G.R. No.

102692 September 23, 1996

JOHNSON & JOHNSON (PHILS.), INC., petitioner,
vs.
COURT OF APPEALS and ALEJO M. VINLUAN, respondents.
PANGANIBAN, J.:
May a husband be held liable for the debts of his wife which
were incurred without his consent and which did not benefit
the conjugal partnership? May a judgment declaring a wife
solely liable, be executed uponconjugal property, over the
objection of the husband?
These are the main questions raised in the instant petition
for review on certiorari under Rule 45 of the Rules of Court
which seeks nullification of the Decision 1 in CA-G.R. SP No.
19178 of the Court of Appeals, 2 the dispositive portion of
which reads:
WHEREFORE, in view of all the foregoing, the instant
petition is hereby GRANTED, and the orders dated
July 24, 1989 and October 4, 1989 of the Regional
Trial Court of Makati, Branch 137, in Civil Case No.
4186, as well as the notices of levy issued by the
Provincial Sheriff of Rizal dated February 8, 1989, are
hereby declared null and void and set aside. No
costs.
The Facts
This case was initiated in the trial court by a
complaint 3 filed by petitioner against spouses Delilah A.
Vinluan, owner of Vinluan Enterprises, and her husband
Capt. Alejo M. Vinluan (the private respondent before us), for
collection of a sum of money with damages, which was
docketed as Civil Case No. 4186 and tried in the Regional
Trial Court of Makati, Branch 137. 4 The respondent
appellate Court found the antecedent facts, to be as
follows: 5

The plaintiff-respondent Johnson & Johnson (Phils.),

Incorporated (hereinafter referred to as the
corporation) is engaged in the manufacturing and
selling of various cosmetics, health, and body care
products, as well as medical drugs. On several
occasions in the year 1982, the defendant, Delilah
Vinluan, purchased products of the plaintiffrespondent corporation, as she was also engaged in
the business of retailing Johnson products, among
others. The defendants, under the name and style of
"Vinluan Enterprises," thus incurred an obligation of
Two Hundred Thirty-Five Thousand Eight Hundred
Eighty
Pesos
and
Eighty-Nine
(P235,880.89)
Centavos, for which she issued seven (7) Philippine
Banking Corporation checks of varying amounts and
due dates. When presented on their respective due
dates, however, the checks given in payment of the
obligation bounced and were dishonored for having
been drawn against insufficient funds.
Several demands thereafter for payment were to no
avail, despite the accommodations given by the
plaintiff-respondent corporation by granting several
extensions to the defendant spouses to settle the
obligation. It was only on January 5, 1983 that the
defendants made a partial payment of Five Thousand
(P5,000.00) Pesos, thereby reducing their principal
obligation to P230,880.89. When no further
payments were made to settle the obligation despite
repeated
demands,
the
plaintiff-respondent
corporation was constrained to file a complaint
(Annex "A") on June 8, 1983 against defendant
spouses Vinluan, for collection of the principal
obligation plus interest, with damages. Filed before
the respondent Regional Trial Court of Makati, Branch
137, it was docketed as Civil Case No. 4186.
After trial on the merits, on February 5, 1985, the
respondent court rendered its Decision (Annex "C"),
the dispositive portion of which reads:

WHEREFORE,
judgment
is
hereby rendered sentencing the
defendant DELILAH A. VINLUAN
to pay plaintiff Johnson &
Johnson (Phils.), Inc, the sum of
P242,482.40 with interest and
penalty charges at the rate of
2% per month from 30 January
1983 until fully paid, and the
sum
of
P30,000.00
as
attorney's fees, and to pay the
costs.
Defendants' counterclaim is
hereby dismissed for lack of
sufficient merit.
In arriving at the sole liability of defendant Delilah A.
Vinluan, the trial court found after "meticulous scrutiny and
careful evaluation of the evidence on record" that there was
"no privity of contract, whether direct or indirect, between
plaintiff and defendant-husband regarding the obligations
incurred by defendant-wife." According to the trial court,
"(i)n fact, the acts performed, and the statements made, by
defendant-husband, and from which plaintiff derived the
notion that said defendant is a co-owner of VINLUAN
ENTERPRISES, took place after the obligation involved in this
action had been incurred or contracted by the defendantwife, albeit without the husband's knowledge or consent, as
there was no allegation in the complaint that said
obligations were incurred by defendant-wife with her
husband's consent, or that it was incurred for the benefit of
the family. . . ." 6
The trial court also found that private respondent never
intimated in his conversations or meetings with, or in any of
his letters to, petitioner that "he was a co-owner of VINLUAN
ENTERPRISES, much less did he represent himself as such
co-owner, to the plaintiff and to plaintiff's counsel . . . ."
When private respondent personally negotiated with

petitioner and proposed a settlement of the subject

obligations, these actuations were not to be considered as
admission of co-ownership of VINLUAN ENTERPRISES for
"(a)fter all, common sense and our inborn mores of conduct
dictate that a husband must give aid and comfort to his
distressed wife." 7 The trial court further held that the
defendant spouses had sufficiently established that the
defendant wife was sole owner of the business venture, that
the conjugal partnership never derived any benefit
therefrom, and that the same closed due to continued
losses. In sum, the court a quo held that private respondent
could not legally be held liable for the obligations contracted
by the wife.
Thus, the court below issued a writ of execution 8 on
February 3, 1989, directing the Provincial Sheriff of Rizal to
execute
the
judgment
on
the properties of the defendant-wife. However, the two
notices of levy on execution 9 issued on February 8, 1989
covered not only her exclusive or paraphernal properties,
but also the real and personal properties of the conjugal
partnership of the spouses Vinluan. The next day, her
husband (herein private respondent) filed a third-party
claim 10seeking the lifting of the levy on the conjugal
properties, followed by another third-party claim reiterating
the same demand with threat of possible lawsuit.
Subsequently, petitioner corporation filed a motion dated
February 14, 1989 asking the court to fix the value of the
properties levied upon by the sheriff. In response to the
third-party claims of private respondent, a comment and/or
opposition dated March 6, 1989 was filed by petitioner.
Private respondent moved on July 1, 1989 to quash the levy
on execution on the ground that the notices of levy on
execution did not conform to the final decision of the court
and to the writ of execution. As expected, petitioner
opposed the motion. On July 24, 1989, the trial court issued
the first assailed Order fixing the value of the levied
personal properties at P300,000.00, and denying the thirdparty claim and the motion to quash the levy on execution.

Citing the last sentence of Article 117

the court a quo ruled that: 12

11

of the Civil Code,

Art. 122 of the Family Code which party provides that

Since Alejo Vinluan did not seek the intervention of

the Court to air his objections in his wife's engaging
in business, coupled by the fact that he made several
representations for the settlement of his wife's
account, Alejo Vinluan's consent thereto became
evident. As such, even his own capital may be liable,
together with the conjugal and paraphernal property
(I Paras 363, 1987 ed., p. 6; Art. 6-10, Code of
Commerce). Withal, Article 172 of the New Civil Code
categorically declares that

Art. 122. The payment of personal

debts contracted by the husband or
the wife before or during the marriage
shall not be charged to the conjugal
partnership except insofar as they
redounded to the benefit of the family.

