G.R. No.

138509             July 31, 2000

IMELDA MARBELLA-BOBIS, petitioner,
vs.
ISAGANI D. BOBIS, respondent.

YNARES-SANTIAGO, J.:

On October 21, 1985, respondent contracted a first marriage with one Maria Dulce B. Javier. Without
said marriage having been annulled, nullified or terminated, the same respondent contracted a
second marriage with petitioner Imelda Marbella-Bobis on January 25, 1996 and allegedly a third
marriage with a certain Julia Sally Hernandez. Based on petitioner's complaint-affidavit, an
information for bigamy was filed against respondent on February 25, 1998, which was docketed as
Criminal Case No. Q98-75611 of the Regional Trial Court, Branch 226, Quezon City. Sometime
thereafter, respondent initiated a civil action for the judicial declaration of absolute nullity of his first
marriage on the ground that it was celebrated without a marriage license. Respondent then filed a
motion to suspend the proceedings in the criminal case for bigamy invoking the pending civil case
for nullity of the first marriage as a prejudicial question to the criminal case. The trial judge granted
the motion to suspend the criminal case in an Order dated December 29, 1998.1 Petitioner filed a
motion for reconsideration, but the same was denied.

Hence, this petition for review on certiorari. Petitioner argues that respondent should have first
obtained a judicial declaration of nullity of his first marriage before entering into the second marriage,
inasmuch as the alleged prejudicial question justifying suspension of the bigamy case is no longer a
legal truism pursuant to Article 40 of the Family Code. 2

The issue to be resolved in this petition is whether the subsequent filing of a civil action for
declaration of nullity of a previous marriage constitutes a prejudicial question to a criminal case for
bigamy.

A prejudicial question is one which arises in a case the resolution of which is a logical antecedent of
the issue involved therein. It is a question based on a fact distinct and separate from the crime but
3 

so intimately connected with it that it determines the guilt or innocence of the accused. It must
4 

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. Consequently, the defense must involve an issue similar or intimately related to the
5 

same issue raised in the criminal action and its resolution determinative of whether or not the latter
action may proceed. Its two essential elements are:
6  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. Whether or not the first marriage was void for lack of a license is
8 

a matter of defense because there is still no judicial declaration of its nullity at the time the second
marriage was contracted. It should be remembered that bigamy can successfully be prosecuted
provided all its elements concur – two of which are a previous marriage and a subsequent marriage
which would have been valid had it not been for the existence at the material time of the first
marriage. 9

In the case at bar, respondent's clear intent is to obtain a judicial declaration of nullity of his first
marriage and thereafter to invoke that very same judgment to prevent his prosecution for bigamy. He
cannot have his cake and eat it too. Otherwise, all that an adventurous bigamist has to do is to
disregard Article 40 of the Family Code, contract a subsequent marriage and escape a bigamy
charge by simply claiming that the first marriage is void and that the subsequent marriage is equally
void for lack of a prior judicial declaration of nullity of the first. A party may even enter into a marriage
aware of the absence of a requisite - usually the marriage license - and thereafter contract a
subsequent marriage without obtaining a declaration of nullity of the first on the assumption that the
first marriage is void. Such scenario would render nugatory the provisions on bigamy. As succinctly
held in Landicho v. Relova: 10

(P)arties to a marriage should not be permitted to judge for themselves its nullity, only
competent courts having such authority. Prior to such declaration of nullity, the validity of the
first marriage is beyond question. A party who contracts a second marriage then assumes
the risk of being prosecuted for bigamy.

Respondent alleges that the first marriage in the case before us was void for lack of a marriage
license. Petitioner, on the other hand, argues that her marriage to respondent was exempt from the
requirement of a marriage license. More specifically, petitioner claims that prior to their marriage,
they had already attained the age of majority and had been living together as husband and wife for
at least five years. The issue in this case is limited to the existence of a prejudicial question, and we
11 

are not called upon to resolve the validity of the first marriage. Be that as it may, suffice it to state
that the Civil Code, under which the first marriage was celebrated, provides that "every intendment
of law or fact leans toward the validity of marriage, the indissolubility of the marriage bonds." []
12 

Hence, parties should not be permitted to judge for themselves the nullity of their marriage, for the
same must be submitted to the determination of competent courts. Only when the nullity of the
marriage is so declared can it be held as void, and so long as there is no such declaration the
presumption is that the marriage exists. No matter how obvious, manifest or patent the absence of
13 

an element is, the intervention of the courts must always be resorted to. That is why Article 40 of the
Family Code requires a "final judgment," which only the courts can render. Thus, as ruled
in Landicho v. Relova, he who contracts a second marriage before the judicial declaration of nullity
14 

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. This ruling applies here by analogy since both crimes
15 

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. The contracting of a marriage knowing that the requirements of the law have not been
16 

complied with or that the marriage is in disregard of a legal impediment is an act penalized by the
Revised Penal Code. The legality of a marriage is a matter of law and every person is presumed to
17 

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, but that is a matter that can be raised in the trial of the bigamy
18 

case. In the meantime, it should be stressed that not every defense raised in the civil action may be
used as a prejudicial question to obtain the suspension of the criminal action. The lower court,
therefore, erred in suspending the criminal case for bigamy. Moreover, when respondent was
indicted for bigamy, the fact that he entered into two marriage ceremonies appeared indubitable. It
was only after he was sued by petitioner for bigamy that he thought of seeking a judicial declaration
of nullity of his first marriage. The obvious intent, therefore, is that respondent merely resorted to the
civil action as a potential prejudicial question for the purpose of frustrating or delaying his criminal
prosecution. As has been discussed above, this cannot be done. 1awphi1

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. The reason
19 

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
20 

the civil action for nullity would not erase the fact that respondent entered into a second marriage
during the subsistence of a first marriage. Thus, a decision in the civil case is not essential to the
determination of the criminal charge. It is, therefore, not a prejudicial question. As stated above,
respondent cannot be permitted to use his own malfeasance to defeat the criminal action against
him.21

WHEREFORE, the petition is GRANTED. The order dated December 29, 1998 of the Regional Trial
Court, Branch 226 of Quezon City is REVERSED and SET ASIDE and the trial court is ordered to
IMMEDIATELY proceed with Criminal Case No. Q98-75611.

SO ORDERED.
 G.R. No. 137110               August 1, 2000

VINCENT PAUL G. MERCADO a.k.a. VINCENT G. MERCADO, petitioner,

vs.
CONSUELO TAN, respondent.

DECISION

PANGANIBAN, J.:

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

The Case

Before us is a Petition for Review on Certiorari assailing the July 14, 1998 Decision of the Court of
Appeals (CA) in CA-GR CR No. 19830 and its January 4, 1999 Resolution denying reconsideration.
1 

The assailed Decision affirmed the ruling of the Regional Trial Court (RTC) of Bacolod City in
Criminal Case No. 13848, which convicted herein petitioner of bigamy as follows:

"WHEREFORE, finding the guilt of accused Dr. Vincent Paul G. Mercado a.k.a. Dr. Vincent G.
Mercado of the crime of Bigamy punishable under Article 349 of the Revised Penal Code to have
been proven beyond reasonable doubt, [the court hereby renders] judgment imposing upon him a
prison term of three (3) years, four (4) months and fifteen (15) days of prision correccional, as
minimum of his indeterminate sentence, to eight (8) years and twenty-one (21) days of prision
mayor, as maximum, plus accessory penalties provided by law.

Costs against accused." 2

The Facts

The facts are quoted by Court of Appeals (CA) from the trial court’s judgment, as follows: "From the
evidence adduced by the parties, there is no dispute that accused Dr. Vincent Mercado and
complainant Ma. Consuelo Tan got married on June 27, 1991 before MTCC-Bacolod City Br. 7
Judge Gorgonio J. Ibañez [by reason of] which a Marriage Contract was duly executed and signed
by the parties. As entered in said document, the status of accused was ‘single’. There is no dispute
either that at the time of the celebration of the wedding with complainant, accused was actually a
married man, having been in lawful wedlock with Ma. Thelma Oliva in a marriage ceremony
solemnized on April 10, 1976 by Judge Leonardo B. Cañares, CFI-Br. XIV, Cebu City per Marriage
Certificate issued in connection therewith, which matrimony was further blessed by Rev. Father
Arthur Baur on October 10, 1976 in religious rites at the Sacred Heart Church, Cebu City. In the
same manner, the civil marriage between accused and complainant was confirmed in a church
ceremony on June 29, 1991 officiated by Msgr. Victorino A. Rivas, Judicial Vicar, Diocese of
Bacolod City. Both marriages were consummated when out of the first consortium, Ma. Thelma Oliva
bore accused two children, while a child, Vincent Paul, Jr. was sired by accused with complainant
Ma. Consuelo Tan.
"On October 5, 1992, a letter-complaint for bigamy was filed by complainant through counsel with
the City Prosecutor of Bacolod City, which eventually resulted [in] the institution of the present case
before this Court against said accused, Dr. Vincent G. Mercado, on March 1, 1993 in an Information
dated January 22, 1993.

"On November 13, 1992, or more than a month after the bigamy case was lodged in the
Prosecutor’s Office, accused filed an action for Declaration of Nullity of Marriage against Ma. Thelma
V. Oliva in RTC-Br. 22, Cebu City, and in a Decision dated May 6, 1993 the marriage between
Vincent G. Mercado and Ma. Thelma V. Oliva was declared null and void.

"Accused is charged [with] bigamy under Article 349 of the Revised Penal Code for having
contracted a second marriage with herein complainant Ma. Consuelo Tan on June 27, 1991 when at
that time he was previously united in lawful marriage with Ma. Thelma V. Oliva on April 10, 1976 at
Cebu City, without said first marriage having been legally dissolved. As shown by the evidence and
admitted by accused, all the essential elements of the crime are present, namely: (a) that the
offender has been previously legally married; (2) that the first marriage has not been legally
dissolved or in case the spouse is absent, the absent spouse could not yet be presumed dead
according to the Civil Code; (3) that he contract[ed] a second or subsequent marriage; and (4) that
the second or subsequent marriage ha[d] all the essential requisites for validity. x x x

"While acknowledging the existence of the two marriage[s], accused posited the defense that his
previous marriage ha[d] been judicially declared null and void and that the private complainant had
knowledge of the first marriage of accused.

"It is an admitted fact that when the second marriage was entered into with Ma. Consuelo Tan on
June 27, 1991, accused’s prior marriage with Ma. Thelma V. Oliva was subsisting, no judicial action
having yet been initiated or any judicial declaration obtained as to the nullity of such prior marriage
with Ma. Thelma V. Oliva. Since no declaration of the nullity of his first marriage ha[d] yet been made
at the time of his second marriage, it is clear that accused was a married man when he contracted
such second marriage with complainant on June 27, 1991. He was still at the time validly married to
his first wife."
3

Ruling of the Court of Appeals

Agreeing with the lower court, the Court of Appeals stated:

"Under Article 40 of the Family Code, ‘the absolute nullity of a previous marriage may be invoked for
purposes of remarriage on the basis solely of a final judgment declaring such previous marriage
void.’ But here, the final judgment declaring null and void accused’s previous marriage came not
before the celebration of the second marriage, but after, when the case for bigamy against accused
was already tried in court. And what constitutes the crime of bigamy is the act of any person who
shall contract a second subsequent marriage ‘before’ the former marriage has been legally
dissolved."4

Hence, this Petition. 5

The Issues

In his Memorandum, petitioner raises the following issues:

"A
 Whether or not the element of previous legal marriage is present in order to convict
petitioner.

"B

Whether or not a liberal interpretation in favor of petitioner of Article 349 of the Revised
Penal Code punishing bigamy, in relation to Articles 36 and 40 of the Family Code, negates
the guilt of petitioner.

"C

Whether or not petitioner is entitled to an acquittal on the basis of reasonable doubt." 6

The Court’s Ruling

The Petition is not meritorious.

Main Issue:Effect of Nullity of Previous Marriage

Petitioner was convicted of bigamy under Article 349 of the Revised Penal Code, which provides:

"The penalty of prision mayor shall be imposed upon any person who shall contract a second or
subsequent marriage before the former marriage has been legally dissolved, or before the absent
spouse has been declared presumptively dead by means of a judgment rendered in the proper
proceedings."

The elements of this crime are as follows:

"1. That the offender has been legally married;

2. That the marriage has not been legally dissolved or, in case his or her spouse is absent,
the absent spouse could not yet be presumed dead according to the Civil Code;

3. That he contracts a second or subsequent marriage;

4. That the second or subsequent marriage has all the essential requisites for validity." 7

When the Information was filed on January 22, 1993, all the elements of bigamy were present. It is
undisputed that petitioner married Thelma G. Oliva on April 10, 1976 in Cebu City. While that
marriage was still subsisting, he contracted a second marriage, this time with Respondent Ma.
Consuelo Tan who subsequently filed the Complaint for bigamy.

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. Thus, he concludes that there is no first marriage to speak
8 

of. Petitioner also quotes the commentaries of former Justice Luis Reyes that "it is now settled that if
9 

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." In People v. Mendoza, a bigamy case involving
10  11 

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, which involved substantially the same facts.
12 

But in subsequent cases, the Court impressed the need for a judicial declaration of nullity. In Vda de
Consuegra v. GSIS, Jose Consuegra married for the second time while the first marriage was still
13 

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, however, the Court again held that judicial declaration of nullity of a void
14 

marriage was not necessary. In that case, a man married twice. In his Death Certificate, his second
wife was named as his surviving spouse. The first wife then filed a Petition to correct the said entry
in the Death Certificate. The Court ruled in favor of the first wife, holding that "the second marriage
that he contracted with private respondent during the lifetime of the first spouse is null and void from
the beginning and of no force and effect. No judicial decree is necessary to establish the invalidity of
a void marriage."

In Wiegel v. Sempio-Diy, the Court stressed the need for such declaration. In that case, Karl Heinz
15 

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, the Court reverted to the ruling in People v. Mendoza, holding that
16 

there was no need for such declaration of nullity.

In Domingo v. CA, the issue raised was whether a judicial declaration of nullity was still necessary
17 

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, which involved an
21 

administrative Complaint against a lawyer for marrying twice. In rejecting the lawyer’s argument that
he was free to enter into a second marriage because the first one was void ab initio, the Court ruled:
"for purposes of determining whether a person is legally free to contract a second marriage, a
judicial declaration that the first marriage was null and void ab initio is essential." The Court further
noted that the said rule was "cast into statutory form by Article 40 of the Family Code." Significantly,
it observed that the second marriage, contracted without a judicial declaration that the first marriage
was void, was "bigamous and criminal in character."

Moreover, Justice Reyes, an authority in Criminal Law whose earlier work was cited by petitioner,
changed his view on the subject in view of Article 40 of the Family Code and wrote in 1993 that a
person must first obtain a judicial declaration of the nullity of a void marriage before contracting a
subsequent marriage: 22

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

In the instant case, petitioner contracted a second marriage although there was yet no judicial
declaration of nullity of his first marriage. In fact, he instituted the Petition to have the first marriage
declared void only after complainant had filed a letter-complaint charging him with bigamy. By
contracting a second marriage while the first was still subsisting, he committed the acts punishable
under Article 349 of the Revised Penal Code.

That he subsequently obtained a judicial declaration of the nullity of the first marriage was
immaterial. To repeat, the crime had already been consummated by then. Moreover, his view
effectively encourages delay in the prosecution of bigamy cases; an accused could simply file a
petition to declare his previous marriage void and invoke the pendency of that action as a prejudicial
question in the criminal case. We cannot allow that.

Under the circumstances of the present case, he is guilty of the charge against him.

Damages

In her Memorandum, respondent prays that the Court set aside the ruling of the Court of Appeals
insofar as it denied her claim of damages and attorney’s fees. 23

Her prayer has no merit. She did not appeal the ruling of the CA against her; hence, she cannot
obtain affirmative relief from this Court. In any event, we find no reason to reverse or set aside the
24 

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.
 G.R. No. 150758             February 18, 2004

VERONICO TENEBRO, petitioner
vs.
THE HONORABLE COURT OF APPEALS, respondent.

DECISION

YNARES-SANTIAGO, J.:

We are called on to decide the novel issue concerning the effect of the judicial declaration of the
nullity of a second or subsequent marriage, on the ground of psychological incapacity, on an
individual’s criminal liability for bigamy. We hold that the subsequent judicial declaration of nullity of
marriage on the ground of psychological incapacity does not retroact to the date of the celebration of
the marriage insofar as the Philippines’ penal laws are concerned. As such, an individual who
contracts a second or subsequent marriage during the subsistence of a valid marriage is criminally
liable for bigamy, notwithstanding the subsequent declaration that the second marriage is void ab
initio on the ground of psychological incapacity.

Petitioner in this case, Veronico Tenebro, contracted marriage with private complainant Leticia
Ancajas on April 10, 1990. The two were wed by Judge Alfredo B. Perez, Jr. of the City Trial Court of
Lapu-lapu City. Tenebro and Ancajas lived together continuously and without interruption until the
latter part of 1991, when Tenebro informed Ancajas that he had been previously married to a certain
Hilda Villareyes on November 10, 1986. Tenebro showed Ancajas a photocopy of a marriage
contract between him and Villareyes. Invoking this previous marriage, petitioner thereafter left the
conjugal dwelling which he shared with Ancajas, stating that he was going to cohabit with Villareyes.1

On January 25, 1993, petitioner contracted yet another marriage, this one with a certain Nilda
Villegas, before Judge German Lee, Jr. of the Regional Trial Court of Cebu City, Branch 15.2 When
Ancajas learned of this third marriage, she verified from Villareyes whether the latter was indeed
married to petitioner. In a handwritten letter,3 Villareyes confirmed that petitioner, Veronico Tenebro,
was indeed her husband.

Ancajas thereafter filed a complaint for bigamy against petitioner.4 The Information,5 which was
docketed as Criminal Case No. 013095-L, reads:

That on the 10th day of April 1990, in the City of Lapu-lapu, Philippines, and within the jurisdiction of
this Honorable Court, the aforenamed accused, having been previously united in lawful marriage
with Hilda Villareyes, and without the said marriage having been legally dissolved, did then and there
willfully, unlawfully and feloniously contract a second marriage with LETICIA ANCAJAS, which
second or subsequent marriage of the accused has all the essential requisites for validity were it not
for the subsisting first marriage.

CONTRARY TO LAW.

When arraigned, petitioner entered a plea of "not guilty".6

During the trial, petitioner admitted having cohabited with Villareyes from 1984-1988, with whom he
sired two children. However, he denied that he and Villareyes were validly married to each other,
claiming that no marriage ceremony took place to solemnize their union.7 He alleged that he signed
a marriage contract merely to enable her to get the allotment from his office in connection with his
work as a seaman.8 He further testified that he requested his brother to verify from the Civil Register
in Manila whether there was any marriage at all between him and Villareyes, but there was no record
of said marriage.9

On November 10, 1997, the Regional Trial Court of Lapu-lapu City, Branch 54, rendered a decision
finding the accused guilty beyond reasonable doubt of the crime of bigamy under Article 349 of the
Revised Penal Code, and sentencing him to four (4) years and two (2) months of prision
correccional, as minimum, to eight (8) years and one (1) day of prision mayor, as maximum.10 On
appeal, the Court of Appeals affirmed the decision of the trial court. Petitioner’s motion for
reconsideration was denied for lack of merit.

Hence, the instant petition for review on the following assignment of errors:

I. THE HONORABLE COURT OF APPEALS GRAVELY ERRED, AND THIS ERROR IS

CORRECTIBLE IN THIS APPEAL – WHEN IT AFFIRMED THE DECISION OF THE
HONORABLE COURT A QUO CONVICTING THE ACCUSED FOR (sic) THE CRIME OF
BIGAMY, DESPITE THE NON-EXISTENCE OF THE FIRST MARRIAGE AND
INSUFFICIENCY OF EVIDENCE.

II. THE COURT ERRED IN CONVICTING THE ACCUSED FOR (sic) THE CRIME OF
BIGAMY DESPITE CLEAR PROOF THAT THE MARRIAGE BETWEEN THE ACCUSED
AND PRIVATE COMPLAINANT HAD BEEN DECLARED NULL AND VOID AB INITIO AND
WITHOUT LEGAL FORCE AND EFFECT.11

After a careful review of the evidence on record, we find no cogent reason to disturb the assailed
judgment.

Under Article 349 of the Revised Penal Code, the elements of the crime of Bigamy are:

(1) that the offender has been legally married;

(2) that the first marriage has not been legally dissolved or, in case his or her spouse is
absent, the absent spouse could not yet be presumed dead according to the Civil Code;

(3) that he contracts a second or subsequent marriage; and

(4) that the second or subsequent marriage has all the essential requisites for validity.12

Petitioner’s assignment of errors presents a two-tiered defense, in which he (1) denies the existence
of his first marriage to Villareyes, and (2) argues that the declaration of the nullity of the second
marriage on the ground of psychological incapacity, which is an alleged indicator that his marriage to
Ancajas lacks the essential requisites for validity, retroacts to the date on which the second marriage
was celebrated.13 Hence, petitioner argues that all four of the elements of the crime of bigamy are
absent, and prays for his acquittal.14

Petitioner’s defense must fail on both counts.

First, the prosecution presented sufficient evidence, both documentary and oral, to prove the
existence of the first marriage between petitioner and Villareyes. Documentary evidence presented
was in the form of: (1) a copy of a marriage contract between Tenebro and Villareyes, dated
November 10, 1986, which, as seen on the document, was solemnized at the Manila City Hall before
Rev. Julieto Torres, a Minister of the Gospel, and certified to by the Office of the Civil Registrar of
Manila;15 and (2) a handwritten letter from Villareyes to Ancajas dated July 12, 1994, informing
Ancajas that Villareyes and Tenebro were legally married.16

To assail the veracity of the marriage contract, petitioner presented (1) a certification issued by the
National Statistics Office dated October 7, 1995;17 and (2) a certification issued by the City Civil
Registry of Manila, dated February 3, 1997.18 Both these documents attest that the respective
issuing offices have no record of a marriage celebrated between Veronico B. Tenebro and Hilda B.
Villareyes on November 10, 1986.

To our mind, the documents presented by the defense cannot adequately assail the marriage
contract, which in itself would already have been sufficient to establish the existence of a marriage
between Tenebro and Villareyes.

All three of these documents fall in the category of public documents, and the Rules of Court
provisions relevant to public documents are applicable to all. Pertinent to the marriage contract,
Section 7 of Rule 130 of the Rules of Court reads as follows:

Sec. 7. Evidence admissible when original document is a public record. – When the original of a
document is in the custody of a public officer or is recorded in a public office, its contents may be
proved by a certified copy issued by the public officer in custody thereof (Emphasis ours).

This being the case, the certified copy of the marriage contract, issued by a public officer in custody
thereof, was admissible as the best evidence of its contents. The marriage contract plainly indicates
that a marriage was celebrated between petitioner and Villareyes on November 10, 1986, and it
should be accorded the full faith and credence given to public documents.

Moreover, an examination of the wordings of the certification issued by the National Statistics Office
on October 7, 1995 and that issued by the City Civil Registry of Manila on February 3, 1997 would
plainly show that neither document attests as a positive fact that there was no marriage celebrated
between Veronico B. Tenebro and Hilda B. Villareyes on November 10, 1986. Rather, the
documents merely attest that the respective issuing offices have no record of such a marriage.
Documentary evidence as to the absence of a record is quite different from documentary evidence
as to the absence of a marriage ceremony, or documentary evidence as to the invalidity of the
marriage between Tenebro and Villareyes.

The marriage contract presented by the prosecution serves as positive evidence as to the existence
of the marriage between Tenebro and Villareyes, which should be given greater credence than
documents testifying merely as to absence of any record of the marriage, especially considering that
there is absolutely no requirement in the law that a marriage contract needs to be submitted to the
civil registrar as a condition precedent for the validity of a marriage. The mere fact that no record of a
marriage exists does not invalidate the marriage, provided all requisites for its validity are
present.19 There is no evidence presented by the defense that would indicate that the marriage
between Tenebro and Villareyes lacked any requisite for validity, apart from the self-serving
testimony of the accused himself. Balanced against this testimony are Villareyes’ letter, Ancajas’
testimony that petitioner informed her of the existence of the valid first marriage, and petitioner’s own
conduct, which would all tend to indicate that the first marriage had all the requisites for validity.

Finally, although the accused claims that he took steps to verify the non-existence of the first
marriage to Villareyes by requesting his brother to validate such purported non-existence, it is
significant to note that the certifications issued by the National Statistics Office and the City Civil
Registry of Manila are dated October 7, 1995 and February 3, 1997, respectively. Both documents,
therefore, are dated after the accused’s marriage to his second wife, private respondent in this case.

As such, this Court rules that there was sufficient evidence presented by the prosecution to prove
the first and second requisites for the crime of bigamy.

The second tier of petitioner’s defense hinges on the effects of the subsequent judicial
declaration20 of the nullity of the second marriage on the ground of psychological incapacity.

Petitioner argues that this subsequent judicial declaration retroacts to the date of the celebration of
the marriage to Ancajas. As such, he argues that, since his marriage to Ancajas was subsequently
declared void ab initio, the crime of bigamy was not committed.21

This argument is not impressed with merit.

Petitioner makes much of the judicial declaration of the nullity of the second marriage on the ground
of psychological incapacity, invoking Article 36 of the Family Code. What petitioner fails to realize is
that a declaration of the nullity of the second marriage on the ground of psychological incapacity is of
absolutely no moment insofar as the State’s penal laws are concerned.

As a second or subsequent marriage contracted during the subsistence of petitioner’s valid marriage
to Villareyes, petitioner’s marriage to Ancajas would be null and void ab initio completely regardless
of petitioner’s psychological capacity or incapacity.22 Since a marriage contracted during the
subsistence of a valid marriage is automatically void, the nullity of this second marriage is not per se
an argument for the avoidance of criminal liability for bigamy. Pertinently, Article 349 of the Revised
Penal Code criminalizes "any person who shall contract a second or subsequent marriage before the
former marriage has been legally dissolved, or before the absent spouse has been declared
presumptively dead by means of a judgment rendered in the proper proceedings". A plain reading of
the law, therefore, would indicate that the provision penalizes the mere act of contracting a second
or a subsequent marriage during the subsistence of a valid marriage.

Thus, as soon as the second marriage to Ancajas was celebrated on April 10, 1990, during the
subsistence of the valid first marriage, the crime of bigamy had already been consummated. To our
mind, there is no cogent reason for distinguishing between a subsequent marriage that is null and
void purely because it is a second or subsequent marriage, and a subsequent marriage that is null
and void on the ground of psychological incapacity, at least insofar as criminal liability for bigamy is
concerned. The State’s penal laws protecting the institution of marriage are in recognition of the
sacrosanct character of this special contract between spouses, and punish an individual’s deliberate
disregard of the permanent character of the special bond between spouses, which petitioner has
undoubtedly done.

Moreover, the declaration of the nullity of the second marriage on the ground of psychological
incapacity is not an indicator that petitioner’s marriage to Ancajas lacks the essential requisites for
validity. The requisites for the validity of a marriage are classified by the Family Code into essential
(legal capacity of the contracting parties and their consent freely given in the presence of the
solemnizing officer)23 and formal (authority of the solemnizing officer, marriage license, and marriage
ceremony wherein the parties personally declare their agreement to marry before the solemnizing
officer in the presence of at least two witnesses).24 Under Article 5 of the Family Code, any male or
female of the age of eighteen years or upwards not under any of the impediments mentioned in
Articles 3725 and 3826 may contract marriage.27
In this case, all the essential and formal requisites for the validity of marriage were satisfied by
petitioner and Ancajas. Both were over eighteen years of age, and they voluntarily contracted the
second marriage with the required license before Judge Alfredo B. Perez, Jr. of the City Trial Court
of Lapu-lapu City, in the presence of at least two witnesses.

Although the judicial declaration of the nullity of a marriage on the ground of psychological incapacity
retroacts to the date of the celebration of the marriage insofar as the vinculum between the spouses
is concerned, it is significant to note that said marriage is not without legal effects. Among these
effects is that children conceived or born before the judgment of absolute nullity of the marriage shall
be considered legitimate.28 There is therefore a recognition written into the law itself that such a
marriage, although void ab initio, may still produce legal consequences. Among these legal
consequences is incurring criminal liability for bigamy. To hold otherwise would render the State’s
penal laws on bigamy completely nugatory, and allow individuals to deliberately ensure that each
marital contract be flawed in some manner, and to thus escape the consequences of contracting
multiple marriages, while beguiling throngs of hapless women with the promise of futurity and
commitment.

As such, we rule that the third and fourth requisites for the crime of bigamy are present in this case,
and affirm the judgment of the Court of Appeals.

As a final point, we note that based on the evidence on record, petitioner contracted marriage a third
time, while his marriages to Villareyes and Ancajas were both still subsisting. Although this is
irrelevant in the determination of the accused’s guilt for purposes of this particular case, the act of
the accused displays a deliberate disregard for the sanctity of marriage, and the State does not look
kindly on such activities. Marriage is a special contract, the key characteristic of which is its
permanence. When an individual manifests a deliberate pattern of flouting the foundation of the
State’s basic social institution, the State’s criminal laws on bigamy step in.

Under Article 349 of the Revised Penal Code, as amended, the penalty for the crime of bigamy is
prision mayor, which has a duration of six (6) years and one (1) day to twelve (12) years. There
being neither aggravating nor mitigating circumstance, the same shall be imposed in its medium
period. Applying the Indeterminate Sentence Law, petitioner shall be entitled to a minimum term, to
be taken from the penalty next lower in degree, i.e., prision correccional which has a duration of six
(6) months and one (1) day to six (6) years. Hence, the Court of Appeals correctly affirmed the
decision of the trial court which sentenced petitioner to suffer an indeterminate penalty of four (4)
years and two (2) months of prision correccional, as minimum, to eight (8) years and one (1) day of
prision mayor, as maximum.

WHEREFORE, in view of all the foregoing, the instant petition for review is DENIED. The assailed
decision of the Court of Appeals in CA-G.R. CR No. 21636, convicting petitioner Veronico Tenebro
of the crime of Bigamy and sentencing him to suffer the indeterminate penalty of four (4) years and
two (2) months of prision correccional, as minimum, to eight (8) years and one (1) day of prision
mayor, as maximum, is AFFIRMED in toto.

SO ORDERED.
 G.R. No. 164435               September 29, 2009

VICTORIA S. JARILLO, Petitioner,
vs.
PEOPLE OF THE PHILIPPINES, Respondent.

DECISION

DEL CASTILLO, J.:

This resolves the Petition for Review on Certiorari under Rule 45 of the Rules of Court, praying that
the Decision1 of the Court of Appeals (CA), dated July 21, 2003, and its Resolution2 dated July 8,
2004, be reversed and set aside.

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

INFORMATION

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

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

Contrary to law.

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

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

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

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

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

On April 16, 1995, appellant and Emmanuel Uy exchanged marital vows anew in a church wedding
in Manila (Exh. E).
In 1999, Emmanuel Uy filed against the appellant Civil Case No. 99-93582 for annulment of
marriage before the Regional Trial Court of Manila.

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

xxxx

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

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

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

Accordingly, said accused is hereby sentenced to suffer an indeterminate penalty of SIX (6) YEARS
of prision correccional, as minimum, to TEN (10) YEARS of prision mayor, as maximum.

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

Costs against the accused.

The motion for reconsideration was likewise denied by the same court in that assailed Order dated 2
August 2001.3

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

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

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

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

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

V.2. THE COURT OF APPEALS COMMITTED REVERSIBLE ERROR IN AFFIRMING THE

CONVICTION OF PETITIONER FOR THE CRIME OF BIGAMY DESPITE THE SUPERVENING
PROOF THAT THE FIRST TWO MARRIAGES OF PETITIONER TO ALOCILLO HAD BEEN
DECLARED BY FINAL JUDGMENT NULL AND VOID AB INITIO.

V.3. THE COURT OF APPEALS COMMITTED REVERSIBLE ERROR IN NOT CONSIDERING

THAT THERE IS A PENDING ANNULMENT OF MARRIAGE AT THE REGIONAL TRIAL COURT
BRANCH 38 BETWEEN EMMANUEL SANTOS AND VICTORIA S. JARILLO.

V.4. THE COURT OF APPEALS COMMITTED REVERSIBLE ERROR IN NOT CONSIDERING

THAT THE INSTANT CASE OF BIGAMY HAD ALREADY PRESCRIBED.

V.5. THE COURT OF APPEALS COMMITTED REVERSIBLE ERROR IN NOT CONSIDERING

THAT THE MARRIAGE OF VICTORIA JARILLO AND EMMANUEL SANTOS UY HAS NO VALID
MARRIAGE LICENSE.

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

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

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

xxxx

x x x The reason is that, without a judicial declaration of its nullity, the first marriage is presumed to
be subsisting. In the case at bar, respondent was for all legal intents and purposes regarded as a
married man at the time he contracted his second marriage with petitioner. Against this legal
backdrop, any decision in the civil action for nullity would not erase the fact that respondent entered
into a second marriage during the subsistence of a first marriage. Thus, a decision in the civil case is
not essential to the determination of the criminal charge. It is, therefore, not a prejudicial question. x
x x7

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

The subsequent judicial declaration of the nullity of the first marriage was immaterial because prior
to the declaration of nullity, the crime had already been consummated. Moreover, petitioner’s
assertion would only delay the prosecution of bigamy cases considering that an accused could
simply file a petition to declare his previous marriage void and invoke the pendency of that action as
a prejudicial question in the criminal case. We cannot allow that.

The outcome of the civil case for annulment of petitioner’s marriage to [private complainant] had no
bearing upon the determination of petitioner’s innocence or guilt in the criminal case for bigamy,
because all that is required for the charge of bigamy to prosper is that the first marriage be
subsisting at the time the second marriage is contracted.

