tacloban, Leyte, while living in her brother's
house, an act which supports the domiciliary intention clearly
manifested in her letters to the PCGG Chairman. She could not have
gone straight to her home in San Juan, as it was in a state of
disrepair, having been previously looted by vandals. Her "homes"
and "residences" following her arrival in various parts of Metro
Manila merely qualified as temporary or "actual residences," not
domicile. Moreover, and proceeding from our discussion pointing
out specific situations where the female spouse either reverts to her
domicile of origin or chooses a new one during the subsistence of
the marriage, it would be highly illogical for us to assume that she
cannot regain her original domicile upon the death of her husband
absent a positive act of selecting a new one where situations exist
within the subsistence of the marriage itself where the wife gains a
domicile different from her husband.
In the light of all the principles relating to residence and domicile
enunciated by this court up to this point, we are persuaded that the
facts established by the parties weigh heavily in favor of a conclusion
supporting petitioner's claim of legal residence or domicile in the
First District of Leyte.
II. The jurisdictional issue
Petitioner alleges that the jurisdiction of the COMELEC had already
lapsed considering that the assailed resolutions were rendered on
April 24, 1995, fourteen (14) days before the election in violation of
Section 78 of the Omnibus Election Code.
48
Moreover, petitioner
contends that it is the House of Representatives Electoral Tribunal
and not the COMELEC which has jurisdiction over the election of
22

members of the House of Representatives in accordance with Article
VI Sec. 17 of the Constitution. This is untenable.
It is a settled doctrine that a statute requiring rendition of judgment
within a specified time is generally construed to be merely
directory,
49
"so that non-compliance with them does not invalidate
the judgment on the theory that if the statute had intended such
result it would have clearly indicated it."
50
The difference between a
mandatory and a directory provision is often made on grounds of
necessity. Adopting the same view held by several American
authorities, this court in Marcelino vs. Cruz held that:
51

The difference between a mandatory and
directory provision is often determined on
grounds of expediency, the reason being that
less injury results to the general public by
disregarding than enforcing the letter of the law.
In Trapp v. Mc Cormick, a case calling for the
interpretation of a statute containing a limitation
of thirty (30) days within which a decree may be
entered without the consent of counsel, it was
held that "the statutory provisions which may be
thus departed from with impunity, without
affecting the validity of statutory proceedings,
are usually those which relate to the mode or
time of doing that which is essential to effect the
aim and purpose of the Legislature or some
incident of the essential act." Thus, in said case,
the statute under examination was construed
merely to be directory.
The mischief in petitioner's contending that the COMELEC should
have abstained from rendering a decision after the period stated in
the Omnibus Election Code because it lacked jurisdiction, lies in the
fact that our courts and other quasi-judicial bodies would then
refuse to render judgments merely on the ground of having failed to
reach a decision within a given or prescribed period.
In any event, with the enactment of Sections 6 and 7 of R.A. 6646 in
relation to Section 78 of B.P. 881,
52
it is evident that the respondent
Commission does not lose jurisdiction to hear and decide a pending
disqualification case under Section 78 of B.P. 881 even after the
elections.
As to the House of Representatives Electoral Tribunal's supposed
assumption of jurisdiction over the issue of petitioner's
qualifications after the May 8, 1995 elections, suffice it to say that
HRET's jurisdiction as the sole judge of all contests relating to the
elections, returns and qualifications of members of Congress begins
only after a candidate has become a member of the House of
Representatives.
53
Petitioner not being a member of the House of
Representatives, it is obvious that the HRET at this point has no
jurisdiction over the question.
It would be an abdication of many of the ideals enshrined in the
1987 Constitution for us to either to ignore or deliberately make
distinctions in law solely on the basis of the personality of a
petitioner in a case. Obviously a distinction was made on such a
ground here. Surely, many established principles of law, even of
election laws were flouted for the sake perpetuating power during
the pre-EDSA regime. We renege on these sacred ideals, including
the meaning and spirit of EDSA ourselves bending established
principles of principles of law to deny an individual what he or she
justly deserves in law. Moreover, in doing so, we condemn ourselves
to repeat the mistakes of the past.
WHEREFORE, having determined that petitioner possesses the
necessary residence qualifications to run for a seat in the House of
Representatives in the First District of Leyte, the COMELEC's
questioned Resolutions dated April 24, May 7, May 11, and May 25,
1995 are hereby SET ASIDE. Respondent COMELEC is hereby
directed to order the Provincial Board of Canvassers to proclaim
petitioner as the duly elected Representative of the First District of
Leyte.
SO ORDERED.
Feliciano, J., is on leave.

























23

SECOND DIVISION
[G.R. No. 145226. February 06, 2004]
LUCIO MORIGO y CACHO, petitioner, vs. PEOPLE OF THE
PHILIPPINES, respondent.
D E C I S I O N
QUISUMBING, J.:
This petition for review on certiorari seeks to reverse the
decision
[1]
dated October 21, 1999 of the Court of Appeals in CA-G.R.
CR No. 20700, which affirmed the judgment
[2]
dated August 5, 1996
of the Regional Trial Court (RTC) of Bohol, Branch 4, in Criminal Case
No. 8688. The trial court found herein petitioner Lucio Morigo y
Cacho guilty beyond reasonable doubt of bigamy and sentenced him
to a prison term of seven (7) months of prision correccional as
minimum to six (6) years and one (1) day of prision mayor as
maximum. Also assailed in this petition is the resolution
[3]
of the
appellate court, dated September 25, 2000, denying Morigos
motion for reconsideration.
The facts of this case, as found by the court a quo, are as
follows:
Appellant Lucio Morigo and Lucia Barrete were boardmates at the
house of Catalina Tortor at Tagbilaran City, Province of Bohol, for a
period of four (4) years (from 1974-1978).
After school year 1977-78, Lucio Morigo and Lucia Barrete lost
contact with each other.
In 1984, Lucio Morigo was surprised to receive a card from Lucia
Barrete from Singapore. The former replied and after an exchange of
letters, they became sweethearts.
In 1986, Lucia returned to the Philippines but left again for Canada
to work there. While in Canada, they maintained constant
communication.
In 1990, Lucia came back to the Philippines and proposed to petition
appellant to join her in Canada. Both agreed to get married, thus
they were married on August 30, 1990 at the Iglesia de Filipina
Nacional at Catagdaan, Pilar, Bohol.
On September 8, 1990, Lucia reported back to her work in Canada
leaving appellant Lucio behind.
On August 19, 1991, Lucia filed with the Ontario Court (General
Division) a petition for divorce against appellant which was granted
by the court on January 17, 1992 and to take effect on February 17,
1992.
On October 4, 1992, appellant Lucio Morigo married Maria Jececha
Lumbago
[4]
at the Virgen sa Barangay Parish, Tagbilaran City, Bohol.
On September 21, 1993, accused filed a complaint for judicial
declaration of nullity of marriage in the Regional Trial Court of
Bohol, docketed as Civil Case No. 6020. The complaint seek (sic)
among others, the declaration of nullity of accuseds marriage with
Lucia, on the ground that no marriage ceremony actually took place.
On October 19, 1993, appellant was charged with Bigamy in an
Information
[5]
filed by the City Prosecutor of Tagbilaran [City], with
the Regional Trial Court of Bohol.
[6]

The petitioner moved for suspension of the arraignment on
the ground that the civil case for judicial nullification of his marriage
with Lucia posed a prejudicial question in the bigamy case. His
motion was granted, but subsequently denied upon motion for
reconsideration by the prosecution. When arraigned in the bigamy
case, which was docketed as Criminal Case No. 8688, herein
petitioner pleaded not guilty to the charge. Trial thereafter ensued.
On August 5, 1996, the RTC of Bohol handed down its
judgment in Criminal Case No. 8688, as follows:
WHEREFORE, foregoing premises considered, the Court finds
accused Lucio Morigo y Cacho guilty beyond reasonable doubt of the
crime of Bigamy and sentences him to suffer the penalty of
imprisonment ranging from Seven (7) Months of Prision
Correccional as minimum to Six (6) Years and One (1) Day of Prision
Mayor as maximum.
SO ORDERED.
[7]

In convicting herein petitioner, the trial court discounted
petitioners claim that his first marriage to Lucia was null and
void ab initio. Following Domingo v. Court of Appeals,
[8]
the trial
court ruled that want of a valid marriage ceremony is not a defense
in a charge of bigamy. The parties to a marriage should not be
allowed to assume that their marriage is void even if such be the fact
but must first secure a judicial declaration of the nullity of their
marriage before they can be allowed to marry again.
Anent the Canadian divorce obtained by Lucia, the trial court
cited Ramirez v. Gmur,
[9]
which held that the court of a country in
which neither of the spouses is domiciled and in which one or both
spouses may resort merely for the purpose of obtaining a divorce,
has no jurisdiction to determine the matrimonial status of the
parties. As such, a divorce granted by said court is not entitled to
recognition anywhere. Debunking Lucios defense of good faith in
contracting the second marriage, the trial court stressed that
following People v. Bitdu,
[10]
everyone is presumed to know the law,
and the fact that one does not know that his act constitutes a
violation of the law does not exempt him from the consequences
thereof.
Seasonably, petitioner filed an appeal with the Court of
Appeals, docketed as CA-G.R. CR No. 20700.
Meanwhile, on October 23, 1997, or while CA-G.R. CR No.
20700 was pending before the appellate court, the trial court
rendered a decision in Civil Case No. 6020 declaring the marriage
between Lucio and Lucia void ab initio since no marriage ceremony
actually took place. No appeal was taken from this decision, which
then became final and executory.
24

On October 21, 1999, the appellate court decided CA-G.R. CR
No. 20700 as follows:
WHEREFORE, finding no error in the appealed decision, the same is
hereby AFFIRMED in toto.
SO ORDERED.
[11]

In affirming the assailed judgment of conviction, the appellate
court stressed that the subsequent declaration of nullity of Lucios
marriage to Lucia in Civil Case No. 6020 could not acquit Lucio. The
reason is that what is sought to be punished by Article 349
[12]
of the
Revised Penal Code is the act of contracting a second marriage
before the first marriage had been dissolved. Hence, the CA held,
the fact that the first marriage was void from the beginning is not a
valid defense in a bigamy case.
The Court of Appeals also pointed out that the divorce decree
obtained by Lucia from the Canadian court could not be accorded
validity in the Philippines, pursuant to Article 15
[13]
of the Civil Code
and given the fact that it is contrary to public policy in this
jurisdiction. Under Article 17
[14]
of the Civil Code, a declaration of
public policy cannot be rendered ineffectual by a judgment
promulgated in a foreign jurisdiction.
Petitioner moved for reconsideration of the appellate courts
decision, contending that the doctrine in Mendiola v.
People,
[15]
allows mistake upon a difficult question of law (such as
the effect of a foreign divorce decree) to be a basis for good faith.
On September 25, 2000, the appellate court denied the
motion for lack of merit.
[16]
However, the denial was by a split vote.
The ponente of the appellate courts original decision in CA-G.R. CR
No. 20700, Justice Eugenio S. Labitoria, joined in the opinion
prepared by Justice Bernardo P. Abesamis. The dissent observed
that as the first marriage was validly declared void ab initio, then
there was no first marriage to speak of. Since the date of the nullity
retroacts to the date of the first marriage and since herein petitioner
was, in the eyes of the law, never married, he cannot be convicted
beyond reasonable doubt of bigamy.
The present petition raises the following issues for our
resolution:
A.
WHETHER OR NOT THE COURT OF APPEALS ERRED IN FAILING TO
APPLY THE RULE THAT IN CRIMES PENALIZED UNDER THE REVISED
PENAL CODE, CRIMINAL INTENT IS AN INDISPENSABLE REQUISITE.
COROLLARILY, WHETHER OR NOT THE COURT OF APPEALS ERRED IN
FAILING TO APPRECIATE *THE+ PETITIONERS LACK OF CRIMINAL
INTENT WHEN HE CONTRACTED THE SECOND MARRIAGE.
B.
WHETHER OR NOT THE COURT OF APPEALS ERRED IN HOLDING THAT
THE RULING IN PEOPLE VS. BITDU (58 PHIL. 817) IS APPLICABLE TO
THE CASE AT BAR.
C.
WHETHER OR NOT THE COURT OF APPEALS ERRED IN FAILING TO
APPLY THE RULE THAT EACH AND EVERY CIRCUMSTANCE FAVORING
THE INNOCENCE OF THE ACCUSED MUST BE TAKEN INTO
ACCOUNT.
[17]

To our mind, the primordial issue should be whether or not
petitioner committed bigamy and if so, whether his defense of good
faith is valid.
The petitioner submits that he should not be faulted for
relying in good faith upon the divorce decree of the Ontario court.
He highlights the fact that he contracted the second marriage openly
and publicly, which a person intent upon bigamy would not be
doing. The petitioner further argues that his lack of criminal intent is
material to a conviction or acquittal in the instant case. The crime of
bigamy, just like other felonies punished under the Revised Penal
Code, is mala in se, and hence, good faith and lack of criminal intent
are allowed as a complete defense. He stresses that there is a
difference between the intent to commit the crime and the intent to
perpetrate the act. Hence, it does not necessarily follow that his
intention to contract a second marriage is tantamount to an intent
to commit bigamy.
For the respondent, the Office of the Solicitor General (OSG)
submits that good faith in the instant case is a convenient but flimsy
excuse. The Solicitor General relies upon our ruling in Marbella-
Bobis v. Bobis,
[18]
which held that bigamy can be successfully
prosecuted provided all the elements concur, stressing that under
Article 40
[19]
of the Family Code, a judicial declaration of nullity is a
must before a party may re-marry. Whether or not the petitioner
was aware of said Article 40 is of no account as everyone is
presumed to know the law. The OSG counters that petitioners
contention that he was in good faith because he relied on the
divorce decree of the Ontario court is negated by his act of filing Civil
Case No. 6020, seeking a judicial declaration of nullity of his
marriage to Lucia.
Before we delve into petitioners defense of good faith and
lack of criminal intent, we must first determine whether all the
elements of bigamy are present in this case. In Marbella-Bobis v.
Bobis,
[20]
we laid down the elements of bigamy thus:
(1) the offender has been legally married;
(2) the first marriage has not been legally dissolved, or in
case his or her spouse is absent, the absent spouse has
not been judicially declared presumptively dead;
(3) he contracts a subsequent marriage; and
(4) the subsequent marriage would have been valid had it
not been for the existence of the first.
Applying the foregoing test to the instant case, we note that
during the pendency of CA-G.R. CR No. 20700, the RTC of Bohol
Branch 1, handed down the following decision in Civil Case No. 6020,
to wit:
WHEREFORE, premises considered, judgment is hereby rendered
decreeing the annulment of the marriage entered into by petitioner
Lucio Morigo and Lucia Barrete on August 23, 1990 in Pilar, Bohol
25

and further directing the Local Civil Registrar of Pilar, Bohol to effect
the cancellation of the marriage contract.
SO ORDERED.
[21]

The trial court found that there was no actual marriage
ceremony performed between Lucio and Lucia by a solemnizing
officer. Instead, what transpired was a mere signing of the marriage
contract by the two, without the presence of a solemnizing officer.
The trial court thus held that the marriage is void ab initio, in
accordance with Articles 3
[22]
and 4
[23]
of the Family Code. As the
dissenting opinion in CA-G.R. CR No. 20700, correctly puts it, This
simply means that there was no marriage to begin with; and that
such declaration of nullity retroacts to the date of the first marriage.
In other words, for all intents and purposes, reckoned from the date
of the declaration of the first marriage as void ab initio to the date of
the celebration of the first marriage, the accused was, under the
eyes of the law, never married.
[24]
The records show that no appeal
was taken from the decision of the trial court in Civil Case No. 6020,
hence, the decision had long become final and executory.
The first element of bigamy as a crime requires that the
accused must have been legally married. But in this case, legally
speaking, the petitioner was never married to Lucia Barrete. Thus,
there is no first marriage to speak of. Under the principle of
retroactivity of a marriage being declared void ab initio, the two
were never married from the beginning. The contract of marriage
is null; it bears no legal effect. Taking this argument to its logical
conclusion, for legal purposes, petitioner was not married to Lucia at
the time he contracted the marriage with Maria Jececha. The
existence and the validity of the first marriage being an essential
element of the crime of bigamy, it is but logical that a conviction for
said offense cannot be sustained where there is no first marriage to
speak of. The petitioner, must, perforce be acquitted of the instant
charge.
The present case is analogous to, but must be distinguished
from Mercado v. Tan.
[25]
In the latter case, the judicial declaration of
nullity of the first marriage was likewise obtained after the second
marriage was already celebrated. We held therein that:
A judicial declaration of nullity of a previous marriage is necessary
before a subsequent one can be legally contracted. One who enters
into a subsequent marriage without first obtaining such judicial
declaration is guilty of bigamy. This principle applies even if the
earlier union is characterized by statutes as void.
[26]

It bears stressing though that in Mercado, the first marriage
was actually solemnized not just once, but twice: first before a judge
where a marriage certificate was duly issued and then again six
months later before a priest in religious rites. Ostensibly, at least,
the first marriage appeared to have transpired, although later
declared void ab initio.
In the instant case, however, no marriage ceremony at all was
performed by a duly authorized solemnizing officer. Petitioner and
Lucia Barrete merely signed a marriage contract on their own. The
mere private act of signing a marriage contract bears no semblance
to a valid marriage and thus, needs no judicial declaration of nullity.
Such act alone, without more, cannot be deemed to constitute an
ostensibly valid marriage for which petitioner might be held liable
for bigamy unless he first secures a judicial declaration of nullity
before he contracts a subsequent marriage.
The law abhors an injustice and the Court is mandated to
liberally construe a penal statute in favor of an accused and weigh
every circumstance in favor of the presumption of innocence to
ensure that justice is done. Under the circumstances of the present
case, we held that petitioner has not committed bigamy. Further,
we also find that we need not tarry on the issue of the validity of his
defense of good faith or lack of criminal intent, which is now moot
and academic.
WHEREFORE, the instant petition is GRANTED. The assailed
decision, dated October 21, 1999 of the Court of Appeals in CA-G.R.
CR No. 20700, as well as the resolution of the appellate court dated
September 25, 2000, denying herein petitioners motion for
reconsideration, is REVERSED and SET ASIDE. The petitioner Lucio
Morigo y Cacho is ACQUITTED from the charge of BIGAMY on the
ground that his guilt has not been proven with moral certainty.
SO ORDERED.
Puno, (Chairman), Austria-Martinez, Callejo, Sr., and Tinga,
JJ., concur.


















26

























































27

FIRST DIVISION
[G.R. No. 133778. March 14, 2000]
ENGRACE NIAL for Herself and as Guardian ad Litem of the
minors BABYLINE NIAL, INGRID NIAL, ARCHIE NIAL & PEPITO
NIAL, JR., petitioners, vs. NORMA
BAYADOG, respondent. Ncmmis
D E C I S I O N
YNARES_SANTIAGO, J.:
May the heirs of a deceased person file a petition for the declaration
of nullity of his marriage after his death?
Pepito Nial was married to Teodulfa Bellones on September 26,
1974. Out of their marriage were born herein petitioners. Teodulfa
was shot by Pepito resulting in her death on April 24, 1985. One year
and 8 months thereafter or on December 11, 1986, Pepito and
respondent Norma Badayog got married without any marriage
license. In lieu thereof, Pepito and Norma executed an affidavit
dated December 11, 1986 stating that they had lived together as
husband and wife for at least five years and were thus exempt from
securing a marriage license. On February 19, 1997, Pepito died in a
car accident. After their fathers death, petitioners filed a petition
for declaration of nullity of the marriage of Pepito to Norma alleging
that the said marriage was void for lack of a marriage license. The
case was filed under the assumption that the validity or invalidity of
the second marriage would affect petitioners successional rights.
Norma filed a motion to dismiss on the ground that petitioners have
no cause of action since they are not among the persons who could
file an action for "annulment of marriage" under Article 47 of the
Family Code.
Judge Ferdinand J. Marcos of the Regional Trial Court of Toledo City,
Cebu, Branch 59, dismissed the petition after finding that the Family
Code is "rather silent, obscure, insufficient" to resolve the following
issues:
(1) Whether or not plaintiffs have a cause of
action against defendant in asking for the
declaration of the nullity of marriage of their
deceased father, Pepito G. Nial, with her
specially so when at the time of the filing of this
instant suit, their father Pepito G. Nial is
already dead;
(2) Whether or not the second marriage of
plaintiffs deceased father with defendant is null
and void ab initio;
(3) Whether or not plaintiffs are estopped from
assailing the validity of the second marriage after
it was dissolved due to their fathers death.
[1]

Thus, the lower court ruled that petitioners should have filed the
action to declare null and void their fathers marriage to respondent
before his death, applying by analogy Article 47 of the Family Code
which enumerates the time and the persons who could initiate an
action for annulment of marriage.
[2]
Hence, this petition for review
with this Court grounded on a pure question of law. Scnc m
This petition was originally dismissed for non-compliance with
Section 11, Rule 13 of the 1997 Rules of Civil Procedure, and
because "the verification failed to state the basis of petitioners
averment that the allegations in the petition are true and correct."
It was thus treated as an unsigned pleading which produces no legal
effect under Section 3, Rule 7, of the 1997 Rules.
[3]
However, upon
motion of petitioners, this Court reconsidered the dismissal and
reinstated the petition for review.
[4]

The two marriages involved herein having been solemnized prior to
the effectivity of the Family Code (FC), the applicable law to
determine their validity is the Civil Code which was the law in effect
at the time of their celebration.
[5]
A valid marriage license is a
requisite of marriage under Article 53 of the Civil Code,
[6]
the
absence of which renders the marriage void ab initio pursuant to
Article 80(3)
[7]
in relation to Article 58.
[8]
The requirement and
issuance of marriage license is the States demonstration of its
involvement and participation in every marriage, in the maintenance
of which the general public is interested.
[9]
This interest proceeds
from the constitutional mandate that the State recognizes the
sanctity of family life and of affording protection to the family as a
basic "autonomous social institution."
[10]
Specifically, the
Constitution considers marriage as an "inviolable social institution,"
and is the foundation of family life which shall be protected by the
State.
[11]
This is why the Family Code considers marriage as "a
special contract of permanent union"
[12]
and case law considers it
"not just an adventure but a lifetime commitment."
[13]

However, there are several instances recognized by the Civil Code
wherein a marriage license is dispensed with, one of which is that
provided in Article 76,
[14]
referring to the marriage of a man and a
woman who have lived together and exclusively with each other as
husband and wife for a continuous and unbroken period of at least
five years before the marriage. The rationale why no license is
required in such case is to avoid exposing the parties to humiliation,
shame and embarrassment concomitant with the scandalous
cohabitation of persons outside a valid marriage due to the
publication of every applicants name for a marriage license. The
publicity attending the marriage license may discourage such
persons from legitimizing their status.
[15]
To preserve peace in the
family, avoid the peeping and suspicious eye of public exposure and
contain the source of gossip arising from the publication of their
names, the law deemed it wise to preserve their privacy and exempt
them from that requirement. Sdaa miso
There is no dispute that the marriage of petitioners father to
respondent Norma was celebrated without any marriage license. In
lieu thereof, they executed an affidavit stating that "they have
attained the age of majority, and, being unmarried, have lived
together as husband and wife for at least five years, and that we
now desire to marry each other."
[16]
The only issue that needs to be
resolved pertains to what nature of cohabitation is contemplated
under Article 76 of the Civil Code to warrant the counting of the five
year period in order to exempt the future spouses from securing a
marriage license. Should it be a cohabitation wherein both parties
are capacitated to marry each other during the entire five-year
continuous period or should it be a cohabitation wherein both
parties have lived together and exclusively with each other as
28

husband and wife during the entire five-year continuous period
regardless of whether there is a legal impediment to their being
lawfully married, which impediment may have either disappeared or
intervened sometime during the cohabitation period?
Working on the assumption that Pepito and Norma have lived
together as husband and wife for five years without the benefit of
marriage, that five-year period should be computed on the basis of a
cohabitation as "husband and wife" where the only missing factor is
the special contract of marriage to validate the union. In other
words, the five-year common-law cohabitation period, which is
counted back from the date of celebration of marriage, should be a
period of legal union had it not been for the absence of the
marriage. This 5-year period should be the years immediately before
the day of the marriage and it should be a period of cohabitation
characterized by exclusivity meaning no third party was involved at
any time within the 5 years and continuity that is unbroken.
Otherwise, if that continuous 5-year cohabitation is computed
without any distinction as to whether the parties were capacitated
to marry each other during the entire five years, then the law would
be sanctioning immorality and encouraging parties to have common
law relationships and placing them on the same footing with those
who lived faithfully with their spouse. Marriage being a special
relationship must be respected as such and its requirements must
be strictly observed. The presumption that a man and a woman
deporting themselves as husband and wife is based on the
approximation of the requirements of the law. The parties should
not be afforded any excuse to not comply with every single
requirement and later use the same missing element as a pre-
conceived escape ground to nullify their marriage. There should be
no exemption from securing a marriage license unless the
circumstances clearly fall within the ambit of the exception. It should
be noted that a license is required in order to notify the public that
two persons are about to be united in matrimony and that anyone
who is aware or has knowledge of any impediment to the union of
the two shall make it known to the local civil registrar.
[17]
The Civil
Code provides:
Article 63: "x x x. This notice shall request all
persons having knowledge of any impediment to
the marriage to advice the local civil registrar
thereof. x x x."
Article 64: "Upon being advised of any alleged
impediment to the marriage, the local civil
registrar shall forthwith make an investigation,
examining persons under oath. x x x" Sdaad
This is reiterated in the Family Code thus:
Article 17 provides in part: "x x x. This notice
shall request all persons having knowledge of
any impediment to the marriage to advise the
local civil registrar thereof. x x x."
Article 18 reads in part: "x x x. In case of any
impediment known to the local civil registrar or
brought to his attention, he shall note down the
particulars thereof and his findings thereon in
the application for a marriage license. x x x."
This is the same reason why our civil laws, past or present,
absolutely prohibited the concurrence of multiple marriages by the
same person during the same period. Thus, any marriage
subsequently contracted during the lifetime of the first spouse shall
be illegal and void,
[18]
subject only to the exception in cases of
absence or where the prior marriage was dissolved or annulled. The
Revised Penal Code complements the civil law in that the
contracting of two or more marriages and the having of extramarital
affairs are considered felonies, i.e., bigamy and concubinage and
adultery.
[19]
The law sanctions monogamy.
In this case, at the time of Pepito and respondents marriage, it
cannot be said that they have lived with each other as husband and
wife for at least five years prior to their wedding day. From the time
Pepitos first marriage was dissolved to the time of his marriage with
respondent, only about twenty months had elapsed. Even assuming
that Pepito and his first wife had separated in fact, and thereafter
both Pepito and respondent had started living with each other that
has already lasted for five years, the fact remains that their five-year
period cohabitation was not the cohabitation contemplated by law.
It should be in the nature of a perfect union that is valid under the
law but rendered imperfect only by the absence of the marriage
contract. Pepito had a subsisting marriage at the time when he
started cohabiting with respondent. It is immaterial that when they
lived with each other, Pepito had already been separated in fact
from his lawful spouse. The subsistence of the marriage even where
there was actual severance of the filial companionship between the
spouses cannot make any cohabitation by either spouse with any
third party as being one as "husband and wife". Scs daad
Having determined that the second marriage involved in this case is
not covered by the exception to the requirement of a marriage
license, it is void ab initio because of the absence of such element.
The next issue to be resolved is: do petitioners have the personality
to file a petition to declare their fathers marriage void after his
death?
Contrary to respondent judges ruling, Article 47 of the Family
Code
[20]
cannot be applied even by analogy to petitions for
declaration of nullity of marriage. The second ground for annulment
of marriage relied upon by the trial court, which allows "the sane
spouse" to file an annulment suit "at any time before the death of
either party" is inapplicable. Article 47 pertains to the grounds,
periods and persons who can file an annulment suit, not a suit for
declaration of nullity of marriage. The Code is silent as to who can
file a petition to declare the nullity of a marriage. Voidable and void
marriages are not identical. A marriage that is annulable is valid until
otherwise declared by the court; whereas a marriage that is void ab
initio is considered as having never to have taken place
[21]
and
cannot be the source of rights. The first can be generally ratified or
confirmed by free cohabitation or prescription while the other can
never be ratified. A voidable marriage cannot be assailed collaterally
except in a direct proceeding while a void marriage can be attacked
collaterally. Consequently, void marriages can be questioned even
after the death of either party but voidable marriages can be
assailed only during the lifetime of the parties and not after death of
either, in which case the parties and their offspring will be left as if
the marriage had been perfectly valid.
[22]
That is why the action or
defense for nullity is imprescriptible, unlike voidable marriages
where the action prescribes. Only the parties to a voidable marriage
29

can assail it but any proper interested party may attack a void
marriage. Void marriages have no legal effects except those
declared by law concerning the properties of the alleged spouses,
regarding co-ownership or ownership through actual joint
contribution,
[23]
and its effect on the children born to such void
marriages as provided in Article 50 in relation to Article 43 and 44 as
well as Article 51, 53 and 54 of the Family Code. On the contrary, the
property regime governing voidable marriages is generally conjugal
partnership and the children conceived before its annulment are
legitimate. Sup rema
Contrary to the trial courts ruling, the death of petitioners father
extinguished the alleged marital bond between him and respondent.
The conclusion is erroneous and proceeds from a wrong premise
that there was a marriage bond that was dissolved between the two.
It should be noted that their marriage was void hence it is deemed
as if it never existed at all and the death of either extinguished
nothing.
Jurisprudence under the Civil Code states that no judicial decree is
necessary in order to establish the nullity of a marriage.
[24]
"A void
marriage does not require a judicial decree to restore the parties to
their original rights or to make the marriage void but though no
sentence of avoidance be absolutely necessary, yet as well for the
sake of good order of society as for the peace of mind of all
concerned, it is expedient that the nullity of the marriage should be
ascertained and declared by the decree of a court of competent
jurisdiction."
[25]
"Under ordinary circumstances, the effect of a void
marriage, so far as concerns the conferring of legal rights upon the
parties, is as though no marriage had ever taken place. And
therefore, being good for no legal purpose, its invalidity can be
maintained in any proceeding in which the fact of marriage may be
material, either direct or collateral, in any civil court between any
parties at any time, whether before or after the death of either or
both the husband and the wife, and upon mere proof of the facts
rendering such marriage void, it will be disregarded or treated as
non-existent by the courts." It is not like a voidable marriage which
cannot be collaterally attacked except in direct proceeding instituted
during the lifetime of the parties so that on the death of either, the
marriage cannot be impeached, and is made good ab initio.
[26]
But
Article 40 of the Family Code expressly provides that there must be a
judicial declaration of the nullity of a previous marriage, though
void, before a party can enter into a second marriage
[27]
and such
absolute nullity can be based only on a final judgment to that
effect.
[28]
For the same reason, the law makes either the action or
defense for the declaration of absolute nullity of marriage
imprescriptible.
[29]
Corollarily, if the death of either party would
extinguish the cause of action or the ground for defense, then the
same cannot be considered imprescriptible. Juris
However, other than for purposes of remarriage, no judicial action is
necessary to declare a marriage an absolute nullity. For other
purposes, such as but not limited to 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 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
connotes that such final judgment need not be obtained only for
purpose of remarriage.
WHEREFORE, the petition is GRANTED. The assailed Order of the
Regional Trial Court, Toledo City, Cebu, Branch 59, dismissing Civil
Case No. T-639, is REVERSED and SET ASIDE. The said case is ordered
REINSTATED.
SO ORDERED.
Davide, Jr., (Chairman), Puno, and Kapunan, JJ., concur. Sc juris
Pardo, J., on official business abroad.





























30













































































31

FIRST DIVISION
[A.M. No. MTJ-00-1329. March 8, 2001]
HERMINIA BORJA-MANZANO, petitioner, vs. JUDGE ROQUE R.
SANCHEZ, MTC, Infanta, Pangasinan, respondent.
R E S O L U T I O N
DAVIDE, JR., C.J.:
The solemnization of a marriage between two contracting
parties who were both bound by a prior existing marriage is the
bone of contention of the instant complaint against respondent
Judge Roque R. Sanchez, Municipal Trial Court, Infanta, Pangasinan.
For this act, complainant Herminia Borja-Manzano charges
respondent Judge with gross ignorance of the law in a sworn
Complaint-Affidavit filed with the Office of the Court Administrator
on 12 May 1999.
Complainant avers that she was the lawful wife of the late
David Manzano, having been married to him on 21 May 1966 in San
Gabriel Archangel Parish, Araneta Avenue, Caloocan City.
[1]
Four
children were born out of that marriage.
[2]
On 22 March 1993,
however, her husband contracted another marriage with one
Luzviminda Payao before respondent Judge.
[3]
When respondent
Judge solemnized said marriage, he knew or ought to know that the
same was void and bigamous, as the marriage contract clearly stated
that both contracting parties were separated.
Respondent Judge, on the other hand, claims in his Comment
that when he officiated the marriage between Manzano and Payao
he did not know that Manzano was legally married. What he knew
was that the two had been living together as husband and wife for
seven years already without the benefit of marriage, as manifested
in their joint affidavit.
[4]
According to him, had he known that the
late Manzano was married, he would have advised the latter not to
marry again; otherwise, he (Manzano) could be charged with
bigamy. He then prayed that the complaint be dismissed for lack of
merit and for being designed merely to harass him.
After an evaluation of the Complaint and the Comment, the
Court Administrator recommended that respondent Judge be found
guilty of gross ignorance of the law and be ordered to pay a fine of
P2,000, with a warning that a repetition of the same or similar act
would be dealt with more severely.
On 25 October 2000, this Court required the parties to
manifest whether they were willing to submit the case for resolution
on the basis of the pleadings thus filed. Complainant answered in
the affirmative.
For his part, respondent Judge filed a Manifestation reiterating
his plea for the dismissal of the complaint and setting aside his
earlier Comment. He therein invites the attention of the Court to
two separate affidavits
[5]
of the late Manzano and of Payao, which
were allegedly unearthed by a member of his staff upon his
instruction. In those affidavits, both David Manzano and Luzviminda
Payao expressly stated that they were married to Herminia Borja
and Domingo Relos, respectively; and that since their respective
marriages had been marked by constant quarrels, they had both left
their families and had never cohabited or communicated with their
spouses anymore. Respondent Judge alleges that on the basis of
those affidavits, he agreed to solemnize the marriage in question in
accordance with Article 34 of the Family Code.
We find merit in the complaint.
Article 34 of the Family Code provides:
No license shall be necessary for the marriage of a man and a
woman who have lived together as husband and wife for at least
five years and without any legal impediment to marry each
other. The contracting parties shall state the foregoing facts in an
affidavit before any person authorized by law to administer
oaths. The solemnizing officer shall also state under oath that he
ascertained the qualifications of the contracting parties and found
no legal impediment to the marriage.
For this provision on legal ratification of marital cohabitation
to apply, the following requisites must concur:
1. The man and woman must have been living together
as husband and wife for at least five years before the
marriage;
2. The parties must have no legal impediment to marry
each other;
3. The fact of absence of legal impediment between the
parties must be present at the time of marriage;
4. The parties must execute an affidavit stating that they
have lived together for at least five years [and are
without legal impediment to marry each other]; and
5. The solemnizing officer must execute a sworn
statement that he had ascertained the qualifications
of the parties and that he had found no legal
impediment to their marriage.
[6]

Not all of these requirements are present in the case at bar. It
is significant to note that in their separate affidavits executed on 22
March 1993 and sworn to before respondent Judge himself, David
Manzano and Luzviminda Payao expressly stated the fact of their
prior existing marriage. Also, in their marriage contract, it was
indicated that both were separated.
Respondent Judge knew or ought to know that a subsisting
previous marriage is a diriment impediment, which would make the
subsequent marriage null and void.
[7]
In fact, in his Comment, he
stated that had he known that the late Manzano was married he
would have discouraged him from contracting another
marriage. And respondent Judge cannot deny knowledge of
Manzanos and Payaos subsisting previous marriage, as the same
was clearly stated in their separate affidavits which were subscribed
and sworn to before him.
The fact that Manzano and Payao had been living apart from
their respective spouses for a long time already is
immaterial. Article 63(1) of the Family Code allows spouses who
have obtained a decree of legal separation to live separately from
each other, but in such a case the marriage bonds are not
severed. Elsewise stated, legal separation does not dissolve the
32

marriage tie, much less authorize the parties to remarry. This holds
true all the more when the separation is merely de facto, as in the
case at bar.
Neither can respondent Judge take refuge on the Joint
Affidavit of David Manzano and Luzviminda Payao stating that they
had been cohabiting as husband and wife for seven years. Just like
separation, free and voluntary cohabitation with another person for
at least five years does not severe the tie of a subsisting previous
marriage. Marital cohabitation for a long period of time between
two individuals who are legally capacitated to marry each other is
merely a ground for exemption from marriage license. It could not
serve as a justification for respondent Judge to solemnize a
subsequent marriage vitiated by the impediment of a prior existing
marriage.
Clearly, respondent Judge demonstrated gross ignorance of
the law when he solemnized a void and bigamous marriage. The
maxim ignorance of the law excuses no one has special application
to judges,
[8]
who, under Rule 1.01 of the Code of Judicial Conduct,
should be the embodiment of competence, integrity, and
independence. It is highly imperative that judges be conversant with
the law and basic legal principles.
[9]
And when the law transgressed
is simple and elementary, the failure to know it constitutes gross
ignorance of the law.
[10]

ACCORDINGLY, the recommendation of the Court
Administrator is hereby ADOPTED, with the MODIFICATION that the
amount of fine to be imposed upon respondent Judge Roque
Sanchez is increased to P20,000.
SO ORDERED.
Puno, Kapunan, Pardo, and Ynares-Santiago, JJ., concur.








































33

Republic of the Philippines
SUPREME COURT
Manila
THIRD DIVISION
G.R. No. 175581 March 28, 2008
REPUBLIC OF THE PHILIPPINES, Petitioner,
vs.
JOSE A. DAYOT, Respondent.
x - - - - - - - - - - - - - - - - - - - - - - -x
G.R. No. 179474
FELISA TECSON-DAYOT, Petitioner,
vs.
JOSE A. DAYOT, Respondent.
D E C I S I O N
CHICO-NAZARIO, J.:
Before us are two consolidated petitions. G.R. No. 175581 and G.R.
No. 179474 are Petitions for Review under Rule 45 of the Rules of
Court filed by the Republic of the Philippines and Felisa Tecson-
Dayot (Felisa), respectively, both challenging the Amended
Decision
1
of the Court of Appeals, dated 7 November 2006, in CA-
G.R. CV No. 68759, which declared the marriage between Jose Dayot
(Jose) and Felisa void ab initio.
The records disclose that on 24 November 1986, Jose and Felisa
were married at the Pasay City Hall. The marriage was solemnized by
Rev. Tomas V. Atienza.
2
In lieu of a marriage license, Jose and Felisa
executed a sworn affidavit,
3
also dated 24 November 1986, attesting
that both of them had attained the age of maturity, and that being
unmarried, they had lived together as husband and wife for at least
five years.
On 7 July 1993, Jose filed a Complaint
4
for Annulment and/or
Declaration of Nullity of Marriage with the Regional Trial Court
(RTC), Bian, Laguna, Branch 25. He contended that his marriage
with Felisa was a sham, as no marriage ceremony was celebrated
between the parties; that he did not execute the sworn affidavit
stating that he and Felisa had lived as husband and wife for at least
five years; and that his consent to the marriage was secured through
fraud.
In his Complaint, Jose gave his version of the events which led to his
filing of the same. According to Jose, he was introduced to Felisa in
1986. Immediately thereafter, he came to live as a boarder in
Felisas house, the latter being his landlady. Some three weeks later,
Felisa requested him to accompany her to the Pasay City Hall,
ostensibly so she could claim a package sent to her by her brother
from Saudi Arabia. At the Pasay City Hall, upon a pre-arranged signal
from Felisa, a man bearing three folded pieces of paper approached
them. They were told that Jose needed to sign the papers so that
the package could be released to Felisa. He initially refused to do so.
However, Felisa cajoled him, and told him that his refusal could get
both of them killed by her brother who had learned about their
relationship. Reluctantly, he signed the pieces of paper, and gave
them to the man who immediately left. It was in February 1987
when he discovered that he had contracted marriage with Felisa. He
alleged that he saw a piece of paper lying on top of the table at the
sala of Felisas house. When he perused the same, he discovered
that it was a copy of his marriage contract with Felisa. When he
confronted Felisa, the latter feigned ignorance.
In opposing the Complaint, Felisa denied Joses allegations and
defended the validity of their marriage. She declared that they had
maintained their relationship as man and wife absent the legality of
marriage in the early part of 1980, but that she had deferred
contracting marriage with him on account of their age difference.
5
In
her pre-trial brief, Felisa expounded that while her marriage to Jose
was subsisting, the latter contracted marriage with a certain Rufina
Pascual (Rufina) on 31 August 1990. On 3 June 1993, Felisa filed an
action for bigamy against Jose. Subsequently, she filed an
administrative complaint against Jose with the Office of the
Ombudsman, since Jose and Rufina were both employees of the
National Statistics and Coordinating Board.
6
The Ombudsman found
Jose administratively liable for disgraceful and immoral conduct, and
meted out to him the penalty of suspension from service for one
year without emolument.
7

On 26 July 2000, the RTC rendered a Decision
8
dismissing the
Complaint. It disposed:
WHEREFORE, after a careful evaluation and analysis of the evidence
presented by both parties, this Court finds and so holds that the
[C]omplaint does not deserve a favorable consideration.
Accordingly, the above-entitled case is hereby ordered DISMISSED
with costs against [Jose].
9

The RTC ruled that from the testimonies and evidence presented,
the marriage celebrated between Jose and Felisa on 24 November
1986 was valid. It dismissed Joses version of the story as
implausible, and rationalized that:
Any person in his right frame of mind would easily suspect any
attempt to make him or her sign a blank sheet of paper. [Jose] could
have already detected that something was amiss, unusual, as they
were at Pasay City Hall to get a package for [Felisa] but it [was] he
who was made to sign the pieces of paper for the release of the said
package. Another indirect suggestion that could have put him on
guard was the fact that, by his own admission, [Felisa] told him that
her brother would kill them if he will not sign the papers. And yet it
took him, more or less, three months to "discover" that the pieces of
paper that he signed was [sic] purportedly the marriage contract.
[Jose] does not seem to be that ignorant, as perceived by this Court,
to be "taken in for a ride" by [Felisa.]
*Joses+ claim that he did not consent to the marriage was belied by
the fact that he acknowledged Felisa Tecson as his wife when he
wrote *Felisas+ name in the duly notarized statement of assets and
liabilities he filled up on May 12, 1988, one year after he discovered
the marriage contract he is now claiming to be sham and false.
[Jose], again, in his company I.D., wrote the name of [Felisa] as the
person to be contacted in case of emergency. This Court does not
believe that the only reason why her name was written in his
34

company I.D. was because he was residing there then. This is just
but a lame excuse because if he really considers her not his lawfully
wedded wife, he would have written instead the name of his sister.
When *Joses+ sister was put into the witness stand, under oath, she
testified that she signed her name voluntarily as a witness to the
marriage in the marriage certificate (T.S.N., page 25, November 29,
1996) and she further testified that the signature appearing over the
name of Jose Dayot was the signature of his [sic] brother that he
voluntarily affixed in the marriage contract (page 26 of T.S.N. taken
on November 29, 1996), and when she was asked by the Honorable
Court if indeed she believed that Felisa Tecson was really chosen by
her brother she answered yes. The testimony of his sister all the
more belied his claim that his consent was procured through fraud.
10

Moreover, on the matter of fraud, the RTC ruled that Joses action
had prescribed. It cited Article 87
11
of the New Civil Code which
requires that the action for annulment of marriage must be
commenced by the injured party within four years after the
discovery of the fraud. Thus:
That granting even for the sake of argument that his consent was
obtained by [Felisa] through fraud, trickery and machinations, he
could have filed an annulment or declaration of nullity of marriage
at the earliest possible opportunity, the time when he discovered
the alleged sham and false marriage contract. [Jose] did not take any
action to void the marriage at the earliest instance. x x x.
12

Undeterred, Jose filed an appeal from the foregoing RTC Decision to
the Court of Appeals. In a Decision dated 11 August 2005, the Court
of Appeals found the appeal to be without merit. The dispositive
portion of the appellate courts Decision reads:
WHEREFORE, the Decision appealed from is AFFIRMED.
13

The Court of Appeals applied the Civil Code to the marriage between
Jose and Felisa as it was solemnized prior to the effectivity of the
Family Code. The appellate court observed that the circumstances
constituting fraud as a ground for annulment of marriage under
Article 86
14
of the Civil Code did not exist in the marriage between
the parties. Further, it ruled that the action for annulment of
marriage on the ground of fraud was filed beyond the prescriptive
period provided by law. The Court of Appeals struck down Joses
appeal in the following manner:
Nonetheless, even if we consider that fraud or intimidation was
employed on Jose in giving his consent to the marriage, the action
for the annulment thereof had already prescribed. Article 87 (4) and
(5) of the Civil Code provides that the action for annulment of
marriage on the ground that the consent of a party was obtained by
fraud, force or intimidation must be commenced by said party
within four (4) years after the discovery of the fraud and within four
(4) years from the time the force or intimidation ceased. Inasmuch
as the fraud was allegedly discovered by Jose in February, 1987 then
he had only until February, 1991 within which to file an action for
annulment of marriage. However, it was only on July 7, 1993 that
Jose filed the complaint for annulment of his marriage to Felisa.
15

Likewise, the Court of Appeals did not accept Joses assertion that
his marriage to Felisa was void ab initio for lack of a marriage
license. It ruled that the marriage was solemnized under Article
76
16
of the Civil Code as one of exceptional character, with the
parties executing an affidavit of marriage between man and woman
who have lived together as husband and wife for at least five years.
The Court of Appeals concluded that the falsity in the affidavit to the
effect that Jose and Felisa had lived together as husband and wife
for the period required by Article 76 did not affect the validity of the
marriage, seeing that the solemnizing officer was misled by the
statements contained therein. In this manner, the Court of Appeals
gave credence to the good-faith reliance of the solemnizing officer
over the falsity of the affidavit. The appellate court further noted
that on the dorsal side of said affidavit of marriage, Rev. Tomas V.
Atienza, the solemnizing officer, stated that he took steps to
ascertain the ages and other qualifications of the contracting parties
and found no legal impediment to their marriage. Finally, the Court
of Appeals dismissed Joses argument that neither he nor Felisa was
a member of the sect to which Rev. Tomas V. Atienza belonged.
According to the Court of Appeals, Article 56
17
of the Civil Code did
not require that either one of the contracting parties to the marriage
must belong to the solemnizing officers church or religious sect. The
prescription was established only in Article 7
18
of the Family Code
which does not govern the parties marriage.
Differing with the ruling of the Court of Appeals, Jose filed a Motion
for Reconsideration thereof.1avvphi1 His central opposition was
that the requisites for the proper application of the exemption from
a marriage license under Article 76 of the Civil Code were not fully
attendant in the case at bar. In particular, Jose cited the legal
condition that the man and the woman must have been living
together as husband and wife for at least five years before the
marriage. Essentially, he maintained that the affidavit of marital
cohabitation executed by him and Felisa was false.
The Court of Appeals granted Joses Motion for Reconsideration and
reversed itself. Accordingly, it rendered an Amended Decision, dated
7 November 2006, the fallo of which reads:
WHEREFORE, the Decision dated August 11, 2005 is RECALLED and
SET ASIDE and another one entered declaring the marriage between
Jose A. Dayot and Felisa C. Tecson void ab initio.
Furnish a copy of this Amended Decision to the Local Civil Registrar
of Pasay City.
19

In its Amended Decision, the Court of Appeals relied on the ruling of
this Court in Nial v. Bayadog,
20
and reasoned that:
In Nial v. Bayadog, where the contracting parties to a marriage
solemnized without a marriage license on the basis of their affidavit
that they had attained the age of majority, that being unmarried,
they had lived together for at least five (5) years and that they
desired to marry each other, the Supreme Court ruled as follows:
"x x x In other words, the five-year common-law cohabitation
period, which is counted back from the date of celebration of
marriage, should be a period of legal union had it not been for the
absence of the marriage. This 5-year period should be the years
immediately before the day of the marriage and it should be a
period of cohabitation characterized by exclusivity meaning no
third party was involved at any time within the 5 years and
continuity that is unbroken. Otherwise, if that continuous 5-year
35

cohabitation is computed without any distinction as to whether the
parties were capacitated to marry each other during the entire five
years, then the law would be sanctioning immorality and
encouraging parties to have common law relationships and placing
them on the same footing with those who lived faithfully with their
spouse. Marriage being a special relationship must be respected as
such and its requirements must be strictly observed. The
presumption that a man and a woman deporting themselves as
husband and wife is based on the approximation of the
requirements of the law. The parties should not be afforded any
excuse to not comply with every single requirement and later use
the same missing element as a pre-conceived escape ground to
nullify their marriage. There should be no exemption from securing a
marriage license unless the circumstances clearly fall within the
ambit of the exception. It should be noted that a license is required
in order to notify the public that two persons are about to be united
in matrimony and that anyone who is aware or has knowledge of
any impediment to the union of the two shall make it known to the
local civil registrar.
Article 80(3) of the Civil Code provides that a marriage solemnized
without a marriage license, save marriages of exceptional character,
shall be void from the beginning. Inasmuch as the marriage between
Jose and Felisa is not covered by the exception to the requirement
of a marriage license, it is, therefore, void ab initio because of the
absence of a marriage license.
21

Felisa sought reconsideration of the Amended Decision, but to no
avail. The appellate court rendered a Resolution
22
dated 10 May
2007, denying Felisas motion.
Meanwhile, the Republic of the Philippines, through the Office of
the Solicitor General (OSG), filed a Petition for Review before this
Court in G.R. No. 175581, praying that the Court of Appeals
Amended Decision dated 7 November 2006 be reversed and set
aside for lack of merit, and that the marriage between Jose and
Felisa be declared valid and subsisting. Felisa filed a separate
Petition for Review, docketed as G.R. No. 179474, similarly assailing
the appellate courts Amended Decision. On 1 August 2007, this
Court resolved to consolidate the two Petitions in the interest of
uniformity of the Court rulings in similar cases brought before it for
resolution.
23

The Republic of the Philippines propounds the following arguments
for the allowance of its Petition, to wit:
I
RESPONDENT FAILED TO OVERTHROW THE PRESUMPTION
OF THE VALIDITY OF HIS MARRIAGE TO FELISA.
II
RESPONDENT DID NOT COME TO THE COURT WITH CLEAN
HANDS AND SHOULD NOT BE ALLOWED TO PROFIT FROM
HIS OWN FRAUDULENT CONDUCT.
III
RESPONDENT IS ESTOPPED FROM ASSAILING THE
LEGALITY OF HIS MARRIAGE FOR LACK OF MARRIAGE
LICEN[S]E.
24

Correlative to the above, Felisa submits that the Court of Appeals
misapplied Nial.
25
She differentiates the case at bar from Nial by
reasoning that one of the parties therein had an existing prior
marriage, a circumstance which does not obtain in her cohabitation
with Jose. Finally, Felisa adduces that Jose only sought the
annulment of their marriage after a criminal case for bigamy and an
administrative case had been filed against him in order to avoid
liability. Felisa surmises that the declaration of nullity of their
marriage would exonerate Jose from any liability.
For our resolution is the validity of the marriage between Jose and
Felisa. To reach a considered ruling on the issue, we shall jointly
tackle the related arguments vented by petitioners Republic of the
Philippines and Felisa.
The Republic of the Philippines asserts that several circumstances
give rise to the presumption that a valid marriage exists between
Jose and Felisa. For her part, Felisa echoes the claim that any doubt
should be resolved in favor of the validity of the marriage by citing
this Courts ruling in Hernandez v. Court of Appeals.
26
To buttress its
assertion, the Republic points to the affidavit executed by Jose and
Felisa, dated 24 November 1986, attesting that they have lived
together as husband and wife for at least five years, which they used
in lieu of a marriage license. It is the Republics position that the
falsity of the statements in the affidavit does not affect the validity
of the marriage, as the essential and formal requisites were
complied with; and the solemnizing officer was not required to
investigate as to whether the said affidavit was legally obtained. The
Republic opines that as a marriage under a license is not invalidated
by the fact that the license was wrongfully obtained, so must a
marriage not be invalidated by the fact that the parties incorporated
a fabricated statement in their affidavit that they cohabited as
husband and wife for at least five years. In addition, the Republic
posits that the parties marriage contract states that their marriage
was solemnized under Article 76 of the Civil Code. It also bears the
signature of the parties and their witnesses, and must be considered
a primary evidence of marriage. To further fortify its Petition, the
Republic adduces the following documents: (1) Joses notarized
Statement of Assets and Liabilities, dated 12 May 1988 wherein he
wrote Felisas name as his wife; (2) Certification dated 25 July 1993
issued by the Barangay Chairman 192, Zone ZZ, District 24 of Pasay
City, attesting that Jose and Felisa had lived together as husband
and wife in said barangay; and (3) Joses company ID card, dated 2
May 1988, indicating Felisas name as his wife.
The first assignment of error compels this Court to rule on the issue
of the effect of a false affidavit under Article 76 of the Civil Code. A
survey of the prevailing rules is in order.
It is beyond dispute that the marriage of Jose and Felisa was
celebrated on 24 November 1986, prior to the effectivity of the
Family Code. Accordingly, the Civil Code governs their union. Article
53 of the Civil Code spells out the essential requisites of marriage as
a contract:
ART. 53. No marriage shall be solemnized unless all these requisites
are complied with:
36

(1) Legal capacity of the contracting parties;
(2) Their consent, freely given;
(3) Authority of the person performing the marriage; and
(4) A marriage license, except in a marriage of exceptional
character. (Emphasis ours.)
Article 58
27
makes explicit that no marriage shall be solemnized
without a license first being issued by the local civil registrar of the
municipality where either contracting party habitually resides, save
marriages of an exceptional character authorized by the Civil Code,
but not those under Article 75.
28
Article 80(3)
29
of the Civil Code
makes it clear that a marriage performed without the corresponding
marriage license is void, this being nothing more than the legitimate
consequence flowing from the fact that the license is the essence of
the marriage contract.
30
This is in stark contrast to the old Marriage
Law,
31
whereby the absence of a marriage license did not make the
marriage void. The rationale for the compulsory character of a
marriage license under the Civil Code is that it is the authority
granted by the State to the contracting parties, after the proper
government official has inquired into their capacity to contract
marriage.
32

Under the Civil Code, marriages of exceptional character are covered
by Chapter 2, Title III, comprising Articles 72 to 79. To wit, these
marriages are: (1) marriages in articulo mortis or at the point of
death during peace or war, (2) marriages in remote places, (2)
consular marriages,
33
(3) ratification of marital cohabitation, (4)
religious ratification of a civil marriage, (5) Mohammedan or pagan
marriages, and (6) mixed marriages.
34

The instant case pertains to a ratification of marital cohabitation
under Article 76 of the Civil Code, which provides:
ART. 76. No marriage license shall be necessary when a man and a
woman who have attained the age of majority and who, being
unmarried, have lived together as husband and wife for at least five
years, desire to marry each other. The contracting parties shall state
the foregoing facts in an affidavit before any person authorized by
law to administer oaths. The official, priest or minister who
solemnized the marriage shall also state in an affidavit that he took
steps to ascertain the ages and other qualifications of the
contracting parties and that he found no legal impediment to the
marriage.
The reason for the law,
35
as espoused by the Code Commission, is
that the publicity attending a marriage license may discourage such
persons who have lived in a state of cohabitation from legalizing
their status.
36

It is not contested herein that the marriage of Jose and Felisa was
performed without a marriage license. In lieu thereof, they executed
an affidavit declaring that "they have attained the age of maturity;
that being unmarried, they have lived together as husband and wife
for at least five years; and that because of this union, they desire to
marry each other."
37
One of the central issues in the Petition at bar
is thus: whether the falsity of an affidavit of marital cohabitation,
where the parties have in truth fallen short of the minimum five-
year requirement, effectively renders the marriage void ab initio for
lack of a marriage license.
We answer in the affirmative.
Marriages of exceptional character are, doubtless, the exceptions to
the rule on the indispensability of the formal requisite of a marriage
license. Under the rules of statutory construction, exceptions, as a
general rule, should be strictly
38
but reasonably construed.
39
They
extend only so far as their language fairly warrants, and all doubts
should be resolved in favor of the general provisions rather than the
exception.
40
Where a general rule is established by statute with
exceptions, the court will not curtail the former or add to the latter
by implication.
41
For the exception in Article 76 to apply, it is a sine
qua non thereto that the man and the woman must have attained
the age of majority, and that, being unmarried, they have lived
together as husband and wife for at least five years.
A strict but reasonable construction of Article 76 leaves us with no
other expediency but to read the law as it is plainly written. The
exception of a marriage license under Article 76 applies only to
those who have lived together as husband and wife for at least five
years and desire to marry each other. The Civil Code, in no
ambiguous terms, places a minimum period requirement of five
years of cohabitation. No other reading of the law can be had, since
the language of Article 76 is precise. The minimum requisite of five
years of cohabitation is an indispensability carved in the language of
the law. For a marriage celebrated under Article 76 to be valid, this
material fact cannot be dispensed with. It is embodied in the law not
as a directory requirement, but as one that partakes of a mandatory
character. It is worthy to mention that Article 76 also prescribes that
the contracting parties shall state the requisite facts
42
in an affidavit
before any person authorized by law to administer oaths; and that
the official, priest or minister who solemnized the marriage shall
also state in an affidavit that he took steps to ascertain the ages and
other qualifications of the contracting parties and that he found no
legal impediment to the marriage.
It is indubitably established that Jose and Felisa have not lived
together for five years at the time they executed their sworn
affidavit and contracted marriage. The Republic admitted that Jose
and Felisa started living together only in June 1986, or barely five
months before the celebration of their marriage.
43
The Court of
Appeals also noted Felisas testimony that Jose was introduced to
her by her neighbor, Teresita Perwel, sometime in February or
March 1986 after the EDSA Revolution.
44
The appellate court also
cited Felisas own testimony that it was only in June 1986 when Jose
commenced to live in her house.
45

Moreover, it is noteworthy that the question as to whether they
satisfied the minimum five-year requisite is factual in nature. A
question of fact arises when there is a need to decide on the truth or
falsehood of the alleged facts.
46
Under Rule 45, factual findings are
ordinarily not subject to this Courts review.
47
It is already well-
settled that:
The general rule is that the findings of facts of the Court of Appeals
are binding on this Court. A recognized exception to this rule is when
the Court of Appeals and the trial court, or in this case the
administrative body, make contradictory findings. However, the
exception does not apply in every instance that the Court of Appeals
37

and the trial court or administrative body disagree. The factual
findings of the Court of Appeals remain conclusive on this Court if
such findings are supported by the record or based on substantial
evidence.
48

Therefore, the falsity of the affidavit dated 24 November 1986,
executed by Jose and Felisa to exempt them from the requirement
of a marriage license, is beyond question.
We cannot accept the insistence of the Republic that the falsity of
the statements in the parties affidavit will not affect the validity of
marriage, since all the essential and formal requisites were complied
with. The argument deserves scant merit. Patently, it cannot be
denied that the marriage between Jose and Felisa was celebrated
without the formal requisite of a marriage license. Neither did Jose
and Felisa meet the explicit legal requirement in Article 76, that they
should have lived together as husband and wife for at least five
years, so as to be excepted from the requirement of a marriage
license.
Anent petitioners reliance on the presumption of marriage, this
Court holds that the same finds no applicability to the case at bar.
Essentially, when we speak of a presumption of marriage, it is with
reference to the prima facie presumption that a man and a woman
deporting themselves as husband and wife have entered into a
lawful contract of marriage.
49
Restated more explicitly, persons
dwelling together in apparent matrimony are presumed, in the
absence of any counter-presumption or evidence special to the case,
to be in fact married.
50
The present case does not involve an
apparent marriage to which the presumption still needs to be
applied. There is no question that Jose and Felisa actually entered
into a contract of marriage on 24 November 1986, hence,
compelling Jose to institute a Complaint for Annulment and/or
Declaration of Nullity of Marriage, which spawned the instant
consolidated Petitions.
In the same vein, the declaration of the Civil Code
51
that every
intendment of law or fact leans towards the validity of marriage will
not salvage the parties marriage, and extricate them from the effect
of a violation of the law. The marriage of Jose and Felisa was
entered into without the requisite marriage license or compliance
with the stringent requirements of a marriage under exceptional
circumstance. The solemnization of a marriage without prior license
is a clear violation of the law and would lead or could be used, at
least, for the perpetration of fraud against innocent and unwary
parties, which was one of the evils that the law sought to prevent by
making a prior license a prerequisite for a valid marriage.
52
The
protection of marriage as a sacred institution requires not just the
defense of a true and genuine union but the exposure of an invalid
one as well.
53
To permit a false affidavit to take the place of a
marriage license is to allow an abject circumvention of the law. If
this Court is to protect the fabric of the institution of marriage, we
must be wary of deceptive schemes that violate the legal measures
set forth in our laws.
Similarly, we are not impressed by the ratiocination of the Republic
that as a marriage under a license is not invalidated by the fact that
the license was wrongfully obtained, so must a marriage not be
invalidated by a fabricated statement that the parties have
cohabited for at least five years as required by law. The contrast is
flagrant. The former is with reference to an irregularity of the
marriage license, and not to the absence of one. Here, there is no
marriage license at all. Furthermore, the falsity of the allegation in
the sworn affidavit relating to the period of Jose and Felisas
cohabitation, which would have qualified their marriage as an
exception to the requirement for a marriage license, cannot be a
mere irregularity, for it refers to a quintessential fact that the law
precisely required to be deposed and attested to by the parties
under oath. If the essential matter in the sworn affidavit is a lie, then
it is but a mere scrap of paper, without force and effect. Hence, it is
as if there was no affidavit at all.
In its second assignment of error, the Republic puts forth the
argument that based on equity, Jose should be denied relief because
he perpetrated the fabrication, and cannot thereby profit from his
wrongdoing. This is a misplaced invocation. It must be stated that
equity finds no room for application where there is a law.
54
There is
a law on the ratification of marital cohabitation, which is set in
precise terms under Article 76 of the Civil Code. Nonetheless, the
authorities are consistent that the declaration of nullity of the
parties marriage is without prejudice to their criminal liability.
55

The Republic further avers in its third assignment of error that Jose
is deemed estopped from assailing the legality of his marriage for
lack of a marriage license. It is claimed that Jose and Felisa had lived
together from 1986 to 1990, notwithstanding Joses subsequent
marriage to Rufina Pascual on 31 August 1990, and that it took Jose
seven years before he sought the declaration of nullity; hence,
estoppel had set in.
This is erroneous. An action for nullity of marriage is
imprescriptible.
56
Jose and Felisas marriage was celebrated sans a
marriage license. No other conclusion can be reached except that it
is void ab initio. In this case, the right to impugn a void marriage
does not prescribe, and may be raised any time.
Lastly, to settle all doubts, jurisprudence has laid down the rule that
the five-year common-law cohabitation period under Article 76
means a five-year period computed back from the date of
celebration of marriage, and refers to a period of legal union had it
not been for the absence of a marriage.
57
It covers the years
immediately preceding the day of the marriage, characterized by
exclusivity - meaning no third party was involved at any time within
the five years - and continuity that is unbroken.
58

WHEREFORE, the Petitions are DENIED. The Amended Decision of
the Court of Appeals, dated 7 November 2006 in CA-G.R. CV No.
68759, declaring the marriage of Jose Dayot to Felisa Tecson-Dayot
void ab initio, is AFFIRMED, without prejudice to their criminal
liability, if any. No costs.
SO ORDERED.