The wife cannot bind the

conjugal partnership without
the husband's consent, except
in the cases provided by law.
Granting arguendo that Alejo Vinluan did not give his
consent, expressly or impliedly, the paraphernal and
conjugal property may still be held liable but not his
capital (I Paras 363, 1978 ed.).
Petitioner's motion for reconsideration of the abovequoted
first order (on the ground that it directly contravened the
decision itself which had already become final and
executory) was denied via the second contested Order
dated October 4, 1989, where the trial court ruled: 13
The Court finds untenable movant-defendant's
assertion that Art. 172 of the New Civil Code is not in
point. The consent of the husband is indeed vital in
determining what properties shall be subsidiarily
liable in the event the paraphernal properties of
Delilah Vinluan should turn out to be insufficient to
cover the judgment debt, as fully explained in the
Order dated 24 July 1989.

xxx xxx xxx

is not applicable in that
This Code (Family Code) shall
have retroactive effect insofar
as it does not prejudice or
impair vested or acquired rights
in
accordance
with
the
Civil Code or other laws (Art.
255, Family Code; emphasis
supplied).
Plaintiff (petitioner herein), having acquired a vested
right prior to the effectivity of the Family Code, said
code
is
not a
propos (sic).
Even
granting arguendo that the same is befitting, movant
defendant failed to realize that although Delilah
Vinluan suffered losses in her legitimate business,
the experience she has gained redounded to the
benefit of the family, and as such, the conjugal
partnership must bear the indebtedness and losses (I
Paras 464, 1981 ed.). Moreover, had the business
Delilah Vinluan engaged in been a success, all profits
would have been considered conjugal; it is therefore
but fair that the risks of the business should be borne
by the conjugal partnership (Miravite, Bar Review
Materials in Commercial Law, 1986 ed., p. 89; J.N.
Nolledo, Commercial Law Reviewer, 1986 ed., pp. 6,
7; U.P. Law Complex, Answers to Bar Questions In

Commercial Law, 1986 ed., pp. 174, 175; Vitug,

Commercial Law Reviewer, 1984, ed., p. 5).
There is a wide-embracing oversight when movantdefendant asserted that to hold the conjugal
partnership property liable for the indebtedness
incurred solely by his wife would in effect modify the
Decision dated 5 Feb 1985 which is now final and
executory. As afore-discussed, the conjugal property
is subsidiarily liable.
As indicated above, the private respondent elevated the
matter to the respondent appellate Court, charging the trial
court with grave abuse of discretion for effectively reversing
its own final judgment. The respondent Court upheld the
private respondent in its now-assailed Decision, and denied
herein petitioner's subsequent motion for reconsideration.
Thus, petitioner is now before us seeking review under Rule
45.
The Issues
Petitioner raised the following "issues
consideration of this Court, to wit: 14

of

law"

for

1. Whether or not the decision of the honorable trial

court dated February 5, 1985 exonerating (sic)
defendant husband, private respondent herein, from
the obligation contracted by the wife in the pursuit of
her business also absolves the conjugal partnership
from liability.
2. Whether or not the subsequent order of the
honorable trial court dated July 24, 1989 and October
4, 1989 is a reversal of its own original decision as
found out by the honorable public respondent.
The pivotal issues in this case may be re-stated thus:
whether or not the order of the trial court denying private
respondent's third-party claim and motion to quash levy on

execution in effect amended the dispositive portion of the

trial court's decision which had long become final and
executory, and if so, whether same is proper or not. These
issues shall be ruled upon together.
The Court's Ruling
Petitioner contends 15 that the purpose of impleading private
respondent as co-defendant in petitioner's complaint was to
bind not only the defendant-spouses' conjugal partnership
but also private respondent's capital. The trial court resolved
that it was not necessary that private respondent (as
husband) be joined as party-defendant in the suit below.
Inasmuch as it appeared from the allegations in the
complaint that private respondent may be a co-owner of
Vinluan Enterprises, the trial court nonetheless did not
exclude private respondent but passed upon the issue of
such co-ownership to determine whether he may be held
liable in the same manner as his wife. Petitioner insists that
the trial court in its decision merely made a finding that the
private respondent husband was not a co-owner of the
business
venture
of
his
wife,
which
conclusion
("exoneration") only exempted his capital from the adjudged
liability, but not the conjugal properties of the spouses.
Petitioner further argues that nowhere in the trial court's
decision can there be found any pronouncement absolving
the conjugal property from liability, contrary to the findings
of the respondent Court.
Also, petitioner reasons that the enforcement of the decision
against the conjugal property is merely compliance with law,
and that this Court in a long line of cases 16 held that a
judgment is not confined to what appears upon the face of
the decision but also those necessarily included therein or
necessary thereto. 17Additionally, petitioner pleads that the
trial court's order did not modify its final and executory
decision but only clarified an ambiguity in the decision as to
what properties are liable. As authority, it cites Republic
vs. De los Angeles. 18

Petitioner's contentions are devoid of merit.

Respondent Court correctly ruled that the trial court cannot,
in the guise of deciding the third-party claim, reverse its
final decision. Commenting on the trial court's very patent
"about-face" on the issues of consent of the husband,
benefit to the family, and the husband's liability for
obligations contracted by his wife, the appellate Court held,
and we quote: 19
We see in these stark contradictions an attempt by
the respondent Court to reverse itself, even when the
decision sought to be executed had already become
final. The respondent Court has no authority to
modify or vary the terms and conditions of a final
and executory judgment (Vda. de Nabong vs.
Sadang, 167 SCRA 232) and this attempt to thwart
the rules cannot be allowed to pass. Even if the
respondent Court feels that it needed to reverse its
findings to correct itself, the decision, whether
erroneous or not, has become the law of the case
between the parties upon attaining finality (Balais vs.
Balais, 159 SCRA 37). the respondent Court has no
choice but to order the execution of the final decision
according to what is ordained and decreed in the
dispositive portion of the decision (National Steel
Corp. vs. NLRC, 165 SCRA 452).
The dispositive portion of the decision charges the
defendant Delilah Vinluan alone to pay the plaintiff
corporation, having already declared that the
defendant-husband cannot be held legally liable for
his wife's obligations. Perhaps, when it was later
discovered that the defendant Delilah Vinluan did not
have sufficient property of her own to settle the
obligation, the conjugal properties of the defendantspouses became the object of the levy. But in order
to bind the conjugal partnership and its properties,
the New Civil Code provides that the debts and
obligations contracted by the husband (or the wife)