Thus, under the law, a marriage, even one which is void or voidable, shall be deemed valid until
declared otherwise in a judicial proceeding. In this case, even if petitioner eventually obtained a
declaration that his first marriage was void ab initio, the point is, both the first and the second
marriage were subsisting before the first marriage was annulled.9

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

Petitioner’s defense of prescription is likewise doomed to fail.

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

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

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

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

As ruled in Sermonia v. Court of Appeals,14 "the prescriptive period for the crime of bigamy should be
counted only from the day on which the said crime was discovered by the offended party, the
authorities or their [agents]," as opposed to being counted from the date of registration of the
bigamous marriage.15 Since petitioner failed to prove with certainty that the period of prescription
began to run as of 1978, her defense is, therefore, ineffectual. 1avvphi1

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

The Indeterminate Sentence Law provides that the accused shall be sentenced to an indeterminate
penalty, the maximum term of which shall be that which, in view of the attending circumstances,
could be properly imposed under the Revised Penal Code, and the minimum of which shall be within
the range of the penalty next lower than that prescribed by the Code for the offense, without first
considering any modifying circumstance attendant to the commission of the crime. The
Indeterminate Sentence Law leaves it entirely within the sound discretion of the court to determine
the minimum penalty, as long as it is anywhere within the range of the penalty next lower without any
reference to the periods into which it might be subdivided. The modifying circumstances are
considered only in the imposition of the maximum term of the indeterminate sentence.16

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

However, for humanitarian purposes, and considering that petitioner’s marriage to Alocillo has after
all been declared by final judgment17 to be void ab initio on account of the latter’s psychological
incapacity, by reason of which, petitioner was subjected to manipulative abuse, the Court deems it
proper to reduce the penalty imposed by the lower courts. Thus, petitioner should be sentenced to
suffer an indeterminate penalty of imprisonment from Two (2) years, Four (4) months and One (1)
day of prision correccional, as minimum, to 8 years and 1 day of prision mayor, as maximum.

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

SO ORDERED.
 G.R. No. 183824               December 8, 2010

MYRNA P. ANTONE, Petitioner,
vs.
LEO R. BERONILLA, Respondent.

DECISION

PEREZ, J.:

Before us is a petition for review on certiorari under Rule 45 of the Rules of Court seeking to nullify
and set aside the issuances of the Court of Appeals in CA-G.R. SP No. 102834, to wit: (a) the
Resolution1 dated 29 April 2008 dismissing the petition for certiorari under Rule 65, which assailed
the trial court’s Orders2 dated 20 September 2007 and 6 December 2007 in Criminal Case No. 07-
0907-CFM for Bigamy; and (b) the Resolution3 dated 18 July 2008 denying the motion for
reconsideration of the first resolution.

The trial court quashed the Information on the ground that the elements of Bigamy were rendered
incomplete after herein respondent presented documents to prove a fact, which the court believed
would negate the allegation in the Information that there was a first valid marriage. The evidence
presented showed that respondent later obtained a judicial declaration of nullity of the first union
following the celebration of a subsequent marriage.

The Antecedents

On 12 March 2007, herein petitioner Myrna P. Antone executed an Affidavit-Complaint4 for Bigamy

against Leo R. Beronilla before the Office of the City Prosecutor of Pasay City. She alleged that her
marriage with respondent in 1978 had not yet been legally dissolved when the latter contracted a
second marriage with one Cecile Maguillo in 1991.

On 21 June 2007, the prosecution filed the corresponding Information5 before the Regional Trial
Court, Pasay City. The case was docketed as Criminal Case No. 07-0907-CFM and raffled to
Branch 115.

Pending the setting of the case for arraignment, herein respondent moved to quash the Information
on the ground that the facts charged do not constitute an offense.6 He informed the court that his
marriage with petitioner was declared null and void by the Regional Trial Court, Branch 16, Naval,
Biliran on 26 April 2007;7 that the decision became final and executory on 15 May 200[7];8 and that
such decree has already been registered with the Municipal Civil Registrar on 12 June 2007.9 He
argued that since the marriage had been declared null and void from the beginning, there was
actually no first marriage to speak of. Absent a first valid marriage, the facts alleged in the
Information do not constitute the crime of bigamy.10

In its comment/opposition to the motion,11 the prosecution, through herein petitioner, maintained that
the respondent committed an act which has all the essential requisites of bigamy. The prosecution
pointed out that the marriage of petitioner and respondent on 18 November 1978 has not yet been
severed when he contracted a second marriage on 16 February 1991, for which reason, bigamy has
already been committed before the court declared the first marriage null and void on 27 April
2007.12 The prosecution also invoked the rulings of the Supreme Court holding that a motion to
quash is a hypothetical admission of the facts alleged in the information, and that facts contrary
thereto are matters of defense which may be raised only during the presentation of evidence.13

After a hearing on the motion,14 the court quashed the Information.15 Applying Morigo v. People,16 it
ruled:

Hence, contrary to what was stated in the Information, accused Beronilla was actually never legally
married to Myrna Antone. On this score alone, the first element appears to be missing. Furthermore,
the statement in the definition of Bigamy which reads "before the first marriage has been legally
dissolved" clearly contemplates that the first marriage must at least be annullable or voidable but
definitely not void, as in this case. xxx [I]n a similar case, [the Supreme Court] had the occasion to
state:

The first element of bigamy as a crime requires that the accused must have been legally married.
But in this case, legally speaking, the petitioner was never married to Lucia Barrete. Thus, there is
no first marriage to speak of. Under the principle of retroactivity of a marriage being declared void ab
initio, the two were never married "from the beginning." xxx The existence and the validity of the first
marriage being an essential element of the crime of bigamy, it is but logical that a conviction for said
offense cannot be sustained where there is no first marriage to speak of. xxx17

The prosecution, through herein petitioner, moved for reconsideration of the said Order18 on the
ground, among others, that the facts and the attending circumstances in Morigo are not on all fours
with the case at bar. It likewise pointed out that, in Mercado v. Tan,19 this Court has already settled
that "(a) declaration of the absolute nullity of a marriage is now explicitly required either as a cause
of action or a ground for defense."20

In its Order of 6 December 2007,21 the court denied the motion for reconsideration stating that
Mercado has already been superseded by Morigo.

In the interim, in a Petition for Relief from Judgment22 before the Regional Trial Court of Naval,
Biliran, petitioner questioned the validity of the proceedings in the petition for the declaration of
nullity of marriage in Civil Case No. B-1290 on 5 October 2007. On 24 March 2008, the court set
aside its Decision of 26 April 2007 declaring the marriage of petitioner with respondent null and void,
and required herein petitioner (respondent in Civil Case No. B-1290) to file her "answer to the
complaint."23 On 21 July 2008, the court DISMISSED the petition for nullity of marriage for failure of
herein respondent (plaintiff in Civil Case No. B-1290) to submit his pre-trial brief.24 Respondent,
however, challenged the orders issued by the court before the Court of Appeals.25 The matter is still
pending resolution thereat.26

Meanwhile, in a petition for certiorari under Rule 65 of the Rules of Court filed on 26 March 2008
before the Court of Appeals,27 herein petitioner alleged that the Pasay City trial court acted without or
in excess of jurisdiction or with grave abuse of discretion amounting to lack or excess of jurisdiction
when it dismissed the case of bigamy and denied her motion for reconsideration.

In its Resolution of 29 April 2008, the Court of Appeals dismissed the petition stating that:

The present petition xxx is fatally infirm in form and substance for the following reasons:

1. The verification is defective as it does not include the assurance that the allegations in the
petition are based on authentic records.
 2. Since the petition assails the trial court’s dismissal of the criminal information for bigamy
filed against private respondent Leo Beronilla, the petition, if at all warranted, should be filed
in behalf of the People of the Philippines by the Office of the Solicitor General, being its
statutory counsel in all appealed criminal cases.

3. There is a violation of the rule on double jeopardy as the dismissal of the subject criminal
case is tantamount to an acquittal based on the trial court’s finding that the first essential
element of bigamy, which is a first valid marriage contracted by private respondent is
wanting. There is no clear showing in the petition that the dismissal was tainted with
arbitrariness which violated petitioner’s right to due process. Notably, petitioner filed her
comment/opposition to private respondent’s motion to quash before the trial court issued its
Order dated September 20, 2007 dismissing the information. Hence, if there is no denial of
due process, there can be no grave abuse of discretion that would merit the application of
the exception to the double jeopardy rule. 28

On 18 July 2008, the Court of Appeals denied respondent’s Motion for Reconsideration of the
aforequoted Resolution for lack of merit. 29

Hence, this petition.30

Our Ruling

We are convinced that this petition should be given due course despite the defect in the pleading
and the question of legal standing to bring the action.

The Rules of Court provides that a pleading required to be verified which lacks a proper verification
shall be treated as unsigned pleading.31

This, notwithstanding, we have, in a number of cases, opted to relax the rule in order that the ends
of justice may be served.32 The defect being merely formal and not jurisdictional, we ruled that the
court may nevertheless order the correction of the pleading, or even act on the pleading "if the
attending circumstances are such that xxx strict compliance with the rule may be dispensed with in
order that the ends of justice xxx may be served."33 At any rate, a pleading is required to be verified
only to ensure that it was prepared in good faith, and that the allegations were true and correct and
not based on mere speculations.34

There is likewise no dispute that it is the Office of the Solicitor General (OSG) which has the
authority to represent the government in a judicial proceeding before the Court of Appeals. The
Administrative Code specifically defined its powers and functions to read, among others:

Sec. 35. Powers and Functions. - The Office of the Solicitor General shall represent the Government
of the Philippines, its agencies and instrumentalities and its officials and agents in any litigation,
proceeding, investigation or matter requiring the services of lawyers. xxx It shall have the following
specific powers and functions:

(1) Represent the Government in the Supreme Court and the Court of Appeals in all criminal
proceedings; represent the Government and its officers in the Supreme Court, Court of Appeals, and
all other courts or tribunals in all civil actions and special proceedings in which the Government or
any officer thereof in his official capacity is a party.35
As an exception to this rule, the Solicitor General is allowed to:

(8) Deputize legal officers of government departments, bureaus, agencies and offices to assist the
Solicitor General and appear or represent the Government in cases involving their respective offices,
brought before the courts and exercise supervision and control over such legal officers with respect
to such cases.36

Thus, in Republic v. Partisala,37 we held that the summary dismissal of an action in the name of the
Republic of the Philippines, when not initiated by the Solicitor General, is in order.38 Not even the
appearance of the conformity of the public prosecutor in a petition for certiorari would suffice
because the authority of the City Prosecutor or his assistant to represent the People of the
Philippines is limited to the proceedings in the trial court.39

We took exceptions, however, and gave due course to a number of actions even when the
respective interests of the government were not properly represented by the Office of the Solicitor
General.

In Labaro v. Panay,40 this Court dealt with a similar defect in the following manner:

It must, however, be stressed that if the public prosecution is aggrieved by any order or ruling of the
trial judge in a criminal case, the OSG, and not the prosecutor, must be the one to question the order
or ruling before us.41 xxx

Nevertheless, since the challenged order affects the interest of the State or the plaintiff People of the
Philippines, we opted not to dismiss the petition on this technical ground. Instead, we required the
OSG to comment on the petition, as we had done before in some cases.42 In light of its Comment,
we rule that the OSG has ratified and adopted as its own the instant petition for the People of the
Philippines. (Emphasis supplied.)

In Cooperative Development Authority v. Dolefil Agrarian Reform Beneficiaries Cooperative,

Inc.,43 without requiring the Office of the Solicitor General to file a comment on the petition, this Court
determined the merits of the case involving a novel issue on the nature and scope of jurisdiction of
the Cooperative Development Authority to settle cooperative disputes as well as the battle between
two (2) factions concerning the management of the Dolefil Agrarian Reform Beneficiaries
Cooperative, Inc. (DARBCI) "that inevitably threatens the very existence of one of the country’s
major cooperatives."44

And, lest we defeat the ends of justice, we opt to look into the merit of the instant petition even
absent the imprimatur of the Solicitor General. After all, "for justice to prevail, the scales must
balance, for justice is not to be dispensed for the accused alone."45 To borrow the words of then
Justice Minita V. Chico-Nazario in another case where the dismissal of a criminal case pending with
the trial court was sought:

[T]he task of the pillars of the criminal justice system is to preserve our democratic society under the
rule of law, ensuring that all those who [come or are brought to court] are afforded a fair opportunity
to present their side[s]. xxx The State, like any other litigant, is entitled to its day in court, and to a
reasonable opportunity to present its case.46

II
We cannot agree with the Court of Appeals that the filing of this petition is in violation of the
respondent’s right against double jeopardy on the theory that he has already been practically
acquitted when the trial court quashed the Information.

Well settled is the rule that for jeopardy to attach, the following requisites must concur:

(1) there is a complaint or information or other formal charge sufficient in form and substance to
sustain a conviction; (2) the same is filed before a court of competent jurisdiction; (3) there is a valid
arraignment or plea to the charges; and (4) the accused is convicted or acquitted or the case is
otherwise dismissed or terminated without his express consent.47

The third and fourth requisites are clearly wanting in the instant case as (a) respondent has not yet
entered his plea to the charge when he filed the Motion to Quash the Information, and (2) the case
was dismissed not merely with his consent but, in fact, at his instance.48

We reiterate, time and again, that jeopardy does not attach in favor of the accused on account of an
order sustaining a motion to quash.49 More specifically, the granting of a motion to quash anchored
on the ground that the facts charged do not constitute an offense is "not a bar to another prosecution
for the same offense."50 Thus:

It will be noted that the order sustaining the motion to quash the complaint against petitioner was
based on Subsection (a) of Section 2 of Rule 117 of the Rules of Court – that the facts charged in
the complaint do not constitute an offense. If this is so then the dismissal of said complaint will not
be a bar to another prosecution for the same offense, for it is provided in Section 8 of Rule 117 of
the Rules of Court [now Section 6 of the 2000 Rules of Criminal Procedure] that an order sustaining
the motion to quash is not a bar to another prosecution for the same offense unless the motion was
based on the grounds specified in Section 2, Subsection[s] (f) and (h) of this rule [now substantially
reproduced in Section 3, Subsections (g) and (i) of the 2000 Rules of Criminal Procedure] xxx.51

III

We now determine the merit of the petition ˗ did the trial court act without or in excess of jurisdiction
or grave abuse of discretion when it sustained respondent’s motion to quash on the basis of a fact
contrary to those alleged in the information?

Petitioner maintains that the trial court did so because the motion was a hypothetical admission of
the facts alleged in the information and any evidence contrary thereto can only be presented as a
matter of defense during trial.

Consistent with existing jurisprudence, we agree with the petitioner.

We define a motion to quash an Information as ˗

the mode by which an accused assails the validity of a criminal complaint or Information filed against
him for insufficiency on its face in point of law, or for defects which are apparent in the face of the
Information.52

This motion is "a hypothetical admission of the facts alleged in the Information,"53 for which reason,
the court cannot consider allegations contrary to those appearing on the face of the information.54

As further elucidated in Cruz, Jr. v. Court of Appeals:55

It is axiomatic that a complaint or information must state every single fact necessary to constitute the
offense charged; otherwise, a motion to dismiss/quash on the ground that it charges no offense may
be properly sustained. The fundamental test in considering a motion to quash on this ground is
whether the facts alleged, if hypothetically admitted, will establish the essential elements of the
offense as defined in the law.

Contrary to the petitioner’s contention, a reading of the information will disclose that the essential
elements of the offense charged are sufficiently alleged. It is not proper therefore to resolve the
charges at the very outset, in a preliminary hearing only and without the benefit of a full-blown trial.
The issues require a fuller examination. Given the circumstances of this case, we feel it would be
unfair to shut off the prosecution at this stage of the proceedings and to dismiss the informations on
the basis only of the petitioner’s evidence, such as [this].56

As in the recent case of Los Baños v. Pedro,57 where we found no merit in respondent’s allegation
that the facts charged do not constitute an offense because "the Information duly charged a specific
offense and provide[d] the details on how the offense was committed,"58 we see no apparent defect
in the allegations in the Information in the case at bar. Clearly, the facts alleged in its accusatory
portion, which reads:

That on or about the 16th day of February, 1991, in Pasay City, Metro Manila, Philippines and within
the jurisdiction of this Honorable Court, the above-named accused, LEO R. BERONILLA, having
been united in a lawful marriage with one MYRNA A. BERONILLA, which marriage is still in force
and subsisting and without having been legally dissolved, did then and there willfully, unlawfully and
feloniously contract a second marriage with one Cecile Maguillo, which subsequent marriage of the
accused has all the essential requisites for validity.59

sufficiently constitute an offense. It contained all the elements of the crime of Bigamy under Article
349 of the Revised Penal Code hereunder enumerated:

(1) that the offender has been legally married;

(2) that the first marriage has not been legally dissolved or, in case his or her spouse is
absent, the absent spouse could not yet be presumed dead according to the Civil Code;

(3) that he contracts a second or subsequent marriage; and

(4) that the second or subsequent marriage has all the essential requisites for validity.60

The documents showing that: (1) the court has decreed that the marriage of petitioner and
respondent is null and void from the beginning; and (2) such judgment has already become final and
executory and duly registered with the Municipal Civil Registrar of Naval, Biliran are pieces of
evidence that seek to establish a fact contrary to that alleged in the Information ˗ that a first valid
marriage was subsisting at the time the respondent contracted a subsequent marriage. This should
not have been considered at all because matters of defense cannot be raised in a motion to quash.

Neither do we find a justifiable reason for sustaining the motion to quash even after taking into
consideration the established exceptions to the rule earlier recognized by this Court, among others:
(1) when the new allegations are admitted by the prosecution;61 (2) when the Rules so permit, such
as upon the grounds of extinction of criminal liability and double jeopardy;62 and (3) when facts have
been established by evidence presented by both parties which destroyed the prima facie truth of the
allegations in the information during the hearing on a motion to quash based on the ground that the
facts charged do not constitute an offense, and "it would be pure technicality for the court to close its
eyes to said facts and still give due course to the prosecution of the case already shown to be weak
even to support possible conviction xxx."63

For of what significance would the document showing the belated dissolution of the first marriage
offer? Would it serve to prevent the impracticability of proceeding with the trial in accordance with
People v. dela Rosa thereby warranting the non-observance of the settled rule that a motion to
quash is a hypothetical admission of the facts alleged in the information? We quote:

[W]here in the hearing on a motion to quash predicated on the ground that the allegations of the
information do not charge an offense, facts have been brought out by evidence presented by both
parties which destroy the prima facie truth accorded to the allegations of the information on the
hypothetical admission thereof, as is implicit in the nature of the ground of the motion to quash, it
would be pure technicality for the court to close its eyes to said facts and still give due course to the
prosecution of the case already shown to be weak even to support possible conviction, and hold the
accused to what would clearly appear to be a merely vexatious and expensive trial, on her part, and
a wasteful expense of precious time on the part of the court, as well as of the
prosecution.64 (Emphasis supplied.)

We find that there is none.

With the submission of the documents showing that the court has declared the first marriage void ab
initio, respondent heavily relied on the rulings65 in People v. Mendoza and Morigo declaring that: (a)
a case for bigamy based on a void ab initio marriage will not prosper because there is no need for a
judicial decree to establish that a void ab initio marriage is invalid;66 and (b) a marriage declared void
ab initio has retroactive legal effect such that there would be no first valid marriage to speak of after
all, which renders the elements of bigamy incomplete.67

Both principles, however, run contrary to the new provision of the Family Code, which was
promulgated by the late President Corazon C. Aquino in 1987, a few years before respondent’s
subsequent marriage was celebrated in 1991.

The specific provision, which reads:

ART. 40. The absolute nullity of a previous marriage may be invoked for purposes of remarriage on
the basis solely of a final judgment declaring such marriage void.

was exhaustively discussed in Mercado,68 where this Court settled the "conflicting" jurisprudence on
"the need for a judicial declaration of nullity of the previous marriage." After establishing that Article
40 is a new provision expressly requiring a judicial declaration of nullity of a prior marriage and
examining a long line of cases,69 this Court, concluded, in essence, that under the Family Code a
subsequent judicial declaration of the nullity of the first marriage is immaterial in a bigamy case
because, by then, the crime had already been consummated. Otherwise stated, this Court declared
that a person, who contracts a subsequent marriage absent a prior judicial declaration of nullity of a
previous one, is guilty of bigamy.70

Notably, Morigo, was indeed promulgated years after Mercado. Nevertheless, we cannot uphold the
Order dated 6 December 2007 of the trial court, which maintained that Morigo has already
superseded Mercado. In fact, in Morigo, this Court clearly distinguished the two (2) cases from one
another, and explained:
The present case is analogous to, but must be distinguished from Mercado v. Tan. In the latter case,
the judicial declaration of nullity of the first marriage was likewise obtained after the second marriage
was already celebrated. xxx

It bears stressing though that in Mercado, the first marriage was actually solemnized xxx. Ostensibly,
at least, the first marriage appeared to have transpired, although later declared void ab initio.

In the instant case, however, no marriage ceremony at all was performed by a duly authorized
solemnizing officer. Petitioner and Lucia Barrete merely signed a marriage contract on their own.
The mere private act of signing a marriage contract bears no semblance to a valid marriage and
thus, needs no judicial declaration of nullity. Such act alone, without more, cannot be deemed to
constitute an ostensibly valid marriage for which petitioner might be held liable for bigamy unless he
first secures a judicial declaration of nullity before he contracts a subsequent marriage.71

The application of Mercado to the cases following Morigo even reinforces the position of this Court to
give full meaning to Article 40 of the Family Code. Thus, in 2004, this Court ruled in Tenebro v. Court
of Appeals:72

Although the judicial declaration of the nullity of a marriage on the ground of psychological incapacity
retroacts to the date of the celebration of the marriage insofar as the vinculum between the spouses
is concerned, xxx said marriage is not without legal effects.  Among these effects is that children
1avvphil.zw+

conceived or born before the judgment of absolute nullity of the marriage shall be considered
legitimate. There is therefore a recognition written into the law itself that such a marriage, although
void ab initio, may still produce legal consequences. Among these legal consequences is incurring
criminal liability for bigamy. xxx.73 (Emphasis supplied.)

Finally, in Re: Complaint of Mrs. Corazon S. Salvador against Spouses Noel and Amelia
Serafico,74 this Court pronounced:

In a catena of cases,75 the Court has consistently held that a judicial declaration of nullity is required
before a valid subsequent marriage can be contracted; or else, what transpires is a bigamous
marriage, reprehensible and immoral. xxx

To conclude, the issue on the declaration of nullity of the marriage between petitioner and
respondent only after the latter contracted the subsequent marriage is, therefore, immaterial for the
purpose of establishing that the facts alleged in the information for Bigamy does not constitute an
offense. Following the same rationale, neither may such defense be interposed by the respondent in
his motion to quash by way of exception to the established rule that facts contrary to the allegations
in the information are matters of defense which may be raised only during the presentation of
evidence.

All considered, we find that the trial court committed grave abuse of discretion when, in so quashing
the Information in Criminal Case No. 07-0907-CFM, it considered an evidence introduced to prove a
fact not alleged thereat disregarding the settled rules that a motion to quash is a hypothetical
admission of the facts stated in the information; and that facts not alleged thereat may be
appreciated only under exceptional circumstances, none of which is obtaining in the instant petition.

WHEREFORE, the Orders dated 20 September 2007 and 6 December 2007 of the Regional Trial
Court, Branch 115, Pasay City as well as the Resolutions dated 29 April 2008 and 18 July 2008 of
the Court of Appeals are hereby SET ASIDE. Criminal Case No. 07-0907-CFM is REMANDED to
the trial court for further proceedings.
SO ORDERED.
 G.R. No. 172060               September 13, 2010

JOSELITO R. PIMENTEL, Petitioner,
vs.
MARIA CHRYSANTINE L. PIMENTEL and PEOPLE OF THE PHILIPPINES, Respondents.

DECISION

CARPIO, J.:

The Case

Before the Court is a petition for review1 assailing the Decision2 of the Court of Appeals, promulgated
on 20 March 2006, in CA-G.R. SP No. 91867.

The Antecedent Facts

The facts are stated in the Court of Appeals’ decision:

On 25 October 2004, Maria Chrysantine Pimentel y Lacap (private respondent) filed an action for
frustrated parricide against Joselito R. Pimentel (petitioner), docketed as Criminal Case No. Q-04-
130415, before the Regional Trial Court of Quezon City, which was raffled to Branch 223 (RTC
Quezon City).

On 7 February 2005, petitioner received summons to appear before the Regional Trial Court of
Antipolo City, Branch 72 (RTC Antipolo) for the pre-trial and trial of Civil Case No. 04-7392 (Maria
Chrysantine Lorenza L. Pimentel v. Joselito Pimentel) for Declaration of Nullity of Marriage under
Section 36 of the Family Code on the ground of psychological incapacity.

On 11 February 2005, petitioner filed an urgent motion to suspend the proceedings before the RTC
Quezon City on the ground of the existence of a prejudicial question. Petitioner asserted that since
the relationship between the offender and the victim is a key element in parricide, the outcome of
Civil Case No. 04-7392 would have a bearing in the criminal case filed against him before the RTC
Quezon City.

The Decision of the Trial Court

The RTC Quezon City issued an Order dated 13 May 20053 holding that the pendency of the case
before the RTC Antipolo is not a prejudicial question that warrants the suspension of the criminal
case before it. The RTC Quezon City held that the issues in Criminal Case No. Q-04-130415 are the
injuries sustained by respondent and whether the case could be tried even if the validity of
petitioner’s marriage with respondent is in question. The RTC Quezon City ruled:

WHEREFORE, on the basis of the foregoing, the Motion to Suspend Proceedings On the [Ground]
of the Existence of a Prejudicial Question is, for lack of merit, DENIED.

SO ORDERED.4

Petitioner filed a motion for reconsideration. In its 22 August 2005 Order,5 the RTC Quezon City
denied the motion.
Petitioner filed a petition for certiorari with application for a writ of preliminary injunction and/or
temporary restraining order before the Court of Appeals, assailing the 13 May 2005 and 22 August
2005 Orders of the RTC Quezon City.

The Decision of the Court of Appeals

In its 20 March 2006 Decision, the Court of Appeals dismissed the petition. The Court of Appeals
ruled that in the criminal case for frustrated parricide, the issue is whether the offender commenced
the commission of the crime of parricide directly by overt acts and did not perform all the acts of
execution by reason of some cause or accident other than his own spontaneous desistance. On the
other hand, the issue in the civil action for annulment of marriage is whether petitioner is
psychologically incapacitated to comply with the essential marital obligations. The Court of Appeals
ruled that even if the marriage between petitioner and respondent would be declared void, it would
be immaterial to the criminal case because prior to the declaration of nullity, the alleged acts
constituting the crime of frustrated parricide had already been committed. The Court of Appeals
ruled that all that is required for the charge of frustrated parricide is that at the time of the
commission of the crime, the marriage is still subsisting.

Petitioner filed a petition for review before this Court assailing the Court of Appeals’ decision.

The Issue

The only issue in this case is whether the resolution of the action for annulment of marriage is a
prejudicial question that warrants the suspension of the criminal case for frustrated parricide against
petitioner.

The Ruling of this Court

The petition has no merit.

Civil Case Must be Instituted

Before the Criminal Case

Section 7, Rule 111 of the 2000 Rules on Criminal Procedure6 provides:

Section 7. Elements of Prejudicial Question. - The elements of a prejudicial question are: (a) the
previously instituted civil action involves an issue similar or intimately related to the issue raised in
the subsequent criminal action and (b) the resolution of such issue determines whether or not the
criminal action may proceed.

The rule is clear that the civil action must be instituted first before the filing of the criminal action. In
this case, the Information7 for Frustrated Parricide was dated 30 August 2004. It was raffled to RTC
Quezon City on 25 October 2004 as per the stamped date of receipt on the Information. The RTC
Quezon City set Criminal Case No. Q-04-130415 for pre-trial and trial on 14 February 2005.
Petitioner was served summons in Civil Case No. 04-7392 on 7 February 2005.8 Respondent’s
petition9 in Civil Case No. 04-7392 was dated 4 November 2004 and was filed on 5 November 2004.
Clearly, the civil case for annulment was filed after the filing of the criminal case for frustrated
parricide. As such, the requirement of Section 7, Rule 111 of the 2000 Rules on Criminal Procedure
was not met since the civil action was filed subsequent to the filing of the criminal action.
 Annulment of Marriage is not a Prejudicial Question
in Criminal Case for Parricide

Further, the resolution of the civil action is not a prejudicial question that would warrant the
suspension of the criminal action.

There is a prejudicial question when a civil action and a criminal action are both pending, and there
exists in the civil action an issue which must be preemptively resolved before the criminal action may
proceed because howsoever the issue raised in the civil action is resolved would be determinative of
the guilt or innocence of the accused in the criminal case.10 A prejudicial question is defined as:

x x x one that arises in a case the resolution of which is a logical antecedent of the issue involved
therein, and the cognizance of which pertains to another tribunal. It is a question based on a fact
distinct and separate from the crime but so intimately connected with it that it determines the guilt or
innocence of the accused, and for it to suspend the criminal action, it must appear not only that said
case involves facts intimately related to those upon which the criminal prosecution would be based
but also that in the resolution of the issue or issues raised in the civil case, the guilt or innocence of
the accused would necessarily be determined.11

The relationship between the offender and the victim is a key element in the crime of
parricide,12 which punishes any person "who shall kill his father, mother, or child, whether legitimate
or illegitimate, or any of his ascendants or descendants, or his spouse."13 The relationship between
the offender and the victim distinguishes the crime of parricide from murder14 or homicide.15 However,
the issue in the annulment of marriage is not similar or intimately related to the issue in the criminal
case for parricide. Further, the relationship between the offender and the victim is not determinative
of the guilt or innocence of the accused.

The issue in the civil case for annulment of marriage under Article 36 of the Family Code is whether
petitioner is psychologically incapacitated to comply with the essential marital obligations. The issue
in parricide is whether the accused killed the victim. In this case, since petitioner was charged with
frustrated parricide, the issue is whether he performed all the acts of execution which would have
killed respondent as a consequence but which, nevertheless, did not produce it by reason of causes
independent of petitioner’s will.16 At the time of the commission of the alleged crime, petitioner and
respondent were married. The subsequent dissolution of their marriage, in case the petition in Civil
Case No. 04-7392 is granted, will have no effect on the alleged crime that was committed at the time
of the subsistence of the marriage. In short, even if the marriage between petitioner and respondent
is annulled, petitioner could still be held criminally liable since at the time of the commission of the
alleged crime, he was still married to respondent. 1avvphi1

We cannot accept petitioner’s reliance on Tenebro v. Court of Appeals17 that "the judicial declaration
of the nullity of a marriage on the ground of psychological incapacity retroacts to the date of the
celebration of the marriage insofar as the vinculum between the spouses is concerned x x x." First,
the issue in Tenebro is the effect of the judicial declaration of nullity of a second or subsequent
marriage on the ground of psychological incapacity on a criminal liability for bigamy. There was no
issue of prejudicial question in that case. Second, the Court ruled in Tenebro that "[t]here is x x x a
recognition written into the law itself that such a marriage, although void ab initio, may still produce
legal consequences."18 In fact, the Court declared in that case that "a declaration of the nullity of the
second marriage on the ground of psychological incapacity is of absolutely no moment insofar as the
State’s penal laws are concerned."19
In view of the foregoing, the Court upholds the decision of the Court of Appeals. The trial in Criminal
Case No. Q-04-130415 may proceed as the resolution of the issue in Civil Case No. 04-7392 is not
determinative of the guilt or innocence of petitioner in the criminal case.

WHEREFORE, we DENY the petition. We AFFIRM the 20 March 2006 Decision of the Court of

Appeals in CA-G.R. SP No. 91867.

SO ORDERED.
 G.R. No. 191566               July 17, 2013

PEOPLE OF PHILIPPINES, Petitioner,
vs.
EDGARDO V. ODTUHAN, Respondent.

DECISION

PERALTA, J.:

This is a petition for review on certiorari under Rule 45 of the Rules of Court filed by petitioner
People of the Philippines, represented by the Office of the Solicitor General, against respondent
Edgardo V. Odtuhan assailing the Court of Appeals Decision1 dated December 17, 2009 and
Resolution2 dated March 4, 2010 in CA-G.R. SP No. 108616. The assailed decision granted the
petition for certiorari filed by respondent, and ordered the Regional Trial Court (RTC) of Manila,
Branch 27, to give due course to and receive evidence on respondent's motion to quash and resolve
the case with dispatch, while the assailed resolution denied petitioner's motion for reconsideration.

The facts of the case follow:

On July 2, 1980, respondent married Jasmin Modina (Modina).3 On October 28, 1993, respondent
married Eleanor A. Alagon (Alagon).4 Sometime in August 1994, he filed a petition for annulment of
his marriage with Modina.5 On February 23, 1999, the RTC of Pasig City, Branch 70 granted
respondent’s petition and declared his marriage with Modina void ab initio for lack of a valid marriage
license.6 On November 10, 2003, Alagon died. In the meantime, in June 2003, private complainant
Evelyn Abesamis Alagon learned of respondent’s previous marriage with Modina.7 She thus filed a
Complaint-Affidavit8 charging respondent with Bigamy.

On April 15, 2005, respondent was indicted in an Information9 for Bigamy committed as follows:

That on or about October 28, 1993, in the City of Manila, Philippines, the said accused being then
legally married to JASMIN MODINA and without such marriage having been legally dissolved, did
then and there willfully, unlawfully and feloniously contract a second or subsequent marriage with
ELEANOR A. ALAGON, which second/subsequent marriage has all the essential requisites for
validity.

