FAMILY CODE CASES 1. 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, respondentappellee.

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" 1 on two (2) grounds, namely: that the petition for legal separation was filed beyond the one-year period provided for in Article 102 of the Civil Code; and that the death of Carmen abated the action for legal separation. On 26 June 1969, counsel for deceased petitioner moved to substitute the deceased Carmen by her father, Macario Lapuz. Counsel for Eufemio opposed the motion. On 29 July 1969, the court issued the order under review, dismissing the case. 2 In the body of the order, the court stated that the motion to dismiss and the motion for substitution had to be resolved on the question of whether or not the plaintiff's cause of action has survived, which the court resolved in the negative. Petitioner's moved to reconsider but the motion was denied on 15 September 1969. After first securing an extension of time to file a petition for review of the order of dismissal issued by the juvenile and domestic relations court, the petitioner filed the present petition on 14 October 1969. The same was given due course and answer thereto was filed by respondent, who prayed for the affirmance of the said order. 3 Although the defendant below, the herein respondent Eufemio S. Eufemio, filed counterclaims, he did not pursue them after the court below dismissed the case. He acquiesced in the dismissal of said counterclaims by praying for the affirmance of the order that dismissed not only the petition for legal separation but also his counterclaim to declare the Eufemio-Lapuz marriage to be null and void ab initio. But petitioner Carmen O. Lapuz Sy (through her self-assumed substitute for the lower court did not act on the motion for substitution) stated the principal issue to be as follows: When an action for legal separation is converted by the counterclaim into one for a declaration of nullity of a marriage, does the death of a party abate the proceedings? The issue as framed by petitioner injects into it a supposed conversion of a legal separation suit to one for declaration of

nullity of a marriage, which is without basis, for even petitioner asserted that "the respondent has acquiesced to the dismissal of his counterclaim" (Petitioner's Brief, page 22). Not only this. The petition for legal separation and the counterclaim to declare the nullity of the self same marriage can stand independent and separate adjudication. They are not inseparable nor was the action for legal separation converted into one for a declaration of nullity by the counterclaim, for legal separation pre-supposes a valid marriage, while the petition for nullity has a voidable marriage as a pre-condition. The first real issue in this case is: Does the death of the plaintiff before final decree, in an action for legal separation, abate the action? If it does, will abatement also apply if the action involves property rights? . An action for legal separation which involves nothing more than the bed-and-board separation of the spouses (there being no absolute divorce in this jurisdiction) is purely personal. The Civil Code of the Philippines recognizes this in its Article 100, by allowing only the innocent spouse (and no one else) to claim legal separation; and in its Article 108, by providing that the spouses can, by their reconciliation, stop or abate the proceedings and even rescind a decree of legal separation already rendered. Being personal in character, it follows that the death of one party to the action causes the death of the action itself actio personalis

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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. CASE DIGEST 1: FACTS: Carmen Lapuz-Sy filed a petition for legal separation against Eufemio Eufemio on August 1953. They were married civilly on

September 21, 1934 and canonically after nine days. They had lived together as husband and wife continuously without any children until 1943 when her husband abandoned her. They acquired properties during their marriage. Petitioner then discovered that her husband cohabited with a Chinese woman named Go Hiok on or about 1949. She prayed for the issuance of a decree of legal separation, which among others, would order that the defendant Eufemio should be deprived of his share of the conjugal partnership profits. Eufemio counterclaimed for the declaration of nullity of his marriage with Lapuz-Sy on the ground of his prior and subsisting marriage with Go Hiok. Trial proceeded and the parties adduced their respective evidence. However, before the trial could be completed, respondent already scheduled to present surrebuttal evidence, petitioner died in a vehicular accident on May 1969. Her counsel duly notified the court of her death. Eufemio moved to dismiss the petition for legal separation on June 1969 on the grounds that the said petition was filed beyond the one-year period provided in Article 102 of the Civil Code and that the death of Carmen abated the action for legal separation. Petitioners counsel moved to substitute the deceased Carmen by her father, Macario Lapuz. ISSUE: Whether the death of the plaintiff, before final decree in an action for legal separation, abate the action and will it also apply if the action involved property rights. HELD: An action for legal separation is abated by the death of the plaintiff, even if property rights are involved. 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. The petition of Eufemio for declaration of nullity is moot and academic 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. 2. G.R. No. L-18008 October 30, 1962 ELISEA LAPERAL, petitioner, vs. REPUBLIC OF THE PHILIPPINES, oppositor.

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Martin B. Laurea and Associates Office of the Solicitor General for oppositor.

for

petitioner.

BARRERA, J.: On May 10, 1960, Elisea Laperal filed in the Court of First Instance of Baguio (Sp Proc. No. 433) a petition which reads: 1. That petitioner has been a bona fide resident of the City of Baguio for the last three years prior to the date of the filing of this petition; 2. That petitioner's maiden name is ELISEA LAPERAL; that on March 24, 1939, she married Mr. Enrique R. Santamaria; that in a partial decision entered on this Honorable Court on January 18, 1958, in Civil Case No. 356 of this Court, entitled 'Enrique R. Santamaria vs. Elisea L. Santamaria' Mr. Enrique Santamaria was given a decree of legal separation from her; that the said partial decision is now final; 3. That during her marriage to Enrique R. Santamaria, she naturally used, instead of her maiden name, that of Elisea L. Santamaria; that aside from her legal separation from Enrique R. Santamaria, she has also ceased to live with him for many years now; 4. That in view of the fact that she has been legally separated from Mr. Enrique R. Santamaria and has likewise ceased to live with him for many years, it is desirable that she be allowed to change her name and/or be permitted to resume using her maiden name, to wit: ELISEA LAPERAL. WHEREFORE, petitioner respectfully prayed that after the necessary proceedings are had, she be allowed to resume using her maiden name of Elisea Laperal. The petition was opposed by the City Attorney of Baguio on the ground that the same violates the provisions of Article 370 (should be 372) of the Civil Code, and that it is not sanctioned by the Rules of Court.

In its decision of October 31, 1960, the court denied the petition for the reason that Article 372 of the Civil Code requires the wife, even after she is decreed legally separated from her husband, to continue using the name and surname she employed before the legal separation. Upon petitioner's motion, however, the court, treating the petition as one for change of name, reconsidered its decision and granted the petition on the ground that to allow petitioner, who is a businesswoman decreed legally separated from her husband, to continue using her married name would give rise to confusion in her finances and the eventual liquidation of the conjugal assets. Hence, this appeal by the State. The contention of the Republic finds support in the provisions of Article 372 of the New Civil Code which reads: ART. 372. When legal separation has been granted, the wife shall continue using her name and surname employed before the legal separation. (Emphasis supplied) Note that the language of the statute is mandatory that the wife, even after the legal separation has been decreed, shall continue using her name and surname employed before the legal separation. This is so because her married status is unaffected by the separation, there being no severance of the vinculum. It seems to be the policy of the law that the wife should continue to use the name indicative of her unchanged status for the benefit of all concerned. The appellee contends, however, that the petition is substantially for change of her name from Elisea L. Santamaria, the one she has been using, since her marriage, to Elisea Laperal, her maiden name, giving as reason or cause therefor her being legally separated from the husband Enrique R. Santamaria, and the fact that they have ceased to live together for many years. There seems to be no dispute that in the institution of these proceedings, the procedure prescribed in Rule 103 of the Rules of Court for change of name has been observed. But from the petition quoted in full at the beginning of these opinion, the only reason relied upon for the change of name is the fact that petitioner is legally separated from her husband and has, in fact, ceased to live with him for many years. It is doubtful, to say the least, whether Rule 103 which refers to change of name in general, may prevail over the specific provisions of Article 372 of the New Civil Code with regards to married women legally separated from their husbands. Even, however, applying Rule 103 to this case, the fact of legal separation alone which is the only basis for the petition at bar is, in our opinion, not a sufficient ground to justify a change of the name of herein petitioner, for to hold otherwise would be to provide an easy circumvention of the mandatory provisions of Article 372. It is true that in the second decision which reconsidered the first it is stated that as the petitioner owns extensive business interests, the continued used of her husband surname may cause undue confusion in her finances and the eventual liquidation of the conjugal assets. This finding is however without basis. In the first place, these were not the causes upon which the petition was based; hence, obviously no evidence to this effect had been adduced. Secondly, with the issuance of the decree of legal separation in 1958, the conjugal partnership between petitioner and her husband had automatically been dissolved and liquidated. (Art. 106[2], Civil Cod). Consequently, there could be no more occasion for an eventual liquidation of the conjugal assets. WHEREFORE, the order of the lower court of December 1, 1960, granting the petition, is hereby set aside and the petition dismissed. Without costs. So ordered. CASE DIGEST 2: FACTS: The petitioner, a bona fide resident of Baguio City, was married with Mr. Enrique R. Santamaria on March 1939. However, a decree of legal separation was later on issued to the spouses. Aside from that, she ceased to live with Enrique. During their marriage, she naturally uses Elisea L. Santamaria. She filed this petition to be permitted to resume in using her maiden name Elisea Laperal. This was opposed by the City Attorney of Baguio on the ground that it violates Art. 372 of the Civil Code. She was claiming that continuing to use her married name would give rise to confusion in her finances and the eventual liquidation of the conjugal assets. ISSUE: Whether Rule 103 which refers to change of name in general will prevail over the specific provision of Art. 372 of the Civil Code with regard to married woman legally separated from his husband.

HELD: In legal separation, the married status is unaffected by the separation, there being no severance of the vinculum. The finding that petitioners continued use of her husband surname may cause undue confusion in her finances was without basis. It must be considered that the issuance of the decree of legal separation in 1958, necessitate that the conjugal partnership between her and Enrique had automatically been dissolved and liquidated. Hence, there could be no more occasion for an eventual liquidation of the conjugal assets. Furthermore, applying Rule 103 is not a sufficient ground to justify a change of the name of Elisea for to hold otherwise would be to provide for an easy circumvention of the mandatory provision of Art. 372. Petition was dismissed. 3. G.R. No. 169202 March 05, 2010

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REMO VS SECRETARY OF FOREIGN AFFAIRS The Case Before the Court is a petition for review of the 27 May 2005 Decision and 2 August 2005 Resolution of the Court of Appeals in CA-G.R. SP No. 87710. The Court of Appeals affirmed the decision of the Office of the President, which in turn affirmed the decision of the Secretary of Foreign Affairs denying petitioners request to revert to the use of her maiden name in her replacement passport. The Facts Petitioner Maria Virginia V. Remo is a married Filipino citizen whose Philippine passport was then expiring on 27 October 2000. Petitioner being married to Francisco R. Rallonza, the following entries appear in her passport: Rallonza as her surname, Maria Virginia as her given name, and Remo as her middle name. Prior to the expiry of the validity of her passport, petitioner, whose marriage still subsists, applied for the renewal of her passport with the Department of Foreign Affairs (DFA) office in Chicago, Illinois, U.S.A., with a request to revert to her maiden name and surname in the replacement passport. Petitioners request having been denied, Atty. Manuel Joseph R. Bretana III, representing petitioner, wrote then Secretary of Foreign Affairs Domingo Siason expressing a similar request. On 28 August 2000, the DFA, through Assistant Secretary Belen F. Anota, denied the request, stating thus: This has reference to your letter dated 17 August 2000 regarding one Ms. Maria Virginia V. Remo who is applying for renewal of her passport using her maiden name. This Office is cognizant of the provision in the law that it is not obligatory for a married woman to use her husbands name. Use of maiden name is allowed in passport application only if the married name has not been used in previous application. The Implementing Rules and Regulations for Philippine Passport Act of 1996 clearly defines the conditions when a woman applicant may revert to her maiden name, that is, only in cases of annulment of marriage, divorce and death of the husband. Ms. Remos case does not meet any of these conditions. (Emphasis supplied) Petitioners motion for reconsideration of the above-letter resolution was denied in a letter dated 13 October 2000. On 15 November 2000, petitioner filed an appeal with the Office of the President. On 27 July 2004, the Office of the President dismissed the appeal[6] and ruled that Section 5(d) of Republic Act No. 8239 (RA 8239) or the Philippine Passport Act of 1996 offers no leeway for any other interpretation than that only in case of divorce, annulment, or declaration [of nullity] of marriage may a married woman revert to her maiden name for passport purposes. The Office of the President further held that in case of conflict between

a general and special law, the latter will control the former regardless of the respective dates of passage. Since the Civil Code is a general law, it should yield to RA 8239. On 28 October 2004, the Office of the President denied the motion for reconsideration.[7] Petitioner filed with the Court of Appeals a petition for review under Rule 43 of the Rules of Civil Procedure. In its Decision of 27 May 2005, the Court of Appeals denied the petition and affirmed the ruling of the Office of the President. The dispositive portion of the Court of Appeals decision reads: WHEREFORE, premises considered, the petition is DENIED, and the resolution dated July 27, 2004, and the order dated October 28, 2004 of the Office of the President in O.P. Case No. 001-A-9344 are hereby AFFIRMED. SO ORDERED. Petitioner moved for reconsideration which the Court of Appeals denied in its Resolution dated 2 August 2005. Hence, this petition. The Court of Appeals Ruling The Court of Appeals found no conflict between Article 370 of the Civil Code and Section 5(d) of RA 8239. The Court of Appeals held that for passport application and issuance purposes, RA 8239 limits the instances when a married woman applicant may exercise the option to revert to the use of her maiden name such as in a case of a divorce decree, annulment or declaration of nullity of marriage. Since there was no showing that petitioner's marriage to Francisco Rallonza has been annulled, declared void or a divorce decree has been granted to them, petitioner cannot simply revert to her maiden name in the replacement passport after she had adopted her husbands surname in her old passport. Hence, according to the Court of Appeals, respondent was justified in refusing the request of petitioner to revert to her maiden name in the replacement passport. The Issue The sole issue in this case is whether petitioner, who originally used her husbands surname in her expired passport, can revert to the use of her maiden name in the replacement passport, despite the subsistence of her marriage. The Ruling of the Court The petition lacks merit. Title XIII of the Civil Code governs the use of surnames. In the case of a married woman, Article 370 of the Civil Code provides: ART. 370. A married woman may use: (1) HER MAIDEN FIRST NAME AND SURNAME AND ADD HER HUSBANDS SURNAME, OR (2) HER MAIDEN FIRST NAME AND HER HUSBAND'S SURNAME, OR (3) HER HUSBANDS FULL NAME, BUT PREFIXING A WORD INDICATING THAT SHE IS HIS WIFE, SUCH AS MRS. We agree with petitioner that the use of the word may in the above provision indicates that the use of the husbands surname by the wife is permissive rather than obligatory. This has been settled in the case of Yasin v. Honorable Judge Sharia

the dissolution of her marriage by divorce under the Code of Muslim Personal Laws of the Philippines, and after marriage of her former husband to another woman. In ruling in favor of petitioner therein, the Court explained that: When a woman marries a man, she need not apply and/or seek judicial authority to use her husbands name by prefixing the word Mrs. before her husbands full name or by adding her husbands surname to her maiden first name. The law grants her such right (Art. 370, Civil Code). Similarly, when the marriage ties or vinculum no longer exists as in the case of death of the husband or divorce as authorized by the Muslim Code, the widow or divorcee need not seek judicial confirmation of the change in her civil status in order to revert to her maiden name as use of her former husbands is optional and not obligatory for her (Tolentino, Civil Code, p. 725, 1983 ed.; Art. 373, Civil Code). When petitioner married her husband, she did not change her but only her civil status. Neither was she required to secure judicial authority to use the surname of her husband after the marriage as no law requires it. (Emphasis supplied)

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Clearly, a married woman has an option, but not a duty, to use the surname of the husband in any of the ways provided by Article 370 of the Civil Code. She is therefore allowed to use not only any of the three names provided in Article 370, but also her maiden name upon marriage. She is not prohibited from continuously using her maiden name once she is married because when a woman marries, she does not change her name but only her civil status. Further, this interpretation is in consonance with the principle that surnames indicate descent. In the present case, petitioner, whose marriage is still subsisting and who opted to use her husbands surname in her old passport, requested to resume her maiden name in the replacement passport arguing that no law prohibits her from using her maiden name. Petitioner cites Yasin as the applicable precedent. However, Yasin is not squarely in point with this case. Unlike in Yasin, which involved a Muslim divorcee whose former husband is already married to another woman, petitioners marriage remains subsisting. Another point, Yasin did not involve a request to resume ones maiden name in a replacement passport, but a petition to resume ones maiden name in view of the dissolution of ones marriage. The law governing passport issuance is RA 8239 and the applicable provision in this case is Section 5(d), which states: Sec. 5. Requirements for the Issuance of Passport. No passport shall be issued to an applicant unless the Secretary or his duly authorized representative is satisfied that the applicant is a Filipino citizen who has complied with the following requirements: xxx

(D) IN CASE OF A WOMAN WHO IS MARRIED, SEPARATED,

DIVORCED OR WIDOWED OR WHOSE MARRIAGE HAS BEEN ANNULLED OR DECLARED BY COURT AS VOID, A COPY OF THE CERTIFICATE OF MARRIAGE, COURT DECREE OF SEPARATION, DIVORCE OR ANNULMENT OR CERTIFICATE OF DEATH OF THE DECEASED SPOUSE DULY ISSUED AND AUTHENTICATED BY THE OFFICE OF THE CIVIL REGISTRAR GENERAL: PROVIDED, THAT IN CASE OF A DIVORCE DECREE, ANNULMENT OR DECLARATION OF MARRIAGE AS VOID, THE WOMAN APPLICANT MAY REVERT TO THE USE OF HER MAIDEN NAME: PROVIDED, FURTHER, THAT SUCH DIVORCE IS RECOGNIZED UNDER EXISTING LAWS OF THE PHILIPPINES; X X X (EMPHASIS SUPPLIED) The Office of the Solicitor General (OSG), on behalf of the Secretary of Foreign Affairs, argues that the highlighted proviso in Section 5(d) of RA 8239 limits the instances when a married woman may be allowed to revert to the use of her maiden name in her passport. These instances are death of husband, divorce decree, annulment or nullity of marriage. Significantly, Section 1, Article 12 of the Implementing Rules and Regulations of RA 8239 provides: The passport can be amended only in the following cases:

District Court.

In Yasin, petitioner therein filed with the Sharia District Court a Petition to resume the use of maiden name in view of

A) AMENDMENT OF WOMANS NAME DUE TO MARRIAGE; B) AMENDMENT OF WOMANS NAME DUE TO DEATH OF SPOUSE, ANNULMENT OF MARRIAGE OR DIVORCE INITIATED BY A FOREIGN SPOUSE; OR C) CHANGE OF SURNAME OF A CHILD WHO IS LEGITIMATED BY VIRTUE OF A SUBSEQUENT MARRIAGE OF HIS PARENTS. Since petitioners marriage to her husband subsists, placing her case outside of the purview of Section 5(d) of RA 8239 (as to the instances when a married woman may revert to the use of her maiden name), she may not resume her maiden name in the replacement passport. This prohibition, according to petitioner, conflicts with and, thus, operates as an implied repeal of Article 370 of the Civil Code. PETITIONER IS MISTAKEN. THE CONFLICT BETWEEN ARTICLE 370 OF THE CIVIL CODE AND SECTION 5(D) OF RA 8239 IS MORE IMAGINED THAN REAL. RA 8239, INCLUDING ITS IMPLEMENTING RULES AND REGULATIONS, DOES NOT PROHIBIT A MARRIED WOMAN FROM USING HER MAIDEN NAME IN HER PASSPORT. IN FACT, IN RECOGNITION OF THIS RIGHT, THE DFA ALLOWS A MARRIED WOMAN WHO APPLIES FOR A PASSPORT FOR THE FIRST TIME TO USE HER MAIDEN NAME. SUCH AN APPLICANT IS NOT REQUIRED TO ADOPT HER HUSBAND'S SURNAME. In the case of renewal of passport, a married woman may either adopt her husbands surname or continuously use her maiden name. If she chooses to adopt her husbands surname in her new passport, the DFA additionally requires the submission of an authenticated copy of the marriage certificate. Otherwise, if she prefers to continue using her maiden name, she may still do so. The DFA will not prohibit her from continuously using her maiden name. HOWEVER, ONCE A MARRIED WOMAN OPTED TO ADOPT HER HUSBANDS SURNAME IN HER PASSPORT, SHE MAY NOT REVERT TO THE USE OF HER MAIDEN NAME, EXCEPT IN THE CASES ENUMERATED IN SECTION 5(D) OF RA 8239. THESE INSTANCES ARE: (1) DEATH OF HUSBAND, (2) DIVORCE, (3) ANNULMENT, OR (4) NULLITY OF MARRIAGE. SINCE PETITIONERS MARRIAGE TO HER HUSBAND SUBSISTS, SHE MAY NOT RESUME HER MAIDEN NAME IN THE REPLACEMENT PASSPORT. OTHERWISE STATED, A MARRIED WOMAN'S REVERSION TO THE USE OF HER MAIDEN NAME MUST BE BASED ONLY ON THE SEVERANCE OF THE MARRIAGE. EVEN ASSUMING RA 8239 CONFLICTS WITH THE CIVIL CODE, THE PROVISIONS OF RA 8239 WHICH IS A SPECIAL LAW SPECIFICALLY DEALING WITH PASSPORT ISSUANCE MUST PREVAIL OVER THE PROVISIONS OF TITLE XIII OF THE CIVIL CODE WHICH IS THE GENERAL LAW ON THE USE OF SURNAMES. A BASIC TENET INSTATUTORY CONSTRUCTION IS THAT A SPECIAL LAW PREVAILS OVER A GENERAL LAW, THUS: [I]t is a familiar rule of statutory construction that to the extent of any necessary repugnancy between a general and a special law or provision, the latter will control the former without regard to the respective dates of passage. Moreover, petitioners theory of implied repeal must fail. Well-entrenched is the rule that an implied repeal is disfavored. T he apparently conflicting provisions of a law or two laws should be harmonized as much as possible, so that each shall be effective. For a law to operate to repeal another law, the two laws must actually be inconsistent. The former must be so repugnant as to be irreconcilable with the latter act. This petitioner failed to establish. The Court notes that petitioner would not have encountered any problems in the replacement passport had she opted to continuously and consistently use her maiden name from the moment she was married and from the time she first applied for a Philippine passport. However, petitioner consciously chose to use her husbands surname before, in her previous passport application, and now desires to resume her maiden name. If we allow petitioners present request, definitely nothing prevents her in the future from requesting to revert to the use of her husbands surname. Such unjustified changes in one's name and identity in a passport, which is considered superior to all other official documents, cannot be countenanced. Otherwise, undue confusion and inconsistency in the records of passport holders will arise. Thus,

for passport issuance purposes, a married woman, such as petitioner, whose marriage subsists, may not change her family name at will. THE ACQUISITION OF A PHILIPPINE PASSPORT IS A PRIVILEGE. THE LAW RECOGNIZES THE PASSPORT APPLICANTS CONSTITUTIONAL RIGHT TO TRAVEL. HOWEVER, THE STATE IS ALSO MANDATED TO PROTECT AND MAINTAIN THE INTEGRITY AND CREDIBILITY OF THE PASSPORT AND TRAVEL DOCUMENTS PROCEEDING FROM IT AS A PHILIPPINE PASSPORT REMAINS AT ALL TIMES THE PROPERTY OF THE GOVERNMENT. THE HOLDER IS MERELY A POSSESSOR OF THE PASSPORT AS LONG AS IT IS VALID AND THE SAME MAY NOT BE SURRENDERED TO ANY PERSON OR ENTITY OTHER THAN THE GOVERNMENT OR ITS REPRESENTATIVE. As the OSG correctly pointed out: [T]he issuance of passports is impressed with public interest. A passport is an official document of identity and nationality issued to a person intending to travel or sojourn in foreign countries. It is issued by the Philippine government to its citizens requesting other governments to allow its holder to pass safely and freely, and in case of need, to give him/her aid and protection. x x x Viewed in the light of the foregoing, it is within respondents competence to regulate any amendments intended to be made therein, including the denial of unreasonable and whimsical requests for amendments such as in the instant case. WHEREFORE, we DENY the petition. We AFFIRM the 27 May 2005 Decision and 2 August 2005 Resolution of the Court of Appeals in CA-G.R. SP No. 87710. CASE DIGEST 3: Remo vs. Secretary of Foreign Affairs G.R. 169202; 5 March 2010 Facts: Maria Virginia V. Remo (Remo) is a Filipino citizen, married to Francisco R. Rallonza. Her Philippine passport, which was to expire on 27 October 2000, showed Rallonza as her surname, Maria Virginia as her given name, and Remo as her middle name. While her marriage was still subsisting, she applied for the renewal of her passport with the Department of Foreign Affairs office in Chicago, Illinois, U.S.A., with a request to revert to her maiden name and surname in the replacement passport. When her request was denied, she made a similar request to the Secretary of Foreign Affairs. The Secretary of Foreign Affairs denied the request, holding that while it is not obligatory for a married woman to use her husbands name, she could use her maiden name in her passport application only if she had not used her married name in her previous application. The Secretary explained that under the implementing rules of Republic Act No. 8239 or the Philippine Passport Act of 1996, a woman applicant may revert to her maiden name only in cases of annulment of marriage, divorce, and death of the husband. Remo brought the case to the Office of the President which affirmed the Secretarys ruling. Remo filed a petition for review before the Court of Appeals which denied the petition. When her motion for reconsideration was denied, Remo filed a petition for review before the Supreme Court. Remo argued that RA 8239 conflicted with and was an implied repeal of Article 370 of the Civil Code which allows the wife to continue using her maiden name upon marriage, as settled in the case of Yasin vs. Honorable Judge Sharia District Court Phil. 696, 707 (1995)]. Issue: Whether or not Remo, who originally used her husbands surname in her expired passport, can revert to the use of her maiden name in the replacement passport, despite the subsistence of her marriage. Ruling: The petition was denied. Remo cannot use her maiden name in the replacement passport while her marriage subsists. No conflict between Civil Code and RA 8239. Indeed, under Article 370 of the Civil Code and as settled in the case of Yasin vs. Honorable Judge Sharia District Court (supra), a married woman has an option, but not an obligation, to use her husbands surname upon marriage. She is not prohibited from continuously using her maiden name because when a woman