must be for the benefit of the conjugal partnership

(Article 161, par. 1); and that the husband must
consent to his wife's engaging in business (Article
117).
Thus, we see a belated effort on the part of the
respondent Court to reverse itself by declaring that
the obligations incurred by the defendant wife
redounded to the benefit of the family and that the
defendant husband had given his consent, in order to
bind the conjugal partnership.
As We stated earlier, this cannot be done because
the decision, along with the respondent Court's
original findings, had already become final and
indisputable. The respondent Court already found
that the defendant husband did not give his consent;
neither did the obligation incurred by the defendant
wife redound to the benefit of the family. Hence, the
conjugal partnership, as well as the defendant
husband, cannot be held liable. As originally decreed
by the Court, only the defendant wife and her
paraphernal property can be held liable. Since the
power of the court in execution of judgments extends
only to properties unquestionably belonging to the
judgment debtor alone (Republic vs. Enriquez, 166
SCRA 608), the conjugal properties and the capital of
the defendant husband cannot be levied upon.
The settled rule is that a judgment which has acquired
finality becomes immutable and unalterable, and hence may
no longer be modified in any respect except only to correct
clerical errors or mistakes all the issues between the
parties being deemed resolved and laid to rest. 20 This is
meant to preserve the stability of decisions rendered by the
courts, and to dissuade parties from trifling with court
processes. One who has submitted his case to a regular
court necessarily commits himself to abide by whatever
decision the court may render. Any error in the decision
which has not been considered in a timely motion for

reconsideration or appeal cannot be impugned when such

error becomes apparent only during execution. This rule
applies with more force in the case of to decision judge who
has limited prerogative during execution of the judgment.
For as correctly held by herein public respondent, aside from
ordering the enforcement of the dispositive portion of the
decision, the trial judge can do nothing about the errors in
the ratiocination of the decision or even alter the dispositive
portion by mere order issued subsequent to the finality of
the decision. The issue having been laid to rest, the court
cannot on the pretext of determining the validity of the
third-party claim and the motion to quash levy on execution
alter the scope of the dispositive portion of the decision
sought to be implemented.
Petitioner's arguments notwithstanding, the trial court's
order cannot be said to be merely clarificatory in nature.
There is no ambiguity at all in the decision, for it
categorically declared defendant Delilah A. Vinluan solely
liable, without any recourse provided against her husband.
Thus, the case of Republic vs. Delos Angeles, 21 holding
that doubtful or ambiguous judgments are to have a
reasonable intendment to do justice and avoid wrong, does
not apply here. as was later held in Filinvest Credit
Corporation vs. Court of Appeals, 22 "(w)here there is
an ambiguity, a judgment shall be read in connection with
the entire record and construed accordingly. In such a case,
it is proper to consider the pleadings and the evidence."
(Emphasis supplied). But the text of the trial court's decision
points to no other person liable but Delilah Vinluan, and in
fact made a rather lengthy discussion on the exemption
from liability of the conjugal partnership; hence, there can
be no ambiguity to speak of in the decision. And even more
clearly, the body of the decision of the trial court expressly
exempted private respondent from liability by categorically
ruling that "the defendant-husband cannot, together, with
co-defendant, legally be held liable for the obligations
contracted by the wife." 23 Further, the trial court
expounded: 24

. . . . What is more, it is an admitted fact that the

subject obligations had partially been paid by the
defendant-wife herself. Thus, plaintiff implicitly
averred that "defendant Delilah Vinluan, ding
business under the name and style of VINLUAN
ENTERPRISES is one of the various customers of the
plaintiff's products' (Cf. p. 1, Plaintiff's Pre-Trial Brief);
that "Delilah Vinluan . . . purchased different Johnson
products . . . , thus incurring an obligation of
P235,880.89" (Cf. par. III, Complaint); that "defendant
Delilah Vinluan tried to pay (her) obligations . . .
when she issued Philippine Banking Checks . . . , but
which checks upon presentment to the Bank were
dishonored for the reason "Drawn Against Insufficient
Funds" (Cf. par. V, id.); that " . . . , defendant Delilah
A. Vinluan appealed to the company and also
represented that she be given an opportunity to
settle the accountability" (Cf. par. VI, id.); that
"defendant sent a letter to the company where she
alleged that payment cannot be made because they
are "victims of some bad practices in the trade and
that they are working on some means to settle their
accounts and all that they ask is time to settle." (Cf.
par. VI, id.).
We take this occasion to reiterate the ruling of this Court in
an
early
case 25 that litigations must end and terminate sometime
and somewhere, it being essential to the effective and
efficient administration of justice that once a judgment has
become final, the winning party be not, through a mere
subterfuge, deprived of the fruits of the verdict. Hence,
courts must guard against any scheme calculated to bring
about that result, for, constituted as they are to put an end
to controversies, courts should frown upon any attempt to
prolong them. Furthermore, public policy and sound practice
demand that at the risk of occasional errors, judgments of
courts should become final and irrevocable at some definite
date fixed by law. And this is better observed if the court
executing the judgment would refrain from creating further

controversy by effectively modifying and altering the

dispositive portion of the decision, thus further delaying the
satisfaction of the judgment. No matter how just the
intention of the trial court, it cannot legally reverse what has
already been settled. Holding the conjugal partnership liable
in the order after the finality of the decision is evidently not
just correcting a mere clerical error; it goes into the merits
of the case. And this is prohibited by the rules and
jurisprudence.
We have elsewhere ruled that "should judgment of lower
courts which may normally be subject to review by higher
tribunals become final and executory before, or without,
exhaustion of all recourse of appeal, they, too, become
inviolable, impervious to modification. They may, then, no
longer be reviewed, or in any way modified directly or
indirectly, by a higher court, not even by the Supreme
Court, much less by any other official, branch or department
of Government." 26
. . . (N)othing is more settled in the law than that
when a final judgment becomes executory, it thereby
becomes immutable and unalterable. The judgment
may no longer be modified in any respect, even if the
modification is meant to correct what is perceived to
be an erroneous conclusion of fact or law, and
regardless of whether the modification is attempted
to be made by the Court rendering it or by the
highest Court of land. They only recognized
exceptions are the correction of clerical errors or the
making of so-called nunc pro tuncentries which
cause no prejudice to any party, and, of course,
where the judgment is void.
Furthermore, "(a)ny amendment or alteration which
substantially affects a final and executory judgment
is null and void for lack of jurisdiction, including the
entire proceedings held for that purpose." 27

The respondent Court also commented on the sheriff's

actuations as follows: 28
Furthermore, it is the duty of the sheriff to ensure
that only that portion of the decision ordained and
decreed in the dispositive part should be the subject
of the execution (Cunanan vs. Cruz, 167 SCRA 674).
The writ of execution itself states that only the
properties of the defendant wife were to be levied
upon. There was no mention even of conjugal
properties. Hence, in levying on the properties that
did not exclusively belong to the judgment debtor,
the notices of levy failed to conform to the decree of
the decision, and are, therefore, irregular and
contrary to the Rules (Canlas vs. CA, 164 SCRA 160).
It is a rule firmly established in our jurisprudence that a
sheriff is not authorized to attach or levy on property not
belonging to the judgment debtor. 29 A sheriff even incurs
liability if he wrongfully levies upon the property of a third
person. 30 A sheriff has no authority to attach the property of
any person under execution except that of the judgment
debtor. The sheriff maybe liable for enforcing execution on
property belonging to a third party. 31 If he does so, the writ
of execution affords him no justification, for the action is not
in obedience to the mandate of the writ.
WHEREFORE, in view of the foregoing considerations, the
herein petition is hereby DENIED, and the Decision of the
respondent Court is AFFIRMED. Costs against petitioner.
SO ORDERED.