38
























































39

Republic of the Philippines
SUPREME COURT
Manila
EN BANC

A.M. No. MTJ-92-721 September 30, 1994
JUVY N. COSCA, EDMUNDO B. PERALTA, RAMON C. SAMBO, and
APOLLO A. VILLAMORA, complainants,
vs.
HON. LUCIO P. PALAYPAYON, JR., Presiding Judge, and NELIA B.
ESMERALDA-BAROY, Clerk of Court II, both of the Municipal Trial
Court of Tinambac, Camarines Sur, respondents.
Esteban R. Abonal for complainants.
Haide B. Vista-Gumba for respondents.

PER CURIAM, J.:
Complainants Juvy N. Cosca, Edmundo B. Peralta, Ramon C. Sambo,
and Apollo Villamora, are Stenographer I, Interpreter I, Clerk II, and
Process Server, respectively, of the Municipal Trial Court of
Tinambac, Camarines Sur. Respondents Judge Lucio P. Palaypayon,
Jr. and Nelia B. Esmeralda-Baroy are respectively the Presiding Judge
and Clerk of Court II of the same court.
In an administrative complaint filed with the Office of the Court
Administrator on October 5, 1992, herein respondents were charged
with the following offenses, to wit: (1) illegal solemnization of
marriage; (2) falsification of the monthly reports of cases; (3) bribery
in consideration of an appointment in the court; (4) non-issuance of
receipt for cash bond received; (5) infidelity in the custody of
detained prisoners; and (6) requiring payment of filing fees from
exempted entities.
1

Pursuant to a resolution issued by this Court respondents filed their
respective Comments.
2
A Reply to Answers of Respondents was
filed by complainants.
3
The case was thereafter referred to
Executive Judge David C. Naval of the Regional Trial Court, Naga City,
for investigation report and recommendation. The case was
however transferred to First Assistant Executive Judge Antonio N.
Gerona when Judge Naval inhibited himself for the reason that his
wife is a cousin of respondent Judge Palaypayon, Jr.
4

The contending versions of the parties regarding the factual
antecedents of this administrative matter, as culled from the records
thereof, are set out under each particular charge against
respondents.
1. Illegal solemnization of marriage
Complainants allege that respondent judge solemnized marriages
even without the requisite marriage license. Thus, the following
couples were able to get married by the simple expedient of paying
the marriage fees to respondent Baroy, despite the absence of a
marriage license, viz.: Alano P. Abellano and Nelly Edralin, Francisco
Selpo and Julieta Carrido, Eddie Terrobias and Maria Gacer, Renato
Gamay and Maricris Belga, Arsenio Sabater and Margarita Nacario,
and Sammy Bocaya and Gina Bismonte. As a consequence, their
marriage contracts (Exhibits B, C, D, F, G, and A, respectively) did not
reflect any marriage license number. In addition, respondent judge
did not sign their marriage contracts and did not indicate the date of
solemnization, the reason being that he allegedly had to wait for the
marriage license to be submitted by the parties which was usually
several days after the ceremony. Indubitably, the marriage contracts
were not filed with the local civil registrar. Complainant Ramon
Sambo, who prepares the marriage contracts, called the attention of
respondents to the lack of marriage licenses and its effect on the
marriages involved, but the latter opted to proceed with the
celebration of said marriages.
Respondent Nelia Baroy claims that when she was appointed Clerk
of Court II, the employees of the court were already hostile to her,
especially complainant Ramon Sambo who told her that he was filing
a protest against her appointment. She avers that it was only lately
when she discovered that the court had a marriage Register which is
in the custody of Sambo; that it was Sambo who failed to furnish the
parties copies of the marriage contract and to register these with
the local civil registrar; and that apparently Sambo kept these
marriage contracts in preparation for this administrative case.
Complainant Sambo, however, claims that all file copies of the
marriage contracts were kept by respondent Baroy, but the latter
insists that she had instructed Sambo to follow up the submission by
the contracting parties of their marriage licenses as part of his duties
but he failed to do so.
Respondent Judge Palaypayon, Jr. contends that the marriage
between Alano P. Abellano and Nelly Edralin falls under Article 34 of
the Civil Code, hence it is exempt from the marriage license
requirement; that he gave strict instructions to complainant Sambo
to furnish the couple a copy of the marriage contract and to file the
same with the civil registrar, but the latter failed to do so; that in
order to solve the problem, the spouses subsequently formalized
their marriage by securing a marriage license and executing their
marriage contract, a copy of which was filed with the civil registrar;
that the other five marriages alluded to in the administrative
complaint were not illegally solemnized because the marriage
contracts were not signed by him and they did not contain the date
and place of marriage; that copies of these marriage contracts are in
the custody of complainant Sambo; that the alleged marriage of
Francisco Selpo and Julieta Carrido, Eddie Terrobias and Maria
Emma Gaor, Renato Gamay and Maricris Belga, and of Arsenio
Sabater and Margarita Nacario were not celebrated by him since he
refused to solemnize them in the absence of a marriage license; that
the marriage of Samy Bocaya and Gina Bismonte was celebrated
even without the requisite license due to the insistence of the
parties in order to avoid embarrassment to their guests but that, at
any rate, he did not sign their marriage contract which remains
unsigned up to the present.
2. Falsification of monthly report for July, 1991
regarding the number of marriages solemnized
and the number of documents notarized.
40

It is alleged that respondent judge made it appear that he
solemnized seven (7) marriages in the month of July, 1992, when in
truth he did not do so or at most those marriages were null and
void; that respondents likewise made it appear that they have
notarized only six (6) documents for July, 1992, but the Notarial
Register will show that there were one hundred thirteen (113)
documents which were notarized during that month; and that
respondents reported a notarial fee of only P18.50 for each
document, although in fact they collected P20.00 therefor and failed
to account for the difference.
Respondent Baroy contends, however, that the marriage registry
where all marriages celebrated by respondent judge are entered is
under the exclusive control and custody of complainant Ramon
Sambo, hence he is the only one who should be held responsible for
the entries made therein; that the reported marriages are merely
based on the payments made as solemnization fees which are in the
custody of respondent Baroy. She further avers that it is Sambo who
is likewise the custodian of the Notarial Register; that she cannot be
held accountable for whatever alleged difference there is in the
notarial fees because she is liable only for those payments tendered
to her by Sambo himself; that the notarial fees she collects are duly
covered by receipts; that of the P20.00 charged, P18.50 is remitted
directly to the Supreme Court as part of the Judiciary Development
Fund and P150 goes to the general fund of the Supreme Court which
is paid to the Municipal Treasurer of Tinambac, Camarines Sur.
Respondent theorizes that the discrepancies in the monthly report
were manipulated by complainant Sambo considering that he is the
one in charge of the preparation of the monthly report.
Respondent Judge Palaypayon avers that the erroneous number of
marriages celebrated was intentionally placed by complainant
Sambo; that the number of marriages solemnized should not be
based on solemnization fees paid for that month since not all the
marriages paid for are solemnized in the same month. He claims
that there were actually only six (6) documents notarized in the
month of July, 1992 which tallied with the official receipts issued by
the clerk of court; that it is Sambo who should be held accountable
for any unreceipted payment for notarial fees because he is the one
in charge of the Notarial Register; and that this case filed by
complainant Sambo is merely in retaliation for his failure to be
appointed as the clerk of court. Furthermore, respondent judge
contends that he is not the one supervising or preparing the
monthly report, and that he merely has the ministerial duty to sign
the same.
3. Bribery in consideration of an appointment in
the court
Complainants allege that because of the retirement of the clerk of
court, respondent judge forwarded to the Supreme Court the
applications of Rodel Abogado, Ramon Sambo, and Jessell Abiog.
However, they were surprised when respondent Baroy reported for
duty as clerk of court on October 21, 1991. They later found out that
respondent Baroy was the one appointed because she gave a brand-
new air-conditioning unit to respondent judge.
Respondent Baroy claims that when she was still in Naga City she
purchased an air-conditioning unit but when she was appointed
clerk of court she had to transfer to Tinambac and, since she no
longer needed the air conditioner, she decided to sell the same to
respondent judge. The installation and use thereof by the latter in
his office was with the consent of the Mayor of Tinambac.
Respondent judge contends that he endorsed all the applications for
the position of clerk of court to the Supreme Court which has the
sole authority over such appointments and that he had no hand in
the appointment of respondent Baroy. He contends that the air-
conditioning unit was bought from his
co-respondent on installment basis on May 29, 1992, eight (8)
months after Baroy had been appointed clerk of court. He claims
that he would not be that naive to exhibit to the public as item
which could not be defended as a matter of honor and prestige.
4. Cash bond issued without a receipt
It is alleged that in Criminal Case No. 5438, entitled "People vs.
Mendeza, et al., "bondswoman Januaria Dacara was allowed by
respondent judge to change her property bond to cash bond; that
she paid the amount of P1,000.00 but was never issued a receipt
therefor nor was it made to appear in the records that the bond has
been paid; that despite the lapse of two years, the money was never
returned to the bondswoman; and that it has not been shown that
the money was turned over to the Municipal Treasurer of Tinambac.
Respondent Baroy counters that the cash bond was deposited with
the former clerk of court, then turned over to the acting clerk of
court and, later, given to her under a corresponding receipt; that the
cash bond is deposited with the bank; and that should the
bondswoman desire to withdraw the same, she should follow the
proper procedure therefor.
Respondent judge contends that Criminal Case No. 5438 was
archieved for failure of the bondsman to deliver the body of the
accused in court despite notice; and that he has nothing to do with
the payment of the cash bond as this is the duty of the clerk of
court.
5. Infidelity in the custody of prisoners
Complainants contend that respondent judge usually got detention
prisoners to work in his house, one of whom was Alex Alano, who is
accused in Criminal Case No. 5647 for violation of the Dangerous
Drugs Act; that while Alano was in the custody of respondent judge,
the former escaped and was never recaptured; that in order to
conceal this fact, the case was archived pursuant to an order issued
by respondent judge dated April 6, 1992.
Respondent judge denied the accusation and claims that he never
employed detention prisoners and that he has adequate household
help; and that he had to order the case archived because it had been
pending for more than six (6) months and the accused therein
remained at large.
6. Unlawful collection of docket fees
Finally, respondents are charged with collecting docket fees from
the Rural Bank of Tinambac, Camarines Sur, Inc. although such entity
is exempt by law from the payment of said fees, and that while the
corresponding receipt was issued, respondent Baroy failed to remit
41

the amount to the Supreme Court and, instead, she deposited the
same in her personal account.
Respondents Baroy contends that it was Judge-Designate Felimon
Montenegro (because respondent judge was on sick leave) who
instructed her to demand payment of docket fees from said rural
bank; that the bank issued a check for P800.00; that she was not
allowed by the Philippine National Bank to encash the check and,
instead, was instructed to deposit the same in any bank account for
clearing; that respondent deposited the same in her account; and
that after the check was cleared, she remitted P400.00 to the
Supreme Court and the other P400.00 was paid to the Municipal
Treasurer of Tinambac.
On the basis of the foregoing contentions, First Vice-Executive Judge
Antonio N. Gerona prepared and submitted to us his Report and
Recommendations dated May 20, 1994, together with the
administrative matter. We have perspicaciously reviewed the same
and we are favorably impressed by the thorough and exhaustive
presentation and analysis of the facts and evidence in said report.
We commend the investigating judge for his industry and
perspicacity reflected by his findings in said report which, being
amply substantiated by the evidence and supported by logical
illations, we hereby approve and hereunder reproduce at length the
material portions thereof.
xxx xxx xxx
The first charge against the respondents is illegal
solemnization of marriage. Judge Palaypayon is
charged with having solemnized without a
marriage license the marriage of Sammy Bocaya
and Gina Besmonte (Exh. A). Alano Abellano and
Nelly Edralin (Exh. B), Francisco Selpo and Julieta
Carrido (Exh. C), Eddie Terrobias and Maria
Emma Gaor (Exh. D), Renato Gamay and Maricris
Belga (Exh. F) and Arsenio Sabater and Margarita
Nacario (Exh. G).
In all these aforementioned marriages, the blank
space in the marriage contracts to show the
number of the marriage was solemnized as
required by Article 22 of the Family Code were
not filled up. While the contracting parties and
their witnesses signed their marriage contracts,
Judge Palaypayon did not affix his signature in
the marriage contracts, except that of Abellano
and Edralin when Judge Palaypayon signed their
marriage certificate as he claims that he
solemnized this marriage under Article 34 of the
Family Code of the Philippines. In said marriages
the contracting parties were not furnished a
copy of their marriage contract and the Local
Civil Registrar was not sent either a copy of the
marriage certificate as required by Article 23 of
the Family Code.
The marriage of Bocaya and Besmonte is shown
to have been solemnized by Judge Palaypayon
without a marriage license. The testimonies of
Bocay himself and Pompeo Ariola, one of the
witnesses of the marriage of Bocaya and
Besmonte, and the photographs taken when
Judge Palaypayon solemnized their marriage
(Exhs. K-3 to K-9) sufficiently show that Judge
Palaypayon really solemnized their marriage.
Bocaya declared that they were advised by Judge
Palaypayon to return after ten (10) days after
their marriage was solemnized and bring with
them their marriage license. In the meantime,
they already started living together as husband
and wife believing that the formal requisites of
marriage were complied with.
Judge Palaypayon denied that he solemnized the
marriage of Bocaya and Besmonte because the
parties allegedly did not have a marriage license.
He declared that in fact he did not sign the
marriage certificate, there was no date stated on
it and both the parties and the Local Civil
Registrar did not have a copy of the marriage
certificate.
With respect to the photographs which show
that he solemnized the marriage of Bocaya and
Besmonte, Judge Palaypayon explains that they
merely show as if he was solemnizing the
marriage. It was actually a simulated
solemnization of marriage and not a real one.
This happened because of the pleading of the
mother of one of the contracting parties that he
consent to be photographed to show that as if
he was solemnizing the marriage as he was told
that the food for the wedding reception was
already prepared, visitors were already invited
and the place of the parties where the reception
would be held was more than twenty (20)
kilometers away from the poblacion of
Tinambac.
The denial made by Judge Palaypayon is difficult
to believe. The fact alone that he did not sign the
marriage certificate or contract, the same did
not bear a date and the parties and the Local
Civil Registrar were not furnished a copy of the
marriage certificate, do not by themselves show
that he did not solemnize the marriage. His
uncorroborated testimony cannot prevail over
the testimony of Bocaya and Ariola who also
declared, among others, that Bocaya and his
bride were advised by Judge Palaypayon to
return after ten (10) days with their marriage
license and whose credibility had not been
impeached.
The pictures taken also from the start of the
wedding ceremony up to the signing of the
marriage certificate in front of Judge Palaypayon
and on his table (Exhs. K-3, K-3-a, K-3-b, K-3-c, K-
4, K-4-a, K-4-b, K-4-c,
K-4-d, K-5, K-5-a, K-5-b, K-6, K-7, K-8, K-8-a and
K-9), cannot possibly be just to show a simulated
42

solemnization of marriage. One or two pictures
may convince a person of the explanation of
Judge Palaypayon, but not all those pictures.
Besides, as a judge it is very difficult to believe
that Judge Palaypayon would allows himself to
be photographed as if he was solemnizing a
marriage on a mere pleading of a person whom
he did not even know for the alleged reasons
given. It would be highly improper and
unbecoming of him to allow himself to be used
as an instrument of deceit by making it appear
that Bocaya and Besmonte were married by him
when in truth and in fact he did not solemnize
their marriage.
With respect to the marriage of Abellano and
Edralin (Exh. B), Judge Palaypayon admitted that
he solemnized their marriage, but he claims that
it was under Article 34 of the Family Code, so a
marriage license was not required. The
contracting parties here executed a joint
affidavit that they have been living together as
husband and wife for almost six (6) years already
(Exh. 12; Exh. AA).
In their marriage contract which did not bear any
date either when it was solemnized, it was
stated that Abellano was only eighteen (18)
years, two (2) months and seven (7) days old. If
he and Edralin had been living together as
husband and wife for almost six (6) years already
before they got married as they stated in their
joint affidavit, Abellano must ha(ve) been less
than thirteen (13) years old when he started
living with Edralin as his wife and this is hard to
believe. Judge Palaypayon should ha(ve) been
aware of this when he solemnized their marriage
as it was his duty to ascertain the qualification of
the contracting parties who might ha(ve)
executed a false joint affidavit in order to have
an instant marriage by avoiding the marriage
license requirement.
On May 23, 1992, however, after this case was
already filed, Judge Palaypayon married again
Abellano and Edralin, this time with a marriage
license (Exh. BB). The explanation given by Judge
Palaypayon why he solemnized the marriage of
the same couple for the second time is that he
did not consider the first marriage he solemnized
under Article 34 of the Family Code as (a)
marriage at all because complainant Ramon
Sambo did not follow his instruction that the
date should be placed in the marriage certificate
to show when he solemnized the marriage and
that the contracting parties were not furnished a
copy of their marriage certificate.
This act of Judge Palaypayon of solemnizing the
marriage of Abellano and Edralin for the second
time with a marriage license already only gave
rise to the suspicion that the first time he
solemnized the marriage it was only made to
appear that it was solemnized under exceptional
character as there was not marriage license and
Judge Palaypayon had already signed the
marriage certificate. If it was true that he
solemnized the first marriage under exceptional
character where a marriage license was not
required, why did he already require the parties
to have a marriage license when he solemnized
their marriage for the second time?
The explanation of Judge Palaypayon that the
first marriage of Abellano and Edralin was not a
marriage at all as the marriage certificate did not
state the date when the marriage was
solemnized and that the contracting parties
were not furnished a copy of their marriage
certificate, is not well taken as they are not any
of those grounds under Article(s) 35, 36, 37 and
38 of the Family Code which declare a marriage
void from the beginning. Even if no one,
however, received a copy of the marriage
certificate, the marriage is still valid (Jones vs.
H(o)rtiguela, 64 Phil. 179). Judge Palaypayon
cannot just absolve himself from responsibility
by blaming his personnel. They are not the
guardian(s) of his official function and under
Article 23 of the Family Code it is his duty to
furnish the contracting parties (a) copy of their
marriage contract.
With respect to the marriage of Francisco Selpo
and Julieta Carrido (Exh. C), and Arsenio Sabater
and Margarita Nacario (Exh. G), Selpo and
Carrido and Sabater and Nacarcio executed joint
affidavits that Judge Palaypayon did not
solemnize their marriage (Exh. 13-A and Exh. 1).
Both Carrido and Nacario testified for the
respondents that actually Judge Palaypayon did
not solemnize their marriage as they did not
have a marriage license. On cross-examination,
however, both admitted that they did not know
who prepared their affidavits. They were just
told, Carrido by a certain Charito Palaypayon,
and Nacario by a certain Kagawad Encinas, to
just go to the Municipal building and sign their
joint affidavits there which were already
prepared before the Municipal Mayor of
Tinambac, Camarines Sur.
With respect to the marriage of Renato Gamay
and Maricris Belga (Exh. f), their marriage
contract was signed by them and by their two (2)
witnesses, Atty. Elmer Brioso and respondent
Baroy (Exhs. F-1 and F-2). Like the other
aforementioned marriages, the solemnization
fee was also paid as shown by a receipt dated
June 7, 1992 and signed by respondent Baroy
(Exh. F-4).
43

Judge Palaypayon also denied having solemnized
the marriage of Gamay and Belga allegedly
because there was no marriage license. On her
part, respondent Baroy at first denied that the
marriage was solemnized. When she was asked,
however, why did she sign the marriage contract
as a witness she answered that she thought the
marriage was already solemnized (TSN, p. 14; 10-
28-93).
Respondent Baroy was, and is, the clerk of court
of Judge Palaypayon. She signed the marriage
contract of Gamay and Belga as one of the two
principal sponsors. Yet, she wanted to give the
impression that she did not even know that the
marriage was solemnized by Judge Palaypayon.
This is found very difficult to believe.
Judge Palaypayon made the same denial of
having solemnized also the marriage of Terrobias
and Gaor (Exh. D). The contracting parties and
their witnesses also signed the marriage contract
and paid the solemnization fee, but Judge
Palaypayon allegedly did not solemnize their
marriage due to lack of marriage license. Judge
Palaypayon submitted the affidavit of William
Medina, Vice-Mayor of Tinambac, to corroborate
his testimony (Exh. 14). Medina, however, did
not testify in this case and so his affidavit has no
probative value.
Judge Palaypayon testified that his procedure
and practice have been that before the
contracting parties and their witnesses enter his
chamber in order to get married, he already
required complainant Ramon Sambo to whom
he assigned the task of preparing the marriage
contract, to already let the parties and their
witnesses sign their marriage contracts, as what
happened to Gamay and Belga, and Terrobias
and Gaor, among others. His purpose was to
save his precious time as he has been
solemnizing marriages at the rate of three (3) to
four (4) times everyday (TSN, p. 12;
2-1-94).
This alleged practice and procedure, if true, is
highly improper and irregular, if not illegal,
because the contracting parties are supposed to
be first asked by the solemnizing officer and
declare that they take each other as husband
and wife before the solemnizing officer in the
presence of at least two (2) witnesses before
they are supposed to sign their marriage
contracts (Art. 6, Family Code).
The uncorroborated testimony, however, of
Judge Palaypayon as to his alleged practice and
procedure before solemnizing a marriage, is not
true as shown by the picture taken during the
wedding of Bocaya and Besmonte (Exhs. K-3 to
K-9) and by the testimony of respondent Baroy
herself who declared that the practice of Judge
Palaypayon ha(s) been to let the contracting
parties and their witnesses sign the marriage
contract only after Judge Palaypayon has
solemnized their marriage (TSN, p. 53;
10-28-93).
Judge Palaypayon did not present any evidence
to show also that he was really solemnizing three
(3) to four (4) marriages everyday. On the
contrary his monthly report of cases for July,
1992 shows that his court had only twenty-seven
(27) pending cases and he solemnized only seven
(7) marriages for the whole month (Exh. E). His
monthly report of cases for September, 1992
shows also that he solemnized only four (4)
marriages during the whole month (Exh. 7).
In this first charge of having illegally solemnized
marriages, respondent Judge Palaypayon has
presented and marked in evidence several
marriage contracts of other persons, affidavits of
persons and certification issued by the Local Civil
Registrar (Exhs. 12-B to 12-H). These persons
who executed affidavits, however, did not testify
in this case. Besides, the marriage contracts and
certification mentioned are immaterial as Judge
Palaypayon is not charged of having solemnized
these marriages illegally also. He is not charged
that the marriages he solemnized were all illegal.
The second charge against herein respondents,
that of having falsified the monthly report of
cases submitted to the Supreme Court and not
stating in the monthly report the actual number
of documents notarized and issuing the
corresponding receipts of the notarial fees, have
been sufficiently proven by the complainants
insofar as the monthly report of cases for July
and September, 1992 are concerned.
The monthly report of cases of the MTC of
Tinambac, Camarines Sur for July, 1992 both
signed by the respondents, show that for said
month there were six (6) documents notarized
by Judge Palaypayon in his capacity as Ex-Officio
Notary Public (Exhs. H to H-1-b). The notarial
register of the MTC of Tinambac, Camarines Sur,
however, shows that there were actually one
hundred thirteen (113) documents notarized by
Judge Palaypayon for the said month (Exhs. Q to
Q-45).
Judge Palaypayon claims that there was no
falsification of the monthly report of cases for
July, 1992 because there were only six (6)
notarized documents that were paid (for) as
shown by official receipts. He did not, however,
present evidence of the alleged official receipts
showing that the notarial fee for the six (6)
44

documetns were paid. Besides, the monthly
report of cases with respect to the number of
documents notarized should not be based on
how many notarized documents were paid of
the notarial fees, but the number of documents
placed or recorded in the notarial register.
Judge Palaypayon admitted that he was not
personally verifying and checking anymore the
correctness of the monthly reports because he
relies on his co-respondent who is the Clerk of
Court and whom he has assumed to have
checked and verified the records. He merely
signs the monthly report when it is already
signed by respondent Baroy.
The explanation of Judge Palaypayon is not well
taken because he is required to have close
supervision in the preparation of the monthly
report of cases of which he certifies as to their
correctness. As a judge he is personally
responsible for the proper discharge of his
functions (The Phil. Trial Lawyer's Asso. Inc. vs.
Agana, Sr., 102 SCRA 517). In Nidera vs. Lazaro,
174 SCRA 581, it was held that "A judge cannot
take refuge behind the inefficiency or
mismanagement of his court personnel."
On the part of respondent Baroy, she puts the
blame of the falsification of the monthly report
of cases on complainant Sambo whom she
allegedly assigned to prepare not only the
monthly report of cases, but the preparation and
custody of marriage contracts, notarized
documents and the notarial register. By her own
admission she has assigned to complainant
Sambo duties she was supposed to perform, yet
according to her she never bother(ed) to check
the notarial register of the court to find out the
number of documents notarized in a month
(TSN, p. 30; 11-23-93).
Assuming that respondent Baroy assigned the
preparation of the monthly report of cases to
Sambo, which was denied by the latter as he
claims that he only typed the monthly report
based on the data given to him by her, still it is
her duty to verify and check whether the report
is correct.
The explanation of respondent Baroy that Sambo
was the one in custody of marriage contracts,
notarized documents and notarial register,
among other things, is not acceptable not only
because as clerk of court she was supposed to be
in custody, control and supervision of all court
records including documents and other
properties of the court (p. 32, Manual for Clerks
of Court), but she herself admitted that from
January, 1992 she was already in full control of
all the records of the court including receipts
(TSN, p. 11; 11-23-93).
The evidence adduced in this cases in connection
with the charge of falsification, however, also
shows that respondent Baroy did not account for
what happened to the notarial fees received for
those documents notarized during the month of
July and September, 1992. The evidence
adduced in this case also sufficiently show that
she received cash bond deposits and she did not
deposit them to a bank or to the Municipal
Treasurer; and that she only issued temporary
receipts for said cash bond deposits.
For July, 1992 there were only six (6) documents
reported to have been notarized by Judge
Palaypayon although the documents notarized
for said month were actually one hundred
thirteen (113) as recorded in the notarial
register. For September, 1992, there were only
five (5) documents reported as notarized for that
month, though the notarial register show(s) that
there were fifty-six (56) documents actually
notarized. The fee for each document notarized
as appearing in the notarial register was P18.50.
Respondent Baroy and Sambo declared that
what was actually being charged was P20.00.
Respondent Baroy declared that P18.50 went to
the Supreme Court and P1.50 was being turned
over to the Municipal Treasurer.
Baroy, however, did not present any evidence to
show that she really sent to the Supreme Court
the notarial fees of P18.50 for each document
notarized and to the Municipal Treasurer the
additional notarial fee of P1.50. This should be
fully accounted for considering that Baroy
herself declared that some notarial fees were
allowed by her at her own discretion to be paid
later. Similarly, the solemnization fees have not
been accounted for by Baroy considering that
she admitted that even (i)n those instances
where the marriages were not solemnized due
to lack of marriage license the solemnization
fees were not returned anymore, unless the
contracting parties made a demand for their
return. Judge Palaypayon declared that he did
not know of any instance when solemnization
fee was returned when the marriage was not
solemnized due to lack of marriage license.
Respondent Baroy also claims that Ramon
Sambo did not turn over to her some of the
notarial fees. This is difficult to believe. It was
not only because Sambo vehemently denied it,
but the minutes of the conference of the
personnel of the MTC of Tinambac dated January
20, 1992 shows that on that date Baroy informed
the personnel of the court that she was taking
over the functions she assigned to Sambo,
45

particularly the collection of legal fees (Exh. 7).
The notarial fees she claims that Sambo did not
turn over to her were for those documents
notarized (i)n July and September, 1992 already.
Besides there never was any demand she made
for Sambo to turn over some notarial fees
supposedly in his possession. Neither was there
any memorandum she issued on this matter, in
spite of the fact that she has been holding
meetings and issuing memoranda to the
personnel of the court (Exhs. V, W, FF, FF-1, FF-2,
FF-3; Exhs. 4-A (supplement(s), 5-8, 6-S, 7-S and
8-S).
It is admitted by respondent Baroy that on
October 29, 1991 a cash bond deposit of a
certain Dacara in the amount of One Thousand
(P1,000.00) Pesos was turned over to her after
she assumed office and for this cash bond she
issued only a temporary receipt (Exh. Y). She did
not deposit this cash bond in any bank or to the
Municipal Treasurer. She just kept it in her own
cash box on the alleged ground that the parties
in that case where the cash bond was deposited
informed her that they would settle the case
amicably.
Respondent Baroy declared that she finally
deposited the aforementioned cash bond of One
Thousand (P1,000.00) Pesos with the Land Bank
of the Philippines (LBP) in February, 1993, after
this administrative case was already filed (TSN,
pp. 27-28; 12-22-93). The Pass Book, however,
shows that actually Baroy opened an account
with the LBP, Naga Branch, only on March 26,
1993 when she deposited an amount of Two
Thousand (P2,000.00) Pesos (Exhs. 8 to 8-1-a).
She claims that One Thousand (P1,000.000)
Pesos of the initial deposit was the cash bond of
Dacara. If it were true, it was only after keeping
to herself the cash bond of One Thousand
(P1,000.00) Pesos for around one year and five
months when she finally deposited it because of
the filing of this case.
On April 29, 1993, or only one month and two
days after she finally deposited the One
Thousand (P1,000.00) Pesos cash bond of
Dacara, she withdrew it from the bank without
any authority or order from the court. It was
only on July 23, 1993, or after almost three (3)
months after she withdrew it, when she
redeposited said cash bond (TSN, p. 6; 1-4-94).
The evidence presented in this case also show
that on February 28, 1993 respondent Baroy
received also a cash bond of Three Thousand
(P3,000.00) Pesos from a certain Alfredo
Seprones in Crim. Case No. 5180. For this cash
bond deposit, respondent Baroy issued only an
annumbered temporary receipt (Exh. X and X-1).
Again Baroy just kept this Three Thousand
(P3,000.00) Pesos cash bond to herself. She did
not deposit it either (in) a bank or (with) the
Municipal Treasurer. Her explanation was that
the parties in Crim. Case No. 5180 informed her
that they would settle the case amicably. It was
on April 26, 1993, or almost two months later
when Judge Palaypayon issued an order for the
release of said cash bond (Exh. 7).
Respondent Baroy also admitted that since she
assumed office on October 21, 1991 she used to
issue temporary receipt only for cash bond
deposits and other payments and collections she
received. She further admitted that some of
these temporary receipts she issued she failed to
place the number of the receipts such as that
receipt marked Exhibit X (TSN, p. 35; 11-23-93).
Baroy claims that she did not know that she had
to use the official receipts of the Supreme Court.
It was only from February, 1993, after this case
was already filed, when she only started issuing
official receipts.
The next charge against the respondents is that
in order to be appointed Clerk of Court, Baroy
gave Judge Palaypayon an air conditioner as a
gift. The evidence adduced with respect to this
charge, show that on August 24, 1991 Baroy
bought an air conditioner for the sum of
Seventeen Thousand Six Hundred (P17,600.00)
Pesos (Exhs. I and I-1). The same was paid partly
in cash and in check (Exhs. I-2 and I-3). When the
air conditioner was brought to court in order to
be installed in the chamber of Judge Palaypayon,
it was still placed in the same box when it was
bought and was not used yet.
The respondents claim that Baroy sold it to
Judge Palaypayon for Twenty Thousand
(P20,00.00) Pesos on installment basis with a
down payment of Five Thousand (P5,000.00)
Pesos and as proof thereof the respondents
presented a typewritten receipt dated May 29,
1993 (Exh. 22). The receipt was signed by both
respondents and by the Municipal Mayor of
Tinambac, Camarines Sur and another person as
witness.
The alleged sale between respondents is not
beyond suspicion. It was bought by Baroy at a
time when she was applying for the vacant
position of Clerk of Court (to) which she was
eventually appointed in October, 1991. From the
time she bought the air conditioner on August
24, 1991 until it was installed in the office of
Judge Palaypayon it was not used yet. The sale
to Judge Palaypayon was only evidenced by a
mere typewritten receipt dated May 29, 1992
when this case was already filed. The receipt
could have been easily prepared. The Municipal
46

Mayor of Tinambac who signed in the receipt as
a witness did not testify in this case. The sale is
between the Clerk of Court and the Judge of the
same court. All these circumstances give rise to
suspicion of at least impropriety. Judges should
avoid such action as would subject (them) to
suspicion and (their) conduct should be free
from the appearance of impropriety (Jaagueta
vs. Boncasos, 60 SCRA 27).
With respect to the charge that Judge
Palaypayon received a cash bond deposit of One
Thousand (P1,000.00) Pesos from Januaria
Dacara without issuing a receipt, Dacara
executed an affidavit regarding this charge that
Judge Palaypayon did not give her a receipt for
the P1,000.00 cash bond she deposited (Exh. N).
Her affidavit, however, has no probative value as
she did not show that this cash bond of
P1,000.00 found its way into the hands of
respondent Baroy who issued only a temporary
receipt for it and this has been discussed earlier.
Another charge against Judge Palaypayon is the
getting of detention prisoners to work in his
house and one of them escaped while in his
custody and was never found again. To hide this
fact, the case against said accused was ordered
archived by Judge Palaypayon. The evidence
adduced with respect to this particular charge,
show that in Crim. Case No. 5647 entitled People
vs. Stephen Kalaw, Alex Alano and Allan Adupe,
accused Alex Alano and Allan Adupe were
arrested on April 12, 1991 and placed in the
municipal jail of Tinambac, Camarines Sur (Exhs.
0, 0-1, 0-2 and 0-3; Exh. 25). The evidence
presented that Alex Alano was taken by Judge
Palaypayon from the municipal jail where said
accused was confined and that he escaped while
in custody of Judge Palaypayon is solely
testimonial, particularly that of David Ortiz, a
former utility worker of the MTC of Tinambac.
Herein investigator finds said evidence not
sufficient. The complainants should have
presented records from the police of Tinambac
to show that Judge Palaypayon took out from
the municipal jail Alex Alano where he was
under detention and said accused escaped while
in the custody of Judge Palaypayon.
The order, however, of Judge Palaypayon dated
April 6, 1992 in Crim. Case No. 5047 archiving
said case appears to be without basis. The order
states: "this case was filed on April 12, 1991 and
the records show that the warrant of arrest
(was) issued against the accused, but up to this
moment there is no return of service for the
warrant of arrest issued against said accused"
(Exh. 0-4). The records of said case, however,
show that in fact there was a return of the
service of the warrant of arrest dated April 12,
1991 showing that Alano and Adupe were
arrested (Exh. 0-3).
Judge Palaypayon explained that his order dated
April 6, 1992 archiving Crim. Case No. 5047
referred only to one of the accused who
remained at large. The explanation cannot be
accepted because the two other accused, Alano
and Adupe, were arrested. Judge Palaypayon
should have issued an order for the arrest of
Adupe who allegedly jumped bail, but Alano was
supposed to be confined in the municipal jail if
his claim is true that he did not take custody of
Alano.
The explanation also of Judge Palaypayon why
he ordered the case archived was because he
heard from the police that Alano escaped. This
explanation is not acceptable either. He should
ha(ve) set the case and if the police failed to
bring to court Alano, the former should have
been required to explain in writing why Alano
was not brought to court. If the explanation was
that Alano escaped from jail, he should have
issued an order for his arrest. It is only later on
when he could not be arrested when the case
should have been ordered archived. The order
archiving this case for the reason that he only
heard that Alano escaped is another
circumstance which gave rise to a suspicion that
Alano might have really escaped while in his
custody only that the complainants could not
present records or other documentary evidence
to prove the same.
The last charge against the respondents is that
they collected filing fees on collection cases filed
by the Rural Bank of Tinambac, Camarines Sur
which was supposed to be exempted in paying
filing fees under existing laws and that the filing
fees received was deposited by respondent
Baroy in her personal account in the bank. The
evidence presented show that on February 4,
1992 the Rural Bank of Tinambac filed ten (10)
civil cases for collection against farmers and it
paid the total amount of Four Hundred (P400.00)
Pesos representing filing fees. The complainants
cited Section 14 of Republic Act 720, as
amended, which exempts Rural Banks (from) the
payment of filing fees on collection of sums of
money cases filed against farmers on loans they
obtained.
Judge Palaypayon, however, had nothing to do
with the payment of the filing fees of the Rural
Bank of Tinambac as it was respondent Baroy
who received them and besides, on February 4,
1992, he was on sick leave. On her part Baroy
claims that the bank paid voluntarily the filing
fees. The records, however, shows that
47

respondent Baroy sent a letter to the manager of
the bank dated January 28, 1992 to the effect
that if the bank would not pay she would submit
all Rural Bank cases for dismissal (Annex 6,
comment by respondent Baroy).
Respondent Baroy should have checked whether
the Rural Bank of Tinambac was really exempt
from the payment of filing fees pursuant to
Republic Act 720, as amended, instead of
threatening the bank to have its cases be
submitted to the court in order to have them
dismissed. Here the payment of the filing fees
was made on February 4, 1992, but the Four
Hundred (P400.00) Pesos was only turned over
to the Municipal Treasurer on March 12, 1992.
Here, there is an undue delay again in complying
with her obligation as accountable officer.
In view of the foregoing findings that the
evidence presented by the complainants
sufficiently show that respondent Judge Lucio P.
Palaypayon, Jr. had solemnized marriages,
particularly that of Sammy Bocaya and Gina
Besmonte, without a marriage license, and that
it having been shown that he did not comply
with his duty in closely supervising his clerk of
court in the preparation of the monthly report of
cases being submitted to the Supreme Court,
particularly for the months of July and
September, 1992 where it has been proven that
the reports for said two (2) months were falsified
with respect to the number of documents
notarized, it is respectfully recommended that
he be imposed a fine of TEN THOUSAND
(P10,000.00) PESOS with a warning that the
same or similar offenses will be more severely
dealt with.
The fact that Judge Palaypayon did not sign the
marriage contracts or certificates of those
marriages he solemnized without a marriage
license, there were no dates placed in the
marriage contracts to show when they were
solemnized, the contracting parties were not
furnished their marriage contracts and the Local
Civil Registrar was not being sent any copy of the
marriage contract, will not absolve him from
liability. By solemnizing alone a marriage without
a marriage license he as the solemnizing officer
is the one responsible for the irregularity in not
complying (with) the formal requ(i)sites of
marriage and under Article 4(3) of the Family
Code of the Philippines, he shall be civilly,
criminally and administratively liable.
Judge Palaypayon is likewise liable for his
negligence or failure to comply with his duty of
closely supervising his clerk of court in the
performance of the latter's duties and functions,
particularly the preparation of the monthly
report of cases (Bendesula vs. Laya, 58 SCRA 16).
His explanation that he only signed the monthly
report of cases only when his clerk of court
already signed the same, cannot be accepted. It
is his duty to closely supervise her, to check and
verify the records if the monthly reports
prepared by his clerk of court do not contain
false statements. It was held that "A judge
cannot take refuge behind the inefficiency or
incompetence of court personnel (Nidua vs.
Lazaro, 174 SCRA 158).
In view also of the foregoing finding that
respondent Nelia Esmeralda-Baroy, the clerk of
court of the Municipal Trial Court of Tinambac,
Camarines Sur, has been found to have falsified
the monthly report of cases for the months of
July and September, 1992 with respect to the
number of documents notarized, for having
failed to account (for) the notarial fees she
received for said two (2) months period; for
having failed to account (for) the solemnization
fees of those marriages allegedly not
solemnized, but the solemnization fees were not
returned; for unauthorized issuance of
temporary receipts, some of which were issued
unnumbered; for receiving the cash bond of
Dacara on October 29, 1991 in the amount of
One Thousand (P1,000.00) Pesos for which she
issued only a temporary receipt (Exh. Y) and for
depositing it with the Land Bank of the
Philippines only on March 26, 1993, or after one
year and five months in her possession and after
this case was already filed; for withdrawing said
cash bond of One Thousand (P1,000.00) Pesos
on April 29, 1993 without any court order or
authority and redepositing it only on July 23,
1993; for receiving a cash bond of Three
Thousand (P3,000.00) Pesos from Alfredo
Seprones in Crim. Case No. 5180, MTC,
Tinambac, Camarines Sur, for which she issued
only an unnumbered temporary receipt (Exhs. X
and X-1) and for not depositing it with a bank or
with the Municipal Treasurer until it was ordered
released; and for requiring the Rural Bank of
Tinambac, Camarines Sur to pay filing fees on
February 4, 1992 for collection cases filed
against farmers in the amount of Four Hundred
(P400.00) Pesos, but turning over said amount to
the Municipal Treasurer only on March 12, 1992,
it is respectfully recommended that said
respondent clerk of court Nelia Esmeralda-Baroy
be dismissed from the service.
It is provided that "Withdrawal of court deposits
shall be by the clerk of court who shall issue
official receipt to the provincial, city or municipal
treasurer for the amount withdrawn. Court
deposits cannot be withdrawn except by order
of the court, . . . ." (Revised Manual of
Instructions for Treasurers, Sec. 183, 184 and
626; p. 127, Manual for Clerks of Court). A
48

circular also provides that the Clerks of Court
shall immediately issue an official receipt upon
receipt of deposits from party litigants and
thereafter deposit intact the collection with the
municipal, city or provincial treasurer and their
deposits, can only be withdrawn upon proper
receipt and order of the Court (DOJ Circular No.
52, 26 April 1968; p. 136, Manual for Clerks of
Court). Supreme Court Memorandum Circular
No. 5, 25 November 1982, also provides that "all
collections of funds of fiduciary character
including rental deposits, shall be deposited
immediately by the clerk of court concerned
upon receipt thereof with City, Municipal or
Provincial Treasurer where his court is located"
and that "no withdrawal of any of such deposits
shall be made except upon lawful order of the
court exercising jurisdiction over the subject
matter.
Respondent Baroy had either failed to comply
with the foregoing circulars, or deliberately
disregarded, or even intentionally violated them.
By her conduct, she demonstrated her callous
unconcern for the obligations and responsibility
of her duties and functions as a clerk of court
and accountable officer. The gross neglect of her
duties shown by her constitute(s) a serious
misconduct which warrant(s) her removal from
office. In the case of Belen P. Ferriola vs. Norma
Hiam, Clerk of Court, MTCC, Branch I, Batangas
City; A.M. No. P-90-414; August 9, 1993, it was
held that "The clerk of court is not authorized to
keep funds in his/her custody; monies received
by him/her shall be deposited immediately upon
receipt thereof with the City, Municipal or
Provincial Treasurer. Supreme Court Circular
Nos. 5 dated November 25, 1982 and 5-A dated
December 3, 1982. Respondent Hiam's failure to
remit the cash bail bonds and fine she collected
constitutes serious misconduct and her
misappropriation of said funds constitutes
dishonesty. "Respondent Norma Hiam was
found guilty of dishonesty and serious
misconduct prejudicial to the best interest of the
service and (the Court) ordered her immediate
dismissal (from) the service.
xxx xxx xxx
We here emphasize once again our adjuration that the conduct and
behavior of everyone connected with an office charged with the
dispensation of justice, from the presiding judge to the lowliest
clerk, should be circumscribed with the heavy burden of
responsibility. His conduct, at all times, must not only be
characterized by propriety and decorum but, above all else, must be
beyond suspicion. Every employee should be an example of
integrity, uprightness and honesty.
5
Integrity in a judicial office is
more than a virtue, it is a necessity.
6
It applies, without qualification
as to rank or position, from the judge to the least of its personnel,
they being standard-bearers of the exacting norms of ethics and
morality imposed upon a Court of justice.
On the charge regarding illegal marriages the Family Code
pertinently provides that the formal requisites of marriage are, inter
alia, a valid marriage license except in the cases provided for
therein.
7
Complementarily, it declares that the absence of any of
the essential or formal requisites shall generally render the marriage
void ab initio and that, while an irregularity in the formal requisites
shall not affect the validity of the marriage, the party or parties
responsible for the irregularity shall be civilly, criminally and
administratively liable.
8

The civil aspect is addressed to the contracting parties and those
affected by the illegal marriages, and what we are providing for
herein pertains to the administrative liability of respondents, all
without prejudice to their criminal responsibility. The Revised Penal
Code provides that "(p)riests or ministers of any religious
denomination or sect, or civil authorities who shall perform or
authorize any illegal marriage ceremony shall be punished in
accordance with the provisions of the Marriage Law."
9
This is of
course, within the province of the prosecutorial agencies of the
Government.
The recommendation with respect to the administrative sanction to
be imposed on respondent judge should, therefore, be modified. For
one, with respect to the charge of illegal solemnization of marriages,
it does appear that he had not taken to heart, but actually trifled
with, the law's concern for the institution of marriage and the legal
effects flowing from civil status. This, and his undeniable
participation in the other offenses charged as hereinbefore narrated
in detail, approximate such serious degree of misconduct and of
gross negligence in the performance of judicial duties as to
ineludibly require a higher penalty.
WHEREFORE, the Court hereby imposes a FINE of P20,000.00 on
respondent Judge Lucio P. Palaypayon. Jr., with a stern warning that
any repetition of the same or similar offenses in the future will
definitely be severely dealt with. Respondent Nelia Esmeralda-Baroy
is hereby DISMISSED from the service, with forfeiture of all
retirement benefits and with prejudice to employment in any
branch, agency or instrumentality of the Government, including
government-owned or controlled corporations.
Let copies of this decision be spread on their records and furnished
to the Office of the Ombudsman for appropriate action.
SO ORDERED.
Narvasa, C.J., Feliciano, Padilla, Regalado, Davide, Jr.,
Romero, Bellosillo, Melo, Quiason, Puno, Vitug, Kapunan
and Mendoza, JJ., concur.
Cruz, J., took no part.
Bidin, J., is on leave.