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marries, she does not change her name but only her civil status. RA 8239 does not conflict with this principle. RA 8239, including its implementing rules and regulations, does not prohibit a married woman from using her maiden name in her passport. In fact, in recognition of this right, the Department of Foreign Affairs (DFA) allows a married woman who applies for a passport for the first time to use her maiden name. Such an applicant is not required to adopt her husbands surname. In the case of renewal of passport, a married woman may either adopt her husbands surname or continuously use her maiden name. If she chooses to adopt her husbands surname in her new passport, the DFA additionally requires the submission of an authenticated copy of the marriage certificate. Otherwise, if she prefers to continue using her maiden name, she may still do so. The DFA will not prohibit her from continuously using her maiden name.However, once a married woman opted to adopt her husbands surname in her passport, she may not revert to the use of her maiden name, except in the following cases enumerated in Section 5(d) of RA 8239: (1) death of husband, (2) divorce, (3) annulment, or (4) nullity of marriage. Since Remos marriage to her husband subsists, she may not resume her maiden name in the replacement passport. Otherwise stated, a married womans reversion to the use of her maiden name must be based only on the severance of the marriage. Yasin case not in point Yasin is not squarely in point with this case. Unlike in Yasin, which involved a Muslim divorcee whose former husband is already married to another woman, Remos marriage remains subsisting. Also, Yasin did not involve a request to resume ones maiden name in a replacement passport, but a petition to resume ones maiden name in view of the dissolution of ones marriage. Special law prevails over general law Even assuming RA 8239 conflicts with the Civil Code, the provisions of RA 8239 which is a special law specifically dealing with passport issuance must prevail over the provisions of Title XIII of the Civil Code which is the general law on the use of surnames. A basic tenet in statutory construction is that a special law prevails over a general law. Implied repeals are disfavored Remos theory of implied repeal must fail. Well-entrenched is the rule that an implied repeal is disfavored. The apparently conflicting provisions of a law or two laws should be harmonized as much as possible, so that each shall be effective. For a law to operate to repeal another law, the two laws must actually be inconsistent. The former must be so repugnant as to be irreconcilable with the latter act. This, Remo failed to establish. State is mandated to protect integrity of passport Remo consciously chose to use her husbands surname in her previous passport application. If her present request would be allowed, nothing prevents her in the future from requesting to revert to the use of her husbands surname. Such unjustified changes in one's name and identity in a passport, which is considered superior to all other official documents, cannot be countenanced. Otherwise, undue confusion and inconsistency in the records of passport holders will arise. The acquisition of a Philippine passport is a privilege. The law recognizes the passport applicants constitutional right to travel. However, the State is also mandated to protect and maintain the integrity and credibility of the passport and travel documents proceeding from it as a Philippine passport remains at all times the property of the Government. The holder is merely a possessor of the passport as long as it is valid. Ponente: J. Antonio T. Carpio 4. G.R. No. L-10033 December 28, 1956 BENJAMIN BUGAYONG, plaintiff-appellant, vs. LEONILA GINEZ, defendant-appellee.

Florencio Dumapias for appellant.

Numeriano Tanopo, Jr. for appellee.

FELIX, J.: This is a case for legal separation filed in the Court of First Instance of Pangasinan wherein on motion of the defendant, the case was dismissed. The order of dismissal was appealed to the Court of

Appeals, but said Tribunal certified the case to the Court on the ground that there is absolutely no question of fact involved, the motion being predicated on the assumption as true of the very facts testified to by plaintiff-husband. The facts of the case abridgedly stated are as follows: Benjamin Bugayong, a serviceman in the United States Navy, was married to defendant Leonila Ginez on August 27, 1949, at Asingan, Pangasinan, while on furlough leave. Immediately after their marriage, the couple lived with their sisters who later moved to Sampaloc, Manila. After some time, or about July, 1951, Leonila Ginez left the dwelling of her sister-in-law and informed her husband by letter that she had gone to reside with her mother in Asingan, Pangasinan, from which place she later moved to Dagupan City to study in a local college there. As early as July, 1951, Benjamin Bugayong began receiving letters from Valeriana Polangco (plaintiff's sister-in-law) and some from anonymous writers(which were not produced at the hearing) informing him of alleged acts of infidelity of his wife which he did not even care to mention. On cross-examination, plaintiff admitted that his wife also informed him by letter, which she claims to have destroyed, that a certain "Eliong" kissed her. All these communications prompted him in October, 1951 to seek the advice of the Navy Chaplain as to the propriety of a legal separation between him and his wife on account of the latter's alleged acts of infidelity, and he was directed to consult instead the navy legal department. In August, 1952, plaintiff went to Asingan, Pangasinan, and sought for his wife whom he met in the house of one Mrs. Malalang, defendant's godmother. She came along with him and both proceeded to the house of Pedro Bugayong, a cousin of the plaintiff-husband, where they stayed and lived for 2 nights and 1 day as husband and wife. Then they repaired to the plaintiff's house and again passed the night therein as husband and wife. On the second day, Benjamin Bugayong tried to verify from his wife the truth of the information he received that she had committed adultery but Leonila, instead of answering his query, merely packed up and left, which he took as a confirmation of the acts of infidelity imputed on her. After that and despite such belief, plaintiff exerted efforts to locate her and failing to find her, he went to Bacarra, Ilocos Norte, "to soothe his wounded feelings". On November 18, 1952, Benjamin Bugayong filed in the Court of First Instance of Pangasinan a complaint for legal separation against his wife, Leonila Ginez, who timely filed an answer vehemently denying the averments of the complaint and setting up affirmative defenses. After the issues were joined and convinced that a reconciliation was not possible, the court set the case for hearing on June 9, 1953. Plaintiff's counsel announced that he was to present 6 witnesses but after plaintiff-husband finished testifying in his favor, counsel for the defendant orally moved for the dismissal of the complaint, but the Court ordered him to file a written motion to that effect and gave plaintiff 10 days to answer the same. The motion to dismiss was predicted on the following grounds: (1) Assuming arguendo the truth of the allegations of the commission of "acts of rank infidelity amounting to adultery", the cause of action, if any, is barred by the statute of limitations; (2) That under the same assumption, the act charged have been condoned by the plaintiff-husband; and (3) That the complaint failed to state a cause of action sufficient for this court to render a valid judgment. The motion to dismiss was answered by plaintiff and the Court, considering only the second ground of the motion to dismiss i. e., condonation, ordered the dismissal of the action. After the motion for reconsideration filed by plaintiff was denied, the case was taken up for review to the Court of Appeals, appellant's counsel maintaining that the lower court erred: (a) In so prematurely dismissing the case; (b) In finding that there were condonation on the part of plaintiffappellant; and (c) In entertaining condonation as a ground for dismissal inasmuch as same was not raised in the answer or in a motion to dismiss. As the questions raised in the brief were merely questions of law, the Court of Appeals certified the case to Superiority. The Civil Code provides: ART. 97. A petition for legal separation may be filed: (1) For adultery on the part of the wife and for concubinage for the part of the husband as defined on the Penal Code; or (2) An attempt by one spouse against the life of the other. 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 by either of them. Collusion between the parties to obtain legal separation shall cause the dismissal of the petition.

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ART. 102. An action for legal separation cannot be filed except within one year from and after the date on which the plaintiff became cognizant of the cause and within five years from and after the date when such cause occurred. As the only reason of the lower Court for dismissing the action was the alleged condonation of the charges of adultery that the plaintiff-husband had preferred in the complaint against his wife, We will disregard the other 2 grounds of the motion to dismiss, as anyway they have not been raised in appellant's assignment of errors. Condonation is the forgiveness of a marital offense constituting a ground for legal separation or, as stated in I Bouver's Law Dictionary, p. 585, condonation is the "conditional forgiveness or remission, by a husband or wife of a matrimonial offense which the latter has committed". It is to be noted, however, that in defendant's answer she vehemently and vigorously denies having committed any act of infidelity against her husband, and even if We were to give full weight to the testimony of the plaintiff, who was the only one that had the chance of testifying in Court and link such evidence with the averments of the complaint, We would have to conclude that the facts appearing on the record are far from sufficient to establish the charge of adultery, or, as the complaint states, of "acts of rank infidelity amounting to adultery" preferred against the defendant. Certainly, the letter that plaintiff claims to have received from his sister-in-law Valeriana Polangco, which must have been too vague and indefinite as to defendant's infidelity to deserve its production in evidence; nor the anonymous letters which plaintiff also failed to present; nor the alleged letter that, according to plaintiff, his wife addressed to him admitting that she had been kissed by one Eliong, whose identity was not established and which admission defendant had no opportunity to deny because the motion to dismiss was filed soon after plaintiff finished his testimony in Court, do not amount to anything that can be relied upon. But this is not a question at issue. In this appeal, We have to consider plaintiff's line of conduct under the assumption that he really believed his wife guilty of adultery. What did he do in such state of mind. In August, 1952, he went to Pangasinan and looked for his wife and after finding her they lived together as husband and wife for 2 nights and 1 day, after which he says that he tried to verify from her the truth of the news he had about her infidelity, but failed to attain his purpose because his wife, instead of answering his query on the matter, preferred to desert him, probably enraged for being subjected to such humiliation. And yet he tried to locate her, though in vain. Now, do the husband's attitude of sleeping with his wife for 2 nights despite his alleged belief that she was unfaithful to him, amount to a condonation of her previous and supposed adulterous acts? In the order appealed from, the Court a quo had the following to say on this point: The New Civil Code of the Philippines, in its Art. 97, says: A petition for legal separation may be filed: (1) For adultery on the part of the wife and concubinage on the part of the husband as defined on the Penal Code. and in its Art. 100 it says: lawphil.net 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, legal separation cannot be claimed by either of them. Collusion between the parties to obtain legal separation shall cause the dismissal of the petition. A detailed examination of the testimony of the plaintiff-husband, especially those portions quoted above, clearly shows that there was a condonation on the part of the husband for the supposed "acts of rank infidelity amounting to adultery" committed by defendant-wife. Admitting for the sake of argument that the infidelities amounting to adultery were committed by the defendant, a reconciliation was effected between her and the plaintiff. The act of the latter in persuading her to come along with him, and the fact that she went with him and consented to be brought to the house of his cousin Pedro Bugayong and together they slept there as husband and wife for one day and one night, and the further fact that in the second night they again slept together in their house likewise as husband and wife all these facts have no other meaning in the opinion of this court than that a reconciliation between them was effected and that there was a condonation of the wife by the husband. The reconciliation occurred almost ten months after he came to know of the acts of infidelity amounting to adultery. In Shackleton vs. Shackleton, 48 N. J. Eq. 364; 21 Atl. 935, it has been held that "condonation is implied from sexual intercourse after knowledge of the other infidelity. such acts necessary implied forgiveness. It is entirely consonant with reason and justice that if the wife freely consents to sexual intercourse after she has full

knowledge of the husband's guilt, her consent should operate as a pardon of his wrong." In Tiffany's Domestic and Family Relations, section 107 says: Condonation. Is the forgiveness of a marital offense constituting a ground for divorce and bars the right to a divorce. But it is on the condition, implied by the law when not express, that the wrongdoer shall not again commit the offense; and also that he shall thereafter treat the other spouse with conjugal kindness. A breach of the condition will revive the original offense as a ground for divorce. Condonation may be express or implied. It has been held in a long line of decisions of the various supreme courts of the different states of the U. S. that 'a single voluntary act of sexual intercourse by the innocent spouse after discovery of the offense is ordinarily sufficient to constitute condonation, especially as against the husband'. (27 Corpus Juris Secundum, section 61 and cases cited therein). In the lights of the facts testified to by the plaintiff-husband, of the legal provisions above quoted, and of the various decisions abovecited, the inevitable conclusion is that the present action is untenable. Although no acts of infidelity might have been committed by the wife, We agree with the trial judge that the conduct of the plaintiff-husband above narrated despite his belief that his wife was unfaithful, deprives him, as alleged the offended spouse, of any action for legal separation against the offending wife, because his said conduct comes within the restriction of Article 100 of the Civil Code. The only general rule in American jurisprudence is that any cohabitation with the guilty party, after the commission of the offense, and with the knowledge or belief on the part of the injured party of its commission, will amount to conclusive evidence of condonation; but this presumption may be rebutted by evidence (60 L. J. Prob. 73). If there had been cohabitation, to what extent must it be to constitute condonation? Single voluntary act of marital intercourse between the parties ordinarily is sufficient to constitute condonation, and where the parties live in the same house, it is presumed that they live on terms of matrimonial cohabitation (27 C. J. S., section 6-d). A divorce suit will not be granted for adultery where the parties continue to live together after it was known (Land vs. Martin, 15 South 657; Day vs. Day, 80 Pac. 974) or there is sexual intercourse after knowledge of adultery (Rogers vs. Rogers, 67 N. J. Eq. 534) or sleeping together for a single night (Toulson vs. Toulson, 50 Atl. 401, citing Phinizy vs. Phinizy, 114 S. E. 185, 154 Ga. 199; Collins vs. Collins, 193 So. 702), and many others. The resumption of marital cohabitation as a basis of condonation will generally be inferred, nothing appearing to the contrary, from the fact of the living together as husband and wife, especially as against the husband (Marsh vs. Marsh, 14 N. J. Eq. 315). There is no ruling on this matter in our jurisprudence but we have no reason to depart from the doctrines laid down in the decisions of the various supreme courts of the United States above quoted. There is no merit in the contention of appellant that the lower court erred in entertaining condonation as a ground for dismissal inasmuch as same was not raised in the answer or in a motion to dismiss, because in the second ground of the motion to dismiss. It is true that it was filed after the answer and after the hearing had been commenced, yet that motion serves to supplement the averments of defendant's answer and to adjust the issues to the testimony of plaintiff himself (section 4, Rule 17 of the Rules of Court). Wherefore, and on the strength of the foregoing, the order appealed from is hereby affirmed, with costs against appellant. It is so ordered. CASE DIGEST 4: Bugayong vs. Ginez GR No. 10033, December 28, 1956 FACTS: Benjamin Bugayong, a serviceman in the US Navy was married with Leonila Ginez on August 1949 at Pangasinan while on furlough leave. Immediately after the marriage, they lived with the sisters of Bugayong in said municipality before he went back to duty. The couple came to an agreement that Ginez would stay with his sisters who later moved in Manila. On or about July 1951, she left the dwelling of the sisters-in-law and informed her husband by letter that she had gone to Pangasinan to reside with her mother and later on moved to Dagupan to study in a local college.

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Petitioner then began receiving letters from Valeriana Polangco, (plaintiffs sister-in-law) and some from anonymous writers, which were not produced at the hearing, informing him of alleged acts of infidelity of his wife. He admitted that his wife informed him by letter that a certain Eliong kissed her. All these communications, prompted him in October 1951 to seek the advice of the Navy Chaplain who asked him to consult with the navy legal department. In August 1952, Bugayong went to Pangasinan and looked for his wife. They met in the house of the defendants godmother. They proceeded to the house of Pedro, cousin of the plaintiff where they stayed for 1 day and 1 night as husband and wife. The next day, they slept together in their own house. He tried to verify with Leonila the truth on the information he received but instead of answering, she merely packed up and left which he took as a confirmation of the acts of infidelity. He then filed a complaint for legal separation. ISSUE: Whether there was condonation between Bugayong and Ginez that may serve as a ground for dismissal of the action. HELD: Condonation is the forgiveness of a marital offense constituting a ground for legal separation. A single voluntary act of marital intercourse between the parties ordinarily is sufficient to constitute condonation and where the parties live in the same house, it is presumed that they live on terms of matrimonial cohabitation. Furthermore, Art. 100 of the Civil Code states that 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. CASE DIGEST 5: People v. Sensano and Ramos Facts: Ursula Sensano and Mariano Ventura were married on April 29, 1919. After the birth of their only child, the husband left his wife and was gone for three years without writing to her or sending her support. While the husband was away, the wife began to live with Marcelo Ramos. When husband returned, he filed a charge of adultery which resulted in a conviction and a sentencing. When the sentence was completed, wife begged the husband to take her back but he refused. Abandoned a second time, the wife fled back to Ramos. Husband, knowing that his wife reverted to her lover, did not do anything to assert his rights and left for the states. He returned to the Philippines seven years later and presented a second charge of adultery. Issue: WON the second charge of adultery can be a ground for legal separation. Held/Ratio: No. The husband was only assuming a mere pose of an offended spouse. He consented to the adulterous relations of his wife and Ramos and is thus, therefore barred from instituting any criminal proceeding. Even if he was still in a foreign country, he would have still been able to take action against the accused but since he didnt take this option, it showed a considerable lack of genuine interest as the offended party. 6. G.R. No. L-10699 October 18, 1957 WILLIAM H. BROWN, plaintiff-appellant, vs. JUANITA YAMBAO, defendant-appellee.

Jimenez B. Buendia for appellant.

Assistant City Fiscal Rafel A. Jose for appellee.

REYES, J.B.L., J.: On July 14, 1955, William H. Brown filed suit in the Court of First Instance of Manila to obtain legal separation from his lawful wife Juanita Yambao. He alleged under oath that while interned by the Japanese invaders, from 1942 to 1945, at the University of Sto. Tomas internment camp, his wife engaged in adulterous relations with one Carlos Field of whom she begot a baby girl that Brown learned of his wifes misconduct only in 1945, upon his release from internment; that thereafter the spouse lived separately and later

executed a document (Annex A ) liquidating their conjugal partnership and assigning certain properties to the erring wife as her share. The complaint prayed for confirmation of the liquidation agreement; for custody of the children issued of the marriage; that the defendant be declared disqualified to succeed the plaintiff; and for their remedy as might be just and equitable. Upon petition of the plaintiff, the court subsequently declared the wife in default, for failure to answer in due time, despite service of summons; and directed the City Fiscal or his representatives to investigate, in accordance with Article 101 of the Civil Code, whether or not a collusion exists between the parties and to report to this Court the result of his investigation within fifteen (15) days from receipt of copy of this order. The City Fiscal or his representative is also directed to intervene in the case in behalf of the State. (Rec. App. p. 9). As ordered, Assistant City Fiscal Rafael Jose appeared at the trial, and cross-examined plaintiff Brown. His questions (strenuously objected to by Brown's counsel) elicited the fact that after liberation, Brown had lived maritally with another woman and had begotten children by her. Thereafter, the court rendered judgment denying the legal separation asked, on the ground that, while the wife's adultery was established, Brown had incurred in a misconduct of similar nature that barred his right of action under Article 100 of the new Civil Code, providing: ART. 100. The legal separation may be claimed only by the innocent spouse, provided there has been no condonation or of 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. that there had been consent and connivance, and because Brown's action had prescribed under Article 102 of the same Code: ART. 102 An action for legal separation cannot be filed except within one year from and after the date on which the plaintiff became cognizant of the cause and within five years from and after date when such cause occurred. since the evidence showed that the learned of his wife's infidelity in 1945 but only filed action in 1945. Brown appeared to this Court, assigning the following errors: The court erred in permitting the Assistant Fiscal Rafel Jose of Manila to act as counsel for the defendant, who defaulted. The court erred in declaring that there was condonation of or consent to the adultery. The court erred in dismissing the plaintiff's complaint. Appellant Brown argues that in cross-examining him with regard to his marital relation with Lilia Deito, who was not his wife, the Assistant Fiscal acted as consel for the defaulting wife, "when the power of the prosecuting officer is limited to finding out whether or not there is collusion, and if there is no collusion, which is the fact in the case at bar, to intervene for the state which is not the fact in the instant case, the truth of the matter being that he intervened for Juanita Yambao, the defendant-appellee, who is private citizen and who is far from being the state.". The argument is untenable. Collusion in matrimonial cases being "the act of married persons in procuring a divorce by mutual consent, whether by preconcerted commission by one of a matrimonial offense, or by failure, in pursuance of agreement to defend divorce proceedings" (Cyclopedia Law Dictionary; Nelson, Divorce and Separation, Section 500), it was legitimate for the Fiscal to bring to light any circumstances that could give rise to the inference that the wife's default was calculated, or agreed upon, to enable appellant to obtain the decree of legal separation that he sought without regard to the legal merits of his case. One such circumstance is obviously the fact of Brown's cohabitation with a woman other than his wife, since it bars him from claiming legal separation by express provision of Article 100 of the new Civil Code. Wherefore, such evidence of such misconduct, were proper subject of inquiry as they may justifiably be considered circumstantial evidence of collusion between the spouses. The policy of Article 101 of the new Civil Code, calling for the intervention of the state attorneys in case of uncontested proceedings for legal separation (and of annulment of marriages, under Article 88), is to emphasize that marriage is more than a mere contract; that it is a social institution in which the state is vitally interested, so that its continuation or interruption cannot be made depend upon the parties themselves (Civil Code, Article 52; Adong vs, Cheong Gee, 43 Phil, 43; Ramirez vs. Gmur 42 Phil. 855; Goitia vs. Campos, 35 Phil. 252). It is consonant with this policy that the injury by the Fiscal should be allowed to focus upon any relevant matter that may indicate whether the proceedings for separation or annulment are fully justified or not. The court below also found, and correctly held that the appellant's action was already barred, because Brown did not petition for legal separation proceedings until ten years after he learned of his wife's adultery, which was upon his release from internment in

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1945. Under Article 102 of the new Civil Code, action for legal separation can not be filed except within one (1) year from and after the plaintiff became cognizant of the cause and within five years from and after the date when such cause occurred. Appellant's brief does not even contest the correctness of such findings and conclusion. It is true that the wife has not interposed prescription as a defense. Nevertheless, the courts can take cognizance thereof, because actions seeking a decree of legal separation, or annulment of marriage, involve public interest and it is the policy of our law that no such decree be issued if any legal obstacles thereto appear upon the record. Hence, there being at least two well established statutory grounds for denying the remedy sought (commission of similar offense by petitioner and prescription of the action), it becomes unnecesary to delve further into the case and ascertain if Brown's inaction for ten years also evidences condonation or connivance on his part. Even if it did not, his situation would not be improved. It is thus needless to discuss the second assignment of error. The third assignment of error being a mere consequence of the others must necessarily fail with them. The decision appealed from is affirmed, with costs against appellant. So ordered. CASE DIGEST 6: Brown v. Yambao Oct. 18, 1957, Reyes, JBL, J. Facts: Brown alleges that while he was interned by the Japanese from 1942 to 1945, his wife had engaged in adulterous relationships from which she begot a child. He learned of it after his release. From then on they decided to live separately from each other and executed, to this effect, an agreement liquidating conjugal partnership, even giving the erring wife a share. On July, he filed a suit for legal separation praying for confirmation of said agreement, custodial rights and disqualification of wife from succession of plaintiff. Her wife was declared in default for not having answered on time. When cross-examined by the assistant city fiscal, it was revealed however that Brown, after the liberation from the internment, had also lived with another woman with whom he has begotten children. The court refused to grant the petition on the basis of prescription, commission of similar offense by petitioner, and involvement of consent and connivance. Issue: WON proceedings for legal separation can still be instituted when both spouses are offenders. Held/Ratio: No. His petition cannot prosper for two reasons: (1) prescriptive period is over since he learned of his wifes relations in 1945 and only filed a complaint after ten years; and (2) His cohabitation with another woman bars him from claiming legal separation. Failure of the wife to set up a defense may be considered circumstantial evidence of collusion between them. Consent and connivance no longer need to be proven there being two established statutory grounds to grant the decree of legal separation.