G.R. No. L-32906

December 29, 1930

ADORACION ROSALES DE ECHAUS, ET AL., plaintiffs-appellees,

vs.
MARIA GAN, ETC., ET AL., defendants-appellants.
STREET, J.:
This action was instituted in the Court of First Instance of
Occidental Negros by Adoracion Rosales de Echaus, assisted by her
husband Enrique Echaus, for the purpose of obtaining a judicial
order requiring the defendant Maria Gan, as administratrix of the
estate of her deceased husband, Manuel Gay Yulingco, as well as
the heirs of said decedent, to execute in due form a contract, with
appropriate description of the real property involved, in conformity
with the terms of an agreement dated September 3, 1927,
executed by the deceased Manuel Gay Yulingco, in life, and Enrique
Echaus, one of the plaintiffs in the case (Exhibit A ). To this action
the defendants interposed a general answer and cross-complaint,
in the latter of which they sought a decree annulling the contract
Exhibit A as excessively onerous and illegal. Upon hearing the
cause the trial court absolved the plaintiffs from the crosscomplaint and gave judgment in favor of the plaintiffs upon the
complaint, requiring the defendants, within thirty days from the
date of the finality of the decision, to execute before a notary public
and deliver to the plaintiffs a contract similar in terms to that
indicated in the Exhibit A but containing, in addition, a description
of the real property involved, in such form as would enable the
plaintiffs to procure said contract to be inscribed on the certificate
of title corresponding to said property, with costs against the
defendants. From this judgment the defendants appealed.
The deceased Manuel Gay Yulingco was, in life, the owner of
two haciendas located in the Province of Occidental Negros and
known as the Haciendas San Jose (or Maragandang) and Alak, of a
value of possibly P300,000. In the year 1926, in view of certain

obligations and encumbrances on the property, and as a result of

the bad crop of the preceding year, Yulingco found himself in a
precarious financial condition; and so pressing were his needs that
he actually thought his whole estate was about to be involved in
ruin. With a view to finding some solution to his difficulties he came
to Manila and solicited help in various quarters, but was unable to
get the desired assistance. He then applied to Enrique Echaus, a
resident of Hinigaran, Occidental Negros, and Echaus agreed to
assist him without requiring immediate compensation. In order to
facilitate the efforts of Echaus, Yulingco executed a power of
attorney giving Echaus authority to act in Yulingco's behalf.
Pursuant to this engagement Echaus undertook the management of
the hacienda and by his exertions not only effected necessary
adjustments with Yulingco's creditors, but by the proper
superintendence of the two haciendas succeeded in raising their
output in successive years from nine to twelve, and from twelve to
fifteen thousand piculs of centrifugal sugar. By this means Yulingco
found himself rescued from what he considered the verge of ruin;
and when the pressing danger was over, on September 3, 1927, he
executed the contract (Exhibit A ), which in the part material here
to be considered is as follows:
Know all men by these presents:
That whereas D. Enrique Echaus has heretofore rendered
me services of such value that without them I should have
become completely bankrupt; and,
Whereas hitherto I have had no opportunity of paying him
duly for those services, but I do not wish them to pass
without recompense, though, on the other hand, I have not
at present money sufficient to compensate him worthily for
said services; and,
Whereas I have agreed with D. Enrique Echaus upon the
manner of such compensation, which, it has been stipulated,
shall be paid to Da. Adoracion Rosales, the wife of said C.
Enrique Echaus:
Now therefore, I, Manuel Gay Yulingco, . . . do hereby
encumber all the sugar produced in my hereinbelow
described plantations for fourteen consecutive years
counted from the harvest season of 1927-1928, to answer
for the payment of half a peso, Philippine Currency (P0.50)
on each picul of sugar produced by my aforesaid

plantations, to the order of Da. Adoracion Rosales de

Echaus, her heirs and assigns, no matter who may be
working and exploiting such plantations, it being understood
that this encumbrance shall be enforceable against my
share of the sugar produced.

This contract evidently contemplates the creation of a real charge

upon the land comprising the two haciendas included in the
contract; but the land itself is covered by Torens certificates of title,
while the description given is imperfect and insufficient for
purposes of annotation on said certificates. It was accordingly
intended by the contracting parties that another document would
have to be executed for the purpose of making the agreement fully
effective; and to this end Yulingco obligated himself to execute later
a document with a more detailed description in conformity with the
Torrens certificates. It was for the purpose of giving effect to this
stipulation, and in order to enable the plaintiffs to have the contract
noted on the certificates that the present action was instituted.
We are unable to discover any valid reason why the defendants, as
successors to the deceased Manuel Gay Yulingco, should not be
required to perform this obligation; and we are of the opinion that
the trial court committed no error in making the proper decree in
favor of the plaintiffs.
The contract in question, Exhibit A, on which this action is based,
was executed by Manuel Gay Yulingco and Enrique Echaus, and
although the contract binds Yulingco to pay to Adoracion Rosales de
Echaus, the wife of Enrique Echaus, the sum of fifty centavos for
each picul of sugar that may be produced upon the
two haciendascovered by the contract during the fourteen years
beginning with the crop for 1927-1928, nevertheless this action is
not instituted by the nominal beneficiary, Adoracion Rosales de
Echaus, directly for the purpose of obtaining the benefit which said
contract purports to confer upon her. The purpose of the action is
to compel the defendants to execute a contract pursuant to the
tenor of the contract Exhibit A, but containing an adequate
description of the property contained in the two haciendas, for the
purpose of enabling Echaus to procure the annotation of said
contract on the Torrens certificates of title. It is therefore evident
that, technically speaking, the proper person to bring this action is
Enrique Echaus, the person with whom the contract was made by
Yulingco. It is, nevertheless, equally obvious that the wife of