Contrary to law.10

On February 5, 2008, respondent filed an Omnibus Motion11 praying that he be allowed to present

evidence to support his motion; that his motion to quash be granted; and that the case be dismissed.
Respondent moved for the quashal of the information on two grounds, to wit: (1) that the facts do not
charge the offense of bigamy; and (2) that the criminal action or liability has been extinguished.12

On September 4, 2008, the RTC13 issued an Order14 denying respondent’s Omnibus Motion. The

RTC held that the facts alleged in the information – that there was a valid marriage between
respondent and Modina and without such marriage having been dissolved, respondent contracted a
second marriage with Alagon – constitute the crime of bigamy. The trial court further held that
neither can the information be quashed on the ground that criminal liability has been extinguished,
because the declaration of nullity of the first marriage is not one of the modes of extinguishing
criminal liability. Respondent’s motion for reconsideration was likewise denied in an Order15 dated
February 20, 2009.

Aggrieved, respondent instituted a special civil action on certiorari under Rule 65 of the Rules of
Court16 before the CA, assailing the denial of his motion to quash the information despite the fact that
his first marriage with Modina was declared null and void ab initio prior to the filing of the bigamy
case.17

On December 17, 2009, the CA rendered the assailed decision, the dispositive portion of which
reads:

WHEREFORE, premises considered, the instant petition for certiorari is hereby GRANTED. The
RTC, Branch 27, Manila is hereby ordered to give due course to and receive evidence on the
petitioner’s motion to quash and resolve the case with dispatch.

SO ORDERED.18

The CA applied the conclusion made by the Court in Morigo v. People,19 and held that there is
cogent basis in looking into the motion to quash filed by respondent, for if the evidence would
establish that his first marriage was indeed void ab initio, one essential element of the crime of
bigamy would be lacking.20 The appellate court further held that respondent is even better off than
Morigo which thus calls for the application of such doctrine, considering that respondent contracted
the second marriage after filing the petition for the declaration of nullity of his first marriage and he
obtained the favorable declaration before the complaint for bigamy was filed against him.21 The CA
thus concluded that the RTC gravely abused its discretion in denying respondent’s motion to quash
the information, considering that the facts alleged in the information do not charge an offense.22

With the denial of the motion for reconsideration before the CA, petitioner filed a petition before the
Court in this petition for review on certiorari under Rule 45 of the Rules of Court based on the
following grounds:

THE COURT OF APPEALS COMMITTED REVERSIBLE ERROR WHEN IT RENDERED ITS

DECISION DATED DECEMBER 17, 2009 GRANTING RESPONDENT’S PETITION FOR
CERTIORARI AND THE RESOLUTION DATED MARCH 4, 2010 DENYING PETITIONER’S
MOTION FOR RECONSIDERATION, CONSIDERING THAT:

I.

THE INFORMATION CHARGING RESPONDENT OF BIGAMY SUFFICIENTLY ALLEGES ALL THE

ELEMENTS CONSTITUTING SAID OFFENSE.

II.

THE SUBSEQUENT COURT JUDGMENT DECLARING RESPONDENT’S FIRST MARRIAGE VOID

AB INITIO DID NOT EXTINGUISH RESPONDENT’S CRIMINAL LIABILITY WHICH ALREADY
ATTACHED PRIOR TO SAID JUDGMENT.23

The petition is meritorious.

The issues are not novel and have been squarely ruled upon by this Court in Montañez v.
Cipriano,24 Teves v. People,25 and Antone v. Beronilla.26
In Montañez, respondent Cipriano married Socrates in April 1976, but during the subsistence of their
marriage on January 24, 1983, respondent married Silverio. In 2001, respondent filed a petition for
the annulment of her marriage with Socrates on the ground of psychological incapacity which was
granted on July 18, 2003. On May 14, 2004, petitioner filed a complaint for bigamy against
respondent. The latter, however, moved for the quashal of the information and dismissal of the
criminal complaint alleging that her first marriage had already been declared void ab initio prior to the
filing of the bigamy case.

In Teves, petitioner married Thelma on November 26, 1992. During the subsistence of their marriage
on December 10, 2001, he again married Edita. On May 4, 2006, petitioner obtained a declaration of
her marriage with Thelma null and void on the ground that the latter is physically incapacitated to
comply with her marital obligations. On June 8, 2006, an Information for Bigamy was filed against
petitioner. The court eventually convicted petitioner of the crime charged.

In Antone, petitioner married respondent in 1978, but during the subsistence of their marriage,
respondent contracted a second marriage in 1991. On April 26, 2007, respondent obtained a
declaration of nullity of her first marriage which decision became final and executory on May 15,
2007. On June 21, 2007, the prosecution filed an information for bigamy against respondent which
the latter sought to be quashed on the ground that the facts charged do not constitute an offense.

The present case stemmed from similar procedural and factual antecedents as in the above cases.
As in Antone and Montañez, respondent moved to quash the information on the grounds that the
facts do not charge the offense of bigamy and that his criminal liability has been extinguished both
because of the declaration of nullity of the first marriage. The RTC refused to quash the information.
On petition for certiorari, the CA, however, reached a different conclusion.

As defined in Antone, "a motion to quash information is the mode by which an accused assails the
validity of a criminal complaint or information filed against him for insufficiency on its face in point of
law, or for defects which are apparent in the face of the information." It is a hypothetical admission of
the facts alleged in the information. The fundamental test in determining the sufficiency of the
material averments in an Information is whether or not the facts alleged therein, which are
hypothetically admitted, would establish the essential elements of the crime defined by law.
Evidence aliunde or matters extrinsic of the information are not to be considered.27 To be sure, a
motion to quash should be based on a defect in the information which is evident on its fact.28 Thus, if
the defect can be cured by amendment or if it is based on the ground that the facts charged do not
constitute an offense, the prosecution is given by the court the opportunity to correct the defect by
amendment.29 If the motion to quash is sustained, the court may order that another complaint or
information be filed30 except when the information is quashed on the ground of extinction of criminal
liability or double jeopardy.31

An examination of the information filed against respondent, however, shows the sufficiency of the
allegations therein to constitute the crime of bigamy as it contained all the elements of the crime as
provided for in Article 34932 of the Revised Penal Code, to wit:

(1) That the offender has been legally married;

(2) That the first marriage has not been legally dissolved or, in case his or her spouse is
absent, the absent spouse could not yet be presumed dead according to the Civil Code;

(3) That he contracts a second or subsequent marriage; and

(4) That the second or subsequent marriage has all the essential requisites for validity.33
Here, the information contained the following allegations: (1) that respondent is legally married to
Modina; (2) that without such marriage having been legally dissolved; (3) that respondent willfully,
unlawfully, and feloniously contracted a second marriage with Alagon; and (4) that the second
marriage has all the essential requisites for validity. Respondent’s evidence showing the court’s
declaration that his marriage to Modina is null and void from the beginning because of the absence
of a marriage license is only an evidence that seeks to establish a fact contrary to that alleged in the
information that a first valid marriage was subsisting at the time he contracted the second marriage.
This should not be considered at all, because matters of defense cannot be raised in a motion to
quash.34 It is notproper, therefore, to resolve the charges at the very outset without the benefit of a
full blown trial. The issues require a fuller examination and it would be unfair to shut off the
prosecution at this stage of the proceedings and to quash the information on the basis of the
document presented by respondent.35 With the presentation of the court decree, no facts have been
brought out which destroyed the prima facie truth accorded to the allegations of the information on
the hypothetical admission thereof.

Respondent’s motion to quash was founded on the trial court’s declaration that his marriage with
Modina is null and void ab initio. He claims that with such declaration, one of the elements of the
crime is wanting. Thus, the allegations in the information do not charge the offense of bigamy, or at
the very least, such court decree extinguished his criminal liability. Both respondent and the CA
heavily relied on the Court’s pronouncement in Morigo v. People36 where the accused therein was
acquitted because the elements of the crime of bigamy were incomplete. In said case, the first
marriage was declared null and void, because the parties only signed the marriage contract without
the presence of a solemnizing officer. Considering, therefore, that the declaration of nullity retroacts
to the date of the first marriage, the Court held that there was no marriage to speak of when the
accused contracted the second marriage. Logically, the accused was acquitted.

The Family Code has settled once and for all the conflicting jurisprudence on the matter.  A 1âwphi1

declaration of the absolute nullity of a marriage is now explicitly required either as a cause of action
or a ground for defense.37 It has been held in a number of cases that a judicial declaration of nullity is
required before a valid subsequent marriage can be contracted; or else, what transpires is a
bigamous marriage, reprehensible and immoral.38

What makes a person criminally liable for bigamy is when he contracts a second or subsequent
marriage during the subsistence of a valid marriage.39 Parties to the marriage should not be
permitted to judge for themselves its nullity, for the same must be submitted to the judgment of
competent courts and only when the nullity of the marriage is so declared can it be held as void, and
so long as there is no such declaration, the presumption is that the marriage exists. Therefore, he
who contracts a second marriage before the judicial declaration of nullity of the first marriage
assumes the risk of being prosecuted for bigamy.40 If we allow respondent’s line of defense and the
CA’s ratiocination, a person who commits bigamy can simply evade prosecution by immediately
filing a petition for the declaration of nullity of his earlier marriage and hope that a favorable decision
is rendered therein before anyone institutes a complaint against him.41

Respondent, likewise, claims that there are more reasons to quash the information against him,
because he obtained the declaration of nullity of marriage before the filing of the complaint for
bigamy against him. Again, we cannot sustain such contention. In addition to the discussion above,
settled is the rule that criminal culpability attaches to the offender upon the commission of the
offense and from that instant, liability appends to him until extinguished as provided by law and that
the time of filing of the criminal complaint or information is material only for determining
prescription.42

Thus, as held in Antone:

To conclude, the issue on the declaration of nullity of the marriage between petitioner and
respondent only after the latter contracted the subsequent marriage is, therefore, immaterial for the
purpose of establishing that the facts alleged in the information for Bigamy does not constitute an
offense. Following the same rationale, neither may such defense be interposed by the respondent in
his motion to quash by way of exception to the established rule that facts contrary to the allegations
in the information are matters of defense which may be raised only during the presentation of
evidence.43

In view of the foregoing, the CA erred in granting the petition for certiorari filed by respondent. The
RTC did not commit grave abuse of discretion in denying his motion to quash and to allow him to
present evidence to support his omnibus motion.

WHEREFORE, the petition is hereby GRANTED. The Court of Appeals Decision dated December
17, 2009 and Resolution dated March 4, 2010 in CA-G.R. SP No. 108616 are SET ASIDE. Criminal
Case No. 05-235814 is REMANDED to the Regional Trial Court of Manila, Branch 27 for further
proceedings.

SO ORDERED.
F.DAMAGES

G.R. No. 127406               November 27, 2000

OFELIA P. TY, petitioner,
vs.
THE COURT OF APPEALS, and EDGARDO M. REYES, respondents.

DECISION

QUISUMBING, J.:

This appeal seeks the reversal of the decision dated July 24, 1996, of the Court of Appeals in C.A. –
G.R. CV 37897, which affirmed the decision of the Regional Trial Court of Pasig, Branch 160,
declaring the marriage contract between private respondent Edgardo M. Reyes and petitioner Ofelia
P. Ty null and void ab initio. It also ordered private respondent to pay P15,000.00 as monthly
support for their children Faye Eloise Reyes and Rachel Anne Reyes.

As shown in the records of the case, private respondent married Anna Maria Regina Villanueva in a
civil ceremony on March 29, 1977, in Manila. Then they had a church wedding on August 27, 1977.
However, on August 4, 1980, the Juvenile and Domestic Relations Court of Quezon City declared
their marriage null and void ab initio for lack of a valid marriage license. The church wedding on
August 27, 1977, was also declared null and void ab initio for lack of consent of the parties.

Even before the decree was issued nullifying his marriage to Anna Maria, private respondent wed
Ofelia P. Ty, herein petitioner, on April 4, 1979, in ceremonies officiated by the judge of the City
Court of Pasay. On April 4, 1982, they also had a church wedding in Makati, Metro Manila.

On January 3, 1991, private respondent filed a Civil Case 1853-J with the RTC of Pasig, Branch
160, praying that his marriage to petitioner be declared null and void. He alleged that they had no
marriage license when they got married. He also averred that at the time he married petitioner, he
was still married to Anna Maria. He stated that at the time he married petitioner the decree of nullity
of his marriage to Anna Maria had not been issued. The decree of nullity of his marriage to Anna
Maria was rendered only on August 4, 1980, while his civil marriage to petitioner took place on April
4, 1979.

Petitioner, in defending her marriage to private respondent, pointed out that his claim that their
marriage was contracted without a valid license is untrue. She submitted their Marriage License No.
5739990 issued at Rosario, Cavite on April 3, 1979, as Exh. 11, 12 and 12-A. He did not question
this document when it was submitted in evidence. Petitioner also submitted the decision of the
Juvenile and Domestic Relations Court of Quezon City dated August 4, 1980, which declared null
and void his civil marriage to Anna Maria Regina Villanueva celebrated on March 29, 1977, and his
church marriage to said Anna Maria on August 27, 1977. These documents were submitted as
evidence during trial and, according to petitioner, are therefore deemed sufficient proof of the facts
therein. The fact that the civil marriage of private respondent and petitioner took place on April 4,
1979, before the judgment declaring his prior marriage as null and void is undisputed. It also
appears indisputable that private respondent and petitioner had a church wedding ceremony on April
4, 1982.1
The Pasig RTC sustained private respondent’s civil suit and declared his marriage to herein
petitioner null and void ab initio in its decision dated November 4, 1991. Both parties appealed to
respondent Court of Appeals. On July 24, 1996, the appellate court affirmed the trial court’s decision.
It ruled that a judicial declaration of nullity of the first marriage (to Anna Maria) must first be secured
before a subsequent marriage could be validly contracted. Said the appellate court:

We can accept, without difficulty, the doctrine cited by defendant’s counsel that ‘no judicial decree is
necessary to establish the invalidity of void marriages.’ It does not say, however, that a second
marriage may proceed even without a judicial decree. While it is true that if a marriage is null and
void, ab initio, there is in fact no subsisting marriage, we are unwilling to rule that the matter of
whether a marriage is valid or not is for each married spouse to determine for himself – for this
would be the consequence of allowing a spouse to proceed to a second marriage even before a
competent court issues a judicial decree of nullity of his first marriage. The results would be
disquieting, to say the least, and could not have been the intendment of even the now-repealed
provisions of the Civil Code on marriage.

xxx

WHEREFORE, upon the foregoing ratiocination, We modify the appealed Decision in this wise:

1. The marriage contracted by plaintiff-appellant [herein private respondent] Eduardo M.

Reyes and defendant-appellant [herein petitioner] Ofelia P. Ty is declared null and void ab
initio;

2. Plaintiff-appellant Eduardo M. Reyes is ordered to give monthly support in the amount of

P15,000.00 to his children Faye Eloise Reyes and Rachel Anne Reyes from November 4,
1991; and

3. Cost against plaintiff-appellant Eduardo M. Reyes.

SO ORDERED. 2

Petitioner’s motion for reconsideration was denied. Hence, this instant petition asserting that the
Court of Appeals erred:

I.

BOTH IN THE DECISION AND THE RESOLUTION, IN REQUIRING FOR THE VALIDITY
OF PETITIONER’S MARRIAGE TO RESPONDENT, A JUDICIAL DECREE NOT
REQUIRED BY LAW.

II

IN THE RESOLUTION, IN APPLYING THE RULING IN DOMINGO VS. COURT OF

APPEALS.

III

IN BOTH THE DECISION AND RESOLUTION IN NOT CONSIDERING THE CIVIL

EFFECTS OF THE RELIGIOUS RATIFICATION WHICH USED THE SAME MARRIAGE
LICENSE.
 IV

IN THE DECISION NOT GRANTING MORAL AND EXEMPLARY DAMAGES TO THE

DEFENDANT-APPELLANT.

The principal issue in this case is whether the decree of nullity of the first marriage is required before
a subsequent marriage can be entered into validly? To resolve this question, we shall go over
applicable laws and pertinent cases to shed light on the assigned errors, particularly the first and the
second which we shall discuss jointly.

In sustaining the trial court, the Court of Appeals declared the marriage of petitioner to private
respondent null and void for lack of a prior judicial decree of nullity of the marriage between private
respondent and Villanueva. The appellate court rejected petitioner’s claim that People v.
Mendoza and People v. Aragon are applicable in this case. For these cases held that where a
3  4 

marriage is void from its performance, no judicial decree is necessary to establish its invalidity. But
the appellate court said these cases, decided before the enactment of the Family Code (E.O. No.
209 as amended by E.O No. 227), no longer control. A binding decree is now needed and must be
read into the provisions of law previously obtaining. 5

In refusing to consider petitioner’s appeal favorably, the appellate court also said:

Terre v. Attorney Terre, Adm. Case No. 2349, 3 July 1992 is mandatory precedent for this case.
Although decided by the High Court in 1992, the facts situate it within the regime of the now-
repealed provisions of the Civil Code, as in the instant case.

xxx

For purposes of determining whether a person is legally free to contract a second marriage, a
judicial declaration that the first marriage was null and void ab initio is essential. . . .
6

At the outset, we must note that private respondent’s first and second marriages contracted in 1977
and 1979, respectively, are governed by the provisions of the Civil Code. The present case differs
significantly from the recent cases of Bobis v. Bobis and Mercado v. Tan, both involving
7  8 

a criminal case for bigamy where the bigamous marriage was contracted during the effectivity of the
Family Code, under which a judicial declaration of nullity of marriage is clearly required.
9 

Pertinent to the present controversy, Article 83 of the Civil Code provides that:

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

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

(2) The first spouse had been absent for seven consecutive years at the time of the second
marriage without the spouse present having news of the absentee being alive, or if the
absentee, though he has been absent for less than seven years, is generally considered as
dead and before any person believed to be so by the spouse present at the time of
contracting such subsequent marriage, or if the absentee is presumed dead according to
articles 390 and 391. The marriage so contracted shall be valid in any of the three cases
until declared null and void by a competent court.
As to whether a judicial declaration of nullity of a void marriage is necessary, the Civil Code contains
no express provision to that effect. Jurisprudence on the matter, however, appears to be conflicting.

Originally, in People v. Mendoza, and People v. Aragon, this Court held that no judicial decree is
10  11 

necessary to establish the nullity of a void marriage. Both cases involved the same factual milieu.
Accused contracted a second marriage during the subsistence of his first marriage. After the death
of his first wife, accused contracted a third marriage during the subsistence of the second marriage.
The second wife initiated a complaint for bigamy. The Court acquitted accused on the ground that
the second marriage is void, having been contracted during the existence of the first marriage. There
is no need for a judicial declaration that said second marriage is void. Since the second marriage is
void, and the first one terminated by the death of his wife, there are no two subsisting valid
marriages. Hence, there can be no bigamy. Justice Alex Reyes dissented in both cases, saying that
it is not for the spouses but the court to judge whether a marriage is void or not.

In Gomez v. Lipana, and Consuegra v. Consuegra, however, we recognized the right of the second
12  13 

wife who entered into the marriage in good faith, to share in their acquired estate and in proceeds of
the retirement insurance of the husband. The Court observed that although the second marriage can
be presumed to be void ab initio as it was celebrated while the first marriage was still subsisting, still
there was a need for judicial declaration of such nullity (of the second marriage). And since the death
of the husband supervened before such declaration, we upheld the right of the second wife to share
in the estate they acquired, on grounds of justice and equity. 14

But in Odayat v. Amante (1977), the Court adverted to Aragon and Mendoza as precedents. We

15 

exonerated a clerk of court of the charge of immorality on the ground that his marriage to Filomena
Abella in October of 1948 was void, since she was already previously married to one Eliseo Portales
in February of the same year. The Court held that no judicial decree is necessary to establish the
invalidity of void marriages. This ruling was affirmed in Tolentino v. Paras.16

Yet again in Wiegel v. Sempio-Diy (1986), the Court held that there is a need for a judicial
17 

declaration of nullity of a void marriage. In Wiegel, Lilia married Maxion in 1972. In 1978, she
married another man, Wiegel. Wiegel filed a petition with the Juvenile Domestic Relations Court to
declare his marriage to Lilia as void on the ground of her previous valid marriage. The Court,
expressly relying on Consuegra, concluded that: 18

There is likewise no need of introducing evidence about the existing prior marriage of her first
husband at the time they married each other, for then such a marriage though void still needs
according to this Court a judicial declaration (citing Consuegra) of such fact and for all legal intents
and purposes she would still be regarded as a married woman at the time she contracted her
marriage with respondent Karl Heinz Wiegel; accordingly, the marriage of petitioner and respondent
would be regarded VOID under the law. (Emphasis supplied).

In Yap v. Court of Appeals, however, the Court found the second marriage void without need of
19 

judicial declaration, thus reverting to the Odayat, Mendoza and Aragon rulings.

At any rate, the confusion under the Civil Code was put to rest under the Family Code. Our rulings
in Gomez, Consuegra, and Wiegel were eventually embodied in Article 40 of the Family
Code. Article 40 of said Code expressly required a judicial declaration of nullity of marriage –
20 

Art. 40. The absolute nullity of a previous marriage may be invoked for purposes of remarriage on
the basis solely of a final judgment declaring such previous marriage void.
In Terre v. Terre (1992) the Court, applying Gomez, Consuegra and Wiegel, categorically stated
21 

that a judicial declaration of nullity of a void marriage is necessary. Thus, we disbarred a lawyer for
contracting a bigamous marriage during the subsistence of his first marriage. He claimed that his
first marriage in 1977 was void since his first wife was already married in 1968. We held that Atty.
Terre should have known that the prevailing case law is that "for purposes of determining whether a
person is legally free to contract a second marriage, a judicial declaration that the first marriage was
null and void ab initio is essential."

The Court applied this ruling in subsequent cases. In Domingo v. Court of Appeals (1993), the Court
22 

held:

Came the Family Code which settled once and for all the conflicting jurisprudence on the matter. A
declaration of absolute nullity of marriage is now explicitly required either as a cause of action or a
ground for defense. (Art. 39 of the Family Code). Where the absolute nullity of a previous marriage is
sought to be invoked for purposes of contracting a second marriage, the sole basis acceptable in law
for said projected marriage to be free from legal infirmity is a final judgment declaring the previous
marriage void. (Family Code, Art. 40; See also arts. 11, 13, 42, 44, 48, 50, 52, 54, 86, 99, 147,
148).23

However, a recent case applied the old rule because of the peculiar circumstances of the case.
In Apiag v. Cantero, (1997) the first wife charged a municipal trial judge of immorality for entering
24 

into a second marriage. The judge claimed that his first marriage was void since he was merely
forced into marrying his first wife whom he got pregnant. On the issue of nullity of the first marriage,
we applied Odayat, Mendoza and Aragon. We held that since the second marriage took place and
all the children thereunder were born before the promulgation of Wiegel and the effectivity of the
Family Code, there is no need for a judicial declaration of nullity of the first marriage pursuant to
prevailing jurisprudence at that time.

Similarly, in the present case, the second marriage of private respondent was entered into in 1979,
before Wiegel. At that time, the prevailing rule was found in Odayat, Mendoza and Aragon. The first
marriage of private respondent being void for lack of license and consent, there was no need for
judicial declaration of its nullity before he could contract a second marriage. In this case, therefore,
we conclude that private respondent’s second marriage to petitioner is valid.

Moreover, we find that the provisions of the Family Code cannot be retroactively applied to the
present case, for to do so would prejudice the vested rights of petitioner and of her children. As held
in Jison v. Court of Appeals, the Family Code has retroactive effect unless there be impairment of
25 

vested rights. In the present case, that impairment of vested rights of petitioner and the children is
patent. Additionally, we are not quite prepared to give assent to the appellate court’s finding that
despite private respondent’s "deceit and perfidy" in contracting marriage with petitioner, he could
benefit from her silence on the issue. Thus, coming now to the civil effects of the church ceremony
wherein petitioner married private respondent using the marriage license used three years earlier in
the civil ceremony, we find that petitioner now has raised this matter properly. Earlier petitioner
claimed as untruthful private respondent’s allegation that he wed petitioner but they lacked a
marriage license. Indeed we find there was a marriage license, though it was the same license
issued on April 3, 1979 and used in both the civil and the church rites. Obviously, the church
ceremony was confirmatory of their civil marriage. As petitioner contends, the appellate court erred
when it refused to recognize the validity and salutary effects of said canonical marriage on a
technicality, i.e. that petitioner had failed to raise this matter as affirmative defense during trial. She
argues that such failure does not prevent the appellate court from giving her defense due
consideration and weight. She adds that the interest of the State in protecting the inviolability of
marriage, as a legal and social institution, outweighs such technicality. In our view, petitioner and
private respondent had complied with all the essential and formal requisites for a valid marriage,
including the requirement of a valid license in the first of the two ceremonies. That this license was
used legally in the celebration of the civil ceremony does not detract from the ceremonial use thereof
in the church wedding of the same parties to the marriage, for we hold that the latter rites served not
only to ratify but also to fortify the first. The appellate court might have its reasons for brushing aside
this possible defense of the defendant below which undoubtedly could have tendered a valid issue,
but which was not timely interposed by her before the trial court. But we are now persuaded we
cannot play blind to the absurdity, if not inequity, of letting the wrongdoer profit from what the CA
calls "his own deceit and perfidy."

On the matter of petitioner’s counterclaim for damages and attorney’s fees.  Although the appellate
1âwphi1

court admitted that they found private respondent acted "duplicitously and craftily" in marrying
petitioner, it did not award moral damages because the latter did not adduce evidence to support her
claim.26

Like the lower courts, we are also of the view that no damages should be awarded in the present
case, but for another reason. Petitioner wants her marriage to private respondent held valid and
subsisting. She is suing to maintain her status as legitimate wife. In the same breath, she asks for
damages from her husband for filing a baseless complaint for annulment of their marriage which
caused her mental anguish, anxiety, besmirched reputation, social humiliation and alienation from
her parents. Should we grant her prayer, we would have a situation where the husband pays the
wife damages from conjugal or common funds. To do so, would make the application of the law
absurd. Logic, if not common sense, militates against such incongruity. Moreover, our laws do not
comprehend an action for damages between husband and wife merely because of breach of a
marital obligation. There are other remedies.
27  28

WHEREFORE, the petition is GRANTED. The assailed Decision of the Court of Appeals dated July
24, 1996 and its Resolution dated November 7, 1996, are reversed partially, so that the marriage of
petitioner Ofelia P. Ty and private respondent Edgardo M. Reyes is hereby DECLARED VALID AND
SUBSISTING; and the award of the amount of P15,000.00 is RATIFIED and MAINTAINED as
monthly support to their two children, Faye Eloise Reyes and Rachel Anne Reyes, for as long as
they are of minor age or otherwise legally entitled thereto. Costs against private respondent.

SO ORDERED.
G.DECLARATION OF PRESUMPTIVE DEATH

G.R. No. 159614 December 9, 2005

REPUBLIC OF THE PHILIPPINES, Petitioner,

vs.
THE HONORABLE COURT OF APPEALS (TENTH DIVISION), and ALAN B.
ALEGRO, Respondents.

DECISION

CALLEJO, SR., J.:

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

In an Order dated April 16, 2001, the court set the petition for hearing on May 30, 2001 at 8:30 a.m.
1 

and directed that a copy of the said order be published once a week for three (3) consecutive weeks
in the Samar Reporter, a newspaper of general circulation in the Province of Samar, and
that a copy be posted in the court’s bulletin board for at least three weeks before the next scheduled
hearing. The court also directed that copies of the order be served on the Solicitor General, the
Provincial Prosecutor of Samar, and Alan, through counsel, and that copies be sent to Lea by
registered mail. Alan complied with all the foregoing jurisdictional requirements.2

On May 28, 2001, the Republic of the Philippines, through the Office of the Solicitor General (OSG),
filed a Motion to Dismiss the petition, which was, however, denied by the court for failure to comply
3 

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. He testified that, on February 6, 1995, Lea arrived home late in the evening and
5 

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. Lea did not reply. Alan narrated that,
6 

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. Alan thought that Lea merely went to her parents’
7 

house in Bliss, Sto. Niño, Catbalogan, Samar. However, Lea did not return to their house anymore.
8 

Alan further testified that, on February 14, 1995, after his work, he went to the house of Lea’s
parents to see if she was there, but he was told that she was not there. He also went to the house of
Lea’s friend, Janeth Bautista, at Barangay Canlapwas, but he was informed by Janette’s brother-in-
law, Nelson Abaenza, that Janeth had left for Manila. When Alan went back to the house of his
9 

parents-in-law, he learned from his father-in-law that Lea had been to their house but that she left
without notice. Alan sought the help of Barangay Captain Juan Magat, who promised to help him
10 

locate his wife. He also inquired from his friends of Lea’s whereabouts but to no avail.11

Sometime in June 1995, he decided to go to Manila to look for Lea, but his mother asked him to
leave after the town fiesta of Catbalogan, hoping that Lea may come home for the fiesta. Alan
agreed. However, Lea did not show up. Alan then left for Manila on August 27, 1995. He went to a
12 

house in Navotas where Janeth, Lea’s friend, was staying. When asked where Lea was, Janeth told
him that she had not seen her. He failed to find out Lea’s whereabouts despite his repeated talks
13 

with Janeth. Alan decided to work as a part-time taxi driver. On his free time, he would look for Lea
in the malls but still to no avail. He returned to Catbalogan in 1997 and again looked for his wife but
failed.
14

On June 20, 2001, Alan reported Lea’s disappearance to the local police station. The police
15 

authorities issued an Alarm Notice on July 4, 2001. Alan also reported Lea’s disappearance to the
16 

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. Lea’s father, who was his compadre and the owner of Radio DYMS, told him that he did not
18 

know where Lea was. 19

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

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

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

SO ORDERED. 20

The OSG appealed the decision to the Court of Appeals (CA) which rendered judgment on August 4,
2003, affirming the decision of the RTC. The CA cited the ruling of this Court in Republic v.
21 

Nolasco. 22

The OSG filed a petition for review on certiorari of the CA’s decision alleging that respondent Alan B.
Alegro failed to prove that he had a well-founded belief that Lea was already dead. It averred that
23 

the respondent failed to exercise reasonable and diligent efforts to locate his wife. The respondent
even admitted that Lea’s father told him on February 14, 1995 that Lea had been to their house but
left without notice. The OSG pointed out that the respondent reported his wife’s disappearance to
the local police and also to the NBI only after the petitioner filed a motion to dismiss the petition. The
petitioner avers that, as gleaned from the evidence, the respondent did not really want to find and
locate Lea. Finally, the petitioner averred:

In view of the summary nature of proceedings under Article 41 of the Family Code for the declaration
of presumptive death of one’s spouse, the degree of due diligence set by this Honorable Court in the
above-mentioned cases in locating the whereabouts of a missing spouse must be strictly complied
with. There have been times when Article 41 of the Family Code had been resorted to by parties
wishing to remarry knowing fully well that their alleged missing spouses are alive and well. It is even
possible that those who cannot have their marriages x x x declared null and void under Article 36 of
the Family Code resort to Article 41 of the Family Code for relief because of the x x x summary
nature of its proceedings.

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

The petition is meritorious.

Article 41 of the Family Code of the Philippines reads:

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

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

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

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

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, the Court warned against collusion
29 

between the parties when they find it impossible to dissolve the marital bonds through existing legal
means. It is also the maxim that "men readily believe what they wish to be true."

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

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

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

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

SO ORDERED.
 G.R. No. 180863               September 8, 2009

ANGELITA VALDEZ, Petitioner,
vs.
REPUBLIC OF THE PHILIPPINES, Respondent.

DECISION

NACHURA, J.:

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

The facts of the case are as follows:

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

Believing that Sofio was already dead, petitioner married Virgilio Reyes on June 20,
1985.3 Subsequently, however, Virgilio’s application for naturalization filed with the United States
Department of Homeland Security was denied because petitioner’s marriage to Sofio was
subsisting.4 Hence, on March 29, 2007, petitioner filed a Petition before the RTC of Camiling, Tarlac
seeking the declaration of presumptive death of Sofio.

The RTC rendered its Decision5 on November 12, 2007, dismissing the Petition for lack of merit. The
RTC held that Angelita "was not able to prove the well-grounded belief that her husband Sofio
Polborosa was already dead." It said that under Article 41 of the Family Code, the present spouse is
burdened to prove that her spouse has been absent and that she has a well-founded belief that the
absent spouse is already dead before the present spouse may contract a subsequent marriage. This
belief, the RTC said, must be the result of proper and honest-to-goodness inquiries and efforts to
ascertain the whereabouts of the absent spouse.

The RTC found that, by petitioner’s own admission, she did not try to find her husband anymore in
light of their mutual agreement to live separately. Likewise, petitioner’s daughter testified that her
mother prevented her from looking for her father. The RTC also said there is a strong possibility that
Sofio is still alive, considering that he would have been only 61 years old by then, and people who
have reached their 60s have not become increasingly low in health and spirits, and, even assuming
as true petitioner’s testimony that Sofio was a chain smoker and a drunkard, there is no evidence
that he continues to drink and smoke until now.
Petitioner filed a motion for reconsideration.6 She argued that it is the Civil Code that applies in this
case and not the Family Code since petitioner’s marriage to Sofio was celebrated on January 11,
1971, long before the Family Code took effect. Petitioner further argued that she had acquired a
vested right under the provisions of the Civil Code and the stricter provisions of the Family Code
should not be applied against her because Title XIV of the Civil Code, where Articles 384 and 390 on
declaration of absence and presumption of death, respectively, can be found, was not expressly
repealed by the Family Code. To apply the stricter provisions of the Family Code will impair the
rights petitioner had acquired under the Civil Code.