49

Republic of the Philippines
SUPREME COURT
Manila
SECOND DIVISION
G.R. No. 160172 February 13, 2008
REINEL ANTHONY B. DE CASTRO, petitioner,
vs.
ANNABELLE ASSIDAO-DE CASTRO, respondent.
D E C I S I O N
TINGA, J.:
This is a petition for review of the Decision
1
of the Court of Appeals
in CA-GR CV. No. 69166,
2
declaring that (1) Reianna Tricia A. De
Castro is the legitimate child of the petitioner; and (2) that the
marriage between petitioner and respondent is valid until properly
nullified by a competent court in a proceeding instituted for that
purpose.
The facts of the case, as culled from the records, follow.
Petitioner and respondent met and became sweethearts in 1991.
They planned to get married, thus they applied for a marriage
license with the Office of the Civil Registrar of Pasig City in
September 1994. They had their first sexual relation sometime in
October 1994, and had regularly engaged in sex thereafter. When
the couple went back to the Office of the Civil Registrar, the
marriage license had already expired. Thus, in order to push through
with the plan, in lieu of a marriage license, they executed an
affidavit dated 13 March 1995 stating that they had been living
together as husband and wife for at least five years. The couple got
married on the same date, with Judge Jose C. Bernabe, presiding
judge of the Metropolitan Trial Court of Pasig City, administering the
civil rites. Nevertheless, after the ceremony, petitioner and
respondent went back to their respective homes and did not live
together as husband and wife.
On 13 November 1995, respondent gave birth to a child named
Reinna Tricia A. De Castro. Since the childs birth, respondent has
been the one supporting her out of her income as a government
dentist and from her private practice.
On 4 June 1998, respondent filed a complaint for support against
petitioner before the Regional Trial Court of Pasig City (trial
court.
3
In her complaint, respondent alleged that she is married to
petitioner and that the latter has "reneged on his
responsibility/obligation to financially support her "as his wife and
Reinna Tricia as his child."
4

Petitioner denied that he is married to respondent, claiming that
their marriage is void ab initio since the marriage was facilitated by a
fake affidavit; and that he was merely prevailed upon by respondent
to sign the marriage contract to save her from embarrassment and
possible administrative prosecution due to her pregnant state; and
that he was not able to get parental advice from his parents before
he got married. He also averred that they never lived together as
husband and wife and that he has never seen nor acknowledged the
child.
In its Decision dated 16 October 2000,
5
the trial court ruled that the
marriage between petitioner and respondent is not valid because it
was solemnized without a marriage license. However, it declared
petitioner as the natural father of the child, and thus obliged to give
her support. Petitioner elevated the case to the Court of Appeals,
arguing that the lower court committed grave abuse of discretion
when, on the basis of mere belief and conjecture, it ordered him to
provide support to the child when the latter is not, and could not
have been, his own child.
The Court of Appeals denied the appeal. Prompted by the rule that a
marriage is presumed to be subsisting until a judicial declaration of
nullity has been made, the appellate court declared that the child
was born during the subsistence and validity of the parties
marriage. In addition, the Court of Appeals frowned upon
petitioners refusal to undergo DNA testing to prove the paternity
and filiation, as well as his refusal to state with certainty the last
time he had carnal knowledge with respondent, saying that
petitioners "forgetfulness should not be used as a vehicle to relieve
him of his obligation and reward him of his being
irresponsible."
6
Moreover, the Court of Appeals noted the affidavit
dated 7 April 1998 executed by petitioner, wherein he voluntarily
admitted that he is the legitimate father of the child.
The appellate court also ruled that since this case is an action for
support, it was improper for the trial court to declare the marriage
of petitioner and respondent as null and void in the very same case.
There was no participation of the State, through the prosecuting
attorney or fiscal, to see to it that there is no collusion between the
parties, as required by the Family Code in actions for declaration of
nullity of a marriage. The burden of proof to show that the marriage
is void rests upon petitioner, but it is a matter that can be raised in
an action for declaration of nullity, and not in the instant
proceedings. The proceedings before the trial court should have
been limited to the obligation of petitioner to support the child and
his wife on the basis of the marriage apparently and voluntarily
entered into by petitioner and respondent.
7
The dispositive portion
of the decision reads:
WHEREFORE, premises considered, the Decision dated 16
October 2000, of the Regional Trial Court of Pasig City,
National Capital Judicial Region, Brach 70, in JDRC No.
4626, is AFFIRMED with theMODIFICATIONS (1) declaring
Reianna Tricia A. De Castro, as the legitimate child of the
appellant and the appellee and (2) declaring the marriage
on 13 March 1995 between the appellant and the appellee
valid until properly annulled by a competent court in a
proceeding instituted for that purpose. Costs against the
appellant.
8

Petitioner filed a motion for reconsideration, but the motion was
denied by the Court of Appeals.
9
Hence this petition.
Before us, petitioner contends that the trial court properly annulled
his marriage with respondent because as shown by the evidence and
admissions of the parties, the marriage was celebrated without a
marriage license. He stresses that the affidavit they executed, in lieu
of a marriage license, contained a false narration of facts, the truth
50

being that he and respondent never lived together as husband and
wife. The false affidavit should never be allowed or admitted as a
substitute to fill the absence of a marriage license.
10
Petitioner
additionally argues that there was no need for the appearance of a
prosecuting attorney in this case because it is only an ordinary
action for support and not an action for annulment or declaration of
absolute nullity of marriage. In any case, petitioner argues that the
trial court had jurisdiction to determine the invalidity of their
marriage since it was validly invoked as an affirmative defense in the
instant action for support. Citing several authorities,
11
petitioner
claims that a void marriage can be the subject of a collateral attack.
Thus, there is no necessity to institute another independent
proceeding for the declaration of nullity of the marriage between
the parties. The refiling of another case for declaration of nullity
where the same evidence and parties would be presented would
entail enormous expenses and anxieties, would be time-consuming
for the parties, and would increase the burden of the
courts.
12
Finally, petitioner claims that in view of the nullity of his
marriage with respondent and his vigorous denial of the childs
paternity and filiation, the Court of Appeals gravely erred in
declaring the child as his legitimate child.
In a resolution dated 16 February 2004, the Court required
respondent and the Office of the Solicitor General (OSG) to file their
respective comments on the petition.
13

In her Comment,
14
respondent claims that the instant petition is a
mere dilatory tactic to thwart the finality of the decision of the Court
of Appeals. Echoing the findings and rulings of the appellate court,
she argues that the legitimacy of their marriage cannot be attacked
collaterally, but can only be repudiated or contested in a direct suit
specifically brought for that purpose. With regard to the filiation of
her child, she pointed out that compared to her candid and
straightforward testimony, petitioner was uncertain, if not evasive in
answering questions about their sexual encounters. Moreover, she
adds that despite the challenge from her and from the trial court,
petitioner strongly objected to being subjected to DNA testing to
prove paternity and filiation.
15

For its part, the OSG avers that the Court of Appeals erred in holding
that it was improper for the trial court to declare null and void the
marriage of petitioner and respondent in the action for support.
Citing the case of Nial v. Bayadog,
16
it states that courts may pass
upon the validity of a marriage in an action for support, since the
right to support from petitioner hinges on the existence of a valid
marriage. Moreover, the evidence presented during the proceedings
in the trial court showed that the marriage between petitioner and
respondent was solemnized without a marriage license, and that
their affidavit (of a man and woman who have lived together and
exclusively with each other as husband and wife for at least five
years) was false. Thus, it concludes the trial court correctly held that
the marriage between petitioner and respondent is not valid.
17
In
addition, the OSG agrees with the findings of the trial court that the
child is an illegitimate child of petitioner and thus entitled to
support.
18

Two key issues are presented before us. First, whether the trial court
had the jurisdiction to determine the validity of the marriage
between petitioner and respondent in an action for support and
second, whether the child is the daughter of petitioner.
Anent the first issue, the Court holds that the trial court had
jurisdiction to determine the validity of the marriage between
petitioner and respondent. The validity of a void marriage may be
collaterally attacked.
19
Thus, in Nial v. Bayadog, we held:
However, other than for purposes of remarriage, no
judicial action is necessary to declare a marriage an
absolute nullity. For other purposes, such as but not
limited to 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 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
connotes that such final judgment need not be obtained
only for purpose of remarriage.
20

Likewise, in Nicdao Cario v. Yee Cario,
21
the Court ruled that it is
clothed with sufficient authority to pass upon the validity of two
marriages despite the main case being a claim for death benefits.
Reiterating Nial, we held that the Court may pass upon the validity
of a marriage 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. However, evidence must be adduced,
testimonial or documentary, to prove the existence of grounds
rendering such a marriage an absolute nullity.
22

Under the Family Code, the absence of any of the essential or formal
requisites shall render the marriage void ab initio, whereas a defect
in any of the essential requisites shall render the marriage
voidable.
23
In the instant case, it is clear from the evidence
presented that petitioner and respondent did not have a marriage
license when they contracted their marriage. Instead, they
presented an affidavit stating that they had been living together for
more than five years.
24
However, respondent herself in effect
admitted the falsity of the affidavit when she was asked during
cross-examination, thus
ATTY. CARPIO:
Q But despite of (sic) the fact that you have not been
living together as husband and wife for the last five years
on or before March 13, 1995, you signed the Affidavit, is
that correct?
A Yes, sir.
25

The falsity of the affidavit cannot be considered as a mere
irregularity in the formal requisites of marriage. The law dispenses
with the marriage license requirement for a man and a woman who
have lived together and exclusively with each other as husband and
wife for a continuous and unbroken period of at least five years
before the marriage. The aim of this provision is to avoid exposing
the parties to humiliation, shame and embarrassment concomitant
with the scandalous cohabitation of persons outside a valid marriage
due to the publication of every applicants name for a marriage
51

license.
26
In the instant case, there was no "scandalous
cohabitation" to protect; in fact, there was no cohabitation at all.
The false affidavit which petitioner and respondent executed so they
could push through with the marriage has no value whatsoever; it is
a mere scrap of paper. They were not exempt from the marriage
license requirement. Their failure to obtain and present a marriage
license renders their marriage void ab initio.
Anent the second issue, we find that the child is petitioners
illegitimate daughter, and therefore entitled to support.
Illegitimate children may establish their illegitimate filiation in the
same way and on the same evidence as legitimate children.
27
Thus,
one can prove illegitimate filiation through the record of birth
appearing in the civil register or a final judgment, an admission of
legitimate filiation in a public document or a private handwritten
instrument and signed by the parent concerned, or the open and
continuous possession of the status of a legitimate child, or any
other means allowed by the Rules of Court and special laws.
28

The Certificate of Live Birth
29
of the child lists petitioner as the
father. In addition, petitioner, in an affidavit waiving additional tax
exemption in favor of respondent, admitted that he is the father of
the child, thus stating:
1. I am the legitimate father of REIANNA TRICIA A. DE
CASTRO who was born on November 3, 1995 at Better
Living, Paraaque, Metro Manila;
30

We are likewise inclined to agree with the following findings of the
trial court:
That Reinna Tricia is the child of the respondent with the
petitioner is supported not only by the testimony of the
latter, but also by respondents own admission in the
course of his testimony wherein he conceded that
petitioner was his former girlfriend. While they were
sweethearts, he used to visit petitioner at the latters
house or clinic. At times, they would go to a motel to have
sex. As a result of their sexual dalliances, petitioner
became pregnant which ultimately led to their marriage,
though invalid, as earlier ruled. While respondent claims
that he was merely forced to undergo the marriage
ceremony, the pictures taken of the occasion reveal
otherwise (Exhs. "B," "B-1," to "B-3," "C," "C-1" and "C-2,"
"D," "D-1" and "D-2," "E," "E-1" and "E-2," "F," "F-1" and
"F-2," "G," "G-1" and "G-2" and "H," "H-1" to "H-3"). In one
of the pictures (Exhs. "D," "D-1" and "D-2"), defendant is
seen putting the wedding ring on petitioners finger and in
another picture (Exhs. "E," "E-1" and "E-2") respondent is
seen in the act of kissing the petitioner.
31

WHEREFORE, the petition is granted in part. The assailed Decision
and Resolution of the Court of Appeals in CA-GR CV No. 69166
are SET ASIDE and the decision of the Regional Trial Court Branch 70
of Pasig City in JDRC No. 4626 dated 16 October 2000 is
hereby REINSTATED.
SO ORDERED.




























52
























































53

Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. L-19671 November 29, 1965
PASTOR B. TENCHAVEZ, plaintiff-appellant,
vs.
VICENTA F. ESCAO, ET AL., defendants-appellees.
I. V. Binamira & F. B. Barria for plaintiff-appellant.
Jalandoni & Jarnir for defendants-appellees.
REYES, J.B.L., J.:
Direct appeal, on factual and legal questions, from the judgment of
the Court of First Instance of Cebu, in its Civil Case No. R-4177,
denying the claim of the plaintiff-appellant, Pastor B. Tenchavez, for
legal separation and one million pesos in damages against his wife
and parents-in-law, the defendants-appellees, Vicente, Mamerto
and Mena,
1
all surnamed "Escao," respectively.
2

The facts, supported by the evidence of record, are the following:
Missing her late afternoon classes on 24 February 1948 in the
University of San Carlos, Cebu City, where she was then enrolled as a
second year student of commerce, Vicenta Escao, 27 years of age
(scion of a well-to-do and socially prominent Filipino family of
Spanish ancestry and a "sheltered colegiala"), exchanged marriage
vows with Pastor Tenchavez, 32 years of age, an engineer, ex-army
officer and of undistinguished stock, without the knowledge of her
parents, before a Catholic chaplain, Lt. Moises Lavares, in the house
of one Juan Alburo in the said city. The marriage was the
culmination of a previous love affair and was duly registered with
the local civil register.
Vicenta's letters to Pastor, and his to her, before the marriage,
indicate that the couple were deeply in love. Together with a friend,
Pacita Noel, their matchmaker and go-between, they had planned
out their marital future whereby Pacita would be the governess of
their first-born; they started saving money in a piggy bank. A few
weeks before their secret marriage, their engagement was broken;
Vicenta returned the engagement ring and accepted another suitor,
Joseling Lao. Her love for Pastor beckoned; she pleaded for his
return, and they reconciled. This time they planned to get married
and then elope. To facilitate the elopement, Vicenta had brought
some of her clothes to the room of Pacita Noel in St. Mary's Hall,
which was their usual trysting place.
Although planned for the midnight following their marriage, the
elopement did not, however, materialize because when Vicente
went back to her classes after the marriage, her mother, who got
wind of the intended nuptials, was already waiting for her at the
college. Vicenta was taken home where she admitted that she had
already married Pastor. Mamerto and Mena Escao were surprised,
because Pastor never asked for the hand of Vicente, and were
disgusted because of the great scandal that the clandestine marriage
would provoke (t.s.n., vol. III, pp. 1105-06). The following morning,
the Escao spouses sought priestly advice. Father Reynes suggested
a recelebration to validate what he believed to be an invalid
marriage, from the standpoint of the Church, due to the lack of
authority from the Archbishop or the parish priest for the officiating
chaplain to celebrate the marriage. The recelebration did not take
place, because on 26 February 1948 Mamerto Escao was handed
by a maid, whose name he claims he does not remember, a letter
purportedly coming from San Carlos college students and disclosing
an amorous relationship between Pastor Tenchavez and Pacita Noel;
Vicenta translated the letter to her father, and thereafter would not
agree to a new marriage. Vicenta and Pastor met that day in the
house of Mrs. Pilar Mendezona. Thereafter, Vicenta continued living
with her parents while Pastor returned to his job in Manila. Her
letter of 22 March 1948 (Exh. "M"), while still solicitous of her
husband's welfare, was not as endearing as her previous letters
when their love was aflame.
Vicenta was bred in Catholic ways but is of a changeable disposition,
and Pastor knew it. She fondly accepted her being called a
"jellyfish." She was not prevented by her parents from
communicating with Pastor (Exh. "1-Escao"), but her letters
became less frequent as the days passed. As of June, 1948 the
newlyweds were already estranged (Exh. "2-Escao"). Vicenta had
gone to Jimenez, Misamis Occidental, to escape from the scandal
that her marriage stirred in Cebu society. There, a lawyer filed for
her a petition, drafted by then Senator Emmanuel Pelaez, to annul
her marriage. She did not sign the petition (Exh. "B-5"). The case was
dismissed without prejudice because of her non-appearance at the
hearing (Exh. "B-4").
On 24 June 1950, without informing her husband, she applied for a
passport, indicating in her application that she was single, that her
purpose was to study, and she was domiciled in Cebu City, and that
she intended to return after two years. The application was
approved, and she left for the United States. On 22 August 1950, she
filed a verified complaint for divorce against the herein plaintiff in
the Second Judicial District Court of the State of Nevada in and for
the County of Washoe, on the ground of "extreme cruelty, entirely
mental in character." On 21 October 1950, a decree of divorce, "final
and absolute", was issued in open court by the said tribunal.
In 1951 Mamerto and Mena Escao filed a petition with the
Archbishop of Cebu to annul their daughter's marriage to Pastor
(Exh. "D"). On 10 September 1954, Vicenta sought papal
dispensation of her marriage (Exh. "D"-2).
On 13 September 1954, Vicenta married an American, Russell Leo
Moran, in Nevada. She now lives with him in California, and, by him,
has begotten children. She acquired American citizenship on 8
August 1958.
But on 30 July 1955, Tenchavez had initiated the proceedings at bar
by a complaint in the Court of First Instance of Cebu, and amended
on 31 May 1956, against Vicenta F. Escao, her parents, Mamerto
and Mena Escao, whom he charged with having dissuaded and
discouraged Vicenta from joining her husband, and alienating her
affections, and against the Roman Catholic Church, for having,
through its Diocesan Tribunal, decreed the annulment of the
marriage, and asked for legal separation and one million pesos in
damages. Vicenta claimed a valid divorce from plaintiff and an
equally valid marriage to her present husband, Russell Leo Moran;
54

while her parents denied that they had in any way influenced their
daughter's acts, and counterclaimed for moral damages.
The appealed judgment did not decree a legal separation, but freed
the plaintiff from supporting his wife and to acquire property to the
exclusion of his wife. It allowed the counterclaim of Mamerto
Escao and Mena Escao for moral and exemplary damages and
attorney's fees against the plaintiff-appellant, to the extent of
P45,000.00, and plaintiff resorted directly to this Court.
The appellant ascribes, as errors of the trial court, the following:
1. In not declaring legal separation; in not holding
defendant Vicenta F. Escao liable for damages and in
dismissing the complaint;.
2. In not holding the defendant parents Mamerto Escano
and the heirs of Doa Mena Escao liable for damages;.
3 In holding the plaintiff liable for and requiring him to pay
the damages to the defendant parents on their
counterclaims; and.
4. In dismissing the complaint and in denying the relief
sought by the plaintiff.
That on 24 February 1948 the plaintiff-appellant, Pastor Tenchavez,
and the defendant-appellee, Vicenta Escao, were validly married to
each other, from the standpoint of our civil law, is clearly
established by the record before us. Both parties were then above
the age of majority, and otherwise qualified; and both consented to
the marriage, which was performed by a Catholic priest (army
chaplain Lavares) in the presence of competent witnesses. It is
nowhere shown that said priest was not duly authorized under civil
law to solemnize marriages.
The chaplain's alleged lack of ecclesiastical authorization from the
parish priest and the Ordinary, as required by Canon law, is
irrelevant in our civil law, not only because of the separation of
Church and State but also because Act 3613 of the Philippine
Legislature (which was the marriage law in force at the time)
expressly provided that
SEC. 1. Essential requisites. Essential requisites for
marriage are the legal capacity of the contracting parties
and consent. (Emphasis supplied)
The actual authority of the solemnizing officer was thus only a
formal requirement, and, therefore, not essential to give the
marriage civil effects,
3
and this is emphasized by section 27 of said
marriage act, which provided the following:
SEC. 27. Failure to comply with formal requirements. No
marriage shall be declared invalid because of the absence
of one or several of the formal requirements of this Act if,
when it was performed, the spouses or one of them
believed in good faith that the person who solemnized the
marriage was actually empowered to do so, and that the
marriage was perfectly legal.
The good faith of all the parties to the marriage (and hence the
validity of their marriage) will be presumed until the contrary is
positively proved (Lao vs. Dee Tim, 45 Phil. 739, 745; Francisco vs.
Jason, 60 Phil. 442, 448). It is well to note here that in the case at
bar, doubts as to the authority of the solemnizing priest arose only
after the marriage, when Vicenta's parents consulted Father Reynes
and the archbishop of Cebu. Moreover, the very act of Vicenta in
abandoning her original action for annulment and subsequently
suing for divorce implies an admission that her marriage to plaintiff
was valid and binding.
Defendant Vicenta Escao argues that when she contracted the
marriage she was under the undue influence of Pacita Noel, whom
she charges to have been in conspiracy with appellant Tenchavez.
Even granting, for argument's sake, the truth of that contention, and
assuming that Vicenta's consent was vitiated by fraud and undue
influence, such vices did not render her marriage ab initio void, but
merely voidable, and the marriage remained valid until annulled by a
competent civil court. This was never done, and admittedly,
Vicenta's suit for annulment in the Court of First Instance of Misamis
was dismissed for non-prosecution.
It is equally clear from the record that the valid marriage between
Pastor Tenchavez and Vicenta Escao remained subsisting and
undissolved under Philippine law, notwithstanding the decree of
absolute divorce that the wife sought and obtained on 21 October
1950 from the Second Judicial District Court of Washoe County,
State of Nevada, on grounds of "extreme cruelty, entirely mental in
character." At the time the divorce decree was issued, Vicenta
Escao, like her husband, was still a Filipino citizen.
4
She was then
subject to Philippine law, and Article 15 of the Civil Code of the
Philippines (Rep. Act No. 386), already in force at the time, expressly
provided:
Laws relating to family rights and duties or to the status,
condition and legal capacity of persons are binding upon
the citizens of the Philippines, even though living abroad.
The Civil Code of the Philippines, now in force, does not admit
absolute divorce, quo ad vinculo matrimonii; and in fact does not
even use that term, to further emphasize its restrictive policy on the
matter, in contrast to the preceding legislation that admitted
absolute divorce on grounds of adultery of the wife or concubinage
of the husband (Act 2710). Instead of divorce, the present Civil Code
only provides for legal separation (Title IV, Book 1, Arts. 97 to 108),
and, even in that case, it expressly prescribes that "the marriage
bonds shall not be severed" (Art. 106, subpar. 1).
For the Philippine courts to recognize and give recognition or effect
to a foreign decree of absolute divorce betiveen Filipino citizens
could be a patent violation of the declared public policy of the state,
specially in view of the third paragraph of Article 17 of the Civil Code
that prescribes the following:
Prohibitive laws concerning persons, their acts or
property, and those which have for their object public
order, policy and good customs, shall not be rendered
ineffective by laws or judgments promulgated, or by
determinations or conventions agreed upon in a foreign
country.
55

Even more, the grant of effectivity in this jurisdiction to such foreign
divorce decrees would, in effect, give rise to an irritating and
scandalous discrimination in favor of wealthy citizens, to the
detriment of those members of our polity whose means do not
permit them to sojourn abroad and obtain absolute divorces outside
the Philippines.
From this point of view, it is irrelevant that appellant Pastor
Tenchavez should have appeared in the Nevada divorce court.
Primarily because the policy of our law cannot be nullified by acts of
private parties (Civil Code,Art. 17, jam quot.); and additionally,
because the mere appearance of a non-resident consort cannot
confer jurisdiction where the court originally had none (Area vs.
Javier, 95 Phil. 579).
From the preceding facts and considerations, there flows as a
necessary consequence that in this jurisdiction Vicenta Escao's
divorce and second marriage are not entitled to recognition as valid;
for her previous union to plaintiff Tenchavez must be declared to be
existent and undissolved. It follows, likewise, that her refusal to
perform her wifely duties, and her denial of consortium and her
desertion of her husband constitute in law a wrong caused through
her fault, for which the husband is entitled to the corresponding
indemnity (Civil Code, Art. 2176). Neither an unsubstantiated charge
of deceit nor an anonymous letter charging immorality against the
husband constitute, contrary to her claim, adequate excuse.
Wherefore, her marriage and cohabitation with Russell Leo Moran is
technically "intercourse with a person not her husband" from the
standpoint of Philippine Law, and entitles plaintiff-appellant
Tenchavez to a decree of "legal separation under our law, on the
basis of adultery" (Revised Penal Code, Art. 333).
The foregoing conclusions as to the untoward effect of a marriage
after an invalid divorce are in accord with the previous doctrines and
rulings of this court on the subject, particularly those that were
rendered under our laws prior to the approval of the absolute
divorce act (Act 2710 of the Philippine Legislature). As a matter of
legal history, our statutes did not recognize divorces a vinculo before
1917, when Act 2710 became effective; and the present Civil Code
of the Philippines, in disregarding absolute divorces, in effect merely
reverted to the policies on the subject prevailing before Act 2710.
The rulings, therefore, under the Civil Code of 1889, prior to the Act
above-mentioned, are now, fully applicable. Of these, the decision
in Ramirez vs. Gmur, 42 Phil. 855, is of particular interest. Said this
Court in that case:
As the divorce granted by the French Court must be
ignored, it results that the marriage of Dr. Mory and Leona
Castro, celebrated in London in 1905, could not legalize
their relations; and the circumstance that they afterwards
passed for husband and wife in Switzerland until her death
is wholly without legal significance. The claims of the very
children to participate in the estate of Samuel Bishop must
therefore be rejected. The right to inherit is limited to
legitimate, legitimated and acknowledged natural children.
The children of adulterous relations are wholly excluded.
The word "descendants" as used in Article 941 of the Civil
Code cannot be interpreted to include illegitimates born
of adulterous relations. (Emphasis supplied)
Except for the fact that the successional rights of the children,
begotten from Vicenta's marriage to Leo Moran after the invalid
divorce, are not involved in the case at bar, the Gmur case is
authority for the proposition that such union is adulterous in this
jurisdiction, and, therefore, justifies an action for legal separation on
the part of the innocent consort of the first marriage, that stands
undissolved in Philippine law. In not so declaring, the trial court
committed error.
True it is that our ruling gives rise to anomalous situations where the
status of a person (whether divorced or not) would depend on the
territory where the question arises. Anomalies of this kind are not
new in the Philippines, and the answer to them was given
in Barretto vs. Gonzales, 58 Phil. 667:
The hardship of the existing divorce laws in the Philippine
Islands are well known to the members of the Legislature.
It is the duty of the Courts to enforce the laws of divorce
as written by Legislature if they are constitutional. Courts
have no right to say that such laws are too strict or too
liberal. (p. 72)
The appellant's first assignment of error is, therefore, sustained.
However, the plaintiff-appellant's charge that his wife's parents, Dr.
Mamerto Escao and his wife, the late Doa Mena Escao, alienated
the affections of their daughter and influenced her conduct toward
her husband are not supported by credible evidence. The testimony
of Pastor Tenchavez about the Escao's animosity toward him
strikes us to be merely conjecture and exaggeration, and are belied
by Pastor's own letters written before this suit was begun (Exh. "2-
Escao" and "Vicenta," Rec. on App., pp. 270-274). In these letters
he expressly apologized to the defendants for "misjudging them"
and for the "great unhappiness" caused by his "impulsive blunders"
and "sinful pride," "effrontery and audacity" [sic]. Plaintiff was
admitted to the Escao house to visit and court Vicenta, and the
record shows nothing to prove that he would not have been
accepted to marry Vicente had he openly asked for her hand, as
good manners and breeding demanded. Even after learning of the
clandestine marriage, and despite their shock at such unexpected
event, the parents of Vicenta proposed and arranged that the
marriage be recelebrated in strict conformity with the canons of
their religion upon advice that the previous one was canonically
defective. If no recelebration of the marriage ceremony was had it
was not due to defendants Mamerto Escao and his wife, but to the
refusal of Vicenta to proceed with it. That the spouses Escao did
not seek to compel or induce their daughter to assent to the
recelebration but respected her decision, or that they abided by her
resolve, does not constitute in law an alienation of affections.
Neither does the fact that Vicenta's parents sent her money while
she was in the United States; for it was natural that they should not
wish their daughter to live in penury even if they did not concur in
her decision to divorce Tenchavez (27 Am. Jur. 130-132).
There is no evidence that the parents of Vicenta, out of improper
motives, aided and abetted her original suit for annulment, or her
subsequent divorce; she appears to have acted independently, and
being of age, she was entitled to judge what was best for her and
ask that her decisions be respected. Her parents, in so doing,
certainly cannot be charged with alienation of affections in the
absence of malice or unworthy motives, which have not been
56

shown, good faith being always presumed until the contrary is
proved.
SEC. 529. Liability of Parents, Guardians or Kin. The law
distinguishes between the right of a parent to interest
himself in the marital affairs of his child and the absence of
rights in a stranger to intermeddle in such affairs.
However, such distinction between the liability of parents
and that of strangers is only in regard to what will justify
interference. A parent isliable for alienation of affections
resulting from his own malicious conduct, as where he
wrongfully entices his son or daughter to leave his or her
spouse, but he is not liable unless he acts maliciously,
without justification and from unworthy motives. He is not
liable where he acts and advises his child in good faith with
respect to his child's marital relations in the interest of his
child as he sees it, the marriage of his child not terminating
his right and liberty to interest himself in, and be
extremely solicitous for, his child's welfare and happiness,
even where his conduct and advice suggest or result in the
separation of the spouses or the obtaining of a divorce or
annulment, or where he acts under mistake or
misinformation, or where his advice or interference are
indiscreet or unfortunate, although it has been held that
the parent is liable for consequences resulting from
recklessness. He may in good faith take his child into his
home and afford him or her protection and support, so
long as he has not maliciously enticed his child away, or
does not maliciously entice or cause him or her to stay
away, from his or her spouse. This rule has more
frequently been applied in the case of advice given to a
married daughter, but it is equally applicable in the case of
advice given to a son.
Plaintiff Tenchavez, in falsely charging Vicenta's aged parents with
racial or social discrimination and with having exerted efforts and
pressured her to seek annulment and divorce, unquestionably
caused them unrest and anxiety, entitling them to recover damages.
While this suit may not have been impelled by actual malice, the
charges were certainly reckless in the face of the proven facts and
circumstances. Court actions are not established for parties to give
vent to their prejudices or spleen.
In the assessment of the moral damages recoverable by appellant
Pastor Tenchavez from defendant Vicente Escao, it is proper to
take into account, against his patently unreasonable claim for a
million pesos in damages, that (a) the marriage was celebrated in
secret, and its failure was not characterized by publicity or undue
humiliation on appellant's part; (b) that the parties never lived
together; and (c) that there is evidence that appellant had originally
agreed to the annulment of the marriage, although such a promise
was legally invalid, being against public policy (cf. Art. 88, Civ. Code).
While appellant is unable to remarry under our law, this fact is a
consequence of the indissoluble character of the union that
appellant entered into voluntarily and with open eyes rather than of
her divorce and her second marriage. All told, we are of the opinion
that appellant should recover P25,000 only by way of moral
damages and attorney's fees.
With regard to the P45,000 damages awarded to the defendants, Dr.
Mamerto Escao and Mena Escao, by the court below, we opine
that the same are excessive. While the filing of this unfounded suit
must have wounded said defendants' feelings and caused them
anxiety, the same could in no way have seriously injured their
reputation, or otherwise prejudiced them, lawsuits having become a
common occurrence in present society. What is important, and has
been correctly established in the decision of the court below, is that
said defendants were not guilty of any improper conduct in the
whole deplorable affair. This Court, therefore, reduces the damages
awarded to P5,000 only.
Summing up, the Court rules:
(1) That a foreign divorce between Filipino citizens, sought and
decreed after the effectivity of the present Civil Code (Rep. Act 386),
is not entitled to recognition as valid in this jurisdiction; and neither
is the marriage contracted with another party by the divorced
consort, subsequently to the foreign decree of divorce, entitled to
validity in the country;
(2) That the remarriage of divorced wife and her co-habitation with
a person other than the lawful husband entitle the latter to a decree
of legal separation conformably to Philippine law;
(3) That the desertion and securing of an invalid divorce decree by
one consort entitles the other to recover damages;
(4) That an action for alienation of affections against the parents of
one consort does not lie in the absence of proof of malice or
unworthy motives on their part.
WHEREFORE, the decision under appeal is hereby modified as
follows;
(1) Adjudging plaintiff-appellant Pastor Tenchavez entitled to a
decree of legal separation from defendant Vicenta F. Escao;
(2) Sentencing defendant-appellee Vicenta Escao to pay plaintiff-
appellant Tenchavez the amount of P25,000 for damages and
attorneys' fees;
(3) Sentencing appellant Pastor Tenchavez to pay the appellee,
Mamerto Escao and the estate of his wife, the deceased Mena
Escao, P5,000 by way of damages and attorneys' fees.
Neither party to recover costs.
Bengzon, C.J., Bautista Angelo, Concepcion, Dizon, Regala,
Makalintal, Bengzon, J.P. and Zaldivar, JJ., concur.




57

Republic of the Philippines
SUPREME COURT
Manila
FIRST DIVISION
G.R. No. L-68470 October 8, 1985
ALICE REYES VAN DORN, petitioner,
vs.
HON. MANUEL V. ROMILLO, JR., as Presiding Judge of Branch CX,
Regional Trial Court of the National Capital Region Pasay City and
RICHARD UPTON respondents.

MELENCIO-HERRERA, J.:\
In this Petition for certiorari and Prohibition, petitioner Alice Reyes
Van Dorn seeks to set aside the Orders, dated September 15, 1983
and August 3, 1984, in Civil Case No. 1075-P, issued by respondent
Judge, which denied her Motion to Dismiss said case, and her
Motion for Reconsideration of the Dismissal Order, respectively.
The basic background facts are that petitioner is a citizen of the
Philippines while private respondent is a citizen of the United States;
that they were married in Hongkong in 1972; that, after the
marriage, they established their residence in the Philippines; that
they begot two children born on April 4, 1973 and December 18,
1975, respectively; that the parties were divorced in Nevada, United
States, in 1982; and that petitioner has re-married also in Nevada,
this time to Theodore Van Dorn.
Dated June 8, 1983, private respondent filed suit against petitioner
in Civil Case No. 1075-P of the Regional Trial Court, Branch CXV, in
Pasay City, stating that petitioner's business in Ermita, Manila, (the
Galleon Shop, for short), is conjugal property of the parties, and
asking that petitioner be ordered to render an accounting of that
business, and that private respondent be declared with right to
manage the conjugal property. Petitioner moved to dismiss the case
on the ground that the cause of action is barred by previous
judgment in the divorce proceedings before the Nevada Court
wherein respondent had acknowledged that he and petitioner had
"no community property" as of June 11, 1982. The Court below
denied the Motion to Dismiss in the mentioned case on the ground
that the property involved is located in the Philippines so that the
Divorce Decree has no bearing in the case. The denial is now the
subject of this certiorari proceeding.
Generally, the denial of a Motion to Dismiss in a civil case is
interlocutory and is not subject to appeal. certiorari and Prohibition
are neither the remedies to question the propriety of an
interlocutory order of the trial Court. However, when a grave abuse
of discretion was patently committed, or the lower Court acted
capriciously and whimsically, then it devolves upon this Court in a
certiorari proceeding to exercise its supervisory authority and to
correct the error committed which, in such a case, is equivalent to
lack of jurisdiction.
1
Prohibition would then lie since it would be
useless and a waste of time to go ahead with the
proceedings.
2
Weconsider the petition filed in this case within the
exception, and we have given it due course.
For resolution is the effect of the foreign divorce on the parties and
their alleged conjugal property in the Philippines.
Petitioner contends that respondent is estopped from laying claim
on the alleged conjugal property because of the representation he
made in the divorce proceedings before the American Court that
they had no community of property; that the Galleon Shop was not
established through conjugal funds, and that respondent's claim is
barred by prior judgment.
For his part, respondent avers that the Divorce Decree issued by the
Nevada Court cannot prevail over the prohibitive laws of the
Philippines and its declared national policy; that the acts and
declaration of a foreign Court cannot, especially if the same is
contrary to public policy, divest Philippine Courts of jurisdiction to
entertain matters within its jurisdiction.
For the resolution of this case, it is not necessary to determine
whether the property relations between petitioner and private
respondent, after their marriage, were upon absolute or relative
community property, upon complete separation of property, or
upon any other regime. The pivotal fact in this case is the
Nevada divorce of the parties.
The Nevada District Court, which decreed the divorce, had obtained
jurisdiction over petitioner who appeared in person before the Court
during the trial of the case. It also obtained jurisdiction over private
respondent who, giving his address as No. 381 Bush Street, San
Francisco, California, authorized his attorneys in the divorce case,
Karp & Gradt Ltd., to agree to the divorce on the ground of
incompatibility in the understanding that there were neither
community property nor community obligations.
3
As explicitly
stated in the Power of Attorney he executed in favor of the law firm
of KARP & GRAD LTD., 336 W. Liberty, Reno, Nevada, to represent
him in the divorce proceedings:
xxx xxx xxx
You are hereby authorized to accept service of
Summons, to file an Answer, appear on my
behalf and do an things necessary and proper to
represent me, without further contesting,
subject to the following:
1. That my spouse seeks a divorce on the ground
of incompatibility.
2. That there is no community of property to be
adjudicated by the Court.
3. 'I'hat there are no community obligations to
be adjudicated by the court.
xxx xxx xxx
4

58

There can be no question as to the validity of that Nevada divorce in
any of the States of the United States. The decree is binding on
private respondent as an American citizen. For instance, private
respondent cannot sue petitioner, as her husband, in any State of
the Union. What he is contending in this case is that the divorce is
not valid and binding in this jurisdiction, the same being contrary to
local law and public policy.
It is true that owing to the nationality principle embodied in Article
15 of the Civil Code,
5
only Philippine nationals are covered by the
policy against absolute divorces the same being considered contrary
to our concept of public police and morality. However, aliens may
obtain divorces abroad, which may be recognized in the Philippines,
provided they are valid according to their national law.
6
In this case,
the divorce in Nevada released private respondent from the
marriage from the standards of American law, under which divorce
dissolves the marriage. As stated by the Federal Supreme Court of
the United States in Atherton vs. Atherton, 45 L. Ed. 794, 799:
The purpose and effect of a decree of divorce
from the bond of matrimony by a court of
competent jurisdiction are to change the existing
status or domestic relation of husband and wife,
and to free them both from the bond. The
marriage tie when thus severed as to one party,
ceases to bind either. A husband without a wife,
or a wife without a husband, is unknown to the
law. When the law provides, in the nature of a
penalty. that the guilty party shall not marry
again, that party, as well as the other, is still
absolutely freed from the bond of the former
marriage.
Thus, pursuant to his national law, private respondent is no longer
the husband of petitioner. He would have no standing to sue in the
case below as petitioner's husband entitled to exercise control over
conjugal assets. As he is bound by the Decision of his own country's
Court, which validly exercised jurisdiction over him, and whose
decision he does not repudiate, he is estopped by his own
representation before said Court from asserting his right over the
alleged conjugal property.
To maintain, as private respondent does, that, under our laws,
petitioner has to be considered still married to private respondent
and still subject to a wife's obligations under Article 109, et. seq. of
the Civil Code cannot be just. Petitioner should not be obliged to live
together with, observe respect and fidelity, and render support to
private respondent. The latter should not continue to be one of her
heirs with possible rights to conjugal property. She should not be
discriminated against in her own country if the ends of justice are to
be served.
WHEREFORE, the Petition is granted, and respondent Judge is
hereby ordered to dismiss the Complaint filed in Civil Case No. 1075-
P of his Court.
Without costs.
SO ORDERED.
Teehankee (Chairman), Plana, Relova, Gutierrez, Jr., De la Fuente
and Patajo, JJ., concur.


























59

Republic of the Philippines
SUPREME COURT
Manila
SECOND DIVISION
G.R. No. 80116 June 30, 1989
IMELDA MANALAYSAY PILAPIL, petitioner,
vs.
HON. CORONA IBAY-SOMERA, in her capacity as Presiding Judge of
the Regional Trial Court of Manila, Branch XXVI; HON. LUIS C.
VICTOR, in his capacity as the City Fiscal of Manila; and ERICH
EKKEHARD GEILING, respondents.

REGALADO, J.:
An ill-starred marriage of a Filipina and a foreigner which ended in a
foreign absolute divorce, only to be followed by a criminal infidelity
suit of the latter against the former, provides Us the opportunity to
lay down a decisional rule on what hitherto appears to be an
unresolved jurisdictional question.
On September 7, 1979, petitioner Imelda Manalaysay Pilapil, a
Filipino citizen, and private respondent Erich Ekkehard Geiling, a
German national, were married before the Registrar of Births,
Marriages and Deaths at Friedensweiler in the Federal Republic of
Germany. The marriage started auspiciously enough, and the couple
lived together for some time in Malate, Manila where their only
child, Isabella Pilapil Geiling, was born on April 20, 1980.
1

Thereafter, marital discord set in, with mutual recriminations
between the spouses, followed by a separation de facto between
them.
After about three and a half years of marriage, such connubial
disharmony eventuated in private respondent initiating a divorce
proceeding against petitioner in Germany before the Schoneberg
Local Court in January, 1983. He claimed that there was failure of
their marriage and that they had been living apart since April,
1982.
2

Petitioner, on the other hand, filed an action for legal separation,
support and separation of property before the Regional Trial Court
of Manila, Branch XXXII, on January 23, 1983 where the same is still
pending as Civil Case No. 83-15866.
3

On January 15, 1986, Division 20 of the Schoneberg Local Court,
Federal Republic of Germany, promulgated a decree of divorce on
the ground of failure of marriage of the spouses. The custody of the
child was granted to petitioner. The records show that under
German law said court was locally and internationally competent for
the divorce proceeding and that the dissolution of said marriage was
legally founded on and authorized by the applicable law of that
foreign jurisdiction.
4

On June 27, 1986, or more than five months after the issuance of
the divorce decree, private respondent filed two complaints for
adultery before the City Fiscal of Manila alleging that, while still
married to said respondent, petitioner "had an affair with a certain
William Chia as early as 1982 and with yet another man named Jesus
Chua sometime in 1983". Assistant Fiscal Jacinto A. de los Reyes, Jr.,
after the corresponding investigation, recommended the dismissal
of the cases on the ground of insufficiency of evidence.
5
However,
upon review, the respondent city fiscal approved a resolution, dated
January 8, 1986, directing the filing of two complaints for adultery
against the petitioner.
6
The complaints were accordingly filed and
were eventually raffled to two branches of the Regional Trial Court
of Manila. The case entitled "People of the Philippines vs. Imelda
Pilapil and William Chia", docketed as Criminal Case No. 87-52435,
was assigned to Branch XXVI presided by the respondent judge;
while the other case, "People of the Philippines vs. Imelda Pilapil and
James Chua", docketed as Criminal Case No. 87-52434 went to the
sala of Judge Leonardo Cruz, Branch XXV, of the same court.
7

On March 14, 1987, petitioner filed a petition with the Secretary of
Justice asking that the aforesaid resolution of respondent fiscal be
set aside and the cases against her be dismissed.
8
A similar petition
was filed by James Chua, her co-accused in Criminal Case No. 87-
52434. The Secretary of Justice, through the Chief State Prosecutor,
gave due course to both petitions and directed the respondent city
fiscal to inform the Department of Justice "if the accused have
already been arraigned and if not yet arraigned, to move to defer
further proceedings" and to elevate the entire records of both cases
to his office for review.
9

Petitioner thereafter filed a motion in both criminal cases to defer
her arraignment and to suspend further proceedings thereon.
10
As a
consequence, Judge Leonardo Cruz suspended proceedings in
Criminal Case No. 87-52434. On the other hand, respondent judge
merely reset the date of the arraignment in Criminal Case No. 87-
52435 to April 6, 1987. Before such scheduled date, petitioner
moved for the cancellation of the arraignment and for the
suspension of proceedings in said Criminal Case No. 87-52435 until
after the resolution of the petition for review then pending before
the Secretary of Justice.
11
A motion to quash was also filed in the
same case on the ground of lack of jurisdiction,
12
which motion was
denied by the respondent judge in an order dated September 8,
1987. The same order also directed the arraignment of both accused
therein, that is, petitioner and William Chia. The latter entered a
plea of not guilty while the petitioner refused to be arraigned. Such
refusal of the petitioner being considered by respondent judge as
direct contempt, she and her counsel were fined and the former was
ordered detained until she submitted herself for
arraignment.
13
Later, private respondent entered a plea of not
guilty.
14

On October 27, 1987, petitioner filed this special civil action
for certiorari and prohibition, with a prayer for a temporary
restraining order, seeking the annulment of the order of the lower
court denying her motion to quash. The petition is anchored on the
main ground that the court is without jurisdiction "to try and decide
the charge of adultery, which is a private offense that cannot be
prosecuted de officio (sic), since the purported complainant, a
foreigner, does not qualify as an offended spouse having obtained a
final divorce decree under his national law prior to his filing the
criminal complaint."
15

60

On October 21, 1987, this Court issued a temporary restraining
order enjoining the respondents from implementing the aforesaid
order of September 8, 1987 and from further proceeding with
Criminal Case No. 87-52435. Subsequently, on March 23, 1988
Secretary of Justice Sedfrey A. Ordoez acted on the aforesaid
petitions for review and, upholding petitioner's ratiocinations,
issued a resolution directing the respondent city fiscal to move for
the dismissal of the complaints against the petitioner.
16

We find this petition meritorious. The writs prayed for shall
accordingly issue.
Under Article 344 of the Revised Penal Code,
17
the crime of
adultery, as well as four other crimes against chastity, cannot be
prosecuted except upon a sworn written complaint filed by
the offended spouse. It has long since been established, with
unwavering consistency, that compliance with this rule is a
jurisdictional, and not merely a formal, requirement.
18
While in
point of strict law the jurisdiction of the court over the offense is
vested in it by the Judiciary Law, the requirement for a sworn
written complaint is just as jurisdictional a mandate since it is that
complaint which starts the prosecutory proceeding
19
and without
which the court cannot exercise its jurisdiction to try the case.
Now, the law specifically provides that in prosecutions for adultery
and concubinage the person who can legally file the complaint
should be the offended spouse, and nobody else. Unlike the
offenses of seduction, abduction, rape and acts of lasciviousness, no
provision is made for the prosecution of the crimes of adultery and
concubinage by the parents, grandparents or guardian of the
offended party. The so-called exclusive and successive rule in the
prosecution of the first four offenses above mentioned do not apply
to adultery and concubinage. It is significant that while the State,
as parens patriae, was added and vested by the 1985 Rules of
Criminal Procedure with the power to initiate the criminal action for
a deceased or incapacitated victim in the aforesaid offenses of
seduction, abduction, rape and acts of lasciviousness, in default of
her parents, grandparents or guardian, such amendment did not
include the crimes of adultery and concubinage. In other words, only
the offended spouse, and no other, is authorized by law to initiate
the action therefor.
Corollary to such exclusive grant of power to the offended spouse to
institute the action, it necessarily follows that such initiator must
have the status, capacity or legal representation to do so at the time
of the filing of the criminal action. This is a familiar and express rule
in civil actions; in fact, lack of legal capacity to sue, as a ground for a
motion to dismiss in civil cases, is determined as of the filing of the
complaint or petition.
The absence of an equivalent explicit rule in the prosecution of
criminal cases does not mean that the same requirement and
rationale would not apply. Understandably, it may not have been
found necessary since criminal actions are generally and
fundamentally commenced by the State, through the People of the
Philippines, the offended party being merely the complaining
witness therein. However, in the so-called "private crimes" or those
which cannot be prosecuted de oficio, and the present prosecution
for adultery is of such genre, the offended spouse assumes a more
predominant role since the right to commence the action, or to
refrain therefrom, is a matter exclusively within his power and
option.
This policy was adopted out of consideration for the aggrieved party
who might prefer to suffer the outrage in silence rather than go
through the scandal of a public trial.
20
Hence, as cogently argued by
petitioner, Article 344 of the Revised Penal Code thus presupposes
that the marital relationship is still subsisting at the time of the
institution of the criminal action for, adultery. This is a logical
consequence since the raison d'etre of said provision of law would
be absent where the supposed offended party had ceased to be the
spouse of the alleged offender at the time of the filing of the
criminal case.
21

In these cases, therefore, it is indispensable that the status and
capacity of the complainant to commence the action be definitely
established and, as already demonstrated, such status or capacity
must indubitably exist as of the time he initiates the action. It would
be absurd if his capacity to bring the action would be determined by
his status before or subsequent to the commencement thereof,
where such capacity or status existed prior to but ceased before, or
was acquired subsequent to but did not exist at the time of, the
institution of the case. We would thereby have the anomalous
spectacle of a party bringing suit at the very time when he is without
the legal capacity to do so.
To repeat, there does not appear to be any local precedential
jurisprudence on the specific issue as to when precisely the status of
a complainant as an offended spouse must exist where a criminal
prosecution can be commenced only by one who in law can be
categorized as possessed of such status. Stated differently and with
reference to the present case, the inquiry ;would be whether it is
necessary in the commencement of a criminal action for adultery
that the marital bonds between the complainant and the accused be
unsevered and existing at the time of the institution of the action by
the former against the latter.
American jurisprudence, on cases involving statutes in that
jurisdiction which are in pari materia with ours, yields the rule
that after a divorce has been decreed, the innocent spouse no longer
has the right to institute proceedings against the offenders where
the statute provides that the innocent spouse shall have the
exclusive right to institute a prosecution for adultery. Where,
however, proceedings have been properly commenced, a divorce
subsequently granted can have no legal effect on the prosecution of
the criminal proceedings to a conclusion.
22

In the cited Loftus case, the Supreme Court of Iowa held that
'No prosecution for adultery can be commenced
except on the complaint of the husband or wife.'
Section 4932, Code. Though Loftus was husband
of defendant when the offense is said to have
been committed, he had ceased to be such when
the prosecution was begun; and appellant insists
that his status was not such as to entitle him to
make the complaint. We have repeatedly said
that the offense is against the unoffending
spouse, as well as the state, in explaining the
reason for this provision in the statute; and we
are of the opinion that the unoffending spouse
61

must be such when the prosecution is
commenced. (Emphasis supplied.)
We see no reason why the same doctrinal rule should not apply in
this case and in our jurisdiction, considering our statutory law and
jural policy on the matter. We are convinced that in cases of such
nature, the status of the complainant vis-a-vis the accused must be
determined as of the time the complaint was filed. Thus, the person
who initiates the adultery case must be an offended spouse, and by
this is meant that he is still married to the accused spouse, at the
time of the filing of the complaint.
In the present case, the fact that private respondent obtained a valid
divorce in his country, the Federal Republic of Germany, is admitted.
Said divorce and its legal effects may be recognized in the
Philippines insofar as private respondent is concerned
23
in view of
the nationality principle in our civil law on the matter of status of
persons.
Thus, in the recent case of Van Dorn vs. Romillo, Jr., et al.,
24
after a
divorce was granted by a United States court between Alice Van
Dornja Filipina, and her American husband, the latter filed a civil
case in a trial court here alleging that her business concern was
conjugal property and praying that she be ordered to render an
accounting and that the plaintiff be granted the right to manage the
business. Rejecting his pretensions, this Court perspicuously
demonstrated the error of such stance, thus:
There can be no question as to the validity of
that Nevada divorce in any of the States of the
United States. The decree is binding on private
respondent as an American citizen. For instance,
private respondent cannot sue petitioner, as her
husband, in any State of the Union. ...
It is true that owing to the nationality principle
embodied in Article 15 of the Civil Code, only
Philippine nationals are covered by the policy
against absolute divorces the same being
considered contrary to our concept of public
policy and morality. However, aliens may obtain
divorces abroad, which may be recognized in the
Philippines, provided they are valid according to
their national law. ...
Thus, pursuant to his national law, private
respondent is no longer the husband of
petitioner. He would have no standing to sue in
the case below as petitioner's husband entitled
to exercise control over conjugal assets. ...
25

Under the same considerations and rationale, private respondent,
being no longer the husband of petitioner, had no legal standing to
commence the adultery case under the imposture that he was the
offended spouse at the time he filed suit.
The allegation of private respondent that he could not have brought
this case before the decree of divorce for lack of knowledge, even if
true, is of no legal significance or consequence in this case. When
said respondent initiated the divorce proceeding, he obviously knew
that there would no longer be a family nor marriage vows to protect
once a dissolution of the marriage is decreed. Neither would there
be a danger of introducing spurious heirs into the family, which is
said to be one of the reasons for the particular formulation of our
law on adultery,
26
since there would thenceforth be no spousal
relationship to speak of. The severance of the marital bond had the
effect of dissociating the former spouses from each other, hence the
actuations of one would not affect or cast obloquy on the other.
The aforecited case of United States vs. Mata cannot be successfully
relied upon by private respondent. In applying Article 433 of the old
Penal Code, substantially the same as Article 333 of the Revised
Penal Code, which punished adultery "although the marriage be
afterwards declared void", the Court merely stated that "the
lawmakers intended to declare adulterous the infidelity of a married
woman to her marital vows, even though it should be made to
appear that she is entitled to have her marriage contract declared
null and void, until and unless she actually secures a formal judicial
declaration to that effect". Definitely, it cannot be logically inferred
therefrom that the complaint can still be filed after the declaration
of nullity because such declaration that the marriage is void ab
initio is equivalent to stating that it never existed. There being no
marriage from the beginning, any complaint for adultery filed after
said declaration of nullity would no longer have a leg to stand on.
Moreover, what was consequently contemplated and within the
purview of the decision in said case is the situation where the
criminal action for adultery was filed before the termination of the
marriage by a judicial declaration of its nullity ab initio. The same
rule and requisite would necessarily apply where the termination of
the marriage was effected, as in this case, by a valid foreign divorce.
Private respondent's invocation of Donio-Teves, et al. vs.
Vamenta, hereinbefore cited,
27
must suffer the same fate of
inapplicability. A cursory reading of said case reveals that the
offended spouse therein had duly and seasonably filed a complaint
for adultery, although an issue was raised as to its sufficiency but
which was resolved in favor of the complainant. Said case did not
involve a factual situation akin to the one at bar or any issue
determinative of the controversy herein.
WHEREFORE, the questioned order denying petitioner's motion to
quash is SET ASIDE and another one enteredDISMISSING the
complaint in Criminal Case No. 87-52435 for lack of jurisdiction. The
temporary restraining order issued in this case on October 21, 1987
is hereby made permanent.
SO ORDERED.
Melencio-Herrera, Padilla and Sarmiento, JJ., concur.





62

Separate Opinions
PARAS, J., concurring:
It is my considered opinion that regardless of whether We consider
the German absolute divorce as valid also in the Philippines, the fact
is that the husband in the instant case, by the very act of his
obtaining an absolute divorce in Germany can no longer be
considered as the offended party in case his former wife actually has
carnal knowledge with another, because in divorcing her, he already
implicitly authorized the woman to have sexual relations with
others. A contrary ruling would be less than fair for a man, who is
free to have sex will be allowed to deprive the woman of the same
privilege.
In the case of Recto v. Harden (100 Phil. 427 [1956]), the Supreme
Court considered the absolute divorce between the American
husband and his American wife as valid and binding in the
Philippines on the theory that their status and capacity are governed
by their National law, namely, American law. There is no decision
yet of the Supreme Court regarding the validity of such a divorce if
one of the parties, say an American, is married to a Filipino wife, for
then two (2) different nationalities would be involved.
In the book of Senate President Jovito Salonga entitled Private
International Law and precisely because of theNational law doctrine,
he considers the absolute divorce as valid insofar as the American
husband is concerned but void insofar as the Filipino wife is
involved. This results in what he calls a "socially grotesque
situation," where a Filipino woman is still married to a man who is
no longer her husband. It is the opinion however, of the undersigned
that very likely the opposite expresses the correct view. While under
the national law of the husband the absolute divorce will be valid,
still one of the exceptions to the application of the proper foreign
law (one of the exceptions to comity) is when the foreign law will
work an injustice or injury to the people or residents of the forum.
Consequently since to recognize the absolute divorce as valid on the
part of the husband would be injurious or prejudicial to the Filipino
wife whose marriage would be still valid under her national law, it
would seem that under our law existing before the new Family Code
(which took effect on August 3, 1988) the divorce should be
considered void both with respect to the American husband and the
Filipino wife.
The recent case of Van Dorn v. Romillo, Jr. (139 SCRA [1985]) cannot
apply despite the fact that the husband was an American can with a
Filipino wife because in said case the validity of the divorce insofar
as the Filipino wife is concerned was NEVER put in issue.































































63

FIRST DIVISION

REPUBLIC OF THE
PHILIPPINES,
Petitioner,
G.R. No. 154380




- versus -

Present:
Davide, Jr., C.J.,
(Chairman),
Quisumbing,
Ynares-Santiago,
Carpio, and
Azcuna, JJ.
CIPRIANO ORBECIDO III,
Respondent.