Enrique Echaus is a party in interest, and she is certainly a proper,

if not an entirely necessary party to the action. It result that there is
really no improper joinder of parties plaintiff.
With respect to the merits of the case it is suggested that the
agreement in Exhibit A is excessively onerous to the defendants, to
extend of being what is denominated in the civil law a leonine
contract; and it is argued that the contract is for that reason
immoral and illegal. In this view we are unable to concur. That the
contract was, under the circumstances, imprudent is undeniable;
and that it is bound to operate with no little hardship upon the
estate of the deceased can readily be believed, in the light of the
present depression in the price of sugar. But that valuable services
were rendered to Yulingco by Echaus is undeniable, and there is no
room for any suggestion of fraud or bad faith on the part of the
latter. The circumstance that the contract may have been the result
of an exaggerated sense of gratitude on the part of Yulingco and
the further circumstance that he may have conferred a greater
benefit on Echaus that had been really earned, do not supply a
ground for annulling the agreement. It was contemplated by both
parties from the inception of the service that in the end Echaus
should be adequately compensated; and in support of the
agreement is the fact that it was not made at a time when
Yulingco's necessities were urgent. On the contrary it was made
after relief had been obtained, and after Echaus had had time fully
to reflect the value of the services rendered. According to the
testimony of the attorney who drew up the agreement, as well as
that of Du Juaco, a confidential friend of Yulingco, the agreement
was made while Yulingco was in full use of his mental faculties and
without undue pressure exerted upon him from any source. The
agreement undoubtedly expresses his true intention and purpose
at the time it was made. Under these circumstances, as the trial
judge observed, it is not incumbent upon the court to modify or
nullify the agreement with the result of frustrating the will of the
contracting parties.
The agreement is further criticized by the appellants as invalid in
various aspects, in relation with the provisions of law relating to
agency, donations, and stipulations for the benefit of third persons.
We are of the opinion, however, that the true nature of the
agreement is more readily obvious in the light of the fact that the
services rendered by Enrique Echaus, which constitute the
consideration for this contract, were rendered by him during his
marriage to his wife, Adoracion Rosales, and the compensation
derived from those services naturally pertains to the conjugal

estate. The circumstance that, by the contract Exhibit A, the

compensation earned by Echaus is made payable to his wife does
not deprive said compensation of its character as conjugal property.
It is true that the appellants rely upon article 1402 of the Civil Code
as indicating that the payments to be made under this contract to
the wife are her separate property. But this view is not borne out by
the language of said article which declares that, if a credit belongs
to one of the spouses, i. e., is separate property of one of the
spouses, any instalments paid from time to time upon said credit
shall not be partnership property. The article has no application to
the case where the credit itself is partnership property. It being thus
evident that the money payable under the agreement Exhibit A is
of a ganancial nature, the fact that it is made payable to the wife
instead of the husband is immaterial. In conclusion we may add
that if it be supposed that the second paragraph of article 1257 of
the Civil Code is applicable to the case, the right of the plaintiffs to
maintain this action is supported by the doctrine of
Kauffman vs. National Bank (42 Phil., 182).lawphi1>net
From whatever point of view the situation be considered, we are of
the opinion that no error was made in the appealed judgment, and
the same is therefore affirmed. So ordered, with costs against the
appellants.

[G.R. No. L-28771. March 31, 1971.]

CORNELIA MATABUENA, Plaintiff-Appellant, v. PETRONILA
CERVANTES, Defendant-Appellee.
SYLLABUS
1. CIVIL LAW; PROPERTY RELATIONS BETWEEN HUSBAND AND
WIFE; DONATIONS BY REASON OF MARRIAGE; PROHIBITION
AGAINST DONATION BETWEEN SPOUSES DURING MARRIAGE;
APPLICABLE TO COMMON LAW RELATIONSHIP. While Art. 133 of
the Civil Code considers as void a "donation between the spouses

during the marriage", policy considerations of the most exigent

character as well as the dictates of morality require that the same
prohibition should apply to a common-law relationship. A 1954
Court of Appeals decision Buenaventura v. Bautista, (50 O.G. 3679)
interpreting a similar provision of the old Civil Code speaks
unequivocally. If the policy of the law is, in the language of the
opinion of the then Justice J.B.L. Reyes of that Court, "to prohibit
donations in favor of the other consort and his descendants
because of fear of undue and improper pressure and influence upon
the donor, a prejudice deeply rooted in our ancient law; porque no
se engaen despojandose el uno al otro por amor que han de
consuno, [according to] the Partidas (Part. IV, Tit. Xl, LAW IV),
reiterating the rationale Ne mutuato amore invicem spoliarentur
of the Pandects (Bk 24, Tit. I, De donat, inter virum et uxorem);
then there is every reason to apply the same prohibitive policy to
persons living together as husband and wife without benefit of
nuptials. For it is not to be doubted that assent to such irregular
connection for thirty years bespeaks greater influence of one party
over the other, so that the danger that the law seeks to avoid is
correspondingly increased. Moreover, as already pointed out by
Ulpian (in his lib. 32 ad Sabinum, fr. 1), it would not be just that
such donations should subsist lest the condition of those who
incurred guilt should turn out to be better. So long as marriage
remains the cornerstone of our family law, reason and morality
alike demand that the disabilities attached to marriage should
likewise
attach
to
concubinage.
2. ID.; SUCCESSION; INTESTATE SUCCESSION; SURVIVING SPOUSE;
RULE WHERE A SISTER SURVIVES WITH THE WIDOW. The lack of
validity of the donation made b~ the deceased to defendant
Petronila Cervantes does not necessarily result in plaintiff having
exclusive right to the disputed property. Prior to the death of Felix
Matabuena, the relationship between him and the defendant was
legitimated by their marriage on March 28. 1962. She is therefore
his widow. As provided in the Civil Code, she is entitled to one-half
of the inheritance and the plaintiff, as the surviving sister to the
other half.
DECISION
FERNANDO, J.:
A question of first impression is before this Court in this litigation.
We are called upon to decide whether the ban on a donation
between the spouses during a marriage applies to a common-law
relationship. 1 The plaintiff, now appellant Cornelia Matabuena, a