7. G.R. No. L-11766 October 25, 1960 SOCORRO MATUBIS, plaintiff-appellant, vs. ZOILO PRAXEDES, defendant-appellee.

Luis N. de Leon for appellant. Lucio La. Margallo for appellee.

PAREDES, J.: Alleging abandonment and concubinage, plaintiff Socorro Matubis, filed with the Court of First Instance of Camarines Sur, on April 24, 1956, a complaint for legal Separation and changed of surname against her husband defendant Zoilo Praxedes. The allegations of the complaint were denied by defendant spouse, who interposed the defense that it was plaintiff who left the conjugal home. During the trial, wherein the plaintiff alone introduced oral as well as documentary evidence, the following facts were established:. Plaintiff and defendant were legally married on January 10, 1943 at Iriga, Camarines Sur. For failure to agree on how they should live as husband and wife, the couple, on May 30, 1944, agreed to live separately from each other, which status remained unchanged

until the present. On April 3, 1948, plaintiff and defendant entered into an agreement (Exhibit B), the significant portions of which are hereunder reproduced.. . . . (a) That both of us relinquish our right over the other as legal husband and wife. (b) That both without any interference by any of us, nor either of us can prosecute the other for adultery or concubinage or any other crime or suit arising from our separation. (c) That I, the, wife, is no longer entitled for any support from my husband or any benefits he may received thereafter, nor I the husband is not entitled for anything from my wife. (d) That neither of us can claim anything from the other from the time we verbally separated, that is from May 30, 1944 to the present when we made our verbal separation into writing. In January, 1955, defendant began cohabiting with one Asuncion Rebulado and on September 1, 1955, said Asuncion gave birth to a child who was recorded as the child of said defendant (Exh. C.).It was shown also that defendant and Asuncion deported themselves as husband and wife and were generally reputed as such in the community. After the trial, without the defendant adducing any evidence, the court a quo rendered judgment holding that the acts of defendant constituted concubinage, a ground for legal separation. It however, dismissed the complaint by stating: While this legal ground exist, the suit must be dismissed for two reasons, viz: Under Art. 102 of the new Civil Code, an action for legal separation cannot be filed except within one year from and after the date on which the plaintiff became cognizant of the cause and within five years from and after the date when the cause occurred. The plaintiff became aware of the illegal cohabitation of her husband with Asuncion Rebulado in January, 1955. The complaint was filed on April 24, 1956. The present action was, therefore, filed out of time and for that reason action is barred. Article 100 of the new Civil Code provides that 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. As shown in Exhibit B, the plaintiff has consented to the commission of concubinage by her husband. Her consent is clear from the following stipulations: (b) That both of us is free to get any mate and live with as husband and wife without any interference by any of us, nor either of us can prosecute the other for adultery or concubinage or any other crime or suit arising from our separation. (Exh. B). This stipulation is an unbridled license she gave her husband to commit concubinage. Having consented to the concubinage, the plaintiff cannot claim legal separation. The above decision is now before us for review, plaintiff- appellant claiming that it was error for the lower court to have considered that the period to bring the action has already elapsed and that there was consent on the part of the plaintiff to the concubinage. The proposition, therefore, calls for the interpretation of the provisions of the law upon which the lower court based its judgment of dismissal. Article 102 of the new Civil Code provides: An action for legal separation cannot be filed except within one year from and after the date on which the plaintiff became cognizant of the cause and within five years from after the date when cause occurred. The complaint was filed outside the periods provided for by the above Article. By the very admission of plaintiff, she came to know the ground (concubinage) for the legal separation in January, 1955. She instituted the complaint only on April 24, 1956. It is to be noted that appellant did not even press this matter in her brief. The very wording of the agreement Exhibit B. gives no room for interpretation other than that given by the trial judge. Counsel in his brief submits that the agreement is divided in two parts. The first part having to do with the act of living separately which he claims to be legal, and the second part that which becomes a license to commit the ground for legal separation which is admittedly illegal. We do not share appellant's view. Condonation and consent on the part of plaintiff are necessarily the import of paragraph 6(b) of the agreement. The condonation and consent here are not only implied but expressed. The law (Art. 100 Civil Code), specifically provides that legal separation may be claimed only by the innocent spouse, provided there has been no condonation of or consent to the adultery or concubinage. Having condoned and/or consented in writing, the plaintiff is now undeserving of the court's sympathy (People vs. Scheneckenburger, 73 Phil., 413). Plaintiff's counsel even agrees that the complaint should be dismissed. He claims however, that the grounds for the dismissal should not be those stated in the decision of the lower court, "but on the ground that plaintiff and defendant have already been legally separated from each other, but without the marital bond having been affected, long before

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the effectivity of the new Civil Code" (appellants brief, pp. 7-8). Again, we cannot subscribed to counsel's contention, because it is contrary to the evidence. Conformably with the foregoing, we find that the decision appealed from is in accordance with the evidence and the law on the matter. The same is hereby affirmed, with costs. CASE DIGEST 7: Matubis v. Praxedes Oct. 25, 1960, Paredes, J. Facts: Matubis and Praxedes got married on 1943. The couple agreed to live separately on 1944. On April, 1948, the spouses entered into an agreement stating that both relinquish their rights over each other as husband and wife, that both are free to marry again, and that wife is no longer entitled to support. In Jan. 1955, the husband cohabited with another woman and had a child with her. On April 1956, wife alleged abandonment and concubinage subsequently filing a petition for legal separation. RTC held that the acts constituted concubinage but dismissed the complaint on the ground of prescription. Plaintiff appealed. Issue: WON there was consent of the wife to her husbands concubinage. Held/Ratio: Yes. As seen in the agreement, there was an express condonation and consent granted to the husband. Having consented, the wife cannot claim legal separation and is undeserving of the courts sympathy. The petition was also filed after the prescriptive period. She came to know the situation in Jan. 1955 but only instituted the complaint on April. 1956 more than a year later. 8. G.R. No. L-12790 August 31, 1960 JOEL JIMENEZ, plaintiff-appellee, vs. REMEDIOS CAIZARES, 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 Caizares 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. CASE DIGEST 8: Jimenez vs. Canizares L-12790, August 31, 1960 FACTS: Joel Jimenez, the petitioner, filed a petition for the annulment of his marriage with Remedios Canizares on the ground that the orifice of her genitals or vagina was too small to allow the penetration of a male organ for copulation. It has existed at the time of the marriage and continues to exist that led him to leave the conjugal home two nights and one day after the marriage. The court summoned and gave a copy to the wife but the latter did not file any answer. The wife was ordered to submit herself to physical examination and to file a medical certificate within 10 days. She was given another 5 days to comply or else it will be deemed lack of interest on her part and therefore rendering judgment in favor of the petitioner. ISSUE: Whether or not the marriage can be annulled with only the testimony of the husband. HELD: The wife who was claimed to be impotent by her husband did not avail of the opportunity to defend herself and as such, claim cannot be convincingly be concluded. It is a well-known fact that women in this country are shy and bashful and would not readily and unhesitatingly submit to a physical examination unless compelled by competent authority. Such physical examination in this case is not self-incriminating. She is not charged with any offense and likewise is not compelled to be a witness against herself. Impotence being an abnormal condition should not be presumed. The case was remanded to trial court.

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9. G.R. No. L-23482 August 30, 1968 ALFONSO LACSON, petitioner, vs. CARMEN SAN JOSE-LACSON and THE COURT APPEALS, respondents. ----------------------------G.R. No. L-23767 August 30, 1968 CARMEN SAN JOSE-LACSON, plaintiff-appellant, vs. ALFONSO LACSON, defendant-appellee. ----------------------------G.R. No. L-24259 August 30, 1968 ALFONSO LACSON, petitioner-appellee, vs. CARMEN SAN JOSE-LACSON, petitioner-appellant.

OF

Paredes, Poblador, Cruz and Nazareno for respondent-appellant Carmen San Jose-Lacson. Norberto Quisumbing for petitioner-appellee Alfonso Lacson.
CASTRO, J.: These three cases (G.R. L-23482, L-23767 and L-24259) involving the same parties pose a common fundamental issue the resolution of which will necessarily and inescapably resolve all the other issues. Thus their joinder in this decision. The antecedent facts are not disputed. Alfonso Lacson (hereinafter referred to as the petitioner spouse) and Carmen San Jose-Lacson (hereinafter referred to as the respondent spouse) were married on February 14, 1953. To them were born four children, all alive. On January 9, 1963 the respondent spouse left the conjugal home in Santa Clara Subdivision, Bacolod City, and commenced to reside in Manila. She filed on March 12, 1963 a complaint docketed as civil case E-00030 in the Juvenile and Domestic Relations Court of Manila (hereinafter referred to as the JDRC) for custody of all their children as well as support for them and herself. However, the spouses, thru the assistance of their respective attorneys, succeeded in reaching an amicable settlement respecting custody of the children, support, and separation of property. On April 27, 1963 they filed a joint petition dated April 21, 1963, docketed as special proceeding 6978 of the Court of First Instance of Negros Occidental (hereinafter referred to as the CFI). The important and pertinent portions of the petition, embodying their amicable settlement, read as follows: 3. Petitioners have separated last January 9, 1963 when petitioner Carmen San Jose-Lacson left their conjugal home at the Santa Clara Subdivision, Bacolod City, did not return, and decided to reside in Manila. 4. Petitioners have mutually agreed upon the dissolution of their conjugal partnership subject to judicial approval as required by Article 191 of the Civil Code of the Philippines the particular terms and conditions of their mutual agreement being as follows: (a) There will be separation of property petitioner Carmen San Jose-Lacson hereby waiving any and all claims for a share in property that may be held by petitioner Alfonso Lacson since they have acquired no property of any consequence. (b) Hereafter, each of them shall own, dispose of, possess, administer and enjoy such separate estate as they may acquire without the consent of the other and all earnings from any profession, business or industry as may be derived by each petitioner shall belong to that petitioner exclusively. (c) The custody of the two elder children named Enrique and Maria Teresa shall be awarded to petitioner Alfonso Lacson and the custody of the younger children named Gerrard and Ramon shall be awarded to petitioner Carmen San Jose-Lacson. (d) Petitioner Alfonso Lacson shall pay petitioner Carmen San Jose-Lacson a monthly allowance of P300.00 for the support of the children in her custody. (e) Each petitioner shall have reciprocal rights of visitation of the children in the custody of the other at their respective residences and, during the summer months, the two children in the custody of each petitioner shall be given to the other except that, for this year's summer months, all four children shall be delivered to and remain with petitioner Carmen San Jose-Lacson until June 15, 1963 on which date, she shall return the two elder children Enrique and Maria Teresa to petitioner Alfonso Lacson this judgment of course being subject to enforcement by execution writ and contempt. 5. Petitioners have no creditors. WHEREFORE, they respectfully pray that notice of this petition be given to creditors and third parties pursuant to Article 191 of the Civil Code of the Philippines and thereafter that the Court enter its judicial approval of the foregoing agreement for the dissolution of their conjugal partnership and for separation of property, except that the Court shall immediately approve the terms set out

in paragraph 4 above and embody the same in a judgment immediately binding on the parties hereto to the end that any non-compliance or violation of its terms by one party shall entitle the other to enforcement by execution writ and contempt even though the proceedings as to creditors have not been terminated.". Finding the foregoing joint petition to be "conformable to law," the CFI (Judge Jose F. Fernandez, presiding) issued an order on April 27, 1963, rendering judgment (hereinafter referred to as the compromise judgment) approving and incorporating in toto their compromise agreement. In compliance with paragraph 4 (e) of their mutual agreement (par. 3[e] of the compromise judgment), the petitioner spouse delivered all the four children to the respondent spouse and remitted money for their support. On May 7, 1963 the respondent spouse filed in the JDRC a motion wherein she alleged that she "entered into and signed the ... Joint Petition as the only means by which she could have immediate custody of the ... minor children who are all below the age of 7," and thereafter prayed that she "be considered relieved of the ... agreement pertaining to the custody and visitation of her minor children ... and that since all the children are now in her custody, the said custody in her favor be confirmed pendente lite." On May 24, 1963 the petitioner spouse opposed the said motion and moved to dismiss the complaint based, among other things, on the grounds of res judicata and lis pendens. The JDRC on May 28, 1963, issued an order which sustained the petitioner spouse's plea of bar by prior judgment and lis pendens, and dismissed the case. After the denial of her motion for reconsideration, the respondent spouse interposed an appeal to the Court of Appeals (CA-G.R. No. 32608-R) wherein she raised, among others, the issue of validity or legality of the compromise agreement in connection only with the custody of their minor children. On October 14, 1964 the Court of Appeals certified the said appeal to the Supreme Court (G.R. No. L-23767), since "no hearing on the facts was ever held in the court below no evidence, testimonial or documentary, presented only a question of law pends resolution in the appeal." . The respondent spouse likewise filed a motion dated May 15, 1963 for reconsideration of the compromise judgment dated April 27, 1963 rendered in special proceeding 6978 of the CFI, wherein she also alleged, among others, that she entered into the joint petition as the only means by which she could have immediate custody of her minor children, and thereafter prayed the CFI to reconsider its judgment pertaining to the custody and visitation of her minor children and to relieve her from the said agreement. The petitioner spouse opposed the said motion and, on June 1, 1963, filed a motion for execution of the compromise judgment and a charge for contempt. The CFI (Judge Jose R. Querubin, presiding), in its order dated June 22, 1963, denied the respondent spouse's motion for reconsideration, granted the petitioner spouse's motion for execution, and ordered that upon "failure on the part of Carmen San Jose-Lacson to deliver the said children [i.e., to return the two older children Enrique and Maria Teresa in accordance with her agreement with Alfonso Lacson] to the special sheriff on or before June 29, 1963, she may be held for contempt pursuant to the provisions of Rule 39 sections 9 and 10, and Rule 64 section 7 of the (old) Rules of Court." From the aforesaid compromise judgment dated April 27, 1963 and execution order dated June 22, 1963, the respondent spouse interposed an appeal to the Court of Appeals (CA-G.R. No. 32798-R) wherein she likewise questioned the validity or legality of her agreement with the petitioner spouse respecting custody of their children. On February 11, 1965 the Court of Appeals also certified the said appeal to the Supreme Court (G.R. No. L-24259), since "no evidence of any kind was introduced before the trial court and ... appellant did not specifically ask to be allowed to present evidence on her behalf." . The respondent spouse also instituted certiorari proceedings before the Court of Appeals (CA-G.R. No. 32384R), now the subject of an appeal by certiorari to this Court (G.R. No. L-23482). In her petition for certiorari dated June 27, 1963, she averred that the CFI (thru Judge Querubin) committed grave abuse of discretion and acted in excess of jurisdiction in ordering the immediate execution of the compromise judgment in its order of June 22, 1963, thus in effect depriving her of the right to appeal. She prayed for (1) the issuance of a writ of preliminary injunction enjoining the respondents therein and any person acting under them from enforcing, by contempt proceedings and other means, the writ of execution issued pursuant to the order of the respondent Judge Querubin dated June 22, 1963 in special proceeding 6978 of the CFI, (2) the setting aside, after hearing, of the compromise judgment dated April 27, 1963 and the order dated June 22, 1963, and (3) the awarding of the custody of Enrique and Maria Teresa to her, their mother. As prayed for, the Court of Appeals issued ex parte a writ of preliminary injunction enjoining the enforcement of the order dated June 22, 1963 for execution of the compromise judgment rendered in special proceeding 6978. The petitioner

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spouse filed an urgent motion dated July 5, 1963 for the dissolution of the writ of preliminary injunction ex parte which urgent motion was denied by the Court of Appeals in its resolution dated July 9, 1963. The petitioner spouse likewise filed his answer. After hearing, the Court of Appeals on May 11, 1964 promulgated in said certiorari case (CA-G.R. No. 32384-R) its decision granting the petition for certiorari and declaring null and void both (a) the compromise judgment dated April 27, 1963 in so far as it relates to the custody and right of visitation over the two children, Enrique and Teresa, and (b) the order dated June 22, 1963 for execution of said judgment. The petitioner spouse moved to reconsider, but his motion for reconsideration was denied by the Court of Appeals in its resolution dated July 31, 1964. From the decision dated May 11, 1964 and the resolution dated July 31, 1964, the petitioner spouse interposed an appeal to this Court, as abovestated, and assigned the following errors: (1) The Court of Appeals erred in annulling thru certiorari the lower court's order of execution of the compromise judgment. (2) The Court of Appeals erred in resolving in the certiorari case the issue of the legality of the compromise judgment which is involved in two appeals, instead of the issue of grave abuse of discretion in ordering its execution. (3) The Court of Appeals erred in ruling that the compromise agreement upon which the judgment is based violates article 363 of the Civil Code. 1wph1.t As heretofore adverted, the aforecited three appeals converge on one focal issue: whether the compromise agreement entered into by the parties and the judgment of the CFI grounded on the said agreement, are conformable to law. We hold that the compromise agreement and the judgment of the CFI grounded on the said agreement are valid with respect to the separation of property of the spouses and the dissolution of the conjugal partnership. The law allows separation of property of the spouses and the dissolution of their conjugal partnership provided judicial sanction is secured beforehand. Thus the new Civil Code provides: In the absence of an express declaration in the marriage settlements, the separation of property between spouses during the marriage shall not take place save in virtue of a judicial order. (Art. 190, emphasis supplied) The husband and the wife may agree upon the dissolution of the conjugal partnership during the marriage, subject to judicial approval. All the creditors of the husband and of the wife, as well as of the conjugal partnership, shall be notified of any petition for judicial approval of the voluntary dissolution of the conjugal partnership, so that any such creditors may appear at the hearing to safeguard his interests. Upon approval of the petition for dissolution of the conjugal partnership, the court shall take such measures as may protect the creditors and other third persons. (Art. 191, par. 4, emphasis supplied). In the case at bar, the spouses obtained judicial imprimatur of their separation of property and the dissolution of their conjugal partnership. It does not appeal that they have creditors who will be prejudiced by the said arrangements. It is likewise undisputed that the couple have been separated in fact for at least five years - the wife's residence being in Manila, and the husband's in the conjugal home in Bacolod City. Therefore, inasmuch as a lengthy separation has supervened between them, the propriety of severing their financial and proprietary interests is manifest. Besides, this Court cannot constrain the spouses to live together, as [I]t is not within the province of the courts of this country to attempt to compel one of the spouses to cohabit with, and render conjugal rights to, the other. .. At best such an order can be effective for no other purpose than to compel the spouse to live under the same roof; and the experience of those countries where the courts of justice have assumed to compel the cohabitation of married couple shows that the policy of the practice is extremely questionable. (Arroyo v. Vasquez de Arroyo, 42 Phil. 54, 60). However, in so approving the regime of separation of property of the spouses and the dissolution of their conjugal partnership, this Court does not thereby accord recognition to nor legalize the de facto separation of the spouses, which again in the language of Arroyo v. Vasquez de Arroyo, supra is a "state which is abnormal and fraught with grave danger to all concerned." We would like to douse the momentary seething emotions of couples who, at the slightest ruffling of domestic tranquility brought about by "mere austerity of temper, petulance of manners, rudeness of language, a want of civil attention and accommodation, even occasional sallies of passion" without more would be minded to separate from each other. In this jurisdiction, the husband and the wife are obliged to live together, observe mutual respect and fidelity, and render mutual help and support (art. 109, new Civil Code). There is, therefore, virtue in making it as difficult as possible for married couples impelled by

no better cause than their whims and caprices to abandon each other's company. '... For though in particular cases the repugnance of the law to dissolve the obligations of matrimonial cohabitation may operate with great severity upon individuals, yet it must be carefully remembered that the general happiness of the married life is secured by its indissolubility. When people understand that they must live together, except for a very few reasons known to the law, they learn to soften by mutual accommodation that yoke which they know they cannot shake off; they become good husbands and good wives from the necessity of remaining husbands and wives; for necessity is a powerful master in teaching the duties which it imposes ..." (Evans vs. Evans, 1 Hag. Con., 35; 161 Eng. Reprint, 466, 467.) (Arroyo vs. Vasquez de Arroyo, Id., pp. 5859). We now come to the question of the custody and support of the children. It is not disputed that it was the JDRC which first acquired jurisdiction over the matter of custody and support of the children. The complaint docketed as civil case E-00030 in the JDRC was filed by the respondent spouse on March 12, 1963, whereas the joint petition of the parties docketed as special proceeding 6978 in the CFI was filed on April 27, 1963. However, when the respondent spouse signed the joint petition on the same matter of custody and support of the children and filed the same with the CFI of Negros Occidental, she in effect abandoned her action in the JDRC. The petitioner spouse who could have raised the issue of lis pendens in abatement of the case filed in the CFI, but did not do so - had the right, therefore, to cite the decision of the CFI and to ask for the dismissal of the action filed by the respondent spouse in the JDRC, on the grounds of res judicata and lis pendens. And the JDRC acted correctly and justifiably in dismissing the case for custody and support of the children based on those grounds. For it is no defense against the dismissal of the action that the case before the CFI was filed later than the action before the JDRC, considering:. ... [T]hat the Rules do not require as a ground for dismissal of a complaint that there is a prior pending action. They provide only that there is a pending action, not a pending prior action. 1 We agree with the Court of Appeals, however, that the CFI erred in depriving the mother, the respondent spouse, of the custody of the two older children (both then below the age of 7). The Civil Code specifically commands in the second sentence of its article 363 that "No mother shall be separated from her child under seven years of age, unless the court finds compelling reasons for such measure." The rationale of this new provision was explained by the Code Commission thus: The general rule is recommended in order to avoid many a tragedy where a mother has seen her baby torn away from her. No man can sound the deep sorrows of a mother who is deprived of her child of tender age. The exception allowed by the rule has to be for "compelling reasons" for the good of the child: those cases must indeed be rare, if the mother's heart is not to be unduly hurt. If she has erred, as in cases of adultery, the penalty of imprisonment and the (relative) divorce decree will ordinarily be sufficient punishment for her. Moreover, her moral dereliction will not have any effect upon the baby who is as yet unable to understand the situation." (Report of the Code Commission, p. 12). The use of the word shall2 in article 363 of the Civil Code, coupled with the observations made by the Code Commission in respect to the said legal provision, underscores its mandatory character. It prohibits in no uncertain: terms the separation of a mother and her child below seven years, unless such separation is grounded upon compelling reasons as determined by a court. The order dated April 27, 1963 of the CFI, in so far as it awarded custody of the two older children who were 6 and 5 years old, respectively, to the father, in effect sought to separate them from their mother. To that extent therefore, it was null and void because clearly violative of article 363 of the Civil Code. Neither does the said award of custody fall within the exception because the record is bereft of any compelling reason to support the lower court's order depriving the wife of her minor children's company. True, the CFI stated in its order dated June 22, 1963, denying the respondent spouse's motion for reconsideration of its order dated April 27, 1963, that . ... If the parties have agreed to file a joint petition, it was because they wanted to avoid the exposure of the bitter truths which serve as succulent morsel for scandal mongers and idle gossipers and to save their children from embarrassment and inferiority complex which may inevitably stain their lives. .. If the parties agreed to submit the matter of custody of the minor children to the Court for incorporation in the final judgment, they purposely suppressed the "compelling reasons for such measure" from appearing in the public records. This is for the sake and for the welfare of the minor children.".