Promulgated:
October 5, 2005
x - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - x
DECISION
QUISUMBING, J.:
Given a valid marriage between two Filipino citizens,
where one party is later naturalized as a foreign citizen and obtains a
valid divorce decree capacitating him or her to remarry, can the
Filipino spouse likewise remarry under Philippine law?
Before us is a case of first impression that behooves the
Court to make a definite ruling on this apparently novel question,
presented as a pure question of law.
In this petition for review, the Solicitor General assails
the Decision
[1]
dated May 15, 2002, of the Regional Trial Court of
Molave, Zamboanga del Sur, Branch 23 and its Resolution
[2]
dated
July 4, 2002 denying the motion for reconsideration. The court a
quo had declared that herein respondent Cipriano Orbecido III is
capacitated to remarry. The fallo of the impugned Decision reads:
WHEREFORE, by virtue of the provision of
the second paragraph of Art. 26 of the Family
Code and by reason of the divorce decree
obtained against him by his American wife, the
petitioner is given the capacity to remarry under
the Philippine Law.
IT IS SO ORDERED.
[3]

The factual antecedents, as narrated by the trial court, are as
follows.
On May 24, 1981, Cipriano Orbecido III married Lady Myros M.
Villanueva at the United Church of Christ in the Philippines in Lam-
an, Ozamis City. Their marriage was blessed with a son and a
daughter, Kristoffer Simbortriz V. Orbecido and Lady Kimberly V.
Orbecido.
In 1986, Ciprianos wife left for the United States bringing
along their son Kristoffer. A few years later, Cipriano discovered
that his wife had been naturalized as an American citizen.
Sometime in 2000, Cipriano learned from his son that his
wife had obtained a divorce decree and then married a certain
Innocent Stanley. She, Stanley and her child by him currently live at
5566 A. Walnut Grove Avenue, San Gabriel, California.
Cipriano thereafter filed with the trial court a petition for
authority to remarry invoking Paragraph 2 of Article 26 of the Family
Code. No opposition was filed. Finding merit in the petition, the
court granted the same. The Republic, herein petitioner, through
the Office of the Solicitor General (OSG), sought reconsideration but
it was denied.
In this petition, the OSG raises a pure question of law:
WHETHER OR NOT RESPONDENT CAN REMARRY
UNDER ARTICLE 26 OF THE FAMILY CODE
[4]

The OSG contends that Paragraph 2 of Article 26 of the Family
Code is not applicable to the instant case because it only applies to a
valid mixed marriage; that is, a marriage celebrated between a
Filipino citizen and an alien. The proper remedy, according to the
OSG, is to file a petition for annulment or for legal separation.
[5]

Furthermore, the OSG argues there is no law that governs
respondents situation. The OSG posits that this is a matter of
legislation and not of judicial determination.
[6]

For his part, respondent admits that Article 26 is not directly
applicable to his case but insists that when his naturalized alien wife
obtained a divorce decree which capacitated her to remarry, he is
likewise capacitated by operation of law pursuant to Section 12,
Article II of the Constitution.
[7]

At the outset, we note that the petition for authority to
remarry filed before the trial court actually constituted a petition for
declaratory relief. In this connection, Section 1, Rule 63 of the Rules
of Court provides:
RULE 63
DECLARATORY RELIEF AND SIMILAR REMEDIES

Section 1. Who may file petitionAny
person interested under a deed, will, contract or
other written instrument, or whose rights are
affected by a statute, executive order or
regulation, ordinance, or other governmental
64

regulation may, before breach or violation
thereof, bring an action in the appropriate
Regional Trial Court to determine any question
of construction or validity arising, and for a
declaration of his rights or duties, thereunder.
. . .
The requisites of a petition for declaratory relief are: (1) there
must be a justiciable controversy; (2) the controversy must be
between persons whose interests are adverse; (3) that the party
seeking the relief has a legal interest in the controversy; and (4) that
the issue is ripe for judicial determination.
[8]

This case concerns the applicability of Paragraph 2 of
Article 26 to a marriage between two Filipino citizens where one
later acquired alien citizenship, obtained a divorce decree, and
remarried while in the U.S.A. The interests of the parties are also
adverse, as petitioner representing the State asserts its duty to
protect the institution of marriage while respondent, a private
citizen, insists on a declaration of his capacity to remarry.
Respondent, praying for relief, has legal interest in the controversy.
The issue raised is also ripe for judicial determination inasmuch as
when respondent remarries, litigation ensues and puts into question
the validity of his second marriage.
Coming now to the substantive issue, does Paragraph 2 of
Article 26 of the Family Code apply to the case of respondent?
Necessarily, we must dwell on how this provision had come about in
the first place, and what was the intent of the legislators in its
enactment?
Brief Historical Background
On July 6, 1987, then President Corazon Aquino signed
into law Executive Order No. 209, otherwise known as the Family
Code, which took effect on August 3, 1988. Article 26 thereof
states:
All marriages solemnized outside the
Philippines in accordance with the laws in force
in the country where they were solemnized, and
valid there as such, shall also be valid in this
country, except those prohibited under Articles
35, 37, and 38.
On July 17, 1987, shortly after the signing of the original
Family Code, Executive Order No. 227 was likewise signed into law,
amending Articles 26, 36, and 39 of the Family Code. A second
paragraph was added to Article 26. As so amended, it now provides:
ART. 26. All marriages solemnized
outside the Philippines in accordance with the
laws in force in the country where they were
solemnized, and valid there as such, shall also be
valid in this country, except those prohibited
under Articles 35(1), (4), (5) and (6), 36, 37 and
38.
Where a marriage between a Filipino
citizen and a foreigner is validly celebrated and a
divorce is thereafter validly obtained abroad by
the alien spouse capacitating him or her to
remarry, the Filipino spouse shall have capacity
to remarry under Philippine law. (Emphasis
supplied)
On its face, the foregoing provision does not appear to
govern the situation presented by the case at hand. It seems to
apply only to cases where at the time of the celebration of the
marriage, the parties are a Filipino citizen and a foreigner. The
instant case is one where at the time the marriage was solemnized,
the parties were two Filipino citizens, but later on, the wife was
naturalized as an American citizen and subsequently obtained a
divorce granting her capacity to remarry, and indeed she remarried
an American citizen while residing in the U.S.A.
Noteworthy, in the Report of the Public Hearings
[9]
on the
Family Code, the Catholic Bishops Conference of the Philippines
(CBCP) registered the following objections to Paragraph 2 of Article
26:
1. The rule is discriminatory. It
discriminates against those whose
spouses are Filipinos who divorce them
abroad. These spouses who are
divorced will not be able to re-marry,
while the spouses of foreigners who
validly divorce them abroad can.
2. This is the beginning of the
recognition of the validity of divorce
even for Filipino citizens. For those
whose foreign spouses validly divorce
them abroad will also be considered to
be validly divorced here and can re-
marry. We propose that this be
deleted and made into law only after
more widespread consultation.
(Emphasis supplied.)
Legislative Intent
Records of the proceedings of the Family Code
deliberations showed that the intent of Paragraph 2 of Article 26,
according to Judge Alicia Sempio-Diy, a member of the Civil Code
Revision Committee, is to avoid the absurd situation where the
Filipino spouse remains married to the alien spouse who, after
obtaining a divorce, is no longer married to the Filipino spouse.
Interestingly, Paragraph 2 of Article 26 traces its origin to
the 1985 case of Van Dorn v. Romillo, Jr.
[10]
The Van Dorn case
involved a marriage between a Filipino citizen and a foreigner. The
Court held therein that a divorce decree validly obtained by the alien
spouse is valid in the Philippines, and consequently, the Filipino
spouse is capacitated to remarry under Philippine law.
Does the same principle apply to a case where at the time
of the celebration of the marriage, the parties were Filipino citizens,
65

but later on, one of them obtains a foreign citizenship by
naturalization?
The jurisprudential answer lies latent in the 1998 case
of Quita v. Court of Appeals.
[11]
In Quita, the parties were, as in this
case, Filipino citizens when they got married. The wife became a
naturalized American citizen in 1954 and obtained a divorce in the
same year. The Court therein hinted, by way of obiter dictum, that a
Filipino divorced by his naturalized foreign spouse is no longer
married under Philippine law and can thus remarry.
Thus, taking into consideration the legislative intent and
applying the rule of reason, we hold that Paragraph 2 of Article 26
should be interpreted to include cases involving parties who, at the
time of the celebration of the marriage were Filipino citizens, but
later on, one of them becomes naturalized as a foreign citizen and
obtains a divorce decree. The Filipino spouse should likewise be
allowed to remarry as if the other party were a foreigner at the time
of the solemnization of the marriage. To rule otherwise would be to
sanction absurdity and injustice. Where the interpretation of a
statute according to its exact and literal import would lead to
mischievous results or contravene the clear purpose of the
legislature, it should be construed according to its spirit and reason,
disregarding as far as necessary the letter of the law. A statute may
therefore be extended to cases not within the literal meaning of its
terms, so long as they come within its spirit or intent.
[12]

If we are to give meaning to the legislative intent to avoid
the absurd situation where the Filipino spouse remains married to
the alien spouse who, after obtaining a divorce is no longer married
to the Filipino spouse, then the instant case must be deemed as
coming within the contemplation of Paragraph 2 of Article 26.
In view of the foregoing, we state the twin elements for
the application of Paragraph 2 of Article 26 as follows:
1. There is a valid marriage that has
been celebrated between a Filipino
citizen and a foreigner; and
2. A valid divorce is obtained abroad by
the alien spouse capacitating him or
her to remarry.
The reckoning point is not the citizenship of the parties at
the time of the celebration of the marriage, but their citizenship at the
time a valid divorce is obtained abroad by the alien spouse
capacitating the latter to remarry.
In this case, when Ciprianos wife was naturalized as an
American citizen, there was still a valid marriage that has been
celebrated between her and Cipriano. As fate would have it, the
naturalized alien wife subsequently obtained a valid divorce
capacitating her to remarry. Clearly, the twin requisites for the
application of Paragraph 2 of Article 26 are both present in this
case. Thus Cipriano, the divorced Filipino spouse, should be
allowed to remarry.
We are also unable to sustain the OSGs theory that the
proper remedy of the Filipino spouse is to file either a petition for
annulment or a petition for legal separation. Annulment would be a
long and tedious process, and in this particular case, not even
feasible, considering that the marriage of the parties appears to
have all the badges of validity. On the other hand, legal separation
would not be a sufficient remedy for it would not sever the marriage
tie; hence, the legally separated Filipino spouse would still remain
married to the naturalized alien spouse.
However, we note that the records are bereft of competent
evidence duly submitted by respondent concerning the divorce
decree and the naturalization of respondents wife. It is settled rule
that one who alleges a fact has the burden of proving it and mere
allegation is not evidence.
[13]

Accordingly, for his plea to prosper, respondent herein must
prove his allegation that his wife was naturalized as an American
citizen. Likewise, before a foreign divorce decree can be recognized
by our own courts, the party pleading it must prove the divorce as a
fact and demonstrate its conformity to the foreign law allowing
it.
[14]
Such foreign law must also be proved as our courts cannot
take judicial notice of foreign laws. Like any other fact, such laws
must be alleged and proved.
[15]
Furthermore, respondent must also
show that the divorce decree allows his former wife to remarry as
specifically required in Article 26. Otherwise, there would be no
evidence sufficient to declare that he is capacitated to enter into
another marriage.
Nevertheless, we are unanimous in our holding that Paragraph
2 of Article 26 of the Family Code (E.O. No. 209, as amended by E.O.
No. 227), should be interpreted to allow a Filipino citizen, who has
been divorced by a spouse who had acquired foreign citizenship and
remarried, also to remarry. However, considering that in the
present petition there is no sufficient evidence submitted and on
record, we are unable to declare, based on respondents bare
allegations that his wife, who was naturalized as an American
citizen, had obtained a divorce decree and had remarried an
American, that respondent is now capacitated to remarry. Such
declaration could only be made properly upon respondents
submission of the aforecited evidence in his favor.
ACCORDINGLY, the petition by the Republic of the Philippines
is GRANTED. The assailed Decision dated May 15, 2002, and
Resolution dated July 4, 2002, of the Regional Trial Court of Molave,
Zamboanga del Sur, Branch 23, are herebySET ASIDE.
No pronouncement as to costs.
SO ORDERED.
66




























































67

Republic of the Philippines
SUPREME COURT
Manila
SECOND DIVISION
G.R. No. 142820 June 20, 2003
WOLFGANG O. ROEHR, petitioner,
vs.
MARIA CARMEN D. RODRIGUEZ, HON. JUDGE JOSEFINA GUEVARA-
SALONGA, Presiding Judge of Makati RTC, Branch
149, respondents.
QUISUMBING, J.:
At the core of the present controversy are issues of (a) grave abuse
of discretion allegedly committed by public respondent and (b) lack
of jurisdiction of the regional trial court, in matters that spring from
a divorce decree obtained abroad by petitioner.
In this special civil action for certiorari, petitioner assails (a) the
order
1
dated September 30, 1999 of public respondent Judge
Josefina Guevara-Salonga, Presiding Judge of Makati Regional Trial
Court,
2
Branch 149, in Civil Case No. 96-1389 for declaration of
nullity of marriage, and (b) the order
3
dated March 31, 2000 denying
his motion for reconsideration. The assailed orders partially set aside
the trial courts order dismissing Civil Case No. 96-1389, for the
purpose of resolving issues relating to the property settlement of
the spouses and the custody of their children.
Petitioner Wolfgang O. Roehr, a German citizen and resident of
Germany, married private respondent Carmen Rodriguez, a Filipina,
on December 11, 1980 in Hamburg, Germany. Their marriage was
subsequently ratified on February 14, 1981 in Tayasan, Negros
Oriental.
4
Out of their union were born Carolynne and Alexandra
Kristine on November 18, 1981 and October 25, 1987, respectively.
On August 28, 1996, private respondent filed a petition
5
for
declaration of nullity of marriage before the Regional Trial Court
(RTC) of Makati City. On February 6, 1997, petitioner filed a motion
to dismiss,
6
but it was denied by the trial court in its order
7
dated
May 28, 1997.
On June 5, 1997, petitioner filed a motion for reconsideration, but
was also denied in an order
8
dated August 13, 1997. On September
5, 1997, petitioner filed a petition for certiorari with the Court of
Appeals. On November 27, 1998, the appellate court denied the
petition and remanded the case to the RTC.
Meanwhile, petitioner obtained a decree of divorce from the Court
of First Instance of Hamburg-Blankenese, promulgated on December
16, 1997.
The decree provides in part:
[T]he Court of First Instance, Hamburg-Blankenese, Branch
513, has ruled through Judge van Buiren of the Court of
First Instance on the basis of the oral proceedings held on
4 Nov. 1997:
The marriage of the Parties contracted on 11 December
1980 before the Civil Registrar of Hamburg-Altona is
hereby dissolved.
The parental custody for the children
Carolynne Roehr, born 18 November 1981
Alexandra Kristine Roehr, born on 25 October
1987
is granted to the father.
The litigation expenses shall be assumed by the Parties.
9

In view of said decree, petitioner filed a Second Motion to Dismiss
on May 20, 1999 on the ground that the trial court had no
jurisdiction over the subject matter of the action or suit as a decree
of divorce had already been promulgated dissolving the marriage of
petitioner and private respondent.
On July 14, 1999, Judge Guevara-Salonga issued an order granting
petitioners motion to dismiss. Private respondent filed a Motion for
Partial Reconsideration, with a prayer that the case proceed for the
purpose of determining the issues of custody of children and the
distribution of the properties between petitioner and private
respondent.
On August 18, 1999, an Opposition to the Motion for Partial
Reconsideration was filed by the petitioner on the ground that there
is nothing to be done anymore in the instant case as the marital tie
between petitioner Wolfgang Roehr and respondent Ma. Carmen D.
Rodriguez had already been severed by the decree of divorce
promulgated by the Court of First Instance of Hamburg, Germany on
December 16, 1997 and in view of the fact that said decree of
divorce had already been recognized by the RTC in its order of July
14, 1999, through the implementation of the mandate of Article 26
of the Family Code,
10
endowing the petitioner with the capacity to
remarry under the Philippine law.
On September 30, 1999, respondent judge issued the assailed order
partially setting aside her order dated July 14, 1999 for the purpose
of tackling the issues of property relations of the spouses as well as
support and custody of their children. The pertinent portion of said
order provides:
Acting on the Motion for Partial Reconsideration of the
Order dated July 14, 1999 filed by petitioner thru counsel
which was opposed by respondent and considering that
the second paragraph of Article 26 of the Family Code was
included as an amendment thru Executive Order 227, to
avoid the absurd situation of a Filipino as being still
married to his or her alien spouse though the latter is no
longer married to the Filipino spouse because he/she had
obtained a divorce abroad which is recognized by his/her
national law, and considering further the effects of the
termination of the marriage under Article 43 in relation to
68

Article 50 and 52 of the same Code, which include the
dissolution of the property relations of the spouses, and
the support and custody of their children, the Order
dismissing this case is partially set aside with respect to
these matters which may be ventilated in this Court.
SO ORDERED.
11
(Emphasis supplied.)
Petitioner filed a timely motion for reconsideration on October 19,
1999, which was denied by respondent judge in an order dated
March 31, 2000.
12

Petitioner ascribes lack of jurisdiction of the trial court and grave
abuse of discretion on the part of respondent judge. He cites as
grounds for his petition the following:
1. Partially setting aside the order dated July 14, 1999
dismissing the instant case is not allowed by 1997 Rules of
Civil Procedure.
13

2. Respondent Maria Carmen Rodriguez by her motion for
Partial Reconsideration had recognized and admitted the
Divorce Decision obtained by her ex-husband in Hamburg,
Germany.
14

3. There is nothing left to be tackled by the Honorable
Court as there are no conjugal assets alleged in the
Petition for Annulment of Marriage and in the Divorce
petition, and the custody of the children had already been
awarded to Petitioner Wolfgang Roehr.
15

Pertinent in this case before us are the following issues:
1. Whether or not respondent judge gravely abused her
discretion in issuing her order dated September 30, 1999,
which partially modified her order dated July 14, 1999; and
2. Whether or not respondent judge gravely abused her
discretion when she assumed and retained jurisdiction
over the present case despite the fact that petitioner has
already obtained a divorce decree from a German court.
On the first issue, petitioner asserts that the assailed order of
respondent judge is completely inconsistent with her previous order
and is contrary to Section 3, Rule 16, Rules of Civil Procedure, which
provides:
Sec. 3. Resolution of motion - After the hearing, the court
may dismiss the action or claim, deny the motion, or order
the amendment of the pleading.
The court shall not defer the resolution of the motion for
the reason that the ground relied upon is not indubitable.
In every case, the resolution shall state clearly and
distinctly the reasons therefor. (Emphasis supplied.)
Petitioner avers that a courts action on a motion is limited to
dismissing the action or claim, denying the motion, or ordering the
amendment of the pleading.
Private respondent, on her part, argues that the RTC can validly
reconsider its order dated July 14, 1999 because it had not yet
attained finality, given the timely filing of respondents motion for
reconsideration.
Pertinent to this issue is Section 3 in relation to Section 7, Rule 37 of
the 1997 Rules of Civil Procedure, which provides:
Sec. 3. Action upon motion for new trial or
reconsideration.The trial court may set aside the
judgment or final order and grant a new trial, upon such
terms as may be just, or may deny the motion. If the court
finds that excessive damages have been awarded or that
the judgment or final order is contrary to the evidence or
law, it may amend such judgment or final order
accordingly.
Sec. 7. Partial new trial or reconsideration.If the grounds
for a motion under this Rule appear to the court to affect
the issues as to only a part, or less than all of the matters
in controversy, or only one, or less than all, of the parties
to it, the court may order a new trial or grant
reconsideration as to such issues if severable without
interfering with the judgment or final order upon the rest.
(Emphasis supplied.)
It is clear from the foregoing rules that a judge can order a partial
reconsideration of a case that has not yet attained finality.
Considering that private respondent filed a motion for
reconsideration within the reglementary period, the trial court's
decision of July 14, 1999 can still be modified. Moreover, in Saado
v. Court of Appeals,
16
we held that the court could modify or alter a
judgment even after the same has become executory whenever
circumstances transpire rendering its decision unjust and
inequitable, as where certain facts and circumstances justifying or
requiring such modification or alteration transpired after the
judgment has become final and executory
17
and when it becomes
imperative in the higher interest of justice or when supervening
events warrant it.
18
In our view, there are even more compelling
reasons to do so when, as in this case, judgment has not yet attained
finality.
Anent the second issue, petitioner claims that respondent judge
committed grave abuse of discretion when she partially set aside her
order dated July 14, 1999, despite the fact that petitioner has
already obtained a divorce decree from the Court of First Instance of
Hamburg, Germany.
In Garcia v. Recio,
19
Van Dorn v. Romillo, Jr.,
20
and Llorente v. Court
of Appeals,
21
we consistently held that a divorce obtained abroad by
an alien may be recognized in our jurisdiction, provided such decree
is valid according to the national law of the foreigner. Relevant to
the present case is Pilapil v. Ibay-Somera,
22
where this Court
specifically recognized the validity of a divorce obtained by a
German citizen in his country, the Federal Republic of Germany. We
held in Pilapil that a foreign divorce and its legal effects may be
recognized in the Philippines insofar as respondent is concerned in
69

view of the nationality principle in our civil law on the status of
persons.
In this case, the divorce decree issued by the German court dated
December 16, 1997 has not been challenged by either of the parties.
In fact, save for the issue of parental custody, even the trial court
recognized said decree to be valid and binding, thereby endowing
private respondent the capacity to remarry. Thus, the present
controversy mainly relates to the award of the custody of their two
children, Carolynne and Alexandra Kristine, to petitioner.
As a general rule, divorce decrees obtained by foreigners in other
countries are recognizable in our jurisdiction, but the legal effects
thereof, e.g. on custody, care and support of the children, must still
be determined by our courts.
23
Before our courts can give the effect
of res judicata to a foreign judgment, such as the award of custody
to petitioner by the German court, it must be shown that the parties
opposed to the judgment had been given ample opportunity to do
so on grounds allowed under Rule 39, Section 50 of the Rules of
Court (now Rule 39, Section 48, 1997 Rules of Civil Procedure), to
wit:
SEC. 50. Effect of foreign judgments. - The effect of a
judgment of a tribunal of a foreign country, having
jurisdiction to pronounce the judgment is as follows:
(a) In case of a judgment upon a specific thing, the
judgment is conclusive upon the title to the thing;
(b) In case of a judgment against a person, the judgment is
presumptive evidence of a right as between the parties
and their successors in interest by a subsequent title; but
the judgment may be repelled by evidence of a want of
jurisdiction, want of notice to the party, collusion, fraud,
or clear mistake of law or fact.
It is essential that there should be an opportunity to challenge the
foreign judgment, in order for the court in this jurisdiction to
properly determine its efficacy. In this jurisdiction, our Rules of
Court clearly provide that with respect to actions in personam, as
distinguished from actions in rem, a foreign judgment merely
constitutes prima facieevidence of the justness of the claim of a
party and, as such, is subject to proof to the contrary.
24

In the present case, it cannot be said that private respondent was
given the opportunity to challenge the judgment of the German
court so that there is basis for declaring that judgment as res
judicata with regard to the rights of petitioner to have parental
custody of their two children. The proceedings in the German court
were summary. As to what was the extent of private respondents
participation in the proceedings in the German court, the records
remain unclear. The divorce decree itself states that neither has she
commented on the proceedings
25
nor has she given her opinion to
the Social Services Office.
26
Unlike petitioner who was represented
by two lawyers, private respondent had no counsel to assist her in
said proceedings.
27
More importantly, the divorce judgment was
issued to petitioner by virtue of the German Civil Code provision to
the effect that when a couple lived separately for three years, the
marriage is deemed irrefutably dissolved. The decree did not touch
on the issue as to who the offending spouse was. Absent any finding
that private respondent is unfit to obtain custody of the children,
the trial court was correct in setting the issue for hearing to
determine the issue of parental custody, care, support and
education mindful of the best interests of the children. This is in
consonance with the provision in the Child and Youth Welfare Code
that the childs welfare is always the paramount consideration in all
questions concerning his care and custody.
28

On the matter of property relations, petitioner asserts that public
respondent exceeded the bounds of her jurisdiction when she
claimed cognizance of the issue concerning property relations
between petitioner and private respondent. Private respondent
herself has admitted in Par. 14 of her petition for declaration of
nullity of marriage dated August 26, 1996 filed with the RTC of
Makati, subject of this case, that: "[p]etitioner and respondent have
not acquired any conjugal or community property nor have they
incurred any debts during their marriage."
29
Herein petitioner did not
contest this averment. Basic is the rule that a court shall grant relief
warranted by the allegations and the proof.
30
Given the factual
admission by the parties in their pleadings that there is no property
to be accounted for, respondent judge has no basis to assert
jurisdiction in this case to resolve a matter no longer deemed in
controversy.
In sum, we find that respondent judge may proceed to determine
the issue regarding the custody of the two children born of the
union between petitioner and private respondent. Private
respondent erred, however, in claiming cognizance to settle the
matter of property relations of the parties, which is not at issue.
WHEREFORE, the orders of the Regional Trial Court of Makati,
Branch 149, issued on September 30, 1999 and March 31, 2000
are AFFIRMED with MODIFICATION. We hereby declare that the
trial court has jurisdiction over the issue between the parties as to
who has parental custody, including the care, support and education
of the children, namely Carolynne and Alexandra Kristine Roehr. Let
the records of this case be remanded promptly to the trial court for
continuation of appropriate proceedings. No pronouncement as to
costs.
SO ORDERED.
Bellosillo, (Chairman), and Callejo, Sr., JJ., concur.
Austria-Martinez, J., on official leave.










70













































































71

THIRD DIVISION
[G.R. No. 138322. October 2, 2001]
GRACE J. GARCIA, a.k.a. GRACE J. GARCIA-RECIO, petitioner, vs.
REDERICK A. RECIO, respondent.
D E C I S I O N
PANGANIBAN, J.:
A divorce obtained abroad by an alien may be recognized in
our jurisdiction, provided such decree is valid according to the
national law of the foreigner. However, the divorce decree and the
governing personal law of the alien spouse who obtained the
divorce must be proven. Our courts do not take judicial notice of
foreign laws and judgments; hence, like any other facts, both the
divorce decree and the national law of the alien must be alleged and
proven according to our law on evidence.
The Case
Before us is a Petition for Review under Rule 45 of the Rules of
Court, seeking to nullify the January 7, 1999 Decision
[1]
and the
March 24, 1999 Order
[2]
of the Regional Trial Court of Cabanatuan
City, Branch 28, in Civil Case No. 3026AF. The assailed Decision
disposed as follows:
WHEREFORE, this Court declares the marriage between Grace J.
Garcia and Rederick A. Recio solemnized on January 12, 1994 at
Cabanatuan City as dissolved and both parties can now remarry
under existing and applicable laws to any and/or both parties.
[3]

The assailed Order denied reconsideration of the above-
quoted Decision.
The Facts
Rederick A. Recio, a Filipino, was married to Editha Samson, an
Australian citizen, in Malabon, Rizal, on March 1, 1987.
[4]
They lived
together as husband and wife in Australia. On May 18, 1989,
[5]
a
decree of divorce, purportedly dissolving the marriage, was issued
by an Australian family court.
On June 26, 1992, respondent became an Australian citizen, as
shown by a Certificate of Australian Citizenship issued by the
Australian government.
[6]
Petitioner -- a Filipina -- and respondent
were married on January 12, 1994 in Our Lady of Perpetual Help
Church in Cabanatuan City.
[7]
In theirapplication for a marriage
license, respondent was declared as single and Filipino.
[8]

Starting October 22, 1995, petitioner and respondent lived
separately without prior judicial dissolution of their marriage. While
the two were still in Australia, their conjugal assets were divided on
May 16, 1996, in accordance with their Statutory Declarations
secured in Australia.
[9]

On March 3, 1998, petitioner filed a Complaint for Declaration
of Nullity of Marriage
[10]
in the court a quo, on the ground of bigamy
-- respondent allegedly had a prior subsisting marriage at the time
he married her on January 12, 1994. She claimed that she learned of
respondents marriage to Editha Samson only in November, 1997.
In his Answer, respondent averred that, as far back as 1993, he
had revealed to petitioner his prior marriage and its subsequent
dissolution.
[11]
He contended that his first marriage to an Australian
citizen had been validly dissolved by a divorce decree obtained in
Australia in 1989;
[12]
thus, he was legally capacitated to marry
petitioner in 1994.
On July 7, 1998 -- or about five years after the couples
wedding and while the suit for the declaration of nullity was pending
-- respondent was able to secure a divorce decree from a family
court in Sydney, Australia because the marriage ha*d+ irretrievably
broken down.
[13]

Respondent prayed in his Answer that the Complaint be
dismissed on the ground that it stated no cause of action.
[14]
The
Office of the Solicitor General agreed with respondent.
[15]
The court
marked and admitted the documentary evidence of both
parties.
[16]
After they submitted their respective memoranda, the
case was submitted for resolution.
[17]

Thereafter, the trial court rendered the assailed Decision and
Order.
Ruling of the Trial Court
The trial court declared the marriage dissolved on the ground
that the divorce issued in Australia was valid and recognized in the
Philippines. It deemed the marriage ended, but not on the basis of
any defect in an essential element of the marriage; that
is, respondents alleged lack of legal capacity to remarry. Rather, it
based its Decision on the divorce decree obtained by
respondent. The Australian divorce had ended the marriage; thus,
there was no more marital union to nullify or annul.
Hence, this Petition.
[18]

Issues
Petitioner submits the following issues for our consideration:
1
The trial court gravely erred in finding that the divorce decree
obtained in Australia by the respondent ipso facto terminated his
first marriage to Editha Samson thereby capacitating him to contract
a second marriage with the petitioner.
2
72

The failure of the respondent, who is now a naturalized Australian,
to present a certificate of legal capacity to marry constitutes
absence of a substantial requisite voiding the petitioners marriage
to the respondent
3
The trial court seriously erred in the application of Art. 26 of the
Family Code in this case.
4
The trial court patently and grievously erred in disregarding Arts. 11,
13, 21, 35, 40, 52 and 53 of the Family Code as the applicable
provisions in this case.
5
The trial court gravely erred in pronouncing that the divorce decree
obtained by the respondent in Australia ipso facto capacitated the
parties to remarry, without first securing a recognition of the
judgment granting the divorce decree before our courts.
[19]

The Petition raises five issues, but for purposes of this
Decision, we shall concentrate on two pivotal ones: (1) whether the
divorce between respondent and Editha Samson was proven, and (2)
whether respondent was proven to be legally capacitated to marry
petitioner. Because of our ruling on these two, there is no more
necessity to take up the rest.
The Courts Ruling
The Petition is partly meritorious.
First Issue:
Proving the Divorce Between Respondent and Editha Samson
Petitioner assails the trial courts recognition of the divorce
between respondent and Editha Samson. Citing Adong v. Cheong
Seng Gee,
[20]
petitioner argues that the divorce decree, like any
other foreign judgment, may be given recognition in this jurisdiction
only upon proof of the existence of (1) the foreign law allowing
absolute divorce and (2) the alleged divorce decree itself. She adds
that respondent miserably failed to establish these elements.
Petitioner adds that, based on the first paragraph of Article 26
of the Family Code, marriages solemnized abroad are governed by
the law of the place where they were celebrated (the lex loci
celebrationis). In effect, the Code requires the presentation of the
foreign law to show the conformity of the marriage in question to
the legal requirements of the place where the marriage was
performed.
At the outset, we lay the following basic legal principles as the
take-off points for our discussion. Philippine law does not provide
for absolute divorce; hence, our courts cannot grant it.
[21]
A marriage
between two Filipinos cannot be dissolved even by a divorce
obtained abroad, because of Articles 15
[22]
and 17
[23]
of the Civil
Code.
[24]
In mixed marriages involving a Filipino and a foreigner,
Article 26
[25]
of the Family Code allows the former to contract a
subsequent marriage in case the divorce is validly obtained abroad
by the alien spouse capacitating him or her to remarry.
[26]
A divorce
obtained abroad by a couple, who are both aliens, may be
recognized in the Philippines, provided it is consistent with their
respective national laws.
[27]

A comparison between marriage and divorce, as far as
pleading and proof are concerned, can be made. Van Dorn v.
Romillo Jr. decrees that aliens may obtain divorces abroad, which
may be recognized in the Philippines, provided they are valid
according to their national law.
[28]
Therefore, before a foreign
divorce decree can be recognized by our courts, the party pleading it
must prove the divorce as a fact and demonstrate its conformity to
the foreign law allowing it.
[29]
Presentation solely of the divorce
decree is insufficient.
Divorce as a Question of Fact
Petitioner insists that before a divorce decree can be admitted
in evidence, it must first comply with the registration requirements
under Articles 11, 13 and 52 of the Family Code. These articles read
as follows:
ART. 11. Where a marriage license is required, each of the
contracting parties shall file separately a sworn application for such
license with the proper local civil registrar which shall specify the
following:
x x x x x x x x x
(5) If previously married, how, when and where the previous
marriage was dissolved or annulled;
x x x x x x x x x
ART. 13. In case either of the contracting parties has been
previously married, the applicant shall be required to
ART. 13. In case either of the contracting parties has been
previously married, the applicant shall be required to furnish,
instead of the birth or baptismal certificate required in the last
preceding article, the death certificate of the deceased spouse or
the judicial decree of the absolute divorce, or the judicial decree of
annulment or declaration of nullity of his or her previous
marriage. x x x.
ART. 52. The judgment of annulment or of absolute nullity of the
marriage, the partition and distribution of the properties of the
spouses, and the delivery of the childrens presumptive legitimes
shall be recorded in the appropriate civil registry and registries of
property; otherwise, the same shall not affect their persons.
Respondent, on the other hand, argues that the Australian
divorce decree is a public document -- a written official act of an
Australian family court. Therefore, it requires no further proof of its
authenticity and due execution.
73

Respondent is getting ahead of himself. Before a foreign
judgment is given presumptive evidentiary value, the document
must first be presented and admitted in evidence.
[30]
A divorce
obtained abroad is proven by the divorce decree itself. Indeed the
best evidence of a judgment is the judgment itself.
[31]
The decree
purports to be a written act or record of an act of an official body or
tribunal of a foreign country.
[32]

Under Sections 24 and 25 of Rule 132, on the other hand, a
writing or document may be proven as a public or official record of a
foreign country by either (1) an official publication or (2) a copy
thereof attested
[33]
by the officer having legal custody of the
document. If the record is not kept in the Philippines, such copy
must be (a) accompanied by a certificate issued by the proper
diplomatic or consular officer in the Philippine foreign service
stationed in the foreign country in which the record is kept and (b)
authenticated by the seal of his office.
[34]

The divorce decree between respondent and Editha Samson
appears to be an authentic one issued by an Australian family
court.
[35]
However, appearance is not sufficient; compliance with the
aforementioned rules on evidence must be demonstrated.
Fortunately for respondents cause, when the divorce decree
of May 18, 1989 was submitted in evidence, counsel for petitioner
objected, not to its admissibility, but only to the fact that it had not
been registered in the Local Civil Registry of Cabanatuan City.
[36]
The
trial court ruled that it was admissible, subject to petitioners
qualification.
[37]
Hence, it was admitted in evidence and accorded
weight by the judge. Indeed, petitioners failure to object properly
rendered the divorce decree admissible as a written act of the
Family Court of Sydney, Australia.
[38]

Compliance with the quoted articles (11, 13 and 52) of the
Family Code is not necessary; respondent was no longer bound by
Philippine personal laws after he acquired Australian citizenship in
1992.
[39]
Naturalization is the legal act of adopting an alien and
clothing him with the political and civil rights belonging to a
citizen.
[40]
Naturalized citizens, freed from the protective cloak of
their former states, don the attires of their adoptive countries. By
becoming an Australian, respondent severed his allegiance to the
Philippines and the vinculum juris that had tied him to Philippine
personal laws.
Burden of Proving Australian Law
Respondent contends that the burden to prove Australian
divorce law falls upon petitioner, because she is the party
challenging the validity of a foreign judgment. He contends that
petitioner was satisfied with the original of the divorce decree and
was cognizant of the marital laws of Australia, because she had lived
and worked in that country for quite a long time. Besides, the
Australian divorce law is allegedly known by Philippine courts; thus,
judges may take judicial notice of foreign laws in the exercise of
sound discretion.
We are not persuaded. The burden of proof lies with the
party who alleges the existence of a fact or thing necessary in the
prosecution or defense of an action.
[41]
In civil cases, plaintiffs have
the burden of proving the material allegations of the complaint
when those are denied by the answer; and defendants have the
burden of proving the material allegations in their answer when they
introduce new matters.
[42]
Since the divorce was a defense raised by
respondent, the burden of proving the pertinent Australian law
validating it falls squarely upon him.
It is well-settled in our jurisdiction that our courts cannot take
judicial notice of foreign laws.
[43]
Like any other facts, they must be
alleged and proved. Australian marital laws are not among those
matters that judges are supposed to know by reason of their judicial
function.
[44]
The power of judicial notice must be exercised with
caution, and every reasonable doubt upon the subject should be
resolved in the negative.
Second Issue: Respondents Legal Capacity to Remarry
Petitioner contends that, in view of the insufficient proof of
the divorce, respondent was legally incapacitated to marry her in
1994. Hence, she concludes that their marriage was void ab initio.
Respondent replies that the Australian divorce decree, which
was validly admitted in evidence, adequately established his legal
capacity to marry under Australian law.
Respondents contention is untenable. In its strict legal
sense, divorce means the legal dissolution of a lawful union for a
cause arising after marriage. But divorces are of different
types. The two basic ones are (1) absolute divorce or a vinculo
matrimonii and (2) limited divorce or a mensa et thoro. The first
kind terminates the marriage, while the second suspends it and
leaves the bond in full force.
[45]
There is no showing in the case at
bar which type of divorce was procured by respondent.
Respondent presented a decree nisi or an interlocutory decree
-- a conditional or provisional judgment of divorce. It is in effect the
same as a separation from bed and board, although an absolute
divorce may follow after the lapse of the prescribed period during
which no reconciliation is effected.
[46]

Even after the divorce becomes absolute, the court may under
some foreign statutes and practices, still restrict remarriage. Under
some other jurisdictions, remarriage may be limited by statute; thus,
the guilty party in a divorce which was granted on the ground of
adultery may be prohibited from marrying again. The court may
allow a remarriage only after proof of good behavior.
[47]

On its face, the herein Australian divorce decree contains a
restriction that reads:
1. A party to a marriage who marries again
before this decree becomes absolute (unless the
other party has died) commits the offence of
bigamy.
[48]

This quotation bolsters our contention that the divorce
obtained by respondent may have been restricted. It did not
absolutely establish his legal capacity to remarry according to his
national law. Hence, we find no basis for the ruling of the trial court,
which erroneously assumed that the Australian divorce ipso
facto restored respondents capacity to remarry despite the paucity
of evidence on this matter.
We also reject the claim of respondent that the divorce decree
raises a disputable presumption or presumptive evidence as to his
civil status based on Section 48, Rule 39
[49]
of the Rules of Court, for
the simple reason that no proof has been presented on the legal
effects of the divorce decree obtained under Australian laws.
Significance of the Certificate of Legal Capacity
74

Petitioner argues that the certificate of legal capacity required
by Article 21 of the Family Code was not submitted together with
the application for a marriage license. According to her, its absence
is proof that respondent did not have legal capacity to remarry.
We clarify. To repeat, the legal capacity to contract marriage
is determined by the national law of the party concerned. The
certificate mentioned in Article 21 of the Family Code would have
been sufficient to establish the legal capacity of respondent, had he
duly presented it in court. A duly authenticated and admitted
certificate is prima facie evidence of legal capacity to marry on the
part of the alien applicant for a marriage license.
[50]

As it is, however, there is absolutely no evidence that proves
respondents legal capacity to marry petitioner. A review of the
records before this Court shows that only the following exhibits
were presented before the lower court: (1) for petitioner: (a) Exhibit
A Complaint;
[51]
(b) Exhibit B Certificate of Marriage Between
Rederick A. Recio (Filipino-Australian) and Grace J. Garcia (Filipino)
on January 12, 1994 in Cabanatuan City, Nueva Ecija;
[52]
(c) Exhibit
C Certificate of Marriage Between Rederick A. Recio (Filipino)
and Editha D. Samson (Australian) on March 1, 1987 in Malabon,
Metro Manila;
[53]
(d) Exhibit D Office of the City Registrar of
Cabanatuan City Certification that no information of annulment
between Rederick A. Recio and Editha D. Samson was in its
records;
[54]
and (e) Exhibit E Certificate of Australian Citizenship
of Rederick A. Recio;
[55]
(2) for respondent: (a) Exhibit 1 --
Amended Answer;
[56]
(b) Exhibit 2 Family Law Act 1975 Decree
Nisi of Dissolution of Marriage in the Family Court of Australia;
[57]
(c)
Exhibit 3 Certificate of Australian Citizenship of Rederick A.
Recio;
[58]
(d) Exhibit 4 Decree Nisi of Dissolution of Marriage in
the Family Court of Australia Certificate;
[59]
and Exhibit 5 --
Statutory Declaration of the Legal Separation Between Rederick A.
Recio and Grace J. Garcia Recio since October 22, 1995.
[60]

Based on the above records, we cannot conclude that
respondent, who was then a naturalized Australian citizen, was
legally capacitated to marry petitioner on January 12, 1994. We
agree with petitioners contention that the court a quo erred in
finding that the divorce decree ipso facto clothed respondent with
the legal capacity to remarry without requiring him to adduce
sufficient evidence to show the Australian personal law governing
his status; or at the very least, to prove his legal capacity to contract
the second marriage.
Neither can we grant petitioners prayer to declare her
marriage to respondent null and void on the ground of
bigamy. After all, it may turn out that under Australian law, he was
really capacitated to marry petitioner as a direct result of the
divorce decree. Hence, we believe that the most judicious course is
to remand this case to the trial court to receive evidence, if any,
which show petitioners legal capacity to marry petitioner. Failing in
that, then the court a quo may declare a nullity of the parties
marriage on the ground of bigamy, there being already in evidence
two existing marriage certificates, which were both obtained in the
Philippines, one in Malabon, Metro Manila dated March 1, 1987 and
the other, in Cabanatuan City dated January 12, 1994.
WHEREFORE, in the interest of orderly procedure and
substantial justice, we REMAND the case to the court a quo for the
purpose of receiving evidence which conclusively show respondents
legal capacity to marry petitioner; and failing in that, of declaring the
parties marriage void on the ground of bigamy, as above
discussed. No costs.
SO ORDERED.
Melo, (Chairman), Vitug, and Sandoval-Gutierrez, JJ., concur.


























75

Republic of the Philippines
SUPREME COURT
Manila
THIRD DIVISION
G.R. No. 186571 August 11, 2010
GERBERT R. CORPUZ, Petitioner,
vs.
DAISYLYN TIROL STO. TOMAS and The SOLICITOR
GENERAL, Respondents.
D E C I S I O N
BRION, J.:
Before the Court is a direct appeal from the decision
1
of the Regional
Trial Court (RTC) of Laoag City, Branch 11, elevated via a petition for
review on certiorari
2
under Rule 45 of the Rules of Court (present
petition).
Petitioner Gerbert R. Corpuz was a former Filipino citizen who
acquired Canadian citizenship through naturalization on November
29, 2000.
3
On January 18, 2005, Gerbert married respondent
Daisylyn T. Sto. Tomas, a Filipina, in Pasig City.
4
Due to work and
other professional commitments, Gerbert left for Canada soon after
the wedding. He returned to the Philippines sometime in April 2005
to surprise Daisylyn, but was shocked to discover that his wife was
having an affair with another man. Hurt and disappointed, Gerbert
returned to Canada and filed a petition for divorce. The Superior
Court of Justice, Windsor, Ontario, Canada granted Gerberts
petition for divorce on December 8, 2005. The divorce decree took
effect a month later, on January 8, 2006.
5

Two years after the divorce, Gerbert has moved on and has found
another Filipina to love. Desirous of marrying his new Filipina fiance
in the Philippines, Gerbert went to the Pasig City Civil Registry Office
and registered the Canadian divorce decree on his and Daisylyns
marriage certificate. Despite the registration of the divorce decree,
an official of the National Statistics Office (NSO) informed Gerbert
that the marriage between him and Daisylyn still subsists under
Philippine law; to be enforceable, the foreign divorce decree must
first be judicially recognized by a competent Philippine court,
pursuant to NSO Circular No. 4, series of 1982.
6

Accordingly, Gerbert filed a petition for judicial recognition of
foreign divorce and/or declaration of marriage as dissolved (petition)
with the RTC. Although summoned, Daisylyn did not file any
responsive pleading but submitted instead a notarized
letter/manifestation to the trial court. She offered no opposition to
Gerberts petition and, in fact, alleged her desire to file a similar case
herself but was prevented by financial and personal circumstances.
She, thus, requested that she be considered as a party-in-interest
with a similar prayer to Gerberts.
In its October 30, 2008 decision,
7
the RTC denied Gerberts petition.
The RTC concluded that Gerbert was not the proper party to
institute the action for judicial recognition of the foreign divorce
decree as he is a naturalized Canadian citizen. It ruled that only the
Filipino spouse can avail of the remedy, under the second paragraph
of Article 26 of the Family Code,
8
in order for him or her to be able
to remarry under Philippine law.
9
Article 26 of the Family Code
reads:
Art. 26. All marriages solemnized outside the Philippines, in
accordance with the laws in force in the country where they were
solemnized, and valid there as such, shall also be valid in this
country, except those prohibited under Articles 35(1), (4), (5) and
(6), 36, 37 and 38.
Where a marriage between a Filipino citizen and a foreigner is
validly celebrated and a divorce is thereafter validly obtained abroad
by the alien spouse capacitating him or her to remarry, the Filipino
spouse shall likewise have capacity to remarry under Philippine law.
This conclusion, the RTC stated, is consistent with the legislative
intent behind the enactment of the second paragraph of Article 26
of the Family Code, as determined by the Court in Republic v.
Orbecido III;
10
the provision was enacted to "avoid the absurd
situation where the Filipino spouse remains married to the alien
spouse who, after obtaining a divorce, is no longer married to the
Filipino spouse."
11

THE PETITION
From the RTCs ruling,
12
Gerbert filed the present petition.
13

Gerbert asserts that his petition before the RTC is essentially for
declaratory relief, similar to that filed in Orbecido; he, thus, similarly
asks for a determination of his rights under the second paragraph of
Article 26 of the Family Code. Taking into account the rationale
behind the second paragraph of Article 26 of the Family Code, he
contends that the provision applies as well to the benefit of the alien
spouse. He claims that the RTC ruling unduly stretched the doctrine
in Orbecido by limiting the standing to file the petition only to the
Filipino spouse an interpretation he claims to be contrary to the
essence of the second paragraph of Article 26 of the Family Code. He
considers himself as a proper party, vested with sufficient legal
interest, to institute the case, as there is a possibility that he might
be prosecuted for bigamy if he marries his Filipina fiance in the
Philippines since two marriage certificates, involving him, would be
on file with the Civil Registry Office. The Office of the Solicitor
General and Daisylyn, in their respective Comments,
14
both support
Gerberts position.
Essentially, the petition raises the issue of whether the second
paragraph of Article 26 of the Family Code extends to aliens the right
to petition a court of this jurisdiction for the recognition of a foreign
divorce decree.
THE COURTS RULING
The alien spouse can claim no right under the second paragraph of
Article 26 of the Family Code as the substantive right it establishes is
in favor of the Filipino spouse
The resolution of the issue requires a review of the legislative history
and intent behind the second paragraph of Article 26 of the Family
Code.
76

The Family Code recognizes only two types of defective marriages
void
15
and voidable
16
marriages. In both cases, the basis for the
judicial declaration of absolute nullity or annulment of the marriage
exists before or at the time of the marriage. Divorce, on the other
hand, contemplates the dissolution of the lawful union for cause
arising after the marriage.
17
Our family laws do not recognize
absolute divorce between Filipino citizens.
18

Recognizing the reality that divorce is a possibility in marriages
between a Filipino and an alien, President Corazon C. Aquino, in the
exercise of her legislative powers under the Freedom
Constitution,
19
enacted Executive Order No. (EO) 227, amending
Article 26 of the Family Code to its present wording, as follows:
Art. 26. All marriages solemnized outside the Philippines, in
accordance with the laws in force in the country where they were
solemnized, and valid there as such, shall also be valid in this
country, except those prohibited under Articles 35(1), (4), (5) and
(6), 36, 37 and 38.
Where a marriage between a Filipino citizen and a foreigner is
validly celebrated and a divorce is thereafter validly obtained abroad
by the alien spouse capacitating him or her to remarry, the Filipino
spouse shall likewise have capacity to remarry under Philippine law.
Through the second paragraph of Article 26 of the Family Code, EO
227 effectively incorporated into the law this Courts holding in Van
Dorn v. Romillo, Jr.
20
and Pilapil v. Ibay-Somera.
21
In both cases, the
Court refused to acknowledge the alien spouses assertion of marital
rights after a foreign courts divorce decree between the alien and
the Filipino. The Court, thus, recognized that the foreign divorce had
already severed the marital bond between the spouses. The Court
reasoned in Van Dorn v. Romillo that:
To maintain x x x that, under our laws, [the Filipino spouse] has to be
considered still married to [the alien spouse] and still subject to a
wife's obligations x x x cannot be just. [The Filipino spouse] should
not be obliged to live together with, observe respect and fidelity,
and render support to [the alien spouse]. The latter should not
continue to be one of her heirs with possible rights to conjugal
property. She should not be discriminated against in her own
country if the ends of justice are to be served.
22

As the RTC correctly stated, the provision was included in the law "to
avoid the absurd situation where the Filipino spouse remains
married to the alien spouse who, after obtaining a divorce, is no
longer married to the Filipino spouse."
23
The legislative intent is for
the benefit of the Filipino spouse, by clarifying his or her marital
status, settling the doubts created by the divorce decree. Essentially,
the second paragraph of Article 26 of the Family Code provided the
Filipino spouse a substantive right to have his or her marriage to the
alien spouse considered as dissolved, capacitating him or her to
remarry.
24
Without the second paragraph of Article 26 of the Family
Code, the judicial recognition of the foreign decree of divorce,
whether in a proceeding instituted precisely for that purpose or as a
related issue in another proceeding, would be of no significance to
the Filipino spouse since our laws do not recognize divorce as a
mode of severing the marital bond;
25
Article 17 of the Civil Code
provides that the policy against absolute divorces cannot be
subverted by judgments promulgated in a foreign country. The
inclusion of the second paragraph in Article 26 of the Family Code
provides the direct exception to this rule and serves as basis for
recognizing the dissolution of the marriage between the Filipino
spouse and his or her alien spouse.
Additionally, an action based on the second paragraph of Article 26
of the Family Code is not limited to the recognition of the foreign
divorce decree. If the court finds that the decree capacitated the
alien spouse to remarry, the courts can declare that the Filipino
spouse is likewise capacitated to contract another marriage. No
court in this jurisdiction, however, can make a similar declaration for
the alien spouse (other than that already established by the decree),
whose status and legal capacity are generally governed by his
national law.
26

Given the rationale and intent behind the enactment, and the
purpose of the second paragraph of Article 26 of the Family Code,
the RTC was correct in limiting the applicability of the provision for
the benefit of the Filipino spouse. In other words, only the Filipino
spouse can invoke the second paragraph of Article 26 of the Family
Code; the alien spouse can claim no right under this provision.
The foreign divorce decree is presumptive evidence of a right that
clothes the party with legal interest to petition for its recognition in
this jurisdiction
We qualify our above conclusion i.e., that the second paragraph of
Article 26 of the Family Code bestows no rights in favor of aliens
with the complementary statement that this conclusion is not
sufficient basis to dismiss Gerberts petition before the RTC. In other
words, the unavailability of the second paragraph of Article 26 of the
Family Code to aliens does not necessarily strip Gerbert of legal
interest to petition the RTC for the recognition of his foreign divorce
decree. The foreign divorce decree itself, after its authenticity and
conformity with the aliens national law have been duly proven
according to our rules of evidence, serves as a presumptive evidence
of right in favor of Gerbert, pursuant to Section 48, Rule 39 of the
Rules of Court which provides for the effect of foreign judgments.
This Section states:
SEC. 48. Effect of foreign judgments or final orders.The effect of a
judgment or final order of a tribunal of a foreign country, having
jurisdiction to render the judgment or final order is as follows:
(a) In case of a judgment or final order upon a specific
thing, the judgment or final order is conclusive upon the
title of the thing; and
(b) In case of a judgment or final order against a person,
the judgment or final order is presumptive evidence of a
right as between the parties and their successors in
interest by a subsequent title.
In either case, the judgment or final order may be repelled by
evidence of a want of jurisdiction, want of notice to the party,
collusion, fraud, or clear mistake of law or fact.
To our mind, direct involvement or being the subject of the foreign
judgment is sufficient to clothe a party with the requisite interest to
institute an action before our courts for the recognition of the
foreign judgment. In a divorce situation, we have declared, no less,
77

that the divorce obtained by an alien abroad may be recognized in
the Philippines, provided the divorce is valid according to his or her
national law.
27

The starting point in any recognition of a foreign divorce judgment is
the acknowledgment that our courts do not take judicial notice of
foreign judgments and laws. Justice Herrera explained that, as a rule,
"no sovereign is bound to give effect within its dominion to a
judgment rendered by a tribunal of another country."
28
This means
that the foreign judgment and its authenticity must be proven as
facts under our rules on evidence, together with the aliens
applicable national law to show the effect of the judgment on the
alien himself or herself.
29
The recognition may be made in an action
instituted specifically for the purpose or in another action where a
party invokes the foreign decree as an integral aspect of his claim or
defense.
In Gerberts case, since both the foreign divorce decree and the
national law of the alien, recognizing his or her capacity to obtain a
divorce, purport to be official acts of a sovereign authority, Section
24, Rule 132 of the Rules of Court comes into play. This Section
requires proof, either by (1) official publications or (2) copies
attested by the officer having legal custody of the documents. If the
copies of official records are not kept in the Philippines, these must
be (a) accompanied by a certificate issued by the proper diplomatic
or consular officer in the Philippine foreign service stationed in the
foreign country in which the record is kept and (b) authenticated by
the seal of his office.
The records show that Gerbert attached to his petition a copy of the
divorce decree, as well as the required certificates proving its
authenticity,
30
but failed to include a copy of the Canadian law on
divorce.
31
Under this situation, we can, at this point, simply dismiss
the petition for insufficiency of supporting evidence, unless we
deem it more appropriate to remand the case to the RTC to
determine whether the divorce decree is consistent with the
Canadian divorce law.
We deem it more appropriate to take this latter course of action,
given the Article 26 interests that will be served and the Filipina
wifes (Daisylyns) obvious conformity with the petition. A remand,
at the same time, will allow other interested parties to oppose the
foreign judgment and overcome a petitioners presumptive evidence
of a right by proving want of jurisdiction, want of notice to a party,
collusion, fraud, or clear mistake of law or fact. Needless to state,
every precaution must be taken to ensure conformity with our laws
before a recognition is made, as the foreign judgment, once
recognized, shall have the effect of res judicata
32
between the
parties, as provided in Section 48, Rule 39 of the Rules of Court.
33

In fact, more than the principle of comity that is served by the
practice of reciprocal recognition of foreign judgments between
nations, the res judicata effect of the foreign judgments of divorce
serves as the deeper basis for extending judicial recognition and for
considering the alien spouse bound by its terms. This same effect, as
discussed above, will not obtain for the Filipino spouse were it not
for the substantive rule that the second paragraph of Article 26 of
the Family Code provides.
Considerations beyond the recognition of the foreign divorce decree
As a matter of "housekeeping" concern, we note that the Pasig City
Civil Registry Office has already recorded the divorce decree on
Gerbert and Daisylyns marriage certificate based on the mere
presentation of the decree.
34
We consider the recording to be legally
improper; hence, the need to draw attention of the bench and the
bar to what had been done.
Article 407 of the Civil Code states that "[a]cts, events and judicial
decrees concerning the civil status of persons shall be recorded in
the civil register." The law requires the entry in the civil registry of
judicial decrees that produce legal consequences touching upon a
persons legal capacity and status, i.e., those affecting "all his
personal qualities and relations, more or less permanent in nature,
not ordinarily terminable at his own will, such as his being legitimate
or illegitimate, or his being married or not."
35

A judgment of divorce is a judicial decree, although a foreign one,
affecting a persons legal capacity and status that must be recorded.
In fact, Act No. 3753 or the Law on Registry of Civil Status specifically
requires the registration of divorce decrees in the civil registry:
Sec. 1. Civil Register. A civil register is established for recording the
civil status of persons, in which shall be entered:
(a) births;
(b) deaths;
(c) marriages;
(d) annulments of marriages;
(e) divorces;
(f) legitimations;
(g) adoptions;
(h) acknowledgment of natural children;
(i) naturalization; and
(j) changes of name.
x x x x
Sec. 4. Civil Register Books. The local registrars shall keep and
preserve in their offices the following books, in which they shall,
respectively make the proper entries concerning the civil status of
persons:
(1) Birth and death register;
(2) Marriage register, in which shall be entered not only
the marriages solemnized but also divorces and dissolved
marriages.
78

(3) Legitimation, acknowledgment, adoption, change of
name and naturalization register.
But while the law requires the entry of the divorce decree in the civil
registry, the law and the submission of the decree by themselves do
not ipso facto authorize the decrees registration. The law should be
read in relation with the requirement of a judicial recognition of the
foreign judgment before it can be given res judicata effect. In the
context of the present case, no judicial order as yet exists
recognizing the foreign divorce decree. Thus, the Pasig City Civil
Registry Office acted totally out of turn and without authority of law
when it annotated the Canadian divorce decree on Gerbert and
Daisylyns marriage certificate, on the strength alone of the foreign
decree presented by Gerbert.
Evidently, the Pasig City Civil Registry Office was aware of the
requirement of a court recognition, as it cited NSO Circular No. 4,
series of 1982,
36
and Department of Justice Opinion No. 181, series
of 1982
37
both of which required a final order from a competent
Philippine court before a foreign judgment, dissolving a marriage,
can be registered in the civil registry, but it, nonetheless, allowed
the registration of the decree. For being contrary to law, the
registration of the foreign divorce decree without the requisite
judicial recognition is patently void and cannot produce any legal
effect.1avvphi1
Another point we wish to draw attention to is that the recognition
that the RTC may extend to the Canadian divorce decree does not,
by itself, authorize the cancellation of the entry in the civil registry. A
petition for recognition of a foreign judgment is not the proper
proceeding, contemplated under the Rules of Court, for the
cancellation of entries in the civil registry.
Article 412 of the Civil Code declares that "no entry in a civil register
shall be changed or corrected, without judicial order." The Rules of
Court supplements Article 412 of the Civil Code by specifically
providing for a special remedial proceeding by which entries in the
civil registry may be judicially cancelled or corrected. Rule 108 of the
Rules of Court sets in detail the jurisdictional and procedural
requirements that must be complied with before a judgment,
authorizing the cancellation or correction, may be annotated in the
civil registry. It also requires, among others, that the verified petition
must be filed with the RTC of the province where the corresponding
civil registry is located;
38
that the civil registrar and all persons who
have or claim any interest must be made parties to the
proceedings;
39
and that the time and place for hearing must be
published in a newspaper of general circulation.
40
As these basic
jurisdictional requirements have not been met in the present case,
we cannot consider the petition Gerbert filed with the RTC as one
filed under Rule 108 of the Rules of Court.
We hasten to point out, however, that this ruling should not be
construed as requiring two separate proceedings for the registration
of a foreign divorce decree in the civil registry one for recognition
of the foreign decree and another specifically for cancellation of the
entry under Rule 108 of the Rules of Court. The recognition of the
foreign divorce decree may be made in a Rule 108 proceeding itself,
as the object of special proceedings (such as that in Rule 108 of the
Rules of Court) is precisely to establish the status or right of a party
or a particular fact. Moreover, Rule 108 of the Rules of Court can
serve as the appropriate adversarial proceeding
41
by which the
applicability of the foreign judgment can be measured and tested in
terms of jurisdictional infirmities, want of notice to the party,
collusion, fraud, or clear mistake of law or fact.
WHEREFORE, we GRANT the petition for review on certiorari, and
REVERSE the October 30, 2008 decision of the Regional Trial Court of
Laoag City, Branch 11, as well as its February 17, 2009 order. We
order the REMAND of the case to the trial court for further
proceedings in accordance with our ruling above. Let a copy of this
Decision be furnished the Civil Registrar General. No costs.
SO ORDERED.






























79

THIRD DIVISION
[G.R. No. 136490. October 19, 2000]
BRENDA B. MARCOS, petitioner, vs. WILSON G.
MARCOS, respondent.
D E C I S I O N
PANGANIBAN, J.:
Psychological incapacity, as a ground for declaring the nullity
of a marriage, may be established by the totality of evidence
presented. There is no requirement, however, that the respondent
should be examined by a physician or a psychologist as a conditio
sine qua nonfor such declaration.
The Case

Before us is a Petition for Review on Certiorari under Rule 45
of the Rules of Court, assailing the July 24, 1998 Decision
[1]
of the
Court of Appeals (CA) in CA-GR CV No. 55588, which disposed as
follows:
"WHEREFORE, the contested decision is set aside and the marriage
between the parties is hereby declared valid."
[2]

Also challenged by petitioner is the December 3, 1998 CA
Resolution denying her Motion for Reconsideration.
Earlier, the Regional Trial Court (RTC) had ruled thus:
"WHEREFORE, the marriage between petitioner Brenda B. Marcos
and respondent Wilson G. Marcos, solemnized on September 6,
1982 in Pasig City is declared null and void ab initio pursuant to Art.
36 of the Family Code. The conjugal properties, if any, is dissolved
[sic] in accordance with Articles 126 and 129 of the same Code in
relation to Articles 50, 51 and 52 relative to the delivery of the
legitime of [the] parties' children. In the best interest and welfare of
the minor children, their custody is granted to petitioner subject to
the visitation rights of respondent.
"Upon finality of this Decision, furnish copy each to the Office of the
Civil Registrar of Pasig City where the marriage was solemnized, the
National Census and Statistics Office, Manila and the Register of
Deeds of Mandaluyong City for their appropriate action consistent
with this Decision.
"SO ORDERED."