sister to the deceased Felix Matabuena, maintains that a donation

made while he was living maritally without benefit of marriage to
defendant, now appellee Petronila Cervantes, was void. Defendant
would uphold its validity. The lower court, after noting that it was
made at a time before defendant was married to the donor,
sustained the latters stand. Hence this appeal. The question, as
noted, is novel in character, this Court not having had as yet the
opportunity of ruling on it. A 1954 decision of the Court of Appeals,
Buenaventura v. Bautista, 2 by the then Justice J. B. L. Reyes, who
was appointed to this Court later that year, is indicative of the
appropriate response that should be given. The conclusion reached
therein is that a donation between common-law spouses falls within
the prohibition and is "null and void as contrary to public policy." 3
Such a view merits fully the acceptance of this Court. The decision
must
be
reversed.
In the decision of November 23, 1965, the lower court, after stating
that in plaintiffs complaint alleging absolute ownership of the
parcel of land in question, she specifically raised the question that
the donation made by Felix Matabuena to defendant Petronila
Cervantes was null and void under the aforesaid article of the Civil
Code and that defendant on the other hand did assert ownership
precisely because such a donation was made in 1956 and her
marriage to the deceased did not take place until 1962, noted that
when the case was called for trial on November 19, 1965, there
was stipulation of facts which it quoted. 4 Thus: "The plaintiff and
the defendant assisted by their respective counsels, jointly agree
and stipulate: (1) That the deceased Felix Matabuena owned the
property in question; (2) That said Felix Matabuena executed a
Deed of Donation inter vivos in favor of Defendant, Petronila
Cervantes over the parcel of land in question on February 20, 1956,
which same donation was accepted by defendant; (3) That the
donation of the land to the defendant which took effect
immediately was made during the common law relationship as
husband and wife between the defendant-done and the now
deceased donor and later said donor and done were married on
March 28, 1962; (4) That the deceased Felix Matabuena died
intestate on September 13, 1962; (5) That the plaintiff claims the
property by reason of being the only sister and nearest collateral
relative of the deceased by virtue of an affidavit of self-adjudication
executed by her in 1962 and had the land declared in her name
and paid the estate and inheritance taxes thereon" 5
The judgment of the lower court on the above facts was adverse to
plaintiff. It reasoned out thus: "A donation under the terms of
Article 133 of the Civil Code is void if made between the spouses

during the marriage. When the donation was made by Felix

Matabuena in favor of the defendant on February 20, 1956,
Petronila Cervantes and Felix Matabuena were not yet married. At
that time they were not spouses. They became spouses only when
they married on March 28, 1962, six years after the deed of
donation
had
been
executed."
6
We reach a different conclusion. While Art. 133 of the Civil Code
considers as void a "donation between the spouses during the
marriage," policy considerations of the most exigent character as
well as the dictates of morality require that the same prohibition
should apply to a common-law relationship. We reverse.
1. As announced at the outset of this opinion, a 1954 Court of
Appeals decision, Buenaventura v. Bautista, 7 interpreting a similar
provision of the old Civil Code 8 speaks unequivocally. If the policy
of the law is, in the language of the opinion of the then Justice J.B.L.
Reyes of that Court, "to prohibit donations in favor of the other
consort and his descendants because of fear of undue and
improper pressure and influence upon the donor, a prejudice deeply
rooted in our ancient law; porque no se engaen despojandose el
uno al otro por amor que han de consuno [according to] the
Partidas (Part IV, Tit. XI, LAW IV), reiterating the rationale Ne
mutuato amore invicem spoliarentur of the Pandects (Bk. 24, Tit. 1,
De donat, inter virum et uxorem); then there is every reason to
apply the same prohibitive policy to persons living together as
husband and wife without the benefit of nuptials. For it is not to be
doubted that assent to such irregular connection for thirty years
bespeaks greater influence of one party over the other, so that the
danger that the law seeks to avoid is correspondingly increased.
Moreover, as already pointed out by Ulpian (in his lib. 32 ad
Sabinum, fr. 1), it would not be just that such donations should
subsist, lest the condition of those who incurred guilt should turn
out to be better. So long as marriage remains the cornerstone of
our family law, reason and morality alike demand that the
disabilities attached to marriage should likewise attach to
concubinage."
9
2. It is hardly necessary to add that even in the absence of the
above pronouncement, any other conclusion cannot stand the test
of scrutiny. It would be to indict the framers of the Civil Code for a
failure to apply a laudable rule to a situation which in its essentials
cannot be distinguished. Moreover, if it is at all to be differentiated,
the policy of the law which embodies a deeply-rooted notion of
what is just and what is right would be nullified if such irregular
relationship instead of being visited with disabilities would be

attended with benefits. Certainly a legal norm should not be

susceptible to such a reproach. If there is ever any occasion where
the principle of statutory construction that what is within the spirit
of the law is as much a part of it as what is written, this is it.
Otherwise the basic purpose discernible in such codal provision
would not be attained. Whatever omission may be apparent in an
interpretation purely literal of the language used must be remedied
by an adherence to its avowed objective. In the language of Justice
Pablo: "El espiritu que informa la ley debe ser la luz que ha de guiar
a los tribunales en la aplicacin de sus disposiciones. 10
3. The lack of validity of the donation made by the deceased to
defendant Petronila Cervantes does not necessarily result in
plaintiff having exclusive right to the disputed property. Prior to the
death of Felix Matabuena, the relationship between him and the
defendant was legitimated by their marriage on March 28, 1962.
She is therefore his widow. As provided for in the Civil Code, she is
entitled to one-half of the inheritance and the plaintiff, as the
surviving
sister,
to
the
other
half.
11
WHEREFORE, the lower court decision of November 23, 1965
dismissing the complaint with costs is reversed. The questioned
donation is declared void, with the rights of plaintiff and defendant
as pro indiviso heirs to the property in question recognized. The
case is remanded to the lower court for its appropriate disposition
in accordance with the above opinion. Without pronouncement as
to costs.

Instance of Manila, Branch IV, to enforce its decision

in Civil Case No. 33396, entitled, "Francisco Boix,
Plaintiff vs. Teodora B. Ong and Ramon C. Ong,
Defendants" wherein judgment was rendered to wit:

G.R. No. L-63025 November 29, 1991

RAMON C. ONG, petitioner,
vs.
COURT OF APPEALS, FRANCISCO BOIX and ARSENIO CAMINO
AS DEPUTY SHERIFF OF CAMARINES NORTE, respondents.
PARAS, J.:p
The instant petitioner for certiorari seeks are reversal of the
decision ** of herein public respondent Court of Appeals dated
October 24, 1977 in CA-G.R. No. 47063-R and its resolution dated
January 14, 1983 denying herein petitioner's Motion for
Reconsideration.
The Court of Appeals narrates the facts thus:
The record shows that on November 16, 1961,
Ramon C. Ong filed a complaint against defendants
Arsenio Camino as Deputy Sheriff of Camarines Norte
and Francisco Boix, to annul the auction sale of a
parcel of land, allegedly owners conjugally by
plaintiff and his former wife Teodora B. Ong, awarded
in favor of Boix, as highest bidder, in an auction sale
conducted on October 10, 1958 by the Deputy Sheriff
of Camarines Norte, herein defendant Camino,
pursuant to a writ of execution dated August 8, 1958
(Exhibits "C", "2-A") issued by the Court of First