The RTC denied the Motion for Reconsideration in a Resolution dated December 10, 2007.7

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

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

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

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

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

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

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

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

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

The pertinent provision of the Civil Code is Article 83:

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

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

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

Article 390 of the Civil Code states:

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

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

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

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

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

In re Szatraw14 is instructive. In that case, petitioner contracted marriage with a Polish national in
1937. They lived together as husband and wife for three years. Sometime in 1940, the husband, on
the pretext of visiting some friends, left the conjugal abode with their child and never returned. After
inquiring from friends, petitioner found that her husband went to Shanghai, China. However, friends
who came from Shanghai told her that the husband was not seen there. In 1948, petitioner filed a
petition for the declaration of presumptive death of her husband arguing that since the latter had
been absent for more than seven years and she had not heard any news from him and about her
child, she believes that he is dead. In deciding the case, the Court said:

The petition is not for the settlement of the estate of Nicolai Szatraw, because it does not appear that
he possessed property brought to the marriage and because he had acquired no property during his
married life with the petitioner. The rule invoked by the latter is merely one of evidence which permits
the court to presume that a person is dead after the fact that such person had been unheard from in
seven years had been established. This presumption may arise and be invoked and made in a case,
either in an action or in a special proceeding, which is tried or heard by, and submitted for decision
to, a competent court. Independently of such an action or special proceeding, the presumption of
death cannot be invoked, nor can it be made the subject of an action or special proceeding. In this
case, there is no right to be enforced nor is there a remedy prayed for by the petitioner against her
absent husband. Neither is there a prayer for the final determination of his right or status or for the
ascertainment of a particular fact (Hagans v. Wislizenus, 42 Phil. 880), for the petition does not pray
for a declaration that the petitioner's husband is dead, but merely asks for a declaration that he be
presumed dead because he had been unheard from in seven years. If there is any pretense at
securing a declaration that the petitioner's husband is dead, such a pretension cannot be granted
because it is unauthorized. The petition is for a declaration that the petitioner's husband is
presumptively dead. But this declaration, even if judicially made, would not improve the petitioner's
situation, because such a presumption is already established by law. A judicial pronouncement to
that effect, even if final and executory, would still be a prima facie presumption only. It is still
disputable. It is for that reason that it cannot be the subject of a judicial pronouncement or
declaration, if it is the only question or matter involved in a case, or upon which a competent court
has to pass. The latter must decide finally the controversy between the parties, or determine finally
the right or status of a party or establish finally a particular fact, out of which certain rights and
obligations arise or may arise; and once such controversy is decided by a final judgment, or such
right or status determined, or such particular fact established, by a final decree, then the judgment
on the subject of the controversy, or the decree upon the right or status of a party or upon the
existence of a particular fact, becomes res judicata, subject to no collateral attack, except in a few
rare instances especially provided by law. It is, therefore, clear that a judicial declaration that a
person is presumptively dead, because he had been unheard from in seven years, being a
presumption juris tantum only, subject to contrary proof, cannot reach the stage of finality or become
final. Proof of actual death of the person presumed dead because he had been unheard from in
seven years, would have to be made in another proceeding to have such particular fact finally
determined.  If a judicial decree declaring a person presumptively dead, because he had not been
1avvphi1

heard from in seven years, cannot become final and executory even after the lapse of the
reglementary period within which an appeal may be taken, for such presumption is still disputable
and remains subject to contrary proof, then a petition for such a declaration is useless, unnecessary,
superfluous and of no benefit to the petitioner.15

In Lukban v. Republic,16 petitioner Lourdes G. Lukban contracted marriage with Francisco Chuidian

on December 10, 1933. A few days later, on December 27, Francisco left Lourdes after a violent
quarrel. She did not hear from him after that day. Her diligent search, inquiries from his parents and
friends, and search in his last known address, proved futile. Believing her husband was already dead
since he had been absent for more than twenty years, petitioner filed a petition in 1956 for a
declaration that she is a widow of her husband who is presumed to be dead and has no legal
impediment to contract a subsequent marriage. On the other hand, the antecedents in Gue v.
Republic17 are similar to Szatraw. On January 5, 1946, Angelina Gue’s husband left Manila where
they were residing and went to Shanghai, China. From that day on, he had not been heard of, had
not written to her, nor in anyway communicated with her as to his whereabouts. Despite her efforts
and diligence, she failed to locate him. After 11 years, she asked the court for a declaration of the
presumption of death of Willian Gue, pursuant to the provisions of Article 390 of the Civil Code of the
Philippines.
In both cases, the Court reiterated its ruling in Szatraw. It held that a petition for judicial declaration
that petitioner's husband is presumed to be dead cannot be entertained because it is not authorized
by law.18

From the foregoing, it can be gleaned that, under the Civil Code, the presumption of death is
established by law19 and no court declaration is needed for the presumption to arise. Since death is
presumed to have taken place by the seventh year of absence,20 Sofio is to be presumed dead
starting October 1982.

Consequently, at the time of petitioner’s marriage to Virgilio, there existed no impediment to

petitioner’s capacity to marry, and the marriage is valid under paragraph 2 of Article 83 of the Civil
Code.

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

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

To retroactively apply the provisions of the Family Code requiring petitioner to exhibit "well-founded
belief" will, ultimately, result in the invalidation of her second marriage, which was valid at the time it
was celebrated. Such a situation would be untenable and would go against the objectives that the
Family Code wishes to achieve.

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

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

SO ORDERED.
 G.R. No. 136467             April 6, 2000

ANTONIA ARMAS Y CALISTERIO, petitioner,

vs.
MARIETTA CALISTERIO, respondent.

VITUG, J.:

On 24 April 1992, Teodorico Calisterio died intestate, leaving several parcels of land with an
estimated value of P604,750.00. Teodorico was survived by his wife, herein respondent Marietta
Calisterio.

Teodorico was the second husband of Marietta who had previously been married to James William
Bounds on 13 January 1946 at Caloocan City. James Bounds disappeared without a trace on 11
February 1947. Teodorico and Marietta were married eleven years later, or on 08 May 1958, without
Marietta having priorly secured a court declaration that James was presumptively dead.

On 09 October 1992, herein petitioner Antonia Armas y Calisterio, a surviving sister of Teodorico,
filed with the Regional Trial Court ("RTC") of Quezon City, Branch 104, a petition entitled, "In the
Matter of Intestate Estate of the Deceased Teodorico Calisterio y Cacabelos, Antonia Armas,
Petitioner," claiming to be inter alia, the sole surviving heir of Teodorico Calisterio, the marriage
between the latter and respondent Marietta Espinosa Calisterio being allegedly bigamous and
thereby null and void. She prayed that her son Sinfroniano C. Armas, Jr., be appointed
administrator, without bond, of the estate of the deceased and that the inheritance be adjudicated to
her after all the obligations of the estate would have been settled.

Respondent Marietta opposed the petition. Marietta stated that her first marriage with James Bounds
had been dissolved due to the latter's absence, his whereabouts being unknown, for more than
eleven years before she contracted her second marriage with Teodorico. Contending to be the
surviving spouse of Teodorico, she sought priority in the administration of the estate of the decedent.

On 05 February 1993, the trial court issued an order appointing jointly Sinfroniano C. Armas, Jr., and
respondent Marietta administrator and administratrix, respectively, of the intestate estate of
Teodorico.

On 17 January 1996, the lower court handed down its decision in favor of petitioner Antonia; it
adjudged:

WHEREFORE, judgment is hereby rendered finding for the petitioner and against the
oppositor whereby herein petitioner, Antonia Armas y Calisterio, is declared as the sole heir
of the estate of Teodorico Calisterio y Cacabelos.  1

Respondent Marietta appealed the decision of the trial court to the Court of Appeals, formulating that
—

1. The trial court erred in applying the provisions of the Family Code in the instant case
despite the fact that the controversy arose when the New Civil Code was the law in force.
 2. The trial court erred in holding that the marriage between oppositor-appellant and the
deceased Teodorico Calisterio is bigamous for failure of the former to secure a decree of the
presumptive death of her first spouse.

3. The trial court erred in not holding that the property situated at No. 32 Batangas Street,
San Francisco del Monte, Quezon City, is the conjugal property of the oppositor-appellant
and the deceased Teodorico Calisterio.

4. The trial court erred in holding that oppositor-appellant is not a legal heir of deceased
Teodorico Calisterio.

5. The trial court erred in not holding that letters of administration should be granted solely in
favor of oppositor-appellant. 2

On 31 August 1998, the appellate court, through Mr. Justice Conrado M. Vasquez, Jr., promulgated
its now assailed decision, thus:

IN VIEW OF ALL THE FOREGOING, the Decision appealed from is REVERSED AND SET
ASIDE, and a new one entered declaring as follows:

(a) Marietta Calisterio's marriage to Teodorico remains valid;

(b) The house and lot situated at #32 Batangas Street, San Francisco del Monte,
Quezon City, belong to the conjugal partnership property with the concomitant
obligation of the partnership to pay the value of the land to Teodorico's estate as of
the time of the taking;

(c) Marietta Calisterio, being Teodorico's compulsory heir, is entitled to one half of
her husband's estate, and Teodorico's sister, herein petitioner Antonia Armas and
her children, to the other half;

(d) The trial court is ordered to determine the competence of Marietta E. Calisterio to
act as administrator of Teodorico's estate, and if so found competent and willing, that
she be appointed as such; otherwise, to determine who among the deceased's next
of kin is competent and willing to become the administrator of the estate.  3

On 23 November 1998, the Court of Appeals denied petitioner's motion for reconsideration,
prompting her to interpose the present appeal. Petitioner asseverates:

It is respectfully submitted that the decision of the Court of Appeals reversing and setting
aside the decision of the trial court is not in accord with the law or with the applicable
decisions of this Honorable Court.  4

It is evident that the basic issue focuses on the validity of the marriage between the deceased
Teodorico and respondent Marietta, that, in turn, would be determinative of her right as a surviving
spouse.

The marriage between the deceased Teodorico and respondent Marietta was solemnized on 08 May
1958. The law in force at that time was the Civil Code, not the Family Code which took effect only on
03 August 1988. Article 256 of the Family Code  itself limited its retroactive governance only to
5 
cases where it thereby would not prejudice or impair vested or acquired rights in accordance with the
Civil Code or other laws.

Verily, the applicable specific provision in the instant controversy is Article 83 of the New Civil Code
which provides:

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

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

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

Under the foregoing provisions, a subsequent marriage contracted during the lifetime of the first
spouse is illegal and void ab initio unless the prior marriage is first annulled or dissolved. Paragraph
(2) of the law gives exceptions from the above rule. For the subsequent marriage referred to in the
three exceptional cases therein provided, to be held valid, the spouse present (not the absentee
spouse) so contracting the later marriage must have done so in good faith.  Bad faith imports a
6 

dishonest purpose or some moral obliquity and conscious doing of wrong — it partakes of the nature
of fraud, a breach of a known duty through some motive of interest or ill will.  The Court does not find
7 

these circumstances to be here extant.

A judicial declaration of absence of the absentee spouse is not necessary as long as the prescribed
8 

period of absence is met. It is equally noteworthy that the marriage in these exceptional cases are,
by the explicit mandate of Article 83, to be deemed valid "until declared null and void by a competent
court." It follows that the burden of proof would be, in these cases, on the party assailing the second
marriage.

In contrast, under the 1988 Family Code, in order that a subsequent bigamous marriage may
exceptionally be considered valid, the following conditions must concur; viz.: (a) The prior spouse of
the contracting party must have been absent for four consecutive years, or two years where there is
danger of death under the circumstances stated in Article 391 of the Civil Code at the time of
disappearance; (b) the spouse present has a well-founded belief that the absent spouse is already
dead; and (c) there is, unlike the old rule, a judicial declaration of presumptive death of the absentee
for which purpose the spouse present can institute a summary proceeding in court to ask for that
declaration. The last condition is consistent and in consonance with the requirement of judicial
intervention in subsequent marriages as so provided in Article 41  , in relation to Article 40,  of the
9  10 

Family Code.

In the case at bar, it remained undisputed that respondent Marietta's first husband, James William
Bounds, had been absent or had disappeared for more than eleven years before she entered into a
second marriage in 1958 with the deceased Teodorico Calisterio. This second marriage, having
been contracted during the regime of the Civil Code, should thus be deemed valid notwithstanding
the absence of a judicial declaration of presumptive death of James Bounds.
The conjugal property of Teodorico and Marietta, no evidence having been adduced to indicate
another property regime between the spouses, pertains to them in common. Upon its dissolution
with the death of Teodorico, the property should rightly be divided in two equal portions — one
portion going to the surviving spouse and the other portion to the estate of the deceased spouse.
The successional right in intestacy of a surviving spouse over the net estate  of the deceased,
11 

concurring with legitimate brothers and sisters or nephews and nieces (the latter by right of
representation), is one-half of the inheritance, the brothers and sisters or nephews and nieces, being
entitled to the other half. Nephews and nieces, however, can only succeed by right of representation
in the presence of uncles and aunts; alone, upon the other hand, nephews and nieces can succeed
in their own right which is to say that brothers or sisters exclude nephews and nieces except only in
representation by the latter of their parents who predecease or are incapacitated to succeed. The
appellate court has thus erred in granting, in paragraph (c) of the dispositive portion of its judgment,
successional rights, to petitioner's children, along with their own mother Antonia who herself is
invoking successional rights over the estate of her deceased brother. 1âwphi1

WHEREFORE, the assailed judgment of the Court of Appeals in CA G.R. CV No. 51574 is
AFFIRMED except insofar only as it decreed in paragraph (c) of the dispositive portion thereof that
the children of petitioner are likewise entitled, along with her, to the other half of the inheritance, in
lieu of which, it is hereby DECLARED that said one-half share of the decedent's estate pertains
solely to petitioner to the exclusion of her own children. No costs.

SO ORDERED. 1âwphi1.nêt
 G.R. No. 165545             March 24, 2006

SOCIAL SECURITY SYSTEM, Petitioner,

vs.
TERESITA JARQUE VDA. DE BAILON, Respondent.

DECISION

CARPIO MORALES,J.:

The Court of Appeals Decision1 dated June 23, 20042 and Resolution dated September 28,
20043 reversing the Resolution dated April 2, 20034 and Order dated June 4, 20035 of the Social
Security Commission (SSC) in SSC Case No. 4-15149-01 are challenged in the present petition for
review on certiorari.

On April 25, 1955, Clemente G. Bailon (Bailon) and Alice P. Diaz (Alice) contracted marriage in
Barcelona, Sorsogon.6

More than 15 years later or on October 9, 1970, Bailon filed before the then Court of First Instance
(CFI) of Sorsogon a petition7 to declare Alice presumptively dead.

By Order of December 10, 1970,8 the CFI granted the petition, disposing as follows:

WHEREFORE, there being no opposition filed against the petition notwithstanding the publication of
the Notice of Hearing in a newspaper of general circulation in the country, Alice Diaz is hereby
declared to [sic] all legal intents and purposes, except for those of succession, presumptively dead.

SO ORDERED.9 (Underscoring supplied)

Close to 13 years after his wife Alice was declared presumptively dead or on August 8, 1983, Bailon
contracted marriage with Teresita Jarque (respondent) in Casiguran, Sorsogon.10

On January 30, 1998, Bailon, who was a member of the Social Security System (SSS) since 1960
and a retiree pensioner thereof effective July 1994, died.11

Respondent thereupon filed a claim for funeral benefits, and was granted P12,00012 by the SSS.

Respondent filed on March 11, 1998 an additional claim for death benefits13 which was also granted
by the SSS on April 6, 1998.14

Cecilia Bailon-Yap (Cecilia), who claimed to be a daughter of Bailon and one Elisa Jayona (Elisa)
contested before the SSS the release to respondent of the death and funeral benefits. She claimed
that Bailon contracted three marriages in his lifetime, the first with Alice, the second with her mother
Elisa, and the third with respondent, all of whom are still alive; she, together with her siblings, paid
for Bailon’s medical and funeral expenses; and all the documents submitted by respondent to the
SSS in support of her claims are spurious.

In support of her claim, Cecilia and her sister Norma Bailon Chavez (Norma) submitted an Affidavit
dated February 13, 199915 averring that they are two of nine children of Bailon and Elisa who
cohabited as husband and wife as early as 1958; and they were reserving their right to file the
necessary court action to contest the marriage between Bailon and respondent as they personally
know that Alice is "still very much alive."16

In the meantime, on April 5, 1999, a certain Hermes P. Diaz, claiming to be the brother and guardian
of "Aliz P. Diaz," filed before the SSS a claim for death benefits accruing from Bailon’s death,17 he
further attesting in a sworn statement18 that it was Norma who defrayed Bailon’s funeral expenses.

Elisa and seven of her children19 subsequently filed claims for death benefits as Bailon’s
beneficiaries before the SSS.20

Atty. Marites C. de la Torre of the Legal Unit of the SSS Bicol Cluster, Naga City recommended the
cancellation of payment of death pension benefits to respondent and the issuance of an order for the
refund of the amount paid to her from February 1998 to May 1999 representing such benefits; the
denial of the claim of Alice on the ground that she was not dependent upon Bailon for support during
his lifetime; and the payment of the balance of the five-year guaranteed pension to Bailon’s
beneficiaries according to the order of preference provided under the law, after the amount
erroneously paid to respondent has been collected. The pertinent portions of the Memorandum read:

1. Aliz [sic] Diaz never disappeared. The court must have been misled by misrepresentation
in declaring the first wife, Aliz [sic] Diaz, as presumptively dead.

xxxx

x x x the Order of the court in the "Petition to Declare Alice Diaz Presumptively Dead," did
not become final. The presence of Aliz [sic] Diaz, is contrary proof that rendered it invalid.

xxxx

3. It was the deceased member who abandoned his wife, Aliz [sic] Diaz. He, being in bad
faith, and is the deserting spouse, his remarriage is void, being bigamous.

xxxx

In this case, it is the deceased member who was the deserting spouse and who remarried, thus his
marriage to Teresita Jarque, for the second time was void as it was bigamous. To require affidavit of
reappearance to terminate the second marriage is not necessary as there is no disappearance of
Aliz [sic] Diaz, the first wife, and a voidable marriage [sic], to speak of.21 (Underscoring supplied)

In the meantime, the SSS Sorsogon Branch, by letter of August 16, 2000,22 advised respondent that
as Cecilia and Norma were the ones who defrayed Bailon’s funeral expenses, she should return
the P12,000 paid to her.

In a separate letter dated September 7, 1999,23 the SSS advised respondent of the cancellation of
her monthly pension for death benefits in view of the opinion rendered by its legal department that
her marriage with Bailon was void as it was contracted while the latter’s marriage with Alice was still
subsisting; and the December 10, 1970 CFI Order declaring Alice presumptively dead did not
become final, her "presence" being "contrary proof" against the validity of the order. It thus requested
respondent to return the amount of P24,000 representing the total amount of monthly pension she
had received from the SSS from February 1998 to May 1999.
Respondent protested the cancellation of her monthly pension for death benefits by letter to the SSS
dated October 12, 1999.24 In a subsequent letter dated November 27, 199925 to the SSC, she
reiterated her request for the release of her monthly pension, asserting that her marriage with Bailon
was not declared before any court of justice as bigamous or unlawful, hence, it remained valid and
subsisting for all legal intents and purposes as in fact Bailon designated her as his beneficiary.

The SSS, however, by letter to respondent dated January 21, 2000,26 maintained the denial of her
claim for and the discontinuance of payment of monthly pension. It advised her, however, that she
was not deprived of her right to file a petition with the SSC.

Respondent thus filed a petition27 against the SSS before the SSC for the restoration to her of her
entitlement to monthly pension.

In the meantime, respondent informed the SSS that she was returning, under protest, the amount
of P12,000 representing the funeral benefits she received, she alleging that Norma and her siblings
"forcibly and coercively prevented her from spending any amount during Bailon’s wake."28

After the SSS filed its Answer29 to respondent’s petition, and the parties filed their respective Position
Papers, one Alicia P. Diaz filed an Affidavit30 dated August 14, 2002 with the SSS Naga Branch
attesting that she is the widow of Bailon; she had only recently come to know of the petition filed by
Bailon to declare her presumptively dead; it is not true that she disappeared as Bailon could have
easily located her, she having stayed at her parents’ residence in Barcelona, Sorsogon after she
found out that Bailon was having an extramarital affair; and Bailon used to visit her even after their
separation.

By Resolution of April 2, 2003, the SSC found that the marriage of respondent to Bailon was void
and, therefore, she was "just a common-law-wife." Accordingly it disposed as follows,
quoted verbatim:

WHEREFORE, this Commission finds, and so holds, that petitioner Teresita Jarque-Bailon is not the
legitimate spouse and primary beneficiary of SSS member Clemente Bailon.

Accordingly, the petitioner is hereby ordered to refund to the SSS the amount of P24,000.00
representing the death benefit she received therefrom for the period February 1998 until May 1999
as well as P12,000.00 representing the funeral benefit.

The SSS is hereby ordered to pay Alice (a.k.a. Aliz) Diaz-Bailon the appropriate death benefit arising
from the demise of SSS member Clemente Bailon in accordance with Section 8(e) and (k) as well as
Section 13 of the SS Law, as amended, and its prevailing rules and regulations and to inform this
Commission of its compliance herewith.

SO ORDERED.31 (Underscoring supplied)

In so ruling against respondent, the SSC ratiocinated.

After a thorough examination of the evidence at hand, this Commission comes to the inevitable
conclusion that the petitioner is not the legitimate wife of the deceased member.

xxxx
There is x x x ample evidence pointing to the fact that, contrary to the declaration of the then CFI of
Sorsogon (10th Judicial District), the first wife never disappeared as the deceased member
represented in bad faith. This Commission accords credence to the findings of the SSS contained in
its Memorandum dated August 9, 1999,32 revealing that Alice (a.k.a. Aliz) Diaz never left Barcelona,
Sorsogon, after her separation from Clemente Bailon x x x.

As the declaration of presumptive death was extracted by the deceased member using artifice and
by exerting fraud upon the unsuspecting court of law, x x x it never had the effect of giving the
deceased member the right to marry anew. x x x [I]t is clear that the marriage to the petitioner is
void, considering that the first marriage on April 25, 1955 to Alice Diaz was not previously annulled,
invalidated or otherwise dissolved during the lifetime of the parties thereto. x x x as determined
through the investigation conducted by the SSS, Clemente Bailon was the abandoning spouse, not
Alice Diaz Bailon.

xxxx

It having been established, by substantial evidence, that the petitioner was just a common-law
wife of the deceased member, it necessarily follows that she is not entitled as a primary beneficiary,
to the latter’s death benefit. x x x

xxxx

It having been determined that Teresita Jarque was not the legitimate surviving spouse and primary
beneficiary of Clemente Bailon, it behooves her to refund the total amount of death benefit she
received from the SSS for the period from February 1998 until May 1999 pursuant to the principle
of solutio indebiti x x x

Likewise, it appearing that she was not the one who actually defrayed the cost of the wake and
burial of Clemente Bailon, she must return the amount of P12,000.00 which was earlier given to her
by the SSS as funeral benefit.33 (Underscoring supplied)

Respondent’s Motion for Reconsideration34 having been denied by Order of June 4, 2003, she filed a
petition for review35 before the Court of Appeals (CA).

By Decision of June 23, 2004, the CA reversed and set aside the April 2, 2003 Resolution and June
4, 2003 Order of the SSC and thus ordered the SSS to pay respondent all the pension benefits due
her. Held the CA:

x x x [T]he paramount concern in this case transcends the issue of whether or not the decision of the
then CFI, now RTC, declaring Alice Diaz presumptively dead has attained finality but, more
importantly, whether or not the respondents SSS and Commission can validly re-evaluate the
findings of the RTC, and on its own, declare the latter’s decision to be bereft of any basis. On similar
import, can respondents SSS and Commission validly declare the first marriage subsisting and the
second marriage null and void?

xxxx

x x x while it is true that a judgment declaring a person presumptively dead never attains finality as
the finding that "the person is unheard of in seven years is merely a presumption juris tantum," the
second marriage contracted by a person with an absent spouse endures until annulled. It is only the
competent court that can nullify the second marriage pursuant to Article 87 of the Civil Code and
upon the reappearance of the missing spouse, which action for annulment may be filed. Nowhere
does the law contemplates [sic] the possibility that respondent SSS may validly declare the second
marriage null and void on the basis alone of its own investigation and declare that the decision of the
RTC declaring one to be presumptively dead is without basis.

Respondent SSS cannot arrogate upon itself the authority to review the decision of the regular
courts under the pretext of determining the actual and lawful beneficiaries of its members.
Notwithstanding its opinion as to the soundness of the findings of the RTC, it should extend due
credence to the decision of the RTC absent of [sic] any judicial pronouncement to the contrary. x x x

x x x [A]ssuming arguendo that respondent SSS actually possesses the authority to declare the

decision of the RTC to be without basis, the procedure it followed was offensive to the principle of
fair play and thus its findings are of doubtful quality considering that petitioner Teresita was not given
ample opportunity to present evidence for and her behalf.

xxxx

Respondent SSS is correct in stating that the filing of an Affidavit of Reappearance with the Civil
Registry is no longer practical under the premises. Indeed, there is no more first marriage to restore
as the marital bond between Alice Diaz and Clemente Bailon was already terminated upon the
latter’s death. Neither is there a second marriage to terminate because the second marriage was
likewise dissolved by the death of Clemente Bailon.

However, it is not correct to conclude that simply because the filing of the Affidavit of Reappearance
with the Civil Registry where parties to the subsequent marriage reside is already inutile, the
respondent SSS has now the authority to review the decision of the RTC and consequently declare
the second marriage null and void.36 (Emphasis and underscoring supplied)

The SSC and the SSS separately filed their Motions for Reconsideration37 which were both denied
for lack of merit.

Hence, the SSS’ present petition for review on certiorari38 anchored on the following grounds:

THE DECISION OF THE HONORABLE COURT OF APPEALS IS CONTRARY TO LAW.

II

THE HONORABLE COURT OF APPEALS GRAVELY ABUSED ITS DISCRETION AMOUNTING

TO LACK OF JURISDICTION.39

The SSS faults the CA for failing to give due consideration to the findings of facts of the SSC on the
prior and subsisting marriage between Bailon and Alice; in disregarding the authority of the SSC to
determine to whom, between Alice and respondent, the death benefits should be awarded pursuant
to Section 540 of the Social Security Law; and in declaring that the SSS did not give respondent due
process or ample opportunity to present evidence in her behalf.

The SSS submits that "the observations and findings relative to the CFI proceedings are of no
moment to the present controversy, as the same may be considered only as obiter dicta in view of
the SSC’s finding of the existence of a prior and subsisting marriage between Bailon and Alice by
virtue of which Alice has a better right to the death benefits."41

The petition fails.

That the SSC is empowered to settle any dispute with respect to SSS coverage, benefits and
contributions, there is no doubt. In so exercising such power, however, it cannot review, much less
reverse, decisions rendered by courts of law as it did in the case at bar when it declared that the
December 10, 1970 CFI Order was obtained through fraud and subsequently disregarded the same,
making its own findings with respect to the validity of Bailon and Alice’s marriage on the one hand
and the invalidity of Bailon and respondent’s marriage on the other.

In interfering with and passing upon the CFI Order, the SSC virtually acted as an appellate court.
The law does not give the SSC unfettered discretion to trifle with orders of regular courts in the
exercise of its authority to determine the beneficiaries of the SSS.

The two marriages involved herein having been solemnized prior to the effectivity on August 3, 1988
of the Family Code, the applicable law to determine their validity is the Civil Code which was the law
in effect at the time of their celebration.42

Article 83 of the Civil Code43 provides:

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

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

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

Under the foregoing provision of the Civil Code, a subsequent marriage contracted during the
lifetime of the first spouse is illegal and void ab initio unless the prior marriage is first annulled or
dissolved or contracted under any of the three exceptional circumstances. It bears noting that the
marriage under any of these exceptional cases is deemed valid "until declared null and void by a
competent court." It follows that the onus probandi in these cases rests on the party assailing the
second marriage.44

In the case at bar, as found by the CFI, Alice had been absent for 15 consecutive years45 when
Bailon sought the declaration of her presumptive death, which judicial declaration was not even a
requirement then for purposes of remarriage.46

Eminent jurist Arturo M. Tolentino (now deceased) commented:

Where a person has entered into two successive marriages, a presumption arises in favor of the
validity of the second marriage, and the burden is on the party attacking the validity of the second
marriage to prove that the first marriage had not been dissolved; it is not enough to prove the first
marriage, for it must also be shown that it had not ended when the second marriage was
contracted. The presumption in favor of the innocence of the defendant from crime or wrong and of
the legality of his second marriage, will prevail over the presumption of the continuance of life of the
first spouse or of the continuance of the marital relation with such first spouse.47 (Underscoring
supplied)

Under the Civil Code, a subsequent marriage being voidable,48 it is terminated by final judgment of
annulment in a case instituted by the absent spouse who reappears or by either of the spouses in
the subsequent marriage.

Under the Family Code, no judicial proceeding to annul a subsequent marriage is necessary. Thus
Article 42 thereof provides:

Art. 42. The subsequent marriage referred to in the preceding Article shall be automatically
terminated by the recording of the affidavit of reappearance of the absent spouse, unless there is
a judgment annulling the previous marriage or declaring it void ab initio.

A sworn statement of the fact and circumstances of reappearance shall be recorded in the civil
registry of the residence of the parties to the subsequent marriage at the instance of any interested
person, with due notice to the spouses of the subsequent marriage and without prejudice to the
fact of reappearance being judicially determined in case such fact is disputed. (Emphasis and
underscoring supplied)

The termination of the subsequent marriage by affidavit provided by the above-quoted provision of
the Family Code does not preclude the filing of an action in court to prove the reappearance of the
absentee and obtain a declaration of dissolution or termination of the subsequent marriage.49

If the absentee reappears, but no step is taken to terminate the subsequent marriage, either by
affidavit or by court action, such absentee’s mere reappearance, even if made known to the spouses
in the subsequent marriage, will not terminate such marriage.50 Since the second marriage has been
contracted because of a presumption that the former spouse is dead, such presumption continues
inspite of the spouse’s physical reappearance, and by fiction of law, he or she must still be regarded
as legally an absentee until the subsequent marriage is terminated as provided by law.51

If the subsequent marriage is not terminated by registration of an affidavit of reappearance or by

judicial declaration but by death of either spouse as in the case at bar, Tolentino submits:

x x x [G]enerally if a subsequent marriage is dissolved by the death of either spouse, the effects of
dissolution of valid marriages shall arise. The good or bad faith of either spouse can no longer be
raised, because, as in annullable or voidable marriages, the marriage cannot be questioned except
in a direct action for annulment.52 (Underscoring supplied)

Similarly, Lapuz v. Eufemio53 instructs:

In fact, even if the bigamous marriage had not been void ab initio but only voidable under Article 83,
paragraph 2, of the Civil Code, because the second marriage had been contracted with the first wife
having been an absentee for seven consecutive years, or when she had been generally believed
dead, still the action for annulment became extinguished as soon as one of the three persons
involved had died, as provided in Article 87, paragraph 2, of the Code, requiring that the action for
annulment should be brought during the lifetime of any one of the parties involved. And
furthermore, the liquidation of any conjugal partnership that might have resulted from such voidable
marriage must be carried out "in the testate or intestate proceedings of the deceased spouse," as
expressly provided in Section 2 of the Revised Rule 73, and not in the annulment
proceeding.54 (Emphasis and underscoring supplied)

It bears reiterating that a voidable marriage cannot be assailed collaterally except in a direct
proceeding. Consequently, such marriages can be assailed only during the lifetime of the parties and
not after the death of either, in which case the parties and their offspring will be left as if the marriage
had been perfectly valid.55 Upon the death of either, the marriage cannot be impeached, and is made
good ab initio.56

In the case at bar, as no step was taken to nullify, in accordance with law, Bailon’s and respondent’s
marriage prior to the former’s death in 1998, respondent is rightfully the dependent spouse-
beneficiary of Bailon.

In light of the foregoing discussions, consideration of the other issues raised has been rendered
unnecessary.

WHEREFORE, the petition is DENIED.

No costs.

SO ORDERED.
 G.R. No. 187061, October 08, 2014

CELERINA J. SANTOS, Petitioner, v. RICARDO T. SANTOS, Respondent.

DECISION

LEONEN, J.:

The proper remedy for a judicial declaration of presumptive death obtained by extrinsic fraud is an action to
annul the judgment. An affidavit of reappearance is not the proper remedy when the person declared
presumptively dead has never been absent.

This is a petition for review on certiorari filed by Celerina J. Santos, assailing the Court of Appeals'
resolutions dated November 28, 2008 and March 5, 2009. The Court of Appeals dismissed the petition for
the annulment of the trial court's judgment declaring her presumptively dead.