The Facts

The facts as found by the Court of Appeals are as follows:
"It was established during the trial that the parties were married
twice: (1) on September 6, 1982 which was solemnized by Judge
Eriberto H. Espiritu at the Municipal Court of Pasig (Exh. A); and (2)
on May 8, 1983 which was solemnized by Rev. Eduardo L.
Eleazar, Command Chaplain, at the Presidential Security Command
Chapel in Malacaang Park, Manila (Exh. A-1). Out of their marriage,
five (5) children were born (Exhs. B, C, D, E and F).
"Appellant Wilson G. Marcos joined the Armed Forces of the
Philippines in 1973. Later on, he was transferred to the Presidential
Security Command in Malacaang during the Marcos
Regime. Appellee Brenda B. Marcos, on the other hand, joined the
Women's Auxilliary Corps under the Philippine Air Force in
1978. After the Edsa Revolution, both of them sought a discharge
from the military service.
"They first met sometime in 1980 when both of them were assigned
at the Malacaang Palace, she as an escort of Imee Marcos and he
as a Presidential Guard of President Ferdinand Marcos. Through
telephone conversations, they became acquainted and eventually
became sweethearts.
"After their marriage on September 6, 1982, they resided at No.
1702 Daisy Street, Hulo Bliss, Mandaluyong, a housing unit which
she acquired from the Bliss Development Corporation when she was
still single.
"After the downfall of President Marcos, he left the military service
in 1987 and then engaged in different business ventures that did not
however prosper. As a wife, she always urged him to look for work
so that their children would see him, instead of her, as the head of
the family and a good provider. Due to his failure to engage in any
gainful employment, they would often quarrel and as a
consequence, he would hit and beat her. He would even force her to
have sex with him despite her weariness. He would also inflict
physical harm on their children for a slight mistake and was so
severe in the way he chastised them. Thus, for several times during
their cohabitation, he would leave their house. In 1992, they were
already living separately.
"All the while, she was engrossed in the business of selling "magic
uling" and chickens. While she was still in the military, she would
first make deliveries early in the morning before going to
Malacaang. When she was discharged from the military service,
she concentrated on her business. Then, she became a supplier in
the Armed Forces of the Philippines until she was able to put up a
trading and construction company, NS Ness Trading and
Construction Development Corporation.
"The 'straw that broke the camel's back' took place on October 16,
1994, when they had a bitter quarrel. As they were already living
separately, she did not want him to stay in their house anymore. On
that day, when she saw him in their house, she was so angry that
she lambasted him. He then turned violent, inflicting physical harm
on her and even on her mother who came to her aid. The following
80

day, October 17, 1994, she and their children left the house and
sought refuge in her sister's house.
"On October 19, 1994, she submitted herself [to] medical
examination at the Mandaluyong Medical Center where her injuries
were diagnosed as contusions (Exh. G, Records, 153).
"Sometime in August 1995, she together with her two sisters and
driver, went to him at the Bliss unit in Mandaluyong to look for their
missing child, Niko. Upon seeing them, he got mad. After knowing
the reason for their unexpected presence, he ran after them with a
samurai and even [beat] her driver.
"At the time of the filing of this case, she and their children were
renting a house in Camella, Paraaque, while the appellant was
residing at the Bliss unit in Mandaluyong.
"In the case study conducted by Social Worker Sonia C. Millan, the
children described their father as cruel and physically abusive to
them (Exh. UU, Records, pp. 85-100).
"The appellee submitted herself to psychologist Natividad A. Dayan,
Ph.D., for psychological evaluation (Exh. YY, Records, pp. 207-216),
while the appellant on the other hand, did not.
"The court a quo found the appellant to be psychologically
incapacitated to perform his marital obligations mainly because of
his failure to find work to support his family and his violent
attitude towards appellee and their children, x x x."
[3]

Ruling of the Court of Appeals

Reversing the RTC, the CA held that psychological incapacity
had not been established by the totality of the evidence
presented. It ratiocinated in this wise:
"Essential in a petition for annulment is the allegation of the root
cause of the spouse's psychological incapacity which should also be
medically or clinically identified, sufficiently proven by experts and
clearly explained in the decision. The incapacity must be proven to
be existing at the time of the celebration of the marriage and shown
to be medically or clinically permanent or incurable. It must also be
grave enough to bring about the disability of the parties to assume
the essential obligations of marriage as set forth in Articles 68 to 71
and Articles 220 to 225 of the Family Code and such non-complied
marital obligations must similarly be alleged in the petition,
established by evidence and explained in the decision.
"In the case before us, the appellant was not subjected to any
psychological or psychiatric evaluation. The psychological findings
about the appellant by psychiatrist Natividad Dayan were based only
on the interviews conducted with the appellee. Expert evidence by
qualified psychiatrists and clinical psychologists is essential if only to
prove that the parties were or any one of them was mentally or
psychically ill to be truly incognitive of the marital obligations he or
she was assuming, or as would make him or her x x x unable to
assume them. In fact, he offered testimonial evidence to show that
he [was] not psychologically incapacitated. The root cause of his
supposed incapacity was not alleged in the petition, nor medically or
clinically identified as a psychological illness or sufficiently proven by
an expert. Similarly, there is no evidence at all that would show that
the appellant was suffering from an incapacity which [was]
psychological or mental - not physical to the extent that he could not
have known the obligations he was assuming: that the incapacity
[was] grave, ha[d] preceded the marriage and [was] incurable."
[4]

Hence, this Petition.
[5]

Issues

In her Memorandum,
[6]
petitioner presents for this Court's
consideration the following issues:
"I. Whether or not the Honorable Court of Appeals could
set aside the findings by the Regional Trial Court of
psychological incapacity of a respondent in a Petition
for declaration of nullity of marriage simply because
the respondent did not subject himself to
psychological evaluation.
II. Whether or not the totality of evidence presented and
the demeanor of all the witnesses should be the
basis of the determination of the merits of the
Petition."
[7]

The Court's Ruling

We agree with petitioner that the personal medical or
psychological examination of respondent is not a requirement for a
declaration of psychological incapacity. Nevertheless, the totality of
the evidence she presented does not show such incapacity.
Preliminary Issue: Need for Personal Medical Examination

Petitioner contends that the testimonies and the results of
various tests that were submitted to determine respondent's
psychological incapacity to perform the obligations of marriage
should not have been brushed aside by the Court of Appeals, simply
because respondent had not taken those tests himself. Petitioner
adds that the CA should have realized that under the circumstances,
she had no choice but to rely on other sources of information in
order to determine the psychological capacity of respondent, who
had refused to submit himself to such tests.
In Republic v. CA and Molina,
[8]
the guidelines governing the
application and the interpretation of psychological
incapacity referred to in Article 36 of the Family Code
[9]
were laid
down by this Court as follows:
"1) The burden of proof to show the nullity of the
marriage belongs to the plaintiff. Any doubt should
be resolved in favor of the existence and
continuation of the marriage and against its
dissolution and nullity. This is rooted in the fact that
81

both our Constitution and our laws cherish the
validity of marriage and unity of the family. Thus, our
Constitution devotes an entire Article on the Family,
recognizing it 'as the foundation of the nation.' It
decrees marriage as legally 'inviolable,' thereby
protecting it from dissolution at the whim of the
parties. Both the family and marriage are to be
'protected' by the state.
x x x x x x x x x
2) The root cause of the psychological incapacity must
be: (a) medically or clinically identified, (b) alleged in
the complaint, (c) sufficiently proven by experts and
(d) clearly explained in the decision. Article 36 of the
Family Code requires that the incapacity must be
psychological - not physical, although its
manifestations and/or symptoms may be
physical. The evidence must convince the court that
the parties, or one of them, was mentally or
psychically ill to such an extent that the person could
not have known the obligations he was assuming, or
knowing them, could not have given valid
assumption thereof. Although no example of such
incapacity need be given here so as not to limit the
application of the provision under the principle
of ejusdem generis, nevertheless such root cause
must be identified as a psychological illness and its
incapacitating nature fully explained. Expert
evidence may be given by qualified psychiatrists and
clinical psychologists.
3) The incapacity must be proven to be existing at 'the
time of the celebration' of the marriage. The
evidence must show that the illness was existing
when the parties exchanged their 'I do's.' The
manifestation of the illness need not be perceivable
at such time, but the illness itself must have
attached at such moment, or prior thereto.
4) Such incapacity must also be shown to be medically or
clinically permanent or incurable. Such incurability
may be absolute or even relative only in regard to
the other spouse, not necessarily absolutely against
everyone of the same sex. Furthermore, such
incapacity must be relevant to the assumption of
marriage obligations, not necessarily to those not
related to marriage, like the exercise of a profession
or employment in a job. Hence, a pediatrician may
be effective in diagnosing illnesses of children and
prescribing medicine to cure them but not be
psychologically capacitated to procreate, bear and
raise his/her own children as an essential obligation
of marriage.
5) Such illness must be grave enough to bring about the
disability of the party to assume the essential
obligations of marriage. Thus, 'mild
characteriological peculiarities, mood changes,
occasional emotional outbursts cannot be accepted
as root causes. The illness must be shown as
downright incapacity or inability, not a refusal,
neglect or difficulty, much less ill will. In other words,
there is a natal or supervening disabling factor in the
person, an adverse integral element in the
personality structure that effectively incapacitates
the person from really accepting and thereby
complying with the obligations essential to marriage.
6) The essential marital obligations must be those
embraced by Articles 68 up to 71 of the Family Code
as regards the husband and wife as well as Articles
220, 221 and 225 of the same Code in regard to
parents and their children. Such non-complied
marital obligation(s) must also be stated in the
petition, proven by evidence and included in the text
of the decision.
7) Interpretations given by the National Appellate
Matrimonial Tribunal of the Catholic Church in the
Philippines, while not controlling or decisive, should
be given great respect by our courts.
x x x x x x x x x
(8) The trial court must order the prosecuting attorney
or fiscal and the Solicitor General to appear as
counsel for the state. No decision shall be handed
down unless the Solicitor General issues a
certification, which will be quoted in the decision,
briefly stating therein his reasons for his agreement
or opposition, as the case may be, to the petition.
The Solicitor General, along with the prosecuting
attorney, shall submit to the court such certification
within fifteen (15) days from the date the case is
deemed submitted for resolution of the court. The
Solicitor General shall discharge the equivalent
function of the defensor vinculi contemplated under
Canon 1095."
[10]

The guidelines incorporate the three basic requirements
earlier mandated by the Court in Santos v. Court of
Appeals:
[11]
"psychological incapacity must be characterized by (a)
gravity (b) juridical antecedence, and (c) incurability." The foregoing
guidelines do not require that a physician examine the person to be
declared psychologically incapacitated. In fact, the root cause may
be "medically or clinically identified." What is important is the
presence of evidence that can adequately establish the
party's psychological condition. For indeed, if the totality of
evidence presented is enough to sustain a finding of psychological
incapacity, then actual medical examination of the person
concerned need not be resorted to.
Main Issue: Totality of Evidence Presented

The main question, then, is whether the totality of the
evidence presented in the present case -- including the testimonies
of petitioner, the common children, petitioner's sister and the social
worker -- was enough to sustain a finding that respondent was
psychologically incapacitated.
We rule in the negative. Although this Court is sufficiently
convinced that respondent failed to provide material support to the
family and may have resorted to physical abuse and abandonment,
the totality of his acts does not lead to a conclusion of psychological
incapacity on his part. There is absolutely no showing that his
82

"defects" were already present at the inception of the marriage or
that they are incurable.
Verily, the behavior of respondent can be attributed to the
fact that he had lost his job and was not gainfully employed for a
period of more than six years. It was during this period that he
became intermittently drunk, failed to give material and moral
support, and even left the family home.
Thus, his alleged psychological illness was traced only to said
period and not to the inception of the marriage. Equally important,
there is no evidence showing that his condition is incurable,
especially now that he is gainfully employed as a taxi driver.
Article 36 of the Family Code, we stress, is not to be confused
with a divorce law that cuts the marital bond at the time the causes
therefor manifest themselves. It refers to a serious psychological
illness afflicting a party even before the celebration of the
marriage. It is a malady so grave and so permanent as to deprive one
of awareness of the duties and responsibilities of the matrimonial
bond one is about to assume. These marital obligations are those
provided under Articles 68 to 71, 220, 221 and 225 of the Family
Code.
Neither is Article 36 to be equated with legal separation, in
which the grounds need not be rooted in psychological incapacity
but on physical violence, moral pressure, moral corruption, civil
interdiction, drug addiction, habitual alcoholism, sexual infidelity,
abandonment and the like.
[12]
At best, the evidence presented by
petitioner refers only to grounds for legal separation, not for
declaring a marriage void.
Because Article 36 has been abused as a convenient divorce
law, this Court laid down the procedural requirements for its
invocation in Molina. Petitioner, however, has not faithfully
observed them.
In sum, this Court cannot declare the dissolution of the
marriage for failure of petitioner to show that the alleged
psychological incapacity is characterized by gravity, juridical
antecedence and incurability; and for her failure to observe the
guidelines outlined in Molina.
WHEREFORE, the Petition is DENIED and assailed
Decision AFFIRMED, except that portion requiring personal medical
examination as a conditio sine qua non to a finding of psychological
incapacity. No costs.
SO ORDERED.
Melo, (Chairman), Vitug, Purisima, and Gonzaga-Reyes,
JJ., concur.



























































83

Republic of the Philippines
Supreme Court
Manila
THIRD DIVISION
NILDA V. NAVALES, G.R. No. 167523
Petitioner,
Present:
YNARES-SANTIAGO, J.,
- versus - Chairperson,
AUSTRIA-MARTINEZ,
CHICO-NAZARIO,
NACHURA, and
REYES, JJ.
REYNALDO NAVALES, Promulgated:
Respondent.* June 27, 2008
x - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - x
D E C I S I O N
AUSTRIA-MARTINEZ, J.:
Before the Court is a Petition for Review on Certiorari assailing the Decision[1] of the Court
of Appeals (CA) in CA-G.R. CV No. 76624 promulgated on February 16, 2005which affirmed
the Judgment[2] of the Regional Trial Court (RTC) Branch 59 of Toledo City, in Civil Case No.
T-799 dated January 2, 2002, declaring the nullity of the marriage of Reynaldo
and Nilda Navales on the ground of psychological incapacity.
The facts are as follows:
Reynaldo Navales (Reynaldo) and Nilda Navales (Nilda) met in 1986 in a local bar
whereNilda worked as a waitress. The two became lovers and Nilda quit her job, managed
a boarding house owned by her uncle and studied Health Aide financed by Reynaldo.Upon
learning that Nilda's uncle was prodding her to marry an American, Reynaldo, not wanting
to lose her, asked her to marry him. This, despite his knowledge that Nilda was writing
her penpals and was asking money from them and that she had an illegitimate son by a
man whose identity she did not reveal to him.[3] The two got married onDecember 29,
1988, before the Municipal Trial Court Judge of San Fernando, Cebu.[4]
Reynaldo claims that during the first year of their marriage, their relationship went
well.Problems arose, however, when Nilda started selling RTWs and cosmetics, since she
could no longer take care of him and attend to household chores.[5] Things worsened
when she started working as an aerobics instructor at the YMCA, where, according to
Reynaldo, Nilda's flirtatiousness and promiscuity recurred. She wore tight-fitting outfits,
allowed male clients to touch her body, and introduced herself as single. Reynaldo received
phone calls from different men looking for Nilda. There was also a time whenNilda chose
to ride with another man instead of Reynaldo; and another when Nilda went home late,
riding in the car of the man who kissed her. Reynaldo also claims that Nildarefused to have
a child with him, as it would destroy her figure.[6] On June 18, 1992, Reynaldo
left Nilda and never reconciled with her again.[7]
On August 30, 1999, Reynaldo filed a Petition for Declaration of Absolute Nullity of
Marriage and Damages before the RTC, Toledo City, Cebu, docketed as Civil Case No. T-799
claiming that his marriage with Nilda did not cure Nilda's flirtatiousness and sexual
promiscuity, and that her behavior indicates her lack of understanding and appreciation of
the meaning of marriage, rendering the same void under Article 36 of the Family Code.[8]
Reynaldo testified in support of his petition and presented telephone directories showing
that Nilda used her maiden name Bacon instead of Navales.[9] Reynaldo also
presented Josefino Ramos, who testified that he was with Reynaldo when Reynaldo first
met Nilda at the bar called Appetizer, and that he (Ramos) himself was attracted
to Nilda since she was sexy, beautiful, and jolly to talk with.[10] Reynaldo also
presented Violeta Abales, his cousin, who testified that she was a vendor at the YMCA
where Nilda worked and was known by her maiden name; that she knows Nilda is sexy
and wears tight fitting clothes; that her companions are mostly males and she flirts with
them; and that there was one time that Reynaldo fetched Nilda at YMCA but Nilda went
with another man, which angered Reynaldo.[11]
Finally, Reynaldo presented Leticia Vatanagul, a Clinical Psychologist and Social Worker
who drafted a Psychological Assessment of Marriage dated March 28, 2001.[12] In said
Assessment, Vatanagul concluded that Nilda is a nymphomaniac, who has a borderline
personality, a social deviant, an alcoholic, and suffering from anti-social personality
disorder, among others, which illnesses are incurable and are the causes
ofNildas psychological incapacity to perform her marital role as wife to Reynaldo.[13]
Nilda, for her part, claims that Reynaldo knew that she had a child before she met him, yet
Reynaldo continued courting her; thus, their eventual marriage.[14] She claims that it was
actually Reynaldo who was linked with several women, who went home very late, kept his
earnings for himself, and subjected her to physical harm whenever she called his attention
to his vices. She worked at the YMCA to cope with the needs of life, and she taught only
female students. Reynaldo abandoned her for other women, the latest of whom was
Liberty Lim whom she charged, together with Reynaldo,
withconcubinage.[15] Nilda presented a certification from the YMCA dated October 17,
2001 stating that she was an aerobics instructress for a program that was exclusively for
ladies,[16] as well as a statement of accounts from PLDT showing that she used her
married name, Nilda B. Navales.[17]
On January 2, 2002, the RTC rendered its Decision disposing as follows:
WHEREFORE, premises considered, judgment is
hereby rendered in the above-entitled case declaring
defendant Nilda B. Navales as psychologically incapacitated to
fulfill her marital obligations with plaintiff Reynaldo
V.Navales and further declaring their marriage contracted
on December 29, 1988, before the Municipal Judge of the
Municipal Trial Court of San Fernando, Cebu, as null and void.[18]
The RTC held that:
x x x From the testimonies and evidences x x x adduced, it was
clearly established that the defendant had no full understanding
of [the] effects of marriage and had no appreciation of [the]
consequences of marriage as shown by her x x x act of
concealing her marital status by using her maiden name Nilda T.
Bacon, augmenting her pretense of being still single through the
telephone directories; by her refusal to accompany with [sic] her
husband despite of the latter's insistence, but rather opted to
ride other man's jeep, whose name her husband did not even
know; by her act of allowing a man other than her husband to
touch her legs even in her husband's presence; by allowing
another man to kiss her even in the full view of her husband; by
preferring to loss [sic] her husband rather than losing her job as
aerobic instructress and on top of all, by refusing to bear a child
fathered by her husband because it will destroy her figure, is a
clear indication of the herein defendant's psychological
incapacity.[19]
Nilda filed a Motion for Reconsideration, which the RTC denied on April 10, 2002.[20]
The CA dismissed Nildas appeal, ruling that the RTC correctly held that Nildaconcealed her
marital status, as shown by the telephone listings in which Nilda used her maiden name;
that nymphomania, the condition which the expert said Nilda was afflicted with, was a
ground for psychological incapacity; and that the RTC correctly gave weight to the four
pieces of testimonial evidence presented by Reynaldo vis-a-vis the lone testimony
of Nilda.[21]
Nilda now comes before the Court alleging that:
I
The petitioner is not psychologically incapacitated to comply
[with] her marital obligations as a wife.
II
Psychological incapacity, if ever existing, of the wife is NOT
PERMAMENT or INCURABLE and was NEVER EXISTINGAT THE
TIME OF THE CELEBRATION OF MARRIAGE.
III
The petitioner is not a nymphomaniac.
IV
The effort of herein petitioner into the case shows that she is
consciously and nobly preserving and continue to believe that
marriage is inviolable rather [sic].
84

V
The guidelines of Molina case in the application of Article 36 of the
New Family Code has not been strictly complied with.[22]
Nilda claims that she did not fail in her duty to observe mutual love, respect and fidelity;
that she never had any illicit relationship with any man; that no case for inchastity was
initiated by Reynaldo against her, and that it was actually Reynaldo who had a pending
case for concubinage.[23] She questions the lower courts finding that she is a
nymphomaniac, since she was never interviewed by the expert witness to verify the truth
of Reynaldo's allegations. There is also not a single evidence to show that she had sexual
intercourse with a man other than her husband while they were still living together.[24]
Nilda also avers that the guidelines in Republic of the Phillippines. v. Molina[25] werenot
complied with. The RTC resolved the doubt on her motive for using her maiden name in
the telephone directory in favor of the dissolution of the marriage instead of its
preservation. The expert opinion was given weight, even though it was baseless to
establish that petitioner had psychological incapacity to comply with her marital obligations
as a wife; and that, assuming that such incapacity existed, it was already existing at the time
of the marriage; and that such incapacity was incurable and grave enough to bring about
the disability of the wife to assume the essential obligations of marriage.[26]
Reynaldo, for his part, argues that while the petition is captioned as one under Rule 45, it is
actually a petition for certiorari under Rule 65, since it impleads the CA as respondent and
alleges that the CA acted without or in excess of jurisdiction or with grave abuse of
discretion amounting to lack of or excess of jurisdiction.[27] Reynaldo also claims that the
issues raised by Nilda necessarily require a review of the factual findings of the lower
courts, which matters have already been decided and passed upon, and factual findings of
the courts a quo are binding on this Court; that only questions of law may be raised before
this Court; that the RTC, in reaching its decision, complied with the requirements
of Molina; that the Solicitor General was represented by the City Prosecutor of Toledo City;
and that Reynaldo discharged the burden of proof to show the nullity of his marriage
to Nilda.
Reynaldo further averred that he testified on his behalf; presented
corroborating witnesses, one of whom is an expert clinical psychologist, as well as
documentary evidence in support of his cause of action; that Molina did not require that
the psychologist examine the person to be declared psychologically incapacitated;
thatNilda did not rebut the psychologist's findings and did not present her own expert to
disprove the findings of Vatanagul; that Nilda's psychological incapacity, caused by
nymphomania, was duly proven to have been existing prior to and at the time of her
marriage to Reynaldo and to have become manifest during her marriage, based on the
testimonies of Reynaldo and his witnesses; and that such incapacity was proven to be
incurable, as shown by the report of Vatanagul.[28]
Nilda filed a Reply, and both parties filed their respective memoranda reiterating their
arguments.[29]
Simply stated, the issue posed before the Court is whether the marriage between
Reynaldo and Nilda is null and void on the ground of Nilda's psychological incapacity.
The answer, contrary to the findings of the RTC and the CA, is in the negative.
Preliminarily, let it be stressed that it is the policy of our Constitution to protect and
strengthen the family as the basic autonomous social institution, and marriage as the
foundation of the family.[30] The Constitution decrees marriage as legally inviolable and
protects it from dissolution at the whim of the parties.[31] The Family Code under Article
48[32] therefore requires courts to order the prosecuting attorney or fiscal assigned, in
cases of annulment or declaration of absolute nullity of marriage, to appear on behalf of
the State in order to take steps to prevent collusion between the parties and to take care
that the evidence is not fabricated or suppressed. Indeed, only the active participation of
the Public Prosecutor or the Office of the Solicitor General (OSG) will ensure that the
interest of the State is represented and protected in proceedings for annulment and
declarations of nullity of marriage by preventing collusion between the parties, or the
fabrication or suppression of evidence.[33]
While the guidelines in Molina requiring the OSG to issue a certification on whether or not
it is agreeing or objecting to the petition for annulment has been dispensed with by A.M.
No. 02-11-10-SC or the Rule on the Declaration of Absolute Nullity of Void Marriages and
Annulment of Voidable Marriages,[34] still, Article 48 mandates the appearance and active
participation of the State through the fiscal or the prosecuting attorney.[35]
In this case, contrary to the assertion of the RTC that the OSG actively participated in the
case through the Office of the City Prosecutor, records show that the State's participation
consists only of the Report dated November 29, 1999 by Assistant City Prosecutor Gabriel
L. Trocio, Jr. stating that no collusion exists between the parties;[36]the OSG's Opposition to
the petition for declaration of nullity of marriage dated June 2, 2000;[37] and the cross-
examination conducted by Prosecutor Trocio on Reynaldo[38]and his
witness Abales.[39] There were no other pleadings, motions, or position papers filed by the
Public Prosecutor or OSG; and no controverting evidence presented by them before the
judgment was rendered. Considering the interest sought to be protected by
the aforestated rules, the Court finds the State's participation in this case to be wanting.[40]
But even on the merits, the Court finds that the totality of evidence presented by Reynaldo,
contrary to its appreciation by the RTC and the CA, is insufficient to sustain a finding
that Nilda is psychologically incapacitated.
Generally, factual findings of trial courts, when affirmed by the CA, are binding on this
Court. Such principle however is not absolute, such as when the findings of the appellate
court go beyond the issues of the case; run contrary to the admissions of the parties; fail to
notice certain relevant facts which, if properly considered, will justify a different conclusion;
or when there is a misappreciation of facts.[41] Such is the case at bar.
Psychological incapacity, in order to be a ground for the nullity of marriage under Article
36[42] of the Family Code, refers to a serious psychological illness afflicting a party even
before the celebration of marriage. It is a malady that is so grave and permanent as to
deprive one of awareness of the duties and responsibilities of the matrimonial bond one is
about to assume. As all people may have certain quirks and idiosyncrasies, or isolated traits
associated with certain personality disorders, there is hardly any doubt that the intention of
the law has been to confine the meaning of psychological incapacity to the most serious
cases of personality disorders clearly demonstrative of an utter insensitivity or inability to
give meaning and significance to the marriage.[43]
In Santos v. Court of Appeals,[44] the Court held that psychological incapacity must be
characterized by (a) gravity, (b) juridical antecedence, and (c) incurability.[45] InRepublic of
the Philippines v. Molina,[46] the Court further set forth guidelines in the interpretation and
application of Article 36 of the Family Code, thus:
1. The burden of proof to show the nullity of the marriage
belongs to the plaintiff. Any doubt should be
resolved in favor of the existence and continuation
of the marriage and against its dissolution and
nullity. x x x
2. The root cause of the psychological incapacity must be: (a)
medically or clinically identified, (b) alleged in the
complaint, (c) sufficiently proven by experts and (d)
clearly explained in the decision. Article 36 of the
Family Code requires that the incapacity must be
psychological --- not physical, although its
manifestation and/or symptoms may be
physical. The evidence must convince the court that
the parties, or one of them, wasmentally or
psychically ill to such an extent that the person
could not have known that obligations he was
assuming, or knowing them, could not have given
valid assumption thereof. Although no example of
such incapacity need be given here so as not to limit
the application of the provision under the
principle ejusdemgeneris, nevertheless such root
cause must be identified as a psychological illness
and its incapacitating nature fully explained. Expert
evidence may be given by qualified psychiatrists
and clinical psychologists.
3. The incapacity must be proven to be existing at the time of
the celebration of the marriage. The evidence
must show that the illness was existing when the
parties exchanged their I do's. The manifestation
of the illness need not be perceivable at such time,
but the illness itself must have attached at
such moment, or prior thereto.
4. Such incapacity must also be shown to be medically or
clinically permanent or incurable. Such incurability
may be absolute or even relative only in regard to
the other spouse, not necessarily absolutely against
everyone of the same sex. Furthermore, such
incapacity must be relevant to the assumption of
marriage obligations, not necessarily to those not
85

related to marriage, like the exercise of a profession
or employment in a job. x x x.
5. Such illness must be grave enough to bring about the disability
of the party to assume the essential obligations of
marriage. Thus,
mild characteriological peculiarities, mood
changes, occasional emotional outbursts cannot
be accepted as root causes. The illness must be
shown as downright incapacity or inability, not a
refusal, neglect or difficulty, much less ill will. In
other words, there is a natal or supervening
disabling factor in the person, an adverse integral
element in the personality structure that effectively
incapacitates the person from really accepting and
thereby complying with the obligations essential to
marriage.
6. The essential marital obligations must be those embraced by
Articles 68 up to 71 of the Family Code as regards
the husband and wife as well as Articles 220, 221
and 225 of the same Code in regard to parents and
their children. Such non-complied marital
obligation(s) must also be stated in the petition,
proven by evidence and included in the text of the
decision.
7. Interpretations given by the National Appellate Matrimonial
Tribunal of the Catholic Church in the Philippines,
while not controlling or decisive, should be given
great respect by our courts. x x x.[47]
In this case, Reynaldo and his witnesses sought to establish
that Nilda was a flirt before the marriage, which flirtatiousness recurred when
she started working as an aerobics instructress. The instances alleged by
Reynaldo, i.e., the occasion when Nilda chose to ride home with another man
instead of him, that he saw Nildabeing kissed by another man while in a car, and
that Nilda allowed other men to touch her body, if true, would understandably
hurt and embarrass him. Still, these acts by themselves are insufficient to
establish a psychological or mental defect that is serious, incurable or grave as
contemplated by Article 36 of the Family Code.
Article 36 contemplates downright incapacity or inability to take cognizance of and to
assume basic marital obligations.[48] Mere difficulty, refusal or neglect in the
performance of marital obligations or ill will on the part of the spouse is different from
incapacity rooted on some debilitating psychological condition or illness.[49] Indeed,
irreconcilable differences, sexual infidelity or perversion, emotional immaturity and
irresponsibility, and the like, do not by themselves warrant a finding of psychological
incapacity under Article 36, as the same may only be due to a person's refusal or
unwillingness to assume the essential obligations of marriage and not due to some
psychological illness that is contemplated by said rule.[50]
As admitted by Reynaldo, his marriage with Nilda was not all that bad; in fact, it went well
in the first year of their marriage. As in other cases, an admission of a good and harmonious
relationship during the early part of the marriage weakens the assertion of psychological
defect existing at the time of the celebration of the marriage which deprived the party of
the ability to assume the essential duties of marriage and its concomitant
responsibilities.[51]
In determining the import of psychological incapacity under Article 36, the same must be
read in conjunction with, although to be taken as distinct from, Articles
35,[52] 37,[53]38[54] and 41[55]of the Family Code that would likewise, but for different
reasons, render the marriage void ab initio; or Article 45 that would make the marriage
merelyvoidable; or Article 55 that could justify a petition for legal separation.[56] These
various circumstances are not applied so indiscriminately as if the law were indifferent on
the matter.[57] Indeed, Article 36 should not be equated with legal separation, in which
the grounds need not be rooted in psychological incapacity but on physical violence, moral
pressure, moral corruption, civil interdiction, drug addiction, habitual alcoholism, sexual
infidelity, abandonment and the like.[58]
Reynaldo presented telephone directories in which Nilda used her maiden name Bacon
to prove that Nilda represented herself as single. As noted by the CA, however, the
telephone listings presented by Reynaldo were for the years 1993 to 1995,[59] after
Reynaldo admittedly left Nilda on June 18, 1992. Apart from Reynaldo
and Abalales's testimony, therefore, Reynaldo has no proof that Nilda represented herself
as single while they were still living together. The Court cannot agree with the RTC,
therefore, that said telephone listings show that Nilda represented herself to be single,
which in turn manifests her lack of understanding of the consequences of marriage.
Reynaldo also presented Clinical Psychologist Vatanagul to bolster his claim that Nildais
psychologically incapacitated. While it is true that the Court relies heavily on psychological
experts for its understanding of the human personality,[60] and that there is no
requirement that the defendant spouse be personally examined by a physician or
psychologist before the nullity of marriage based on psychological incapacity may be
declared,[61] still, the root cause of the psychological incapacity must be identified as a
psychological illness, its incapacitating nature fully explained,[62] and said incapacity
established by the totality of the evidence presented during trial.[63]
The Court finds that the psychological report presented in this case is insufficient to
establish Nilda's psychological incapacity. In her report, Vatanagul concluded that Nildais a
nymphomaniac, an emotionally immature individual, has a borderline personality, has
strong sexual urges which are incurable, has complete denial of her actual role as a wife,
has a very weak conscience or superego, emotionally immature, a social deviant, not a
good wife as seen in her infidelity on several occasions, an alcoholic, suffers from anti-social
personality disorder, fails to conform to social norms, deceitful, impulsive, irritable
and aggresive, irresponsible and vain.[64] She further defined nymphomia as a
psychiatric disorder that involves a disturbance in motor behavior as shown by her sexual
relationship with various men other than her husband.[65]
The report failed to specify, however, the names of the men Nilda had sexual relationship
with or the circumstances surrounding the same. As pointed out by Nilda, there is not even
a single proof that she was ever involved in an illicit relationship with a man other than her
husband. Vatanagul claims, during her testimony, that in coming out with the report, she
interviewed not only Reynaldo but also Jojo Caballes, Dorothy and Lesley who were
Reynaldo's sister-in-law and sister, respectively, a certain Marvin and a certain
Susan.[66] Vatanagul however, did not specify the identities of these persons, which
information were supplied by whom, and how they came upon their
respectiveinformations. Indeed, the conclusions drawn by the report are vague, sweeping
and lack sufficient factual bases. As the report lacked specificity, it failed to show the root
cause of Nilda's psychological incapacity; and failed to demonstrate that there was a natal
or supervening disabling factor or an adverse integral element in Nilda's character that
effectively incapacitated her from accepting, and thereby complying with, the essential
marital obligations, and that her psychological or mental malady existed even before the
marriage.[67] Hence, the Court cannot give weight to said assessment.
The standards used by the Court in assessing the sufficiency of psychological reports may
be deemed very strict, but that is only proper in view of the principle that any doubt should
be resolved in favor of the validity of the marriage and the indissolubility of the marital
vinculum.[68]
Reynaldo also claims that Nilda does not want to get pregnant which allegation was upheld
by the trial court. A review of the records shows, however, that apart from the testimony
of Reynaldo, no other proof was presented to support such claim. Mere allegation and
nothing more is insufficient to support such proposition. As petitioner before the trial court,
it devolves upon Reynaldo to discharge the burden of establishing the grounds that would
justify the nullification of the marriage.[69]
While Reynaldo and Nilda's marriage failed and appears to be without hope of
reconciliation, the remedy, however, is not always to have it declared void ab initio on the
ground of psychological incapacity. A marriage, no matter how unsatisfactory, is not a null
and void marriage.[70] And this Court, even as the highest one, can only apply the letter
and spirit of the law, no matter how harsh it may be.[71]
WHEREFORE, the petition is GRANTED. The assailed Decision of the Court of Appeals in
CA-G.R. CV No. 76624 promulgated on February 16, 2005 and the Decision dated January
2, 2002 of the Regional Trial Court, Branch 59 of Toledo City, in Civil Case No. T-799
are REVERSED and SET ASIDE. The petition for declaration of absolute nullity of marriage
and damages, docketed as Civil Case No. T-799, isDISMISSED.
Costs against respondent.
SO ORDERED.



86



































































87

THIRD DIVISION

EDWARD KENNETH NGO TE,
Petitioner,


- versus -


ROWENA ONG GUTIERREZ YU-TE,
Respondent,

REPUBLIC OF THEPHILIPPINES,
Oppositor.

G.R. No. 161793

Present:

YNARES-SANTIAGO, J.,
Chairperson,
AUSTRIA-MARTINEZ,
CHICO-NAZARIO,
NACHURA, and
PERALTA, JJ.

Promulgated:

February 13, 2009

x------------------------------------------------------------------------------------x
D E C I S I O N

NACHURA, J.:
Far from novel is the issue involved in this
petition. Psychological incapacity, since its incorporation in our
laws, has become a clichd subject of discussion in our
jurisprudence. The Court treats this case, however, with much ado,
it having realized that current jurisprudential doctrine has
unnecessarily imposed a perspective by which psychological
incapacity should be viewed, totally inconsistent with the way the
concept was formulatedfree in form and devoid of any definition.
For the resolution of the Court is a petition for review
on certiorari under Rule 45 of the Rules of Court assailing the August
5, 2003 Decision
[1]
of the Court of Appeals (CA) in CA-G.R. CV No.
71867. The petition further assails the January 19, 2004
Resolution
[2]
denying the motion for the reconsideration of the
challenged decision.
The relevant facts and proceedings follow.
Petitioner Edward Kenneth Ngo Te first got a glimpse of
respondent Rowena Ong Gutierrez Yu-Te in a gathering organized by
the Filipino-Chinese association in their college. Edward was then
initially attracted to Rowenas close friend; but, as the latter already
had a boyfriend, the young man decided to court Rowena. That was
in January 1996, when petitioner was a sophomore student and
respondent, a freshman.
[3]


Sharing similar angst towards their families, the two
understood one another and developed a certain degree of
closeness towards each other. In March 1996, or around three
months after their first meeting, Rowena asked Edward that they
elope. At first, he refused, bickering that he was young and
jobless. Her persistence, however, made him relent. Thus, they
left Manila and sailed to Cebu that month; he, providing their travel
money and she, purchasing the boat ticket.
[4]

However, Edwards P80,000.00 lasted for only a month.
Their pension house accommodation and daily sustenance fast
depleted it. And they could not find a job. In April 1996, they
decided to go back to Manila. Rowena proceeded to her uncles
house and Edward to his parents home. As his family was abroad,
and Rowena kept on telephoning him, threatening him that she
would commit suicide, Edward agreed to stay with Rowena at her
uncles place.
[5]

On April 23, 1996, Rowenas uncle brought the two to a
court to get married. He was then 25 years old, and she, 20.
[6]
The
two then continued to stay at her uncles place where Edward was
treated like a prisonerhe was not allowed to go out
unaccompanied. Her uncle also showed Edward his guns and
warned the latter not to leave Rowena.
[7]
At one point, Edward was
able to call home and talk to his brother who suggested that they
should stay at their parents home and live with them. Edward
relayed this to Rowena who, however, suggested that he should get
his inheritance so that they could live on their own. Edward talked
to his father about this, but the patriarch got mad, told Edward that
he would be disinherited, and insisted that Edward must go home.
[8]

After a month, Edward escaped from the house of
Rowenas uncle, and stayed with his parents. His family then hid
him from Rowena and her family whenever they telephoned to ask
for him.
[9]

In June 1996, Edward was able to talk to
Rowena. Unmoved by his persistence that they should live with his
parents, she said that it was better for them to live separate
lives. They then parted ways.
[10]

After almost four years, or on January 18, 2000, Edward
filed a petition before the Regional Trial Court (RTC) of Quezon City,
Branch 106, for the annulment of his marriage to Rowena on the
basis of the latters psychological incapacity. This was docketed as
Civil Case No. Q-00-39720.
[11]

As Rowena did not file an answer, the trial court, on July
11, 2000, ordered the Office of the City Prosecutor (OCP) of Quezon
City to investigate whether there was collusion between the
parties.
[12]
In the meantime, on July 27, 2000, the Office of the
Solicitor General (OSG) entered its appearance and deputized the
OCP to appear on its behalf and assist it in the scheduled
hearings.
[13]


88

On August 23, 2000, the OCP submitted an investigation
report stating that it could not determine if there was collusion
between the parties; thus, it recommended trial on the merits.
[14]


The clinical psychologist who examined petitioner found
both parties psychologically incapacitated, and made the following
findings and conclusions:

BACKGROUND DATA & BRIEF MARITAL HISTORY:

EDWARD KENNETH NGO TE is a [29-year-
old] Filipino male adult born and baptized Born
Again Christian at Manila. He finished two years
in college at AMA Computer College last 1994
and is currently unemployed. He is married to
and separated from ROWENA GUTIERREZ YU-
TE. He presented himself at my office for a
psychological evaluation in relation to his
petition for Nullification of Marriage against the
latter by the grounds of psychological
incapacity. He is now residing at 181 P. Tuazon
Street, Quezon City.

Petitioner got himself three siblings who
are now in business and one deceased
sister. Both his parents are also in the business
world by whom he [considers] as generous,
hospitable, and patient. This said virtues are
said to be handed to each of the family
member. He generally considers himself to be
quiet and simple. He clearly remembers himself
to be afraid of meeting people. After 1994, he
tried his luck in being a Sales Executive of
Mansfield International Incorporated. And
because of job incompetence, as well as being
quiet and loner, he did not stay long in the job
until 1996. His interest lie[s] on becoming a full
servant of God by being a priest or a pastor. He
[is] said to isolate himself from his friends even
during his childhood days as he only loves to
read the Bible and hear its message.

Respondent is said to come from a fine
family despite having a lazy father and a
disobedient wife. She is said to have not
finish[ed] her collegiate degree and shared
intimate sexual moments with her boyfriend
prior to that with petitioner.

In January of 1996, respondent showed
her kindness to petitioner and this became the
foundation of their intimate relationship. After a
month of dating, petitioner mentioned to
respondent that he is having problems with his
family. Respondent surprisingly retorted that
she also hates her family and that she actually
wanted to get out of their lives. From that [time
on], respondent had insisted to petitioner that
they should elope and live together. Petitioner
hesitated because he is not prepared as they are
both young and inexperienced, but she insisted
that they would somehow manage because
petitioner is rich. In the last week of March
1996, respondent seriously brought the idea of
eloping and she already bought tickets for the
boat going to Cebu. Petitioner reluctantly
agreed to the idea and so they eloped
to Cebu. The parties are supposed to stay at the
house of a friend of respondent, but they were
not able to locate her, so petitioner was
compelled to rent an apartment. The parties
tried to look for a job but could not find any so it
was suggested by respondent that they should
go back and seek help from petitioners
parents. When the parties arrived at the house
of petitioner, all of his whole family was all out
of the country so respondent decided to go back
to her home for the meantime while petitioner
stayed behind at their home. After a few days of
separation, respondent called petitioner by
phone and said she wanted to talk to
him. Petitioner responded immediately and
when he arrived at their house, respondent
confronted petitioner as to why he appeared to
be cold, respondent acted irrationally and even
threatened to commit suicide. Petitioner got
scared so he went home again. Respondent
would call by phone every now and then and
became angry as petitioner does not know what
to do. Respondent went to the extent of
threatening to file a case against petitioner and
scandalize his family in the
newspaper. Petitioner asked her how he would
be able to make amends and at this point in
time[,] respondent brought the idea of marriage.
Petitioner[,] out of frustration in life[,] agreed to
her to pacify her. And so on April 23, 1996,
respondents uncle brought the parties to
Valenzuela[,] and on that very same day[,]
petitioner was made to sign the Marriage
Contract before the Judge. Petitioner actually
never applied for any Marriage License.

Respondent decided that they should stay
first at their house until after arrival of the
parents of petitioner. But when the parents of
petitioner arrived, respondent refused to allow
petitioner to go home. Petitioner was
threatened in so many ways with her uncle
showing to him many guns. Respondent even
threatened that if he should persist in going
home, they will commission their military friends
to harm his family. Respondent even made
petitioner sign a declaration that if he should
perish, the authorities should look for him at his
parents[] and relatives[] houses. Sometime in
June of 1996, petitioner was able to escape and
he went home. He told his parents about his
predicament and they forgave him and
supported him by giving him military
escort. Petitioner, however, did not inform
them that he signed a marriage contract with
respondent. When they knew about it[,]
petitioner was referred for
counseling. Petitioner[,] after the counseling[,]
89

tried to contact respondent. Petitioner offered
her to live instead to[sic] the home of
petitioners parents while they are still
studying. Respondent refused the idea and
claimed that she would only live with him if they
will have a separate home of their own and be
away from his parents. She also intimated to
petitioner that he should already get his share of
whatever he would inherit from his parents so
they can start a new life. Respondent demanded
these not knowing [that] the petitioner already
settled his differences with his own
family. When respondent refused to live with
petitioner where he chose for them to
stay, petitioner decided to tell her to stop
harassing the home of his parents. He told her
already that he was disinherited and since he
also does not have a job, he would not be able to
support her. After knowing that petitioner does
not have any money anymore, respondent
stopped tormenting petitioner and informed
petitioner that they should live separate lives.

The said relationship between Edward
and Rowena is said to be undoubtedly in the
wreck and weakly-founded. The break-up was
caused by both parties*+ unreadiness to
commitment and their young age. He was still in
the state of finding his fate and fighting
boredom, while she was still egocentrically
involved with herself.

TESTS ADMINISTERED:

Revised Beta Examination
Bender Visual Motor Gestalt Test
Draw A Person Test
Rorschach Psychodiagnostic Test
Sachs Sentence Completion Test
M M P I

TEST RESULTS & EVALUATION:

Both petitioner and respondent are
dubbed to be emotionally immature and
recklessly impulsive upon swearing to their
marital vows as each of them was motivated by
different notions on marriage.

Edward Kenneth Ngo Te, the petitioner in
this case[,] is said to be still unsure and unready
so as to commit himself to marriage. He is still
founded to be on the search of what he wants in
life. He is absconded as an introvert as he is not
really sociable and displays a lack of interest in
social interactions and mingling with other
individuals. He is seen too akin to this kind of
lifestyle that he finds it boring and uninteresting
to commit himself to a relationship especially to
that of respondent, as aggravated by her
dangerously aggressive moves. As he is more of
the reserved and timid type of person, as he
prefer to be religiously attached and spend a
solemn time alone.

ROWENA GUTIERREZ YU-TE, the
respondent, is said to be of the aggressive-
rebellious type of woman. She is seen to be
somewhat exploitative in her [plight] for a life of
wealth and glamour. She is seen to take move
on marriage as she thought that her marriage
with petitioner will bring her good fortune
because he is part of a rich family. In order to
have her dreams realized, she used force and
threats knowing that [her] husband is somehow
weak-willed. Upon the realization that there is
really no chance for wealth, she gladly finds her
way out of the relationship.

REMARKS:

Before going to marriage, one should
really get to know himself and marry himself
before submitting to marital vows. Marriage
should not be taken out of intuition as it is
profoundly a serious institution solemnized by
religious and law. In the case presented by
petitioner and respondent[,] (sic) it is evidently
clear that both parties have impulsively taken
marriage for granted as they are still unaware of
their own selves. He is extremely introvert to the
point of weakening their relationship by his
weak behavioral disposition. She, on the other
hand[,] is extremely exploitative and aggressive
so as to be unlawful, insincere and undoubtedly
uncaring in her strides toward convenience. It is
apparent that she is suffering the grave, severe,
and incurable presence of Narcissistic and
Antisocial Personality Disorder that started since
childhood and only manifested during marriage.
Both parties display psychological incapacities
that made marriage a big mistake for them to
take.
[15]



The trial court, on July 30, 2001, rendered its
Decision
[16]
declaring the marriage of the parties null and void on the
ground that both parties were psychologically incapacitated to
comply with the essential marital obligations.
[17]
The Republic,
represented by the OSG, timely filed its notice of appeal.
[18]


On review, the appellate court, in the assailed August 5,
2003 Decision
[19]
in CA-G.R. CV No. 71867, reversed and set aside the
trial courts ruling.
[20]
It ruled that petitioner failed to prove the
psychological incapacity of respondent. The clinical psychologist did
not personally examine respondent, and relied only on the
information provided by petitioner. Further, the psychological
incapacity was not shown to be attended by gravity, juridical
antecedence and incurability. In sum, the evidence adduced fell
short of the requirements stated in Republic v. Court of Appeals and
Molina
[21]
needed for the declaration of nullity of the marriage
under Article 36 of the Family Code.
[22]
The CA faulted the lower
court for rendering the decision without the required certification of
the OSG briefly stating therein the OSGs reasons for its agreement
with or opposition to, as the case may be, the petition.
[23]
The CA
90

later denied petitioners motion for reconsideration in the likewise
assailed January 19, 2004 Resolution.
[24]


Dissatisfied, petitioner filed before this Court the instant
petition for review on certiorari. On June 15, 2005, the Court gave
due course to the petition and required the parties to submit their
respective memoranda.
[25]


In his memorandum,
[26]
petitioner argues that the CA
erred in substituting its own judgment for that of the trial court. He
posits that the RTC declared the marriage void, not only because of
respondents psychological incapacity, but rather due to both
parties psychological incapacity. Petitioner also points out that
there is no requirement for the psychologist to personally examine
respondent. Further, he avers that the OSG is bound by the actions
of the OCP because the latter represented it during the trial; and it
had been furnished copies of all the pleadings, the trial court orders
and notices.
[27]


For its part, the OSG contends in its memorandum,
[28]
that
the annulment petition filed before the RTC contains no statement
of the essential marital obligations that the parties failed to comply
with. The root cause of the psychological incapacity was likewise
not alleged in the petition; neither was it medically or clinically
identified. The purported incapacity of both parties was not shown
to be medically or clinically permanent or incurable. And the clinical
psychologist did not personally examine the respondent. Thus, the
OSG concludes that the requirements in Molina
[29]
were not
satisfied.
[30]


The Court now resolves the singular issue of whether,
based on Article 36 of the Family Code, the marriage between the
parties is null and void.
[31]

I.

We begin by examining the provision, tracing its origin and
charting the development of jurisprudence interpreting it.

Article 36 of the Family Code
[32]
provides:

Article 36. A marriage contracted by
any party who, at the time of the celebration,
was psychologically incapacitated to comply with
the essential marital obligations of marriage,
shall likewise be void even if such incapacity
becomes manifest only after its solemnization.


As borne out by the deliberations of the Civil Code
Revision Committee that drafted the Family Code, Article 36 was
based on grounds available in the Canon Law. Thus, Justice Flerida
Ruth P. Romero elucidated in her separate opinion in Santosv. Court
of Appeals:
[33]


However, as a member of both the
Family Law Revision Committee of the
Integrated Bar of the Philippines and the Civil
Code Revision Commission of the UP Law Center,
I wish to add some observations. The letter
dated April 15, 1985 of then Judge Alicia V.
Sempio-Diy written in behalf of the Family Law
and Civil Code Revision Committee to then
Assemblywoman Mercedes Cojuangco-Teodoro
traced the background of the inclusion of the
present Article 36 in the Family Code.

During its early meetings, the Family
Law Committee had thought of including a
chapter on absolute divorce in the draft of a new
Family Code (Book I of the Civil Code) that it had
been tasked by the IBP and the UP Law Center to
prepare. In fact, some members of the
Committee were in favor of a no-fault divorce
between the spouses after a number of years of
separation, legal or de facto. Justice J.B.L. Reyes
was then requested to prepare a proposal for an
action for dissolution of marriage and the effects
thereof based on two grounds: (a) five
continuous years of separation between the
spouses, with or without a judicial decree of
legal separation, and (b) whenever a married
person would have obtained a decree of
absolute divorce in another country. Actually,
such a proposal is one for absolute divorce but
called by another name. Later, even the Civil
Code Revision Committee took time to discuss
the proposal of Justice Reyes on this matter.

Subsequently, however, when the Civil
Code Revision Committee and Family Law
Committee started holding joint meetings on the
preparation of the draft of the New Family Code,
they agreed and formulated the definition of
marriage as

a special contract of permanent
partnership between a man and a woman
entered into in accordance with law for the
establishment of conjugal and family life. It is an
inviolable social institution whose nature,
consequences, and incidents are governed by
law and not subject to stipulation, except that
marriage settlements may fix the property
relations during the marriage within the limits
provided by law.

With the above definition, and
considering the Christian traditional concept of
marriage of the Filipino people as a permanent,
inviolable, indissoluble social institution upon
which the family and society are founded, and
also realizing the strong opposition that any
provision on absolute divorce would encounter
from the Catholic Church and the Catholic sector
of our citizenry to whom the great majority of
our people belong, the two Committees in their
joint meetings did not pursue the idea of
absolute divorce and, instead, opted for an
action for judicial declaration of invalidity of
marriage based on grounds available in the
Canon Law. It was thought that such an action
would not only be an acceptable alternative to
divorce but would also solve the nagging
problem of church annulments of marriages on
grounds not recognized by the civil law of the
State. Justice Reyes was, thus, requested to
91

again prepare a draft of provisions on such
action for celebration of invalidity of marriage.
Still later, to avoid the overlapping of provisions
on void marriages as found in the present Civil
Code and those proposed by Justice Reyes on
judicial declaration of invalidity of marriage on
grounds similar to the Canon Law, the two
Committees now working as a Joint Committee
in the preparation of a New Family Code decided
to consolidate the present provisions on void
marriages with the proposals of Justice Reyes.
The result was the inclusion of an additional kind
of void marriage in the enumeration of void
marriages in the present Civil Code, to wit:

(7) those marriages contracted by any
party who, at the time of the celebration, was
wanting in the sufficient use of reason or
judgment to understand the essential nature of
marriage or was psychologically or mentally
incapacitated to discharge the essential marital
obligations, even if such lack or incapacity is
made manifest after the celebration.

as well as the following implementing
provisions:

Art. 32. The absolute nullity of a
marriage may be invoked or pleaded only on the
basis of a final judgment declaring the marriage
void, without prejudice to the provision of
Article 34.

Art. 33. The action or defense for the
declaration of the absolute nullity of a marriage
shall not prescribe.

x x x x x x x x x

It is believed that many hopelessly broken
marriages in our country today may already be
dissolved or annulled on the grounds proposed
by the Joint Committee on declaration of nullity
as well as annulment of marriages, thus
rendering an absolute divorce law unnecessary.
In fact, during a conference with Father Gerald
Healy of the Ateneo University, as well as
another meeting with Archbishop Oscar Cruz of
the Archdiocese of Pampanga, the Joint
Committee was informed that since Vatican II,
the Catholic Church has been declaring
marriages null and void on the ground of lack of
due discretion for causes that, in other
jurisdictions, would be clear grounds for divorce,
like teen-age or premature marriages; marriage
to a man who, because of some personality
disorder or disturbance, cannot support a family;
the foolish or ridiculous choice of a spouse by an
otherwise perfectly normal person; marriage to
a woman who refuses to cohabit with her
husband or who refuses to have children. Bishop
Cruz also informed the Committee that they
have found out in tribunal work that a lot of
machismo among husbands are manifestations
of their sociopathic personality anomaly, like
inflicting physical violence upon their wives,
constitutional indolence or laziness, drug
dependence or addiction, and psychosexual
anomaly.
[34]



In her separate opinion in Molina,
[35]
she expounded:

At the Committee meeting of July 26,
1986, the draft provision read:

(7) Those marriages contracted by
any party who, at the time of the celebration,
was wanting in the sufficient use of reason or
judgment to understand the essential nature of
marriage or was psychologically or mentally
incapacitated to discharge the essential marital
obligations, even if such lack of incapacity is
made manifest after the celebration.

The twists and turns which the ensuing
discussion took finally produced the following
revised provision even before the session was
over:

(7) That contracted by any party
who, at the time of the celebration, was
psychologically incapacitated to discharge the
essential marital obligations, even if such lack or
incapacity becomes manifest after the
celebration.

Noticeably, the immediately preceding
formulation above has dropped any reference to
wanting in the sufficient use of reason or
judgment to understand the essential nature of
marriage and to mentally incapacitated. It
was explained that these phrases refer to
defects in the mental faculties vitiating consent,
which is not the idea . . . but lack of appreciation
of one's marital obligation. There being a defect
in consent, it is clear that it should be a ground
for voidable marriage because there is the
appearance of consent and it is capable of
convalidation for the simple reason that there
are lucid intervals and there are cases when the
insanity is curable . . . Psychological incapacity
does not refer to mental faculties and has
nothing to do with consent; it refers to
obligations attendant to marriage.

My own position as a member of the
Committee then was that psychological
incapacity is, in a sense, insanity of a lesser
degree.

As to the proposal of Justice Caguioa to
use the term psychological or mental
impotence, Archbishop Oscar Cruz opined in
the earlier February 9, 1984 session that this
term is an invention of some churchmen who
92

are moralists but not canonists, that is why it is
considered a weak phrase. He said that the
Code of Canon Law would rather express it as
psychological or mental incapacity to discharge
. . . Justice Ricardo C. Puno opined that
sometimes a person may be psychologically
impotent with one but not with another.

One of the guidelines enumerated in
the majority opinion for the interpretation and
application of Art. 36 is: Such incapacity must
also be shown to be medically or clinically
permanent or incurable. Such incurability may
be absolute or even relative only in regard to the
other spouse, not necessarily absolutely against
everyone of the same sex.

The Committee, through Prof. Araceli
T. Barrera, considered the inclusion of the
phrase and is incurable but Prof. Esteban B.
Bautista commented that this would give rise to
the question of how they will determine
curability and Justice Caguioa agreed that it
would be more problematic. Yet, the possibility
that one may be cured after the psychological
incapacity becomes manifest after the marriage
was not ruled out by Justice Puno and Justice
Alice Sempio-Diy. Justice Caguioa suggested that
the remedy was to allow the afflicted spouse to
remarry.

For clarity, the Committee classified
the bases for determining void marriages, viz.:

1. lack of one or more of the
essential requisites of marriage as contract;
2. reasons of public policy;
3. special cases and special
situations.

The ground of psychological incapacity was
subsumed under special cases and special
situations, hence, its special treatment in Art.
36 in the Family Code as finally enacted.

Nowhere in the Civil Code provisions
on Marriage is there a ground for avoiding or
annulling marriages that even comes close to
being psychological in nature.

Where consent is vitiated due to
circumstances existing at the time of the
marriage, such marriage which stands valid until
annulled is capable of ratification or
convalidation.

On the other hand, for reasons of
public policy or lack of essential requisites, some
marriages are void from the beginning.

With the revision of Book I of the Civil
Code, particularly the provisions on Marriage,
the drafters, now open to fresh winds of change
in keeping with the more permissive mores and
practices of the time, took a leaf from the
relatively liberal provisions of Canon Law.