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But the foregoing statement is at best a mere hint that there were compelling reasons. The lower court's order is eloquently silent on what these compelling reasons are. Needless to state, courts cannot proceed on mere insinuations; they must be confronted with facts before they can properly adjudicate. It might be argued and correctly that since five years have elapsed since the filing of these cases in 1963, the ages of the four children should now be as follows: Enrique 11, Maria Teresa 10, Gerrard 9, and Ramon 5. Therefore, the issue regarding the award of the custody of Enrique and Maria Teresa to the petitioner spouse has become moot and academic. The passage of time has removed the prop which supports the respondent spouse's position. Nonetheless, this Court is loath to uphold the couple's agreement regarding the custody of the children. 1wph1.t Article 356 of the new Civil Code provides: Every child: (1) Is entitled to parental care; (2) Shall receive at least elementary education; (3) Shall be given moral and civic training by the parents or guardian; (4) Has a right to live in an atmosphere conducive to his physical, moral and intellectual development. It is clear that the abovequoted legal provision grants to every child rights which are not and should not be dependent solely on the wishes, much less the whims and caprices, of his parents. His welfare should not be subject to the parents' say-so or mutual agreement alone. Where, as in this case, the parents are already separated in fact, the courts must step in to determine in whose custody the child can better be assured the right granted to him by law. The need, therefore, to present evidence regarding this matter, becomes imperative. A careful scrutiny of the records reveals that no such evidence was introduced in the CFI. This latter court relied merely on the mutual agreement of the spousesparents. To be sure, this was not a sufficient basis to determine the fitness of each parent to be the custodian of the children. Besides, at least one of the children Enrique, the eldest is now eleven years of age and should be given the choice of the parent he wishes to live with. This is the clear mandate of sec. 6, Rule 99 of the Rules of Court which, states, inter alia: ... When husband and wife are divorced or living separately and apart from each other, and the question as to the care, custody, and control of a child or children of their marriage is brought before a Court of First Instance by petition or as an incident to any other proceeding, the court, upon hearing testimony as may be pertinent, shall award the care, custody and control of each such child as will be for its best interestpermitting the child to choose which parent it prefers to live with if it be over ten years of age, unless the parent so chosen be unfit to take charge of the child by reason of moral depravity, habitual drunkenness, incapacity, or poverty... (Emphasis supplied). One last point regarding the matter of support for the children assuming that the custody of any or more of the children will be finally awarded to the mother. Although the spouses have agreed upon the monthly support of P150 to be given by the petitioner spouse for each child, still this Court must speak out its mind on the insufficiency of this amount. We, take judicial notice of the devaluation of the peso in 1962 and the steady skyrocketing of prices of all commodities, goods, and services, not to mention the fact that all the children are already of school age. We believe, therefore, that the CFI may increase this amount of P150 according to the needs of each child. With the view that we take of this case, we find it unnecessary to pass upon the other errors assigned in the three appeals. ACCORDINGLY, the decision dated May 11, 1964 and the resolution dated July 31, 1964 of the Court of Appeals in CA-G.R. 32384-R (subject matter of G.R. L-23482), and the orders dated May 28, 1963 and June 24, 1963 of the Juvenile and Domestic Relations Court (subject matter of G.R. L-23767) are affirmed. G.R. L-24259 is hereby remanded to the Court of First Instance of Negros Occidental for further proceedings, in accordance with this decision. No pronouncement as to costs. CASE DIGEST 9: LACSON V. SAN JOSE-LACSON August 30, 1968 Under Article 136 (Voluntary Separation of Property)Digest by Apesa Chungalao

LacsonBackground:Alfonso and Carmen were married on February 14, 1953. They had four children. On January 9,1963 Carmen left the conjugal home in Bacolod and resided in Manila. On March 12, 1963 she filed acomplaint in the Juvenile and Domestic Relations Court (JDRC) for custody of all their children as wellas support for them and herself. However, through the assistance of their respective lawyers, the spousesreached an amicable settlement as to custody of the kids, support, and separation of property. On April27, 1963, they filed a joint petition with the CFI of Negros Occidental, submitting that they had mutuallyagreed upon the dissolution of their conjugal partnership. The terms included a) separation of property, b)all earnings of each spouse shall belong to that spouse exclusively, c) the custody of the two elder children shall be awarded to Alfonso and the two younger children to Carmen, d) Alfonso shall payCarmen a monthly allowance of P200.00 for the support of the children, and e) each petitioner shall havereciprocal rights of visitation and every summer the former spouses shall swap [my word] kids. For that particular year, however, Carmen was allowed custody of all four children until June of 1963, when shewas supposed to return the two older children to Alfonsos custody.Finding the foregoing joint petition as conformable to the law, the CFI issued an order approvingtheir compromise agreement on the very same day. On May 7, however, Carmen filed a motion with theJDRC alleging that the compromise agreement was the only way she could get custody of all the childrenand praying that she be relieved of the agreement pertaining to the custody and visitation of the childrenand that she now be awarded full custody [bitch]. Naturally, Alfonso opposed the motion and the JDRCruled in his favour. Carmen went to the Court of Appeals and the CA certified the case to the SupremeCourt. Carmen went to the CFI and filed a motion for reconsideration, basically claiming the same thing.Alfonso opposed. The CFI favored Alfonso and ordered Carmen to return the two older children by June,on pain of contempt. It is from this decision that the instant case springs. Carmen instituted certiorari proceedings with the CA against the CFI, saying the CFI committed grave abuse of discretion and actedin excess of jurisdiction in ordering the immediate execution of the compromise agreement. The CAdeclared void the portion of the agreement pertaining to the custody of children.Issue/Held/Ratio:

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Was the assailed compromise agreementand the judgment of the CFI grounded on said agreement conformable to law?

YESbut only as far as the separation of property of spouses and the dissolution of the conjugal partnership, in accordance with Article 191 of the Civil Code. The spouses did not appear tohave any creditors who would have been prejudiced by their arrangement. At the time of the decision thespouses had been separated five years and so the propriety of severing their financial and proprietaryinterests was manifest. (However, the Court maintained that approving the separation of property anddissolution of conjugal partnership did not amount to recognition or legalization of

de facto

separation.)As to the custody of the children, they were all below 7 years of age at the time of the agreement and sothe CA was correct in awarding the custody to the mother. The Court was also loath to uphold thecouples agreement regarding the custody of the children, citing rights of the children to proper care not anchored on the solely on the whims of his or her parents. Courts must decide fitness of parents for custody. 10. G.R. No. L-48219 February 28, 1979 MANUEL J. C. REYES, petitioner, vs. HON. LEONOR INES-LUCIANO, as Judge of the Juvenile & Domestic Relations Court, Quezon City, COURT OF APPEALS and CELIA ILUSTRE-REYES, respondents.

Eriberto D. Ignacio for petitioner. Gonzalo D. David for private respondent.

Three consolidated cases:

Alfonso Lacson v. Carmen San-Jose Lacson and the Court of Appeals (L-23482)Carmen San-Jose Lacson v. Alfonso Lacson (L23767)Alfonso Lacson v. Carmen San Jose-

FERNANDEZ, J.: This is a petition for certiorari to review the decision of the Court of Appeals in CA-G.R. No. 06928-SP entitled "Manuel J. C. Reyes, petitioner, versus, The Hon. Leonor Ines-Luciano as Judge of the Juvenile & Domestic Relations Court (Quezon City) and Celia Ilustre-Reyes, Respondents", dismissing the petition to annul the order of the respondent Judge directing the petitioner to give support pendente lite to his wife, Celia Ilustre-Reyes, private respondent herein, in the amount of P40,000.00 a month. 1 The private petitioner, Celia Ilustre-Reyes, filed in the Juvenile and Domestic Relations Court of Quezon City a complaint dated June 3, 1976 against her husband, Manuel J. C. Reyes, for legal

separation on the ground that the defendant had attempted to kill plaintiff. The pertinent allegations of the complaint are: 6.8 On March 10, 1976, defendant went to V. Ilustre and attacked plaintiff. He pummeled her with fist blows that floored her, then held her head and, with intent to kill, bumped it several times against the cement floor. When she ran upstairs to her father for protection, he pushed her at the stairway of 13 flights and she fell sliding to the ground floor. Determined to finish her off, he again gave her a strong swing at her abdomen which floored her half unconscious. Were it not for plaintiff's father, he would have succeeded killing her; 6.9. On May 26, 1976, although on May 11 previous she ceased holding office with defendant at Bel-Air Apartments elsewhere adverted to, she went thereto to get her overnight bag. Upon seeing her, defendant yelled at her to get out of the office. When he did not mind him, he suddenly doused her with a glass of grape juice, kicked her several times that landed at her back and nape, and was going to hit her with a steel tray as her driver, Ricardo Mancera, came due to her screams for help. For fear of further injury and for life, she rushed to Precinct 5 at united Nations Avenue, Manila Metropolitan Police, for assistance and protection; 2 The plaintiff asked for support pendente lite for her and her three children. The defendant, petitioner herein, opposed the application for support pendente lite on the ground that his wife had committed adultery with her physician. The application for support pendente lite was set for hearing and submitted for resolution on the basis of the pleadings and the documents attached thereto by the parties. The respondent Judge issued an order dated March 15, 1977 granting plaintiff's prayer for alimony pendente litein the amount of P5,000.00 a month commencing from June 1976. 3 The petitioner filed a motion for reconsideration reiterating that his wife is not entitled to support during the pendency of the case, and, alleging that even if she entitled, the amount awarded was excessive. The respondent Judge reduced the amount from P5,000.00 to P44,00.00 a month in an order dated June 17, 1977. 4 Manuel J. C. Reyes filed a petition for certiorari in the Court of Appeals dated July 25, 1977 asking that the order granting support pendente lite to private respondent. Celia Ilustre-Reyes, be annulled on the ground that the respondent Judge, Leonor Ines-Luciano, had committed a grave abuse of discretion or that said order be modified inasmuch as the amount awarded as support pendente lite is excessive. The Court of Appeals dismissed the petition because: Considering the plight of the wife during the pendency of the case for legal separation and that the husband appears to be financially capable of giving the support, We believe that the petitioner has not presented a clear case of grave abuse of discretion on the part of the respondent in issuing the questioned orders. We see no compelling reason to give it due course. 5 The petitioner contends that the Court of Appeal committed the following error: THE HON. COURT OF APPEALS GRIEVOUSLY ERRED IN A MANNER AMOUNTING IT CAN ERROR OF LAW AND A DEPARTURE FROM THE ACCEPTED NORMS LAID DOWN BY THIS HON. COURT IN THE CASES WE SHALL LATER ON DISCUSS, IN REFUSING TO GIVE DUE COURSE TO THE ORIGINAL PETITION FOR certiorari HEREIN AGAINST RESPONDENTS-APPELLEES, AND IN AFFIRMING THE ORDERS FOR SUPPORT PENDENTE LITE ANNEXES "F" AND "H" OF THIS PETITION WHEN HELD THAT RESPONDENT-APPELLEE JUDGE DID NOT COMMIT ANY ABUSE OF DISCRETION IN ISSUING SAID ORDERS, FOR THE REASONS THAT: A. IN ACTIONS FOR LEGAL SEPARATION THE WIFE IS ENTITLED TO SUPPORT FROM THE HUSBAND DESPITE THE FACT THAT A CASE FOR ADULTERY HAD BEEN FILED BY THE HUSBAND AGAINST HER; AND B. IN DETERMINING THE AMOUNT OF SUPPORT PENDENTE LITE, IT IS ENOUGH THAT THE COURT ASCERTAIN THE KIND AND AMOUNT OF EVIDENCE EVEN BY AFFIDAVITS ONLY OR OTHER DOCUMENTARY EVIDENCE APPEARING IN THE RECORDS. 6 It is true that the adultery of the wife is a defense in an action for support however, the alleged adultery of wife must be established by competent evidence. The allegation that the wife has committed adultery will not bar her from the right receive support pendente lite. Adultery is a good defense and if properly proved and sustained wig defeat the action. 7 In the instant case, at the hearing of the application for support pendente lite before the Juvenile and Domestic Relations Court presided by the respondent Judge, Hon. Leonor Ines-Luciano the petitioner did not present any evidence to prove the

allegation that his wife, private respondent Celia Ilustre-Reyes, had committed adultery with any person. The petitioner has still the opportunity to adduce evidence on the alleged adultery of his wife when the action for legal separation is heard on the merits before the Juvenile and Domestic Relations Court of Quezon City. It is to be noted however, that as pointed out by the respondents in their comment, the "private respondent was not asking support to be taken from petitioner's personal funds or wherewithal, but from the conjugal propertywhich, was her documentary evidence ...". 8 It is, therefore, doubtful whether adultery will affect her right to alimony pendente lite. In Quintana vs. Lerma, 9 the action for support was based on the obligation of the husband to support his wife. The contention of the petitioner that the order of the respondent Judge granting the private respondent support pendente lite in the amount of P4,000.00 a month is not supported by the allegations of the complaint for legal separation and by competent evidence has no merit. The complaint or legal separation contains allegations showing that on at least two occasions the defendant, petitioner herein, had made attempts to kill the private respondent. Thus it is alleged that on March 10, 1976, the defendant attacked plaintiff, pummeled her with fist blows that floored her, held her head and with intent to kill, bumped it several times against the cement floor and when she ran upstairs to her father for protection, the petitioner pushed her at the stairway of thirteen (13) flights and she fell sliding to the ground floor and defendant gave her a strong swing at her abdomen which floored her half unconscious and were it not for plaintiff's father, defendant would have succeeded in killing her. 10 It is also alleged that on May 26, 1976, the defendant doused Celia Ilustre-Reyes with a glass of grape juice, kicked her several times at her back and nape and was going to hit her with a steel tray if it were not for her driver who came due to her creams for help." 11 In fixing the amount of monthly support pendente lite of P4,000,00, the respondent judge did not act capriciously and whimsically. When she originally fixed the amount of P5,000.00 a month, the respondent Judge considered the following: On record for plaintiff's cause are the following: that she and defendant were married on January 18, 1958; that she is presently unemployed and without funds, thus, she is being supported by her father with whom she resides: that defendant had been maltreating her and Cried to kill her; that all their conjugal properties are in the possession of defendant who is also president, Manager and Treasurer of their corporation namely: 1. Standard Mineral Products, which was incorporated on February 9, 1959: presently with paid-in capital of P295,670.00; assets and liabilities of P757,108.52; Retained Earnings of P85,654.61: and majority stockholder is defendant; 2. Development and Technology Consultant Inc. incorporated on July 12, 1971, with paid-in capital of P200,000.00; Assets and liabilities of P831,669.34; defendant owns 99% of the stocks; and last Retained Earnings is P98,879.84. 3. The Contra-Prop Marine Philippines, Inc. which was incorporated on October 3, 1975, with paid-in capital of P100,000 defendant owns 99% of the stocks. To secure some of the of said Agreement of Counter-Guaranty Mortgage with Real Estate, and Real Estate Mortgage were undertaken by plaintiff of their properties outside of other accommodations; and that she needs of P5,000.00 a month for her support in accordance with their station in life. 12 The amount of support pendente lite was reduced to P4,000.00 inasmuch as the children are in the custody of the petitioner and are being supported by him. It is thus seen that the respondent judge acted with due deliberation before fixing the amount of support pendente lite in the amount of P4,000.00 a month. In determining the amount to be awarded as support pendente lite it is not necessary to go fully into the merits of the case, it being sufficient that the court ascertain the kind and amount of evidence which it may deem sufficient to enable it to justly resolve the application, one way or the other, in view of the merely provisional character of the resolution to be entered. Mere affidavits may satisfy the court to pass upon the application for support pendente lite. 13 It is enough the the facts be established by affidavits or other documentary evidence appearing in the record. 14 The private respondent has submitted documents showing that the corporations controlled by the petitioner have entered into multi-million contracts in projects of the Ministry of Public Highways. Considering the high cost of living due to inflation and the financial ability of the petitioner as shown by the documents of record, We find that the amount of P4,000.00 a month granted

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by the respondent Judge as alimonypendente lite to the private respondent is not excessive. There is no showing that the respondent Judge has committed a grave abuse of discretion in granting said support. In a resolution dated July 31, 1978, this Court issued a temporary restraining order effective immediately against the enforcement of the lower court's order giving support pendente lite to private respondent in the sum of P4,000.00 monthly commencing June 1976 and in lieu thereof to allow such support only to the extent of P1,000.00 a month. 15 Later the petitioner was required to pay the support at the rate of P1,000.00 a month which had accumulated since June 1976 within ten (10) days from notice of the resolution: 16 The private respondent acknowledged on November 20, 1978 having received from the petitioner, through his counsel a check in the amount of P30,000.00 as payment of support for the period from June 1976 to November 1978 or thirty (30) months at P1,000.00 a month in compliance with the resolution of this Court dated October 9, 1978. In view of the foregoing, the support of P4,000.00 should be made to commence or, March 1, 1979. WHEREFORE, the petition for certiorari is hereby denied and the decision of the Council of Appeals sought to be reviewed is affirmed with the modification that the support pendente lite at the rate of Four Thousand Pesos (P4.000.00) a month should commence from March 1, 1979 without pronouncement as to costs. CASE DIGEST 10: Reyes v. Ines-Luciano

The Case This case comes before us via Petition for Review on Certiorari[1] under Rule 45 of the Rules of Court. The petitioner seeks that we vacate and set aside the Order[2] dated January 8, 2007 of the Regional Trial Court (RTC), Branch 1, Butuan City. In lieu of the said order, we are asked to issue a Resolution defining the net profits subject of the forfeiture as a result of the decree of legal separation in accordance with the provision of Article 102(4) of the Family Code, or alternatively, in accordance with the provisions of Article 176 of the Civil Code. Antecedent Facts On October 26, 2000, herein respondent Rita C. Quiao (Rita) filed a complaint for legal separation against herein petitioner Brigido B. Quiao (Brigido).[3] Subsequently, the RTC rendered a Decision[4] dated October 10, 2005, the dispositive portion of which provides: WHEREFORE, viewed from the foregoing considerations, judgment is hereby rendered declaring the legal separation of plaintiff Rita C. Quiao and defendant-respondent Brigido B. Quiao pursuant to Article 55. As such, the herein parties shall be entitled to live separately from each other, but the marriage bond shall not be severed. Except for Letecia C. Quiao who is of legal age, the three minor children, namely, Kitchie, Lotis and Petchie, all surnamed Quiao shall remain under the custody of the plaintiff who is the innocent spouse. Further, except for the personal and real properties already foreclosed by the RCBC, all the remaining properties, namely: 1. coffee mill in Balongagan, Las Nieves, Agusan del Norte; 2. coffee mill in Durian, Las Nieves, Agusan del Norte; 3. corn mill in Casiklan, Las Nieves, Agusan del Norte; 4. coffee mill in Esperanza, Agusan del Sur; 5. a parcel of land with an area of 1,200 square meters located in Tungao, Butuan City; 6. a parcel of agricultural land with an area of 5 hectares located in Manila de Bugabos, Butuan City; 7. a parcel of land with an area of 84 square meters located in Tungao, Butuan City; 8. Bashier Bon Factory located in Tungao, Butuan City; shall be divided equally between herein [respondents] and [petitioner] subject to the respective legitimes of the children and the payment of the unpaid conjugal liabilities of [P]45,740.00. [Petitioners] share, however, of the net profits earned by the conjugal partnership is forfeited in favor of the common children. He is further ordered to reimburse [respondents] the sum of [P]19,000.00 as attorney's fees and litigation expenses of [P]5,000.00[.] SO ORDERED.[5] Neither party filed a motion for reconsideration and appeal within the period provided for under Section 17(a) and (b) of the Rule on Legal Separation.[6] On December 12, 2005, the respondents filed a motion for execution[7] which the trial court granted in its Order dated December 16, 2005, the dispositive portion of which reads: Wherefore, finding the motion to be well taken, the same is hereby granted. Let a writ of execution be issued for the immediate enforcement of the Judgment. SO ORDERED.[8] Subsequently, on February 10, 2006, the RTC issued a Writ of Execution[9] which reads as follows: NOW THEREFORE, that of the goods and chattels of the [petitioner] BRIGIDO B. QUIAO you cause to be made the sums stated in the afore-quoted DECISION [sic], together with your lawful fees in the service of this Writ, all in the Philippine Currency.

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February 28, 1979, Fernandez, J.

Facts: Manuel Reyes attacked his wife twice with the intent to kill. A complaint was filed on June 3, 1976: the first attempt on March was prevented by her father and the second attempt, wherein she was already living separately from her husband, was stopped only because of her drivers intervention. She filed for legal separation on that ground and prayed for support pendente lite for herself and her three children. The husband opposed the application for support on the ground that the wife committed adultery with her physician. The respondent Judge Ines-Luciano of the lower court granted the wife pendente lite. The husband filed a motion for reconsideration reiterating that his wife is not entitled to receive such support during the pendency of the case, and that even if she is entitled to it, the amount awarded was excessive. The judge reduced the amount from P5000 to P4000 monthly. Husband filed a petition for certiorari in the CA to annul the order granting alimony. CA dismissed the petition which made the husband appeal to the SC. Issue: WON adultery of the wife was a defense in an action for support. WON support can be administered during the pendency of an action. Held/Ratio: Yes provided that adultery is established by competent evidence. Mere allegations will not bar her right to receive support pendente lite. Support can be administered during the pendency of such cases. In determining the amount, it is not necessary to go into the merits of the case. It is enough that the facts be established by affidavits or other documentary evidence appearing in the record. [The SC on July, 1978 ordered the alimony to be P1000/month from the period of June to February 1979, after the trial, it was reverted to P4000/month based on the accepted findings of the trial court that the husband could afford it because of his affluence and because it wasnt excessive.] 11. QUIAO vs. QUIAO REYES, J.: The family is the basic and the most important institution of society. It is in the family where children are born and molded either to become useful citizens of the country or troublemakers in the community. Thus, we are saddened when parents have to separate and fight over properties, without regard to the message they send to their children. Notwithstanding this, we must not shirk from our obligation to rule on this case involving legal separation escalating to questions on dissolution and partition of properties.