On July 27, 2007, the Regional Trial Court of Tarlac City declared petitioner Celerina J. Santos (Celerina)
presumptively dead after her husband, respondent Ricardo T. Santos (Ricardo), had filed a petition for
declaration of absence or presumptive death for the purpose of remarriage on  June 15, 2007.1 Ricardo
remarried on September 17, 2008.2 chanrobleslaw

In his petition for declaration of absence or presumptive death, Ricardo alleged that he and Celerina rented
an apartment somewhere in San Juan, Metro Manila; after they had gotten married on June 18, 1980.3 After
a year, they moved to Tarlac City. They were engaged in the buy and sell business.4 chanrobleslaw

Ricardo claimed that their business did not prosper.5 As a result, Celerina convinced him to allow her to work
as a domestic helper in Hong Kong.6 Ricardo initially refused but because of Celerina's insistence, he allowed
her to work abroad.7 She allegedly applied in an employment agency in Ermita, Manila, in February 1995.
She left Tarlac two months after and was never heard from again.8 chanrobleslaw

Ricardo further alleged that he exerted efforts to locate Celerina.9 He went to Celerina's parents in Cubao,
Quezon City, but they, too, did not know their daughter's whereabouts.10 He also inquired about her from
other relatives and friends, but no one gave him any information.11 chanrobleslaw

Ricardo claimed that it was almost 12 years from the date of his Regional Trial Court petition since Celerina
left.  He believed that she had passed away.12 chanrobleslaw

Celerina claimed that she learned about Ricardo's petition only sometime in October 2008 when she could
no longer avail the remedies of new trial, appeal, petition for relief, or other appropriate remedies.13 chanrobleslaw

On November 17, 2008, Celerina filed a petition for annulment of judgment14 before the Court of Appeals on
the grounds of extrinsic fraud and lack of jurisdiction. She argued that she was deprived her day in court
when Ricardo, despite his knowledge of her true residence, misrepresented to the court that she was a
resident of Tarlac City.15 According to Celerina, her true residence was in Neptune Extension, Congressional
Avenue, Quezon City.16 This residence had been her and Ricardo's conjugal dwelling since 1989 until Ricardo
left in May 2008.17 As a result of Ricardo's misrepresentation, she was deprived of any notice of and
opportunity to oppose the petition declaring her presumptively dead.18 chanrobleslaw

Celerina claimed that she never resided in Tarlac.  She also never left and worked as a domestic helper
abroad.20 Neither did she go to an employment agency in February 1995.21 She also claimed that it was not
true that she had been absent for 12 years. Ricardo was aware that she never left their conjugal dwelling in
Quezon City.22 It was he who left the conjugal dwelling in May 2008 to cohabit with another
woman.23 Celerina referred to a joint affidavit executed by their children to support her contention that
Ricardo made false allegations in his petition.24 chanrobleslaw

Celerina also argued that the court did not acquire jurisdiction over Ricardo's petition because it had never
been published in a newspaper.25 She added that the Office of the Solicitor General and the Provincial
Prosecutor's Office were not furnished copies of Ricardo's petition.26 chanrobleslaw
The Court of Appeals issued the resolution dated November 28, 2008, dismissing Celerina's petition for
annulment of judgment for being a wrong mode of remedy.27 According to the Court of Appeals, the proper
remedy was to file a sworn statement before the civil registry, declaring her reappearance in accordance
with Article 42 of the Family Code.28 chanrobleslaw

Celerina filed a motion for reconsideration of the Court of Appeals' resolution dated November 28,
2008.29 The Court of Appeals denied the motion for reconsideration in the resolution dated March 5,
2009.30chanrobleslaw

Hence, this petition was filed.

The issue for resolution is whether the Court of Appeals erred in dismissing Celerina's petition for annulment
of judgment for being a wrong remedy for a fraudulently obtained judgment declaring presumptive death.

Celerina argued that filing an affidavit of reappearance under Article 42 of the Family Code is appropriate
only when the spouse is actually absent and the spouse seeking the declaration of presumptive death
actually has a well-founded belief of the spouse's death.31 She added that it would be inappropriate to file an
affidavit of reappearance if she did not disappear in the first place.32 She insisted that an action for
annulment of judgment is proper when the declaration of presumptive death is obtained fraudulently.33 chanrobleslaw

Celerina further argued that filing an affidavit of reappearance under Article 42 of the Family Code would not
be a sufficient remedy because it would not nullify the legal effects of the judgment declaring her
presumptive death.34 chanrobleslaw

In Ricardo's comment,35 he argued that a petition for annulment of judgment is not the proper remedy
because it cannot be availed when there are other remedies available. Celerina could always file an affidavit
of reappearance to terminate the subsequent marriage. Ricardo iterated the Court of Appeals' ruling that the
remedy afforded to Celerina under Article 42 of the Family Code is the appropriate remedy.

The petition is meritorious.

Annulment of judgment is the remedy when the Regional Trial Court's judgment, order, or resolution has
become final, and the "remedies of new trial, appeal, petition for relief (or other appropriate remedies) are
no longer available through no fault of the petitioner."36 chanrobleslaw

The grounds for annulment of judgment are extrinsic fraud and lack of jurisdiction.37 This court defined
extrinsic fraud in Stilianopulos v. City of Legaspi:38 chanrobleslaw

For fraud to become a basis for annulment of judgment, it has to be extrinsic or actual. It is intrinsic when
the fraudulent acts pertain to an issue involved in the original action or where the acts constituting the fraud
were or could have been litigated, It is extrinsic or collateral when a litigant commits acts outside of the trial
which prevents a parly from having a real contest, or from presenting all of his case, such that there is no
fair submission of the controversy.39 (Emphasis supplied)

Celerina alleged in her petition for annulment of judgment that there was fraud when Ricardo deliberately
made false allegations in the court with respect to her residence.40 Ricardo also falsely claimed that she was
absent for 12 years. There was also no publication of the notice of hearing of Ricardo's petition in a
newspaper of general circulation.41 Celerina claimed that because of these, she was deprived of notice and
opportunity to oppose Ricardo's petition to declare her presumptively dead.42 chanrobleslaw

Celerina alleged that all the facts supporting Ricardo's petition for declaration of presumptive death were
false.43 Celerina further claimed that the court did not acquire jurisdiction because the Office of the Solicitor
General and the Provincial Prosecutor's Office were not given copies of Ricardo's petition.44 chanrobleslaw

These are allegations of extrinsic fraud and lack of jurisdiction. Celerina alleged in her petition with the Court
of Appeals sufficient ground/s for annulment of judgment.

Celerina filed her petition for annulment of judgment45 on November 17, 2008. This was less than two years
from the July 27, 2007 decision declaring her presumptively dead and about a month from her discovery of
the decision in October 2008. The petition was, therefore, filed within the four-year period allowed by law in
case of extrinsic fraud, and before the action is barred by laches, which is the period allowed in case of lack
of jurisdiction.46 chanrobleslaw
There was also no other sufficient remedy available to Celerina at the time of her discovery of the fraud
perpetrated on her.
The choice of remedy is important because remedies carry with them certain admissions, presumptions, and
conditions.

The Family Code provides that it is the proof of absence of a spouse for four consecutive years, coupled with
a well-founded belief by the present spouse that the absent spouse is already dead, that constitutes a
justification for a second marriage during the subsistence of another marriage.47 chanrobleslaw

The Family Code also provides that the second marriage is in danger of being terminated by the
presumptively dead spouse when he or she reappears. Thus: chanRoblesvirtualLawlibrary

Article 42. The subsequent marriage referred to in the preceding Article shall be automatically terminated by
the recording of the affidavit of reappearance of the absent spouse, unless there is a judgment annulling the
previous marriage or declaring it void ab initio.

A sworn statement  of the fact and circumstances of reappearance shall be recorded in the civil registry of
the residence of the parties to the subsequent marriage at the instance of any interested person, with due
notice to the spouses of the subsequent marriage and without prejudice to the fact of reappearance being
judicially determined in case such fact is disputed. (Emphasis supplied)

In other words, the Family Code provides the presumptively dead spouse with the remedy of terminating the
subsequent marriage by mere reappearance.

The filing of an affidavit of reappearance is an admission on the part of the first spouse that his or her
marriage to the present spouse was terminated when he or she was declared absent or presumptively dead.

Moreover, a close reading of the entire Article 42 reveals that the termination of the subsequent marriage by
reappearance is subject to several conditions: (1) the non-existence of a judgment annulling the previous
marriage or declaring it void ab initio; (2) recording in the civil registry of the residence of the parties to the
subsequent marriage of the sworn statement of fact and circumstances of reappearance; (3) due notice to
the spouses of the subsequent marriage of the fact of reappearance; and (4) the fact of reappearance must
either be undisputed or judicially determined.

The existence of these conditions means that reappearance does not always immediately cause the
subsequent marriage's termination.  Reappearance of the absent or presumptively dead spouse will cause
the termination of the subsequent marriage only when all the conditions enumerated in the Family Code are
present.

Hence, the subsequent marriage may still subsist despite the absent or presumptively dead spouse's
reappearance (1) if the first marriage has already been annulled or has been declared a nullity; (2) if the
sworn statement of the reappearance is not recorded in the civil registry of the subsequent spouses'
residence; (3) if there is no notice to the subsequent spouses; or (4) if the fact of reappearance is disputed
in the proper courts of law, and no judgment is yet rendered confirming, such fact of reappearance.

When subsequent marriages are contracted after a judicial declaration of presumptive death, a presumption
arises that the first spouse is already dead and that the second marriage is legal. This presumption should
prevail over the continuance of the marital relations with the first spouse.48 The second marriage, as with all
marriages, is presumed valid.49 The burden of proof to show that the first marriage was not properly
dissolved rests on the person assailing the validity of the second marriage.50 chanrobleslaw

This court recognized the conditional nature of reappearance as a cause for terminating the subsequent
marriage in Social Security System v. Vda. de Bailon.51 This court noted52 that mere reappearance will not
terminate the subsequent marriage even if the parties to the subsequent marriage were notified if there was
"no step . . . taken to terminate the subsequent marriage, either by [filing an] affidavit [of reappearance] or
by court action[.]"53 "Since the second marriage has been contracted because of a presumption that the
former spouse is dead, such presumption continues inspite of the spouse's physical reappearance, and
by fiction of law, he or she must still be regarded as legally an absentee until the subsequent marriage is
terminated as provided by law."54 chanrobleslaw

The choice of the proper remedy is also important for purposes of determining the status of the second
marriage and the liabilities of the spouse who, in bad faith, claimed that the other spouse was absent.

A second marriage is bigamous while the first subsists.  However, a bigamous subsequent marriage may be
considered valid when the following are present: chanRoblesvirtualLawlibrary

1) The prior spouse had been absent for four consecutive years;
2) The spouse present has a well-founded belief that the absent spouse was already dead;
3) There must be a summary proceeding for the declaration of presumptive death of the
absent spouse; and
55
4) There is a court declaration of presumptive death of the absent spouse.
A subsequent marriage contracted in bad faith, even if it was contracted after a court declaration of
presumptive death, lacks the requirement of a well-founded belief56 that the spouse is already dead. The
first marriage will not be considered as. validly terminated. Marriages contracted prior to the valid
termination of a subsisting marriage are generally considered bigamous and void.57 Only a subsequent
marriage contracted in good faith is protected by law.

Therefore, the party who contracted the subsequent marriage in bad faith is also not immune from an action
to declare his subsequent marriage void for being bigamous. The prohibition against marriage during the
subsistence of another marriage still applies.58 chanrobleslaw

If, as Celerina contends, Ricardo was in bad faith when he filed his petition to declare her presumptively
dead and when he contracted the subsequent marriage, such marriage would be considered void for being
bigamous under Article 35(4) of the Family Code. This is because the circumstances lack the element of
"well-founded belief under Article 41 of the Family Code, which is essential for the exception to the rule
against bigamous marriages to apply.59 chanrobleslaw

The provision on reappearance in the Family Code as a remedy to effect the termination of the subsequent
marriage does not preclude the spouse who was declared presumptively dead from availing other remedies
existing in law. This court had, in fact, recognized that a subsequent marriage may also be terminated by
filing "an action in court to prove the reappearance of the absentee and obtain a declaration of dissolution or
termination of the subsequent marriage."60 chanrobleslaw

Celerina does not admit to have been absent. She also seeks not merely the termination of the subsequent
marriage but also the nullification of its effects. She contends that reappearance is not a sufficient remedy
because it will only terminate the subsequent marriage but not nullify the effects of the declaration of her
presumptive death and the subsequent marriage.

Celerina is correct. Since an undisturbed subsequent marriage under Article 42 of the Family Code is valid
until terminated, the "children of such marriage shall be considered legitimate, and the property relations of
the spouse[s] in such marriage will be the same as in valid marriages."61 If it is terminated by mere
reappearance, the children of the subsequent marriage conceived before the termination shall still be
considered legitimate.62 Moreover, a judgment declaring presumptive death is a defense against prosecution
for bigamy.63chanrobleslaw

It is true that in most cases, an action to declare the nullity of the subsequent marriage may nullify the
effects of the subsequent marriage, specifically, in relation to the status of children and the prospect of
prosecuting a respondent for bigamy.

However, "a Petition for Declaration of Absolute Nullity of Void Marriages may be filed solely by the husband
or wife."64  This means that even if Celerina is a real party in interest who stands to be benefited or injured
by the outcome of an action to nullify the second marriage,65 this remedy is not available to her.

Therefore, for the purpose of not only terminating the subsequent marriage but also of nullifying the effects
of the declaration of presumptive death and the subsequent marriage, mere filing of an affidavit of
reappearance would not suffice. Celerina's choice to file an action for annulment of judgment will, therefore,
lie.

WHEREFORE, the case is REMANDED to the Court of Appeals for determination of the existence of
extrinsic fraud, grounds for nullity/annulment of the first marriage, and the merits of the petition.
SO ORDERED. cralawlawlibrary

G.R. No. 184621               December 10, 2013

REPUBLIC OF THE PHILIPPINES, Petitioner,

vs.
MARIA FE ESPINOSA CANTOR, Respondent.

DECISION

BRION, J.:

The petition for review on certiorari  before us assails the decision  dated August 27, 2008 of the
1 2

Court of Appeals (CA) in CA-G.R. SP No. 01558-MIN which affirmed be order  dated December 15,
3

2006 of the Regional Trial Court (RTC), Branch 25, Koronadal City, South Cotabato, in SP Proc.
Case No. 313-25, declaring Jerry F. Cantor, respondent Maria Fe Espinosa Cantor’s husband,
presumptively dead under Article 41 of the Family Code.

The Factual Antecedents

The respondent and Jerry were married on September 20, 1997. They lived together as husband
and wife in their conjugal dwelling in Agan Homes, Koronadal City, South Cotabato. Sometime in
January 1998, the couple had a violent quarrel brought about by: (1) the respondent’s inability to
reach "sexual climax" whenever she and Jerry would have intimate moments; and (2) Jerry’s
expression of animosity toward the respondent’s father.

After their quarrel, Jerry left their conjugal dwelling and this was the last time that the respondent
ever saw him. Since then, she had not seen, communicated nor heard anything from Jerry or about
his whereabouts.

On May 21, 2002, or more than four (4) years from the time of Jerry’s disappearance, the
respondent filed before the RTC a petition4for her husband’s declaration of presumptive death,
docketed as SP Proc. Case No. 313-25. She claimed that she had a well-founded belief that Jerry
was already dead. She alleged that she had inquired from her mother-in-law, her brothers-in-law, her
sisters-in-law, as well as her neighbors and friends, but to no avail. In the hopes of finding Jerry, she
also allegedly made it a point to check the patients’ directory whenever she went to a hospital. All
these earnest efforts, the respondent claimed, proved futile, prompting her to file the petition in court.

The Ruling of the RTC

After due proceedings, the RTC issued an order granting the respondent’s petition and declaring
Jerry presumptively dead. It concluded that the respondent had a well-founded belief that her
husband was already dead since more than four (4) years had passed without the former receiving
any news about the latter or his whereabouts. The dispositive portion of the order dated December
15, 2006 reads:

WHEREFORE, the Court hereby declares, as it hereby declared that respondent Jerry F. Cantor is
presumptively dead pursuant to Article 41 of the Family Code of the Philippines without prejudice to
the effect of the reappearance of the absent spouse Jerry F. Cantor. 5
The Ruling of the CA

The case reached the CA through a petition for certiorari6filed by the petitioner, Republic of the
Philippines, through the Office of the Solicitor General (OSG). In its August 27, 2008 decision, the
CA dismissed the petitioner’s petition, finding no grave abuse of discretion on the RTC’s part, and,
accordingly, fully affirmed the latter’s order, thus:

WHEREFORE, premises foregoing (sic), the instant petition is hereby DISMISSED and the assailed
Order dated December 15, 2006 declaring Jerry F. Cantor presumptively dead is hereby AFFIRMED
in toto.
7

The petitioner brought the matter via a Rule 45 petition before this Court. The Petition The petitioner
contends that certiorari lies to challenge the decisions, judgments or final orders of trial courts in
petitions for declaration of presumptive death of an absent spouse under Rule 41 of the Family
Code. It maintains that although judgments of trial courts in summary judicial proceedings, including
presumptive death cases, are deemed immediately final and executory (hence, not appeal able
under Article 247 of the Family Code), this rule does not mean that they are not subject to review
on certiorari.

The petitioner also posits that the respondent did not have a well-founded belief to justify the
declaration of her husband’s presumptive death. It claims that the respondent failed to conduct the
requisite diligent search for her missing husband. Likewise, the petitioner invites this Court’s
attention to the attendant circumstances surrounding the case, particularly, the degree of search
conducted and the respondent’s resultant failure to meet the strict standard under Article 41 of the
Family Code.

The Issues

The petition poses to us the following issues:

(1) Whether certiorarilies to challenge the decisions, judgments or final orders of trial courts
in petitions for declaration of presumptive death of an absent spouse under Article 41 of the
Family Code; and

(2) Whether the respondent had a well-founded belief that Jerry is already dead.

The Court’s Ruling

We grant the petition.

a. On the Issue of the Propriety of Certiorari as a Remedy

Court’s Judgment in the Judicial

Proceedings for Declaration of
Presumptive Death Is Final and
Executory, Hence, Unappealable

The Family Code was explicit that the court’s judgment in summary proceedings, such as the
declaration of presumptive death of an absent spouse under Article 41 of the Family Code, shall be
immediately final and executory.
Article 41,in relation to Article 247, of the Family Code provides:

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

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

Art. 247. The judgment of the court shall be immediately final and executory. [underscores ours]

With the judgment being final, it necessarily follows that it is no longer subject to an appeal, the
dispositions and conclusions therein having become immutable and unalterable not only as against
the parties but even as against the courts.  Modification of the court’s ruling, no matter how
8

erroneous is no longer permissible. The final and executory nature of this summary proceeding thus
prohibits the resort to appeal. As explained in Republic of the Phils. v. Bermudez-Lorino,  the right to
9

appeal is not granted to parties because of the express mandate of Article 247 of the Family Code,
to wit:

In Summary Judicial Proceedings under the Family Code, there is no reglementary period within
which to perfect an appeal, precisely because judgments rendered thereunder, by express provision
of [Article] 247, Family Code, supra, are "immediately final and executory." It was erroneous,
therefore, on the part of the RTCto give due course to the Republic’s appeal and order the
transmittal of the entire records of the case to the Court of Appeals.

An appellate court acquires no jurisdiction to review a judgment which, by express provision of law,
is immediately final and executory. As we have said in Veloria vs. Comelec, "the right to appeal is
not a natural right nor is it a part of due process, for it is merely a statutory privilege." Since, by
express mandate of Article 247 of the Family Code, all judgments rendered in summary judicial
proceedings in Family Law are "immediately final and executory," the right to appeal was not granted
to any of the parties therein. The Republic of the Philippines, as oppositor in the petition for
declaration of presumptive death, should not be treated differently. It had no right to appeal the RTC
decision of November 7, 2001. [emphases ours; italics supplied]

Certiorari Lies to Challenge the

Decisions, Judgments or Final
Orders of Trial Courts in a Summary
Proceeding for the Declaration of Presumptive
Death Under the Family Code

A losing party in this proceeding, however, is not entirely left without a remedy. While jurisprudence
tells us that no appeal can be made from the trial court's judgment, an aggrieved party may,
nevertheless, file a petition for certiorari under Rule 65 of the Rules of Court to question any abuse
of discretion amounting to lack or excess of jurisdiction that transpired.

As held in Delos Santos v. Rodriguez, et al.,  the fact that a decision has become final does not
10

automatically negate the original action of the CA to issue certiorari, prohibition and mandamus in
connection with orders or processes issued by the trial court. Certiorari may be availed of where a
court has acted without or in excess of jurisdiction or with grave abuse of discretion, and where the
ordinary remedy of appeal is not available. Such a procedure finds support in the case of Republic v.
Tango,  wherein we held that:
11

This case presents an opportunity for us to settle the rule on appeal of judgments rendered in
summary proceedings under the Family Code and accordingly, refine our previous decisions
thereon.

Article 238 of the Family Code, under Title XI: SUMMARY JUDICIAL PROCEEDINGS IN THE
FAMILY LAW, establishes the rules that govern summary court proceedings in the Family Code:

"ART. 238. Until modified by the Supreme Court, the procedural rules in this Title shall apply in all
cases provided for in this Code requiring summary court proceedings. Such cases shall be decided
in an expeditious manner without regard to technical rules."

In turn, Article 253 of the Family Code specifies the cases covered by the rules in chapters two and
three of the same title. It states:

"ART. 253. The foregoing rules in Chapters 2and 3 hereof shall likewise govern summary
proceedings filed under Articles 41, 51, 69, 73, 96, 124 and 217, insofar as they are
applicable."(Emphasis supplied.)

In plain text, Article 247 in Chapter 2 of the same title reads:

"ART.247. The judgment of the court shall be immediately final and executory."

By express provision of law, the judgment of the court in a summary proceeding shall be
immediately final and executory. As a matter of course, it follows that no appeal can be had of the
trial court's judgment ina summary proceeding for the declaration of presumptive death of an absent
spouse under Article 41 of the Family Code. It goes without saying, however, that an aggrieved party
may file a petition for certiorari to question abuse of discretion amounting to lack of jurisdiction. Such
petition should be filed in the Court of Appeals in accordance with the Doctrine of Hierarchy of
Courts. To be sure, even if the Court's original jurisdiction to issue a writ of certiorari is concurrent
with the RTCs and the Court of Appeals in certain cases, such concurrence does not sanction an
unrestricted freedom of choice of court forum. [emphasis ours]

Viewed in this light, we find that the petitioner’s resort to certiorari under Rule 65 of the Rules of
Court to question the RTC’s order declaring Jerry presumptively dead was proper.

b. On the Issue of the Existence of Well-Founded Belief

The Essential Requisites for the

Declaration of Presumptive Death
Under Article 41 of the Family Code

Before a judicial declaration of presumptive death can be obtained, it must be shown that the prior
spouse had been absent for four consecutive years and the present spouse had a well-founded
belief that the prior spouse was already dead. Under Article 41 of the Family Code, there are four (4)
essential requisites for the declaration of presumptive death:
 1. That the absent spouse has been missing for four consecutive years, or two consecutive
years if the disappearance occurred where there is danger of death under the circumstances
laid down in Article 391, Civil Code;

2. That the present spouse wishes to remarry;

3. That the present spouse has a well-founded belief that the absentee is dead; and

4. That the present spouse files a summary proceeding for the declaration of presumptive
death of the absentee. 12

The Present Spouse Has the Burden

of Proof to Show that All the
Requisites Under Article 41 of the
Family Code Are Present

The burden of proof rests on the present spouse to show that all the requisites under Article 41 of
the Family Code are present. Since it is the present spouse who, for purposes of declaration of
presumptive death, substantially asserts the affirmative of the issue, it stands to reason that the
burden of proof lies with him/her. He who alleges a fact has the burden of proving it and mere
allegation is not evidence.
13

Declaration of Presumptive Death

Under Article 41 of the Family Code
Imposes a Stricter Standard

Notably, Article 41 of the Family Code, compared to the old provision of the Civil Code which it
superseded, imposes a stricter standard. It requires a "well-founded belief " that the absentee is
already dead before a petition for declaration of presumptive death can be granted. We have had
occasion to make the same observation in Republic v. Nolasco,  where we noted the crucial
14

differences between Article 41 of the Family Code and Article 83 of the Civil Code, to wit:

Under Article 41, the time required for the presumption to arise has been shortened to four (4) years;
however, there is need for a judicial declaration of presumptive death to enable the spouse present
to remarry. Also, Article 41 of the Family Code imposes a stricter standard than the Civil Code:
Article 83 of the Civil Code merely requires either that there be no news that such absentee is still
alive; or the absentee is generally considered to be dead and believed to be so by the spouse
present, or is presumed dead under Articles 390 and 391 of the Civil Code. The Family Code, upon
the other hand, prescribes as "well founded belief" that the absentee is already dead before a
petition for declaration of presumptive death can be granted.

Thus, mere absence of the spouse (even for such period required by the law), lack of any news that
such absentee is still alive, failure to communicate or general presumption of absence under the
Civil Code would not suffice. This conclusion proceeds from the premise that Article 41 of the Family
Code places upon the present spouse the burden of proving the additional and more stringent
requirement of "well-founded belief" which can only be discharged upon a showing of proper and
honest-to-goodness inquiries and efforts to ascertain not only the absent spouse’s whereabouts but,
more importantly, that the absent spouse is still alive or is already dead.
15

The Requirement of Well-Founded Belief

The law did not define what is meant by "well-founded belief." It depends upon the circumstances of
each particular case. Its determination, so to speak, remains on a case-to-case basis. To be able to
comply with this requirement, the present spouse must prove that his/her belief was the result of
diligent and reasonable efforts and inquiries to locate the absent spouse and that based on these
efforts and inquiries, he/she believes that under the circumstances, the absent spouseis already
dead. It requires exertion of active effort (not a mere passive one).

To illustrate this degree of "diligent and reasonable search" required by the law, an analysis of the
following relevant cases is warranted:

i. Republic of the Philippines v. Court of Appeals (Tenth Div.) 16

In Republic of the Philippines v. Court of Appeals (Tenth Div.),  the Court ruled that the present
17

spouse failed to prove that he had a well-founded belief that his absent spouse was already dead
before he filed his petition. His efforts to locate his absent wife allegedly consisted of the following:

(1) He went to his in-laws’ house to look for her;

(2) He sought the barangay captain’s aid to locate her;

(3) He went to her friends’ houses to find her and inquired about her whereabouts among his
friends;

(4) He went to Manila and worked as a part-time taxi driver to look for her in malls during his
free time;

(5) He went back to Catbalogan and again looked for her; and

(6) He reported her disappearance to the local police station and to the NBI.

Despite these alleged "earnest efforts," the Court still ruled against the present spouse. The Court
found that he failed to present the persons from whom he allegedly made inquiries and only reported
his wife’s absence after the OSG filed its notice to dismiss his petition in the RTC.

The Court also provided the following criteria for determining the existence of a "well-founded belief"
under Article 41 of the Family Code:

The belief of the present spouse must be the result of proper and honest to goodness inquiries and
efforts to ascertain the whereabouts of the absent spouse and whether the absent spouse is still
alive or is already dead. Whether or not the spouse present acted on a well-founded belief of death
of the absent spouse depends upon the inquiries to be drawn from a great many circumstances
occurring before and after the disappearance of the absent spouse and the nature and extent of the
inquiries made by [the] present spouse. 18

ii. Republic v. Granada 19

Similarly in Granada, the Court ruled that the absent spouse failed to prove her "well-founded belief"
that her absent spouse was already dead prior to her filing of the petition. In this case, the present
spouse alleged that her brother had made inquiries from their relatives regarding the absent
spouse’s whereabouts. The present spouse did not report to the police nor seek the aid of the mass
media. Applying the standards in Republic of the Philippines v. Court of Appeals (Tenth Div.),  the
20

Court ruled against the present spouse, as follows:

Applying the foregoing standards to the present case, petitioner points out that respondent Yolanda
did not initiate a diligent search to locate her absent husband. While her brother Diosdado Cadacio
testified to having inquiredabout the whereabouts of Cyrus from the latter’s relatives, these relatives
were not presented to corroborate Diosdado’s testimony. In short, respondent was allegedly not
diligent in her search for her husband. Petitioner argues that if she were, she would have sought
information from the Taiwanese Consular Office or assistance from other government agencies in
Taiwan or the Philippines. She could have also utilized mass media for this end, but she did not.
Worse, she failed to explain these omissions.

iii.Republic v. Nolasco 21

In Nolasco, the present spouse filed a petition for declaration of presumptive death of his wife, who
had been missing for more than four years. He testified that his efforts to find her consisted of:

(1) Searching for her whenever his ship docked in England;

(2) Sending her letters which were all returned to him; and

(3) Inquiring from their friends regarding her whereabouts, which all proved fruitless. The
Court ruled that the present spouse’s investigations were too sketchy to form a basis that his
wife was already dead and ruled that the pieces of evidence only proved that his wife had
chosen not to communicate with their common acquaintances, and not that she was dead.

iv.The present case

In the case at bar, the respondent’s "well-founded belief" was anchored on her alleged "earnest
efforts" to locate Jerry, which consisted of the following:

(1) She made inquiries about Jerry’s whereabouts from her in-laws, neighbors and friends;
and

(2) Whenever she went to a hospital, she saw to it that she looked through the patients’
directory, hoping to find Jerry.

These efforts, however, fell short of the "stringent standard" and degree of diligence required by
jurisprudence for the following reasons:

First, the respondent did not actively look for her missing husband.  It can be inferred from the
1âwphi1

records that her hospital visits and her consequent checking of the patients’ directory therein were
unintentional. She did not purposely undertake a diligent search for her husband as her hospital
visits were not planned nor primarily directed to look for him. This Court thus considers these
attempts insufficient to engender a belief that her husband is dead.

Second, she did not report Jerry’s absence to the police nor did she seek the aid of the authorities to
look for him. While a finding of well-founded belief varies with the nature of the situation in which the
present spouse is placed, under present conditions, we find it proper and prudent for a present
spouse, whose spouse had been missing, to seek the aid of the authorities or, at the very least,
report his/her absence to the police.
Third, she did not present as witnesses Jerry’s relatives or their neighbors and friends, who can
corroborate her efforts to locate Jerry. Worse, these persons, from whom she allegedly made
inquiries, were not even named. As held in Nolasco, the present spouse’s bare assertion that he
inquired from his friends about his absent spouse’s whereabouts is insufficient as the names of the
friends from whom he made inquiries were not identified in the testimony nor presented as
witnesses.

Lastly, there was no other corroborative evidence to support the respondent’s claim that she
conducted a diligent search. Neither was there supporting evidence proving that she had a well-
founded belief other than her bare claims that she inquired from her friends and in-laws about her
husband’s whereabouts. In sum, the Court is of the view that the respondent merely engaged in a
"passive search" where she relied on uncorroborated inquiries from her in-laws, neighbors and
friends. She failed to conduct a diligent search because her alleged efforts are insufficient to form a
well-founded belief that her husband was already dead. As held in Republic of the Philippines v.
Court of Appeals (Tenth Div.),  "[w]hether or not the spouse present acted on a well-founded belief
22

of death of the absent spouse depends upon the inquiries to be drawn from a great many
circumstances occurring before and after the disappearance of the absent spouse and the
natureand extent of the inquiries made by [the] present spouse."

Strict Standard Approach Is

Consistent with the State’s Policy
to Protect and Strengthen Marriage

In the above-cited cases, the Court, fully aware of the possible collusion of spouses in nullifying their
marriage, has consistently applied the "strictstandard" approach. This is to ensure that a petition for
declaration of presumptive death under Article 41 of the Family Code is not used as a tool to
conveniently circumvent the laws. Courts should never allow procedural shortcuts and should ensure
that the stricter standard required by the Family Code is met. In Republic of the Philippines v. Court
of Appeals (Tenth Div.),  we emphasized that:
23

In view of the summary nature of proceedings under Article 41 of the Family Code for the declaration
of presumptive death of one’s spouse, the degree of due diligence set by this Honorable Court in the
above-mentioned cases in locating the whereabouts of a missing spouse must be strictly complied
with. There have been times when Article 41 of the Family Code had been resorted to by parties
wishing to remarry knowing fully well that their alleged missing spouses are alive and well. It is even
possible that those who cannot have their marriages xxx declared null and void under Article 36 of
the Family Code resort to Article 41 of the Family Code for relief because of the xxx summary nature
of its proceedings.

The application of this stricter standard becomes even more imperative if we consider the State’s
policy to protect and strengthen the institution of marriage.  Since marriage serves as the family’s
24

foundation  and since it is the state’s policy to protect and strengthen the family as a basic social
25

institution,  marriage should not be permitted to be dissolved at the whim of the parties. In
26

interpreting and applying Article 41, this is the underlying rationale –to uphold the sanctity of
marriage. Arroyo, Jr.v. Court of Appeals  reflected this sentiment when we stressed:
27

[The]protection of the basic social institutions of marriage and the family in the preservation of which
the State has the strongest interest; the public policy here involved is of the most fundamental kind.
In Article II, Section 12 of the Constitution there is set forth the following basic state policy:

The State recognizes the sanctity of family life and shall protect and strengthen the family as a basic
autonomous social institution.
Strict Standard Prescribed Under
Article 41 of the Family Code
Is for the Present Spouse’s Benefit

The requisite judicial declaration of presumptive death of the absent spouse (and consequently, the
application of a stringent standard for its issuance) is also for the present spouse's benefit. It is
intended to protect him/her from a criminal prosecution of bigamy under Article 349 of the Revised
Penal Code which might come into play if he/she would prematurely remarry sans the court's
declaration.

Upon the issuance of the decision declaring his/her absent spouse presumptively dead, the present
spouse's good faith in contracting a second marriage is effectively established. The decision of the
competent court constitutes sufficient proof of his/her good faith and his/her criminal intent in case of
remarriage is effectively negated.  Thus, for purposes of remarriage, it is necessary to strictly comply
28

with the stringent standard and have the absent spouse judicially declared presumptively dead.

Final Word

As a final word, it has not escaped this Court's attention that the strict standard required in petitions
for declaration of presumptive death has not been fully observed by the lower courts. We need only
to cite the instances when this Court, on review, has consistently ruled on the sanctity of marriage
and reiterated that anything less than the use of the strict standard necessitates a denial. To rectify
this situation, lower courts are now expressly put on notice of the strict standard this Court requires
in cases under Article 41 of the Family Code.

WHEREFORE, in view of the foregoing, the assailed decision dated August 27, 2008 of the Court of
Appeals, which affirmed the order dated December 15, 2006 of the Regional Trial Court, Branch 25,
Koronadal City, South Cotabato, declaring Jerry F. Cantor presumptively dead is hereby
REVERSED and SET ASIDE.