Canon 1095 which states, inter alia,
that the following persons are incapable of
contracting marriage: 3. (those) who, because
of causes of a psychological nature, are unable
to assume the essential obligations of marriage
provided the model for what is now Art. 36 of
the Family Code: A marriage contracted by any
party who, at the time of the celebration, was
psychologically incapacitated to comply with the
essential marital obligations of marriage, shall
likewise be void even if such incapacity becomes
manifest only after its solemnization.

It bears stressing that unlike in Civil
Law, Canon Law recognizes only two types of
marriages with respect to their validity: valid and
void. Civil Law, however, recognizes an
intermediate state, the voidable or annullable
marriages. When the Ecclesiastical Tribunal
annuls a marriage, it actually declares the
marriage null and void, i.e., it never really existed
in the first place, for a valid sacramental
marriage can never be dissolved. Hence, a
properly performed and consummated marriage
between two living Roman Catholics can only be
nullified by the formal annulment process which
entails a full tribunal procedure with a Court
selection and a formal hearing.

Such so-called church annulments
are not recognized by Civil Law as severing the
marriage ties as to capacitate the parties to
enter lawfully into another marriage. The
grounds for nullifying civil marriage, not being
congruent with those laid down by Canon Law,
the former being more strict, quite a number of
married couples have found themselves in
limbofreed from the marriage bonds in the
eyes of the Catholic Church but yet unable to
contract a valid civil marriage under state laws.
Heedless of civil law sanctions, some persons
contract new marriages or enter into live-in
relationships.

It was precisely to provide a
satisfactory solution to such anomalous
situations that the Civil Law Revision Committee
decided to engraft the Canon Law concept of
psychological incapacity into the Family Code
and classified the same as a ground for declaring
marriages void ab initio or totally inexistent from
the beginning.

A brief historical note on the Old
Canon Law (1917). This Old Code, while it did not
provide directly for psychological incapacity, in
effect, recognized the same indirectly from a
combination of three old canons: Canon #1081
required persons to be capable according to
93

law in order to give valid consent; Canon #1082
required that persons be at least not ignorant
of the major elements required in marriage; and
Canon #1087 (the force and fear category)
required that internal and external freedom be
present in order for consent to be valid. This line
of interpretation produced two distinct but
related grounds for annulment called lack of
due discretion and lack of due competence.
Lack of due discretion means that the person did
not have the ability to give valid consent at the
time of the wedding and, therefore, the union is
invalid. Lack of due competence means that the
person was incapable of carrying out the
obligations of the promise he or she made during
the wedding ceremony.

Favorable annulment decisions by the
Roman Rota in the 1950s and 1960s
involving sexual disorders such as homosexuality
and nymphomania laid the foundation for a
broader approach to the kind of proof necessary
for psychological grounds for annulment.
The Rota had reasoned for the first time in
several cases that the capacity to give valid
consent at the time of marriage was probably
not present in persons who had displayed such
problems shortly after the marriage. The nature
of this change was nothing short of
revolutionary. Once the Rota itself had
demonstrated a cautious willingness to use this
kind of hindsight, the way was paved for what
came after 1970. Diocesan Tribunals began to
accept proof of serious psychological problems
that manifested themselves shortly after the
ceremony as proof of an inability to give valid
consent at the time of the ceremony.
[36]



Interestingly, the Committee did not give any examples of
psychological incapacity for fear that by so doing, it might limit the
applicability of the provision under the principle of ejusdem generis.
The Committee desired that the courts should interpret the
provision on a case-to-case basis; guided by experience, the findings
of experts and researchers in psychological disciplines, and by
decisions of church tribunals which, although not binding on the civil
courts, may be given persuasive effect since the provision itself was
taken from the Canon Law.
[37]
The law is then so designed as to
allow some resiliency in its application.
[38]


Yet, as held in Santos,
[39]
the phrase psychological
incapacity is not meant to comprehend all possible cases of
psychoses. It refers to no less than a mental (not physical) incapacity
that causes a party to be truly noncognitive of the basic marital
covenants that concomitantly must be assumed and discharged by
the parties to the marriage which, as expressed by Article 68
[40]
of
the Family Code, include their mutual obligations to live together,
observe love, respect and fidelity; and render help and support. The
intendment of the law has been to confine it to the most serious of
cases of personality disorders clearly demonstrative of an utter
insensitivity or inability to give meaning and significance to the
marriage.
[41]
This interpretation is, in fact, consistent with that in
Canon Law, thus:

3.5.3.1. The Meaning of Incapacity to
Assume. A sharp conceptual distinction must be
made between the second and third paragraphs
of C.1095, namely between the grave lack of
discretionary judgment and the incapacity to
assume the essential obligation. Mario
Pompedda, a rotal judge, explains the difference
by an ordinary, if somewhat banal,
example. Jose wishes to sell a house to Carmela,
and on the assumption that they are capable
according to positive law to enter such contract,
there remains the object of the contract, viz, the
house. The house is located in a different
locality, and prior to the conclusion of the
contract, the house was gutted down by fire
unbeknown to both of them. This is the
hypothesis contemplated by the third paragraph
of the canon. The third paragraph does not deal
with the psychological process of giving consent
because it has been established a priori that
both have such a capacity to give consent, and
they both know well the object of their consent
[the house and its particulars]. Rather, C.1095.3
deals with the object of the consent/contract
which does not exist. The contract is invalid
because it lacks its formal object. The consent as
a psychological act is both valid and
sufficient. The psychological act, however, is
directed towards an object which is not
available. Urbano Navarrete summarizes this
distinction: the third paragraph deals not with
the positing of consent but with positing the
object of consent. The person may be capable of
positing a free act of consent, but he is not
capable of fulfilling the responsibilities he
assumes as a result of the consent he elicits.

Since the address of Pius XII to the auditors of
the Roman Rota in 1941 regarding psychic
incapacity with respect to marriage arising from
pathological conditions, there has been an
increasing trend to understand as ground of
nullity different from others, the incapacity to
assume the essential obligations of marriage,
especially the incapacity which arises from
sexual anomalies. Nymphomania is a sample
which ecclesiastical jurisprudence has studied
under this rubric.

The problem as treated can be summarized,
thus: do sexual anomalies always and in every
case imply a grave psychopathological condition
which affects the higher faculties of intellect,
discernment, and freedom; or are there sexual
anomalies that are purely so that is to say, they
arise from certain physiological dysfunction of
the hormonal system, and they affect the sexual
condition, leaving intact the higher faculties
however, so that these persons are still capable
of free human acts. The evidence from the
empirical sciences is abundant that there are
certain anomalies of a sexual nature which may
94

impel a person towards sexual activities which
are not normal, either with respect to its
frequency [nymphomania, satyriasis] or to the
nature of the activity itself [sadism, masochism,
homosexuality]. However, these anomalies
notwithstanding, it is altogether possible that
the higher faculties remain intact such that a
person so afflicted continues to have an
adequate understanding of what marriage is and
of the gravity of its responsibilities. In fact, he
can choose marriage freely. The question
though is whether such a person can assume
those responsibilities which he cannot fulfill,
although he may be able to understand them. In
this latter hypothesis, the incapacity to assume
the essential obligations of marriage issues from
the incapacity to posit the object of consent,
rather than the incapacity to posit consent itself.

Ecclesiastical jurisprudence has been hesitant, if
not actually confused, in this regard. The initial
steps taken by church courts were not too clear
whether this incapacity is incapacity to posit
consent or incapacity to posit the object of
consent. A case c. Pinna, for example, arrives at
the conclusion that the intellect, under such an
irresistible impulse, is prevented from properly
deliberating and its judgment lacks
freedom. This line of reasoning supposes that
the intellect, at the moment of consent, is under
the influence of this irresistible compulsion, with
the inevitable conclusion that such a decision,
made as it was under these circumstances, lacks
the necessary freedom. It would be
incontrovertible that a decision made under
duress, such as this irresistible impulse, would
not be a free act. But this is precisely the
question: is it, as a matter of fact, true that the
intellect is always and continuously under such
an irresistible compulsion? It would seem
entirely possible, and certainly more reasonable,
to think that there are certain cases in which one
who is sexually hyperaesthetic can understand
perfectly and evaluate quite maturely what
marriage is and what it implies; his consent
would be juridically ineffective for this one
reason that he cannot posit the object of
consent, the exclusive jus in corpus to be
exercised in a normal way and with usually
regularity. It would seem more correct to say
that the consent may indeed be free, but is
juridically ineffective because the party is
consenting to an object that he cannot
deliver. The house he is selling was gutted down
by fire.

3.5.3.2. Incapacity as an Autonomous
Ground. Sabattani seems to have seen his way
more clearly through this tangled mess,
proposing as he did a clear conceptual
distinction between the inability to give consent
on the one hand, and the inability to fulfill the
object of consent, on the other. It is his opinion
that nymphomaniacs usually understand the
meaning of marriage, and they are usually able
to evaluate its implications. They would have no
difficulty with positing a free and intelligent
consent. However, such persons, capable as
they are of eliciting an intelligent and free
consent, experience difficulty in another sphere:
delivering the object of the consent. Anne,
another rotal judge, had likewise treated the
difference between the act of consenting and
the act of positing the object of consent from the
point of view of a person afflicted with
nymphomania. According to him, such an
affliction usually leaves the process of knowing
and understanding and evaluating intact. What
it affects is the object of consent: the delivering
of the goods.

3.5.3.3 Incapacity as Incapacity to Posit the
Object of Consent. From the selected rotal
jurisprudence cited, supra, it is possible to see a
certain progress towards a consensus doctrine
that the incapacity to assume the essential
obligations of marriage (that is to say, the formal
object of consent) can coexist in the same
person with the ability to make a free decision,
an intelligent judgment, and a mature evaluation
and weighing of things. The decision coram
Sabattani concerning a nymphomaniac affirmed
that such a spouse can have difficulty not only
with regard to the moment of consent but also,
and especially, with regard to the
matrimonium in facto esse. The decision
concludes that a person in such a condition is
incapable of assuming the conjugal obligation of
fidelity, although she may have no difficulty in
understanding what the obligations of marriage
are, nor in the weighing and evaluating of those
same obligations.

Prior to the promulgation of the Code of Canon
Law in 1983, it was not unusual to refer to this
ground as moral impotence or psychic
impotence, or similar expressions to express a
specific incapacity rooted in some anomalies and
disorders in the personality. These anomalies
leave intact the faculties of the will and the
intellect. It is qualified as moral or psychic,
obviously to distinguish it from the impotence
that constitutes the impediment dealt with by
C.1084. Nonetheless, the anomalies render the
subject incapable of binding himself in a valid
matrimonial pact, to the extent that the anomaly
renders that person incapable of fulfilling the
essential obligations. According to the principle
affirmed by the long tradition of moral theology:
nemo ad impossibile tenetur.

x x x x

3.5.3.5 Indications of Incapacity. There is
incapacity when either or both of the
contractants are not capable of initiating or
95

maintaining this consortium. One immediately
thinks of those cases where one of the parties is
so self-centered [e.g., a narcissistic personality]
that he does not even know how to begin a
union with the other, let alone how to maintain
and sustain such a relationship. A second
incapacity could be due to the fact that the
spouses are incapable of beginning or
maintaining a heterosexual consortium, which
goes to the very substance of
matrimony. Another incapacity could arise when
a spouse is unable to concretize the good of
himself or of the other party. The canon speaks,
not of the bonum partium, but of the bonum
conjugum. A spouse who is capable only of
realizing or contributing to the good of the other
party qua persona rather than qua
conjunx would be deemed incapable of
contracting marriage. Such would be the case of
a person who may be quite capable of procuring
the economic good and the financial security of
the other, but not capable of realizing
the bonum conjugale of the other. These are
general strokes and this is not the place for
detained and individual description.

A rotal decision c. Pinto resolved a petition
where the concrete circumstances of the case
concerns a person diagnosed to be suffering
from serious sociopathy. He concluded that
while the respondent may have understood, on
the level of the intellect, the essential obligations
of marriage, he was not capable of assuming
them because of his constitutional immorality.

Stankiewicz clarifies that the maturity and
capacity of the person as regards the fulfillment
of responsibilities is determined not only at the
moment of decision but also and especially
during the moment of execution of
decision. And when this is applied to
constitution of the marital consent, it means that
the actual fulfillment of the essential obligations
of marriage is a pertinent consideration that
must be factored into the question of whether a
person was in a position to assume the
obligations of marriage in the first place. When
one speaks of the inability of the party to
assume and fulfill the obligations, one is not
looking at matrimonium in fieri, but also and
especially at matrimonium in facto esse. In [the]
decision of 19 Dec. 1985, Stankiewicz collocated
the incapacity of the respondent to assume the
essential obligations of marriage in the psychic
constitution of the person, precisely on the basis
of his irresponsibility as regards money and his
apathy as regards the rights of others that he
had violated. Interpersonal relationships are
invariably disturbed in the presence of this
personality disorder. A lack of empathy (inability
to recognize and experience how others feel) is
common. A sense of entitlement, unreasonable
expectation, especially favorable treatment, is
usually present. Likewise common is
interpersonal exploitativeness, in which others
are taken advantage of in order to achieve ones
ends.

Authors have made listings of obligations
considered as essential matrimonial
obligations. One of them is the right to
the communio vitae. This and their
corresponding obligations are basically centered
around the good of the spouses and of the
children. Serious psychic anomalies, which do
not have to be necessarily incurable, may give
rise to the incapacity to assume any, or several,
or even all of these rights. There are some cases
in which interpersonal relationship is
impossible. Some characteristic features of
inability for interpersonal relationships in
marriage include affective immaturity,
narcissism, and antisocial traits.

Marriage and Homosexuality. Until 1967, it was
not very clear under what rubric homosexuality
was understood to be invalidating of marriage
that is to say, is homosexuality invalidating
because of the inability to evaluate the
responsibilities of marriage, or because of the
inability to fulfill its obligations. Progressively,
however, rotal jurisprudence began to
understand it as incapacity to assume the
obligations of marriage so that by 1978, Parisella
was able to consider, with charity,
homosexuality as an autonomous ground of
nullity. This is to say that a person so afflicted is
said to be unable to assume the essential
obligations of marriage. In this same rotal
decision, the object of matrimonial consent is
understood to refer not only to the jus in
corpus but also the consortium totius vitae. The
third paragraph of C.1095 [incapacity to assume
the essential obligations of marriage] certainly
seems to be the more adequate juridical
structure to account for the complex
phenomenon that homosexuality is. The
homosexual is not necessarily impotent because,
except in very few exceptional cases, such a
person is usually capable of full sexual relations
with the spouse. Neither is it a mental infirmity,
and a person so afflicted does not necessarily
suffer from a grave lack of due discretion
because this sexual anomaly does not by itself
affect the critical, volitive, and intellectual
faculties. Rather, the homosexual person is
unable to assume the responsibilities of
marriage because he is unable to fulfill this
object of the matrimonial contract. In other
words, the invalidity lies, not so much in the
defect of consent, as in the defect of the object
of consent.

3.5.3.6 Causes of Incapacity. A last point that
needs to be addressed is the source of incapacity
specified by the canon: causes of a psychological
96

nature. Pompedda proffers the opinion that the
clause is a reference to the personality of the
contractant. In other words, there must be a
reference to the psychic part of the person. It is
only when there is something in the psyche or in
the psychic constitution of the person which
impedes his capacity that one can then affirm
that the person is incapable according to the
hypothesis contemplated by C.1095.3. A person
is judged incapable in this juridical sense only to
the extent that he is found to have something
rooted in his psychic constitution which impedes
the assumption of these obligations. A bad habit
deeply engrained in ones consciousness would
not seem to qualify to be a source of this
invalidating incapacity. The difference being
that there seems to be some freedom, however
remote, in the development of the habit, while
one accepts as given ones psychic
constitution. It would seem then that the law
insists that the source of the incapacity must be
one which is not the fruit of some degree of
freedom.
[42]



Conscious of the laws intention that it is the courts, on a
case-to-case basis, that should determine whether a party to a
marriage is psychologically incapacitated, the Court, in sustaining
the lower courts judgment of annulment in Tuason v. Court of
Appeals,
[43]
ruled that the findings of the trial court are final and
binding on the appellate courts.
[44]


Again, upholding the trial courts findings and declaring
that its decision was not a judgment on the pleadings, the Court,
in Tsoi v. Court of Appeals,
[45]
explained that when private
respondent testified under oath before the lower court and was
cross-examined by the adverse party, she thereby presented
evidence in the form of testimony. Importantly, the Court, aware of
parallel decisions of Catholic marriage tribunals, ruled that the
senseless and protracted refusal of one of the parties to fulfill the
marital obligation of procreating children is equivalent to
psychological incapacity.

The resiliency with which the concept should be applied
and the case-to-case basis by which the provision should be
interpreted, as so intended by its framers, had, somehow, been
rendered ineffectual by the imposition of a set of strict standards
in Molina,
[46]
thus:

From their submissions and the Court's
own deliberations, the following guidelines in
the interpretation and application of Art. 36 of
the Family Code are hereby handed down for the
guidance of the bench and the bar:

(1) The burden of proof to
show the nullity of the marriage belongs to the
plaintiff. Any doubt should be resolved in favor
of the existence and continuation of the
marriage and against its dissolution and nullity.
This is rooted in the fact that both our
Constitution and our laws cherish the validity of
marriage and unity of the family. Thus, our
Constitution devotes an entire Article on the
Family, recognizing it as the foundation of the
nation. It decrees marriage as legally
inviolable, thereby protecting it from
dissolution at the whim of the parties. Both the
family and marriage are to be protected by
the state.

The Family Code echoes this
constitutional edict on marriage and the family
and emphasizes their permanence, inviolability
and solidarity.

(2) The root cause of the
psychological incapacity must be (a) medically or
clinically identified, (b) alleged in the complaint,
(c) sufficiently proven by experts and (d) clearly
explained in the decision. Article 36 of the Family
Code requires that the incapacity must be
psychologicalnot physical, although its
manifestations and/or symptoms may be
physical. The evidence must convince the court
that the parties, or one of them, was mentally or
psychically ill to such an extent that the person
could not have known the obligations he was
assuming, or knowing them, could not have
given valid assumption thereof. Although no
example of such incapacity need be given here
so as not to limit the application of the provision
under the principle of ejusdem generis,
nevertheless such root cause must be identified
as a psychological illness and its incapacitating
nature fully explained. Expert evidence may be
given by qualified psychiatrists and clinical
psychologists.

(3) The incapacity must be proven
to be existing at the time of the celebration of
the marriage. The evidence must show that the
illness was existing when the parties exchanged
their I do's. The manifestation of the illness
need not be perceivable at such time, but the
illness itself must have attached at such
moment, or prior thereto.

(4) Such incapacity must also be
shown to be medically or clinically permanent or
incurable. Such incurability may be absolute or
even relative only in regard to the other spouse,
not necessarily absolutely against everyone of
the same sex. Furthermore, such incapacity must
be relevant to the assumption of marriage
obligations, not necessarily to those not related
to marriage, like the exercise of a profession or
employment in a job. Hence, a pediatrician may
be effective in diagnosing illnesses of children
and prescribing medicine to cure them but may
not be psychologically capacitated to procreate,
bear and raise his/her own children as an
essential obligation of marriage.

(5) Such illness must be grave
enough to bring about the disability of the party
97

to assume the essential obligations of marriage.
Thus, mild characterological peculiarities, mood
changes, occasional emotional outbursts cannot
be accepted as root causes. The illness must be
shown as downright incapacity or inability, not a
refusal, neglect or difficulty, much less ill will. In
other words, there is a natal or supervening
disabling factor in the person, an adverse
integral element in the personality structure that
effectively incapacitates the person from really
accepting and thereby complying with the
obligations essential to marriage.

(6) The essential marital
obligations must be those embraced by Articles
68 up to 71 of the Family Code as regards the
husband and wife as well as Articles 220, 221
and 225 of the same Code in regard to parents
and their children. Such non-complied marital
obligation(s) must also be stated in the petition,
proven by evidence and included in the text of
the decision.

(7) Interpretations given by the
National Appellate Matrimonial Tribunal of the
Catholic Church in the Philippines, while not
controlling or decisive, should be given great
respect by our courts. It is clear that Article 36
was taken by the Family Code Revision
Committee from Canon 1095 of the New Code of
Canon Law, which became effective in 1983 and
which provides:

The following are incapable of
contracting marriage: Those who are unable to
assume the essential obligations of marriage due
to causes of psychological nature.

Since the purpose of including such
provision in our Family Code is to harmonize our
civil laws with the religious faith of our people, it
stands to reason that to achieve such
harmonization, great persuasive weight should
be given to decisions of such appellate tribunal.
Ideally subject to our law on evidencewhat
is decreed as canonically invalid should also be
decreed civilly void.

This is one instance where, in view of
the evident source and purpose of the Family
Code provision, contemporaneous religious
interpretation is to be given persuasive effect.
Here, the State and the Churchwhile
remaining independent, separate and apart from
each othershall walk together in synodal
cadence towards the same goal of protecting
and cherishing marriage and the family as the
inviolable base of the nation.

(8) The trial court must order the
prosecuting attorney or fiscal and the Solicitor
General to appear as counsel for the state. No
decision shall be handed down unless the
Solicitor General issues a certification, which will
be quoted in the decision, briefly stating therein
his reasons for his agreement or opposition, as
the case may be, to the petition. The Solicitor
General, along with the prosecuting attorney,
shall submit to the court such certification within
fifteen (15) days from the date the case is
deemed submitted for resolution of the court.
The Solicitor General shall discharge the
equivalent function of the defensor
vinculi contemplated under Canon 1095.
[47]



Noteworthy is that in Molina, while the majority of the
Courts membership concurred in the ponencia of then Associate
Justice (later Chief Justice) Artemio V. Panganiban, three justices
concurred in the result and another threeincluding, as aforesaid,
Justice Romerotook pains to compose their individual separate
opinions. Then Justice Teodoro R. Padilla even emphasized that
each case must be judged, not on the basis of a priori assumptions,
predelictions or generalizations, but according to its own facts. In
the field of psychological incapacity as a ground for annulment of
marriage, it is trite to say that no case is on all fours with another
case. The trial judge must take pains in examining the factual milieu
and the appellate court must, as much as possible, avoid
substituting its own judgment for that of the trial court.
[48]


Predictably, however, in resolving subsequent
cases,
[49]
the Court has applied the aforesaid standards, without too
much regard for the laws clear intention that each case is to be
treated differently, as courts should interpret the provision on a
case-to-case basis; guided by experience, the findings of experts and
researchers in psychological disciplines, and by decisions of church
tribunals.

In hindsight, it may have been inappropriate for the Court
to impose a rigid set of rules, as the one in Molina, in resolving all
cases of psychological incapacity. Understandably, the Court was
then alarmed by the deluge of petitions for the dissolution of marital
bonds, and was sensitive to the OSGs exaggeration of Article 36 as
the most liberal divorce procedure in the world.
[50]
The
unintended consequences of Molina, however, has taken its toll on
people who have to live with deviant behavior, moral insanity and
sociopathic personality anomaly, which, like termites, consume little
by little the very foundation of their families, our basic social
institutions. Far from what was intended by the Court, Molina has
become a strait-jacket, forcing all sizes to fit into and be bound by it.
Wittingly or unwittingly, the Court, in conveniently applying Molina,
has allowed diagnosed sociopaths, schizophrenics, nymphomaniacs,
narcissists and the like, to continuously debase and pervert the
sanctity of marriage. Ironically, the Roman Rota has annulled
marriages on account of the personality disorders of the said
individuals.
[51]


The Court need not worry about the possible abuse of the
remedy provided by Article 36, for there are ample safeguards
against this contingency, among which is the intervention by the
State, through the public prosecutor, to guard against collusion
between the parties and/or fabrication of evidence.
[52]
The Court
should rather be alarmed by the rising number of cases involving
marital abuse, child abuse, domestic violence and incestuous rape.

98

In dissolving marital bonds on account of either partys
psychological incapacity, the Court is not demolishing the
foundation of families, but it is actually protecting the sanctity of
marriage, because it refuses to allow a person afflicted with a
psychological disorder, who cannot comply with or assume the
essential marital obligations, from remaining in that sacred bond. It
may be stressed that the infliction of physical violence,
constitutional indolence or laziness, drug dependence or addiction,
and psychosexual anomaly are manifestations of a sociopathic
personality anomaly.
[53]
Let it be noted that in Article 36, there is no
marriage to speak of in the first place, as the same is void from the
very beginning.
[54]
To indulge in imagery, the declaration of nullity
under Article 36 will simply provide a decent burial to a stillborn
marriage.

The prospect of a possible remarriage by the freed
spouses should not pose too much of a concern for the Court. First
and foremost, because it is none of its business. And second,
because the judicial declaration of psychological incapacity operates
as a warning or a lesson learned. On one hand, the normal spouse
would have become vigilant, and never again marry a person with a
personality disorder. On the other hand, a would-be spouse of the
psychologically incapacitated runs the risk of the latters disorder
recurring in their marriage.

Lest it be misunderstood, we are not suggesting the
abandonment of Molina in this case. We simply declare that, as
aptly stated by Justice Dante O. Tinga in Antonio v. Reyes,
[55]
there is
need to emphasize other perspectives as well which should govern
the disposition of petitions for declaration of nullity under Article
36. At the risk of being redundant, we reiterate once more the
principle that each case must be judged, not on the basis of a
priori assumptions, predilections or generalizations but according to
its own facts. And, to repeat for emphasis, courts should interpret
the provision on a case-to-case basis; guided by experience, the
findings of experts and researchers in psychological disciplines, and
by decisions of church tribunals.

II.

We now examine the instant case.

The parties whirlwind relationship lasted more or less six
(6) months. They met in January 1996, eloped in March, exchanged
marital vows in May, and parted ways in June. The psychologist who
provided expert testimony found both parties psychologically
incapacitated. Petitioners behavioral pattern falls under the
classification of dependent personality disorder, and respondents,
that of the narcissistic and antisocial personality disorder.
[56]


By the very nature of Article 36, courts, despite having the
primary task and burden of decision-making, must not discount but,
instead, must consider as decisive evidence the expert opinion on
the psychological and mental temperaments of the parties.
[57]


Justice Romero explained this in Molina, as follows:

Furthermore, and equally
significant, the professional opinion of a
psychological expert became increasingly
important in such cases. Data about the person's
entire life, both before and after the ceremony,
were presented to these experts and they were
asked to give professional opinions about a
party's mental capacity at the time of the
wedding. These opinions were rarely challenged
and tended to be accepted as decisive evidence
of lack of valid consent.

The Church took pains to point out
that its new openness in this area did not
amount to the addition of new grounds for
annulment, but rather was an accommodation
by the Church to the advances made in
psychology during the past decades. There was
now the expertise to provide the all-important
connecting link between a marriage breakdown
and premarital causes.

During the 1970s, the Church
broadened its whole idea of marriage from that
of a legal contract to that of a covenant. The
result of this was that it could no longer be
assumed in annulment cases that a person who
could intellectually understand the concept of
marriage could necessarily give valid consent to
marry. The ability to both grasp and assume the
real obligations of a mature, lifelong
commitment are now considered a necessary
prerequisite to valid matrimonial consent.

Rotal decisions continued applying the
concept of incipient psychological incapacity,
not only to sexual anomalies but to all kinds of
personality disorders that incapacitate a spouse
or both spouses from assuming or carrying out
the essential obligations of marriage. For
marriage . . . is not merely cohabitation or the
right of the spouses to each other's body for
heterosexual acts, but is, in its totality the right
to the community of the whole of life; i.e., the
right to a developing lifelong relationship. Rotal
decisions since 1973 have refined the meaning of
psychological or psychic capacity for marriage as
presupposing the development of an adult
personality; as meaning the capacity of the
spouses to give themselves to each other and to
accept the other as a distinct person; that the
spouses must be other oriented since the
obligations of marriage are rooted in a self-
giving love; and that the spouses must have the
capacity for interpersonal relationship because
marriage is more than just a physical reality but
involves a true intertwining of personalities. The
fulfillment of the obligations of marriage
depends, according to Church decisions, on the
strength of this interpersonal relationship. A
serious incapacity for interpersonal sharing and
support is held to impair the relationship and
consequently, the ability to fulfill the essential
marital obligations. The marital capacity of one
spouse is not considered in isolation but in
reference to the fundamental relationship to the
other spouse.

99

Fr. Green, in an article in Catholic
Mind, lists six elements necessary to the mature
marital relationship:

The courts consider the
following elements crucial to the marital
commitment: (1) a permanent and faithful
commitment to the marriage partner; (2)
openness to children and partner; (3) stability;
(4) emotional maturity; (5) financial
responsibility; (6) an ability to cope with the
ordinary stresses and strains of marriage, etc.

Fr. Green goes on to speak
about some of the psychological conditions that
might lead to the failure of a marriage:

At stake is a type of
constitutional impairment precluding conjugal
communion even with the best intentions of
the parties. Among the psychic factors possibly
giving rise to his or her inability to fulfill marital
obligations are the following: (1) antisocial
personality with its fundamental lack of loyalty
to persons or sense of moral values; (2)
hyperesthesia, where the individual has no real
freedom of sexual choice; (3) the inadequate
personality where personal responses
consistently fall short of reasonable
expectations.

x x x x

The psychological grounds
are the best approach for anyone who doubts
whether he or she has a case for an annulment
on any other terms. A situation that does not fit
into any of the more traditional categories
often fits very easily into the psychological
category.

As new as the psychological
grounds are, experts are already detecting a
shift in their use. Whereas originally the
emphasis was on the parties' inability to
exercise proper judgment at the time of the
marriage (lack of due discretion), recent cases
seem to be concentrating on the parties'
incapacity to assume or carry out their
responsibilities and obligations as
promised (lack of due competence). An
advantage to using the ground of lack of due
competence is that at the time the marriage
was entered into civil divorce and breakup of
the family almost always is proof of someone's
failure to carry out marital responsibilities as
promised at the time the marriage was entered
into.
[58]



Hernandez v. Court of Appeals
[59]
emphasizes the
importance of presenting expert testimony to establish the precise
cause of a partys psychological incapacity, and to show that it
existed at the inception of the marriage. And as Marcos v.
Marcos
[60]
asserts, there is no requirement that the person to be
declared psychologically incapacitated be personally examined by a
physician, if the totality of evidence presented is enough to sustain a
finding of psychological incapacity.
[61]
Verily, the evidence must
show a link, medical or the like, between the acts that manifest
psychological incapacity and the psychological disorder itself.

This is not to mention, but we mention nevertheless for
emphasis, that the presentation of expert proof presupposes a
thorough and in-depth assessment of the parties by the psychologist
or expert, for a conclusive diagnosis of a grave, severe and incurable
presence of psychological incapacity.
[62]
Parenthetically, the Court,
at this point, finds it fitting to suggest the inclusion in the Rule on
Declaration of Absolute Nullity of Void Marriages and Annulment of
Voidable Marriages,
[63]
an option for the trial judge to refer the case
to a court-appointed psychologist/expert for an independent
assessment and evaluation of the psychological state of the parties.
This will assist the courts, who are no experts in the field of
psychology, to arrive at an intelligent and judicious determination of
the case. The rule, however, does not dispense with the parties
prerogative to present their own expert witnesses.

Going back, in the case at bench, the psychological
assessment, which we consider as adequate, produced the findings
that both parties are afflicted with personality disordersto repeat,
dependent personality disorder for petitioner, and narcissistic and
antisocial personality disorder for respondent. We note that The
Encyclopedia of Mental Health discusses personality disorders as
follows

A group of disorders involving behaviors or traits
that are characteristic of a persons recent and
long-term functioning. Patterns of perceiving
and thinking are not usually limited to isolated
episodes but are deeply ingrained, inflexible,
maladaptive and severe enough to cause the
individual mental stress or anxieties or to
interfere with interpersonal relationships and
normal functioning. Personality disorders are
often recognizable by adolescence or earlier,
continue through adulthood and become less
obvious in middle or old age. An individual may
have more than one personality disorder at a
time.

The common factor among individuals
who have personality disorders, despite a variety
of character traits, is the way in which the
disorder leads to pervasive problems in social
and occupational adjustment. Some individuals
with personality disorders are perceived by
others as overdramatic, paranoid, obnoxious or
even criminal, without an awareness of their
behaviors. Such qualities may lead to trouble
getting along with other people, as well as
difficulties in other areas of life and often a
tendency to blame others for their
problems. Other individuals with personality
disorders are not unpleasant or difficult to work
with but tend to be lonely, isolated or
dependent. Such traits can lead to interpersonal
100

difficulties, reduced self-esteem and
dissatisfaction with life.

Causes of Personality
Disorders Different mental health viewpoints
propose a variety of causes of personality
disorders. These include Freudian, genetic
factors, neurobiologic theories and brain wave
activity.

Freudian Sigmund Freud believed that
fixation at certain stages of development led to
certain personality types. Thus, some disorders
as described in the Diagnostic and Statistical
Manual of Mental Disorders (3d ed., rev.) are
derived from his oral, anal and phallic character
types. Demanding and dependent behavior
(dependent and passive-aggressive) was thought
to derive from fixation at the oral
stage. Characteristics of obsessionality, rigidity
and emotional aloofness were thought to derive
from fixation at the anal stage; fixation at the
phallic stage was thought to lead to shallowness
and an inability to engage in intimate
relationships. However, later researchers have
found little evidence that early childhood events
or fixation at certain stages of development lead
to specific personality patterns.

Genetic Factors Researchers have
found that there may be a genetic factor
involved in the etiology of antisocial and
borderline personality disorders; there is less
evidence of inheritance of other personality
disorders. Some family, adoption and twin
studies suggest that schizotypal personality may
be related to genetic factors.

Neurobiologic Theories In individuals
who have borderline personality, researchers
have found that low cerebrospinal fluid 5-
hydroxyindoleacetic acid (5-HIAA) negatively
correlated with measures of aggression and a
past history of suicide attempts. Schizotypal
personality has been associated with low
platelet monoamine oxidase (MAO) activity and
impaired smooth pursuit eye movement.

Brain Wave Activity Abnormalities in
electroencephalograph (EEG) have been
reported in antisocial personality for many years;
slow wave is the most widely reported
abnormality. A study of borderline patients
reported that 38 percent had at least marginal
EEG abnormalities, compared with 19 percent in
a control group.

Types of Disorders According to the
American Psychiatric Associations Diagnostic
and Statistical Manual of Mental Disorders (3d
ed., rev., 1987), or DSM-III-R, personality
disorders are categorized into three major
clusters:

Cluster A: Paranoid, schizoid and
schizotypal personality disorders. Individuals
who have these disorders often appear to have
odd or eccentric habits and traits.

Cluster B: Antisocial, borderline, histrionic
and narcissistic personality disorders. Individuals
who have these disorders often appear overly
emotional, erratic and dramatic.

Cluster C: Avoidant, dependent,
obsessive-compulsive and passive-aggressive
personality disorders. Individuals who have
these disorders often appear anxious or fearful.

The DSM-III-R also lists another category,
personality disorder not otherwise specified,
that can be used for other specific personality
disorders or for mixed conditions that do not
qualify as any of the specific personality
disorders.

Individuals with diagnosable
personality disorders usually have long-term
concerns, and thus therapy may be long-term.
[64]



Dependent personality disorder is characterized in the following
manner


A personality disorder characterized by a pattern
of dependent and submissive behavior. Such
individuals usually lack self-esteem and
frequently belittle their capabilities; they fear
criticism and are easily hurt by others
comments. At times they actually bring about
dominance by others through a quest for
overprotection.

Dependent personality disorder usually
begins in early adulthood. Individuals who have
this disorder may be unable to make everyday
decisions without advice or reassurance from
others, may allow others to make most of their
important decisions (such as where to live), tend
to agree with people even when they believe
they are wrong, have difficulty starting projects
or doing things on their own, volunteer to do
things that are demeaning in order to get
approval from other people, feel uncomfortable
or helpless when alone and are often
preoccupied with fears of being abandoned.
[65]



and antisocial personality disorder described, as follows


Characteristics include a consistent pattern of
behavior that is intolerant of the conventional
behavioral limitations imposed by a society, an
inability to sustain a job over a period of years,
101

disregard for the rights of others (either through
exploitiveness or criminal behavior), frequent
physical fights and, quite commonly, child or
spouse abuse without remorse and a tendency
to blame others. There is often a faade of
charm and even sophistication that masks
disregard, lack of remorse for mistreatment of
others and the need to control others.

Although characteristics of this disorder
describe criminals, they also may befit some
individuals who are prominent in business or
politics whose habits of self-centeredness and
disregard for the rights of others may be hidden
prior to a public scandal.

During the 19
th
century, this type of
personality disorder was referred to as moral
insanity. The term described immoral, guiltless
behavior that was not accompanied by
impairments in reasoning.

According to the classification system
used in the Diagnostic and Statistical Manual of
Mental Disorders (3d ed., rev. 1987), anti-social
personality disorder is one of the four
dramatic personality disorders, the others
being borderline, histrionic and narcissistic.
[66]



The seriousness of the diagnosis and the gravity of the
disorders considered, the Court, in this case, finds as decisive the
psychological evaluation made by the expert witness; and, thus,
rules that the marriage of the parties is null and void on ground of
both parties psychological incapacity. We further consider that the
trial court, which had a first-hand view of the witnesses
deportment, arrived at the same conclusion.

Indeed, petitioner, who is afflicted with dependent personality
disorder, cannot assume the essential marital obligations of living
together, observing love, respect and fidelity and rendering help and
support, for he is unable to make everyday decisions without advice
from others, allows others to make most of his important decisions
(such as where to live), tends to agree with people even when he
believes they are wrong, has difficulty doing things on his own,
volunteers to do things that are demeaning in order to get approval
from other people, feels uncomfortable or helpless when alone and
is often preoccupied with fears of being abandoned.
[67]
As clearly
shown in this case, petitioner followed everything dictated to him by
the persons around him. He is insecure, weak and gullible, has no
sense of his identity as a person, has no cohesive self to speak of,
and has no goals and clear direction in life.

Although on a different plane, the same may also be said of
the respondent. Her being afflicted with antisocial personality
disorder makes her unable to assume the essential marital
obligations. This finding takes into account her disregard for the
rights of others, her abuse, mistreatment and control of others
without remorse, her tendency to blame others, and her intolerance
of the conventional behavioral limitations imposed by
society.
[68]
Moreover, as shown in this case, respondent is impulsive
and domineering; she had no qualms in manipulating petitioner with
her threats of blackmail and of committing suicide.

Both parties being afflicted with grave, severe and incurable
psychological incapacity, the precipitous marriage which they
contracted on April 23, 1996 is thus, declared null and void.

WHEREFORE, premises considered, the petition for review
on certiorari is GRANTED. The August 5, 2003 Decision and the
January 19, 2004 Resolution of the Court of Appeals in CA-G.R. CV
No. 71867 are REVERSED and SET ASIDE, and the Decision, dated
July 30, 2001, REINSTATED.

SO ORDERED.



















































102



























































































































103

Republic of the Philippines
SUPREME COURT
Manila
SECOND DIVISION
G.R. No. L-53703 August 19, 1986
LILIA OLIVA WIEGEL, petitioner,
vs.
THE HONORABLE ALICIA V. SEMPIO-DIY (as presiding judge of the
Juvenile and Domestic Relations Court of Caloocan City) and KARL
HEINZ WIEGEL, respondents.
Dapucanta, Dulay & Associates for petitioner.
Siguion Reyna, Montecillo and Ongsiako Law Office for private
respondent.

PARAS, J.:
In an action (Family Case No. 483) filed before the erstwhile Juvenile
and Domestic Relations Court of Caloocan City, herein respondent
Karl Heinz Wiegel (plaintiff therein) asked for the declaration of
Nullity of his marriage (celebrated on July, 1978 at the Holy Catholic
Apostolic Christian Church Branch in Makati, Metro Manila) with
herein petitioner Lilia Oliva Wiegel (Lilia, for short, and defendant
therein) on the ground of Lilia's previous existing marriage to one
Eduardo A. Maxion, the ceremony having been performed on June
25, 1972 at our Lady of Lourdes Church in Quezon City. Lilia, while
admitting the existence of said prior subsisting marriage claimed
that said marriage was null and void, she and the first husband
Eduardo A. Maxion having been allegedly forced to enter said
marital union. In the pre-trial that ensued, the issue agreed upon by
both parties was the status of the first marriage (assuming the
presence of force exerted against both parties): was said prior
marriage void or was it merely voidable? Contesting the validity of
the pre-trial order, Lilia asked the respondent court for an
opportunity to present evidence-
(1) that the first marriage was vitiated by force exercised upon both
her and the first husband; and
(2) that the first husband was at the time of the marriage in 1972
already married to someone else.
Respondent judge ruled against the presentation of evidence
because the existence of force exerted on both parties of the first
marriage had already been agreed upon. Hence, the present petition
for certiorari assailing the following Orders of therespondent Judge-
(1) the Order dated March 17, 1980 in which the parties were
compelled to submit the case for resolution based on "agreed facts;"
and
(2) the Order dated April 14, 1980, denying petitioner's motion to
allow her to present evidence in her favor.
We find the petition devoid of merit.
There is no need for petitioner to prove that her first marriage was
vitiated by force committed against both parties because assuming
this to be so, the marriage will not be void but merely viodable (Art.
85, Civil Code), and therefore valid until annulled. Since no
annulment has yet been made, it is clear that when she married
respondent she was still validly married to her first husband,
consequently, her marriage to respondent is VOID (Art. 80, Civil
Code).
There is likewise no need of introducing evidence about the existing
prior marriage of her first husband at the time they married each
other, for then such a marriage though void still needs according to
this Court a judicial declaration
1
of such fact and for all legal intents
and purposes she would still be regarded as a married woman at the
time she contracted her marriage with respondent Karl Heinz
Wiegel); accordingly, the marriage of petitioner and respondent
would be regarded VOID under the law.
WHEREFORE, this petition is hereby DISMISSED, for lack of merit,
and the Orders complained of are hereby AFFIRMED. Costs against
petitioner.
SO ORDERED.
Feria (Chairman), Fernan Alampay and Gutierrez, Jr., JJ., concur.















104
























































105

Republic of the Philippines
SUPREME COURT
Manila
SECOND DIVISION

G.R. No. L-40003 October 28, 1986
SHIRLEY YAP, in her own behalf and in her capacity as
Administratrix of the estate of MANING YAP, JAIME YAP, and
TALINA BIANONG VDA. DE YAP, petitioners,
vs.
COURT OF APPEALS, NANCY J. YAP, MANING YAP, JR., JULIA YAP,
JASMIN YAP, and SAMUEL YAP,respondents.
Francisco Villanueva for petitioners.
Ramon Tuangco for respondents.

GUTIERREZ, JR., J.:
This is a petition to review the decision of the Court of Appeals
which set aside the earlier decision of the then Court of First
Instance of Lanao del Sur in Special Proceeding No. 1334 (R-61),
declaring the petitioners as the legal heirs of the late Maning Yap
entitled to inherit his estate and dismissing the opposition filed by
the private respondents. The dispositive portion of the decision on
appeal reads:
WHEREFORE, the decision appealed from is
hereby set aside and, after a complete and
correct inventory is returned by the
administratrix, the entire estate of the deceased
Maning Yap shall be divided into two equal
parts, one-half (1/2) corresponding to the
petitioner Talina Bianong and her children
Shirley Yap and Jaime Yap and the other half
corresponding to the oppositors Nancy J. Yap
and her children Maning Yap, Jr., Julia Yap,
Jasmin Yap and Samuel Yap, without
pronouncement as to costs.
Maning Yap, during his lifetime married twice: first, to Talina
Bianong in 1939 and second, to Nancy Yap on December 11, 1948.
Maning Yap and Talina Bianong were married at Bara-as Plantation,
Malabang, Lanao del Sur, in accordance with the Muslim rites and
practices prescribed by the Islam religion professed by both of them.
Immediately, after the marriage, the couple lived in the house of the
parents of Maning Yap at the poblacion of Malabang, Lanao del Sur.
Out of the marriage, four children were born; two of them died in
infancy during the Japanese occupation, while the two others are
petitioners Shirley Yap and Jaime Yap.
While the first marriage was still subsisting, Maning Yap married
Nancy J. Yap on December 11, 1948 in a civil ceremony performed
by District Judge Juan Sarenas of the Court of First Instance of
Cotabato. Nancy Yap entered into the marriage in the belief that
Maning Yap was not a married man. They had four children, namely
respondents Maning Yap, Jr., Julia Yap, Jasmin Yap and Samuel Yap.
On February 21, 1964, Maning Yap died in Piagapo, Lanao del Sur, in
the crash of an airplane of the Philippine Air Lines. At the time of his
death he, therefore, had two families living separately about 80
kilometers apart.
On March 3, 1964, Talina Bianong Vda. de Yap filed Special
Proceeding No. 1334 (Intestate Estate of Maning Yap) before the
Court of First Instance of Lanao del Sur, seeking the issuance of
letters of administration for the estate of Maning Yap. Among other
things, the petition alleged that Maning Yap left personal and real
properties all located at Malabang, Lanao del Sur, with an
approximate value of P100,000.00.
The petition was opposed by Nancy J. Yap and her minor children on
the ground that she is the legitimate widow of Maning Yap and that
Maning Yap, Jr., Julia Yap, Jasmin Yap and Samuel Yap, all minors,
are their legitimate children.
Talina Bianong was initially appointed special administratrix of the
intestate estate of Maning Yap. However, after a formal hearing and
on recommendation of Talina, the lower court appointed Shirley Yap
as regular administratrix of the intestate estate of Maning Yap.
Various claims filed by the creditors against the intestate estate of
Maning Yap were duly approved by the court and paid by the
administratrix. Since there still existed a residue of the intestate
estate consisting of real and personal properties and collectible
debts after payments to creditors, the court set the case for hearing
to arrive at a declaration of heirship for the purpose of liquidating
the conjugal partnership of the late Maning Yap and his surviving
spouse and to determine the heirs entitled to inherit his intestate
estate.
After trial, the lower court rendered decision declaring Talina
Bianong and her children as the legal heirs of Maning Yap. The
dispositive portion of the decision reads:
IN VIEW OF ALL THE FOREGOING, judgment is
hereby rendered:
(a) Declaring Talina Bianong, Shirley Yap and
Jaime Yap, the legal heirs of the late Maning Yap
and entitled to inherit or succeed to his intestate
with Talina Bianong, as his surviving spouse, and
Shirleyt Yap and Jaime Yap, as his surviving
legitimate children;
(b) Adjudicating to Talina Bianong one-third (1/3)
of the whole intestate estate of the late Maning
Yap, as her share, pursuant to Art. 996 of the
New Civil Code; to Shirley Yap, the other one-
third (1/3) as her share and to Jaime Yap the
remaining one-third (1/3), also as his share,
106

pursuant to Art. 980 in conjunction with Art. 996
of the new Civil Code.
The opposition and claim of the opposition is
hereby dismissed without costs.
Upon appeal by Nancy Yap and her children, the appellate court
reversed and set aside the decision. As stated earlier, the Court of
Appeals ruled that the estate of Maning Yap should be equally
divided into two equal parts: one-half (1/2) to Talina Bianong and
her children and the other half (1/2) to Nancy Yap and her children.
The appellate court applied the ruling in Lao and Lao v. Dee Tim (45
Phil. 739). The facts in the cited case are similar to the case at bar in
that Yap Siong in his lifetime contracted two marriages; first to Dee
Tim on September 14, 1893 in China with whom he had three
children and second to Maria Lao on June 24, 1903 with whom he
had one child. Moreover, Maria Lao entered into the marriage
believing that Yap Siong was not then a married man. Yap Siong died
on September 1922 leaving properties which were claimed by the
two families. In resolving the issue on how the properties of Yap
Siong should be divided, this Court applied the Leyes de Partidas
(Law 1; Title 13, Partida 4), to wit:
xxx xxx xxx
... [W]here two wome innocently and in good
faith are legally united in holy matrimony to the
same man, their children and each family will be
entitled to one-half of the estate of the husband
upon distribution of his estate. That provision of
the Leyes de Partidas is a very humane and wise
law. It justly protects those who innocently have
entered into the solemn relation of marriage and
their descendants. The good faith of all the
parties will be presumed until the contrary is
positive proved. (Articles 69, Civil Code; Las
Leyes de Matrimonio, section 96; Gaines v.
Hennen, 65 U.S., 553).
A woman who is deceied by a man who
respresents himself as single and who marries
him, she and her children born while the
deception lasted, under the Spanish law, are
entitled to all the rights of a legitimate wife and
children. The common law allowing none of the
incidents of a true marriage to follow another
marriage entered into during the continuance of
a first, was early found to work a great injustice
upon the innocent parties to the second
marriage, and specially upon the offspring of
such second marriage. ...
The petitioners now contend that Maning Yap died in 1964 when the
New Civil Code had already super ed the old Spanish Civil Code. They
state that pursuant to Article 2263 of the New Civil Code, the
distribution of the estate of Maning Yap should be in accordance
with, the new codal provisions and not the Leyes Partidas, which is
an old law no longer applicable,
We agree.
Article 2263, a transitional provision in the New Civil Code which
took effect on August 30, 1950 states:
Rights to the inheritance of a person who died,
with or without a will, before the effectivity of
this Code, shall be governed by the Civil Code of
1889, by other previous laws, and by the Rules of
Court. The inheritance of those who, with or
without a will die after the beginning of the
effectivity of this Code, shall be adjudicated and
distributed in accordance with this new body of
laws and by the Rules of Court; but the
testamentary provisions shall be carried out
insofar as they may be permitted by this Code.
Therefore, legitimes, betterments, legacies and
bequests shall be respected; however, their
amount shall be reduced if in no other manner
can every compulsory heir be given his full share
according to this Code. (Rule 12a)
The Report of the Code Commission explains the rule, to wit:
The decisive fact which gives origin to the right
of the heirs, devisees and legatees is the death
of the decedent. This is the basis of the
foregoing rule. No heir, devisee or legatee has
any vested right until the moment of such death
(Civil Code, Padilla, Volume VII, 1975, p. 712).
We have accordingly ruled that the rights to the inheritance of a
person who died before the effectivity of the New Civil Code shall be
governed by the Civil Code of 1889, by other previous laws and by
the Rules of Court (See Vidaurrazaga v. Court of Appeals, 91 Phil.
492; Canales v. Arrogante, 91 Phil. 9; and Morales, et al. v. Yaez, 98
Phil. 677), while the rights to the inheritance of a person who died
after the effectivity of the New Civil Code shall be governed by the
New Civil Code (Del Prado v. Santos, 18 SCRA 68).
There is no dispute that the marriage of Talina Bianong to Maning
Yap was valid and that the second marriage contracted by the latter
with Nancy Yap was illegal and void pursuant to Act 3613 of the
Philippine Legislature, the Marriage Law which was in force when
the two marriages were celebrated to wit:
SEC. 29. Illegal Marriages. 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;
(a) The first marriage was annulled or dissolved;
(b) The first spouse had been absent for seven
consecutive years at the time of the second
marriage without the spouse present having
news of the absentee being alive, or the
absentee being generally considered as dead
107

and believed to be so by the spouse present at
the time of contracting such subsequent
marriage, the marriage so contracted being valid
in either case until declared null and void by a
competent court.
Bearing this in mind, how must the estate of Maning Yap be
distributed?
The records show that the real and personal properties under
administration in the intestate estate proceedings of Maning Yap
were acquired by Talina Bianong and the deceased Maning Yap
during their marriage. Hence, these properties, in the absence of
any evidence to the contrary are considered conjugal properties of
Talina Bianong and Maning Yap (Article 142, New Civil Code).
Considering that there was no liquidation of the conjugal
partnership of gains during the lifetime of Maning Yap, such
liquidation must be carried out in the intestate proceedings of
Maning Yap, the deceased spouse as expressly provided in Section 2,
Rule 73, Revised Rules of Court (Lapuz v. Eufemio, 43 SCRA 177).
Article 142 of the New Civil Code provides:
By means of the conjugal partnership of gains
the husband and wife place in a common fund
the fruits of their separate property and the
income from their work or industry, and divide
equally, upon the dissolution of the marriage or
of the partnership, the net gains or benefits
obtained indiscriminately by either spouse
during the marriage.
and Article 185 thereof states:
The net remainder of the conjugal partnership of
gains shall be divided equally between the
husband and the wife or their respective heirs,
unless a different basis of division was agreed
upon in the marriage settlements.
Pursuant to these provisions, the net remainder of the conjugal
partnership of gains after money claims filed by creditors against the
intestate estate of Maning Yap approved by the lower court have
been paid by the administratrix should be equally divided between
Maning Yap and Talina Bianong as their shares. The one-half share of
Maning Yap would then comprise his intestate estate to be
distributed among his heirs. (See also Vda. de Delizo v. Delizo, 69
SCRA 216)
Under the law of succession in the New Civil Code, Maning Yap's
legal heirs are Talina Bianong, her children Shirley Yap and Jaime Yap
and the children of Nancy Yap by Maning Yap namely: Maning Yap,
Jr., Julia Yap, Jasmin Yap and Samuel Yap. Talina Bianong, the first
wife had not lost or relinquished her status as putative heir of her
husband. She is entitled to share in Maning Yap's estate upon his
death (Gomez v. Lipana, 33 SCRA 615). On the other hand, Nancy
Yap, the second wife cannot inherit from Maning Yap because their
marriage was void ab initio. (Art. 83, New Civil Code; People v.
Mendoza, 95 Phil. 845) However, Nancy Yap's children by Maning
Yap have the status of natural children by legal fiction and are
considered compulsory heirs of the late Maning Yap. (Articles 89 and
887, New Civil Code).
Considering the foregoing, the estate of Maning Yap which is one-
half (1/2) pro indiviso of the net remainder of the conjugal
partnership of gains of the first marriage (Articles 142 and 185 New
Civil Code), the other half being the share of Talina Bianong, should
be distributed as follows:
a. To the legitimate children, Shirley Yap and
Jaime Yap-one-half (1/2) of the resulting net
estate to be divided equally between them
pursuant to Article 888 of the New Civil Code;
b. To the legitimate widow Talina Bianong one-
fourth (1/4) of the net estate taken from the free
portion or disposable half of the estate pursuant
to Article 999 in relation. to Article 897 of the
New Civil Code; and
c. To the natural children by legal fiction --
Maning Yap, Jr., Julia Yap, Jasmin Yap and
Samuel Yap-the remaining one-fourth (1/4) of
the net estate to be shared equally between
them pursuant to the first and third paragraphs
of Article 895 in relation to Article 983 of the
New Civil Code.
WHEREFORE, the instant PETITION is GRANTED. The questioned
decision of the Court of Appeals is hereby REVERSED and SET ASIDE.
The widow, Talina Bianong shall receive one half (1/2) of the whole
intestate estate as her share in the net remainder of the conjugal
partnership of gains. The other half, which is the net estate of the
late Maning Yap, is distributed and adjudicated as stated above.
SO ORDERED.
Feria (Chairman), Fernan, Alampay and Paras, JJ., concur.










108
























































109

Republic of the Philippines
SUPREME COURT
Manila
THIRD DIVISION

G.R. No. 104818 September 17, 1993
ROBERTO DOMINGO, petitioner,
vs.
COURT OF APPEALS and DELIA SOLEDAD AVERA represented by her
Attorney-in-Fact MOISES R. AVERA,respondents.
Jose P.O. Aliling IV for petitioner.
De Guzman, Meneses & Associates for private respondent.