WHEREFORE, judgment is hereby

rendered in favor of plaintiff, ordering
the defendant Teodora B. Ong to pay
to the plaintiff the sum P2,827.83, with
interest of 8% per annumon the sum of
P1,000.00 from September 5, 1955, on
the sum of P827.83 from December
30, 1955 plus 15% on the total amount
of P2,827.83 as attorney's fees; and
the further amount of P2,503 with
interest at 6% per annum from date of
the filing of the complaint, and the
costs of the suit. (Exhibit "1")
The title to the property, in favor of the executioncreditor Boix was duly registered in the Office of the
Register of Deeds of Camarines Norte (Exhibit "4").
It is not disputed that plaintiff's wife, Teodora B. Ong
conducted her own logging business in Camarines
Sur. In furtherance of her business operation, on
August 18, 1955, she secured from Francisco Boix
a loan in the amount of P2,827.83. Unfortunately,
because of mismanagement, Teodora defaulted in
her obligation. This prompted Boix to file a
complaint, based on the promissory notes executed
by Teodora, to collect the sum legally due plus
interest against Teodora and Ramon Ong, the latter
being joined as husband of the former. Defendantspouses were declared in default and judgment was
rendered, as aforesaid, in favor of Boix.
After the aforementioned decision became final and
executory, Boix moved to execute the judgment. The
motion was granted and a corresponding writ of

execution, dated August 8, 1958 (Exhibits "C", "2A"), was issued. Accordingly, the Sheriff of Camarines
Norte levied and attached a parcel of land situated at
Diego Linan St., Daet, Camarines Norte, declared
under Tax No. 05378 in the sole name of Teodora B.
Ong, subject-parcel of herein suit. In a notice of
levy on Execution dated August 22, 1958 (Exhibit "2B"), and notice of Public Auction sale dated
September 10, 1958 (Exhibit "2-C"), auction sales
was held on October 10, 1958 and as already
mentioned, defendant Boix was adjudged highest
bidder. A writ of possession was issued to place the
execution-creditor in possession of the property
levied upon and sold on execution. A corresponding
Certificate of Sale (Exhibit "H") was also issued in
favor of Boix.

Petitioner contends that the auction sale of the property in dispute

is null and void, having been made on a date different from that
reflected in the advertisement thereof, aside from having been
published in a newspaper which is not of general circulation in the
province where the property is situated. According to the petitioner,
respondent court's failure to touch on such a jurisdictional issue
constitutes grave abuse of discretion which justifies a reversal of its
decision affirming the finding of the trial court which in itself
constitutes a misappreciation of facts.

Subsequently, thereafter, Ramon C. Ong filed an

Omnibus motion dated October 2, 1961 (Exhibit "D")
with the same Court of First Instance of Manila asking
to quash the writ of possession, which was denied in
an order dated December 6, 1961. A motion for
reconsideration dated December 29, 1961 (Exhibit
"F") was likewise denied in an order dated February
10, 1962 (Exhibit "G"). (Pp. 1-4, Decision; pp. 1114 Rollo)

Against petitioner's argument that the auction sale is null and void
is the trial court's assessment of the validity thereof, that is, that
the notice of public auction sale was published in accordance with
law. Such a factual finding of the trial court is entitled to great
weight and should not be disturbed on appeal. "Factual questions
should be resolved by the lower courts and the Supreme Court has
no jurisdiction as a rule to reverse the findings of the lower courts
except in a clear showing of a grave abuse of discretion" (Korean
Air Lines vs. Court of Appeals, 154 SCRA 211). In the instant case,
petitioner failed to show any grave abuse of discretion committed,
by the lower court in appreciating private respondent's allegation
that petitioner was previously notified of the supposed transfer of
the date of public auction from September 25, 1958 to October 10,
1958.

Consequently, petitioner brought the case to the Court of Appeals

to annul the auction sale allegedly irregularly executed on the
following grounds, namely, that the property was conjugal and thus
could not be held liable for personal debts contracted by the wife,
and that the there was no valid publication thus making the auction
sale void.
The Court of Appeals affirmed the decision of the trial court,
prompting petitioner to file a motion for reconsideration thereof.
Said motion was denied on January 15, 1983; hence, the present
petition.

The other argument advanced by the petitioner is that the subject

property is really conjugal which the wife in the case at bar could
not legally bind, and considering that the indebtedness was
contracted by the wife only, the levy of the subject property not
owned exclusively by the wife owned jointly with the husband is
improper.

Petitioner's other argument is also based on factual considerations.

Against the Court of Appeals' finding that the subject property is
paraphernal property, in view of the fact that it was "declared,
under Tax No. 05378, in the name of Teodora B. Ong while the
house erected thereon was declared under Tax No. 06022 in the
name of Ramon C. Ong and Teodora B. Ong (Exhibits "B", "2-B", "2C, "4") (Decision, p. 4) is petitioner's claim that the subject property
is conjugal. Petitioner stresses heavily on the fact that since the

surname "Ong" (which is the surname of the husband Ramon C.

Ong) was carried by Teodora in the aforesaid declaration, that
indicates that the subject property was acquired during the
marriage. By reason thereof, the property in dispute is presumed to
be owned jointly by both spouses.

indication that the property belongs exclusively to

said spouse. And this presumption under Art. 160 of
the Civil Code cannot prevail when the title is in the
name of only one spouse and the rights of innocent
third parties are involved.

We disagree. The mere use of the surname of the husband in the

tax declaration of the subject property is not sufficient proof that
said property was acquired during the marriage and is therefore
conjugal. It is undisputed that the subject parcel was declared
solely in the wife's name, but the house built thereon was declared
in the name of the spouses. Under such circumstances, coupled
with a careful scrutiny of the records of the present case, We hold
that the lot in question is paraphernal, and is therefore, liable for
the personal debts of the wife.

Furthermore, even assuming for the sake of argument that the

property in dispute is conjugal, the same may still be held liable for
the debts of the wife in this case. Under Art. 117 of the Civil Code,
the wife may engage in business although the husband may object
(but subject to certain conditions). It is clear from the records that
the wife was engaged in the logging business with the husband's
knowledge and apparently without any objection on his part. The
acts of the husband show that he gave his implied consent to the
wife's engagement in business. According to Justice AmeurfinaHerrera (then Associate Justice of the Court of Appeals) in her
concurring opinion, the rule that should govern in that case is that
the wife's paraphernal properties, as well as those of their conjugal
partnership, shall be liable for the obligations incurred by the wife
in the course of her business (Arts. 117, 140, 172, 203, and 236,
Civil Code; Art. 10, Code of Commerce, cited in Commentaries on
Phil. Commercial Laws, Martin, T.C. Vol. 1, 1970 Revised Edition, pp.
14-15). After all, whatever profits are earned by the wife from her
business go to the conjugal partnership. It would only be just and
equitable that the obligations contracted by the wife in connection
with her business may also be chargeable not only against her
paraphernal property but also against the conjugal property of the
spouses.