SO ORDERED. 
 G.R. No. 160258             January 19, 2005

REPUBLIC OF THE PHILIPPINES, petitioner,

vs.
GLORIA BERMUDEZ-LORINO, respondent.

DECISION

GARCIA, J.:

Via this petition for review on certiorari under Rule 45 of the Rules of Court, petitioner Republic of
the Philippines, represented by the Office of the Solicitor General (OSG), seeks the reversal and
setting aside of the decision dated September 23, 2003 of the Court of Appeals in CA-G.R. CV No.
73884, which affirmed on appeal an earlier decision of the Regional Trial Court (RTC) at San Mateo,
Rizal in a summary judicial proceeding thereat commenced by the herein respondent Gloria
Bermudez-Lorino for the declaration of the presumptive death of her absent spouse, Francisco
Lorino, Jr., based on the provisions of Article 41 of the Family Code, for purposes of remarriage.

The facts may be summarized, as follows:

Respondent Gloria Bermudez-Lorino (Gloria for brevity), and her husband were married on June 12,
1987. Out of this marriage, she begot three (3) children, namely: Francis Jeno, Fria Lou and
Fatima.1a\^/phi1.net

Before they got married in 1987, Gloria was unaware that her husband was a habitual drinker,
possessed with violent character/attitude, and had the propensity to go out with friends to the extent
of being unable to engage in any gainful work.

Because of her husband’s violent character, Gloria found it safer to leave him behind and decided to
go back to her parents together with her three (3) children. In order to support the children, Gloria
was compelled to work abroad.

From the time of her physical separation from her husband in 1991, Gloria has not heard of him at
all. She had absolutely no communications with him, or with any of his relatives.

On August 14, 2000, nine (9) years after she left her husband, Gloria filed a verified petition with the
Regional Trial Court (RTC) at San Mateo, Rizal under the rules on Summary Judicial Proceedings in
the Family Law provided for in the Family Code, which petition was docketed in the same court as
Special Proceeding No. 325-00 SM.

On August 28, 2000, the RTC issued an order directing, inter alia, the publication of the petition in a
newspaper of general circulation, thus:

A verified petition was filed by herein petitioner through counsel alleging that she married Francisco
Lorino, Jr. on June 12, 1987 but because of the violent character of his husband, she decided to go
back to her parents and lived separately from her husband. After nine (9) years, there was
absolutely no news about him and she believes that he is already dead and is now seeking through
this petition for a Court declaration that her husband is judicially presumed dead for the purpose of
remarriage.
Finding the said petition to be sufficient in form and substance, the same is hereby set for hearing
before this Court on September 18, 2000 at 8:30 o’clock in the morning at which place, date and
time, any or all persons who may claim any interest thereto may appear and show cause why the
same should not be granted.

Let a copy of this Order be published in a newspaper of general circulation in this province once a
week for three (3) consecutive weeks and be posted in the bulletin boards of the Hall of Justice and
the Municipal Hall, San Mateo, Rizal, all at the expense of the petitioner. 1awphi1.nét

Furnish the Office of the Solicitor General a copy of this Order together with a copy of the petition.
Further, send a copy of this Order to the last known address of Francisco Lorino, Jr. at 719 Burgos
St., Sta. Elena, Marikina City.

SO ORDERED1

The evidence in support of the summary judicial proceeding are: the order of publication dated
August 28, 2000 (Exhibit "A"); affidavit of publication dated September 16, 2000 (Exhibit "B")2 ;
copies of the newspapers where the order appeared (Exhibits "C" to "E-1")3 ; a deposition dated
September 4, 2000 of Gloria taken in Hong Kong (Exhibit "G")4 ; Gloria’s affidavit dated October 21,
1999, also executed in Hong Kong (Exhibit "G-1")5 ; and a certification by Department of Foreign
Affairs Authentication Officer, Catalina C. Gonzalez, dated November 3, 1999, therein certifying that
the signature of Vice Consul Adriane Bernie C. Candolada, appearing below the jurat in Gloria’s
affidavit of October 21, 1999, is authentic (Exhibit "G-2")6 .

In a decision dated November 7, 2001, the RTC, finding merit in the summary petition, rendered
judgment granting the same, to wit:

WHEREFORE, this Court in view of the facts and circumstances obtaining, finds the petition with
merit and hereby grants its imprimatur to the petition. Judgment is hereby rendered declaring the
presumptive death/absence of Francisco Lorino, Jr. pursuant to Art. 41 of the New Family Code but
subject to all restrictions and conditions provided therein.

SO ORDERED.7

Despite the judgment being immediately final and executory under the provisions of Article 247 of
the Family Code, thus:

Art. 247. The judgment of the court shall be immediately final and executory,

the Office of the Solicitor General, for the Republic of the Philippines, nevertheless filed a Notice of
Appeal.8 Acting thereon, the RTC had the records elevated to the Court of Appeals which docketed
the case as CA-G.R. CV No. 73884.

In a decision dated September 23, 2003, the Court of Appeals, treating the case as an ordinary
appealed case under Rule 41 of the Revised Rules on Civil Procedure, denied the Republic’s appeal
and accordingly affirmed the appealed RTC decision:

WHEREFORE, based on the foregoing premises, the instant appeal is DENIED. Accordingly, the
appealed November 7, 2001 Decision of the Regional Trial Court of San Mateo, Rizal in Spec. Proc.
No. 325-00 SM is hereby AFFIRMED.
SO ORDERED.9

Without filing any motion for reconsideration, petitioner Republic directly went to this Court via the
instant recourse under Rule 45, maintaining that the petition raises a pure question of law that does
not require prior filing of a motion for reconsideration.

The foregoing factual antecedents present to this Court the following issues:

WHETHER OR NOT THE COURT OF APPEALS DULY ACQUIRED JURISDICTION OVER THE
APPEAL ON A FINAL AND EXECUTORY JUDGMENT OF THE REGIONAL TRIAL COURT; and

WHETHER OR NOT THE FACTUAL AND LEGAL BASES FOR A JUDICIAL DECLARATION OF
PRESUMPTIVE DEATH UNDER ARTICLE 41 OF THE FAMILY CODE WERE DULY
ESTABLISHED IN THIS CASE.

The Court rules against petitioner Republic.

Article 238 of the Family Code, under Title XI: SUMMARY JUDICIAL PROCEEDINGS IN THE
FAMILY LAW, sets the tenor for cases covered by these rules, to wit:

Art. 238. Until modified by the Supreme Court, the procedural rules in this Title shall apply in all
cases provided for in this Code requiring summary court proceedings. Such cases shall be decided
in an expeditious manner without regard to technical rules.

Judge Elizabeth Balquin-Reyes of RTC, Branch 75, San Mateo, Rizal duly complied with the above-
cited provision by expeditiously rendering judgment within ninety (90) days after the formal offer of
evidence by therein petitioner, Gloria Bermudez-Lorino.

The problem came about when the judge gave due course to the Republic’s appeal upon the filing of
a Notice of Appeal, and had the entire records of the case elevated to the Court of Appeals, stating
in her order of December 18, 2001, as follows:

Notice of Appeal having been filed through registered mail on November 22, 2001 by the Office of
the Solicitor General who received a copy of the Decision in this case on November 14, 2001, within
the reglementary period fixed by the Rules, let the entire records of this case be transmitted to the
Court of Appeals for further proceedings.

SO ORDERED.10

In Summary Judicial Proceedings under the Family Code, there is no reglementary period within
which to perfect an appeal, precisely because judgments rendered thereunder, by express provision
of Section 247, Family Code, supra, are "immediately final and executory". It was erroneous,
therefore, on the part of the RTC to give due course to the Republic’s appeal and order the
transmittal of the entire records of the case to the Court of Appeals.

An appellate court acquires no jurisdiction to review a judgment which, by express provision of law,
is immediately final and executory. As we have said in Veloria vs. Comelec,11 "the right to appeal is
not a natural right nor is it a part of due process, for it is merely a statutory privilege." Since, by
express mandate of Article 247 of the Family Code, all judgments rendered in summary judicial
proceedings in Family Law are "immediately final and executory", the right to appeal was not granted
to any of the parties therein. The Republic of the Philippines, as oppositor in the petition for
declaration of presumptive death, should not be treated differently. It had no right to appeal the RTC
decision of November 7, 2001.

It was fortunate, though, that the Court of Appeals, acting through its Special Fourth Division, with
Justice Elvi John S. Asuncion as Acting Chairman and ponente, denied the Republic’s appeal and
affirmed without modification the final and executory judgment of the lower court. For, as we have
held in Nacuray vs. NLRC :12

Nothing is more settled in law than that when a judgment becomes final and executory it becomes
immutable and unalterable. The same may no longer be modified in any respect, even if the
modification is meant to correct what is perceived to be an erroneous conclusion of fact or law, and
whether made by the highest court of the land (citing Nunal v. Court of Appeals, G.R. No. 94005, 6
April 1993, 221 SCRA 26).

But, if only to set the records straight and for the future guidance of the bench and the bar, let it be
stated that the RTC’s decision dated November 7, 2001, was immediately final and executory upon
notice to the parties. It was erroneous for the OSG to file a notice of appeal, and for the RTC to give
due course thereto. The Court of Appeals acquired no jurisdiction over the case, and should have
dismissed the appeal outright on that ground.

This judgment of denial was elevated to this Court via a petition for review on certiorari under Rule
45. Although the result of the Court of Appeals’ denial of the appeal would apparently be the same,
there is a big difference between having the supposed appeal dismissed for lack of jurisdiction by
virtue of the fact that the RTC decision sought to be appealed is immediately final and executory,
and the denial of the appeal for lack of merit. In the former, the supposed appellee can immediately
ask for the issuance of an Entry of Judgment in the RTC, whereas, in the latter, the appellant can
still raise the matter to this Court on petition for review and the RTC judgment cannot be executed
until this Court makes the final pronouncement.

The Court, therefore, finds in this case grave error on the part of both the RTC and the Court of
Appeals. To stress, the Court of Appeals should have dismissed the appeal on ground of lack of
jurisdiction, and reiterated the fact that the RTC decision of November 7, 2001 was immediately final
and executory. As it were, the Court of Appeals committed grave reversible error when it failed to
dismiss the erroneous appeal of the Republic on ground of lack of jurisdiction because, by express
provision of law, the judgment was not appealable.

WHEREFORE, the instant petition is hereby DENIED for lack of merit.  No pronouncement as to
1a\^/phi1.net

costs.

SO ORDERED.
VIII. Legal Separation

A. GROUNDS

[ No. 47101 . April 25, 1941 ]

GODOFREDO BUCCAT , plaintiff and appellant,
v.
LUIDA Mangonon OF BUCCAT , demanded and appealed.

D. Feliciano Leviste , D. Thomas P. Panganiban and Mrs. N. Sotera Megia for appellant.
Doña Luida Mangonon of Buccat on its own behalf.

HORRILLENO , M .:

MARRIAGE ; Validity. - Marriage is a most sacred institution is the foundation upon which the society.
You can stop this are necessary clear and convincing evidence. In this case there are no such evidence.

APPEAL from a judgment of the Court of First Instance of Baguio. Carlos, J.

The facts are stated in the Court's decision.

This matter has been raised to this superiority by the Court of First Instance of Baguio, since only raises
an issue purely of law.
The March 20, 1939 the plaintiff commenced the present case, where the defendant did not appear,
despite having been duly summoned. So, I allowed the applicant to submit its evidence, the lower court
ruled the case in favor of the defendant. Hence this appeal.

The applicant seeks the annulment of his marriage with the defendant been Luida Buccat Mangonon of
the November 26, 1938, in Baguio City, on the ground that, in consenting to the marriage, he did it
because the defendant had assured him that she was virgin.
The decision of the lower court the following facts:
The claimant knew the defendant March 1938. After several interviews, both were committed on 19
September of the same year. On 26 November the same year, the plaintiff married the defendant in the
Catholic cathedral in the city of Baguio. After living cohabiting for a period of eighty-nine days the
defendant gave birth to a child for nine months, on 23 February 1939. As a result of this event, the
plaintiff gave the defendant and did not make marital life it.
We see no reason to overturn the original ruling. Indeed, it is unlikely the appellant plaintiff's claim and
he had not even suspected the gravid state of the defendant, being this, as is proved in pregnant
condition well advanced. So there is no need to estimate the fraud speaking the appellant. The
allegations of this in the sense that it is not rare to find people tuck developed, it seems puerile to
deserve our consideration, especially as the applicant was freshman of law.
Marriage is a most sacred institution: the foundation upon which the society. You can stop this are
necessary clear and convincing evidence. In this case there are no such evidence.
Finding the original ruling in accordance with law, it should be confirmed, as hereby confirm it, in its
entirety, with costs to the appellant. So it is ordered.
Avanceña , Pres., Imperial , Diaz, and Laurel , JJ., concur.
It is confirmed the sentence. [Buccat vs. Buccat, 72 Phil. 19(1941)]
 G.R. No. L-15853             July 27, 1960

FERNANDO AQUINO, petitioner,
vs.
CONCHITA DELIZO, respondent.

GUTIERREZ DAVID, J.:

This is a petition for certiorari to review a decision of the Court of Appeals affirming that of the Court
of First Instance of Rizal which dismissed petitioner's complaint for annulment of his marriage with
respondent Conchita Delizo.

The dismissed complaint, which was filed on September 6, 1955, was based on the ground of fraud,
it being alleged, among other things, that defendant Conchita Delizo, herein respondent, at the date
of her marriage to plaintiff, herein petitioner Fernando Aquino, on December 27, 1954, concealed
from the latter that fact that she was pregnant by another man, and sometime in April, 1955, or about
four months after their marriage, gave birth to a child. In her answer, defendant claimed that the child
was conceived out of lawful wedlock between her and the plaintiff.

At the trial, the attorney's for both parties appeared and the court a quo ordered Assistant Provincial
Fiscal Jose Goco to represent the State in the proceedings to prevent collusion. Only the plaintiff
however, testified and the only documentary evidence presented was the marriage contract between
the parties. Defendant neither appeared nor presented any evidence despite the reservation made
by her counsel that he would present evidence on a later date.

On June 16, 1956, the trial court — noting that no birth certificate was presented to show that the
child was born within 180 days after the marriage between the parties, and holding that concealment
of pregnancy as alleged by the plaintiff does not constitute such fraud sa would annul a marriage —
dismissed the complaint. Through a verified "petition to reopen for reception of additional evidence",
plaintiff tried to present the certificates of birth and delivery of the child born of the defendant on April
26, 1955, which documents, according to him, he had failed to secure earlier and produce before the
trial court thru excusable negligence. The petition, however, was denied.

On appeal to the Court of Appeals, that court held that there has been excusable neglect in plaintiff's
inability to present the proof of the child's birth, through her birth certificate, and for that reason the
court a quo erred in denying the motion for reception of additional evidence. On the theory, however,
that it was not impossible for plaintiff and defendant to have had sexual intercourse during their
engagement so that the child could be their own, and finding unbelievable plaintiff's claim that he did
not notice or even suspect that defendant was pregnant when he married her, the appellate court,
nevertheless, affirmed the dismissal of the complaint.

On March 17, 1959, plaintiff filed a motion praying that the decision be reconsidered, or, if such
reconsideration be denied, that the case be remanded to the lower court for new trial. In support of
the motion, plaintiff attached as annexes thereof the following documents:

1. Affidavit of Cesar Aquino (Annex A) (defendant's brother-in-law and plaintiff's brother, with
whom defendant was living at the time plaintiff met, courted and married her, and with whom
defendant has begotten two more children, aside from her first born, in common-law
relationship) admitting that he is the father of defendant's first born, Catherine Bess Aquino,
and that he and defendant hid her pregnancy from plaintiff at the time of plaintiff's marriage
to defendant;
 2. Affidavit of defendant, Conchita Delizo (Annex "B") admitting her pregnancy by Cesar
Aquino, her brother-in-law and plaintiff's own brother, at the time of her marriage to plaintiff
and her having hidden this fact from plaintiff before and up to the time of their marriage;

3. Affidavit of Albert Powell (Annex "C") stating that he knew Cesar Aquino and defendant
lived together as husband and wife before December 27, 1954, the date of plaintiff's
marriage to defendant;

4. Birth Certificate of defendant's first born, Catherine Bess Aquino showing her date of birth
to be April 26, 1955;

5. Birth Certificate (Annex "D") of Carolle Ann Aquino, the second child of defendant with
Cesar Aquino, her brother-in-law;

6. Birth Certificate (Annex "E") of Chris Charibel Aquino, the third child of Cesar Aquino and
defendant; and

7. Pictures of defendant showing her natural plumpness as early as 1952 to as late as

November, 1954, the November, 1954 photo itself does not show defendant's pregnancy
which must have been almost four months old at the time the picture was taken.

Acting upon the motion, the Court of Appeals ordered the defendant Conchita Delizo and Assistant
Provincial Fiscal of Rizal, who was representing the Government, to answer the motion for
reconsideration, and deferred action on the prayer for new trial until after the case is disposed of. As
both the defendant and the fiscal failed to file an answer, and stating that it "does not believe the
veracity of the contents of the motion and its annexes", the Court of Appeals, on August 6, 1959,
denied the motion. From that order, the plaintiff brought the case to this Court thru the present
petition for certiorari.

After going over the record of the case, we find that the dismissal of plaintiff's complaint cannot be
sustained.

Under the new Civil Code, concealment by the wife of the fact that at the time of the marriage, she
was pregnant by a man other than her husband constitutes fraud and is ground for annulment of
marriage. (Art. 85, par. (4) in relation to Art. 86, par. (3). In the case of Buccat vs. Buccat (72 Phil.,
19) cited in the decision sought to be reviewed, which was also an action for the annulment of
marriage on the ground of fraud, plaintiff's claim that he did not even suspect the pregnancy of the
defendant was held to be unbelievable, it having been proven that the latter was already in an
advanced stage of pregnancy (7th month) at the time of their marriage. That pronouncement,
however, cannot apply to the case at bar. Here the defendant wife was alleged to be only more than
four months pregnant at the time of her marriage to plaintiff. At that stage, we are not prepared to
say that her pregnancy was readily apparent, especially since she was "naturally plump" or fat as
alleged by plaintiff. According to medical authorities, even on the 5th month of pregnancy, the
enlargement of a woman's abdomen is still below the umbilicus, that is to say, the enlargement is
limited to the lower part of the abdomen so that it is hardly noticeable and may, if noticed, be
attributed only to fat formation on the lower part of the abdomen. It is only on the 6th month of
pregnancy that the enlargement of the woman's abdomen reaches a height above the umbilicus,
making the roundness of the abdomen more general and apparent. (See Lull, Clinical Obstetrics, p.
122) If, as claimed by plaintiff, defendant is "naturally plump", he could hardly be expected to know,
merely by looking, whether or not she was pregnant at the time of their marriage more so because
she must have attempted to conceal the true state of affairs. Even physicians and surgeons, with the
aid of the woman herself who shows and gives her subjective and objective symptoms, can only
claim positive diagnosis of pregnancy in 33% at five months. and 50% at six months. (XI Cyclopedia
of Medicine, Surgery, etc. Pregnancy, p. 10).

The appellate court also said that it was not impossible for plaintiff and defendant to have had sexual
intercourse before they got married and therefore the child could be their own. This statement,
however, is purely conjectural and finds no support or justification in the record.

Upon the other hand, the evidence sought to be introduced at the new trial, taken together with what
has already been adduced would, in our opinion, be sufficient to sustain the fraud alleged by plaintiff.
The Court of Appeals should, therefore, not have denied the motion praying for new trial simply
because defendant failed to file her answer thereto. Such failure of the defendant cannot be taken as
evidence of collusion, especially since a provincial fiscal has been ordered of represent the
Government precisely to prevent such collusion. As to the veracity of the contents of the motion and
its annexes, the same can best be determined only after hearing evidence. In the circumstance, we
think that justice would be better served if a new trial were ordered.

Wherefore, the decision complained of is set aside and the case remanded to the court a quo for
new trial. Without costs.
 G.R. No. L-12790             August 31, 1960

JOEL JIMENEZ, plaintiff-appellee,
vs.
REMEDIOS CAÑIZARES, defendant.
Republic of the Philippines, intervenor-appellant.

Acting Solicitor General Guillermo E. Torres and Solicitor Pacifico P. de Castro for appellant.
Climaco, Ascarraga and Silang for appellee.

PADILLA, J.:

In a complaint filed on 7 June 1955 in the Court of First Instance of Zamboanga the plaintiff Joel
Jimenez prays for a decree annulling his marriage to the defendant Remedios Cañizares contracted
on 3 August 1950 before a judge of the municipal court of Zamboanga City, upon the ground that the
office of her genitals or vagina was to small to allow the penetration of a male organ or penis for
copulation; that the condition of her genitals as described above existed at the time of marriage and
continues to exist; and that for that reason he left the conjugal home two nights and one day after
they had been married. On 14 June 1955 the wife was summoned and served a copy of the
complaint. She did not file an answer. On 29 September 1956, pursuant to the provisions of article
88 of the Civil Code, the Court directed the city attorney of Zamboanga to inquire whether there was
a collusion, to intervene for the State to see that the evidence for the plaintiff is not a frame-up,
concocted or fabricated. On 17 December 1956 the Court entered an order requiring the defendant
to submit to a physical examination by a competent lady physician to determine her physical
capacity for copulation and to submit, within ten days from receipt of the order, a medical certificate
on the result thereof. On 14 March 1957 the defendant was granted additional five days from notice
to comply with the order of 17 December 1956 with warning that her failure to undergo medical
examination and submit the required doctor's certificate would be deemed lack of interest on her part
in the case and that judgment upon the evidence presented by her husband would be rendered.

After hearing, at which the defendant was not present, on 11 April 1957 the Court entered a decree
annulling the marriage between the plaintiff and the defendant. On 26 April 1957 the city attorney
filed a motion for reconsideration of the decree thus entered, upon the ground, among others, that
the defendant's impotency has not been satisfactorily established as required by law; that she had
not been physically examined because she had refused to be examined; that instead of annulling the
marriage the Court should have punished her for contempt of court and compelled her to undergo a
physical examination and submit a medical certificate; and that the decree sought to be
reconsidered would open the door to married couples, who want to end their marriage to collude or
connive with each other by just alleging impotency of one of them. He prayed that the complaint be
dismissed or that the wife be subjected to a physical examination. Pending resolution of his motion,
the city attorney timely appealed from the decree. On 13 May 1957 the motion for reconsideration
was denied.

The question to determine is whether the marriage in question may be annulled on the strength only
of the lone testimony of the husband who claimed and testified that his wife was and is impotent.
The latter did not answer the complaint, was absent during the hearing, and refused to submit to a
medical examination.

Marriage in this country is an institution in which the community is deeply interested. The state has
surrounded it with safeguards to maintain its purity, continuity and permanence. The security and
stability of the state are largely dependent upon it. It is the interest of each and every member of the
community to prevent the bringing about of a condition that would shake its foundation and ultimately
lead to its destruction. The incidents of the status are governed by law, not by will of the parties. The
law specifically enumerates the legal grounds, that must be proved to exist by indubitable evidence,
to annul a marriage. In the case at bar, the annulment of the marriage in question was decreed upon
the sole testimony of the husband who was expected to give testimony tending or aiming at securing
the annulment of his marriage he sought and seeks. Whether the wife is really impotent cannot be
deemed to have been satisfactorily established, becase from the commencement of the proceedings
until the entry of the decree she had abstained from taking part therein. Although her refusal to be
examined or failure to appear in court show indifference on her part, yet from such attitude the
presumption arising out of the suppression of evidence could not arise or be inferred because
women of this country are by nature coy, bashful and shy and would not submit to a physical
examination unless compelled to by competent authority. This the Court may do without doing
violence to and infringing in this case is not self-incrimination. She is not charged with any offense.
She is not being compelled to be a witness against herself.1 "Impotency being an abnormal condition
should not be presumed. The presumption is in favor of potency."2 The lone testimony of the
husband that his wife is physically incapable of sexual intercourse is insufficient to tear asunder the
ties that have bound them together as husband and wife.

The decree appealed from is set aside and the case remanded to the lower court for further
proceedings in accordance with this decision, without pronouncement as to costs.
B. CAUSE OF ACTION

G.R. No. L-30977 January 31, 1972

CARMEN LAPUZ SY, represented by her substitute MACARIO LAPUZ, petitioner-appellant,

vs.
EUFEMIO S. EUFEMIO alias EUFEMIO SY UY, respondent-appellee.

Jose W. Diokno for petitioner-appellant.

D. G. Eufemio for respondent-appellee.

REYES J.B.L., J.:p

Petition, filed after the effectivity of Republic Act 5440, for review by certiorari of an order, dated 29 July 1969, of the Juvenile and Domestic
Relations Court of Manila, in its Civil Case No. 20387, dismissing said case for legal separation on the ground that the death of the therein
plaintiff, Carmen O. Lapuz Sy, which occurred during the pendency of the case, abated the cause of action as well as the action itself. The
dismissal order was issued over the objection of Macario Lapuz, the heir of the deceased plaintiff (and petitioner herein) who sought to
substitute the deceased and to have the case prosecuted to final judgment.

On 18 August 1953, Carmen O. Lapuz Sy filed a petition for legal separation against Eufemio S.
Eufemio, alleging, in the main, that they were married civilly on 21 September 1934 and canonically
on 30 September 1934; that they had lived together as husband and wife continuously until 1943
when her husband abandoned her; that they had no child; that they acquired properties during their
marriage; and that she discovered her husband cohabiting with a Chinese woman named Go Hiok at
1319 Sisa Street, Manila, on or about March 1949. She prayed for the issuance of a decree of legal
separation, which, among others, would order that the defendant Eufemio S. Eufemio should be
deprived of his share of the conjugal partnership profits.

In his second amended answer to the petition, herein respondent Eufemio S. Eufemio alleged
affirmative and special defenses, and, along with several other claims involving money and other
properties, counter-claimed for the declaration of nullity ab initio of his marriage with Carmen O.
Lapuz Sy, on the ground of his prior and subsisting marriage, celebrated according to Chinese law
and customs, with one Go Hiok, alias Ngo Hiok.

Issues having been joined, trial proceeded and the parties adduced their respective evidence. But
before the trial could be completed (the respondent was already scheduled to present surrebuttal
evidence on 9 and 18 June 1969), petitioner Carmen O. Lapuz Sy died in a vehicular accident on 31
May 1969. Counsel for petitioner duly notified the court of her death.

On 9 June 1969, respondent Eufemio moved to dismiss the "petition for legal separation"  on two (2) 1

grounds, namely: that the petition for legal separation was filed beyond the one-year period provided
for in Article 102 of the Civil Code; and that the death of Carmen abated the action for legal
separation.

On 26 June 1969, counsel for deceased petitioner moved to substitute the deceased Carmen by her
father, Macario Lapuz. Counsel for Eufemio opposed the motion.

On 29 July 1969, the court issued the order under review, dismissing the case.  In the body of the 2

order, the court stated that the motion to dismiss and the motion for substitution had to be resolved
on the question of whether or not the plaintiff's cause of action has survived, which the court
resolved in the negative. Petitioner's moved to reconsider but the motion was denied on 15
September 1969.

After first securing an extension of time to file a petition for review of the order of dismissal issued by
the juvenile and domestic relations court, the petitioner filed the present petition on 14 October 1969.
The same was given due course and answer thereto was filed by respondent, who prayed for the
affirmance of the said order. 3

Although the defendant below, the herein respondent Eufemio S. Eufemio, filed counterclaims, he
did not pursue them after the court below dismissed the case. He acquiesced in the dismissal of said
counterclaims by praying for the affirmance of the order that dismissed not only the petition for legal
separation but also his counterclaim to declare the Eufemio-Lapuz marriage to be null and void ab
initio.

But petitioner Carmen O. Lapuz Sy (through her self-assumed substitute — for the lower court did
not act on the motion for substitution) stated the principal issue to be as follows:

When an action for legal separation is converted by the counterclaim into one for a
declaration of nullity of a marriage, does the death of a party abate the proceedings?

The issue as framed by petitioner injects into it a supposed conversion of a legal separation suit to
one for declaration of nullity of a marriage, which is without basis, for even petitioner asserted that
"the respondent has acquiesced to the dismissal of his counterclaim" (Petitioner's Brief, page 22).
Not only this. The petition for legal separation and the counterclaim to declare the nullity of the self
same marriage can stand independent and separate adjudication. They are not inseparable nor was
the action for legal separation converted into one for a declaration of nullity by the counterclaim, for
legal separation pre-supposes a valid marriage, while the petition for nullity has a voidable marriage
as a pre-condition.

The first real issue in this case is: Does the death of the plaintiff before final decree, in an action for
legal separation, abate the action? If it does, will abatement also apply if the action involves property
rights? .

An action for legal separation which involves nothing more than the bed-and-board separation of the
spouses (there being no absolute divorce in this jurisdiction) is purely personal. The Civil Code of the
Philippines recognizes this in its Article 100, by allowing only the innocent spouse (and no one else)
to claim legal separation; and in its Article 108, by providing that the spouses can, by their
reconciliation, stop or abate the proceedings and even rescind a decree of legal separation already
rendered. Being personal in character, it follows that the death of one party to the action causes the
death of the action itself — actio personalis moritur cum persona.

... When one of the spouses is dead, there is no need for divorce, because the
marriage is dissolved. The heirs cannot even continue the suit, if the death of the
spouse takes place during the course of the suit (Article 244, Section 3). The action
is absolutely dead (Cass., July 27, 1871, D. 71. 1. 81; Cass. req., May 8, 1933, D. H.
1933, 332.")  .
4

Marriage is a personal relation or status, created under the sanction of law, and an
action for divorce is a proceeding brought for the purpose of effecting a dissolution of
that relation. The action is one of a personal nature. In the absence of a statute to the
contrary, the death of one of the parties to such action abates the action, for the
 reason that death has settled the question of separation beyond all controversy and
deprived the court of jurisdiction, both over the persons of the parties to the action
and of the subject-matter of the action itself. For this reason the courts are almost
unanimous in holding that the death of either party to a divorce proceeding, before
final decree, abates the action. 1 Corpus Juris, 208; Wren v. Moss, 2 Gilman, 72;
Danforth v. Danforth, 111 Ill. 236; Matter of Grandall, 196 N.Y. 127, 89 N.E. 578; 134
Am St. Rep. 830; 17 Ann. Cas. 874; Wilcon v. Wilson, 73 Mich, 620, 41 N.W. 817;
Strickland v. Strickland, 80 Ark. 452, 97 S. W. 659; McCurley v. McCurley, 60 Md.
185, 45 Am. Rep. 717; Begbie v. Begbie, 128 Cal. 155, 60 Pac. 667, 49 L.R.A. 141.  5

The same rule is true of causes of action and suits for separation and maintenance (Johnson vs.
Bates, Ark. 101 SW 412; 1 Corpus Juris 208).

A review of the resulting changes in property relations between spouses shows that they are solely
the effect of the decree of legal separation; hence, they can not survive the death of the plaintiff if it
occurs prior to the decree. On the point, Article 106 of the Civil Code provides: .

Art. 106. The decree of legal separation shall have the following effects:

(1) The spouses shall be entitled to live separately from each other, but the marriage
bonds shall not be severed; .

(2) The conjugal partnership of gains or the absolute conjugal community of property
shall be dissolved and liquidated, but the offending spouse shall have no right to any
share of the profits earned by the partnership or community, without prejudice to the
provisions of article 176;

(3) The custody of the minor children shall be awarded to the innocent spouse,
unless otherwise directed by the court in the interest of said minors, for whom said
court may appoint a guardian;

(4) The offending spouse shall be disqualified from inheriting from the innocent
spouse by intestate succession. Moreover, provisions in favor of the offending
spouse made in the will of the innocent one shall be revoked by operation of law.

From this article it is apparent that the right to the dissolution of the conjugal partnership of gains (or
of the absolute community of property), the loss of right by the offending spouse to any share of the
profits earned by the partnership or community, or his disqualification to inherit by intestacy from the
innocent spouse as well as the revocation of testamentary provisions in favor of the offending
spouse made by the innocent one, are all rights and disabilities that, by the very terms of the Civil
Code article, are vested exclusively in the persons of the spouses; and by their nature and intent,
such claims and disabilities are difficult to conceive as assignable or transmissible. Hence, a claim to
said rights is not a claim that "is not thereby extinguished" after a party dies, under Section 17, Rule
3, of the Rules of Court, to warrant continuation of the action through a substitute of the deceased
party.

Sec. 17. Death of party. After a party dies and the claim is not thereby extinguished,
the court shall order, upon proper notice, the legal representative of the deceased to
appear and to be substituted for the deceased, within a period of thirty (30) days, or
within such time as may be granted...
The same result flows from a consideration of the enumeration of the actions that survive for or
against administrators in Section 1, Rule 87, of the Revised Rules of Court:

SECTION 1. Actions which may and which may not be brought against executor or
administrator. No action upon a claim for the recovery of money or debt or interest
thereon shall be commenced against the executor or administrator; but actions to
recover real or personal property, or an interest therein, from the estate, or to enforce
a lien thereon, and actions to recover damages for an injury to person or property,
real or personal, may be commenced against him.

Neither actions for legal separation or for annulment of marriage can be deemed fairly included in
the enumeration..

A further reason why an action for legal separation is abated by the death of the plaintiff, even if
property rights are involved, is that these rights are mere effects of decree of separation, their source
being the decree itself; without the decree such rights do not come into existence, so that before the
finality of a decree, these claims are merely rights in expectation. If death supervenes during the
pendency of the action, no decree can be forthcoming, death producing a more radical and definitive
separation; and the expected consequential rights and claims would necessarily remain unborn.