ROMERO, J.:
The instant petition seeks the reversal of respondent court's ruling
finding no grave abuse of discretion in the lower court's order
denying petitioner's motion to dismiss the petition for declaration of
nullity of marriage and separation of property.
On May 29, 1991, private respondent Delia Soledad A. Domingo filed
a petition before the Regional Trial Court of Pasig entitled
"Declaration of Nullity of Marriage and Separation of Property"
against petitioner Roberto Domingo. The petition which was
docketed as Special Proceedings No. 1989-J alleged among others
that: they were married on November 29, 1976 at the YMCA Youth
Center Bldg., as evidenced by a Marriage Contract Registry No.
1277K-76 with Marriage License No. 4999036 issued at Carmona,
Cavite; unknown to her, he had a previous marriage with one
Emerlina dela Paz on April 25, 1969 which marriage is valid and still
existing; she came to know of the prior marriage only sometime in
1983 when Emerlina dela Paz sued them for bigamy; from January
23 1979 up to the present, she has been working in Saudi Arabia and
she used to come to the Philippines only when she would avail of
the one-month annual vacation leave granted by her foreign
employer since 1983 up to the present, he has been unemployed
and completely dependent upon her for support and subsistence;
out of her personal earnings, she purchased real and personal
properties with a total amount of approximately P350,000.00, which
are under the possession and administration of Roberto; sometime
in June 1989, while on her one-month vacation, she discovered that
he was cohabiting with another woman; she further discovered that
he had been disposing of some of her properties without her
knowledge or consent; she confronted him about this and thereafter
appointed her brother Moises R. Avera as her attorney-in-fact to
take care of her properties; he failed and refused to turn over the
possession and administration of said properties to her
brother/attorney-in-fact; and he is not authorized to administer and
possess the same on account of the nullity of their marriage. The
petition prayed that a temporary restraining order or a writ of
preliminary injunction be issued enjoining Roberto from exercising
any act of administration and ownership over said properties; their
marriage be declared null and void and of no force and effect; and
Delia Soledad be declared the sole and exclusive owner of all
properties acquired at the time of their void marriage and such
properties be placed under the proper management and
administration of the attorney-in-fact.
Petitioner filed a Motion to Dismiss on the ground that the petition
stated no cause of action. The marriage being void ab initio, the
petition for the declaration of its nullity is, therefore, superfluous
and unnecessary. It added that private respondent has no property
which is in his possession.
On August 20, 1991, Judge Maria Alicia M. Austria issued an Order
denying the motion to dismiss for lack of merit. She explained:
Movant argues that a second marriage
contracted after a first marriage by a man with
another woman is illegal and void (citing the
case of Yap v. Court of Appeals, 145 SCRA 229)
and no judicial decree is necessary to establish
the invalidity of a void marriage (citing the cases
of People v. Aragon, 100 Phil. 1033; People v.
Mendoza, 95 Phil. 845). Indeed, under the Yap
case there is no dispute that the second
marriage contracted by respondent with herein
petitioner after a first marriage with another
woman is illegal and void. However, as to
whether or not the second marriage should first
be judicially declared a nullity is not an issue in
said case. In the case of Vda. de Consuegra
v. GSIS, the Supreme Court ruled in explicit
terms, thus:
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 its nullity.
(37 SCRA 316, 326)
The above ruling which is of later vintage
deviated from the previous rulings of the
Supreme Court in the aforecited cases of
Aragon and Mendoza.
Finally, the contention of respondent
movant that petitioner has no property in
his possession is an issue that may be
determined only after trial on the merits.
1

A motion for reconsideration was filed stressing the erroneous
application of Vda. de Consuegra v. GSIS
2
and the absence of
justiciable controversy as to the nullity of the marriage. On
September 11, 1991, Judge Austria denied the motion for
reconsideration and gave petitioner fifteen (15) days from receipt
within which to file his answer.
Instead of filing the required answer, petitioner filed a special civil
action of certiorari and mandamus on the ground that the lower
110

court acted with grave abuse of discretion amounting to lack of
jurisdiction in denying the motion to dismiss.
On February 7, 1992, the Court of Appeals
3
dismissed the petition. It
explained that the case of Yap v. CA
4
cited by petitioner and that
of Consuegra v. GSIS relied upon by the lower court do not have
relevance in the case at bar, there being no identity of facts because
these cases dealt with the successional rights of the second wife
while the instant case prays for separation of property corollary with
the declaration of nullity of marriage. It observed that the
separation and subsequent distribution of the properties acquired
during the union can be had only upon proper determination of the
status of the marital relationship between said parties, whether or
not the validity of the first marriage is denied by petitioner.
Furthermore, in order to avoid duplication and multiplicity of suits,
the declaration of nullity of marriage may be invoked in this
proceeding together with the partition and distribution of the
properties involved. Citing Articles 48, 50 and 52 of the Family Code,
it held that private respondent's prayer for declaration of absolute
nullity of their marriage may be raised together with other incidents
of their marriage such as the separation of their properties. Lastly, it
noted that since the Court has jurisdiction, the alleged error in
refusing to grant the motion to dismiss is merely one of law for
which the remedy ordinarily would have been to file an answer,
proceed with the trial and in case of an adverse decision, reiterate
the issue on appeal. The motion for reconsideration was
subsequently denied for lack of merit.
5

Hence, this petition.
The two basic issues confronting the Court in the instant case are
the following.
First, whether or not a petition for judicial declaration of a void
marriage is necessary. If in the affirmative, whether the same should
be filed only for purposes of remarriage.
Second, whether or not SP No. 1989-J is the proper remedy of
private respondent to recover certain real and personal properties
allegedly belonging to her exclusively.
Petitioner, invoking the ruling in People v. Aragon
6
and People
v. Mendoza,
7
contends that SP. No. 1989-J for Declaration of Nullity
of Marriage and Separation of Property filed by private respondent
must be dismissed for being unnecessary and superfluous.
Furthermore, under his own interpretation of Article 40 of the
Family Code, he submits that a petition for declaration of absolute
nullity of marriage is required only for purposes of remarriage. Since
the petition in SP No. 1989-J contains no allegation of private
respondent's intention to remarry, said petition should therefore, be
dismissed.
On the other hand, private respondent insists on the necessity of a
judicial declaration of the nullity of their marriage, not for purposes
of remarriage, but in order to provide a basis for the separation and
distribution of the properties acquired during coverture.
There is no question that the marriage of petitioner and private
respondent celebrated while the former's previous marriage with
one Emerlina de la Paz was still subsisting, is bigamous. As such, it is
from the beginning.
8
Petitioner himself does not dispute the
absolute nullity of their marriage.
9

The cases of People v. Aragon and People v. Mendoza relied upon by
petitioner are cases where the Court had earlier ruled that no
judicial decree is necessary to establish the invalidity of a void,
bigamous marriage. It is noteworthy to observe that Justice Alex
Reyes, however, dissented on these occasions stating that:
Though the logician may say that where the
former marriage was void there would be
nothing to dissolve, still it is not for the spouses
to judge whether that marriage was void or not.
That judgment is reserved to the courts. . . .
10

This dissenting opinion was adopted as the majority position in
subsequent cases involving the same issue. Thus, in Gomez
v. Lipana,
11
the Court abandoned its earlier ruling in
the Aragon and Mendoza cases. In reversing the lower court's order
forfeiting the husband's share of the disputed property acquired
during the second marriage, the Court stated that "if the nullity, or
annulment of the marriage is the basis for the application of Article
1417, there is need for a judicial declaration thereof, which of
course contemplates an action for that purpose."
Citing Gomez v. Lipana, the Court subsequently held in Vda. de
Consuegra v. Government Service Insurance System, that "although
the second marriage can be presumed to be void ab initio as it was
celebrated while the first marriage was still subsisting, still there is
need for judicial declaration of such nullity."
In Tolentino v. Paras,
12
however, the Court turned around and
applied the Aragon and Mendoza ruling once again. In granting the
prayer of the first wife asking for a declaration as the lawful
surviving spouse and the correction of the death certificate of her
deceased husband, it explained that "(t)he second marriage that he
contracted with private respondent during the lifetime of his first
spouse is null and void from the beginning and of no force and
effect. No judicial decree is necessary to establish the invalidity of a
void marriage."
However, in the more recent case of Wiegel v. Sempio-Diy
13
the
Court reverted to the Consuegra case and held that there was "no
need of introducing evidence about the existing prior marriage of
her first husband at the time they married each other, for then such
a marriage though void still needs according to this Court a judicial
declaration of such fact and for all legal intents and purposes she
would still be regarded as a married woman at the time she
contracted her marriage with respondent Karl Heinz Wiegel."
Came the Family Code which settled once and for all the conflicting
jurisprudence on the matter. A declaration of the absolute nullity of
a marriage is now explicitly required either as a cause of action or a
ground for defense.
14
Where the absolute nullity of a previous
marriage is sought to be invoked for purposes of contracting a
second marriage, the sole basis acceptable in law for said projected
marriage be free from legal infirmity is a final judgment declaring
the previous marriage void.
15

111

The Family Law Revision Committee and the Civil Code Revision
Committee
16
which drafted what is now the Family Code of the
Philippines took the position that parties to a marriage should not
be allowed to assume that their marriage is void even if such be the
fact but must first secure a judicial declaration of the nullity of their
marriage before they can be allowed to marry again. This is borne
out by the following minutes of the 152nd Joint Meeting of the Civil
Code and Family Law Committees where the present Article 40, then
Art. 39, was discussed.
B. Article 39.
The absolute nullity of a
marriage may be invoked
only on the basis of a final
judgment declaring the
marriage void, except as
provided in Article 41.
Justice Caguioa remarked that the above
provision should include not only void but also
voidable marriages. He then suggested that the
above provision be modified as follows:
The validity of a marriage
may be invoked only . . .
Justice Reyes (J.B.L. Reyes), however, proposed
that they say:
The validity or invalidity of a
marriage may be invoked
only . . .
On the other hand, Justice Puno suggested that they say:
The invalidity of a marriage
may be invoked only . . .
Justice Caguioa explained that his idea is that
one cannot determine for himself whether or not
his marriage is valid and that a court action is
needed. Justice Puno accordingly proposed that
the provision be modified to read:
The invalidity of a marriage
may be invoked only on the
basis of a final judgment
annulling the marriage or
declaring the marriage void,
except as provided in Article
41.
Justice Caguioa remarked that in annulment,
there is no question. Justice Puno, however,
pointed out that, even if it is a judgment of
annulment, they still have to produce the
judgment.
Justice Caguioa suggested that they say:
The invalidity of a marriage
may be invoked only on the
basis of a final judgment
declaring the marriage
invalid, except as provided in
Article 41.
Justice Puno raised the question: When a
marriage is declared invalid, does it include the
annulment of a marriage and the declaration
that the marriage is void? Justice Caguioa replied
in the affirmative. Dean Gupit added that in
some judgments, even if the marriage is
annulled, it is declared void. Justice Puno
suggested that this matter be made clear in the
provision.
Prof. Baviera remarked that the original idea in
the provision is to require first a judicial
declaration of a void marriage and not
annullable marriages, with which the other
members concurred. Judge Diy added that
annullable marriages are presumed valid until a
direct action is filed to annul it, which the other
members affirmed. Justice Puno remarked that if
this is so, then the phrase "absolute nullity" can
stand since it might result in confusion if they
change the phrase to "invalidity" if what they are
referring to in the provision is the declaration
that the marriage is void.
Prof. Bautista commented that they will be doing
away with collateral defense as well as collateral
attack. Justice Caguioa explained that the idea in
the provision is that there should be a final
judgment declaring the marriage void and a
party should not declare for himself whether or
not the marriage is void, while the other
members affirmed. Justice Caguioa added that
they are, therefore, trying to avoid a collateral
attack on that point. Prof. Bautista stated that
there are actions which are brought on the
assumption that the marriage is valid. He then
asked: Are they depriving one of the right to
raise the defense that he has no liability because
the basis of the liability is void? Prof. Bautista
added that they cannot say that there will be no
judgment on the validity or invalidity of the
marriage because it will be taken up in the same
proceeding. It will not be a unilateral declaration
that, it is a void marriage. Justice Caguioa saw
the point of Prof. Bautista and suggested that
they limit the provision to remarriage. He then
proposed that Article 39 be reworded as follows:
The absolute nullity of a
marriage for purposes of
remarriage may be invoked
112

only on the basis of final
judgment . . .
Justice Puno suggested that the above be
modified as follows:
The absolute nullity of a
previous marriage may be
invoked for purposes of
establishing the validity of a
subsequent marriage only on
the basis of a final judgment
declaring such previous
marriage void, except as
provided in Article 41.
Justice Puno later modified the above as follows:
For the purpose of
establishing the validity of a
subsequent marriage, the
absolute nullity of a previous
marriage may only be
invoked on the basis of a
final judgment declaring such
nullity, except as provided in
Article 41.
Justice Caguioa commented that the above
provision is too broad and will not solve the
objection of Prof. Bautista. He proposed that
they say:
For the purpose of entering
into a subsequent marriage,
the absolute nullity of a
previous marriage may only
be invoked on the basis of a
final judgment declaring such
nullity, except as provided in
Article 41.
Justice Caguioa explained that the idea in the
above provision is that if one enters into a
subsequent marriage without obtaining a final
judgment declaring the nullity of a previous
marriage, said subsequent marriage is void ab
initio.
After further deliberation, Justice Puno
suggested that they go back to the original
wording of the provision as follows:
The absolute nullity of a
previous marriage may be
invoked for purposes of
remarriage only on the basis
of a final judgment declaring
such previous marriage void,
except as provided in Article
41.
17

In fact, the requirement for a declaration of absolute nullity of a
marriage is also for the protection of the spouse who, believing that
his or her marriage is illegal and void, marries again. With the
judicial declaration of the nullity of his or her first marriage, the
person who marries again cannot be charged with bigamy.
18

Just over a year ago, the Court made the pronouncement that there
is a necessity for a declaration of absolute nullity of a prior subsisting
marriage before contracting another in the recent case of Terre
v. Terre.
19
The Court, in turning down the defense of respondent
Terre who was charged with grossly immoral conduct consisting of
contracting a second marriage and living with another woman other
than complainant while his prior marriage with the latter remained
subsisting, said 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."
As regards the necessity for a judicial declaration of absolute nullity
of marriage, petitioner submits that the same can be maintained
only if it is for the purpose of remarriage. Failure to allege this
purpose, according to petitioner's theory, will warrant dismissal of
the same.
Article 40 of the Family Code provides:
Art. 40. The absolute nullity of a previous
marriage may be invoked for purposes of
remarriage on the basis solely of a final
judgment declaring such previous marriage void.
(n)
Crucial to the proper interpretation of Article 40 is the position in
the provision of the word "solely." As it is placed, the same shows
that it is meant to qualify "final judgment declaring such previous
marriage void." Realizing the need for careful craftsmanship in
conveying the precise intent of the Committee members, the
provision in question, as it finally emerged, did not state "The
absolute nullity of a previous marriage may be invoked solely for
purposes of remarriage . . .," in which case "solely" would clearly
qualify the phrase "for purposes of remarriage." Had the
phraseology been such, the interpretation of petitioner would have
been correct and, that is, that the absolute nullity of a previous
marriage may be invoked solely for purposes of remarriage, thus
rendering irrelevant the clause "on the basis solely of a final
judgment declaring such previous marriage void."
That Article 40 as finally formulated included the significant clause
denotes that such final judgment declaring the previous marriage
void need not be obtained only for purposes of remarriage.
Undoubtedly, one can conceive of other instances where a party
might well invoke the absolute nullity of a previous marriage for
purposes other than remarriage, such as in case of an action for
liquidation, partition, distribution and separation of property
between the erstwhile spouses, as well as an action for the custody
and support of their common children and the delivery of the
latters' presumptive legitimes. In such cases, evidence needs must
be adduced, testimonial or documentary, to prove the existence of
grounds rendering such a previous marriage an absolute nullity.
113

These need not be limited solely to an earlier final judgment of a
court declaring such previous marriage void. Hence, in the instance
where a party who has previously contracted a marriage which
remains subsisting desires to enter into another marriage which is
legally unassailable, he is required by law to prove that the previous
one was an absolute nullity. But this he may do on the basis solely of
a final judgment declaring such previous marriage void.
This leads us to the question: Why the distinction? In other words,
for purposes of remarriage, why should the only legally acceptable
basis for declaring a previous marriage an absolute nullity be a final
judgment declaring such previous marriage void? Whereas, for
purposes other than remarriage, other evidence is acceptable?
Marriage, a sacrosanct institution, declared by the Constitution as an
"inviolable social institution, is the foundation of the family;" as
such, it "shall be protected by the State."
20
In more explicit terms,
the Family Code characterizes it as "a special contract of permanent
union between a man and a woman entered into in accordance with
law for the establishment of conjugal, and family life."
21
So crucial
are marriage and the family to the stability and peace of the nation
that their "nature, consequences, and incidents are governed by law
and not subject to stipulation . . ."
22
As a matter of policy, therefore,
the nullification of a marriage for the purpose of contracting another
cannot be accomplished merely on the basis of the perception of
both parties or of one that their union is so defective with respect to
the essential requisites of a contract of marriage as to render it
void ipso jure and with no legal effect and nothing more. Were
this so, this inviolable social institution would be reduced to a
mockery and would rest on very shaky foundations indeed. And the
grounds for nullifying marriage would be as diverse and far-ranging
as human ingenuity and fancy could conceive. For such a social
significant institution, an official state pronouncement through the
courts, and nothing less, will satisfy the exacting norms of society.
Not only would such an open and public declaration by the courts
definitively confirm the nullity of the contract of marriage, but the
same would be easily verifiable through records accessible to
everyone.
That the law seeks to ensure that a prior marriage is no impediment
to a second sought to be contracted by one of the parties may be
gleaned from new information required in the Family Code to be
included in the application for a marriage license, viz, "If previously
married, how, when and where the previous marriage was dissolved
and annulled."
23

Reverting to the case before us, petitioner's interpretation of Art. 40
of the Family Code is, undoubtedly, quite restrictive. Thus, his
position that private respondent's failure to state in the petition that
the same is filed to enable her to remarry will result in the dismissal
of SP No. 1989-J is untenable. His misconstruction of Art. 40
resulting from the misplaced emphasis on the term "solely" was in
fact anticipated by the members of the Committee.
Dean Gupit commented the word "only" may be
misconstrued to refer to "for purposes of
remarriage." Judge Diy stated that "only" refers
to "final judgment." Justice Puno suggested that
they say "on the basis only of a final judgment."
Prof. Baviera suggested that they use the legal
term "solely" instead of "only," which the
Committee approved.
24
(Emphasis supplied)
Pursuing his previous argument that the declaration for absolute
nullity of marriage is unnecessary, petitioner suggests that private
respondent should have filed an ordinary civil action for the
recovery of the properties alleged to have been acquired during
their union. In such an eventuality, the lower court would not be
acting as a mere special court but would be clothed with jurisdiction
to rule on the issues of possession and ownership. In addition, he
pointed out that there is actually nothing to separate or partition as
the petition admits that all the properties were acquired with
private respondent's money.
The Court of Appeals disregarded this argument and concluded that
"the prayer for declaration of absolute nullity of marriage may be
raised together with the other incident of their marriage such as the
separation of their properties."
When a marriage is declared void ab initio, the law states that the
final judgment therein shall provide for "the liquidation, partition
and distribution of the properties of the spouses, the custody and
support of the common children, and the delivery of their
presumptive legitimes, unless such matters had been adjudicated in
previous judicial proceedings."
25
Other specific effects flowing
therefrom, in proper cases, are the following:
Art. 43. xxx xxx xxx
(2) The absolute community of property or the
conjugal partnership, as the case may be, shall
be dissolved and liquidated, but if either spouse
contracted said marriage in bad faith, his or her
share of the net profits of the community
property or conjugal partnership property shall
be forfeited in favor of the common children or,
if there are none, the children of the guilty
spouse by a previous marriage or, in default of
children, the innocent spouse;
(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 a 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 shall be disqualified to
inherit from the innocent spouse by testate and
intestate succession. (n)
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 disposition made by
114

one in favor of the other are revoked by
operation of law. (n)
26

Based on the foregoing provisions, private respondent's ultimate
prayer for separation of property will simply be one of the necessary
consequences of the judicial declaration of absolute nullity of their
marriage. Thus, petitioner's suggestion that in order for their
properties to be separated, an ordinary civil action has to be
instituted for that purpose is baseless. The Family Code has clearly
provided the effects of the declaration of nullity of marriage, one of
which is the separation of property according to the regime of
property relations governing them. It stands to reason that the
lower court before whom the issue of nullity of a first marriage is
brought is likewise clothed with jurisdiction to decide the incidental
questions regarding the couple's properties. Accordingly, the
respondent court committed no reversible error in finding that the
lower court committed no grave abuse of discretion in denying
petitioner's motion to dismiss SP No. 1989-J.
WHEREFORE, the instant petition is hereby DENIED. The decision of
respondent Court dated February 7, 1992 and the Resolution dated
March 20, 1992 are AFFIRMED.
SO ORDERED.
Bidin and Melo, JJ., concur.
Feliciano, J., is on leave.









































115

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.
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 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 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.
116

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.
Narvasa, C.J., Feliciano, Padilla, Bidin, Regalado, Davide, Jr., Romero,
Bellosillo, Melo, Puno, Vitug, Kapunan, Mendoza and Francisco, JJ.,
concur.










































117

FIRST DIVISION
[G.R. No. 138509. July 31, 2000]
IMELDA MARBELLA-BOBIS, petitioner, vs. ISAGANI D.
BOBIS, respondent.
D E C I S I O N
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.
Hence, this petition for review on certiorari. Petitioner argues that
respondent should have first obtained a judicial declaration of nullity
of his first marriage before entering into the second marriage,
inasmuch as the alleged prejudicial question justifying suspension of
the bigamy case is no longer a legal truism pursuant to Article 40 of
the Family Code.
[2]

The issue to be resolved in this petition is whether the subsequent
filing of a civil action for declaration of nullity of a previous marriage
constitutes a prejudicial question to a criminal case for bigamy.
A prejudicial question is one which arises in a case the resolution of
which is a logical antecedent of the issue involved therein.
[3]
It is a
question based on a fact distinct and separate from the crime but so
intimately connected with it that it determines the guilt or
innocence of the accused.
[4]
It must appear not only that the civil
case involves facts upon which the criminal action is based, but also
that the resolution of the issues raised in the civil action would
necessarily be determinative of the criminal case.
[5]
Consequently,
the defense must involve an issue similar or intimately related to the
same issue raised in the criminal action and its resolution
determinative of whether or not the latter action may proceed.
[6]
Its
two essential elements are:
[7]

(a) the civil action involves an issue similar or
intimately related to the issue raised in the
criminal action; and
(b) the resolution of such issue determines
whether or not the criminal action may proceed.
A prejudicial question does not conclusively resolve the guilt or
innocence of the accused but simply tests the sufficiency of the
allegations in the information in order to sustain the further
prosecution of the criminal case. A party who raises a prejudicial
question is deemed to have hypothetically admitted that all the
essential elements of a crime have been adequately alleged in the
information, considering that the prosecution has not yet presented
a single evidence on the indictment or may not yet have rested its
case. A challenge of the allegations in the information on the ground
of prejudicial question is in effect a question on the merits of the
criminal charge through a non-criminal suit.
Article 40 of the Family Code, which was effective at the time of
celebration of the second marriage, requires a prior judicial
declaration of nullity of a previous marriage before a party may
remarry. The clear implication of this is that it is not for the parties,
particularly the accused, to determine the validity or invalidity of the
marriage.
[8]
Whether or not the first marriage was void for lack of a
license is a matter of defense because there is still no judicial
declaration of its nullity at the time the second marriage was
contracted. It should be remembered that bigamy can successfully
be prosecuted provided all its elements concur two of which are a
previous marriage and a subsequent marriage which would have
been valid had it not been for the existence at the material time of
the first marriage.
[9]

In the case at bar, 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 judicial
declaration of nullity of the first. A party may even enter into a
marriage aware of the absence of a requisite - usually the marriage
license - and thereafter contract a subsequent marriage without
obtaining a declaration of nullity of the first on the assumption that
the first marriage is void. Such scenario would render nugatory the
provisions on bigamy. As succinctly held in Landicho v. Relova:
[10]

(P)arties to a marriage should not be permitted
to judge for themselves its nullity, only
competent courts having such authority. Prior to
such declaration of nullity, the validity of the first
marriage is beyond question. A party who
contracts a second marriage then assumes the
risk of being prosecuted for bigamy.
Respondent alleges that the first marriage in the case before us was
void for lack of a marriage license. Petitioner, on the other hand,
argues that her marriage to respondent was exempt from the
requirement of a marriage license. More specifically, petitioner
claims that prior to their marriage, they had already attained the age
of majority and had been living together as husband and wife for at
least five years.
[11]
The issue in this case is limited to the existence of
a prejudicial question, and we are not called upon to resolve the
validity of the first marriage. Be that as it may, suffice it to state that
the Civil Code, under which the first marriage was celebrated,
provides that "every intendment of law or fact leans toward the
validity of marriage, the indissolubility of the marriage
118

bonds."
[12]
Hence, parties should not be permitted to judge for
themselves the nullity of their marriage, for the same must be
submitted to the determination of competent courts. Only when the
nullity of the marriage is so declared can it be held as void, and so
long as there is no such declaration the presumption is that the
marriage exists.
[13]
No matter how obvious, manifest or patent the
absence of an element is, the intervention of the courts must always
be resorted to. That is why Article 40 of the Family Code requires a
"final judgment," which only the courts can render. Thus, as ruled
inLandicho v. Relova,
[14]
he who contracts a second marriage before
the judicial declaration of nullity of the first marriage assumes the
risk of being prosecuted for bigamy, and in such a case the criminal
case may not be suspended on the ground of the pendency of a civil
case for declaration of nullity. In a recent case for concubinage, we
held that the pendency of a civil case for declaration of nullity of
marriage is not a prejudicial question.
[15]
This ruling applies here by
analogy since both crimes presuppose the subsistence of a marriage.
Ignorance of the existence of Article 40 of the Family Code cannot
even be successfully invoked as an excuse.
[16]
The contracting of a
marriage knowing that the requirements of the law have not been
complied with or that the marriage is in disregard of a legal
impediment is an act penalized by the Revised Penal Code.
[17]
The
legality of a marriage is a matter of law and every person is
presumed to know the law. As respondent did not obtain the judicial
declaration of nullity when he entered into the second marriage,
why should he be allowed to belatedly obtain that judicial
declaration in order to delay his criminal prosecution and
subsequently defeat it by his own disobedience of the law? If he
wants to raise the nullity of the previous marriage, he can do it as a
matter of defense when he presents his evidence during the trial
proper in the criminal case.
The burden of proof to show the dissolution of the first marriage
before the second marriage was contracted rests upon the
defense,
[18]
but that is a matter that can be raised in the trial of the
bigamy case. In the meantime, it should be stressed that not every
defense raised in the civil action may be used as a prejudicial
question to obtain the suspension of the criminal action. The lower
court, therefore, erred in suspending the criminal case for bigamy.
Moreover, when respondent was indicted for bigamy, the fact that
he entered into two marriage ceremonies appeared indubitable. It
was only after he was sued by petitioner for bigamy that he thought
of seeking a judicial declaration of nullity of his first marriage. The
obvious intent, therefore, is that respondent merely resorted to the
civil action as a potential prejudicial question for the purpose of
frustrating or delaying his criminal prosecution. As has been
discussed above, this cannot be done.
In the light of Article 40 of the Family Code, respondent, without
first having obtained the judicial declaration of nullity of the first
marriage, can not be said to have validly entered into the second
marriage. Per current jurisprudence, a marriage though void still
needs a judicial declaration of such fact before any party can marry
again; otherwise the second marriage will also be void.
[19]
The
reason is that, without a judicial declaration of its nullity, the first
marriage is presumed to be subsisting. In the case at bar,
respondent was for all legal intents and purposes regarded as a
married man at the time he contracted his second marriage with
petitioner.
[20]
Against this legal backdrop, any decision in the civil
action for nullity would not erase the fact that respondent entered
into a second marriage during the subsistence of a first marriage.
Thus, a decision in the civil case is not essential to the determination
of the criminal charge. It is, therefore, not a prejudicial question. As
stated above, respondent cannot be permitted to use his own
malfeasance to defeat the criminal action against him.
[21]

WHEREFORE, the petition is GRANTED. The order dated December
29, 1998 of the Regional Trial Court, Branch 226 of Quezon City is
REVERSED and SET ASIDE and the trial court is ordered to
IMMEDIATELY proceed with Criminal Case No. Q98-75611.
SO ORDERED.
Davide, Jr., C.J., (Chairman), Puno, Kapunan, and Pardo, JJ., concur.





























119

THIRD DIVISION
[G.R. No. 137110. August 1, 2000]
VINCENT PAUL G. MERCADO a.k.a. VINCENT G.
MERCADO, petitioner, vs. CONSUELO TAN, respondent.
D E C I S I O N
PANGANIBAN, J.:
A judicial declaration of nullity of a previous marriage is
necessary before a subsequent one can be legally contracted. One
who enters into a subsequent marriage without first obtaining
such judicial declaration is guilty of bigamy. This principle applies
even if the earlier union is characterized by statute as void.
The Case
Before us is a Petition for Review on Certiorari assailing the
July 14, 1998 Decision of the Court of Appeals (CA)
[1]
in CA-GR CR
No. 19830 and its January 4, 1999 Resolution denying
reconsideration. The assailed Decision affirmed the ruling of the
Regional Trial Court (RTC) of Bacolod City in Criminal Case No.
13848, which convicted herein petitioner of bigamy as follows:
WHEREFORE, finding the guilt of accused Dr. Vincent Paul G.
Mercado a.k.a. Dr. Vincent G. Mercado of the crime of Bigamy
punishable under Article 349 of the Revised Penal Code to have
been proven beyond reasonable doubt, [the court hereby renders]
judgment imposing upon him a prison term of three (3) years, four
(4) months and fifteen (15) days of prision correccional, as minimum
of his indeterminate sentence, to eight (8) years and twenty-one
(21) days of prision mayor, as maximum, plus accessory penalties
provided by law.
Costs against accused.
[2]

The Facts
The facts are quoted by Court of Appeals (CA) from the trial
courts judgment, as follows: From the evidence adduced by the
parties, there is no dispute that accused Dr. Vincent Mercado and
complainant Ma. Consuelo Tan got married on June 27, 1991 before
MTCC-Bacolod City Br. 7 Judge Gorgonio J. Ibaez [by reason of]
which a Marriage Contract was duly executed and signed by the
parties. As entered in said document, the status of accused was
single. There is no dispute either that at the time of the
celebration of the wedding with complainant, accused was actually a
married man, having been in lawful wedlock with Ma. Thelma Oliva
in a marriage ceremony solemnized on April 10, 1976 by Judge
Leonardo B. Caares, CFI-Br. XIV, Cebu City per Marriage Certificate
issued in connection therewith, which matrimony was further
blessed by Rev. Father Arthur Baur on October 10, 1976 in religious
rites at the Sacred Heart Church, Cebu City. In the same manner,
the civil marriage between accused and complainant was confirmed
in a church ceremony on June 29, 1991 officiated by Msgr. Victorino
A. Rivas, Judicial Vicar, Diocese of Bacolod City. Both marriages
were consummated when out of the first consortium, Ma. Thelma
Oliva bore accused two children, while a child, Vincent Paul, Jr. was
sired by accused with complainant Ma. Consuelo Tan.
On October 5, 1992, a letter-complaint for bigamy was filed by
complainant through counsel with the City Prosecutor of Bacolod
City, which eventually resulted [in] the institution of the present
case before this Court against said accused, Dr. Vincent G. Mercado,
on March 1, 1993 in an Information dated January 22, 1993.
On November 13, 1992, or more than a month after the bigamy
case was lodged in the Prosecutors Office, accused filed an action
for Declaration of Nullity of Marriage against Ma. Thelma V. Oliva in
RTC-Br. 22, Cebu City, and in a Decision dated May 6, 1993 the
marriage between Vincent G. Mercado and Ma. Thelma V. Oliva was
declared null and void.
Accused is charged [with] bigamy under Article 349 of the Revised
Penal Code for having contracted a second marriage with herein
complainant Ma. Consuelo Tan on June 27, 1991 when at that time
he was previously united in lawful marriage with Ma. Thelma V.
Oliva on April 10, 1976 at Cebu City, without said first marriage
having been legally dissolved. As shown by the evidence and
admitted by accused, all the essential elements of the crime are
present, namely: (a) that the offender has been previously legally
married; (2) that the first marriage has not been legally dissolved or
in case the spouse is absent, the absent spouse could not yet be
presumed dead according to the Civil Code; (3) that he contract[ed]
a second or subsequent marriage; and (4) that the second or
subsequent marriage ha[d] all the essential requisites for validity. x
x x
While acknowledging the existence of the two marriage*s+,
accused posited the defense that his previous marriage ha[d] been
judicially declared null and void and that the private complainant
had knowledge of the first marriage of accused.
It is an admitted fact that when the second marriage was entered
into with Ma. Consuelo Tan on June 27, 1991, accuseds prior
marriage with Ma. Thelma V. Oliva was subsisting, no judicial action
having yet been initiated or any judicial declaration obtained as to
the nullity of such prior marriage with Ma. Thelma V. Oliva. Since no
declaration of the nullity of his first marriage ha[d] yet been made at
the time of his second marriage, it is clear that accused was a
married man when he contracted such second marriage with
complainant on June 27, 1991. He was still at the time validly
married to his first wife.
[3]

Ruling of the Court of Appeals
Agreeing with the lower court, the Court of Appeals stated:
Under Article 40 of the Family Code, the absolute nullity of a
previous marriage may be invoked for purposes of remarriage on
the basis solely of a final judgment declaring such previous marriage
void. But here, the final judgment declaring null and void accuseds
previous marriage came not before the celebration of the second
marriage, but after, when the case for bigamy against accused was
already tried in court. And what constitutes the crime of bigamy is
120

the act of any person who shall contract a second subsequent
marriage before the former marriage has been legally dissolved.
[4]

Hence, this Petition.
[5]

The Issues
In his Memorandum, petitioner raises the following issues:
A
Whether or not the element of previous legal marriage is present in
order to convict petitioner.
B
Whether or not a liberal interpretation in favor of petitioner of
Article 349 of the Revised Penal Code punishing bigamy, in relation
to Articles 36 and 40 of the Family Code, negates the guilt of
petitioner.
C
Whether or not petitioner is entitled to an acquittal on the basis of
reasonable doubt.
[6]

The Courts Ruling
The Petition is not meritorious.
Main Issue:Effect of Nullity of Previous Marriage
Petitioner was convicted of bigamy under Article 349 of the
Revised Penal Code, which provides:
The penalty of prision mayor shall be imposed upon any person
who shall contract a second or subsequent marriage before the
former marriage has been legally dissolved, or before the absent
spouse has been declared presumptively dead by means of a
judgment rendered in the proper proceedings.
The elements of this crime are as follows:
1. That the offender has been legally married;
2. That the marriage has not been legally dissolved or, in case his or
her spouse is absent, the absent spouse could not yet be presumed
dead according to the Civil Code;
3. That he contracts a second or subsequent marriage;
4. That the second or subsequent marriage has all the essential
requisites for validity.
[7]

When the Information was filed on January 22, 1993, all the
elements of bigamy were present. It is undisputed that petitioner
married Thelma G. Oliva on April 10, 1976 in Cebu City. While that
marriage was still subsisting, he contracted a second marriage, this
time with Respondent Ma. Consuelo Tan who subsequently filed the
Complaint for bigamy.
Petitioner contends, however, that he obtained a judicial
declaration of nullity of his first marriage under Article 36 of the
Family Code, thereby rendering it void ab initio. Unlike voidable
marriages which are considered valid until set aside by a competent
court, he argues that a void marriage is deemed never to have taken
place at all.
[8]
Thus, he concludes that there is no first marriage to
speak of. Petitioner also quotes the commentaries
[9]
of former
Justice Luis Reyes that it is now settled that if the first marriage is
void from the beginning, it is a defense in a bigamy charge. But if
the first marriage is voidable, it is not a defense.
Respondent, on the other hand, admits that the first marriage
was declared null and void under Article 36 of the Family Code, but
she points out that that declaration came only after the Information
had been filed. Hence, by then, the crime had already been
consummated. She argues that a judicial declaration of nullity of a
void previous marriage must be obtained before a person can marry
for a subsequent time.
We agree with the respondent.
To be sure, jurisprudence regarding the need for a judicial
declaration of nullity of the previous marriage has been
characterized as conflicting.
[10]
In People v. Mendoza,
[11]
a bigamy
case involving an accused who married three times, the Court ruled
that there was no need for such declaration. In that case, the
accused contracted a second marriage during the subsistence of the
first. When the first wife died, he married for the third time. The
second wife then charged him with bigamy. Acquitting him, the
Court held that the second marriage was void ab initio because it
had been contracted while the first marriage was still in
effect. Since the second marriage was obviously void and illegal, the
Court ruled that there was no need for a judicial declaration of its
nullity. Hence, the accused did not commit bigamy when he married
for the third time. This ruling was affirmed by the Court in People v.
Aragon,
[12]
which involved substantially the same facts.
But in subsequent cases, the Court impressed the need for a
judicial declaration of nullity. In Vda de Consuegra v. GSIS,
[13]
Jose
Consuegra married for the second time while the first marriage was
still subsisting. Upon his death, the Court awarded one half of the
proceeds of his retirement benefits to the first wife and the other
half to the second wife and her children, notwithstanding the
manifest nullity of the second marriage. It held: And with respect
to the right of the second wife, this Court observes that although the
second marriage can be presumed to be void ab initio as it was
celebrated while the first marriage was still subsisting, still there is
need for judicial declaration of such nullity.
In Tolentino v. Paras,
[14]
however, the Court again held that
judicial declaration of nullity of a void marriage was not
necessary. In that case, a man married twice. In his Death
Certificate, his second wife was named as his surviving spouse. The
first wife then filed a Petition to correct the said entry in the Death
Certificate. The Court ruled in favor of the first wife, holding that
the second marriage that he contracted with private respondent
during the lifetime of the first spouse is null and void from the
beginning and of no force and effect. No judicial decree is necessary
to establish the invalidity of a void marriage.
121

In Wiegel v. Sempio-Diy,
[15]
the Court stressed the need for
such declaration. In that case, Karl Heinz Wiegel filed an action for
the declaration of nullity of his marriage to Lilia Olivia Wiegel on the
ground that the latter had a prior existing marriage. After pretrial,
Lilia asked that she be allowed to present evidence to prove, among
others, that her first husband had previously been married to
another woman. In holding that there was no need for such
evidence, the Court ruled: x x x There is likewise no need of
introducing evidence about the existing prior marriage of her first
husband at the time they married each other, for then such a
marriage though void still needs, according to this Court, a judicial
declaration of such fact and for all legal intents and purposes she
would still be regarded as a married woman at the time she
contracted her marriage with respondent Karl Heinz Wiegel; x x x.
Subsequently, in Yap v. CA,
[16]
the Court reverted to the ruling
in People v. Mendoza, holding that there was no need for such
declaration of nullity.
In Domingo v. CA,
[17]
the issue raised was whether a judicial
declaration of nullity was still necessary for the recovery and the
separation of properties of erstwhile spouses. Ruling in the
affirmative, the Court declared: The Family Code has settled once
and for all the conflicting jurisprudence on the matter. A declaration
of the absolute nullity of a marriage is now explicitly required either
as a cause of action or a ground for defense; in fact, the requirement
for a declaration of absolute nullity of a marriage is also for the
protection of the spouse who, believing that his or her marriage is
illegal and void, marries again. With the judicial declaration of the
nullity of his or her first marriage, the person who marries again
cannot be charged with bigamy.
[18]

Unlike Mendoza and Aragon, Domingo as well as the other
cases herein cited was not a criminal prosecution for
bigamy. Nonetheless, Domingo underscored the need for a judicial
declaration of nullity of a void marriage on the basis of a new
provision of the Family Code, which came into effect several years
after the promulgation of Mendoza and Aragon.
In Mendoza and Aragon, the Court relied on Section 29 of Act
No. 3613 (Marriage Law), which provided:
Illegal marriages. Any marriage subsequently contracted by any
person during the lifetime of the first spouse shall be illegal and void
from its performance, unless:
(a) The first marriage was annulled or dissolved;
(b) The first spouse had been absent for seven
consecutive years at the time of the second marriage
without the spouse present having news of the
absentee being alive, or the absentee being
generally considered as dead and believed to be so
by the spouse present at the time of contracting
such subsequent marriage, the marriage as
contracted being valid in either case until declared
null and void by a competent court."
The Court held in those two cases that the said provision
plainly makes a subsequent marriage contracted by any person
during the lifetime of his first spouse illegal and void from its
performance, and no judicial decree is necessary to establish its
invalidity, as distinguished from mere annulable marriages.
[19]

The provision appeared in substantially the same form under
Article 83 of the 1950 Civil Code and Article 41 of the Family
Code. However, Article 40 of the Family Code, a new provision,
expressly requires a judicial declaration of nullity of the previous
marriage, as follows:
ART. 40. The absolute nullity of a previous marriage may be
invoked for purposes of remarriage on the basis solely of a final
judgment declaring such marriage void.
In view of this provision, Domingo stressed that a final
judgment declaring such marriage void was necessary. Verily, the
Family Code and Domingo affirm the earlier ruling in Wiegel. Thus, a
Civil Law authority and member of the Civil Code Revision Commitee
has observed:
*Article 40+ is also in line with the recent decisions of the Supreme
Court that the marriage of a person may be null and void but there is
need of a judicial declaration of such fact before that person can
marry again; otherwise, the second marriage will also be void
(Wiegel v. Sempio-Diy, Aug. 19/86, 143 SCRA 499, Vda. De
Consuegra v. GSIS, 37 SCRA 315). This provision changes the old rule
that where a marriage is illegal and void from its performance, no
judicial decree is necessary to establish its validity (People v.
Mendoza, 95 Phil. 843; People v. Aragon, 100 Phil. 1033).
[20]

In this light, the statutory mooring of the ruling
in Mendoza and Aragon that there is no need for a judicial
declaration of nullity of a void marriage -- has been cast aside by
Article 40 of the Family Code. Such declaration is now necessary
before one can contract a second marriage. Absent that declaration,
we hold that one may be charged with and convicted of bigamy.
The present ruling is consistent with our pronouncement
in Terre v. Terre,
[21]
which involved an administrative Complaint
against a lawyer for marrying twice. In rejecting the lawyers
argument that he was free to enter into a second marriage because
the first one was voidab initio, the Court ruled: for purposes of
determining whether a person is legally free to contract a second
marriage, a judicial declaration that the first marriage was null and
void ab initio is essential. The Court further noted that the said rule
was cast into statutory form by Article 40 of the Family Code.
Significantly, it observed that the second marriage, contracted
without a judicial declaration that the first marriage was void, was
bigamous and criminal in character.
Moreover, Justice Reyes, an authority in Criminal Law whose
earlier work was cited by petitioner, changed his view on the subject
in view of Article 40 of the Family Code and wrote in 1993 that a
person must first obtain a judicial declaration of the nullity of a void
marriage before contracting a subsequent marriage:
[22]

It is now settled that the fact that the first marriage is void from
the beginning is not a defense in a bigamy charge. As with a
voidable marriage, there must be a judicial declaration of the nullity
of a marriage before contracting the second marriage. Article 40 of
the Family Code states that x x x. The Code Commission believes
that the parties to a marriage should not be allowed to assume that
their marriage is void, even if such is the fact, but must first secure a
judicial declaration of nullity of their marriage before they should be
allowed to marry again. x x x.
122

In the instant case, petitioner contracted a second marriage
although there was yet no judicial declaration of nullity of his first
marriage. In fact, he instituted the Petition to have the first
marriage declared void only after complainant had filed a letter-
complaint charging him with bigamy. By contracting a second
marriage while the first was still subsisting, he committed the acts
punishable under Article 349 of the Revised Penal Code.
That he subsequently obtained a judicial declaration of the
nullity of the first marriage was immaterial. To repeat, the crime
had already been consummated by then. Moreover, his view
effectively encourages delay in the prosecution of bigamy cases; an
accused could simply file a petition to declare his previous marriage
void and invoke the pendency of that action as a prejudicial question
in the criminal case. We cannot allow that.
Under the circumstances of the present case, he is guilty of
the charge against him.
Damages
In her Memorandum, respondent prays that the Court set
aside the ruling of the Court of Appeals insofar as it denied her claim
of damages and attorneys fees.
[23]

Her prayer has no merit. She did not appeal the ruling of the
CA against her; hence, she cannot obtain affirmative relief from this
Court.
[24]
In any event, we find no reason to reverse or set aside the
pertinent ruling of the CA on this point, which we quote hereunder:
We are convinced from the totality of the evidence presented in
this case that Consuelo Tan is not the innocent victim that she claims
to be; she was well aware of the existence of the previous marriage
when she contracted matrimony with Dr. Mercado. The testimonies
of the defense witnesses prove this, and we find no reason to doubt
said testimonies.
x x x x x x x x x
Indeed, the claim of Consuelo Tan that she was not aware of his
previous marriage does not inspire belief, especially as she had seen
that Dr. Mercado had two (2) children with him. We are convinced
that she took the plunge anyway, relying on the fact that the first
wife would no longer return to Dr. Mercado, she being by then
already living with another man.
Consuelo Tan can therefore not claim damages in this case where
she was fully conscious of the consequences of her act. She should
have known that she would suffer humiliation in the event the truth
[would] come out, as it did in this case, ironically because of her
personal instigation. If there are indeed damages caused to her
reputation, they are of her own willful making.
[25]

WHEREFORE, the Petition is DENIED and the assailed
Decision AFFIRMED. Costs against petitioner.
SO ORDERED.
Melo, (Chairman), Purisima, and Gonzaga-Reyes, JJ., concur.
Vitug, J., see concurring and dissenting opinion.
CONCURRING AND DISSENTING OPINION
VITUG, J.:
At the pith of the controversy is the defense of the absolute
nullity of a previous marriage in an indictment for bigamy. The
majority opinion, penned by my esteemed brother, Mr. Justice
Artemio V. Panganiban, enunciates that it is only a judicially decreed
prior void marriage which can constitute a defense against the
criminal charge.
The civil law rule stated in Article 40 of the Family Code is a
given but I have strong reservations on its application beyond what
appears to be its expressed context. The subject of the instant
petition is a criminal prosecution, not a civil case, and
the ponencia affirms the conviction of petitioner Vincent Paul G.
Mercado for bigamy.
Article 40 of the Family code reads:
ART. 40. The absolute nullity of a previous marriage may be
invoked for purposes of remarriage on the basis solely of a final
judgment declaring such previous marriage void.
The phrase for purposes of remarriage is not at all
insignificant. Void marriages, like void contracts, are inexistent from
the very beginning. It is only by way of exception that the Family
code requires a judicial declaration of nullity of the previous
marriage before a subsequent marriage is contracted; without such
declaration, the validity and the full legal consequence of the
subsequent marriage would itself be in similar jeopardy under
Article 53, in relation to Article 52, of the Family
Code. Parenthetically, I would daresay that the necessity of a
judicial declaration of nullity of a void marriage for the purpose of
remarriage should be held to refer merely to cases where it can be
said that a marriage, at least ostensibly, had taken place. No such
judicial declaration of nullity, in my view, should still be deemed
essential when the marriage, for instance, is between persons of
the same sex or when either or both parties had not at all given
consent to the marriage. Indeed, it is likely that Article 40 of the
Family Code has been meant and intended to refer only to marriages
declared void under the provisions of Articles 35, 36, 37, 38 and 53
thereof.
In fine, the Family Code, I respectfully submit, did not have the
effect of overturning the rule in criminal law and related
jurisprudence. The Revised Penal Code expresses:
Art. 349. Bigamy.---The penalty of prision mayor shall be imposed
upon any person who shall contract a second or subsequent
marriage before the former marriage has been legally dissolved, or
before the absent spouse has been declared presumptively dead by
means of a judgment rendered in the proper proceedings.
Surely, the foregoing provision contemplated an existing, not void,
prior marriage. Covered by article 349 would thus be, for instance, a
voidable marriage, it obviously being valid and subsisting until set
aside by a competent court. As early as People vs. Aragon,
1
this
Court has underscored:
xxx Our Revised Penal Code is of recent enactment and had the
rule enunciated in Spain and in America requiring judicial
declaration of nullity of ab initio void marriages been within the
contemplation of the legislature, an express provision to that
effect would or should have been inserted in the law. In its
absence, we are bound by said rule of strict interpretation.
123

Unlike a voidable marriage which legally exists until judicially
annulled (and therefore not a defense in bigamy if the second
marriage were contracted prior to the decree of annulment), the
complete nullity, however, of a previously contracted marriage,
being a total nullity and inexistent, should be capable of being
independently raised by way of a defense in a criminal case for
bigamy. I see no incongruence between this rule in criminal law and
that of the Family Code, and each may be applied within the
respective spheres of governance.
Accordingly, I vote to grant the petition.
SECOND DIVISION
[G.R. No. 145226. February 06, 2004]
LUCIO MORIGO y CACHO, petitioner, vs. PEOPLE OF THE
PHILIPPINES, respondent.
D E C I S I O N
QUISUMBING, J.:
This petition for review on certiorari seeks to reverse the
decision
[1]
dated October 21, 1999 of the Court of Appeals in CA-G.R.
CR No. 20700, which affirmed the judgment
[2]
dated August 5, 1996
of the Regional Trial Court (RTC) of Bohol, Branch 4, in Criminal Case
No. 8688. The trial court found herein petitioner Lucio Morigo y
Cacho guilty beyond reasonable doubt of bigamy and sentenced him
to a prison term of seven (7) months of prision correccional as
minimum to six (6) years and one (1) day of prision mayor as
maximum. Also assailed in this petition is the resolution
[3]
of the
appellate court, dated September 25, 2000, denying Morigos
motion for reconsideration.
The facts of this case, as found by the court a quo, are as
follows:
Appellant Lucio Morigo and Lucia Barrete were boardmates at the
house of Catalina Tortor at Tagbilaran City, Province of Bohol, for a
period of four (4) years (from 1974-1978).
After school year 1977-78, Lucio Morigo and Lucia Barrete lost
contact with each other.
In 1984, Lucio Morigo was surprised to receive a card from Lucia
Barrete from Singapore. The former replied and after an exchange of
letters, they became sweethearts.
In 1986, Lucia returned to the Philippines but left again for Canada
to work there. While in Canada, they maintained constant
communication.
In 1990, Lucia came back to the Philippines and proposed to petition
appellant to join her in Canada. Both agreed to get married, thus
they were married on August 30, 1990 at the Iglesia de Filipina
Nacional at Catagdaan, Pilar, Bohol.
On September 8, 1990, Lucia reported back to her work in Canada
leaving appellant Lucio behind.
On August 19, 1991, Lucia filed with the Ontario Court (General
Division) a petition for divorce against appellant which was granted
by the court on January 17, 1992 and to take effect on February 17,
1992.
On October 4, 1992, appellant Lucio Morigo married Maria Jececha
Lumbago
[4]
at the Virgen sa Barangay Parish, Tagbilaran City, Bohol.
On September 21, 1993, accused filed a complaint for judicial
declaration of nullity of marriage in the Regional Trial Court of
Bohol, docketed as Civil Case No. 6020. The complaint seek (sic)
among others, the declaration of nullity of accuseds marriage with
Lucia, on the ground that no marriage ceremony actually took place.
On October 19, 1993, appellant was charged with Bigamy in an
Information
[5]
filed by the City Prosecutor of Tagbilaran [City], with
the Regional Trial Court of Bohol.
[6]

The petitioner moved for suspension of the arraignment on
the ground that the civil case for judicial nullification of his marriage
with Lucia posed a prejudicial question in the bigamy case. His
motion was granted, but subsequently denied upon motion for
reconsideration by the prosecution. When arraigned in the bigamy
case, which was docketed as Criminal Case No. 8688, herein
petitioner pleaded not guilty to the charge. Trial thereafter ensued.
On August 5, 1996, the RTC of Bohol handed down its
judgment in Criminal Case No. 8688, as follows:
WHEREFORE, foregoing premises considered, the Court finds
accused Lucio Morigo y Cacho guilty beyond reasonable doubt of the
crime of Bigamy and sentences him to suffer the penalty of
imprisonment ranging from Seven (7) Months of Prision
Correccional as minimum to Six (6) Years and One (1) Day of Prision
Mayor as maximum.
SO ORDERED.
[7]

In convicting herein petitioner, the trial court discounted
petitioners claim that his first marriage to Lucia was null and
void ab initio. Following Domingo v. Court of Appeals,
[8]
the trial
court ruled that want of a valid marriage ceremony is not a defense
in a charge of bigamy. The parties to a marriage should not be
allowed to assume that their marriage is void even if such be the fact
but must first secure a judicial declaration of the nullity of their
marriage before they can be allowed to marry again.
Anent the Canadian divorce obtained by Lucia, the trial court
cited Ramirez v. Gmur,
[9]
which held that the court of a country in
which neither of the spouses is domiciled and in which one or both
spouses may resort merely for the purpose of obtaining a divorce,
has no jurisdiction to determine the matrimonial status of the
parties. As such, a divorce granted by said court is not entitled to
recognition anywhere. Debunking Lucios defense of good faith in
contracting the second marriage, the trial court stressed that
following People v. Bitdu,
[10]
everyone is presumed to know the law,
and the fact that one does not know that his act constitutes a
violation of the law does not exempt him from the consequences
thereof.
Seasonably, petitioner filed an appeal with the Court of
Appeals, docketed as CA-G.R. CR No. 20700.
124

Meanwhile, on October 23, 1997, or while CA-G.R. CR No.
20700 was pending before the appellate court, the trial court
rendered a decision in Civil Case No. 6020 declaring the marriage
between Lucio and Lucia void ab initio since no marriage ceremony
actually took place. No appeal was taken from this decision, which
then became final and executory.
On October 21, 1999, the appellate court decided CA-G.R. CR
No. 20700 as follows:
WHEREFORE, finding no error in the appealed decision, the same is
hereby AFFIRMED in toto.
SO ORDERED.
[11]

In affirming the assailed judgment of conviction, the appellate
court stressed that the subsequent declaration of nullity of Lucios
marriage to Lucia in Civil Case No. 6020 could not acquit Lucio. The
reason is that what is sought to be punished by Article 349
[12]
of the
Revised Penal Code is the act of contracting a second marriage
before the first marriage had been dissolved. Hence, the CA held,
the fact that the first marriage was void from the beginning is not a
valid defense in a bigamy case.
The Court of Appeals also pointed out that the divorce decree
obtained by Lucia from the Canadian court could not be accorded
validity in the Philippines, pursuant to Article 15
[13]
of the Civil Code
and given the fact that it is contrary to public policy in this
jurisdiction. Under Article 17
[14]
of the Civil Code, a declaration of
public policy cannot be rendered ineffectual by a judgment
promulgated in a foreign jurisdiction.
Petitioner moved for reconsideration of the appellate courts
decision, contending that the doctrine in Mendiola v.
People,
[15]
allows mistake upon a difficult question of law (such as
the effect of a foreign divorce decree) to be a basis for good faith.
On September 25, 2000, the appellate court denied the
motion for lack of merit.
[16]
However, the denial was by a split vote.
The ponente of the appellate courts original decision in CA-G.R. CR
No. 20700, Justice Eugenio S. Labitoria, joined in the opinion
prepared by Justice Bernardo P. Abesamis. The dissent observed
that as the first marriage was validly declared void ab initio, then
there was no first marriage to speak of. Since the date of the nullity
retroacts to the date of the first marriage and since herein petitioner
was, in the eyes of the law, never married, he cannot be convicted
beyond reasonable doubt of bigamy.
The present petition raises the following issues for our
resolution:
A.
WHETHER OR NOT THE COURT OF APPEALS ERRED IN FAILING TO
APPLY THE RULE THAT IN CRIMES PENALIZED UNDER THE REVISED
PENAL CODE, CRIMINAL INTENT IS AN INDISPENSABLE REQUISITE.
COROLLARILY, WHETHER OR NOT THE COURT OF APPEALS ERRED IN
FAILING TO APPRECIATE *THE+ PETITIONERS LACK OF CRIMINAL
INTENT WHEN HE CONTRACTED THE SECOND MARRIAGE.
B.
WHETHER OR NOT THE COURT OF APPEALS ERRED IN HOLDING THAT
THE RULING IN PEOPLE VS. BITDU (58 PHIL. 817) IS APPLICABLE TO
THE CASE AT BAR.
C.
WHETHER OR NOT THE COURT OF APPEALS ERRED IN FAILING TO
APPLY THE RULE THAT EACH AND EVERY CIRCUMSTANCE FAVORING
THE INNOCENCE OF THE ACCUSED MUST BE TAKEN INTO
ACCOUNT.
[17]

To our mind, the primordial issue should be whether or not
petitioner committed bigamy and if so, whether his defense of good
faith is valid.
The petitioner submits that he should not be faulted for
relying in good faith upon the divorce decree of the Ontario court.
He highlights the fact that he contracted the second marriage openly
and publicly, which a person intent upon bigamy would not be
doing. The petitioner further argues that his lack of criminal intent is
material to a conviction or acquittal in the instant case. The crime of
bigamy, just like other felonies punished under the Revised Penal
Code, is mala in se, and hence, good faith and lack of criminal intent
are allowed as a complete defense. He stresses that there is a
difference between the intent to commit the crime and the intent to
perpetrate the act. Hence, it does not necessarily follow that his
intention to contract a second marriage is tantamount to an intent
to commit bigamy.
For the respondent, the Office of the Solicitor General (OSG)
submits that good faith in the instant case is a convenient but flimsy
excuse. The Solicitor General relies upon our ruling in Marbella-
Bobis v. Bobis,
[18]
which held that bigamy can be successfully
prosecuted provided all the elements concur, stressing that under
Article 40
[19]
of the Family Code, a judicial declaration of nullity is a
must before a party may re-marry. Whether or not the petitioner
was aware of said Article 40 is of no account as everyone is
presumed to know the law. The OSG counters that petitioners
contention that he was in good faith because he relied on the
divorce decree of the Ontario court is negated by his act of filing Civil
Case No. 6020, seeking a judicial declaration of nullity of his
marriage to Lucia.
Before we delve into petitioners defense of good faith and
lack of criminal intent, we must first determine whether all the
elements of bigamy are present in this case. In Marbella-Bobis v.
Bobis,
[20]
we laid down the elements of bigamy thus:
(1) the offender has been legally married;
(2) the first marriage has not been legally dissolved, or in
case his or her spouse is absent, the absent spouse has
not been judicially declared presumptively dead;
(3) he contracts a subsequent marriage; and
(4) the subsequent marriage would have been valid had it
not been for the existence of the first.
Applying the foregoing test to the instant case, we note that
during the pendency of CA-G.R. CR No. 20700, the RTC of Bohol
Branch 1, handed down the following decision in Civil Case No. 6020,
to wit:
125

WHEREFORE, premises considered, judgment is hereby rendered
decreeing the annulment of the marriage entered into by petitioner
Lucio Morigo and Lucia Barrete on August 23, 1990 in Pilar, Bohol
and further directing the Local Civil Registrar of Pilar, Bohol to effect
the cancellation of the marriage contract.
SO ORDERED.
[21]

The trial court found that there was no actual marriage
ceremony performed between Lucio and Lucia by a solemnizing
officer. Instead, what transpired was a mere signing of the marriage
contract by the two, without the presence of a solemnizing officer.
The trial court thus held that the marriage is void ab initio, in
accordance with Articles 3
[22]
and 4
[23]
of the Family Code. As the
dissenting opinion in CA-G.R. CR No. 20700, correctly puts it, This
simply means that there was no marriage to begin with; and that
such declaration of nullity retroacts to the date of the first marriage.
In other words, for all intents and purposes, reckoned from the date
of the declaration of the first marriage as void ab initio to the date of
the celebration of the first marriage, the accused was, under the
eyes of the law, never married.
[24]
The records show that no appeal
was taken from the decision of the trial court in Civil Case No. 6020,
hence, the decision had long become final and executory.
The first element of bigamy as a crime requires that the
accused must have been legally married. But in this case, legally
speaking, the petitioner was never married to Lucia Barrete. Thus,
there is no first marriage to speak of. Under the principle of
retroactivity of a marriage being declared void ab initio, the two
were never married from the beginning. The contract of marriage
is null; it bears no legal effect. Taking this argument to its logical
conclusion, for legal purposes, petitioner was not married to Lucia at
the time he contracted the marriage with Maria Jececha. The
existence and the validity of the first marriage being an essential
element of the crime of bigamy, it is but logical that a conviction for
said offense cannot be sustained where there is no first marriage to
speak of. The petitioner, must, perforce be acquitted of the instant
charge.
The present case is analogous to, but must be distinguished
from Mercado v. Tan.
[25]
In the latter case, the judicial declaration of
nullity of the first marriage was likewise obtained after the second
marriage was already celebrated. We held therein that:
A judicial declaration of nullity of a previous marriage is necessary
before a subsequent one can be legally contracted. One who enters
into a subsequent marriage without first obtaining such judicial
declaration is guilty of bigamy. This principle applies even if the
earlier union is characterized by statutes as void.
[26]

It bears stressing though that in Mercado, the first marriage
was actually solemnized not just once, but twice: first before a judge
where a marriage certificate was duly issued and then again six
months later before a priest in religious rites. Ostensibly, at least,
the first marriage appeared to have transpired, although later
declared void ab initio.
In the instant case, however, no marriage ceremony at all was
performed by a duly authorized solemnizing officer. Petitioner and
Lucia Barrete merely signed a marriage contract on their own. The
mere private act of signing a marriage contract bears no semblance
to a valid marriage and thus, needs no judicial declaration of nullity.
Such act alone, without more, cannot be deemed to constitute an
ostensibly valid marriage for which petitioner might be held liable
for bigamy unless he first secures a judicial declaration of nullity
before he contracts a subsequent marriage.
The law abhors an injustice and the Court is mandated to
liberally construe a penal statute in favor of an accused and weigh
every circumstance in favor of the presumption of innocence to
ensure that justice is done. Under the circumstances of the present
case, we held that petitioner has not committed bigamy. Further,
we also find that we need not tarry on the issue of the validity of his
defense of good faith or lack of criminal intent, which is now moot
and academic.
WHEREFORE, the instant petition is GRANTED. The assailed
decision, dated October 21, 1999 of the Court of Appeals in CA-G.R.
CR No. 20700, as well as the resolution of the appellate court dated
September 25, 2000, denying herein petitioners motion for
reconsideration, is REVERSED and SET ASIDE. The petitioner Lucio
Morigo y Cacho is ACQUITTED from the charge of BIGAMY on the
ground that his guilt has not been proven with moral certainty.
SO ORDERED.
Puno, (Chairman), Austria-Martinez, Callejo, Sr., and Tinga,
JJ., concur.









































126































































































































127

THIRD DIVISION


VICTORIA S. JARILLO,
Petiti
oner,



- versus -



PEOPLE OF THE
PHILIPPINES,
Resp
ondent.