But if sufficient personal property cannot be found whereof to satisfy this execution and your lawful fees, then we command you that of the lands and buildings of the said [petitioner], you make the said sums in the manner required by law. You are enjoined to strictly observed Section 9, Rule 39, Rule [sic] of the 1997 Rules of Civil Procedure. You are hereby ordered to make a return of the said proceedings immediately after the judgment has been satisfied in part or in full in consonance with Section 14, Rule 39 of the 1997 Rules of Civil Procedure, as amended.[10] On July 6, 2006, the writ was partially executed with the petitioner paying the respondents the amount of P46,870.00, representing the following payments: (a) P22,870.00 as petitioner's share of the payment of the conjugal share; (b) P19,000.00 as attorney's fees; and (c) P5,000.00 as litigation expenses.[11] On July 7, 2006, or after more than nine months from the promulgation of the Decision, the petitioner filed before the RTC a Motion for Clarification,[12] asking the RTC to define the term Net Profits Earned. To resolve the petitioner's Motion for Clarification, the RTC issued an Order[13] dated August 31, 2006, which held that the phrase NET PROFIT EARNED denotes the remainder of the properties of the parties after deducting the separate properties of each [of the] spouse and the debts.[14] The Order further held that after determining the remainder of the properties, it shall be forfeited in favor of the common children because the offending spouse does not have any right to any share of the net profits earned, pursuant to Articles 63, No. (2) and 43, No. (2) of the Family Code.[15] The dispositive portion of the Order states: WHEREFORE, there is no blatant disparity when the sheriff intends to forfeit all the remaining properties after deducting the payments of the debts for only separate properties of the defendant-respondent shall be delivered to him which he has none. The Sheriff is herein directed to proceed with the execution of the Decision. IT IS SO ORDERED.[16] Not satisfied with the trial court's Order, the petitioner filed a Motion for Reconsideration[17] on September 8, 2006. Consequently, the RTC issued another Order[18] dated November 8, 2006, holding that although the Decision dated October 10, 2005 has become final and executory, it may still consider the Motion for Clarification because the petitioner simply wanted to clarify the meaning of net profit earned.[19] Furthermore, the same Order held: ALL TOLD, the Court Order dated August 31, 2006 is hereby ordered set aside. NET PROFIT EARNED, which is subject of forfeiture in favor of [the] parties' common children, is ordered to be computed in accordance [with] par. 4 of Article 102 of the Family Code.[20] On November 21, 2006, the respondents filed a Motion for Reconsideration,[21] praying for the correction and reversal of the Order dated November 8, 2006. Thereafter, on January 8, 2007,[22] the trial court had changed its ruling again and granted the respondents' Motion for Reconsideration whereby the Order dated November 8, 2006 was set aside to reinstate the Order dated August 31, 2006. Not satisfied with the trial court's Order, the petitioner filed on February 27, 2007 this instant Petition for Review under Rule 45 of the Rules of Court, raising the following: Issues I

IS THE DISSOLUTION AND THE CONSEQUENT LIQUIDATION OF THE COMMON PROPERTIES OF THE HUSBAND AND WIFE BY VIRTUE OF THE DECREE OF LEGAL SEPARATION GOVERNED BY ARTICLE 125 (SIC) OF THE FAMILY CODE? II WHAT IS THE MEANING OF THE NET PROFITS EARNED BY THE CONJUGAL PARTNERSHIP FOR PURPOSES OF EFFECTING THE FORFEITURE AUTHORIZED UNDER ARTICLE 63 OF THE FAMILY CODE? III WHAT LAW GOVERNS THE PROPERTY RELATIONS BETWEEN THE HUSBAND AND WIFE WHO GOT MARRIED IN 1977? CAN THE FAMILY CODE OF THE PHILIPPINES BE GIVEN RETROACTIVE EFFECT FOR PURPOSES OF DETERMINING THE NET PROFITS SUBJECT OF FORFEITURE AS A RESULT OF THE DECREE OF LEGAL SEPARATION WITHOUT IMPAIRING VESTED RIGHTS ALREADY ACQUIRED UNDER THE CIVIL CODE? IV WHAT PROPERTIES SHALL BE INCLUDED IN THE FORFEITURE OF THE SHARE OF THE GUILTY SPOUSE IN THE NET CONJUGAL PARTNERSHIP AS A RESULT OF THE ISSUANCE OF THE DECREE OF LEGAL SEPARATION?[23] Our Ruling While the petitioner has raised a number of issues on the applicability of certain laws, we are well-aware that the respondents have called our attention to the fact that the Decision dated October 10, 2005 has attained finality when the Motion for Clarification was filed.[24] Thus, we are constrained to resolve first the issue of the finality of the Decision dated October 10, 2005 and subsequently discuss the matters that we can clarify. The Decision dated October 10, 2005 has become final and executory at the time the Motion for Clarification was filed on July 7, 2006. Section 3, Rule 41 of the Rules of Court provides: Section 3. Period of ordinary appeal. - The appeal shall be taken within fifteen (15) days from notice of the judgment or final order appealed from. Where a record on appeal is required, the appellant shall file a notice of appeal and a record on appeal within thirty (30) days from notice of the judgment or final order. The period of appeal shall be interrupted by a timely motion for new trial or reconsideration. No motion for extension of time to file a motion for new trial or reconsideration shall be allowed. In Neypes v. Court of Appeals,[25] we clarified that to standardize the appeal periods provided in the Rules and to afford litigants fair opportunity to appeal their cases, we held that it would be practical to allow a fresh period of 15 days within which to file the notice of appeal in the RTC, counted from receipt of the order dismissing a motion for a new trial or motion for reconsideration.[26] In Neypes, we explained that the "fresh period rule" shall also apply to Rule 40 governing appeals from the Municipal Trial Courts to the RTCs; Rule 42 on petitions for review from the RTCs to the Court of Appeals (CA); Rule 43 on appeals from quasijudicial agencies to the CA and Rule 45 governing appeals by certiorari to the Supreme Court. We also said, The new rule aims to regiment or make the appeal period uniform, to be counted from receipt of the order denying the motion for new trial, motion for reconsideration (whether full or partial) or any final order or resolution.[27] In other words, a party litigant may file his notice of appeal within a fresh 15-day period from his receipt of the trial court's decision or final order denying his motion for new trial or motion for reconsideration. Failure to avail of the fresh 15-day period from the denial of the motion for reconsideration makes the decision or final order in question final and executory.

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In the case at bar, the trial court rendered its Decision on October 10, 2005. The petitioner neither filed a motion for reconsideration nor a notice of appeal. On December 16, 2005, or after 67 days had lapsed, the trial court issued an order granting the respondent's motion for execution; and on February 10, 2006, or after 123 days had lapsed, the trial court issued a writ of execution. Finally, when the writ had already been partially executed, the petitioner, on July 7, 2006 or after 270 days had lapsed, filed his Motion for Clarification on the definition of the net profits earned. From the foregoing, the petitioner had clearly slept on his right to question the RTCs Decision dated October 10, 2005. For 270 days, the petitioner never raised a single issue until the decision had already been partially executed. Thus at the time the petitioner filed his motion for clarification, the trial courts decision has become final and executory. A judgment becomes final and executory when the reglementary period to appeal lapses and no appeal is perfected within such period. Consequently, no court, not even this Court, can arrogate unto itself appellate jurisdiction to review a case or modify a judgment that became final.[28] The petitioner argues that the decision he is questioning is a void judgment. Being such, the petitioner's thesis is that it can still be disturbed even after 270 days had lapsed from the issuance of the decision to the filing of the motion for clarification. He said that a void judgment is no judgment at all. It never attains finality and cannot be a source of any right nor any obligation.[29] But what precisely is a void judgment in our jurisdiction? When does a judgment becomes void? A judgment is null and void when the court which rendered it had no power to grant the relief or no jurisdiction over the subject matter or over the parties or both.[30] In other words, a court, which does not have the power to decide a case or that has no jurisdiction over the subject matter or the parties, will issue a void judgment or a coram non judice.[31] The questioned judgment does not fall within the purview of a void judgment. For sure, the trial court has jurisdiction over a case involving legal separation. Republic Act (R.A.) No. 8369 confers upon an RTC, designated as the Family Court of a city, the exclusive original jurisdiction to hear and decide, among others, complaints or petitions relating to marital status and property relations of the husband and wife or those living together.[32] The Rule on Legal Separation[33] provides that the petition [for legal separation] shall be filed in the Family Court of the province or city where the petitioner or the respondent has been residing for at least six months prior to the date of filing or in the case of a non-resident respondent, where he may be found in the Philippines, at the election of the petitioner.[34] In the instant case, herein respondent Rita is found to reside in Tungao, Butuan City for more than six months prior to the date of filing of the petition; thus, the RTC, clearly has jurisdiction over the respondent's petition below. Furthermore, the RTC also acquired jurisdiction over the persons of both parties, considering that summons and a copy of the complaint with its annexes were served upon the herein petitioner on December 14, 2000 and that the herein petitioner filed his Answer to the Complaint on January 9, 2001.[35] Thus, without doubt, the RTC, which has rendered the questioned judgment, has jurisdiction over the complaint and the persons of the parties. From the aforecited facts, the questioned October 10, 2005 judgment of the trial court is clearly not void ab initio, since it was rendered within the ambit of the court's jurisdiction. Being such, the same cannot anymore be disturbed, even if the modification is meant to correct what may be considered an erroneous conclusion of fact or law.[36] In fact, we have ruled that for [as] long as the public respondent acted with jurisdiction, any error committed by him or it in the exercise thereof will amount to nothing more than an error of judgment which may be reviewed or corrected only by appeal.[37] Granting without admitting that the RTC's judgment dated October 10, 2005 was erroneous, the petitioner's remedy should be an appeal filed within the reglementary period. Unfortunately, the petitioner failed to do this. He has already lost the chance to question the trial court's decision, which has become immutable and unalterable. What we can only do is to clarify the very question raised below and nothing more. For our convenience, the following matters cannot anymore be disturbed since the October 10, 2005 judgment has already become immutable and unalterable, to wit: (a) The finding that the petitioner is the offending spouse since he cohabited with a woman who is not his wife; [38]

(b) The trial court's grant of the petition for legal separation of respondent Rita;[39] (c) The dissolution and liquidation of the conjugal partnership; [40] (d) The forfeiture of the petitioner's right to any share of the net profits earned by the conjugal partnership; [41] (e) The award to the innocent spouse of the minor children's custody;[42] (f) The disqualification of the offending spouse from inheriting from the innocent spouse by intestate succession; [43] (g) The revocation of provisions in favor of the offending spouse made in the will of the innocent spouse;[44] (h) The holding that the property relation of the parties is conjugal partnership of gains and pursuant to Article 116 of the Family Code, all properties acquired during the marriage, whether acquired by one or both spouses, is presumed to be conjugal unless the contrary is proved;[45] (i) The finding that the spouses acquired their real and personal properties while they were living together; [46] (j) The list of properties which Rizal Commercial Banking Corporation (RCBC) foreclosed;[47] (k) The list of the remaining properties of the couple which must be dissolved and liquidated and the fact that respondent Rita was the one who took charge of the administration of these properties;[48] (l) The holding that the conjugal partnership shall be liable to matters included under Article 121 of the Family Code and the conjugal liabilities totaling P503,862.10 shall be charged to the income generated by these properties;[49] (m) The fact that the trial court had no way of knowing whether the petitioner had separate properties which can satisfy his share for the support of the family;[50] (n) The holding that the applicable law in this case is Article 129(7);[51] (o) The ruling that the remaining properties not subject to any encumbrance shall therefore be divided equally between the petitioner and the respondent without prejudice to the children's legitime;[52] (p) The holding that the petitioner's share of the net profits earned by the conjugal partnership is forfeited in favor of the common children;[53] and (q) The order to the petitioner to reimburse the respondents the sum of P19,000.00 as attorney's fees and litigation expenses ofP5,000.00.[54] After discussing lengthily the immutability of the Decision dated October 10, 2005, we will discuss the following issues for the enlightenment of the parties and the public at large. Article 129 of the Family Code applies to the present case since the parties' property relation is governed by the system of relative community or conjugal partnership of gains. The petitioner claims that the court a quo is wrong when it applied Article 129 of the Family Code, instead of Article 102. He confusingly argues that Article 102 applies because there is no other provision under the Family Code which defines net profits earned subject of forfeiture as a result of legal separation. Offhand, the trial court's Decision dated October 10, 2005 held that Article 129(7) of the Family Code applies in this case. We agree with the trial court's holding.

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First, let us determine what governs the couple's property

relation. From the record, we can deduce that the petitioner and the respondent tied the marital knot on January 6, 1977. Since at

the time of the exchange of marital vows, the operative law was the Civil Code of the Philippines (R.A. No. 386) and since they did not agree on a marriage settlement, the property relations between the petitioner and the respondent is the system of relative community or conjugal partnership of gains.[55] Article 119 of the Civil Code provides: Art. 119. The future spouses may in the marriage settlements agree upon absolute or relative community of property, or upon complete separation of property, or upon any other regime. In the absence of marriage settlements, or when the same are void, the system of relative community or conjugal partnership of gains as established in this Code, shall govern the property relations between husband and wife. Thus, from the foregoing facts and law, it is clear that what governs the property relations of the petitioner and of the respondent is conjugal partnership of gains. And under this property relation, the husband and the wife place in a common fund the fruits of their separate property and the income from their work or industry.[56] The husband and wife also own in common all the property of the conjugal partnership of gains.[57]

In our en banc Resolution dated October 18, 2005 for ABAKADA

Guro Party List Officer Samson S. Alcantara, et al. v. The Hon. Executive Secretary Eduardo R. Ermita,[63] we also explained:

The concept of vested right is a consequence of the constitutional guaranty of due process that expresses a present fixed interest which in right reason and natural justice is protected against arbitrary state action; it includes not only legal or equitable title to the enforcement of a demand but also exemptions from new obligations created after the right has become vested. Rights are considered vested when the right to enjoyment is a present interest, absolute, unconditional, and perfect or fixed and irrefutable.[64] (Emphasis and underscoring supplied) From the foregoing, it is clear that while one may not be deprived of his vested right, he may lose the same if there is due process and such deprivation is founded in law and jurisprudence. In the present case, the petitioner was accorded his right to due process. First, he was well-aware that the respondent prayed in her complaint that all of the conjugal properties be awarded to her.[65] In fact, in his Answer, the petitioner prayed that the trial court divide the community assets between the petitioner and the respondent as circumstances and evidence warrant after the accounting and inventory of all the community properties of the parties.[66] Second, when the Decision dated October 10, 2005 was promulgated, the petitioner never questioned the trial court's ruling forfeiting what the trial court termed as net profits, pursuant to Article 129(7) of the Family Code.[67] Thus, the petitioner cannot claim being deprived of his right to due process. Furthermore, we take note that the alleged deprivation of the petitioner's vested right is one founded, not only in the provisions of the Family Code, but in Article 176 of the Civil Code. This provision is like Articles 63 and 129 of the Family Code on the forfeiture of the guilty spouse's share in the conjugal partnership profits. The said provision says: Art. 176. In case of legal separation, the guilty spouse shall forfeit his or her share of the conjugal partnership profits, which shall be awarded to the children of both, and the children of the guilty spouse had by a prior marriage. However, if the conjugal partnership property came mostly or entirely from the work or industry, or from the wages and salaries, or from the fruits of the separate property of the guilty spouse, this forfeiture shall not apply. In case there are no children, the innocent spouse shall be entitled to all the net profits. From the foregoing, the petitioner's claim of a vested right has no basis considering that even under Article 176 of the Civil Code, his share of the conjugal partnership profits may be forfeited if he is the guilty party in a legal separation case. Thus, after trial and after the petitioner was given the chance to present his evidence, the petitioner's vested right claim may in fact be set aside under the Civil Code since the trial court found him the guilty party. More, in Abalos v. Dr. Macatangay, Jr.,[68] we reiterated our longstanding ruling that: [P]rior to the liquidation of the conjugal partnership, the interest of each spouse in the conjugal assets is inchoate, a mere expectancy, which constitutes neither a legal nor an equitable estate, and does not ripen into title until it appears that there are assets in the community as a result of the liquidation and settlement. The interest of each spouse is limited to the net remainder or remanente liquido (haber ganancial) resulting from the liquidation of the affairs of the partnership after its dissolution. Thus, the right of the husband or wife to one-half of the conjugal assets does not vest until the dissolution and liquidation of the conjugal partnership, or after dissolution of the marriage, when it is finally determined that, after settlement of conjugal obligations, there are net assets left which can be divided between the spouses or their respective heirs.[69] (Citations omitted) Finally, as earlier discussed, the trial court has already decided in its Decision dated October 10, 2005 that the applicable law in this case is Article 129(7) of the Family Code.[70] The petitioner did not

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Second, since at the time of the dissolution of the petitioner and

the respondent's marriage the operative law is already the Family Code, the same applies in the instant case and the applicable law in so far as the liquidation of the conjugal partnership assets and liabilities is concerned is Article 129 of the Family Code in relation to Article 63(2) of the Family Code. The latter provision is applicable because according to Article 256 of the Family Code [t]his 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 law.[58] Now, the petitioner asks: Was his vested right over half of the common properties of the conjugal partnership violated when the trial court forfeited them in favor of his children pursuant to Articles 63(2) and 129 of the Family Code? We respond in the negative. Indeed, the petitioner claims that his vested rights have been impaired, arguing: As earlier adverted to, the petitioner acquired vested rights over half of the conjugal properties, the same being owned in common by the spouses. If the provisions of the Family Code are to be given retroactive application to the point of authorizing the forfeiture of the petitioner's share in the net remainder of the conjugal partnership properties, the same impairs his rights acquired prior to the effectivity of the Family Code.[59] In other words, the petitioner is saying that since the property relations between the spouses is governed by the regime of Conjugal Partnership of Gains under the Civil Code, the petitioner acquired vested rights over half of the properties of the Conjugal Partnership of Gains, pursuant to Article 143 of the Civil Code, which provides: All property of the conjugal partnership of gains is owned in common by the husband and wife.[60] Thus, since he is one of the owners of the properties covered by the conjugal partnership of gains, he has a vested right over half of the said properties, even after the promulgation of the Family Code; and he insisted that no provision under the Family Code may deprive him of this vested right by virtue of Article 256 of the Family Code which prohibits retroactive application of the Family Code when it will prejudice a person's vested right. However, the petitioner's claim of vested right is not one which is written on stone. In Go, Jr. v. Court of Appeals,[61] we define and explained vested right in the following manner: A vested right is one whose existence, effectivity and extent do not depend upon events foreign to the will of the holder, or to the exercise of which no obstacle exists, and which is immediate and perfect in itself and not dependent upon a contingency. The term vested right expresses the concept of present fixed interest which, in right reason and natural justice, should be protected against arbitrary State action, or an innately just and imperative right which enlightened free society, sensitive to inherent and irrefragable individual rights, cannot deny. To be vested, a right must have become a titlelegal or equitableto the present or future enjoyment of property.[62] (Citations omitted)

file a motion for reconsideration nor a notice of appeal. Thus, the petitioner is now precluded from questioning the trial court's decision since it has become final and executory. The doctrine of immutability and unalterability of a final judgment prevents us from disturbing the Decision dated October 10, 2005 because final and executory decisions can no longer be reviewed nor reversed by this Court.[71] From the above discussions, Article 129 of the Family Code clearly applies to the present case since the parties' property relation is governed by the system of relative community or conjugal partnership of gains and since the trial court's Decision has attained finality and immutability. The net profits of the conjugal partnership of gains are all the fruits of the separate properties of the spouses and the products of their labor and industry. The petitioner inquires from us the meaning of net profits earned by the conjugal partnership for purposes of effecting the forfeiture authorized under Article 63 of the Family Code. He insists that since there is no other provision under the Family Code, which defines net profits earned subject of forfeiture as a result of legal separation, then Article 102 of the Family Code applies. What does Article 102 of the Family Code say? Is the computation of net profits earned in the conjugal partnership of gains the same with the computation of net profits earned in the absolute community? Now, we clarify. First and foremost, we must distinguish between the applicable law as to the property relations between the parties and the applicable law as to the definition of net profits. As earlier discussed, Article 129 of the Family Code applies as to the property relations of the parties. In other words, the computation and the succession of events will follow the provisions under Article 129 of the said Code. Moreover, as to the definition of net profits, we cannot but refer to Article 102(4) of the Family Code, since it expressly provides that for purposes of computing the net profits subject to forfeiture under Article 43, No. (2) and Article 63, No. (2), Article 102(4) applies. In this provision, net profits shall be the increase in value between the market value of the community property at the time of the celebration of the marriage and the market value at the time of its dissolution.[72] Thus, without any iota of doubt, Article 102(4) applies to both the dissolution of the absolute community regime under Article 102 of the Family Code, and to the dissolution of the conjugal partnership regime under Article 129 of the Family Code. Where lies the difference? As earlier shown, the difference lies in the processes used under the dissolution of the absolute community regime under Article 102 of the Family Code, and in the processes used under the dissolution of the conjugal partnership regime under Article 129 of the Family Code. Let us now discuss the difference in the processes between the absolute community regime and the conjugal partnership regime. On Absolute Community Regime: When a couple enters into a regime of absolute community, the husband and the wife becomes joint owners of all the properties of the marriage. Whatever property each spouse brings into the marriage, and those acquired during the marriage (except those excluded under Article 92 of the Family Code) form the common mass of the couple's properties. And when the couple's marriage or community is dissolved, that common mass is divided between the spouses, or their respective heirs, equally or in the proportion the parties have established, irrespective of the value each one may have originally owned.[73] Under Article 102 of the Family Code, upon dissolution of marriage, an inventory is prepared, listing separately all the properties of the absolute community and the exclusive properties of each; then the debts and obligations of the absolute community are paid out of the absolute community's assets and if the community's properties are insufficient, the separate properties of each of the couple will be solidarily liable for the unpaid balance. Whatever is left of the separate properties will be delivered to each of them. The net remainder of the absolute community is its net assets, which shall be divided between the husband and the wife; and for purposes of computing the net profits subject to

forfeiture, said profits shall be the increase in value between the market value of the community property at the time of the celebration of the marriage and the market value at the time of its dissolution.[74] Applying Article 102 of the Family Code, the net profits requires that we first find the market value of the properties at the time of the community's dissolution. From the totality of the market value of all the properties, we subtract the debts and obligations of the absolute community and this result to the net assets or net remainder of the properties of the absolute community, from which we deduct the market value of the properties at the time of marriage, which then results to the net profits.[75] Granting without admitting that Article 102 applies to the instant case, let us see what will happen if we apply Article 102: (a) According to the trial court's finding of facts, both husband and wife have no separate properties, thus, the remaining properties in the list above are all part of the absolute community. And its market value at the time of the dissolution of the absolute community constitutes the market value at dissolution. (b) Thus, when the petitioner and the respondent finally were legally separated, all the properties which remained will be liable for the debts and obligations of the community. Such debts and obligations will be subtracted from the market value at dissolution. (c) What remains after the debts and obligations have been paid from the total assets of the absolute community constitutes the net remainder or net asset. And from such net asset/remainder of the petitioner and respondent's remaining properties, the market value at the time of marriage will be subtracted and the resulting totality constitutes the net profits. (d) Since both husband and wife have no separate properties, and nothing would be returned to each of them, what will be divided equally between them is simply the net profits. However, in the Decision dated October 10, 2005, the trial court forfeited the half-share of the petitioner in favor of his children. Thus, if we use Article 102 in the instant case (which should not be the case), nothing is left to the petitioner since both parties entered into their marriage without bringing with them any property. On Conjugal Partnership Regime: Before we go into our disquisition on the Conjugal Partnership Regime, we make it clear that Article 102(4) of the Family Code applies in the instant case for purposes only of defining net profit. As earlier explained, the definition of net profits in Article 102(4) of the Family Code applies to both the absolute community regime and conjugal partnership regime as provided for under Article 63, No. (2) of the Family Code, relative to the provisions on Legal Separation. Now, when a couple enters into a regime of conjugal partnership of gains under Article 142 of the Civil Code, the husband and the wife place in common fund the fruits of their separate property and income from their work or industry, and divide equally, upon the dissolution of the marriage or of the partnership, the net gains or benefits obtained indiscriminately by either spouse during the marriage.[76] From the foregoing provision, each of the couple has his and her own property and debts. The law does not intend to effect a mixture or merger of those debts or properties between the spouses. Rather, it establishes a complete separation of capitals.[77] Considering that the couple's marriage has been dissolved under the Family Code, Article 129 of the same Code applies in the liquidation of the couple's properties in the event that the conjugal partnership of gains is dissolved, to wit: Art. 129. Upon the dissolution of the conjugal partnership regime, the following procedure shall apply: (1) An inventory shall be prepared, listing separately all the properties of the conjugal partnership and the exclusive properties of each spouse.