As to the petition of respondent-appellee Eufemio for a declaration of nullity ab initio of his marriage
to Carmen Lapuz, it is apparent that such action became moot and academic upon the death of the
latter, and there could be no further interest in continuing the same after her demise, that
automatically dissolved the questioned union. Any property rights acquired by either party as a result
of Article 144 of the Civil Code of the Philippines 6 could be resolved and determined in a proper
action for partition by either the appellee or by the heirs of the appellant.

In fact, even if the bigamous marriage had not been void ab initio but only voidable under Article 83,
paragraph 2, of the Civil Code, because the second marriage had been contracted with the first wife
having been an absentee for seven consecutive years, or when she had been generally believed
dead, still the action for annulment became extinguished as soon as one of the three persons
involved had died, as provided in Article 87, paragraph 2, of the Code, requiring that the action for
annulment should be brought during the lifetime of any one of the parties involved. And furthermore,
the liquidation of any conjugal partnership that might have resulted from such voidable marriage
must be carried out "in the testate or intestate proceedings of the deceased spouse", as expressly
provided in Section 2 of the Revised Rule 73, and not in the annulment proceeding.

ACCORDINGLY, the appealed judgment of the Manila Court of Juvenile and Domestic Relations is
hereby affirmed. No special pronouncement as to costs.
 G.R. No. L-38287 October 23, 1981

ANTONIO MACADANGDANG, petitioner,
vs.
THE COURT OF APPEALS; HONORABLE ALEJANDRO E. SEBASTIAN, in his capacity as
Presiding Judge, Court of First Instance of Davao, 16th Judicial District, Sala 1, Tagum,
Davao del Norte; FILOMENA GAVIANA, MACADANGDANG; and ROLANDO
RAMA, respondents.

RESOLUTION

MAKASIAR, J.:

This petition for certiorari, prohibition and injunction with prayer for temporary restraining order
presents for review the Court of Appeal's resolution dated December 21, 1973, which dismissed the
petition in CA-G.R. No. Sp-02656-R, petitioner's motion for reconsideration of the said resolution
having been denied on January 29, 1974.

From the records, it appears that respondent Filomena Gaviana Macadangdang (hereinafter referred
to as private respondent) and petitioner Antonio Macadangdang contracted marriage in 1946 after
having lived together for two years. From a humble buy-and-sell business and sari-sari store
operation in Davao City, the spouses moved to Mawab Davao del Norte where, through hard work
and good fortune, their small business grew and expanded into merchandising, trucking,
transportation, rice and corn mill business, abaca stripping, real estate and others. They were
blessed with six children, three of whom were already of majority age and the other three were still
minors as of the time this case was initiated in the lower court. With their established businesses and
accumulated wealth, their once simple life became complicated and their relationship started to
suffer setbacks. While the economic or material aspect of their marriage was stabilized the physical
and spiritual aspects became shaky. Both accused each other of indulging in extramarital relations.
Married life for them became so intolerable that they separated in 1965 when private respondent left
for Cebu for good. When she returned to Davao in 1971, she learned of the illicit affairs of her
estranged husband. Then and there, she decided to take the initial action.

On April 28, 1971, private respondent (plaintiff therein) instituted a complaint for legal separation in
the Court of First Instance of Davao, Branch VI I I at Tagum, Davao, which complaint was docketed
as Civil Case No. 109 and entitled "Filomena Gaviana Macadangdang vs. Antonio Macadangdang"
[P. 156, rec].

Petitioner (then defendant) filed his answer with counterclaim dated May 31, 1971 [p. 158, rec].

On February 9, 1972, private respondent filed a petition for appointment of administrator, to

administer the estate of the conjugal partnership pending the termination of the case [p. 100, rec.].

Petitioner opposed the aforesaid petition in a pleading dated February 21, 1972 [P. 102, rec]

On January 4, 1973, the petition for appointment of administrator not having been acted upon, the
trial court handed down its decision, the dispositive portion of which states thus:

Wherefore, judgment is hereby rendered ordering the legal separation of plaintiff and
the defendant, or what under the old law was separation from bed and board — a
 mensa et thoro — with all the legal effects attendant thereto, particularly the
dissolution and liquidation of the conjugal community of property. Since there is no
complete list of the community property which has to be divided, pending the
dissolution of the conjugal property, the defendant is ordered to pay to plaintiff
P10,000.00 for her support, for any way he had been disposing some of the
properties or mortgaging them without sharing the plaintiff any part of the fruits or
proceeds thereof until the court can appoint an administrator, as prayed for by
plaintiff in a separate petition, who will take over the administration and management
of all the conjugal partnership properties, and act as guardian of the minor children;
to protect said properties from dissipation, and who will submit a complete inventory
of said properties so that the Court can make a just division, such division to be
embodied in a supplemental decision. ... [pp. 104-115, rec.].

On August 7, 1973, private respondent filed a motion praying that she be allowed to withdraw
P10,000.00 from the lease rental of a portion of their conjugal property deposited by Francisco Dizon
[p. 116, rec.].

Respondent Judge acted on the aforesaid motion by issuing the order of August 13, 1973 which
directed the clerk of court "to deliver, under receipt, to plaintiff Filomena Gaviana Macadangdang
and/or to her counsel, Atty. Marcial Fernandez, the amount of P10,000.00" [p. 118, rec].

On August 25, 1973, private respondent filed another motion for the appointment of an administrator,
reiterating her previous petition and urging favorable action thereon "to impede unlawful
sequestration of some conjugal assets and clandestine transfers" by petitioner [p. 120, rec.].
Petitioner again filed his opposition dated September 6, 1973 [p. 122, rec.].

On September 20, 1973, respondent Judge issued an order directing plaintiff's counsel "to submit
three (3) names for appointment as administrator, including in the list, if possible, a banking
institution authorized to handle cases of administration of properties, furnishing a copy of said list to
defendant, who shag be given three (3) days from receipt thereof to present his observations and
objections to said recommended persons or entity, after which the Court will select the administrator
as may seem best suited for the purpose" [pp. 126-127, rec]

Petitioner then filed a motion for reconsideration dated October 3, 1973 of the order of September
20, 1973 with prayer that he be allowed to continue administering the conjugal properties in
accordance with law [p. 128, rec.]. This motion for reconsideration was denied in the order of
October 13, 1973 [p. 133, rec].

On October 13, 1973, herein private respondent filed a motion for appointment of administrator and
submission of complete fist of conjugal assets by defendant, submitting therein three nominees for
administrator [p. 135, rec].

On October 23, 1973, petitioner filed his second motion for reconsideration praying therein that the
orders of September 20, 1973 and October 13, 1973 be reconsidered by not proceeding with the
appointment of an administrator of the conjugal properties of the parties [p. 137, rec].

Respondent Judge denied the aforesaid second motion for reconsideration in his order of November
19, 1973, reiterating therein his ruling that the decree of legal separation had become final [p. 141,
rec].

Petitioner brought the case to the Court of Appeals in a petition for certiorari and prohibition with writ
of preliminary injunction and/or temporary restraining order filed on December 18, 1973. Said
petition sought to review, set aside and declare null and void the orders of September 20, 1973,
October 13, 1973 and November 19, 1973 of respondent Judge; to prohibit respondent Judge from
carrying out and executing the aforecited orders; and to prohibit him from treating, regarding and
construing his decision of January 4, 1973 as being "final and executory" as well as from enforcing
the same in any manner whatsoever [pp. 1, 4, & 5, CA rec.].

The Court of Appeals, in its resolution of December 21, 1973, ruled that the questioned January 4,
1973 decision of the lower court had become final and, consequently, the appointment of an
administrator was valid and that the petition was not sufficient in substance, since the applicable law
and jurisprudence afford the petitioner no valid cause to impugn the three questioned orders. The
appellate court accordingly dismissed the petition [pp. 70-80, rec].

Hence, this appeal from the resolution of December 21, 1973.

On February 6, 1980, counsel for petitioner, through a notice of death and motion to dismiss,
informed this Court that petitioner Antonio Macadangdang died on November 30, 1979 and as a
consequence thereof, this case and Civil Case No. 109 of the Court of First Instance of Davao have
become moot and academic [p. 516, rec.].

Private respondent, when required to comment on the aforesaid motion, moved for a resolution of
this case although she believes that petitioner's death has posed new intervening circumstances that
would affect the entire purpose in filing the same. In effect, private respondent agrees with
petitioner's counsel that her husband's death has rendered the instant petition moot and academic
[pp. 522, 524, rec.].

Petitioner had averred that the Court of Appeals gravely erred in holding that respondent Judge's
incomplete decision of January 4, 1973 had become final and executory and that the same Court
committed an error in holding that the appointment of an administrator in the case below was proper.

Private respondent, upon the other hand, has always maintained that —

1. the decision of January 4, 1973 had become final and executory when the
petitioner failed to appeal therefrom within the reglementary period of 30 days from
receipt thereof, despite the non-issuance of a supplemental decision regarding the
division of the conjugal properties; and

2. the appointment of an administrator pending the actual division of said properties

is proper being a must and an exercise of the sound discretion of the Honorable
Presiding Judge in the Court of First Instance of Davao, Branch VIII in Tagum [pp.
193-194, rec].

Did petitioner's death on November 30, 1979 render the case moot and academic? Legal problems
do not cease simply because one of the parties dies; the same problems may come up again in
another case of similar magnitude. Considering also the far-reaching significance and implications of
a pronouncement on the very important issues involved, this Court feels bound to meet said issues
frontally and come out with a decisive resolution of the same.

Thus, the questions for resolution have been narrowed down to the following:

1. Whether the decision of the trial court dated January 4, 1973 in Civil Case No. 109
finding herein petitioner guilty of concubinage and decreeing legal separation
 between him and his wife Filomena Gaviana Macadangdang (private respondent
herein) had already become final and executory long before the herein petition was
filed;

2. Should the children of both spouses predecease the surviving spouse, whether the
intestate heirs of the deceased could inherit from the innocent surviving spouse,
particularly where the latter's share in the conjugal assets is concerned, in view of
Article 106, No. 4 of the New Civil Code; and

3. The effect of the pendency of Special Proceedings No. 134 in the Court of First
Instance of Davao for the settlement of the estate of the deceased petitioner herein,
on the decision in Civil Case No. 109 as well as on the instant petition.

In support of his contention that the Court of Appeals committed grave error in holding that
respondent Judge's incomplete decision of January 4, 1973 had become final and executory,
petitioner had consistently asserted the following reasons:

1. Private respondent's complaint for legal separation and division of properties was
a single complaint. Thus, she explicitly prayed:

xxx xxx xxx

3. That upon trial of this action judgment be rendered ordering the legal separation of
the plaintiff and the defendant and the division of all the assets of the conjugal
partnership, ... [p. 157, rec)

In this single action, private respondent asked the trial court to decide if petitioner and she should be
legally separated, and if they should, what properties would form part of the conjugal regime and
which properties would be assigned to each spouse.

2. Of the aforesaid issues, the lower court resolved only the issue of legal separation and reserved
for supplemental decision the division of the conjugal properties. Petitioner had further argued that
—

Inasmuch as the Decision failed to dispose of all the issues before the Court, which
necessitated the announcement of a forthcoming supplemental decision, petitioner
respectfully submits that the Decision was an incomplete judgment. In Santos v. de
Guzman, 1 SCRA 1048, is found this very succinct explanation of what an
incomplete judgment is:

... There was but one case before the lower court. Its first decision (of June 12, 1956)
was, as already stated, incomplete the same not having resolved the issues involved
in the litigation. For this reason the trial had to be reopened and a supplemental
decision had to be rendered ... (at p. 1053; emphasis supplied).

WE do not find merit in petitioner's submission that the questioned decision had not become final
and executory since the law explicitly and clearly provides for the dissolution and liquidation of the
conjugal partnership of gains of the absolute community of property as among the effects of the final
decree of legal separation. Article 106 of the Civil Code thus reads:

Art. 106. The decree of legal separation shall have the following effects:
 1) The spouses shall be entitled to live separately from each other, but the marriage
bonds shall not be severed;

2) The conjugal partnership of gains or the absolute conjugal community of property

shall be dissolved and liquidated but the offending spouse shall have no right to any
share of the profits earned by the partnership or community, without prejudice to the
provisions of article 176;

xxx xxx xxx

[emphasis supplied].

The aforequoted provision mandates the dissolution and liquidation of the property regime of the
spouses upon finality of the decree of legal separation. Such dissolution and liquidation are
necessary consequences of the final decree. This legal effect of the decree of legal separation ipso
facto or automatically follows, as an inevitable incident of, the judgment decreeing legal separation—
for the purpose of determining the share of each spouse in the conjugal assets.

Even American courts have made definite pronouncements on the aforestated legal effect of a
divorce (legal separation) decree.

Generally speaking, the purpose of a decree in divorce insofar as the disposition of property is
concerned is to fix and make certain the property rights and interests of the parties (Mich-Westgate
vs. Westgate, 288 N.W. 860, 291 Mich. 18, 300 [1] p. 354, C.J.S. Vol. 27B); and it has been held
that the provisions of the decree should definitely and finally determine the property rights and
interests of the parties (Wash.-Shaffer vs. Shaffer, 262 P. 2d. 763, 43 Wash. 2d 629; 300 [11 p. 354
C.J.S. Vol. 27B); and that any attempted reservation of such questions for future determination is
improper and error (Mich.-Karwowski vs. Karwowski, 20 N.W. 2d 851, 313 Mich. 167, 300 11] p.
354, C.J.S., Vol. 27B; emphasis supplied).

Some statutes providing for the division or disposition of the property of the parties to a divorce have
been held mandatory and hence to require the court to decree some division of their property rights
(U.S.—Pearce vs. CIR, 62 S. Ct. 154, 315 U.S. 543, 86 L. ed. 1016, construing Texas statute; 291
[1] p. 263 C.J.S. Vol. 27B).

Likewise, it has been held that the settlement of some pro-property rights between the parties is an
incident of every decree of divorce where there is any property involved (Utah-Smith vs. Smith, 291
P. 298, 77 Utah 60, 291 [1] p. 264, C.J.S., Vol. 27B).

It has been held that notwithstanding the division of property between the parties, the subject matter
of a divorce action remains the marital status of the parties, the settlement of the property rights
being merely incidental (Wash.-State ex rel. Atkins vs. Superior Court of King Country, 97 P. 2d.
139, 1 Wash. 2d 677; 291 [1] p. 264 C.J.S., Vol. 27B; emphasis supplied).

Under other authorities, by the very nature of the litigation, all property rights growing out of marital
relations are settled and included in divorce proceedings (Ind.-Novak vs. Novak, 133 N.E. 2d 578,
126 Ind. App. 428) and a decree of divorce is an adjudication of all property rights connected with
the marriage and precludes the parties as to all matters which might have been legitimately proved
in support of charges or defenses in the action (U.S.—Spreckles vs. Wakefield, C.C.A. 286 F. 465)
and bars any action thereafter brought by either party to determine the question of property rights
(Fla.—Cooper vs. Cooper, 69 So. 2d 881; Finston vs. Finston, 37 So. 2d 423,160 Fla. 935; p. 751,
C.J.S. Vol. 27A).

An absolute divorce ordinarily terminates all property rights and interests, not actually vested, of
divorced persons in property of each other, which are dependent on the marriage (U.S.—Cockrill vs.
Woodson, D.C. Mo., 70 F. 752), at least where no proceedings have been taken to vacate or modify
the decree by appeal until the statutory time therefor has expired (Kan.—Roberts vs. Fagan 92 P.
559, 76 Kan. 536). Accordingly, unless the court granting the decree is without jurisdiction, inchoate
rights of the wife in the husband's property are usually cut off (Ky—Bowling vs. Little, 206 S.W. 1,
182 Ky 86) especially where by the terms of the decree all property obtained by either spouse from
or through the other during the marriage is restored to such spouse (Tex. Houston, etc., R. Co. vs.
Helm, Civ. App. 93 S.W. 697; pp. 752-753, C.J.S. Vol. 27A).

Enunciating with directness and finality, one U.S. court held: "The part of a divorce suit regarding
property is a part of the very divorce action itself" (Tex.—Ex parte Scott 123 S.W. 2d. 306, 313, 133
Tex. 1, answers to certified questions conformed to, Civ. App. 126, S.W. 2d 525; 291 [1] p. 264,
C.J.S. Vol. 27B).

Petitioner erred in invoking the case of Vda. de Zaldarriaga vs. Zaldarriaga which in turn cited the
doctrine of Fuentebella vs. Carrascoso, which We have already declared abrogated in the case of
Miranda vs. Court of Appeals (L-33007, 71 SCRA 295, [June 18, 1976]). In this case, this Court
explicitly stated:

For the guidance of the bench and bar, the court declares as abandoned the doctrine
of Fuentebella vs. Carrascoso and adopts the opposite rule that judgments for
recovery with accounting are final and appealable (without need of awaiting the
accounting) and would become final and executory if not appealed within the
reglementary period.

In resolving the question of whether or not the judgment directing an accounting in an action for
recovery of properties is final and appealable, this Court further explained:

The judgment "directing an accounting is appealable, regardless of whether the

accounting is the principal relief sought or a mere incident or consequence of the
judgment which grants recovery and delivery of absconded properties as the
principal relief and expressly provides that"a judgment or order directing an
accounting in an action, shall not be stayed after its rendition and before an appeal is
taken or during the pendency of an appeal.

xxx xxx xxx

If a judgment which directs solely an accounting is appealable notwithstanding that it

"does not finally dispose of the action and the accounting has yet to be rendered to
complete the relief sought," much more so is a judgment which orders accounting as
a mere incident appealable, because the judgment which orders the delivery of
properties does finally dispose of the action on its merits,

xxx xxx xxx

Imperative and controlling considerations of public policy and of sound practice in the

courts to achieve the desideratum of just, speedy and inexpensive determination of
 every action militate against such a novel and unprecedented situation where a
judgment on the merits for recovery of properties would be left dangling and would
be considered as "interlocutory" and subject to revision and alteration at will for as
long as the accounting ordered as a mere incident and logical consequence has not
been rendered and acted upon by the trial court.

xxx xxx xxx

The Court, however, deems it proper for the guidance of the bench and bar to now
declare as is clearly indicated from the compelling reasons and considerations
herein-above stated:— that the court considers the better rule to be that stated in
H.E. Heacock Co. vs. American Trading Co. (53 Phil. 481 [19291, to wit, that where
the primary purpose of a case is to ascertain and determine who between plaintiff
and defendant is the true owner and entitled to the exclusive use of the disputed
property, "the judgment ... rendered by the lower court [is] a judgment on
the merits as to those questions, and (that) the order of the court for
an accounting was based upon and is incidental to the judgment on the merits. That
is to say, that the judgment ... (is) a final judgment ... ; that in this kind of a case an
accounting is a mere incident to the judgment; that an appeal lies from the rendition
of the judgment as rendered ...

xxx xxx xxx

—that accordingly, the contrary ruling in Fuentebella vs. Carrascoso which expressly
reversed the Heacock case and a line of similar decisions (Africa vs. Africa, 42 Phil.
934; Villanueva vs. Capistrano; Prophylactic Brush Co., et al. vs. Court of Appeals,
G.R. No. 46254, Nov. 23, 1938 [Unpublished) and ruled that such a decision for
recovery of property with accounting 'is not final but merely interlocutory and
therefore not appealable and subsequent cases Adhering to the same Zaldarriaga
vs. Enriquez, 1 SCRA 1188) must be now in turn abandoned and set aside.

xxx xxx xxx

The Court's considered opinion is that imperative considerations of public policy and

of sound practice in the courts and adherence to the constitutional mandate of
simplified, just, speedy and inexpensive determination of every action can for
considering such judgments for recovery of property with
accounting as final judgments which are duly appealable (and would therefore
become final and executory if not appealed within the reglementary period) with
the accounting as a mere incident of the judgment to be rendered during the course
of the appeal as provided in Rule 39, section 4 or to be implemented at the execution
stage upon final affirmance on appeal of the judgment (as in Court of Industrial
Relations unfair labor practice cases ordering reinstatement of the worker with
accounting, computation and payment of his backwages less earnings elsewhere
during his layoff) and that the only reason given in Fuentebella for the contrary ruling,
viz, "the general harm that would follow from throwing the door open to multiplicity of
appeals in a single case is of lesser import and consequence".

Considering the aforestated well-established jurisprudence on the matter, the clear mandate of
Article 106 of the Civil Code and the aforequoted ruling in the Miranda case, the decision of the trial
court dated January 4, 1973 decreeing the legal separation between then spouses Antonio
Macadangdang and Filomena Gaviana Macadangdang had long become final and executory and
the division of the conjugal property in a "supplemental decision" is a mere incident of the decree of
legal separation.

Since We have ruled on the finality of the judgment decreeing the spouses' legal separation as of
January 4, 1973, the remaining issue for Our resolution is the final disposition of their conjugal
partnership of gains which partnership, by reason of the final decree, had been automatically
dissolved. The law (Articles 106, 107 and 176 of the Civil Code) clearly spells out the effects of a
final decree of legal separation on the conjugal property.

The death on November 30, 1979 of herein petitioner who was declared the guilty spouse by the trial
court, before the liquidation of the conjugal property is effected, poses a new problem which can be
resolved simply by the application of the rules on intestate succession with respect to the properties
of the deceased petitioner.

Thus, the rules on dissolution and liquidation of the conjugal partnership of gains under the
aforecited provisions of the Civil Code would be applied effective January 4, 1973 when the decree
of legal separation became final. Upon the liquidation and distribution conformably with the law
governing the effects of the final decree of legal separation, the law on intestate succession should
take over in the disposition of whatever remaining properties have been allocated to petitioner. This
procedure involves details which properly pertain to the lower court.

The properties that may be allocated to the deceased petitioner by virtue of the liquidation of the
conjugal assets, shall be distributed in accordance with the laws of intestate succession in Special
Proceedings No. 134.

WHEREFORE, THIS PETITION IS HEREBY DISMISSED, WITH COSTS AGAINST PETITIONER'S

ESTATE.

SO ORDERED.
C. COOLING OFF

[G.R. No. L-9667.  July 31, 1956.]

LUIS MA. ARANETA, Petitioner, vs. HONORABLE HERMOGENES CONCEPCION, as judge of the Court of
First Instance of Manila, Branch VI and EMMA BENITEZ ARANETA, Respondents.
DECISION
LABRADOR, J.:
The main action was brought by Petitioner against his wife, one of the Respondent herein, for legal
separation on the ground of adultery. After the issues were joined Defendant therein filed an omnibus
petition to secure custody of their three minor children, a monthly support of P5,000 for herself and said
children, and the return of her passport, to enjoin Plaintiff from ordering his hirelings from harassing
and molesting her, and to have Plaintiff therein pay for the fees of her attorney in the action. The
petition is supported by her affidavit. Plaintiff opposed the petition, denying the misconduct imputed to
him and alleging that Defendant had abandoned the children;  alleging that conjugal properties were
chan roblesvirtualawlibrary

worth only P80,000, not one million pesos as alleged by Defendant;  denying the taking of her passport
chan roblesvirtualawlibrary

or the supposed vexation, and contesting her right to attorney’s fees. Plaintiff prayed that as the petition
for custody and support cannot be determined without evidence, the parties be required to submit their
respective evidence. He also contended that Defendant is not entitled to the custody of the children as
she had abandoned them and had committed adultery, that by her conduct she had become unfit to
educate her children, being unstable in her emotions and unable to give the children the love, respect
and care of a true mother and without means to educate them. As to the claim for
support, Plaintiff claims that there are no conjugal assets and she is not entitled to support because of
her infidelity and that she was able to support herself. Affidavits and documents were submitted both in
support and against the omnibus petition.
The Respondent judge resolved the omnibus petition, granting the custody of the children
to Defendant and a monthly allowance of P2,300 for support for her and the children, P300 for a house
and P2,000 as attorney’s fees. Upon refusal of the judge to reconsider the order, Petitioner filed the
present petition for certiorari against said order and for mandamus to compel the Respondent judge to
require the parties to submit evidence before deciding the omnibus petition. We granted a writ of
preliminary injunction against the order.
The main reason given by the judge, for refusing Plaintiff’s request that evidence be allowed to be
introduced on the issues, is the prohibition contained in Article 103 of the Civil Code, which reads as
follows:chanroblesvirtua llawlibrary

“ART. 103.  An action for legal separation shall in no case be tried before six months shall have elapsed
since the filing of the petition.”
Interpreting the spirit and policy of the provision the trial judge says: chanroblesvirtuallawlibrary

“This provision of the code is mandatory. This case cannot be tried within the period of six months from
the filing of the complaint. The court understands that the introduction of any evidence, be it on the
merits of the case or on any incident, is prohibited. The law, up to the last minute, exerts efforts at
preserving the family and the home from utter ruin. Interpreting the intent of said article, the court
understands that every step it should take within the period of six months above stated should be taken
toward reconciling the parties. Admitting evidence now will make reconciliation difficult if not
impossible. In this case the court should act as if nothing yet had happened. The children must be given
for custody to him or her who by family custom and tradition is the custodian of the children. The court
should ignore that Defendant had committed any act of adultery or the Plaintiff, any act of cruelty to his
wife. The status quo of the family must be restored as much as possible. In this country, unlike perhaps
in any other country of the globe, a family or a home is a petite corporation. The father is the
administrator who earns the family funds, dictates rules in the home for all to follow, and protects all
members of his family. The mother keeps home, keeps children in her company and custody, and keeps
the treasure of that family. In a typical Filipino family, the wife prepares home budget and makes little
investment without the knowledge of her husband. A husband who holds the purse is un-Filipino. He is
shunned in Filipino community. The court therefore, in taking action on petition No. 1 should be guided
by the above considerations.” (pp. 116-117, Record on Appeal.)
It may be noted that since more than six months have elapsed since the filing of the petition the
question offered may not be allowed. It is, however, believed that the reasons for granting the
preliminary injunction should be given that the scope of the article cited may be explained.
It is conceded that the period of six months fixed therein Article 103 (Civil Code) is evidently intended as
a cooling off period to make possible a reconciliation between the spouses. The recital of their
grievances against each other in court may only fan their already inflamed passions against one another,
and the lawmaker has imposed the period to give them opportunity for dispassionate reflection. But this
practical expedient, necessary to carry out legislative policy, does not have the effect of overriding other
provisions such as the determination of the custody of the children and alimony and support pendente
lite according to the circumstances. (Article 105, Civil Code.) The law expressly enjoins that these should
be determined by the court according to the circumstances. If these are ignored or the courts close their
eyes to actual facts, rank in justice may be caused.
Take the case at bar, for instance. Why should the court ignore the claim of adultery by  Defendant in the
face of express allegations under oath to that effect, supported by circumstantial evidence consisting of
letter the authenticity of which cannot be denied. And why assume that the children are in the custody
of the wife, and that the latter is living at the conjugal dwelling, when it is precisely alleged in the
petition and in the affidavits, that she has abandoned the conjugal abode? Evidence of all these disputed
allegations should be allowed that the discretion of the court as to the custody and alimony pendente
lite may be lawfully exercised.
The rule is that all the provisions of the law even if apparently contradictory, should be allowed to stand
and given effect by reconciling them if necessary.
“The practical inquiry in litigation is usually to determine what a particular provision, clause or word
means. To answer it one must proceed as he would with any other composition — construe it with
reference to the leading idea or purpose of the whole instrument. A statute is passed as a whole and not
in parts or sections and is animated by one general purpose and intend. Consequently, each part of
section should be construed in connection with every other part or section so as to produce a
harmonious whole. Thus it is not proper to confine interpretation to the one section to be construed.”
(Southerland, Statutory Construction section 4703, pp. 336-337.)
Thus the determination of the custody and alimony should be given effect and force provided it does not
go to the extent of violating the policy of the cooling off period. That is, evidence not affecting the cause
of the separation, like the actual custody of the children, the means conducive to their welfare and
convenience during the pendency of the case, these should be allowed that the court may determine
which is best for their custody.
The writ prayed for is hereby issued and the Respondent judge or whosoever takes his place is ordered
to proceed on the question of custody and support pendente lite in accordance with this opinion. The
court’s order fixing the alimony and requiring payment is reversed. Without costs.
 G.R. No. L-34132 July 29, 1972

LUCY SOMOSA-RAMOS, petitioner,
vs.
THE HONORABLE CIPRIANO VAMENTA, JR., Presiding Judge of the Court of First Instance
of Negros Oriental and CLEMEN G. RAMOS, respondents.

T. R. Reyes & Associates for petitioner.

Soleto J. Erames for respondents.

FERNANDO, J.:p

The question raised in this petition for certiorari is whether or not Article 103 of the Civil Code prohibiting the hearing of an action for legal
separation before the lapse of six months from the filing of the petition, would likewise preclude the court from acting on a motion for
preliminary mandatory injunction applied for as an ancillary remedy to such a suit. Respondent Cipriano Vamenta, Jr., of the Court of First
Instance of Negros Oriental, answered the question in the affirmative, in view of the absolute tenor of such Civil Code provision, which reads
thus: "An action for legal separation shall in no case be tried before six months shall have elapsed since the filing of the petition." He
therefore ordered the suspension, upon the plea of the other respondent the husband Clemente G. Ramos, of the hearing on a motion for a
writ of preliminary mandatory injunction filed by petitioner at the same time the suit for legal separation was instituted. Petitioner, Lucy
Somosa-Ramos, the wife who brought the action for legal separation would dispute such a ruling. Hence, this certiorari proceeding. As will
be shown later there is justification for such a move on the part of petitioner. The respondent Judge ought to have acted differently. The plea
for a writ of certiorari must be granted.

The pleadings show that on June 18, 1971, petitioner filed Civil Case No. 5274 in the sala of
respondent Judge against respondent Clemente Ramos for legal separation, on concubinage on the
respondent's part and an attempt by him against her life being alleged. She likewise sought the
issuance of a writ of preliminary mandatory injunction for the return to her of what she claimed to be
her paraphernal and exclusive property, then under the administration and management of
respondent Clemente Ramos. There was an opposition to the hearing of such a motion, dated July
3, 1971, based on Article 103 of the Civil Code. It was further manifested by him in a pleading dated
July 16, 1971, that if the motion asking for preliminary mandatory injunction were heard, the prospect
of the reconciliation of the spouses would become even more dim. Respondent Judge ordered the
parties to submit their respective memoranda on the matter. Then on September 3, 1971, petitioner
received an order dated August 4, 1971 of respondent Judge granting the motion of respondent
Ramos to suspend the hearing of the petition for a writ of mandatory preliminary injunction. That is
the order complained of in this petition for certiorari. Respondents were required to answer
according to our resolution of October 5, 1971. The answer was filed December 2 of that year. Then
on January 12, 1972 came a manifestation from parties in the case submitting the matter without
further arguments.

After a careful consideration of the legal question presented, it is the holding of this Court that Article
103 the Civil Code is not an absolute bar to the hearing motion for preliminary injunction prior to the
expiration of the six-month period.

1. It is understandable why there should be a period during which the court is precluded from acting.
Ordinarily of course, no such delay is permissible. Justice to parties would not thereby be served.
The sooner the dispute is resolved, the better for all concerned. A suit for legal separation, however,
is something else again. It involves a relationship on which the law for the best reasons would attach
the quality of permanence. That there are times when domestic felicity is much less than it ought to
be is not of course to be denied. Grievances, whether fancied or real, may be entertained by one or
both of the spouses. There may be constant bickering. The loss affection on the part of one or both
may be discernible. Nonetheless, it will not serve public interest, much less the welfare of the
husband or the wife, to allow them to go their respective ways. Where there are offspring, the reason
for maintaining the conjugal union is even more imperative. It is a mark of realism of the law that for
certain cases, adultery on the part of the wife and concubinage on the part of the husband, or an
attempt of one spouse against the life of the other,  it recognizes, albeit reluctantly, that the couple is
1

better off apart. A suit for legal separation lies. Even then, the hope that the parties may settle their
differences is not all together abandoned. The healing balm of time may aid in the process.
Hopefully, the guilty parties may mend his or her ways, and the offended party may in turn exhibit
magnanimity. Hence, the interposition of a six-month period before an action for legal separation is
to be tried.

The court where the action is pending according to Article 103 is to remain passive. It must let the
parties alone in the meanwhile. It is precluded from hearing the suit. There is then some plausibility
for the view of the lower court that an ancillary motion such as one for preliminary mandatory
injunction is not to be acted on. If it were otherwise, there would be a failure to abide by the literal
language of such codal provision. That the law, however, remains cognizant of the need in certain
cases for judicial power to assert itself is discernible from what is set forth in the following article. It
reads thus: "After the filing of the petition for legal separation, the spouse shall be entitled to live
separately from each other and manage their respective property. The husband shall continue to
manage the conjugal partnership property but if the court deems it proper, it may appoint another to
manage said property, in which case the administrator shall have the same rights and duties as a
guardian and shall not be allowed to dispose of the income or of the capital except in accordance
with the orders of the court."  There would appear to be then a recognition that the question of
2

management of their respective property need not be left unresolved even during such six-month
period. An administrator may even be appointed for the management of the property of the conjugal
partnership. The absolute limitation from which the court suffers under the preceding article is
thereby eased. The parties may in the meanwhile be heard. There is justification then for the
petitioner's insistence that her motion for preliminary mandatory injunction should not be ignored by
the lower court. There is all the more reason for this response from respondent Judge, considering
that the husband whom she accused of concubinage and an attempt against her life would in the
meanwhile continue in the management of what she claimed to be her paraphernal property, an
assertion that was not specifically denied by him. What was held by this Court in Araneta v.
Concepcion,  thus possesses relevance: "It is conceded that the period of six months fixed therein
3

Article 103 (Civil Code) is evidently intended as a cooling off period to make possible a reconciliation
between the spouses. The recital of their grievances against each other in court may only fan their
already inflamed passions against one another, and the lawmaker has imposed the period to give
them opportunity for dispassionate reflection. But this practical expedient, necessary to carry out
legislative policy, does not have the effect of overriding other provisions such as the determination of
the custody of the children and alimony and support pendente lite according to the circumstance ...
The law expressly enjoins that these should be determined by the court according to the
circumstances. If these are ignored or the courts close their eyes to actual facts, rank injustice may
be caused."  At any rate, from the time of the issuance of the order complained of on August 4, 1971,
4

more than six months certainly had elapsed. Thus there can be no more impediment for the lower
court acting on the motion of petitioner for the issuance of a writ of preliminary mandatory injunction.