G.R. No. 164435

Present:

YNARES-SANTIAGO, J.,
Chairperson,
CHICO-NAZARIO,
VELASCO, JR.,
NACHURA, and
PERALTA, JJ.

Promulgated:


September 29, 2009
x - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -
x

D E C I S I O N


PERALTA, J.:

This resolves the Petition for Review on Certiorari under Rule
45 of the Rules of Court, praying that the Decision
[1]
of the Court of
Appeals (CA), dated July 21, 2003, and its Resolution
[2]
dated July 8,
2004, be reversed and set aside.

On May 31, 2000, petitioner was charged with Bigamy before
the Regional Trial Court (RTC) of Pasay City, Branch 117 under the
following Information in Criminal Case No. 00-08-11:
INFORMATION

The undersigned Assistant City
Prosecutor accuses VICTORIA S. JARILLO of the
crime of BIGAMY, committed as follows:

That on or about the 26
th
day of
November 1979, in Pasay City, Metro Manila,
Philippines and within the jurisdiction of this
Honorable Court, the above-named accused,
Victoria S. Jarillo, being previously united in
lawful marriage with Rafael M. Alocillo, and
without the said marriage having been legally
dissolved, did then and there willfully, unlawfully
and feloniously contract a second marriage with
Emmanuel Ebora Santos Uy which marriage was
only discovered on January 12, 1999.

Contrary to law.


On July 14, 2000, petitioner pleaded not guilty during
arraignment and, thereafter, trial proceeded.

The undisputed facts, as accurately summarized by the CA, are
as follows.

On May 24, 1974, Victoria Jarillo and Rafael
Alocillo were married in a civil wedding
ceremony solemnized by Hon. Monico C. Tanyag,
then Municipal Mayor of Taguig, Rizal (Exhs. A, A-
1, H, H-1, H-2, O, O-1, pp. 20-21, TSN dated
November 17, 2000).

On May 4, 1975, Victoria Jarillo and Rafael
Alocillo again celebrated marriage in a church
wedding ceremony before Rev. Angel Resultay
in San Carlos City, Pangasinan (pp. 25-26, TSN
dated November 17, 2000). Out of the marital
union, appellant begot a daughter, Rachelle J.
Alocillo on October 29, 1975 (Exhs. F, R, R-1).

Appellant Victoria Jarillo thereafter
contracted a subsequent marriage with
Emmanuel Ebora Santos Uy, at
the City Court of Pasay City, Branch 1, before
then Hon. Judge Nicanor Cruz on November 26,
1979 (Exhs. D, J, J-1, Q, Q-1, pp. 15-18, TSN dated
November 22, 2000).

On April 16, 1995, appellant and
Emmanuel Uy exchanged marital vows anew in a
church wedding in Manila (Exh. E).

In 1999, Emmanuel Uy filed against the
appellant Civil Case No. 99-93582 for annulment
of marriage before the Regional Trial Court of
Manila.

Thereafter, appellant Jarillo was charged
with bigamy before the Regional Trial Court of
Pasay City x x x.

x x x x

Parenthetically, accused-appellant filed
against Alocillo, on October 5, 2000, before the
Regional Trial Court of Makati, Civil Case No. 00-
1217, for declaration of nullity of their marriage.

On July 9, 2001, the court a
quo promulgated the assailed decision, the
dispositive portion of which states:

WHEREFORE, upon
the foregoing premises, this
court hereby finds accused
Victoria Soriano
Jarillo GUILTY beyond
reasonable doubt of the crime
of BIGAMY.

Accordingly, said
accused is hereby sentenced
128

to suffer an indeterminate
penalty of SIX (6) YEARS of
prision correccional, as
minimum, to TEN (10)
YEARS of prision mayor, as
maximum.

This court makes no
pronouncement on the civil
aspect of this case, such as the
nullity of accuseds bigamous
marriage to Uy and its effect
on their children and their
property. This aspect is being
determined by the Regional
Trial Court of Manila in Civil
Case No. 99-93582.

Costs against the
accused.

The motion for reconsideration was
likewise denied by the same court in that assailed
Order dated 2 August 2001.
[3]



For her defense, petitioner insisted that (1) her 1974 and
1975 marriages to Alocillo were null and void because Alocillo was
allegedly still married to a certain Loretta Tillman at the time of the
celebration of their marriage; (2) her marriages to both Alocillo and
Uy were null and void for lack of a valid marriage license; and (3) the
action had prescribed, since Uy knew about her marriage to Alocillo
as far back as 1978.

On appeal to the CA, petitioners conviction was
affirmed in toto. In its Decision dated July 21, 2003, the CA held that
petitioner committed bigamy when she contracted marriage with
Emmanuel Santos Uy because, at that time, her marriage to Rafael
Alocillo had not yet been declared null and void by the court. This
being so, the presumption is, her previous marriage to Alocillo was
still existing at the time of her marriage to Uy. The CA also struck
down, for lack of sufficient evidence, petitioners contentions that
her marriages were celebrated without a marriage license, and that
Uy had notice of her previous marriage as far back as 1978.

In the meantime, the RTC of Makati City, Branch 140,
rendered a Decision dated March 28, 2003, declaring petitioners
1974 and 1975 marriages to Alocillo null and void ab initio on the
ground of Alocillos psychological incapacity. Said decision became
final and executory on July 9, 2003. In her motion for
reconsideration, petitioner invoked said declaration of nullity as a
ground for the reversal of her conviction. However, in its Resolution
dated July 8, 2004, the CA, citing Tenebro v. Court of
Appeals,
[4]
denied reconsideration and ruled that *t+he subsequent
declaration of nullity of her first marriage on the ground of
psychological incapacity, while it retroacts to the date of the
celebration of the marriage insofar as the vinculum between the
spouses is concerned, the said marriage is not without legal
consequences, among which is incurring criminal liability for
bigamy.
[5]


Hence, the present petition for review on certiorari under
Rule 45 of the Rules of Court where petitioner alleges that:

V.1. THE COURT OF APPEALS
COMMITTED REVERSIBLE ERROR IN PROCEEDING
WITH THE CASE DESPITE THE PENDENCY OF A
CASE WHICH IS PREJUDICIAL TO THE OUTCOME OF
THIS CASE.

V.2. THE COURT OF APPEALS
COMMITTED REVERSIBLE ERROR IN AFFIRMING
THE CONVICTION OF PETITIONER FOR THE CRIME
OF BIGAMY DESPITE THE SUPERVENING PROOF
THAT THE FIRST TWO MARRIAGES OF PETITIONER
TO ALOCILLO HAD BEEN DECLARED BY FINAL
JUDGMENT NULL AND VOID AB INITIO.

V.3. THE COURT OF APPEALS
COMMITTED REVERSIBLE ERROR IN NOT
CONSIDERING THAT THERE IS A PENDING
ANNULMENT OF MARRIAGE AT THE REGIONAL
TRIAL COURT BRANCH 38 BETWEEN EMMANUEL
SANTOS AND VICTORIA S. JARILLO.

V.4. THE COURT OF APPEALS
COMMITTED REVERSIBLE ERROR IN NOT
CONSIDERING THAT THE INSTANT CASE OF
BIGAMY HAD ALREADY PRESCRIBED.

V.5. THE COURT OF APPEALS
COMMITTED REVERSIBLE ERROR IN NOT
CONSIDERING THAT THE MARRIAGE OF VICTORIA
JARILLO AND EMMANUEL SANTOS UY HAS NO
VALID MARRIAGE LICENSE.

V.6. THE COURT OF APPEALS
COMMITTED REVERSIBLE ERROR IN NOT
ACQUITTING THE PETITIONER BUT IMPOSED AN
ERRONEOUS PENALTY UNDER THE REVISED PENAL
CODE AND THE INDETERMINATE SENTENCE LAW.


The first, second, third and fifth issues, being closely
related, shall be discussed jointly. It is true that right after the
presentation of the prosecution evidence, petitioner moved for
suspension of the proceedings on the ground of the pendency of the
petition for declaration of nullity of petitioners marriages to
Alocillo, which, petitioner claimed involved a prejudicial question. In
her appeal, she also asserted that the petition for declaration of
nullity of her marriage to Uy, initiated by the latter, was a ground for
suspension of the proceedings. The RTC denied her motion for
suspension, while the CA struck down her arguments. In Marbella-
Bobis v. Bobis,
[6]
the Court categorically stated that:

x x x as ruled in Landicho v. Relova, he who
contracts a second marriage before the judicial
declaration of nullity of the first marriage assumes
the risk of being prosecuted for bigamy, and in
such a case the criminal case may not be
suspended on the ground of the pendency of a
civil case for declaration of nullity. x x x

x x x x

129

x x x The reason is that, without a judicial
declaration of its nullity, the first marriage is
presumed to be subsisting. In the case at bar,
respondent was for all legal intents and purposes
regarded as a married man at the time he
contracted his second marriage with
petitioner. Against this legal backdrop, any
decision in the civil action for nullity would not
erase the fact that respondent entered into a
second marriage during the subsistence of a first
marriage. Thus, a decision in the civil case is not
essential to the determination of the criminal
charge. It is, therefore, not a prejudicial
question. x x x
[7]

The foregoing ruling had been reiterated in Abunado v.
People,
[8]
where it was held thus:

The subsequent judicial declaration of
the nullity of the first marriage was immaterial
because prior to the declaration of nullity, the
crime had already been
consummated. Moreover, petitioners assertion
would only delay the prosecution of bigamy cases
considering that an accused could simply file a
petition to declare his previous marriage void and
invoke the pendency of that action as a prejudicial
question in the criminal case. We cannot allow
that.
The outcome of the civil case for
annulment of petitioners marriage to [private
complainant] had no bearing upon the
determination of petitioners innocence or guilt
in the criminal case for bigamy, because all that is
required for the charge of bigamy to prosper is
that the first marriage be subsisting at the time
the second marriage is contracted.
Thus, under the law, a marriage, even
one which is void or voidable, shall be deemed
valid until declared otherwise in a judicial
proceeding. In this case, even if petitioner
eventually obtained a declaration that his first
marriage was void ab initio, the point is, both the
first and the second marriage were subsisting
before the first marriage was annulled.
[9]


For the very same reasons elucidated in the above-quoted cases,
petitioners conviction of the crime of bigamy must be
affirmed. The subsequent judicial declaration of nullity of
petitioners two marriages to Alocillo cannot be considered a valid
defense in the crime of bigamy. The moment petitioner contracted
a second marriage without the previous one having been judicially
declared null and void, the crime of bigamy was already
consummated because at the time of the celebration of the second
marriage, petitioners marriage to Alocillo, which had not yet been
declared null and void by a court of competent jurisdiction, was
deemed valid and subsisting. Neither would a judicial declaration of
the nullity of petitioners marriage to Uy make any difference.
[10]
As
held in Tenebro, *s+ince a marriage contracted during the
subsistence of a valid marriage is automatically void, the nullity of
this second marriage is not per se an argument for the avoidance of
criminal liability for bigamy. x x x A plain reading of [Article 349
of the Revised Penal Code], therefore, would indicate that the
provision penalizes the mere act of contracting a second or
subsequent marriage during the subsistence of a valid marriage.
[11]


Petitioners defense of prescription is likewise doomed to fail.

Under Article 349 of the Revised Penal Code, bigamy is
punishable by prision mayor, which is classified under Article 25 of
said Code as an afflictive penalty. Article 90 thereof provides that
*c+rimes punishable by other afflictive penalties shall prescribe in
fifteen years, while Article 91 states that *t+he period of
prescription shall commence to run from the day on which the crime
is discovered by the offended party, the authorities, or their
agents x x x .

Petitioner asserts that Uy had known of her previous
marriage as far back as 1978; hence, prescription began to run from
that time. Note that the party who raises a fact as a matter
of defense has the burden of proving it. The defendant or accused is
obliged to produce evidence in support of its defense; otherwise,
failing to establish the same, it remains self-serving.
[12]
Thus, for
petitioners defense of prescription to prosper, it was incumbent
upon her to adduce evidence that as early as the year 1978, Uy
already obtained knowledge of her previous marriage.

A close examination of the records of the case reveals that
petitioner utterly failed to present sufficient evidence to support her
allegation. Petitioners testimony that her own mother told Uy in
1978 that she (petitioner) is already married to Alocillo does not
inspire belief, as it is totally unsupported by any corroborating
evidence. The trial court correctly observed that:


x x x She did not call to the witness stand her
mother the person who allegedly actually told
Uy about her previous marriage to Alocillo. It
must be obvious that without the confirmatory
testimony of her mother, the attribution of the
latter of any act which she allegedly did is
hearsay.
[13]


As ruled in Sermonia v. Court of Appeals,
[14]
the
prescriptive period for the crime of bigamy should be counted only
from the day on which the said crime was discovered by the
offended party, the authorities or their *agents+, as opposed to
being counted from the date of registration of the bigamous
marriage.
[15]
Since petitioner failed to prove with certainty that the
period of prescription began to run as of 1978, her defense is,
therefore, ineffectual.

Finally, petitioner avers that the RTC and the CA imposed an
erroneous penalty under the Revised Penal Code. Again, petitioner
is mistaken.

The Indeterminate Sentence Law provides that the
accused shall be sentenced to an indeterminate penalty, the
maximum term of which shall be that which, in view of the attending
circumstances, could be properly imposed under the Revised Penal
Code, and the minimum of which shall be within the range of the
penalty next lower than that prescribed by the Code for the offense,
without first considering any modifying circumstance attendant to
the commission of the crime. The Indeterminate Sentence Law
leaves it entirely within the sound discretion of the court to
determine the minimum penalty, as long as it is anywhere within the
130

range of the penalty next lower without any reference to the
periods into which it might be subdivided. The modifying
circumstances are considered only in the imposition of the
maximum term of the indeterminate sentence.
[16]



Applying the foregoing rule, it is clear that the penalty
imposed on petitioner is proper. Under Article 349 of the Revised
Penal Code, the imposable penalty for bigamy is prision mayor. The
penalty next lower is prision correccional, which ranges from 6
months and 1 day to 6 years. The minimum penalty of six years
imposed by the trial court is, therefore, correct as it is still within the
duration of prision correccional. There being no mitigating or
aggravating circumstances proven in this case, the prescribed
penalty of prision mayor should be imposed in its medium period,
which is from 8 years and 1 day to 10 years. Again, the trial court
correctly imposed a maximum penalty of 10 years.

However, for humanitarian purposes, and considering that
petitioners marriage to Alocillo has after all been declared by final
judgment
[17]
to be void ab initio on account of the latters
psychological incapacity, by reason of which, petitioner was
subjected to manipulative abuse, the Court deems it proper to
reduce the penalty imposed by the lower courts. Thus, petitioner
should be sentenced to suffer an indeterminate penalty of
imprisonment from Two (2) years, Four (4) months and One (1) day
of prision correccional, as minimum, to 8 years and 1 day of prision
mayor, as maximum.

IN VIEW OF THE FOREGOING, the petition is PARTLY
GRANTED. The Decision of the Court of Appeals dated July 21,
2003, and its Resolution dated July 8, 2004 are hereby MODIFIED as
to the penalty imposed, but AFFIRMEDin all other
respects. Petitioner is sentenced to suffer an indeterminate penalty
of imprisonment from Two (2) years, Four (4) months and One (1)
day of prision correccional, as minimum, to Eight (8) years and One
(1) day of prision mayor, as maximum.

SO ORDERED.






















































































131

FIRST DIVISION
[G.R. No. 132529. February 2, 2001]
SUSAN NICDAO CARIO, petitioner, vs. SUSAN YEE
CARIO, respondent.
D E C I S I O N
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. Cario, whose death benefits is now the subject of the
controversy between the two Susans whom he married.
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. Cario, he
contracted two marriages, the first was on June 20, 1969, with
petitioner Susan Nicdao Cario (hereafter referred to as Susan
Nicdao), with whom he had two offsprings, namely, Sahlee and
Sandee Cario; and the second was on November 10, 1992, with
respondent Susan Yee Cario (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. Cario 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 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 Cario
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.
Cario, plus attorneys 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.
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
132

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 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.
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]
-
... [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 -
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 formers
efforts consisted in the care and maintenance of the family and of
the household.
133

x x x x x x x x x
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 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 defendants 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
husbands 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.
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 Nial 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 attorneys
fees in the amount of P5,000.00, is REVERSED and SET ASIDE. The
complaint in Civil Case No. Q-93-18632, is hereby DISMISSED. No
pronouncement as to costs.
SO ORDERED.
Davide, Jr., C.J. (Chairman), Kapunan, and Pardo, JJ., concur.
Puno J., on official leave.











134

























































135

Republic of the Philippines
SUPREME COURT
Manila
THIRD DIVISION

G.R. No. 94053 March 17, 1993
REPUBLIC OF THE PHILIPPINES, petitioner,
vs.
GREGORIO NOLASCO, respondent.
The Solicitor General for plaintiff-appellee.
Warloo G. Cardenal for respondent.
R E S O L U T I O N

FELICIANO, J.:
On 5 August 1988, respondent Gregorio Nolasco filed before the
Regional Trial Court of Antique, Branch 10, a petition for the
declaration of presumptive death of his wife Janet Monica Parker,
invoking Article 41 of the Family Code. The petition prayed that
respondent's wife be declared presumptively dead or, in the
alternative, that the marriage be declared null and void.
1

The Republic of the Philippines opposed the petition through the
Provincial Prosecutor of Antique who had been deputized to assist
the Solicitor-General in the instant case. The Republic argued, first,
that Nolasco did not possess a "well-founded belief that the absent
spouse was already dead,"
2
and second, Nolasco's attempt to have
his marriage annulled in the same proceeding was a "cunning
attempt" to circumvent the law on marriage.
3

During trial, respondent Nolasco testified that he was a seaman and
that he had first met Janet Monica Parker, a British subject, in a bar
in England during one of his ship's port calls. From that chance
meeting onwards, Janet Monica Parker lived with respondent
Nolasco on his ship for six (6) months until they returned to
respondent's hometown of San Jose, Antique on 19 November 1980
after his seaman's contract expired. On 15 January 1982, respondent
married Janet Monica Parker in San Jose, Antique, in Catholic rites
officiated by Fr. Henry van Tilborg in the Cathedral of San Jose.
Respondent Nolasco further testified that after the marriage
celebration, he obtained another employment contract as a seaman
and left his wife with his parents in San Jose, Antique. Sometime in
January 1983, while working overseas, respondent received a letter
from his mother informing him that Janet Monica had given birth to
his son. The same letter informed him that Janet Monica had left
Antique. Respondent claimed he then immediately asked permission
to leave his ship to return home. He arrived in Antique in November
1983.
Respondent further testified that his efforts to look for her himself
whenever his ship docked in England proved fruitless. He also stated
that all the letters he had sent to his missing spouse at No. 38
Ravena Road, Allerton, Liverpool, England, the address of the bar
where he and Janet Monica first met, were all returned to him. He
also claimed that he inquired from among friends but they too had
no news of Janet Monica.
On cross-examination, respondent stated that he had lived with and
later married Janet Monica Parker despite his lack of knowledge as
to her family background. He insisted that his wife continued to
refuse to give him such information even after they were married.
He also testified that he did not report the matter of Janet Monica's
disappearance to the Philippine government authorities.
Respondent Nolasco presented his mother, Alicia Nolasco, as his
witness. She testified that her daughter-in-law Janet Monica had
expressed a desire to return to England even before she had given
birth to Gerry Nolasco on 7 December 1982. When asked why her
daughter-in-law might have wished to leave Antique, respondent's
mother replied that Janet Monica never got used to the rural way of
life in San Jose, Antique. Alicia Nolasco also said that she had tried to
dissuade Janet Monica from leaving as she had given birth to her son
just fifteen days before, but when she (Alicia) failed to do so, she
gave Janet Monica P22,000.00 for her expenses before she left on
22 December 1982 for England. She further claimed that she had no
information as to the missing person's present whereabouts.
The trial court granted Nolasco's petition in a Judgment dated 12
October 1988 the dispositive portion of which reads:
Wherefore, under Article 41, paragraph 2 of the
Family Code of the Philippines (Executive Order
No. 209, July 6, 1987, as amended by Executive
Order No. 227, July 17, 1987) this Court hereby
declares as presumptively dead Janet Monica
Parker Nolasco, without prejudice to her
reappearance.
4

The Republic appealed to the Court of Appeals contending that the
trial court erred in declaring Janet Monica Parker presumptively
dead because respondent Nolasco had failed to show that there
existed a well founded belief for such declaration.
The Court of Appeals affirmed the trial court's decision, holding that
respondent had sufficiently established a basis to form a belief that
his absent spouse had already died.
The Republic, through the Solicitor-General, is now before this Court
on a Petition for Review where the following allegations are made:
1. The Court of Appeals erred in affirming the
trial court's finding that there existed a well-
founded belief on the part of Nolasco that Janet
Monica Parker was already dead; and
2. The Court of Appeals erred in affirming the
trial Court's declaration that the petition was a
proper case of the declaration of presumptive
death under Article 41, Family Code.
5

136

The issue before this Court, as formulated by petitioner is
"[w]hether or not Nolasco has a well-founded belief that his wife is
already dead."
6

The present case was filed before the trial court pursuant to Article
41 of the Family Code which provides that:
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 provision 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. (Emphasis
supplied).
When Article 41 is compared with the old provision of the Civil Code,
which it superseded,
7
the following crucial differences emerge.
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.
8
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 Article 390 and 391 of the Civil Code.
9
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.
As pointed out by the Solicitor-General, there are four (4) requisites
for the declaration of presumptive death under Article 41 of the
Family Code:
1. That the absent spouse has been missing for
four consecutive years, or two consecutive years
if the disappearance occurred where there is
danger of death under the circumstances laid
down in Article 391, Civil Code;
2. That the present spouse wishes to remarry;
3. That the present spouse has a well-founded
belief that the absentee is dead; and
4. That the present spouse files a summary
proceeding for the declaration of presumptive
death of the absentee.
10

Respondent naturally asserts that he had complied with all these
requirements.
11

Petitioner's argument, upon the other hand, boils down to this: that
respondent failed to prove that he had complied with the third
requirement, i.e., the existence of a "well-founded belief" that the
absent spouse is already dead.
The Court believes that respondent Nolasco failed to conduct a
search for his missing wife with such diligence as to give rise to a
"well-founded belief" that she is dead.
United States v. Biasbas,
12
is instructive as to degree of diligence
required in searching for a missing spouse. In that case, defendant
Macario Biasbas was charged with the crime of bigamy. He set-up
the defense of a good faith belief that his first wife had already died.
The Court held that defendant had not exercised due diligence to
ascertain the whereabouts of his first wife, noting that:
While the defendant testified that he had made
inquiries concerning the whereabouts of his
wife, he fails to state of whom he made such
inquiries. He did not even write to the parents of
his first wife, who lived in the Province of
Pampanga, for the purpose of securing
information concerning her whereabouts. He
admits that he had a suspicion only that his first
wife was dead. He admits that the only basis of
his suspicion was the fact that she had been
absent. . . .
13

In the case at bar, the Court considers that the investigation
allegedly conducted by respondent in his attempt to ascertain Janet
Monica Parker's whereabouts is too sketchy to form the basis of a
reasonable or well-founded belief that she was already dead. When
he arrived in San Jose, Antique after learning of Janet Monica's
departure, instead of seeking the help of local authorities or of the
British Embassy,
14
he secured another seaman's contract and went
to London, a vast city of many millions of inhabitants, to look for her
there.
Q After arriving here in San
Jose, Antique, did you exert
efforts to inquire the
whereabouts of your wife?
A Yes, Sir.
Court:
How did you do that?
A I secured another contract
with the ship and we had a
trip to London and I went to
London to look for her I could
137

not find
her (sic).
15
(Emphasis
supplied)
Respondent's testimony, however, showed that he confused London
for Liverpool and this casts doubt on his supposed efforts to locate
his wife in England. The Court of Appeal's justification of the
mistake, to wit:
. . . Well, while the cognoscente (sic) would
readily know the geographical difference
between London and Liverpool, for a humble
seaman like Gregorio the two places could mean
one place in England, the port where his ship
docked and where he found Janet. Our own
provincial folks, every time they leave home to
visit relatives in Pasay City, Kalookan City, or
Paraaque, would announce to friends and
relatives, "We're going to Manila." This apparent
error in naming of places of destination does not
appear to be fatal.
16

is not well taken. There is no analogy between Manila and its
neighboring cities, on one hand, and London and Liverpool, on the
other, which, as pointed out by the Solicitor-General, are around
three hundred fifty (350) kilometers apart. We do not consider that
walking into a major city like Liverpool or London with a simple hope
of somehow bumping into one particular person there which is in
effect what Nolasco says he did can be regarded as a reasonably
diligent search.
The Court also views respondent's claim that Janet Monica declined
to give any information as to her personal background even after
she had married respondent
17
too convenient an excuse to justify
his failure to locate her. The same can be said of the loss of the
alleged letters respondent had sent to his wife which respondent
claims were all returned to him. Respondent said he had lost these
returned letters, under unspecified circumstances.
Neither can this Court give much credence to respondent's bare
assertion that he had inquired from their friends of her
whereabouts, considering that respondent did not identify those
friends in his testimony. The Court of Appeals ruled that since the
prosecutor failed to rebut this evidence during trial, it is good
evidence. But this kind of evidence cannot, by its nature, be
rebutted. In any case, admissibility is not synonymous with
credibility.
18
As noted before, there are serious doubts to
respondent's credibility. Moreover, even if admitted as evidence,
said testimony merely tended to show that the missing spouse had
chosen not to communicate with their common acquaintances, and
not that she was dead.
Respondent testified that immediately after receiving his mother's
letter sometime in January 1983, he cut short his employment
contract to return to San Jose, Antique. However, he did not explain
the delay of nine (9) months from January 1983, when he allegedly
asked leave from his captain, to November 1983 when be finally
reached San Jose. Respondent, moreover, claimed he married Janet
Monica Parker without inquiring about her parents and their place
of residence.
19
Also, respondent failed to explain why he did not
even try to get the help of the police or other authorities in London
and Liverpool in his effort to find his wife. The circumstances of
Janet Monica's departure and respondent's subsequent behavior
make it very difficult to regard the claimed belief that Janet Monica
was dead a well-founded one.
In Goitia v. Campos-Rueda,
20
the Court stressed that:
. . . Marriage is an institution, the maintenance
of which in its purity the public is deeply
interested. It is a relationship for life and the
parties cannot terminate it at any shorter period
by virtue of any contract they make. . . .
.
21
(Emphasis supplied)
By the same token, the spouses should not be allowed, by the
simple expedient of agreeing that one of them leave the conjugal
abode and never to return again, to circumvent the policy of the
laws on marriage. The Court notes that respondent even tried to
have his marriage annulled before the trial court in the same
proceeding.
In In Re Szatraw,
22
the Court warned against such collusion between
the parties when they find it impossible to dissolve the marital
bonds through existing legal means.
While the Court understands the need of respondent's young son,
Gerry Nolasco, for maternal care, still the requirements of the law
must prevail. Since respondent failed to satisfy the clear
requirements of the law, his petition for a judicial declaration of
presumptive death must be denied. The law does not view marriage
like an ordinary contract. Article 1 of the Family Code emphasizes
that.
. . . Marriage is a special contract of permanent
union between a man and a woman entered into
in accordance with law for the establishment of
conjugal and family life. It is the foundation of
the familyand an inviolable social
institution whose nature, consequences,
and incidents are governed by law and not
subject to stipulation, except that marriage
settlements may fix the property relations during
the marriage within the limits provided by this
Code. (Emphasis supplied)
In Arroyo, Jr. v. Court of Appeals,
23
the Court stressed strongly the
need to protect.
. . . the basic social institutions of marriage and
the family in the preservation of which the State
bas the strongest interest; the public policy here
involved is of the most fundamental kind. In
Article II, Section 12 of the Constitution there is
set forth the following basic state policy:
The State recognizes the
sanctity of family life and
shall protect and strengthen
the family as a basic
138

autonomous social
institution. . . .
The same sentiment bas been expressed in the
Family Code of the Philippines in Article 149:
The family, being the
foundation of the nation, is a
basic social institution which
public policy cherishes and
protects. Consequently,
family relations are governed
by law and no custom,
practice or agreement
destructive of the family
shall be recognized or given
effect.
24

In fine, respondent failed to establish that he had the well-founded
belief required by law that his absent wife was already dead that
would sustain the issuance of a court order declaring Janet Monica
Parker presumptively dead.
WHEREFORE, the Decision of the Court of Appeals dated 23
February 1990, affirming the trial court's decision declaring Janet
Monica Parker presumptively dead is hereby REVERSED and both
Decisions are hereby NULLIFIED and SET ASIDE. Costs against
respondent.
Bidin, Davide, Jr., Romero and Melo, JJ., concur.
Gutierrez, Jr. J., is on leave.



























































































139

SECOND DIVISION


REPUBLIC OF THE PHILIPPINES, G.R. No. 159614
Petitioner,
P
resent:

- versus - PUNO, J., Chairman,
AUSTRIA-MARTINEZ,
CALLEJO, SR.,
THE HONORABLE COURT OF TINGA, and
APPEALS (TENTH DIVISION) CHICO-NAZARIO, JJ.
and ALAN B. ALEGRO,
Respondents.
P
romulgate
d:

December 9, 2005
x - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -
x


DECISION


CALLEJO, SR., J.:


On March 29, 2001, Alan B. Alegro filed a petition in the Regional Trial
Court (RTC) of Catbalogan, Samar, Branch 27, for the declaration of
presumptive death of his wife, Rosalia (Lea) A. Julaton.

In an Order
[1]
dated April 16, 2001, the court set the petition for
hearing on May 30, 2001 at 8:30 a.m. and directed that a copy of the said
order be published once a week for three (3) consecutive weeks in the Samar
Reporter, a newspaper of general circulation in the Province of Samar,
and that a copy be posted in the courts bulletin board for at least three
weeks before the next scheduled hearing. The court also directed that copies
of the order be served on the Solicitor General, the Provincial Prosecutor of
Samar, and Alan, through counsel, and that copies be sent to Lea by
registered mail. Alan complied with all the foregoing jurisdictional
requirements.
[2]


On May 28, 2001, the Republic of the Philippines, through the
Office of the Solicitor General (OSG), filed a Motion to Dismiss
[3]
the petition,
which was, however, denied by the court for failure to comply with Rule 15
of the Rules of Court.
[4]


At the hearing, Alan adduced evidence that he and Lea were
married on January 20, 1995 in Catbalogan, Samar.
[5]
He testified that, on
February 6, 1995, Lea arrived home late in the evening and he berated her
for being always out of their house. He told her that if she enjoyed the life of
a single person, it would be better for her to go back to her parents.
[6]
Lea
did not reply. Alan narrated that, when he reported for work the following
day, Lea was still in the house, but when he arrived home later in the day,
Lea was nowhere to be found.
[7]
Alan thought that Lea merely went to her
parents house in Bliss, Sto. Nio, Catbalogan, Samar.
[8]
However, Lea did not
return to their house anymore.

Alan further testified that, on February 14, 1995, after his work,
he went to the house of Leas parents to see if she was there, but he was told
that she was not there. He also went to the house of Leas friend, Janeth
Bautista, at BarangayCanlapwas, but he was informed by Janettes brother-
in-law, Nelson Abaenza, that Janeth had left for Manila.
[9]
When Alan went
back to the house of his parents-in-law, he learned from his father-in-law
that Lea had been to their house but that she left without notice.
[10]
Alan
sought the help of Barangay Captain Juan Magat, who promised to help him
locate his wife. He also inquired from his friends of Leas whereabouts but to
no avail.
[11]


Sometime in June 1995, he decided to go to Manila to look for
Lea, but his mother asked him to leave after the town fiesta of Catbalogan,
hoping that Lea may come home for the fiesta. Alan agreed.
[12]
However,
Lea did not show up. Alan then left for Manila on August 27, 1995. He went
to a house in Navotas where Janeth, Leas friend, was staying. When asked
where Lea was, Janeth told him that she had not seen her.
[13]
He failed to
find out Leas whereabouts despite his repeated talks with Janeth. Alan
decided to work as a part-time taxi driver. On his free time, he would look
for Lea in the malls but still to no avail. He returned to Catbalogan in 1997
and again looked for his wife but failed.
[14]


On June 20, 2001, Alan reported Leas disappearance to the local
police station.
[15]
The police authorities issued an Alarm Notice on July 4,
2001.
[16]
Alan also reported Leas disappearance to the National Bureau of
Investigation (NBI) on July 9, 2001.
[17]


Barangay Captain Juan Magat corroborated the testimony of
Alan. He declared that on February 14, 1995, at 2:00 p.m., Alan inquired
from him if Lea passed by his house and he told Alan that she did not. Alan
also told him that Lea had disappeared. He had not seen Lea in
the barangay ever since.
[18]
Leas father, who was his compadre and the
owner of Radio DYMS, told him that he did not know where Lea was.
[19]


After Alan rested his case, neither the Office of the Provincial
Prosecutor nor the Solicitor General adduced evidence in opposition to the
petition.

On January 8, 2002, the court rendered judgment granting the
petition. The fallo of the decision reads:

WHEREFORE, and in view of all the
foregoing, petitioners absent spouse ROSALIA
JULATON is hereby declared PRESUMPTIVELY DEAD for
the purpose of the petitioners subsequent marriage
under Article 41 of the Family Code of the Philippines,
without prejudice to the effect of reappearance of the
said absent spouse.

SO ORDERED.
[20]


The OSG appealed the decision to the Court of Appeals (CA) which
rendered judgment on August 4, 2003, affirming the decision of the RTC.
[21]

The CA cited the ruling of this Court in Republic v. Nolasco.
[22]


The OSG filed a petition for review on certiorari of the CAs decision
alleging that respondent Alan B. Alegro failed to prove that he had a well-
founded belief that Lea was already dead.
[23]
It averred that the respondent
failed to exercise reasonable and diligent efforts to locate his wife. The
respondent even admitted that Leas father told him on February 14, 1995
that Lea had been to their house but left without notice. The OSG pointed
out that the respondent reported his wifes disappearance to the local police
and also to the NBI only after the petitioner filed a motion to dismiss the
petition. The petitioner avers that, as gleaned from the evidence, the
respondent did not really want to find and locate Lea. Finally, the petitioner
averred:
In view of the summary nature of
proceedings under Article 41 of the Family Code for
the declaration of presumptive death of ones spouse,
the degree of due diligence set by this Honorable Court
in the above-mentioned cases in locating the
whereabouts of a missing spouse must be strictly
complied with. There have been times when Article 41
of the Family Code had been resorted to by parties
wishing to remarry knowing fully well that their alleged
missing spouses are alive and well. It is even possible
that those who cannot have their marriages x x x
declared null and void under Article 36 of the Family
140

Code resort to Article 41 of the Family Code for relief
because of the x x x summary nature of its
proceedings.

It is the policy of the State to protect and
strengthen the family as a basic social institution.
Marriage is the foundation of the family. Since
marriage is an inviolable social institution that the
1987 Constitution seeks to protect from dissolution at
the whim of the parties. For respondents failure to
prove that he had a well-founded belief that his wife is
already dead and that he exerted the required amount
of diligence in searching for his missing wife, the
petition for declaration of presumptive death should
have been denied by the trial court and the Honorable
Court of Appeals.
[24]


The petition is meritorious.

Article 41 of the Family Code of the Philippines reads:
Art. 41. A marriage contracted by any person
during the subsistence of a previous marriage shall be
null and void, unless before the celebration of the
subsequent marriage, the prior spouse had been
absent for four consecutive years and the spouse
present had a well-founded belief that the absent
spouse was already dead. In case of disappearance
where there is danger under the circumstances set
forth in the provisions of Article 391 of the Civil
Code, an absence of only two years shall be sufficient.

For the purpose of contracting the subsequent
marriage under the preceding paragraph, the spouse
present must institute a summary proceeding as
provided in this Code for the declaration of
presumptive death of the absentee, without prejudice
to the effect of reappearance of the absent spouse.
[25]



The spouse present is, thus, burdened to prove that his spouse has
been absent and that he has a well-founded belief that the absent spouse is
already dead before the present spouse may contract a subsequent
marriage. The law does not define what is meant by a well-grounded belief.
Cuello Callon writes that es menester que su creencia sea firme se funde en
motivos racionales.
[26]


Belief is a state of the mind or condition prompting the doing of
an overt act. It may be proved by direct evidence or circumstantial evidence
which may tend, even in a slight degree, to elucidate the inquiry or assist to a
determination probably founded in truth. Any fact or circumstance relating
to the character, habits, conditions, attachments, prosperity and objects of
life which usually control the conduct of men, and are the motives of their
actions, was, so far as it tends to explain or characterize their disappearance
or throw light on their intentions,
[27]
competence evidence on the ultimate
question of his death.

The belief of the present spouse must be the result of proper and
honest to goodness inquiries and efforts to ascertain the whereabouts of the
absent spouse and whether the absent spouse is still alive or is already dead.
Whether or not the spouse present acted on a well-founded belief of death
of the absent spouse depends upon the inquiries to be drawn from a great
many circumstances occurring before and after the disappearance of the
absent spouse and the nature and extent of the inquiries made by present
spouse.
[28]


Although testimonial evidence may suffice to prove the well-founded
belief of the present spouse that the absent spouse is already dead,
in Republic v. Nolasco,
[29]
the Court warned against collusion between the
parties when they find it impossible to dissolve the marital bonds through
existing legal means. It is also the maxim that men readily believe what
they wish to be true.

In this case, the respondent failed to present a witness other
than Barangay Captain Juan Magat. The respondent even failed to present
Janeth Bautista or Nelson Abaenza or any other person from whom he
allegedly made inquiries about Lea to corroborate his testimony. On the
other hand, the respondent admitted that when he returned to the house of
his parents-in-law on February 14, 1995, his father-in-law told him that Lea
had just been there but that she left without notice.
The respondent declared that Lea left their abode on February 7, 1995
after he chided her for coming home late and for being always out of their
house, and told her that it would be better for her to go home to her parents
if she enjoyed the life of a single person. Lea, thus, left their conjugal abode
and never returned. Neither did she communicate with the respondent after
leaving the conjugal abode because of her resentment to the chastisement
she received from him barely a month after their marriage. What is so
worrisome is that, the respondent failed to make inquiries from his parents-
in-law regarding Leas whereabouts before filing his petition in the RTC. It
could have enhanced the credibility of the respondent had he made inquiries
from his parents-in-law about Leas whereabouts considering that Leas
father was the owner of Radio DYMS.

The respondent did report and seek the help of the local police
authorities and the NBI to locate Lea, but it was only an afterthought. He did
so only after the OSG filed its notice to dismiss his petition in the RTC.

In sum, the Court finds and so holds that the respondent failed to
prove that he had a well-founded belief, before he filed his petition in the
RTC, that his spouse Rosalia (Lea) Julaton was already dead.

IN LIGHT OF ALL THE FOREGOING, the petition is GRANTED. The
Decision of the Court of Appeals in CA-G.R. CV No. 73749
is REVERSED and SET ASIDE. Consequently, the Regional Trial Court of
Catbalogan, Samar, Branch 27, is ORDERED to DISMISS the respondents
petition.

SO ORDERED.















141

THIRD DIVISION

ANGELITA VALDEZ,
Petitioner,




- versus -





REPUBLIC OF THE PHILIPPINES,
Respondent.

G.R. No. 180863

Present:

YNARES-
SANTIAGO, J.,
Chairperson,
CHICO-NAZARIO,
VELASCO, JR.,
NACHURA, and
PERALTA, JJ.

Promulgated:

September 8, 2009

x------------------------------------------------------------------------------------x

DECISION

NACHURA, J.:





Before this Court is a Petition for Review
on Certiorari under Rule 45 of the Rules of Court assailing the
Decision of the Regional Trial Court (RTC) of Camiling, Tarlac dated
November 12, 2007 dismissing petitioner Angelita Valdezs petition
for the declaration of presumptive death of her husband, Sofio
Polborosa (Sofio).

The facts of the case are as follows:

Petitioner married Sofio on January 11, 1971 in Pateros,
Rizal. On December 13, 1971, petitioner gave birth to the spouses
only child, Nancy. According to petitioner, she and Sofio argued
constantly because the latter was unemployed and did not bring
home any money. In March 1972, Sofio left their conjugal dwelling.
Petitioner and their child waited for him to return but, finally, in May
1972, petitioner decided to go back to her parents home in Bancay
1
st
, Camiling, Tarlac. Three years passed without any word from
Sofio. In October 1975, Sofio showed up at Bancay 1
st
. He and
petitioner talked for several hours and they agreed to separate.
They executed a document to that effect.
[1]
That was the last time
petitioner saw him. After that, petitioner didnt hear any news of
Sofio, his whereabouts or even if he was alive or not.
[2]


Believing that Sofio was already dead, petitioner married
Virgilio Reyes on June 20, 1985.
[3]
Subsequently, however, Virgilios
application for naturalization filed with the United States
Department of Homeland Security was denied because petitioners
marriage to Sofio was subsisting.
[4]
Hence, on March 29, 2007,
petitioner filed a Petition before the RTC of Camiling, Tarlac seeking
the declaration of presumptive death of Sofio.

The RTC rendered its Decision
[5]
on November 12, 2007,
dismissing the Petition for lack of merit. The RTC held that Angelita
was not able to prove the well-grounded belief that her husband
Sofio Polborosa was already dead. It said that under Article 41 of
the Family Code, the present spouse is burdened to prove that her
spouse has been absent and that she has a well-founded belief that
the absent spouse is already dead before the present spouse may
contract a subsequent marriage. This belief, the RTC said, must be
the result of proper and honest-to-goodness inquiries and efforts to
ascertain the whereabouts of the absent spouse.

The RTC found that, by petitioners own admission, she did
not try to find her husband anymore in light of their mutual
agreement to live separately. Likewise, petitioners daughter
testified that her mother prevented her from looking for her father.
The RTC also said there is a strong possibility that Sofio is still alive,
considering that he would have been only 61 years old by then, and
people who have reached their 60s have not become increasingly
low in health and spirits, and, even assuming as true petitioners
testimony that Sofio was a chain smoker and a drunkard, there is no
evidence that he continues to drink and smoke until now.

Petitioner filed a motion for reconsideration.
[6]
She argued
that it is the Civil Code that applies in this case and not the Family
Code since petitioners marriage to Sofio was celebrated on January
11, 1971, long before the Family Code took effect. Petitioner further
argued that she had acquired a vested right under the provisions of
the Civil Code and the stricter provisions of the Family Code should
not be applied against her because Title XIV of the Civil Code, where
Articles 384 and 390 on declaration of absence and presumption of
death, respectively, can be found, was not expressly repealed by the
Family Code. To apply the stricter provisions of the Family Code will
impair the rights petitioner had acquired under the Civil Code.

The RTC denied the Motion for Reconsideration in a
Resolution dated December 10, 2007.
[7]


Petitioner now comes before this Court seeking the
reversal of the RTC Decision and Motion for Reconsideration.

In its Manifestation and Motion,
[8]
the Office of the
Solicitor General (OSG) recommended that the Court set aside the
assailed RTC Decision and grant the Petition to declare Sofio
presumptively dead. The OSG argues that the requirement of well-
founded belief under Article 41 of the Family Code is not applicable
to the instant case. It said that petitioner could not be expected to
comply with this requirement because it was not yet in existence
during her marriage to Virgilio Reyes in 1985. The OSG further
argues that before the effectivity of the Family Code, petitioner
already acquired a vested right as to the validity of her marriage to
Virgilio Reyes based on the presumed death of Sofio under the Civil
Code. This vested right and the presumption of Sofios death, the
OSG posits, could not be affected by the obligations created under
the Family Code.
[9]


Next, the OSG contends that Article 390 of the Civil Code
was not repealed by Article 41 of the Family Code.
[10]
Title XIV of the
Civil Code, the OSG said, was not one of those expressly repealed by
the Family Code. Moreover, Article 256 of the Family Code provides
that its provisions shall not be retroactively applied if they will
prejudice or impair vested or acquired rights.
[11]


The RTC Decision, insofar as it dismissed the Petition, is
affirmed. However, we must state that we are denying the Petition
on grounds different from those cited in the RTC Decision.

142

Initially, we discuss a procedural issue. Under the Rules of
Court, a party may directly appeal to this Court from a decision of
the trial court only on pure questions of law. A question of law lies,
on one hand, when the doubt or difference arises as to what the law
is on a certain set of facts; on the other hand, a question of fact
exists when the doubt or difference arises as to the truth or
falsehood of the alleged facts. Here, the facts are not disputed; the
controversy merely relates to the correct application of the law or
jurisprudence to the undisputed facts.
[12]


The RTC erred in applying the provisions of the Family Code
and holding that petitioner needed to prove a well-founded belief
that Sofio was already dead. The RTC applied Article 41 of the Family
Code, to wit:

Art. 41. A marriage contracted by any
person during subsistence of a previous marriage
shall be null and void, unless before the
celebration of the subsequent marriage, the
prior spouse had been absent for four
consecutive years and the spouse present has a
well-founded belief that the absent spouse was
already dead. In case of disappearance where
there is danger under the circumstances set
forth in the provisions of Article 391 of the Civil
Code, an absence of only two years shall be
sufficient.

For the purpose of contracting a
subsequent marriage under the preceding
paragraph, the spouse present must institute a
summary proceeding as provided in this Code for
the declaration of presumptive death of the
absentee, without prejudice to the effect of
reappearance of the absent spouse.


It is readily apparent, however, that the marriages of
petitioner to Sofio and Virgilio on January 11, 1971 and June 20,
1985, respectively, were both celebrated under the auspices of the
Civil Code.

The pertinent provision of the Civil Code is Article 83:

Art. 83. Any marriage subsequently
contracted by any person during the lifetime of
the first spouse of such person with any person
other than such first spouse shall be illegal and
void from its performance, unless:

(1) The first marriage was annulled or
dissolved; or

(2) The first spouse had been absent for
seven consecutive years at the time of the
second marriage without the spouse present
having news of the absentee being alive, of if the
absentee, though he has been absent for less
than seven years, is generally considered as dead
and believed to be so by the spouse present at
the time of contracting such subsequent
marriage, or if the absentee is presumed dead
according to Articles 390 and 391. The marriage
so contracted shall be valid in any of the three
cases until declared null and void by a
competent court.


Article 390 of the Civil Code states:

Art. 390. After an absence of seven
years, it being unknown whether or not the
absentee still lives, he shall be presumed dead
for all purposes, except for those of succession.

The absentee shall not be presumed
dead for the purpose of opening his succession
till after an absence of ten years. If he
disappeared after the age of seventy-five years,
an absence of five years shall be sufficient in
order that his succession may be opened.


The Court, on several occasions, had interpreted the
above-quoted provision in this wise:

For the purposes of the civil marriage law, it is
not necessary to have the former spouse
judicially declared an absentee. The declaration
of absence made in accordance with the
provisions of the Civil Code has for its sole
purpose to enable the taking of the necessary
precautions for the administration of the estate
of the absentee. For the celebration of civil
marriage, however, the law only requires that
the former spouse has been absent for seven
consecutive years at the time of the second
marriage, that the spouse present does not
know his or her former spouse to be living, that
such former spouse is generally reputed to be
dead and the spouse present so believes at the
time of the celebration of the marriage.
[13]



Further, the Court explained that presumption of death cannot be
the subject of court proceedings independent of the settlement of
the absentees estate.

In re Szatraw
[14]
is instructive. In that case, petitioner
contracted marriage with a Polish national in 1937. They lived
together as husband and wife for three years. Sometime in 1940,
the husband, on the pretext of visiting some friends, left the
conjugal abode with their child and never returned. After inquiring
from friends, petitioner found that her husband went
to Shanghai, China. However, friends who came from Shanghai told
her that the husband was not seen there. In 1948, petitioner filed a
petition for the declaration of presumptive death of her husband
arguing that since the latter had been absent for more than seven
years and she had not heard any news from him and about her child,
she believes that he is dead. In deciding the case, the Court said:

The petition is not for the settlement
of the estate of Nicolai Szatraw, because it does
not appear that he possessed property brought
to the marriage and because he had acquired no
property during his married life with the
143

petitioner. The rule invoked by the latter is
merely one of evidence which permits the court
to presume that a person is dead after the fact
that such person had been unheard from in
seven years had been established. This
presumption may arise and be invoked and
made in a case, either in an action or in a special
proceeding, which is tried or heard by, and
submitted for decision to, a competent
court. Independently of such an action or
special proceeding, the presumption of death
cannot be invoked, nor can it be made the
subject of an action or special proceeding. In
this case, there is no right to be enforced nor is
there a remedy prayed for by the petitioner
against her absent husband. Neither is there a
prayer for the final determination of his right or
status or for the ascertainment of a particular
fact (Hagans v. Wislizenus, 42 Phil. 880), for the
petition does not pray for a declaration that the
petitioner's husband is dead, but merely asks for
a declaration that he be presumed dead because
he had been unheard from in seven years. If
there is any pretense at securing a declaration
that the petitioner's husband is dead, such a
pretension cannot be granted because it is
unauthorized. The petition is for a declaration
that the petitioner's husband is presumptively
dead. But this declaration, even if judicially
made, would not improve the petitioner's
situation, because such a presumption is already
established by law. A judicial pronouncement to
that effect, even if final and executory, would
still be a prima facie presumption only. It is still
disputable. It is for that reason that it cannot be
the subject of a judicial pronouncement or
declaration, if it is the only question or matter
involved in a case, or upon which a competent
court has to pass. The latter must decide finally
the controversy between the parties, or
determine finally the right or status of a party or
establish finally a particular fact, out of which
certain rights and obligations arise or may arise;
and once such controversy is decided by a final
judgment, or such right or status determined, or
such particular fact established, by a final
decree, then the judgment on the subject of the
controversy, or the decree upon the right or
status of a party or upon the existence of a
particular fact, becomes res judicata, subject to
no collateral attack, except in a few rare
instances especially provided by law. It is,
therefore, clear that a judicial declaration that a
person is presumptively dead, because he had
been unheard from in seven years, being a
presumption juris tantum only, subject to
contrary proof, cannot reach the stage of
finality or become final. Proof of actual death of
the person presumed dead because he had been
unheard from in seven years, would have to be
made in another proceeding to have such
particular fact finally determined. If a judicial
decree declaring a person presumptively dead,
because he had not been heard from in seven
years, cannot become final and executory even
after the lapse of the reglementary period within
which an appeal may be taken, for such
presumption is still disputable and remains
subject to contrary proof, then a petition for
such a declaration is useless, unnecessary,
superfluous and of no benefit to the
petitioner.
[15]



In Lukban v. Republic,
[16]
petitioner Lourdes G. Lukban
contracted marriage with Francisco Chuidian on December 10, 1933.
A few days later, on December 27, Francisco left Lourdes after a
violent quarrel. She did not hear from him after that day. Her
diligent search, inquiries from his parents and friends, and search in
his last known address, proved futile. Believing her husband was
already dead since he had been absent for more than twenty years,
petitioner filed a petition in 1956 for a declaration that she is a
widow of her husband who is presumed to be dead and has no legal
impediment to contract a subsequent marriage. On the other hand,
the antecedents in Gue v. Republic
[17]
are similar to Szatraw. On
January 5, 1946, Angelina Gues husband left Manila where they
were residing and went to Shanghai, China. From that day on, he
had not been heard of, had not written to her, nor in anyway
communicated with her as to his whereabouts. Despite her efforts
and diligence, she failed to locate him. After 11 years, she asked the
court for a declaration of the presumption of death of Willian Gue,
pursuant to the provisions of Article 390 of the Civil Code of
the Philippines.

In both cases, the Court reiterated its ruling in Szatraw. It
held that a petition for judicial declaration that petitioner's husband
is presumed to be dead cannot be entertained because it is not
authorized by law.
[18]


From the foregoing, it can be gleaned that, under the Civil
Code, the presumption of death is established by law
[19]
and no
court declaration is needed for the presumption to arise. Since
death is presumed to have taken place by the seventh year of
absence,
[20]
Sofio is to be presumed dead starting October 1982.

Consequently, at the time of petitioners marriage to
Virgilio, there existed no impediment to petitioners capacity to
marry, and the marriage is valid under paragraph 2 of Article 83 of
the Civil Code.

Further, considering that it is the Civil Code that applies,
proof of well-founded belief is not required. Petitioner could not
have been expected to comply with this requirement since the
Family Code was not yet in effect at the time of her marriage to
Virgilio. The enactment of the Family Code in 1988 does not change
this conclusion. The Family Code itself states:

Art. 256. This Code shall have retroactive
effect insofar as it does not prejudice or impair
vested or acquired rights in accordance with the
Civil Code or other laws.


To retroactively apply the provisions of the Family Code
requiring petitioner to exhibit well-founded belief will, ultimately,
result in the invalidation of her second marriage, which was valid at
144

the time it was celebrated. Such a situation would be untenable and
would go against the objectives that the Family Code wishes to
achieve.

In sum, we hold that the Petition must be dismissed since no
decree on the presumption of Sofios death can be granted under
the Civil Code, the same presumption having arisen by operation of
law. However, we declare that petitioner was capacitated to marry
Virgilio at the time their marriage was celebrated in 1985 and,
therefore, the said marriage is legal and valid.

WHEREFORE, the foregoing premises considered, the
Petition is DENIED.

SO ORDERED.