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(2) Amounts advanced by the conjugal partnership in payment of personal debts and obligations of either spouse shall be credited to the conjugal partnership as an asset thereof. (3) Each spouse shall be reimbursed for the use of his or her exclusive funds in the acquisition of property or for the value of his or her exclusive property, the ownership of which has been vested by law in the conjugal partnership. (4) The debts and obligations of the conjugal partnership shall be paid out of the conjugal assets. In case of insufficiency of said assets, the spouses shall be solidarily liable for the unpaid balance with their separate properties, in accordance with the provisions of paragraph (2) of Article 121. (5) Whatever remains of the exclusive properties of the spouses shall thereafter be delivered to each of them. (6) Unless the owner had been indemnified from whatever source, the loss or deterioration of movables used for the benefit of the family, belonging to either spouse, even due to fortuitous event, shall be paid to said spouse from the conjugal funds, if any. (7) The net remainder of the conjugal partnership properties shall constitute the profits, which shall be divided equally between husband and wife, unless a different proportion or division was agreed upon in the marriage settlements or unless there has been a voluntary waiver or forfeiture of such share as provided in this Code. (8) The presumptive legitimes of the common children shall be delivered upon the partition in accordance with Article 51. (9) In the partition of the properties, the conjugal dwelling and the lot on which it is situated shall, unless otherwise agreed upon by the parties, be adjudicated to the spouse with whom the majority of the common children choose to remain. Children below the age of seven years are deemed to have chosen the mother, unless the court has decided otherwise. In case there is no such majority, the court shall decide, taking into consideration the best interests of said children. In the normal course of events, the following are the steps in the liquidation of the properties of the spouses: (a) An inventory of all the actual properties shall be made, separately listing the couple's conjugal properties and their separate properties.[78] In the instant case, the trial court found that the couple has no separate properties when they married.[79] Rather, the trial court identified the following conjugal properties, to wit: 1. coffee mill in Balongagan, Las Nieves, Agusan del Norte; 2. coffee mill in Durian, Las Nieves, Agusan del Norte; 3. corn mill in Casiklan, Las Nieves, Agusan del Norte; 4. coffee mill in Esperanza, Agusan del Sur; 5. a parcel of land with an area of 1,200 square meters located in Tungao, Butuan City; 6. a parcel of agricultural land with an area of 5 hectares located in Manila de Bugabos, Butuan City; 7. a parcel of land with an area of 84 square meters located in Tungao, Butuan City; 8. Bashier Bon Factory located in Tungao, Butuan City.[80] (b) Ordinarily, the benefit received by a spouse from the conjugal partnership during the marriage is returned in equal amount to the assets of the conjugal partnership; [81] and if the community is enriched at the expense of the separate properties of either spouse, a restitution of the value of such properties to their respective owners shall be made.[82] (c) Subsequently, the couple's conjugal partnership shall pay the debts of the conjugal partnership; while the debts and obligation of each of the spouses shall be paid from their respective separate properties. But if the conjugal partnership is not sufficient to pay

all its debts and obligations, the spouses with their separate properties shall be solidarily liable.[83] (d) Now, what remains of the separate or exclusive properties of the husband and of the wife shall be returned to each of them.[84] In the instant case, since it was already established by the trial court that the spouses have no separate properties,[85]there is nothing to return to any of them. The listed properties above are considered part of the conjugal partnership. Thus, ordinarily, what remains in the abovelisted properties should be divided equally between the spouses and/or their respective heirs.[86] However, since the trial court found the petitioner the guilty party, his share from the net profits of the conjugal partnership is forfeited in favor of the common children, pursuant to Article 63(2) of the Family Code. Again, lest we be confused, like in the absolute community regime, nothing will be returned to the guilty party in the conjugal partnership regime, because there is no separate property which may be accounted for in the guilty party's favor. In the discussions above, we have seen that in both instances, the petitioner is not entitled to any property at all. Thus, we cannot but uphold the Decision dated October 10, 2005 of the trial court. However, we must clarify, as we already did above, the Order dated January 8, 2007. WHEREFORE, the Decision dated October 10, 2005 of the Regional Trial Court, Branch 1 of Butuan City is AFFIRMED. Acting on the Motion for Clarification dated July 7, 2006 in the Regional Trial Court, the Order dated January 8, 2007 of the Regional Trial Court is hereby CLARIFIED in accordance with the above discussions. CASE DIGEST 11: QUIAO V. QUIAO G.R. No 176556, [July 04, 2012] FACTS: Rita C. Quiao (Rita) filed a complaint for legal separationagainst petitioner Brigido B. Quiao (Brigido). RTC rendered a decision declaring the legal separation thereby awarding the custody of their 3 minor children in favor of Rita and all remaining properties shall be divided equally between the spouses subject to the respective legitimes of the children and the payment of the unpaid conjugal liabilities. Brigidos share, however, of the net profits earned by the conjugal partnership is forfeited in favor of the common children because Brigido is the offending spouse. Neither party filed a motion for reconsideration and appeal within the period 270 days later or after more than nine months from the promulgation of the Decision, the petitioner filed before the RTC a Motion for Clarification, asking the RTC to define the term Net Profits Earned. RTC held that the phrase NET PROFIT EARNED denotes the remainder of the properties of the parties after deducting the separate properties of each [of the] spouse and the debts. It further held that after determining the remainder of the properties, it shall be forfeited in favor of the common children because the offending spouse does not have any right to any share of the net profits earned, pursuant to Articles 63, No. (2) and 43, No. (2) of the Family Code. The petitioner claims that the court a quo is wrong when it applied Article 129 of the Family Code, instead of Article 102. He confusingly argues that Article 102 applies because there is no other provision under the Family Code which defines net profits earned subject of forfeiture as a result of legal separation. ISSUES: 1. Whether Art 102 on dissolution of absolute community or Art 129 on dissolution of conjugal partnership of gains is applicable in this case. Art 129 will govern. 2. Whether the offending spouse acquired vested rights overof the properties in the conjugal partnership NO. 3. Is the computation of net profits earned in the conjugal partnership of gains the same with thecomputation of net profits earned in the absolute community? NO. RATIO: 1. First, since the spouses were married prior to the promulgation of the current family code, the default rule is that In the absence of marriage settlements, or when the same are void, the system of

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relative community or conjugal partnership of gains as established in this Code, shall govern the property relations between husband and wife. Second, since at the time of the dissolution of the spouses marriage the operative law is already the Family Code, the same applies in the instant case and the applicable law in so far as the liquidation of the conjugal partnershipassets and liabilities is concerned is Article 129 of the Family Code in relation to Article 63(2) of the Family Code. 2. The petitioner is saying that since the propertyrelations between the spouses is governed by the regime of Conjugal Partnership of Gains under the Civil Code, the petitioner acquired vested rights over half of the properties of the Conjugal Partnership of Gains, pursuant to Article 143 of the Civil Code, which provides: All property of the conjugal partnership of gains is owned in common by the husband and wife. While one may not be deprived of his vested right, he may lose the same if there is due process and such deprivation is founded in law and jurisprudence. In the present case, the petitioner was accorded his right to due process. First, he was well-aware that the respondent prayed in her complaint that all of the conjugal properties be awarded to her. In fact, in his Answer, the petitioner prayed that the trial court divide the community assets between the petitioner and the respondent as circumstances and evidence warrant afterthe accounting and inventory of all the community properties of the parties. Second, when the decision forlegal separation was promulgated, the petitioner never questioned the trial courts ruling forfeiting what the trial court termed as net profits, pursuant to Article 129(7) of the Family Code. Thus, the petitioner cannot claim being deprived of his right to due process. 3. When a couple enters into a regime of absolutecommunity, the husband and the wife become joint owners of all the properties of the marriage. Whatever property each spouse brings into the marriage, and those acquired during the marriage (except those excluded under Article 92 of the Family Code) form the common mass of the couples properties. And when the couples marriage or community is dissolved, that common mass is divided between the spouses, or their respective heirs, equally or in the proportion the parties have established, irrespective of the value each one may have originally owned. In this case, assuming arguendo that Art 102 is applicable, since it has been established that the spouses have no separate properties, what will be divided equally between them is simply the net profits. And since the legal separationshare decision of Brigido states that the in the net profits shall be awarded to the children, Brigido will still be left with nothing. On the other hand, when a couple enters into a regime of conjugal partnership of gains under Article142 of the Civil Code, the husband and the wife place in common fund the fruits of their separate property and income from their work or industry, and divide equally, upon thedissolution of the marriage or of the partnership, the net gains or benefits obtained indiscriminately by either spouse during the marriage. From the foregoing provision, each of the couple has his and her own property and debts. The law does not intend to effect a mixture or merger of those debts or properties between the spouses. Rather, it establishes a complete separation of capitals. In the instant case, since it was already established by the trial court that the spouses have no separate properties, there is nothing to return to any of them. The listed properties above are considered part of the conjugal partnership. Thus, ordinarily, what remains in the above-listed properties should be divided equally between the spouses and/or their respective heirs. However, since the trial court found the petitioner the guilty party, his share from the net profits of the conjugal partnership is forfeited in favor of the common children, pursuant to Article 63(2) of the Family Code. Again, lest we be confused, like in the absolute community regime, nothing will be returned to the guilty party in the conjugal partnership regime, because there is no separate property which may be accounted for in the guilty partys favor. 12. G.R. No. L-29138 May 29, 1970

ELENA CONTRERAS, plaintiff-appellant, vs. CESAR J. MACARAIG, defendant-appellee.

Jose T. Nery for plaintiff-appellee. The City fiscal for defendant-appellant. Cesar J. Macaraig in his own behalf.

DIZON, J.: Appeal taken by Elena Contreras from a decision of the Juvenile and Domestic Relations Court of Manila in Civil Case No. 00138

dismissing her complaint upon the ground that the same was filed more than one year from and after the date on which she had become cognizant of the cause for legal separation. The following, facts found by the trial court are not in dispute: Plaintiff and defendant were married on March 16, 1952 in the Catholic Church of Quiapo, Manila. Out of their Marriage, three children were born: Eusebio C. Macaraig, on January 11, 1953; Victoria C. Macaraig, on March 26, 1956; and Alexander C. Macaraig, on August 4, 1958. All the children are in the care of plaintiff wife. Sometime in 1958, the couple acquired rights, as lessee and purchaser under a conditional sale agreement, to own a house and lot, known as Lot 4, Block 8 of the Philamlife Homes in Quezon City which they transferred in favor of their three children on October 29, 1958 (Exh. F). Installment payments are being made by plaintiff's father. The spouses own no other conjugal property. Immediately before the election of 1961, defendant was employed as manager of the printing establishment owned by plaintiff's father known as the MICO Offset. In that capacity, defendant met and came to know Lily Ann Alcala, who place orders with MICO Offset for propaganda materials for Mr. Sergio Osmea, who was then a Vice-Presidential candidate. After the elections of 1961, defendant resigned from MICO Offset to be a special agent at Malacaang. He began to be away so often and to come home very late. Upon plaintiff's inquiry, defendant explained that he was out on a series of confidential missions. In September, 1962, Avelino Lubos, driver of the family car, told plaintiff that defendant was living in Singalong with Lily Ann Alcala. When defendant, the following October, returned to the conjugal home, plaintiff refrained from verifying Lubos' report from defendant in her desire not to anger nor drive defendant away. Although plaintiff, in April 1963, also received rumors that defendant was seen with a woman who was on the family way on Dasmarias St., she was so happy that defendant again return to the family home in May, 1963 that she once more desisted from discussing the matter with him because she did not wish to precipitate a quarrel and drive him away. All this while, defendant, if and whenever he returned to the family fold, would only stay for two or three days but would be gone for a period of about a month. After plaintiff received reports that Lily Ann Alcala had given birth to a baby, she sent Mrs. Felicisima Antioquia, her father's employee, to verify the reports. The latter was driven by Lubos to the house in Singalong and between 5:00 and 6:00 o'clock that afternoon, she saw defendant was carrying a baby in his arms. Mrs. Antioquia then went to the parish priest of Singalong where she inquired about the child of Cesar Macaraig and Lily Ann Alcala and she was given a copy of the baptismal certificate of Maria Vivien Mageline Macaraig (Exh. G) which she gave to plaintiff sometime in October, 1963. Plaintiff then entreated her father-in-law, Lucilo Macaraig, to intercede with defendant and to convince him to return to his family. Mr. Macaraig, after talking to his son and seeking him with the latter's child told plaintiff that he could not do anything. In November, 1963, plaintiff requested the cooperation of defendant's older sister, Mrs. Enriqueta Majul, and the latter obliged and arranged a meeting at her home in Buendia between plaintiff and Lily Ann Alcala. Lily Ann said she was willing to give up defendant as she had no desire to be accused criminally but it was defendant who refused to break relationship with her. In the early part of December, 1963, plaintiff, accompanied by her two children, Victoria and Alexander, and by Mrs. Leticia Lagronio went to talk to defendant at his place of work on Espaa Extension in front of Quezon Institute. They repaired to Victoria Peak, a nearby restaurant, where plaintiff pleaded with defendant to give up Lily Ann Alcala and to return to the conjugal home, assuring him that she was willing to forgive him. Defendant informed plaintiff that he could no longer leave Lily Ann and refused to return to his legitimate family. On December 14, 1963, plaintiff instituted the present action for legal separation. When defendant did not interpose any answer after he was served summons, the case was referred to the Office of the City Fiscal of Manila pursuant to the provisions of Article 101 of the Civil Code. After a report was received from Asst. Fiscal Primitivo M. Pearanda that he believed that there was no collusion present, plaintiff was allowed to present her evidence. Defendant has never appeared in this case. The reasons relied upon by the trial court in dismissing the complaint are set forth in the appealed decision as follows: Under the facts established by plaintiff's evidence, although the infidelity of the husband is apparent, yet the case will have to be dismissed. Article 102 provides that, an action for legal separation cannot be instituted except within one year after plaintiff "became cognizant of the cause." In the absence of a clear-cut

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decision of the Supreme Court as to the exact import of the term "cognizant," the practical application of said Article can be attended with difficulty. For one thing; that rules might be different in case of adultery, which is an act, and for concubinage, which may be a situation or a relationship. In respect of concubinage, the word 'cognizant' may not connote the date when proof thereof sufficient to establish the cause before a court of law is possessed. Otherwise, the one year period would be meaningless for practical purposes because all a wife would have to do would be to claim that the necessary proof was secured only within one year before the filing of the complaint. On the other hand, it should be hard to concede that what the law envisages (and, in a way, encourages) is the filing of a complaint within one year after the innocent spouses has received information of the other's infidelity, howsoever baseless the report might be. The Court believes that the correct rule lies between the two extremes. At the time a wife acquired information, which can be reasonably relied upon as true, that her husband is living in concubinage with another woman, the one-year period should be deemed to have started even if the wife shall not then be in possession of proof sufficient to establish the concubinage before a court of law. The one-year period may be viewed, inter alia, as an alloted time within which proof should be secured. It is in the light of this rule that the Court will determine whether or not plaintiff's action for legal separation has prescribed. After her husband resigned from MICO Offset to be a special agent in Malacaan, subsequent to the elections of 1961, he would seldom come home. He allayed plaintiff's suspicions with the explanation that he had been away on 'confidential missions.' However, in September, 1962, Avelino Lubos, plaintiff's driver, reported to plaintiff that defendant was living in Singalong with Lily Ann Alcala. As a matter of fact, it was also Lubos who brought Mrs. F. Antioquia (when plaintiff had asked to verify the reports) to the house in Singalong where she saw defendant, Lily Ann and the baby. The requirement of the law that a complaint for legal separation be filed within one year after the date plaintiff become cognizant of the cause is not of prescriptive nature, but is of the essence of the cause of action. It is consonant with the philosophy that marriage is an inviolable social institution so that the law provides strict requirements before it will allow a disruption of its status. In the instant action, the Court has to find that plaintiff became cognizant of defendant's infidelity in September, 1962. Plaintiff made successive attempts to induce the husband to amend his erring ways but failed. Her desire to bring defendant back to the connubial fold and to preserve family solidarity deterred her from taking timely legal action. The only question to be resolved is whether the period of one year provided for in Article 102 of the Civil Code should be counted, as far as the instant case is concerned from September 1962 or from December 1963. Computing the period of one year from the former date, it is clear that plaintiff's complaint filed on December 14, 1963 came a little too late, while the reverse would be true if said period is deemed to have commenced only in the month of December 1963. The period of "five years from after the date when such cause occurred" is not here involved. Upon the undisputed facts it seems clear that, in the month of September 1962, whatever knowledge appellant had acquired regarding the infidelity of her husband, that is, of the fact that he was then living in Singalong with Lily Ann Alcala, was only through the information given to her by Avelino Lubos, driver of the family car. Much as such hearsay information had pained and anguished her, she apparently thought it best and no reasonable person may justifiably blame her for it not to go deeper into the matter herself because in all probability even up to that time, notwithstanding her husband's obvious neglect of his entire family, appellant still cherished the hope however forlorn of his coming back home to them. Indeed, when her husband returned to the conjugal home the following October, she purposely refrained from bringing up the matter of his marital infidelity "in her desire not to anger nor drive defendant away" quoting the very words of the trial court. True, appellant likewise heard in April 1963 rumors that her husband was seen with a woman on the family way on Dasmarias Street, but failed again to either bring up the matter with her husband or make attempts to verify the truth of said rumors, but this was due, as the lower court itself believed, because "she was so happy that defendant again returned to the family home in May 1963 that she once more desisted from discussing the matter with him because she did not wish to precipitate a quarrel and drive him away." As a matter of fact, notwithstanding all these painful informations which would not have been legally sufficient to make a case for legal separation appellant still made brave if desperate

attempts to persuade her husband to come back home. In the words of the lower court, she "entreated her father-in-law, Lucilo Macaraig, to intercede with defendant and to convince him to return to his family" and also "requested the cooperation of defendant's older sister, Mrs. Enriqueta Majul" for the same purpose, but all that was of no avail. Her husband remained obdurate. After a careful review of the record, We are persuaded that, in the eyes of the law, the only time when appellant really became cognizant of the infidelity of her husband was in the early part of December 1963 when, quoting from the appealed decision, the following happened In the early part of December, 1963, plaintiff, accompanied by her two children, Victoria and Alexander, and by Mrs. Leticia Lagronio went to talk to defendant at his place of work on Espaa Extension in front of Quezon Institute. They repaired to Victoria Peak, a nearby restaurant, where plaintiff pleaded with defendant to give up Lily Ann Alcala and to return to the conjugal home, assuring him that she was willing to forgive him. Defendant informed plaintiff that he could no longer leave Lily Ann and refused to return to his legitimate family. From all the foregoing We conclude that it was only on the occasion mentioned in the preceding paragraph when her husband admitted to her that he was living with and would no longer leave Lily Ann to return to his legitimate family that appellant must be deemed to be under obligation to decide whether to sue or not to sue for legal separation, and it was only then that the legal period of one year must be deemed to have commenced. WHEREFORE, the decision appealed from is set aside and another is hereby rendered holding that appellant is entitled to legal separation as prayed for in her complaint; and the case is hereby remanded to the lower court for appropriate proceedings in accordance with law. CASE DIGEST 12: Contreras v. Macaraig May 29, 1970, Dizon, J. Facts: In Sept. 1962, family driver told Elena Contreras that her husband Macaraig was living with another woman. She failed to verify the rumor from her husband. In April 1963, she heard rumors that her husband was seen with another woman who was pregnant. In May of the same year she once more failed to ascertain the veracity of the allegations because she was afraid that it would precipitate a quarrel and drive him away. However she finally found out about her husbands mistress and the birth of the latters child. In December 1963, wife finally met with her husband and pleaded him to give up his mistress and return to the conjugal home, assuring him that all would be forgiven. He declined. In the same month, she filed suit for legal separation but the case was dismissed because prescription had, according to the court, already taken place from Sept. 1962 when she had found out about her husbands illicit relationship from the family driver. The CA dismissed the complaint because of prescription. Issue: WON the period of prescription is counted from Sept. 1962 or from December 1963. Held/Ratio: December 1963. This was the only time when she became truly cognizant of her husbands infidelity. Hearsay information would not have been legally sufficient as a basis for legal separation. 13. G.R. No. L-13553 February 23, 1960

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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 actionipso 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 havefalsely 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. CASE DIGEST 13: De Ocampo vs. Florenciano 107 Phil 35 FACTS: Jose de Ocampo and Serafina Florenciano were married in 1938. They begot several children who are not living with plaintiff. In March 1951, latter discovered on several occasions that his wife was betraying his trust by maintaining illicit relations with Jose Arcalas. Having found out, he sent the wife to Manila in June 1951 to study beauty culture where she stayed for one year. Again plaintiff discovered that the wife was going out with several other man other than Arcalas. In 1952, when the wife finished her studies, she left plaintiff and since then they had lived separately. In June 1955, plaintiff surprised his wife in the act of having illicit relations with Nelson Orzame. He signified his intention of filing a petition for legal separation to which defendant manifested conformity provided she is not charged with adultery in a criminal action. Accordingly, Ocampo filed a petition for legal separation in 1955. ISSUE: Whether the confession made by Florenciano constitutes the confession of judgment disallowed by the Family Code. HELD: Florencianos admission to the investigating fiscal that she committed adultery, in the existence of evidence of adultery other than such confession, is not the confession of judgment disallowed by Article 48 of the Family Code. What is prohibited is a confession of judgment, a confession done in court or through a

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pleading. Where there is evidence of the adultery independent of the defendants statement agreeing to the legal separation, the decree of separation should be granted since it would not be based on the confession but upon the evidence presented by the plaintiff. What the law prohibits is a judgment based exclusively on defendants confession. The petition should be granted based on the second adultery, which has not yet prescribed. 14. G.R. No. 162580 January 27, 2006