WHEREFORE, the plea of petitioner for a writ of certiorari is granted, and the order of respondent
Court of August 4, 1971, suspending the hearing on the petition for a writ of preliminary mandatory
injunction is set aside. Respondent Judge is directed to proceed without delay to hear the motion for
preliminary mandatory injunction. Costs against respondent Clemente G. Ramos.
D. COLLUSION

G.R. No. L-13553             February 23, 1960

JOSE DE OCAMPO, petitioner,
vs.
SERAFINA FLORENCIANO, respondent.

Joselito J. Coloma for petitioner.

BENGZON, J.:

Action for legal separation by Jose de Ocampo against his wife Serafina, on the ground of adultery.
The court of first instance of Nueva Ecija dismissed it. The Court of Appeals affirmed, holding there
was confession of judgment, plus condonation or consent to the adultery and prescription.

We granted certiorari to consider the application of articles 100 and 101 of the New Civil Code,
which for convenience are quoted herewith:

ART. 100.—The legal separation may be claimed only by the innocent spouse, provided
there has been no condonation of or consent to the adultery or concubinage. Where both
spouses are offenders, a legal separation cannot be claimed by either of them. Collusion
between the parties to obtain legal separation shall cause the dismissal of the petition.

ART. 101.—No decree of legal separation shall be promulgated upon a stipulation of facts or
by confession of judgment.

In case of non-appearance of the defendant, the court shall order the prosecuting attorney to
inquire whether or not a collusion between the parties exists. If there is no collusion, the
prosecuting attorney shall intervene for the State in order to take care that the evidence for
the plaintiff is not fabricated.

The record shows that on July 5, 1955, the complaint for legal separation was filed. As amended, it
described their marriage performed in 1938, and the commission of adultery by Serafina, in March
1951 with Jose Arcalas, and in June 1955 with Nelson Orzame.

Because the defendant made no answer, the court defaulted her, and pursuant to Art. 101 above,
directed the provincial fiscal to investigate whether or not collusion existed between the parties. The
fiscal examined the defendant under oath, and then reported to the Court that there was no
collusion. The plaintiff presented his evidence consisting of the testimony of Vicente Medina, Ernesto
de Ocampo, Cesar Enriquez, Mateo Damo, Jose de Ocampo and Capt. Serafin Gubat.

According to the Court of Appeals, the evidence thus presented shows that "plaintiff and defendant
were married in April 5, 1938 by a religious ceremony in Guimba, Nueva Ecija, and had lived
thereafter as husband and wife. They begot several children who are now living with plaintiff. In
March, 1951, plaintiff discovered on several occasions that his wife was betraying his trust by
maintaining illicit relations with one Jose Arcalas. Having found the defendant carrying marital
relations with another man plaintiff sent her to Manila in June 1951 to study beauty culture, where
she stayed for one year. Again, plaintiff discovered that while in the said city defendant was going
out with several other men, aside from Jose Arcalas. Towards the end of June, 1952, when
defendant had finished studying her course, she left plaintiff and since then they had lived
separately.

"On June 18, 1955, plaintiff surprised his wife in the act of having illicit relations with another man by
the name of Nelson Orzame. Plaintiff signified his intention of filing a petition for legal separation, to
which defendant manifested her conformity provided she is not charged with adultery in a criminal
action. Accordingly, plaintiff filed on July 5, 1955, a petition for legal separation."

The Court of Appeals held that the husband's right to legal separation on account of the defendant's
adultery with Jose Arcalas had prescribed, because his action was not filed within one year from
March 1951 when plaintiff discovered her infidelity. (Art. 102, New Civil Code) We must agree with
the Court of Appeals on this point.1

As to the adultery with Nelson Orzame, the appellate court found that in the night of June 18, 1955,
the husband upon discovering the illicit connection, expressed his wish to file a petition for legal
separation and defendant readily agreed to such filing. And when she was questioned by the Fiscal
upon orders of the court, she reiterated her conformity to the legal separation even as she admitted
having had sexual relations with Nelson Orzame. Interpreting these facts virtually to mean a
confession of judgment the Appellate Court declared that under Art. 101, legal separation could not
be decreed.

As we understand the article, it does not exclude, as evidence, any admission or confession made
by the defendant outside of the court. It merely prohibits a decree of separation upon a confession of
judgment. Confession of judgment usually happens when the defendant appears in court and
confesses the right of plaintiff to judgment or files a pleading expressly agreeing to the plaintiff's
demand.2 This is not occur.

Yet, even supposing that the above statement of defendant constituted practically a confession of
judgment, inasmuch as there is evidence of the adultery independently of such statement, the
decree may and should be granted, since it would not be based on her confession, but upon
evidence presented by the plaintiff. What the law prohibits is a judgment based exclusively or mainly
on defendant's confession. If a confession defeats the action ipso facto, any defendant who opposes
the separation will immediately confess judgment, purposely to prevent it.

The mere circumstance that defendants told the Fiscal that she "like also" to be legally separated
from her husband, is no obstacle to the successful prosecution of the action. When she refused to
answer the complaint, she indicated her willingness to be separated. Yet, the law does not order the
dismissal. Allowing the proceeding to continue, it takes precautions against collusion, which implies
more than consent or lack of opposition to the agreement.

Needless to say, when the court is informed that defendant equally desires the separation and
admitted the commission of the offense, it should be doubly careful lest a collusion exists. (The
Court of Appeals did not find collusion.)

Collusion in divorce or legal separation means the agreement.

. . . between husband and wife for one of them to commit, or to appear to commit, or to be
represented in court as having committed, a matrimonial offense, or to suppress evidence of
a valid defense, for the purpose of enabling the other to obtain a divorce. This agreement, if
not express, may be implied from the acts of the parties. It is a ground for denying the
divorce. (Griffiths vs. Griffiths, 69 N. J. Eq. 689 60 Atl. 1099; Sandoz vs. Sandoz, 107 Ore.
282, 214 Pas. 590.).
In this case, there would be collusion if the parties had arranged to make it appear that a matrimonial
offense had been committed although it was not, or if the parties had connived to bring about a legal
separation even in the absence of grounds therefor.

Here, the offense of adultery had really taking place, according to the evidence. The defendant could
not have falsely told the adulterous acts to the Fiscal, because her story might send her to jail the
moment her husband requests the Fiscal to prosecute. She could not have practiced deception at
such a personal risk.

In this connection, it has been held that collusion may not be inferred from the mere fact that the
guilty party confesses to the offense and thus enables the other party to procure evidence necessary
to prove it. (Williams vs. Williams, [N. Y.] 40 N. E. (2d) 1017; Rosenweig vs. Rosenweig, 246 N. Y.
Suppl. 231; Conyers, vs. Conyers, 224 S. W. [2d] 688.).

And proof that the defendant desires the divorce and makes no defense, is not by itself collusion.
(Pohlman vs. Pohlman, [N. J.] 46 Atl. Rep. 658.).

We do not think plaintiff's failure actively to search for defendant and take her home (after the latter
had left him in 1952) constituted condonation or consent to her adulterous relations with Orzame. It
will be remembered that she "left" him after having sinned with Arcalas and after he had discovered
her dates with other men. Consequently, it was not his duty to search for her to bring her home.
Hers was the obligation to return.

Two decisions3 are cited wherein from apparently similar circumstances, this Court inferred the
husband's consent to or condonation of his wife's misconduct. However, upon careful examination, a
vital difference will be found: in both instances, the husband had abandoned his wife; here it was the
wife who "left" her husband.

Wherefore, finding no obstacles to the aggrieved husband's petition we hereby reverse the appealed
decision and decree a legal separation between these spouse, all the consequent effects. Costs of
all instances against Serafina Florenciano. So ordered.
 G.R. No. 137590            March 26, 2001

FLORENCE MALCAMPO-SIN, petitioner,
vs.
PHILIPP T. SIN, respondent.

PARDO, J.:

The Family Code emphasizes the permanent nature of marriage, hailing it as the foundation of the
family.1 It is this inviolability which is central to our traditional and religious concepts of morality and
provides the very bedrock on which our society finds stability.2 Marriage is immutable and when both
spouses give their consent to enter it, their consent becomes irrevocable, unchanged even by their
independent wills.

However, this inviolability depends on whether the marriage exists and is valid. If it is void ab initio,
the "permanence" of the union becomes irrelevant, and the Court can step in to declare it so. Article
36 of the Family Code is the justification.3 Where it applies and is duly proven, a judicial declaration
can free the parties from the rights, obligations, burdens and consequences stemming from their
marriage.

A declaration of nullity of marriage under Article 36 of the Family Code requires the application of
procedural and substantive guidelines. While compliance with these requirements mostly devolves
upon petitioner, the State is likewise mandated to actively intervene in the procedure. Should there
be non-compliance by the State with its statutory duty, there is a need to remand the case to the
lower court for proper trial.

The Case

What is before the Court4 is an appeal from a decision of the Court of Appeals5 which affirmed the
decision of the Regional Trial Court, Branch 158, Pasig City6 dismissing petitioner Florence
Malcampo-Sin's (hereafter "Florence") petition for declaration of nullity of marriage due to
psychological incapacity for insufficiency of evidence.

The Facts

On January 4, 1987, after a two-year courtship and engagement, Florence and respondent Philipp T.
Sin (hereafter "Philipp"), a Portugese citizen, were married at St. Jude Catholic Parish in San Miguel,
Manila.7

On September 20, 1994, Florence filed with the Regional Trial Court, Branch 158, Pasig City, a
complaint for "declaration of nullity of marriage" against Philipp.8 Trial ensued and the parties
presented their respective documentary and testimonial evidence.

On June 16, 1995, the trial court dismissed Florence's petition.9

On December 19, 1995, Florence filed with the trial court a notice of appeal to the Court of
Appeals.10

After due proceedings, on April 30, 1998, the Court of Appeals promulgated its decision, the
dispositive portion of which reads:
 "IN THE LIGHT OF ALL THE FOREGOING, the Appeal is DISMISSED. The Decision
appealed from is AFFIRMED. Cost against the Appellant."11

On June 23, 1998, petitioner filed with the Court of Appeals a motion for reconsideration of the
aforequoted decision.12

On January 19, 1999, the Court of Appeals denied petitioner's motion for reconsideration.13

Hence, this appeal.14

The Court's Ruling

We note that throughout the trial in the lower court, the State did not participate in the proceedings.
While Fiscal Jose Danilo C. Jabson15 filed with the trial court a manifestation dated November 16,
1994, stating that he found no collusion between the parties,16 he did not actively participate therein.
Other than entering his appearance at certain hearings of the case, nothing more was heard from
him. Neither did the presiding Judge take any step to encourage the fiscal to contribute to the
proceedings.

The Family Code mandates:

"ARTICLE 48. In all cases of annulment or declaration of absolute nullity of marriage, the
Court shall order the prosecuting attorney or fiscal assigned to it to appear on behalf of the
State to take steps to prevent collusion between the parties and to take care that evidence is
not fabricated or suppressed (italics ours).

"In the cases referred to in the preceding paragraph, no judgment shall be based upon a
stipulation of facts or confession of judgment."

It can be argued that since the lower court dismissed the petition, the evil sought to be prevented
(i.e., dissolution of the marriage) did not come about, hence, the lack of participation of the State
was cured. Not so. The task of protecting marriage as an inviolable social institution requires vigilant
and zealous participation and not mere pro-forma compliance. The protection of marriage as a
sacred institution requires not just the defense of a true and genuine union but the exposure of an
invalid one as well. This is made clear by the following pronouncement:

"(8) The trial court must order the prosecuting attorney or fiscal and the Solicitor General to
appear as counsel for the state. No decision shall be handed down unless the Solicitor
General issues a certification, which will be quoted in the decision,17 briefly stating therein his
reasons for his agreement or opposition as the case may be, to the petition. The Solicitor-
General shall discharge the equivalent function of the defensor vinculi contemplated under
Canon 1095 (italics ours)."18

The records are bereft of any evidence that the State participated in the prosecution of the case not
just at the trial level but on appeal with the Court of Appeals as well. Other than the "manifestation"
filed with the trial court on November 16, 1994, the State did not file any pleading, motion or position
paper, at any stage of the proceedings.

In Republic of the Philippines v. Erlinda Matias Dagdag,19 while we upheld the validity of the
marriage, we nevertheless characterized the decision of the trial court as "prematurely rendered"
since the investigating prosecutor was not given an opportunity to present controverting evidence
before the judgment was rendered. This stresses the importance of the participation of the State.

Having so ruled, we decline to rule on the factual disputes of the case, this being within the province
of the trial court upon proper re-trial.

Obiter Dictum

For purposes of re-trial, we guide the parties thus: In Republic vs. Court of Appeals,20 the guidelines
in the interpretation and application of Article 36 of the Family Code are as follows (omitting
guideline [8] in the enumeration as it was already earlier quoted):

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

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

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

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

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

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

"(7) Interpretations given by the National Appellate Matrimonial Tribunal of the Catholic
Church in the Philippines, while not controlling or decisive, should be given great respect by
our courts."

The Fallo

WHEREFORE, the Court REVERSES and SETS ASIDE the appealed decision of the Court of
Appeals in CA-G.R. CV No. 51304, promulgated on April 30, 1998 and the decision of the Regional
Trial Court, Branch 158, Pasig City in Civil Case No. 3190, dated June 16, 1995.

Let the case be REMANDED to the trial court for proper trial.

No costs.

SO ORDERED.
 G.R. No. 145370             March 4, 2004

MARIETTA B. ANCHETA, petitioner,
vs.
RODOLFO S. ANCHETA, respondent.

DECISION

CALLEJO, SR., J.:

This is a petition for review on certiorari of the Resolution1 of the Court of Appeals in CA-G.R. SP No.
59550 which dismissed the petitioner’s petition under Rule 47 of the 1997 Rules of Civil Procedure
to annul the Order2 of the Regional Trial Court of Naic, Cavite, Branch 15 in Special Proceedings No.
NC-662 nullifying the marriage of the petitioner and the respondent Rodolfo S. Ancheta, and of the
resolution of the appellate court denying the motion for reconsideration of the said resolution.

This case arose from the following facts:

After their marriage on March 5, 1959, the petitioner and the respondent resided in Muntinlupa,
Metro Manila. They had eight children during their coverture, whose names and dates of births are
as follows:

a. ANA MARIE B . ANCHETA – born October 6, 1959

b. RODOLFO B. ANCHETA, JR. – born March 7, 1961

c. VENANCIO MARIANO B. ANCHETA – born May 18, 1962

d. GERARDO B. ANCHETA – born April 8, 1963

e. KATHRINA B. ANCHETA – born October 29, 1965

f. ANTONIO B. ANCHETA – born March 6, 1967

g. NATASHA MARTINA B. ANCHETA - born August 2, 1968

h. FRITZIE YOLANDA B. ANCHETA – born November 19, 19703

On December 6, 1992, the respondent left the conjugal home and abandoned the petitioner and
their children. On January 25, 1994, petitioner Marietta Ancheta filed a petition with the Regional
Trial Court of Makati, Branch 40, against the respondent for the dissolution of their conjugal
partnership and judicial separation of property with a plea for support and support pendente lite. The
case was docketed as Sp. Proc. No. M-3735. At that time, the petitioner was renting a house at No.
72 CRM Avenue cor. CRM Corazon, BF Homes, Almanza, Las Piñas, Metro Manila.4

On April 20, 1994, the parties executed a Compromise Agreement5 where some of the conjugal
properties were adjudicated to the petitioner and her eight children, including the following:
b. A parcel of land (adjoining the two lots covered by TCT Nos. 120082 and TCT No. 120083-Cavite)
located at Bancal, Carmona, Cavite, registered in the name of the family Ancheta. Biofood
Corporation under TCT No. 310882, together with the resort Munting Paraiso, Training Center, four-
storey building, pavilion, swimming pool and all improvements. All of the shares of stocks of Ancheta
Biofoods Corporation were distributed one-third (1/3) to the petitioner and the eight children one-
twelfth (1/12) each.6

The court rendered judgment based on the said compromise agreement. Conformably thereto, the
respondent vacated, on June 1, 1994, the resort Munting Paraiso and all the buildings and
improvements thereon. The petitioner, with the knowledge of the respondent, thenceforth resided in
the said property.

In the meantime, the respondent intended to marry again. On June 5, 1995, he filed a petition with
the Regional Trial Court of Naic, Cavite, Branch 15, for the declaration of nullity of his marriage with
the petitioner on the ground of psychological incapacity. The case was docketed as Sp. Proc. No.
NC-662. Although the respondent knew that the petitioner was already residing at the resort Munting
Paraiso in Bancal, Carmona, Cavite, he, nevertheless, alleged in his petition that the petitioner was
residing at No. 72 CRM Avenue corner CRM Corazon, BF Homes, Almanza, Las Piñas, Metro
Manila, "where she may be served with summons."7 The clerk of court issued summons to the
petitioner at the address stated in the petition.8 The sheriff served the summons and a copy of the
petition by substituted service on June 6, 1995 on the petitioner’s son, Venancio Mariano B. Ancheta
III, at his residence in Bancal, Carmona, Cavite.9

On June 21, 1995, Sheriff Jose R. Salvadora, Jr. submitted a Return of Service to the court stating
that the summons and a copy of the petition were served on the petitioner through her son Venancio
Mariano B. Ancheta III on June 6, 1995:

RETURN OF SERVICE

This is to certify that the summons together with the copy of the complaint and its annexes was
received by the herein defendant thru his son Venancio M.B. Ancheta [III] as evidenced by the
signature appearing on the summons. Service was made on June 6, 1995.

June 21, 1995, Naic, Cavite.

(Sgd.) JOSE R. SALVADORA, JR.

Sheriff10

The petitioner failed to file an answer to the petition. On June 22, 1995, the respondent filed an "Ex-
Parte Motion to Declare Defendant as in Default" setting it for hearing on June 27, 1995 at 8:30 a.m.
During the hearing on the said date, there was no appearance for the petitioner. The public
prosecutor appeared for the State and offered no objection to the motion of the respondent who
appeared with counsel. The trial court granted the motion and declared the petitioner in default, and
allowed the respondent to adduce evidence ex-parte. The respondent testified in his behalf and
adduced documentary evidence. On July 7, 1995, the trial court issued an Order granting the petition
and declaring the marriage of the parties void ab initio.11 The clerk of court issued a Certificate of
Finality of the Order of the court on July 16, 1996.12

On February 14, 1998, Valentine’s Day, the respondent and Teresita H. Rodil were married in civil
rights before the municipal mayor of Indang, Cavite.13
On July 7, 2000, the petitioner filed a verified petition against the respondent with the Court of
Appeals under Rule 47 of the Rules of Court, as amended, for the annulment of the order of the RTC
of Cavite in Special Proceedings No. NC-662. The case was docketed as CA-G.R. SP No. 59550.
The petitioner alleged, inter alia, that the respondent committed gross misrepresentations by making
it appear in his petition in Sp. Proc. No. NC-662 that she was a resident of No. 72 CRM Avenue cor.
CRM Corazon, BF Homes, Almanza, Las Piñas, Metro Manila, when in truth and in fact, the
respondent knew very well that she was residing at Munting Paraiso, Bancal, Carmona, Cavite.
According to the petitioner, the respondent did so to deprive her of her right to be heard in the said
case, and ultimately secure a favorable judgment without any opposition thereto. The petitioner also
alleged that the respondent caused the service of the petition and summons on her by substituted
service through her married son, Venancio Mariano B. Ancheta III, a resident of Bancal, Carmona,
Cavite, where the respondent was a resident. Furthermore, Venancio M.B. Ancheta III failed to
deliver to her the copy of the petition and summons. Thus, according to the petitioner, the order of
the trial court in favor of the respondent was null and void (1) for lack of jurisdiction over her person;
and (2) due to the extrinsic fraud perpetrated by the respondent. She further contended that there
was no factual basis for the trial court’s finding that she was suffering from psychological incapacity.
Finally, the petitioner averred that she learned of the Order of the RTC only on January 11, 2000.
Appended to the petition, inter alia, were the affidavits of the petitioner and of Venancio M.B.
Ancheta III.

The petitioner prayed that, after due proceedings, judgment be rendered in her favor, thus:

WHEREFORE, petitioner respectfully prays this Honorable Court to render Judgment granting the
Petition.

1. Declaring null and void the Order dated June 7, 1995 (of the Regional Trial Court, Branch
14, Naic, Cavite).

2. Ordering respondent to pay petitioner

a. ₱1,000,000.00 as moral damages;

b. ₱500,000.00 as exemplary damages;

c. ₱200,000.00 as attorney’s fees plus P7,500.00 per diem for every hearing;

d. ₱100,000.00 as litigation expenses;

e. Costs of suit.14

On July 13, 2000, the CA issued a Resolution dismissing the petition on the following ground:

We cannot give due course to the present petition in default or in the absence of any clear and
specific averment by petitioner that the ordinary remedies of new trial, appeal, petition for relief or
other appropriate remedies are no longer available through no fault of petitioner. Neither is there any
averment or allegation that the present petition is based only on the grounds of extrinsic fraud and
lack of jurisdiction. Nor yet that, on the assumption that extrinsic fraud can be a valid ground
therefor, that it was not availed of, or could not have been availed of, in a motion for new trial, or
petition for relief.15
The petitioner filed a motion for the reconsideration of the said resolution, appending thereto an
amended petition in which she alleged, inter alia, that:

4. This petition is based purely on the grounds of extrinsic fraud and lack of jurisdiction.

5. This petition has not prescribed; it was filed within the four-year period after discovery of
the extrinsic fraud.

6. The ground of extrinsic fraud has not been availed of, or could not have been availed of in
a motion for new trial or petition for relief.

7. The ground of lack of jurisdiction is not barred by laches and/or estoppel.

8. The ordinary remedies of new trial, appeal, petition for relief or other appropriate remedies
were no longer available through no fault of petitioner; neither has she ever availed of the
said remedies. This petition is the only available remedy to her.16

The petitioner also alleged therein that the order of the trial court nullifying her and the respondent’s
marriage was null and void for the court a quo’s failure to order the public prosecutor to conduct an
investigation on whether there was collusion between the parties, and to order the Solicitor General
to appear for the State.

On September 27, 2000, the CA issued a Resolution denying the said motion.

The petitioner filed a petition for review on certiorari with this Court alleging that the CA erred as
follows:

1. In failing to take into consideration the kind of Order which was sought to be annulled.

2. In finding that the Petition was procedurally flawed.

3. In not finding that the Petition substantially complied with the requirements of the Rules of
Court.

4. In failing to comply with Section 5, Rule 47, Rules of Court.

5. In not even considering/resolving Petitioner’s Motion to Admit the Amended Petition; and
in not admitting the Amended Petition.

6. In failing to apply the Rules of Procedure with liberality.17

The petition is meritorious.

An original action in the Court of Appeals under Rule 47 of the Rules of Court, as amended, to annul
a judgment or final order or resolution in civil actions of the RTC may be based on two grounds: (a)
extrinsic fraud; or (b) lack of jurisdiction. If based on extrinsic fraud, the remedy is subject to a
condition precedent, namely, the ordinary remedies of new trial, appeal, petition for relief or other
appropriate remedies are no longer available through no fault of the petitioner.18 The petitioner must
allege in the petition that the ordinary remedies of new trial, appeal, petition for relief from judgment,
under Rule 38 of the Rules of Court are no longer available through no fault of hers; otherwise, the
petition will be dismissed. If the petitioner fails to avail of the remedies of new trial, appeal or relief
from judgment through her own fault or negligence before filing her petition with the Court of
Appeals, she cannot resort to the remedy under Rule 47 of the Rules; otherwise, she would benefit
from her inaction or negligence.19

It is not enough to allege in the petition that the said remedies were no longer available through no
fault of her own. The petitioner must also explain and justify her failure to avail of such remedies.
The safeguard was incorporated in the rule precisely to avoid abuse of the remedy.20 Access to the
courts is guaranteed. But there must be limits thereto. Once a litigant’s rights have been adjudicated
in a valid final judgment of a competent court, he should not be granted an unbridled license to sue
anew. The prevailing party should not be vexed by subsequent suits.21

In this case, the petitioner failed to allege in her petition in the CA that the ordinary remedies of new
trial, appeal, and petition for relief, were no longer available through no fault of her own. She merely
alleged therein that she received the assailed order of the trial court on January 11, 2000. The
petitioner’s amended petition did not cure the fatal defect in her original petition, because although
she admitted therein that she did not avail of the remedies of new trial, appeal or petition for relief
from judgment, she did not explain why she failed to do so.

We, however, rule that the Court of Appeals erred in dismissing the original petition and denying
admission of the amended petition. This is so because apparently, the Court of Appeals failed to
take note from the material allegations of the petition, that the petition was based not only on
extrinsic fraud but also on lack of jurisdiction over the person of the petitioner, on her claim that the
summons and the copy of the complaint in Sp. Proc. No. NC-662 were not served on her. While the
original petition and amended petition did not state a cause of action for the nullification of the
assailed order on the ground of extrinsic fraud, we rule, however, that it states a sufficient cause of
action for the nullification of the assailed order on the ground of lack of jurisdiction of the RTC over
the person of the petitioner, notwithstanding the absence of any allegation therein that the ordinary
remedy of new trial or reconsideration, or appeal are no longer available through no fault of the
petitioner.

In a case where a petition for the annulment of a judgment or final order of the RTC filed under Rule
47 of the Rules of Court is grounded on lack of jurisdiction over the person of the
defendant/respondent or over the nature or subject of the action, the petitioner need not allege in the
petition that the ordinary remedy of new trial or reconsideration of the final order or judgment or
appeal therefrom are no longer available through no fault of her own. This is so because a judgment
rendered or final order issued by the RTC without jurisdiction is null and void and may be assailed
any time either collaterally or in a direct action or by resisting such judgment or final order in any
action or proceeding whenever it is invoked,22 unless barred by laches.23

In this case, the original petition and the amended petition in the Court of Appeals, in light of the
material averments therein, were based not only on extrinsic fraud, but also on lack of jurisdiction of
the trial court over the person of the petitioner because of the failure of the sheriff to serve on her the
summons and a copy of the complaint. She claimed that the summons and complaint were served
on her son, Venancio Mariano B. Ancheta III, who, however, failed to give her the said summons
and complaint.

Even a cursory reading of the material averments of the original petition and its annexes will show
that it is, prima facie meritorious; hence, it should have been given due course by the Court of
Appeals.

In Paramount Insurance Corporation v. Japzon,24 we held that jurisdiction is acquired by a trial court
over the person of the defendant either by his voluntary appearance in court and his submission to
its authority or by service of summons. The service of summons and the complaint on the defendant
is to inform him that a case has been filed against him and, thus, enable him to defend himself. He
is, thus, put on guard as to the demands of the plaintiff or the petitioner. Without such service in the
absence of a valid waiver renders the judgment of the court null and void.25 Jurisdiction cannot be
acquired by the court on the person of the defendant even if he knows of the case against him
unless he is validly served with summons.26

Summons and complaint may be served on the defendant either by handing a copy thereof to him in
person, or, if he refuses to receive and sign for it, by tendering it to her.27 However, if there is
impossibility of prompt service of the summons personally on the defendant despite diligent efforts to
find him, service of the summons may be effected by substituted service as provided in Section 7,
Rule 14 of the said Rules:

SEC. 7. Substituted service.— If, for justifiable causes, the defendant cannot be served within a
reasonable time as provided in the preceding section, service may be effected (a) by leaving copies
of the summons at the defendant’s residence with some person of suitable age and discretion then
residing therein, or (b) by leaving the copies of defendant’s office or regular place of business with
some competent person in charge thereof.28

In Miranda v. Court of Appeals,29 we held that the modes of service should be strictly followed in
order that the court may acquire jurisdiction over the person of the defendant. Thus, it is only when a
defendant cannot be served personally within a reasonable time that substituted service may be
made by stating the efforts made to find him and personally serve on him the summons and
complaint and the fact that such effort failed.30 This statement should be made in the proof of service
to be accomplished and filed in court by the sheriff. This is necessary because substituted service is
a derogation of the usual method of service. It has been held that substituted service of summons is
a method extraordinary in character; hence, may be used only as prescribed and in the
circumstances categorized by statutes.31

As gleaned from the petition and the amended petition in the CA and the annexes thereof, the
summons in Sp. Proc. No. NC-662 was issued on June 6, 1995.32 On the same day, the summons
was served on and received by Venancio Mariano B. Ancheta III,33 the petitioner’s son. When the
return of summons was submitted to the court by the sheriff on June 21, 1995, no statement was
made on the impossibility of locating the defendant therein within a reasonable time, or that any
effort was made by the sheriff to locate the defendant. There was no mention therein that Venancio
Mariano Ancheta III was residing at No. 72 CRM Avenue cor. CRM Corazon, BF Homes, Almanza,
Las Piñas, where the petitioner (defendant therein) was allegedly residing. It turned out that
Venancio Mariano B. Ancheta III had been residing at Bancal, Carmona, Cavite, and that his father
merely showed him the summons and the complaint and was made to affix his signature on the face
of the summons; he was not furnished with a copy of the said summons and complaint.

4. From the time my father started staying at Munting Paraiso, Bancal, Carmona, Cavite, I
have been residing on the adjoining land consisting of two (2) lots later apportioned to my
father as his share of the conjugal partnership. Since then, I have been residing therein up to
the present.

5. On June 6, 1995, at Bancal, Carmona, Cavite (at my residence situated on my father’s

lot), my father came to see me and then asked me to sign and I did sign papers which he
(my father) and the Sheriff did not allow me to read. Apparently, these papers are for the
Summons to my mother in the case for annulment of marriage filed by my father against her.
I was not given any copy of the Summons and/or copy of the complaint/petition.34
We, thus, rule that the Court of Appeals acted arbitrarily in dismissing the original petition of the
petitioner and the amended petition for annulment of the assailed order grounded on lack of
jurisdiction over the person of the petitioner.

The action in Rule 47 of the Rules of Court does not involve the merits of the final order of the trial
court. However, we cannot but express alarm at what transpired in the court a quo as shown by the
records. The records show that for the petitioner’s failure to file an answer to the complaint, the trial
court granted the motion of the respondent herein to declare her in default. The public prosecutor
condoned the acts of the trial court when he interposed no objection to the motion of the respondent.
The trial court forthwith received the evidence of the respondent ex-parte and rendered judgment
against the petitioner without a whimper of protest from the public prosecutor. The actuations of the
trial court and the public prosecutor are in defiance of Article 48 of the Family Code, which reads:

Article 48. In all cases of annulment or declaration of absolute nullity of marriage, the Court shall
order the prosecuting attorney or fiscal assigned to it to appear on behalf of the State to take steps
to prevent collusion between the parties and to take care that evidence is not fabricated or
suppressed.

In the cases referred to in the preceding paragraph, no judgment shall be based upon a stipulation of
facts or confession of judgment.35

The trial court and the public prosecutor also ignored Rule 18, Section 6 of the 1985 Rules of Court
(now Rule 9, Section 3[e] of the 1997 Rules of Civil Procedure) which provides:

Sec. 6. No defaults in actions for annulment of marriage or for legal separation.— If the defendant in
an action for annulment of marriage or for legal separation fails to answer, the court shall order the
prosecuting attorney to investigate whether or not a collusion between the parties exits, and if there
is no collusion, to intervene for the State in order to see to it that the evidence submitted is not
fabricated.36

In the case of Republic v. Court of Appeals,37 this Court laid down the guidelines in the interpretation
and application of Art. 48 of the Family Code, one of which concerns the role of the prosecuting
attorney or fiscal and the Solicitor General to appear as counsel for the State:

(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 1095.38

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

The task of protecting marriage as an inviolable social institution requires vigilant and zealous
participation and not mere pro-forma compliance. The protection of marriage as a sacred institution
requires not just the defense of a true and genuine union but the exposure of an invalid one as well.42
A grant of annulment of marriage or legal separation by default is fraught with the danger of
collusion. Hence, in all cases for annulment, declaration of nullity of marriage and legal separation,
the prosecuting attorney or fiscal is ordered to appear on behalf of the State for the purpose of
preventing any collusion between the parties and to take care that their evidence is not fabricated or
suppressed. If the defendant-spouse fails to answer the complaint, the court cannot declare him or
her in default but instead, should order the prosecuting attorney to determine if collusion exists
between the parties. The prosecuting attorney or fiscal may oppose the application for legal
separation or annulment through the presentation of his own evidence, if in his opinion, the proof
adduced is dubious and fabricated.

Our constitution is committed to the policy of strengthening the family as a basic social institution.
Our family law is based on the policy that marriage is not a mere contract, but a social institution in
which the State is vitally interested. The State can find no stronger anchor than on good, solid and
happy families. The break-up of families weakens our social and moral fabric; hence, their
preservation is not the concern of the family members alone.43 Whether or not a marriage should
continue to exist or a family should stay together must not depend on the whims and caprices of only
one party, who claims that the other suffers psychological imbalance, incapacitating such party to
fulfill his or her marital duties and obligations.

IN LIGHT OF ALL THE FOREGOING, the petition is GRANTED. The Resolutions of the Court of
Appeals dated July 13, 2000 and September 27, 2000 in CA-G.R. SP No. 59550 are hereby SET
ASIDE and REVERSED. Let the records of CA-G.R. SP No. 59550 be remanded to the Court of
Appeals for further proceedings conformably with the Decision of this Court and Rule 47 of the Rules
of Court, as amended.

SO ORDERED.