ELMAR O. PEREZ, Petitioner, vs. COURT OF APPEALS, Fifth Division, TRISTAN A. CATINDIG and LILY GOMEZ-CATINDIG, Respondents. DECISION YNARES-SANTIAGO, J.: This petition for certiorari and prohibition under Rule 65 of the Rules of Court assails the July 25, 2003 Decision1of the Court of Appeals in CA-G.R. SP No. 74456 which set aside and declared as null and void the September 30, 2002 Order2 of the Regional Trial Court of Quezon City, Branch 84, granting petitioners motion for leave to file intervention and admitting the Complaint-inIntervention3 in Civil Case No. Q-01-44847; and its January 23, 2004 Resolution4 denying the motion for reconsideration. Private respondent Tristan A. Catindig married Lily Gomez Catindig5 twice on May 16, 1968. The first marriage ceremony was celebrated at the Central Methodist Church at T.M. Kalaw Street, Ermita, Manila while the second took place at the Lourdes Catholic Church in La Loma, Quezon City. The marriage produced four children. Several years later, the couple encountered marital problems that they decided to separate from each other. Upon advice of a mutual friend, they decided to obtain a divorce from the Dominican Republic. Thus, on April 27, 1984, Tristan and Lily executed a Special Power of Attorney addressed to the Judge of the First Civil Court of San Cristobal, Dominican Republic, appointing an attorney-in-fact to institute a divorce action under its laws.6 Thereafter, on April 30, 1984, the private respondents filed a joint petition for dissolution of conjugal partnership with the Regional Trial Court of Makati. On June 12, 1984, the civil court in the Dominican Republic ratified the divorce by mutual consent of Tristan and Lily. Subsequently, on June 23, 1984, the Regional Trial Court of Makati City, Branch 133, ordered the complete separation of properties between Tristan and Lily. On July 14, 1984, Tristan married petitioner Elmar O. Perez in the State of Virginia in the United States7 and both lived as husband and wife until October 2001. Their union produced one offspring.8 During their cohabitation, petitioner learned that the divorce decree issued by the court in the Dominican Republic which "dissolved" the marriage between Tristan and Lily was not recognized in the Philippines and that her marriage to Tristan was deemed void under Philippine law. When she confronted Tristan about this, the latter assured her that he would legalize their union after he obtains an annulment of his marriage with Lily. Tristan further promised the petitioner that he would adopt their son so that he would be entitled to an equal share in his estate as that of each of his children with Lily.9 On August 13, 2001, Tristan filed a petition for the declaration of nullity of his marriage to Lily with the Regional Trial Court of Quezon City, docketed as Case No. Q-01-44847. Subsequently, petitioner filed a Motion for Leave to File Intervention10 claiming that she has a legal interest in the matter in litigation because she knows certain information which might aid the trial court at a truthful, fair and just adjudication of the annulment case, which the trial court granted on September 30, 2002. Petitioners complaint-in-intervention was also ordered admitted. Tristan filed a petition for certiorari and prohibition with the Court of Appeals seeking to annul the order dated September 30, 2002 of the trial court. The Court of Appeals granted the petition and declared as null and void the September 30, 2002 Order of the trial court granting the motion for leave to file intervention and admitting the complaint-in-intervention. Petitioners motion for reconsideration was denied, hence this petition for certiorari and prohibition filed under Rule 65 of the Rules of Court. Petitioner contends that the Court of Appeals gravely abused its discretion in disregarding her legal interest in the annulment case between Tristan and Lily. The petition lacks merit. Ordinarily, the proper recourse of an aggrieved party from a decision of the Court of Appeals is a petition for review on certiorari under Rule 45 of the Rules of Court. However, if the error

subject of the recourse is one of jurisdiction, or the act complained of was granted by a court with grave abuse of discretion amounting to lack or excess of jurisdiction, as alleged in this case, the proper remedy is a petition for certiorari under Rule 65 of the said Rules.11 This is based on the premise that in issuing the assailed decision and resolution, the Court of Appeals acted with grave abuse of discretion, amounting to excess of lack of jurisdiction and there is no plain, speedy and adequate remedy in the ordinary course of law. A remedy is considered plain, speedy, and adequate if it will promptly relieve the petitioner from the injurious effect of the judgment and the acts of the lower court.12 It is therefore incumbent upon the petitioner to establish that the Court of Appeals acted with grave abuse of discretion amounting to excess or lack of jurisdiction when it promulgated the assailed decision and resolution. We have previously ruled that grave abuse of discretion may arise when a lower court or tribunal violates or contravenes the Constitution, the law or existing jurisprudence. By grave abuse of discretion is meant, such capricious and whimsical exercise of judgment as is equivalent to lack of jurisdiction. The abuse of discretion must be grave as where the power is exercised in an arbitrary or despotic manner by reason of passion or personal hostility and must be so patent and gross as to amount to an evasion of positive duty or to a virtual refusal to perform the duty enjoined by or to act at all in contemplation of law.13 The word "capricious," usually used in tandem with the term "arbitrary," conveys the notion of willful and unreasoning action. Thus, when seeking the corrective hand of certiorari, a clear showing of caprice and arbitrariness in the exercise of discretion is imperative.14 The Rules of Court laid down the parameters before a person, not a party to a case can intervene, thus: Who may intervene. A person who has a legal interest in the matter in litigation, or in the success of either of the parties, or an interest against both, or is so situated as to be adversely affected by a distribution or other disposition of property in the custody of the court or of an officer thereof may, with leave of court, be allowed to intervene in the action. The court shall consider whether or not the intervention will unduly delay or prejudice the adjudication of the rights of the original parties, and whether or not the intervenors rights may be fully protected in a separate proceeding.15 The requirements for intervention are: [a] legal interest in the matter in litigation; and [b] consideration must be given as to whether the adjudication of the original parties may be delayed or prejudiced, or whether the intervenors rights may be protected in a separate proceeding or not.16 Legal interest, which entitles a person to intervene, must be in the matter in litigation and of such direct and immediate character that the intervenor will either gain or lose by direct legal operation and effect of the judgment.17 Such interest must be actual, direct and material, and not simply contingent and expectant.18 Petitioner claims that her status as the wife and companion of Tristan for 17 years vests her with the requisite legal interest required of a would-be intervenor under the Rules of Court. Petitioners claim lacks merit. Under the law, petitioner was never the legal wife of Tristan, hence her claim of legal interest has no basis. When petitioner and Tristan married on July 14, 1984, Tristan was still lawfully married to Lily. The divorce decree that Tristan and Lily obtained from the Dominican Republic never dissolved the marriage bond between them. It is basic that laws relating to family rights and duties, or to the status, condition and legal capacity of persons are binding upon citizens of the Philippines, even though living abroad.19 Regardless of where a citizen of the Philippines might be, he or she will be governed by Philippine laws with respect to his or her family rights and duties, or to his or her status, condition and legal capacity. Hence, if a Filipino regardless of whether he or she was married here or abroad, initiates a petition abroad to obtain an absolute divorce from spouse and eventually becomes successful in getting an absolute divorce decree, the Philippines will not recognize such absolute divorce.20 When Tristan and Lily married on May 18, 1968, their marriage was governed by the provisions of the Civil Code21 which took effect on August 30, 1950. In the case of Tenchavez v. Escano22 we held: (1) That a foreign divorce between Filipino citizens, sought and decreed after the effectivity of the present Civil Code (Rep. Act No. 386), is not entitled to recognition as valid in this jurisdiction; and neither is the marriage contracted with another party by the divorced consort, subsequently to the foreign decree of divorce, entitled to validity in the country. (Emphasis added) Thus, petitioners claim that she is the wife of Tristan even if their marriage was celebrated abroad lacks merit. Thus, petitioner never acquired the legal interest as a wife upon which her motion for intervention is based.

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Since petitioners motion for leave to file intervention was bereft of the indispensable requirement of legal interest, the issuance by the trial court of the order granting the same and admitting the complaint-in-intervention was attended with grave abuse of discretion. Consequently, the Court of Appeals correctly set aside and declared as null and void the said order. WHEREFORE, the petition is DISMISSED. The assailed Decision dated July 25, 2003 and Resolution dated January 23, 2004 of the Court of Appeals in CA-G.R. SP No. 74456 are AFFIRMED. No pronouncement as to costs. CASE DIGEST 14: FACTS: Private respondent Tristan A. Catindig married Lily Gomez Catindig twice on May 16, 1968. The marriage produced four children. Several years later, the couple encountered marital problems that they decided to obtain a divorce from the Dominican Republic. Thus, on April 27, 1984, Tristan and Lily executed a Special Power of Attorney addressed to the Judge of the First Civil Court of San Cristobal, Dominican Republic, appointing an attorney-in-fact to institute a divorce action under its laws. On July 14, 1984, Tristan married petitioner Elmar O. Perez in the State of Virginia in the United States and both lived as husband and wife until October 2001. Their union produced one offspring. During their cohabitation, petitioner learned that the divorce decree issued by the court in the Dominican Republic which "dissolved" the marriage between Tristan and Lily was not recognized in the Philippines and that her marriage to Tristan was deemed void under Philippine law. On August 13, 2001, Tristan filed a petition for the declaration of nullity of his marriage to Lily with the RTC of Quezon City. ISSUE: Whether or not Perez has a legal interest in the matter of litigation required of a would-be intervenor in Tristans petition for declaration of nullity of his marriage with his wife? RULING: No, Perez has no legal interest. When petitioner and Tristan married on July 14, 1984, Tristan was still lawfully married to Lily. The divorce decree that Tristan and Lily obtained from the Dominican Republic never dissolved the marriage bond between them. It is basic that laws relating to family rights and duties, or to the status, condition and legal capacity of persons are binding upon citizens of the Philippines, even though living abroad. Regardless of where a citizen of the Philippines might be, he or she will be governed by Philippine laws with respect to his or her family rights and duties, or to his or her status, condition and legal capacity. Hence, if a Filipino regardless of whether he or she was married here or abroad initiates a petition abroad to obtain an absolute divorce from spouse and eventually becomes successful in getting an absolute divorce decree, the Philippines will not recognize such absolute divorce. Petitioners claim that she is the wife of Tristan even if their marriage was celebrated abroad lacks merit. Thus, petitioner never acquired the legal interest as a wife upon which her motion for intervention is based. 15. G.R. No. 141528 October 31, 2006

OSCAR P. MALLION, petitioner, vs. EDITHA ALCANTARA, respondent. DECISION AZCUNA, J.: This is a petition for review on certiorari under Rule 45 of the Rules of Court raising a question of law: Does a previous final judgment denying a petition for declaration of nullity on the ground of psychological incapacity bar a subsequent petition for declaration of nullity on the ground of lack of marriage license? The facts are not disputed: On October 24, 1995, petitioner Oscar P. Mallion filed a petition1 with the Regional Trial Court (RTC), Branch 29, of San Pablo City seeking a declaration of nullity of his marriage to respondent Editha Alcantara under Article 36 of Executive Order No. 209, as amended, otherwise known as the Family Code, citing respondents alleged psychological incapacity. The case was

docketed as Civil Case No. SP 4341-95. After trial on the merits, the RTC denied the petition in a decision2 dated November 11, 1997 upon the finding that petitioner "failed to adduce preponderant evidence to warrant the grant of the relief he is seeking."3 The appeal filed with the Court of Appeals was likewise dismissed in a resolution4 dated June 11, 1998 for failure of petitioner to pay the docket and other lawful fees within the reglementary period. After the decision in Civil Case No. SP 4341-95 attained finality, petitioner filed on July 12, 1999 another petition5for declaration of nullity of marriage with the RTC of San Pablo City, this time alleging that his marriage with respondent was null and void due to the fact that it was celebrated without a valid marriage license. For her part, respondent filed an answer with a motion to dismiss6 dated August 13, 1999, praying for the dismissal of the petition on the ground of res judicata and forum shopping. In an order7 dated October 8, 1999, the RTC granted respondents motion to dismiss, the dispositive portion of which reads: WHEREFORE, for Forum Shopping and Multiplicity of Suits, the Motion to Dismiss is GRANTED. This case is DISMISSED. SO ORDERED.8 Petitioners motion for reconsideration was also denied in an order9 dated January 21, 2000. Hence, this petition which alleges, as follows: A. IN DISMISSING PETITIONERS PETITION FOR THE DECLARATION OF HIS MARRIAGE AS NULL AND VOID AB INITIO FOR LACK OF THE REQUISITE MARRIAGE LICENSE BECAUSE OF (THE) DISMISSAL OF AN EARLIER PETITION FOR DECLARATION OF NULLITY OF THE SAME MARRIAGE ON THE GROUND OF HIS WIFES PSYCHOLOGICAL INCAPACITY UNDER ARTICLE 36 OF THE FAMILY CODE, THE TRIAL COURT HAD DECIDED A QUESTION OF SUBSTANCE WHICH HAS PROBABLY NOT HERETOFORE BEEN DETERMINED SQUARELY AND DEFINITIVELY BY THIS COURT, OR HAD DECIDED IT IN A WAY NOT IN ACCORD WITH LAW. B. IN DISMISSING PETITIONERS PETITION FOR THE DECLARATION OF NULLITY OF HIS MARRIAGE FOR LACK OF THE REQUISITE MARRIAGE LICENSE, THE TRIAL COURT HAD CONFUSED, DISTORTED AND MISAPPLIED THE FUNDAMENTAL RULES AND CONCEPTS ON RES JUDICATA, SPLITTING OF A CAUSE OF ACTION AND FORUM SHOPPING.10 Petitioner argues that while the relief prayed for in the two cases was the same, that is, the declaration of nullity of his marriage to respondent, the cause of action in the earlier case was distinct and separate from the cause of action in the present case because the operative facts upon which they were based as well as the evidence required to sustain either were different. Because there is no identity as to the cause of action, petitioner claims that res judicata does not lie to bar the second petition. In this connection, petitioner maintains that there was no violation of the rule on forum shopping or of the rule which proscribes the splitting of a cause of action. On the other hand, respondent, in her comment dated May 26, 2000, counters that while the present suit is anchored on a different ground, it still involves the same issue raised in Civil Case No. SP 4341-95, that is, the validity of petitioner and respondents marriage, and prays for the same remedy, that is, the declaration of nullity of their marriage. Respondent thus contends that petitioner violated the rule on forum shopping. Moreover, respondent asserts that petitioner violated the rule on multiplicity of suits as the ground he cites in this petition could have been raised during the trial in Civil Case No. SP 4341-95. The petition lacks merit. The issue before this Court is one of first impression. Should the matter of the invalidity of a marriage due to the absence of an essential requisite prescribed by Article 4 of the Family Code be raised in the same proceeding where the marriage is being impugned on the ground of a partys psychological incapacity under Article 36 of the Family Code? Petitioner insists that because the action for declaration of nullity of marriage on the ground of psychological incapacity and the action for declaration of nullity of marriage on the ground of absence of marriage license constitute separate causes of action, the present case would not fall under the prohibition against splitting a single cause of action nor would it be barred by the principle of res judicata. The contention is untenable. Res judicata is defined as "a matter adjudged; a thing judicially acted upon or decided; a thing or matter settled by judgment. It also refers to the rule that a final judgment or decree on the merits by a court of competent jurisdiction is conclusive of the rights of the parties or their privies in all later suits on points and matters determined in the former suit."11 This doctrine is a rule which pervades every well-regulated system of jurisprudence and is founded upon the following precepts of common law, namely: (1) public policy and necessity, which makes

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it to the interest of the State that there should be an end to litigation, and (2) the hardship on the individual that he should be vexed twice for the same cause. A contrary doctrine would subject the public peace and quiet to the will and neglect of individuals and prefer the gratification of the litigious disposition on the part of suitors to the preservation of the public tranquility and happiness.12 In this jurisdiction, the concept of res judicata is embodied in Section 47 (b) and (c) of Rule 39 of the Rules of Court, thus: SEC. 47. Effect of judgments or final orders. The effect of a judgment or final order rendered by a court of the Philippines, having jurisdiction to pronounce the judgment or final order, may be as follows: (a) In case of a judgment or final order against a specific thing or in respect to the probate of a will, or the administration of the estate of a deceased person, or in respect to the personal, political, or legal condition or status of a particular person or his relationship to another, the judgment or final order is conclusive upon the title to the thing, the will or administration, or the condition, status or relationship of the person; however, the probate of a will or granting of letters of administration shall only be prima facie evidence of the death of the testator or intestate; (b) In other cases, the judgment or final order is, with respect to the matter directly adjudged or as to any other matter that could have been raised in relation thereto, conclusive between the parties and their successors in interest by title subsequent to the commencement of the action or special proceeding, litigating for the same thing and under the same title and in the same capacity; and, (c) In any other litigation between the same parties or their successors in interest, that only is deemed to have been adjudged in a former judgment or final order which appears upon its face to have been so adjudged, or which was actually and necessarily included therein or necessary thereto. The above provision outlines the dual aspect of res judicata.13 Section 47 (b) pertains to it in its concept as "bar by prior judgment" or "estoppel by verdict," which is the effect of a judgment as a bar to the prosecution of a second action upon the same claim, demand or cause of action. On the other hand, Section 47 (c) pertains tores judicata in its concept as "conclusiveness of judgment" or otherwise known as the rule of auter action pendantwhich ordains that issues actually and directly resolved in a former suit cannot again be raised in any future case between the same parties involving a different cause of action.14 Res judicata in its concept as a bar by prior judgment obtains in the present case. Res judicata in this sense requires the concurrence of the following requisites: (1) the former judgment is final; (2) it is rendered by a court having jurisdiction over the subject matter and the parties; (3) it is a judgment or an orderon the merits; and (4) there is -between the first and the second actions -- identity of parties, of subject matter, and of causes of action.15 Petitioner does not dispute the existence of the first three requisites. What is in issue is the presence of the fourth requisite. In this regard, the test to determine whether the causes of action are identical is to ascertain whether the same evidence will sustain both actions, or whether there is an identity in the facts essential to the maintenance of the two actions. If the same facts or evidence would sustain both, the two actions are considered the same, and a judgment in the first case is a bar to the subsequent action.16 Based on this test, petitioner would contend that the two petitions brought by him seeking the declaration of nullity of his marriage are anchored on separate causes of action for the evidence necessary to sustain the first petition which was anchored on the alleged psychological incapacity of respondent is different from the evidence necessary to sustain the present petition which is anchored on the purported absence of a marriage license. Petitioner, however, forgets that he is simply invoking different grounds for the same cause of action. By definition, a cause of action is the act or omission by which a party violates the right of another.17 In both petitions, petitioner has the same cause - the declaration of nullity of his marriage to respondent. What differs is the ground upon which the cause of action is predicated. These grounds cited by petitioner essentially split the various aspects of the pivotal issue that holds the key to the resolution of this controversy, that is, the actual status of petitioner and respondents marriage. Furthermore, the instant case is premised on the claim that the marriage is null and void because no valid celebration of the same took place due to the alleged lack of a marriage license. In Civil Case No. SP 4341-95, however, petitioner impliedly conceded that

the marriage had been solemnized and celebrated in accordance with law. Petitioner is now bound by this admission. The alleged absence of a marriage license which petitioner raises now could have been presented and heard in the earlier case. Suffice it to state that parties are bound not only as regards every matter offered and received to sustain or defeat their claims or demand but as to any other admissible matter which might have been offered for that purpose and of all other matters that could have been adjudged in that case.18 It must be emphasized that a party cannot evade or avoid the application of res judicata by simply varying the form of his action or adopting a different method of presenting his case. 19 As this Court stated in Perez v. Court of Appeals:20 x x x the statement of a different form of liability is not a different cause of action, provided it grows out of the same transaction or act and seeks redress for the wrong. Two actions are not necessarily for different causes of action simply because the theory of the second would not have been open under the pleadings in the first. A party cannot preserve the right to bring a second action after the loss of the first merely by having circumscribed and limited theories of recovery opened by the pleadings in the first. It bears stressing that a party cannot divide the grounds for recovery. A plaintiff is mandated to place in issue in his pleading, all the issues existing when the suit began. A lawsuit cannot be tried piecemeal. The plaintiff is bound to set forth in his first action every ground for relief which he claims to exist and upon which he relied, and cannot be permitted to rely upon them by piecemeal in successive action to recover for the same wrong or injury. A party seeking to enforce a claim, legal or equitable, must present to the court, either by the pleadings or proofs, or both, on the grounds upon which to expect a judgment in his favor. He is not at liberty to split up his demands, and prosecute it by piecemeal or present only a portion of the grounds upon which a special relief is sought and leave the rest to the presentment in a second suit if the first fails. There would be no end to litigation if such piecemeal presentation is allowed. (Citations omitted.) In sum, litigants are provided with the options on the course of action to take in order to obtain judicial relief. Once an option has been taken and a case is filed in court, the parties must ventilate all matters and relevant issues therein. The losing party who files another action regarding the same controversy will be needlessly squandering time, effort and financial resources because he is barred by law from litigating the same controversy all over again.21 Therefore, having expressly and impliedly conceded the validity of their marriage celebration, petitioner is now deemed to have waived any defects therein. For this reason, the Court finds that the present action for declaration of nullity of marriage on the ground of lack of marriage license is barred by the decision dated November 11, 1997 of the RTC, Branch 29, of San Pablo City, in Civil Case No. SP 4341-95. WHEREFORE, the petition is DENIED for lack of merit. Costs against petitioner. CASE DIGEST 15: Mallion v. Alcantara GR No. 141528October 31, 2006 Facts: Oscar Mallion filed a petition with the Regional Trial Court seeking adeclaration of nullity of his marriage with Editha Alcantara due topsychological incapacity. The RTC denied the petition.As the decision attained finality, Mallion filed another petition for a declarationof nullity of marriage, this time alleging that his marriage was null and voiddue to the fact that it was celebrated without a valid marriage license. Issue: Does a previous final judgment denying a petition for declaration of nullity onthe ground of psychological incapacity bar a subsequent petitio n fordeclaration of nullity on the ground of lack of marriage license? Held: Res judicata applies. Mallion is simply invoking different grounds for the same cause of actionwhich is the nullity of marriage. When the second case was

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filed based onanother ground, there is a splitting of a cause of action which is prohibited. Heis estopped from asserting that the first marriage had no marriage licensebecause in the first case he impliedly admitted the same when he did notquestion the absence of a marriage license. 16. CASE 2011-0045: ALAIN M. DIO VS. MA. CARIDAD L. DIO (G.R. NO. 178044, 19 JANUARY 2011, CARPIO, J.) SUBJECT: ANNULMENT OF MARRIAGE CAN BE DONE EVEN PRIOR TO DISSOLUTION OF CONJUGAL PROPERTIES. (BRIEF SUBJECT: DINO VS. DINO). DE C I S I O N CARPIO, J.: The Case Before the Court is a petition for review1 assailing the 18 October 2006 Decision2 and the 12 March 2007 Order3 of the Regional Trial Court of Las Pias City, Branch 254 (trial court) in Civil Case No. LP-01-0149. The Antecedent Facts Alain M. Dio (petitioner) and Ma. Caridad L. Dio (respondent) were childhood friends and sweethearts. They started living together in 1984 until they decided to separate in 1994. In 1996, petitioner and respondent decided to live together again. On 14 January 1998, they were married before Mayor Vergel Aguilar of Las Pias City. On 30 May 2001, petitioner filed an action for Declaration of Nullity of Marriage against respondent, citing psychological incapacity under Article 36 of the Family Code. Petitioner alleged that respondent failed in her marital obligation to give love and support to him, and had abandoned her responsibility to the family, choosing instead to go on shopping sprees and gallivanting with her friends that depleted the family assets. Petitioner further alleged that respondent was not faithful, and would at times become violent and hurt him. Extrajudicial service of summons was effected upon respondent who, at the time of the filing of the petition, was already living in the United States of America. Despite receipt of the summons, respondent did not file an answer to the petition within the reglementary period. Petitioner later learned that respondent filed a petition for divorce/dissolution of her marriage with petitioner, which was granted by the Superior Court of California on 25 May 2001. Petitioner also learned that on 5 October 2001, respondent married a certain Manuel V. Alcantara. On 30 April 2002, the Office of the Las Pias prosecutor found that there were no indicative facts of collusion between the parties and the case was set for trial on the merits. Dr. Nedy L. Tayag (Dr. Tayag), a clinical psychologist, submitted a psychological report establishing that respondent was suffering from Narcissistic Personality Disorder which was deeply ingrained in her system since her early formative years. Dr. Tayag found that respondents disorder was long-lasting and by nature, incurable. In its 18 October 2006 Decision, the trial court granted the petition on the ground that respondent was psychologically incapacited to comply with the essential marital obligations at the time of the celebration of the marriage. The Decision of the Trial Court The trial court ruled that based on the evidence presented, petitioner was able to establish respondents psychological incapacity. The trial court ruled that even without Dr. Tayags psychological report, the allegations in the complaint, substantiated in the witness stand, clearly made out a case of psychological incapacity against respondent. The trial court found that respondent committed acts which hurt and embarrassed petitioner and the rest of the family, and that respondent failed to observe mutual love, respect and fidelity required of her under Article 68 of the Family Code. The trial court also ruled that respondent abandoned petitioner when she obtained a divorce abroad and married another man. The dispositive portion of the trial courts decision reads: WHEREFORE, in view of the foregoing, judgment is hereby rendered: 1. Declaring the marriage between plaintiff ALAIN M. DIO and defendant MA. CARIDAD L. DIO on January 14, 1998, and all its effects under the law, as NULL and VOID from the beginning; and 2. Dissolving the regime of absolute community of property. A DECREE OF ABSOLUTE NULLITY OF MARRIAGE shall only be issued upon compliance with Article[s] 50 and 51 of the Family Code.

Let copies of this Decision be furnished the parties, the Office of the Solicitor General, Office of the City Prosecutor, Las Pias City and the Office of the Local Civil Registrar of Las Pias City, for their information and guidance. SO ORDERED.4 Petitioner filed a motion for partial reconsideration questioning the dissolution of the absolute community of property and the ruling that the decree of annulment shall only be issued upon compliance with Articles 50 and 51 of the Family Code. In its 12 March 2007 Order, the trial court partially granted the motion and modified its 18 October 2006 Decision as follows: WHEREFORE, in view of the foregoing, judgment is hereby rendered: 1) Declaring the marriage between plaintiff ALAIN M. DIO and defendant MA. CARIDAD L. DIO on January 14, 1998, and all its effects under the law, as NULL and VOID from the beginning; and 2) Dissolving the regime of absolute community of property. A DECREE OF ABSOLUTE NULLITY OF MARRIAGE shall be issued after liquidation, partition and distribution of the parties properties under Article 147 of the Family Code. Let copies of this Order be furnished the parties, the Office of the Solicitor General, the Office of the City Prosecutor of Las Pias City and the Local Civil Registrar of Las Pias City, for their information and guidance.5 Hence, the petition before this Court. The Issue The sole issue in this case is whether the trial court erred when it ordered that a decree of absolute nullity of marriage shall only be issued after liquidation, partition, and distribution of the parties properties under Article 147 of the Family Code. The Ruling of this Court The petition has merit. Petitioner assails the ruling of the trial court ordering that a decree of absolute nullity of marriage shall only be issued after liquidation, partition, and distribution of the parties properties under Article 147 of the Family Code. Petitioner argues that Section 19(1) of the Rule on Declaration of Absolute Nullity of Null Marriages and Annulment of Voidable Marriages6 (the Rule) does not apply to Article 147 of the Family Code. We agree with petitioner. The Court has ruled in Valdes v. RTC, Branch 102, Quezon City that in a void marriage, regardless of its cause, the property relations of the parties during the period of cohabitation is governed either by Article 147 or Article 148 of the Family Code.7 Article 147 of the Family Code applies to union of parties who are legally capacitated and not barred by any impediment to contract marriage, but whose marriage is nonetheless void,8 such as petitioner and respondent in the case before the Court. Article 147 of the Family Code provides: Article 147. When a man and a woman who are capacitated to marry each other, live exclusively with each other as husband and wife without the benefit of marriage or under a void marriage, their wages and salaries shall be owned by them in equal shares and the property acquired by both of them through their work or industry shall be governed by the rules on co-ownership. In the absence of proof to the contrary, properties acquired while they lived together shall be presumed to have been obtained by their joint efforts, work or industry, and shall be owned by them in equal shares. For purposes of this Article, a party who did not participate in the acquisition by the other party of any property shall be deemed to have contributed jointly in the acquisition thereof if the formers efforts consisted in the care and maintenance of the family and of the household. Neither party can encumber or dispose by acts inter vivos of his or her share in the property acquired during cohabitation and owned in common, without the consent of the other, until after the termination of their cohabitation. When only one of the parties to a void marriage is in good faith, the share of the party in bad faith in the co-ownership shall be forfeited in favor of their common children. In case of default of or waiver by any or all of the common children or their descendants, each vacant share shall belong to the respective surviving descendants. In the absence of descendants, such share shall belong to the innocent party. In all cases, the forfeiture shall take place upon termination of the cohabitation. For Article 147 of the Family Code to apply, the following elements must be present: 1. The man and the woman must be capacitated to marry each other; 2. They live exclusively with each other as husband and wife; and 3. Their union is without the benefit of marriage, or their marriage is void.9

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All these elements are present in this case and there is no question that Article 147 of the Family Code applies to the property relations between petitioner and respondent. We agree with petitioner that the trial court erred in ordering that a decree of absolute nullity of marriage shall be issued only after liquidation, partition and distribution of the parties properties under Article 147 of the Family Code. The ruling has no basis because Section 19(1) of the Rule does not apply to cases governed under Articles 147 and 148 of the Family Code. Section 19(1) of the Rule provides: Sec. 19. Decision. (1) If the court renders a decision granting the petition, it shall declare therein that the decree of absolute nullity or decree of annulment shall be issued by the court only after compliance with Articles 50 and 51 of the Family Code as implemented under the Rule on Liquidation, Partition and Distribution of Properties. The pertinent provisions of the Family Code cited in Section 19(1) of the Rule are: Article 50. The effects provided for in paragraphs (2), (3), (4) and (5) of Article 43 and in Article 44 shall also apply in proper cases to marriages which are declared void ab initio or annulled by final judgment under Articles 40 and 45.10 The final judgment in such cases shall provide for the liquidation, partition and distribution of the properties of the spouses, the custody and support of the common children, and the delivery of their presumptive legitimes, unless such matters had been adjudicated in previous judicial proceedings. All creditors of the spouses as well as of the absolute community of the conjugal partnership shall be notified of the proceedings for liquidation. In the partition, the conjugal dwelling and the lot on which it is situated, shall be adjudicated in accordance with the provisions of Articles 102 and 129. Article 51. In said partition, the value of the presumptive legitimes of all common children, computed as of the date of the final judgment of the trial court, shall be delivered in cash, property or sound securities, unless the parties, by mutual agreement judicially approved, had already provided for such matters. The children of their guardian, or the trustee of their property, may ask for the enforcement of the judgment. The delivery of the presumptive legitimes herein prescribed shall in no way prejudice the ultimate successional rights of the children accruing upon the death of either or both of the parents; but the value of the properties already received under the decree of annulment or absolute nullity shall be considered as advances on their legitime. It is clear from Article 50 of the Family Code that Section 19(1) of the Rule applies only to marriages which are declared void ab initio or annulled by final judgment under Articles 40 and 45 of the Family Code. In short, Article 50 of the Family Code does not apply to marriages which are declared void ab initio under Article 36 of the Family Code, which should be declared void without waiting for the liquidation of the properties of the parties. Article 40 of the Family Code contemplates a situation where a second or bigamous marriage was contracted. Under Article 40, [t]he 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. Thus we ruled: x x x 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 a previous marriage void.11 Article 45 of the Family Code, on the other hand, refers to voidable marriages, meaning, marriages which are valid until they are set aside by final judgment of a competent court in an action for annulment.12 In both instances under Articles 40 and 45, the marriages are governed either by absolute community of property13 or conjugal partnership of gains14 unless the parties agree to a complete separation of property in a marriage settlement entered into before the marriage. Since the property relations of the parties is governed by absolute community of property or conjugal partnership of gains, there is a need to liquidate, partition and distribute the properties before a decree of annulment could be issued. That is not the case for annulment of marriage under Article 36 of the Family Code because the marriage is governed by the ordinary rules on co-ownership. In this case, petitioners marriage to respondent was declared void under Article 3615 of the Family Code and not under Article 40 or 45. Thus, what governs the liquidation of properties owned in common by petitioner and respondent are the rules on coownership. In Valdes, the Court ruled that the property relations of parties in a void marriage during the period of cohabitation is

governed either by Article 147 or Article 148 of the Family Code.16 The rules on co-ownership apply and the properties of the spouses should be liquidated in accordance with the Civil Code provisions on co-ownership. Under Article 496 of the Civil Code, [p]artition may be made by agreement between the parties or by judicial proceedings. x x x. It is not necessary to liquidate the properties of the spouses in the same proceeding for declaration of nullity of marriage. WHEREFORE, we AFFIRM the Decision of the trial court with the MODIFICATION that the decree of absolute nullity of the marriage shall be issued upon finality of the trial courts decision without waiting for the liquidation, partition, and distribution of the parties properties under Article 147 of the Family Code. CASE DIGEST 16: DINO vs. DINO Facts: - On 14 January 1998, Alain M. Dio (petitioner) and Ma. Caridad L. Dio (respondent) got married. - On 30 May 2001, petitioner filed an action for Declaration of Nullity of Marriage against respondent,citing psychological incapacity under Article 36 of the Family Code. - Petitioner alleged that respondent failed in her marital obligation to give love and support to him,and had abandoned her responsibility to the family, choosing instead to go on shopping sprees andgallivanting with her friends that depleted the family asset - Petitioner further alleged that respondent was not faithful, and would at times become violent andhurt him. - The trial court ruled that petitioner was able to establish respondent s psychological incapacity. In short, their marriage was declared void ab initio under Article 36 of the Family Code. Issue: Whether or not the property relations of the parties should fall under 147 of the Family Code. Held: Yes. The property relations of the parties during the period of cohabitation is governed either byArticle 147 or Article 148 of the Family Code. Article 147 of the Family Code applies to union of parties who are legally capacitated and not barred by any impediment to contract marriage, butwhose marriage is nonetheless void, such as petitioner and respondent in the case before the Court. Article 147. When a man and a woman who are capacitated to marry each other, live exclusively with each other as husband and wife without the benefit of marriage or under a void marriage,their wages and salaries shall be owned by them in equal shares and the property acquired by both of them through their work or industry shall be governed by the rules on coownership.In the absence of proof to the contrary, properties acquired while they lived together shall be presumed to have been obtained by their joint efforts, work or industry, and shall be owned by them in equal shares. For purposes of this Article, a party who did not participate in theacquisition by the other party of any property shall be deemed to have contributed jointly in theacquisition thereof if the former s efforts consisted in the care and maintenance of the family and of the household.Neither party can encumber or dispose by acts inter vivos of his or her share in the property acquired during cohabitation and owned in common, without the consent of the other, until after the termination of their cohabitation. In this case, petitioner s marriage to respondent was declared void under Article 36 of the FamilyCode and not under Article 40 or 45. Thus, what governs the liquidation of properties owned incommon by petitioner and respondent are the rules on co-ownership. 17. [G.R. No. 145226. February 06, 2004] LUCIO MORIGO y CACHO, petitioner, vs. PEOPLE OF THE PHILIPPINES, respondent. DECISION QUISUMBING, J.: This petition for review on certiorari seeks to reverse the decision[1] dated October 21, 1999 of the Court of Appeals in CAG.R. CR No. 20700, which affirmed the judgment[2] dated August

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5, 1996 of the Regional Trial Court (RTC) of Bohol, Branch 4, in Criminal Case No. 8688. The trial court found herein petitioner Lucio Morigo y Cacho guilty beyond reasonable doubt of bigamy and sentenced him to a prison term of seven (7) months of prision correccional as minimum to six (6) years and one (1) day of prision mayor as maximum. Also assailed in this petition is the resolution[3] of the appellate court, dated September 25, 2000, denying Morigos motion for reconsideration. The facts of this case, as found by the court a quo, are as follows: Appellant Lucio Morigo and Lucia Barrete were boardmates at the house of Catalina Tortor at Tagbilaran City, Province of Bohol, for a period of four (4) years (from 1974-1978). After school year 1977-78, Lucio Morigo and Lucia Barrete lost contact with each other. In 1984, Lucio Morigo was surprised to receive a card from Lucia Barrete from Singapore. The former replied and after an exchange of letters, they became sweethearts. In 1986, Lucia returned to the Philippines but left again for Canada to work there. While in Canada, they maintained constant communication. In 1990, Lucia came back to the Philippines and proposed to petition appellant to join her in Canada. Both agreed to get married, thus they were married on August 30, 1990 at the Iglesia de Filipina Nacional at Catagdaan, Pilar, Bohol. On September 8, 1990, Lucia reported back to her work in Canada leaving appellant Lucio behind. On August 19, 1991, Lucia filed with the Ontario Court (General Division) a petition for divorce against appellant which was granted by the court on January 17, 1992 and to take effect on February 17, 1992. On October 4, 1992, appellant Lucio Morigo married Maria Jececha Lumbago[4] at the Virgen sa Barangay Parish, Tagbilaran City, Bohol. On September 21, 1993, accused filed a complaint for judicial declaration of nullity of marriage in the Regional Trial Court of Bohol, docketed as Civil Case No. 6020. The complaint seek ( sic) among others, the declaration of nullity of accuseds marriage with Lucia, on the ground that no marriage ceremony actually took place. On October 19, 1993, appellant was charged with Bigamy in an Information[5] filed by the City Prosecutor of Tagbilaran [City], with the Regional Trial Court of Bohol.[6] The petitioner moved for suspension of the arraignment on the ground that the civil case for judicial nullification of his marriage with Lucia posed a prejudicial question in the bigamy case. His motion was granted, but subsequently denied upon motion for reconsideration by the prosecution. When arraigned in the bigamy case, which was docketed as Criminal Case No. 8688, herein petitioner pleaded not guilty to the charge. Trial thereafter ensued. On August 5, 1996, the RTC of Bohol handed down its judgment in Criminal Case No. 8688, as follows: WHEREFORE, foregoing premises considered, the Court finds accused Lucio Morigo y Cacho guilty beyond reasonable doubt of the crime of Bigamy and sentences him to suffer the penalty of imprisonment ranging from Seven (7) Months of Prision Correccional as minimum to Six (6) Years and One (1) Day ofPrision Mayor as maximum. SO ORDERED.[7] In convicting herein petitioner, the trial court discounted petitioners claim that his first marriage to Lucia was null and void ab initio. Following Domingo v. Court of Appeals,[8] the trial court ruled that want of a valid marriage ceremony is not a defense in a charge of bigamy. The parties to a marriage should not be allowed to assume that their marriage is void even if such be the fact but must first secure a judicial declaration of the nullity of their marriage before they can be allowed to marry again. Anent the Canadian divorce obtained by Lucia, the trial court cited Ramirez v. Gmur,[9] which held that the court of a country in which neither of the spouses is domiciled and in which one or both spouses may resort merely for the purpose of obtaining a divorce, has no jurisdiction to determine the matrimonial status of the parties. As such, a divorce granted by said court is not entitled to recognition anywhere. Debunking Lucios defense of good faith in contracting the second marriage, the trial court stressed that following People v. Bitdu,[10] everyone is presumed to know the law, and the fact that one does not know that his act constitutes a violation of the law does not exempt him from the consequences thereof. Seasonably, petitioner filed an appeal with the Court of Appeals, docketed as CA-G.R. CR No. 20700. Meanwhile, on October 23, 1997, or while CA-G.R. CR No. 20700 was pending before the appellate court, the trial court rendered a decision in Civil Case No. 6020 declaring the marriage between Lucio and Lucia void ab initio since no marriage ceremony

actually took place. No appeal was taken from this decision, which then became final and executory. On October 21, 1999, the appellate court decided CA-G.R. CR No. 20700 as follows: WHEREFORE, finding no error in the appealed decision, the same is hereby AFFIRMED in toto. SO ORDERED.[11] In affirming the assailed judgment of conviction, the appellate court stressed that the subsequent declaration of nullity of Lucios marriage to Lucia in Civil Case No. 6020 could not acquit Lucio. The reason is that what is sought to be punished by Article 349[12] of the Revised Penal Code is the act of contracting a second marriage before the first marriage had been dissolved. Hence, the CA held, the fact that the first marriage was void from the beginning is not a valid defense in a bigamy case. The Court of Appeals also pointed out that the divorce decree obtained by Lucia from the Canadian court could not be accorded validity in the Philippines, pursuant to Article 15 [13] of the Civil Code and given the fact that it is contrary to public policy in this jurisdiction. Under Article 17[14] of the Civil Code, a declaration of public policy cannot be rendered ineffectual by a judgment promulgated in a foreign jurisdiction. Petitioner moved for reconsideration of the appellate courts decision, contending that the doctrine in Mendiola v. People,[15] allows mistake upon a difficult question of law (such as the effect of a foreign divorce decree) to be a basis for good faith. On September 25, 2000, the appellate court denied the motion for lack of merit.[16] However, the denial was by a split vote. The ponente of the appellate courts original decision in CA-G.R. CR No. 20700, Justice Eugenio S. Labitoria, joined in the opinion prepared by Justice Bernardo P. Abesamis. The dissent observed that as the first marriage was validly declared void ab initio, then there was no first marriage to speak of. Since the date of the nullity retroacts to the date of the first marriage and since herein petitioner was, in the eyes of the law, never married, he cannot be convicted beyond reasonable doubt of bigamy. The present petition raises the following issues for our resolution: A. WHETHER OR NOT THE COURT OF APPEALS ERRED IN FAILING TO APPLY THE RULE THAT IN CRIMES PENALIZED UNDER THE REVISED PENAL CODE, CRIMINAL INTENT IS AN INDISPENSABLE REQUISITE. COROLLARILY, WHETHER OR NOT THE COURT OF APPEALS ERRED IN FAILING TO APPRECIATE [THE] PETITIONERS LACK OF CRIMINAL INTENT WHEN HE CONTRACTED THE SECOND MARRIAGE. B. WHETHER OR NOT THE COURT OF APPEALS ERRED IN HOLDING THAT THE RULING IN PEOPLE VS. BITDU (58 PHIL. 817) IS APPLICABLE TO THE CASE AT BAR. C. WHETHER OR NOT THE COURT OF APPEALS ERRED IN FAILING TO APPLY THE RULE THAT EACH AND EVERY CIRCUMSTANCE FAVORING THE INNOCENCE OF THE ACCUSED MUST BE TAKEN INTO ACCOUNT.[17] To our mind, the primordial issue should be whether or not petitioner committed bigamy and if so, whether his defense of good faith is valid. The petitioner submits that he should not be faulted for relying in good faith upon the divorce decree of the Ontario court. He highlights the fact that he contracted the second marriage openly and publicly, which a person intent upon bigamy would not be doing. The petitioner further argues that his lack of criminal intent is material to a conviction or acquittal in the instant case. The crime of bigamy, just like other felonies punished under the Revised Penal Code, is mala in se, and hence, good faith and lack of criminal intent are allowed as a complete defense. He stresses that there is a difference between the intent to commit the crime and the intent to perpetrate the act. Hence, it does not necessarily follow that his intention to contract a second marriage is tantamount to an intent to commit bigamy. For the respondent, the Office of the Solicitor General (OSG) submits that good faith in the instant case is a convenient but flimsy excuse. The Solicitor General relies upon our ruling in Marbella-Bobis v. Bobis,[18] which held that bigamy can be successfully prosecuted provided all the elements concur, stressing that under Article 40[19] of the Family Code, a judicial declaration of nullity is a must before a party may re-marry. Whether or not the petitioner was aware of said Article 40 is of no account as everyone is presumed to know the law. The OSG counters that petitioners contention that he was in good faith because he relied on the divorce decree of the Ontario court is negated by his act of filing Civil Case No. 6020, seeking a judicial declaration of nullity of his marriage to Lucia. Before we delve into petitioners defense of good faith and lack of criminal intent, we must first determine whether all the elements

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of bigamy are present in this case. In Marbella-Bobis v. Bobis,[20] we laid down the elements of bigamy thus: (1) the offender has been legally married; (2) the first marriage has not been legally dissolved, or in case his or her spouse is absent, the absent spouse has not been judicially declared presumptively dead; (3) he contracts a subsequent marriage; and (4) the subsequent marriage would have been valid had it not been for the existence of the first. Applying the foregoing test to the instant case, we note that during the pendency of CA-G.R. CR No. 20700, the RTC of Bohol Branch 1, handed down the following decision in Civil Case No. 6020, to wit: WHEREFORE, premises considered, judgment is hereby rendered decreeing the annulment of the marriage entered into by petitioner Lucio Morigo and Lucia Barrete on August 23, 1990 in Pilar, Bohol and further directing the Local Civil Registrar of Pilar, Bohol to effect the cancellation of the marriage contract. SO ORDERED.[21] The trial court found that there was no actual marriage ceremony performed between Lucio and Lucia by a solemnizing officer. Instead, what transpired was a mere signing of the marriage contract by the two, without the presence of a solemnizing officer. The trial court thus held that the marriage is void ab initio, in accordance with Articles 3[22] and 4[23] of the Family Code. As the dissenting opinion in CA-G.R. CR No. 20700, correctly puts it, This simply means that there was no marriage to begin with; and that such declaration of nullity retroacts to the date of the first marriage. In other words, for all intents and purposes, reckoned from the date of the declaration of the first marriage as void ab initio to the date of the celebration of the first marriage, the accused was, under the eyes of the law, never married.[24] The records show that no appeal was taken from the decision of the trial court in Civil Case No. 6020, hence, the decision had long become final and executory. The first element of bigamy as a crime requires that the accused must have been legally married. But in this case, legally speaking, the petitioner was never married to Lucia Barrete. Thus, there is no first marriage to speak of. Under the principle of retroactivity of a marriage being declared void ab initio, the two were never married from the beginning. The contract of marriage is null; it bears no legal effect. Taking this argument to its logical conclusion, for legal purposes, petitioner was not married to Lucia at the time he contracted the marriage with Maria Jececha. The existence and the validity of the first marriage being an essential element of the crime of bigamy, it is but logical that a conviction for said offense cannot be sustained where there is no first marriage to speak of. The petitioner, must, perforce be acquitted of the instant charge. The present case is analogous to, but must be distinguished from Mercado v. Tan.[25] In the latter case, the judicial declaration of nullity of the first marriage was likewise obtained after the second marriage was already celebrated. We held therein that: A judicial declaration of nullity of a previous marriage is necessary before a subsequent one can be legally contracted. One who enters into a subsequent marriage without first obtaining such judicial declaration is guilty of bigamy. This principle applies even if the earlier union is characterized by statutes as void.[26] It bears stressing though that in Mercado, the first marriage was actually solemnized not just once, but twice: first before a judge where a marriage certificate was duly issued and then again six months later before a priest in religious rites. Ostensibly, at least, the first marriage appeared to have transpired, although later declared void ab initio. In the instant case, however, no marriage ceremony at all was performed by a duly authorized solemnizing officer. Petitioner and Lucia Barrete merely signed a marriage contract on their own. The mere private act of signing a marriage contract bears no semblance to a valid marriage and thus, needs no judicial declaration of nullity. Such act alone, without more, cannot be deemed to constitute an ostensibly valid marriage for which petitioner might be held liable for bigamy unless he first secures a judicial declaration of nullity before he contracts a subsequent marriage. The law abhors an injustice and the Court is mandated to liberally construe a penal statute in favor of an accused and weigh every circumstance in favor of the presumption of innocence to ensure that justice is done. Under the circumstances of the present case, we held that petitioner has not committed bigamy. Further, we also find that we need not tarry on the issue of the validity of his defense of good faith or lack of criminal intent, which is now moot and academic. WHEREFORE, the instant petition is GRANTED. The assailed decision, dated October 21, 1999 of the Court of Appeals in CA-

G.R. CR No. 20700, as well as the resolution of the appellate court dated September 25, 2000, denying herein petitioners motion for reconsideration, is REVERSED and SET ASIDE. The petitioner Lucio Morigo y Cacho is ACQUITTED from the charge of BIGAMY on the ground that his guilt has not been proven with moral certainty. CASE DIDEST 17: Morigo vs. People GR No. 145226, February 6, 2004 FACTS: Lucio Morigo and Lucia Barrete were boardmates in Bohol. They lost contacts for a while but after receiving a card from Barrete and various exchanges of letters, they became sweethearts. They got married in 1990. Barrete went back to Canada for work and in 1991 she filed petition for divorce in Ontario Canada, which was granted. In 1992, Morigo married Lumbago. He subsequently filed a complaint for judicial declaration of nullity on the ground that there was no marriage ceremony. Morigo was then charged with bigamy and moved for a suspension of arraignment since the civil case pending posed a prejudicial question in the bigamy case. Morigo pleaded not guilty claiming that his marriage with Barrete was void ab initio. Petitioner contented he contracted second marriage in good faith. ISSUE: Whether Morigo must have filed declaration for the nullity of his marriage with Barrete before his second marriage in order to be free from the bigamy case. HELD: Morigos marriage with Barrete is void ab initio considering that there was no actual marriage ceremony performed between them by a solemnizing officer instead they just merely signed a marriage contract. The petitioner does not need to file declaration of the nullity of his marriage when he contracted his second marriage with Lumbago. Hence, he did not commit bigamy and is acquitted in the case filed.

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