Thus, it was held in the case of Maramba vs. Lozano, 20 SCRA 474,
that
The presumption that property is conjugal (Art. 160,
New Civil Code) refers to property acquired during
the marriage. When there is no showing as to when
the property was acquired by a spouse, the fact that
the title is in the spouse's name is an indication that
the property belongs exclusively to said spouse.
As correctly pointed out by the respondent Court, the party who
invokes the presumption that all property of the marriage belongs
to the conjugal partnership (Art. 160, New Civil Code) must first
prove that the property was acquired during the marriage. Proof of
acquisition during the marriage is a condition sine qua non for the
operation of the presumption in favor of the conjugal partnership.
(Cobb-Perez, et al. vs. Lantin, et al., 23 SCRA 637; Jose Ponce de
Leon vs. Rehabilitation Finance Corp., 36 SCRA 289). In the same
manner, the recent case of PNB vs. Court of Appeals, 153 SCRA 435
affirms that:
When the property is registered in the name of the a
spouse only and there is no showing as to when the
property was acquired by said spouse, this is an

Let it be noted that due to the length of time that this case has
remained pending, private respondents Francisco Boix and Arsenio
Camino have allegedly already died in the process. No proper
substitution of parties have apparently been made. Nevertheless,
despite such supervening events, for failure on the part of
petitioner to show any grave abuse of discretion or reversible error
committed by respondent appellate court, We deem it wise to
affirm the said court's decision. Besides, the decision of the trial
court is in accordance with law and the evidence presented.

WHEREFORE, the petition is hereby DISMISSED for lack of merit

without pronouncement as to costs.
SO ORDERED.

G.R. No. 119976 September 18, 1995

IMELDA ROMUALDEZ-MARCOS, petitioner,
vs.
COMMISSION ON ELECTIONS and CIRILO ROY
MONTEJO, respondents.
KAPUNAN, J.:
A constitutional provision should be construed as to give it effective
operation and suppress the mischief at which it is aimed. 1 The
1987 Constitution mandates that an aspirant for election to the
House of Representatives be "a registered voter in the district in

which he shall be elected, and a resident thereof for a period of not

less than one year immediately preceding the election." 2 The
mischief which this provision reproduced verbatim from the 1973
Constitution seeks to prevent is the possibility of a "stranger or
newcomer unacquainted with the conditions and needs of a
community and not identified with the latter, from an elective office
to serve that community." 3
Petitioner Imelda Romualdez-Marcos filed her Certificate of
Candidacy for the position of Representative of the First District of
Leyte with the Provincial Election Supervisor on March 8, 1995,
providing the following information in item no. 8: 4
RESIDENCE IN THE CONSTITUENCY WHERE I SEEK TO
BE
ELECTED
IMMEDIATELY
PRECEDING
THE
ELECTION: __________ Years and seven Months.
On March 23, 1995, private respondent Cirilo Roy Montejo, the
incumbent Representative of the First District of Leyte and a
candidate for the same position, filed a "Petition for Cancellation
and Disqualification" 5 with the Commission on Elections alleging
that petitioner did not meet the constitutional requirement for
residency. In his petition, private respondent contended that Mrs.
Marcos lacked the Constitution's one year residency requirement
for candidates for the House of Representatives on the evidence of
declarations made by her in Voter Registration Record 94-No.
3349772 6and in her Certificate of Candidacy. He prayed that "an
order be issued declaring (petitioner) disqualified and canceling the
certificate of candidacy." 7
On March 29, 1995, petitioner filed an Amended/Corrected
Certificate of Candidacy, changing the entry "seven" months to
"since childhood" in item no. 8 of the amended certificate. 8 On the
same day, the Provincial Election Supervisor of Leyte informed
petitioner that:
[T]his office cannot receive or accept the
aforementioned Certificate of Candidacy on the
ground that it is filed out of time, the deadline for the
filing of the same having already lapsed on March 20,

1995.
The
Corrected/Amended
Certificate
of
Candidacy should have been filed on or before the
March 20, 1995 deadline. 9
Consequently, petitioner filed the Amended/Corrected Certificate of
Candidacy with the COMELEC's Head Office in Intramuros, Manila
on
March 31, 1995. Her Answer to private respondent's petition in SPA
No. 95-009 was likewise filed with the head office on the same day.
In said Answer, petitioner averred that the entry of the word
"seven" in her original Certificate of Candidacy was the result of an
"honest misinterpretation" 10 which she sought to rectify by adding
the words "since childhood" in her Amended/Corrected Certificate
of Candidacy and that "she has always maintained Tacloban City as
her domicile or residence. 11 Impugning respondent's motive in
filing the petition seeking her disqualification, she noted that:
When respondent (petitioner herein) announced that
she was intending to register as a voter in Tacloban
City and run for Congress in the First District of Leyte,
petitioner immediately opposed her intended
registration by writing a letter stating that "she is not
a resident of said city but of Barangay Olot, Tolosa,
Leyte. After respondent had registered as a voter in
Tolosa following completion of her six month actual
residence therein, petitioner filed a petition with the
COMELEC to transfer the town of Tolosa from the First
District to the Second District and pursued such a
move up to the Supreme Court, his purpose being to
remove respondent as petitioner's opponent in the
congressional election in the First District. He also
filed a bill, along with other Leyte Congressmen,
seeking the creation of another legislative district to
remove the town of Tolosa out of the First District, to
achieve his purpose. However, such bill did not pass
the Senate. Having failed on such moves, petitioner
now filed the instant petition for the same objective,
as it is obvious that he is afraid to submit along with
respondent for the judgment and verdict of the
electorate of the First District of Leyte in an honest,

orderly, peaceful, free and clean elections on May 8,

1995. 12
On April 24, 1995, the Second Division of the Commission on
Elections (COMELEC), by a vote of 2 to 1, 13 came up with a
Resolution
1)
finding
private
respondent's
Petition
for
Disqualification in SPA 95-009 meritorious; 2) striking off
petitioner's Corrected/Amended Certificate of Candidacy of March
31, 1995; and 3) canceling her original Certificate of
Candidacy. 14 Dealing with two primary issues, namely, the validity
of amending the original Certificate of Candidacy after the lapse of
the deadline for filing certificates of candidacy, and petitioner's
compliance with the one year residency requirement, the Second
Division held:
Respondent raised the affirmative defense in her
Answer that the printed word "Seven" (months) was
a result of an "honest misinterpretation or honest
mistake" on her part and, therefore, an amendment
should subsequently be allowed. She averred that
she thought that what was asked was her "actual and
physical" presence in Tolosa and not residence of
origin or domicile in the First Legislative District, to
which she could have responded "since childhood." In
an accompanying affidavit, she stated that her
domicile is Tacloban City, a component of the First
District, to which she always intended to return
whenever absent and which she has never
abandoned. Furthermore, in her memorandum, she
tried to discredit petitioner's theory of disqualification
by alleging that she has been a resident of the First
Legislative District of Leyte since childhood, although
she only became a resident of the Municipality of
Tolosa for seven months. She asserts that she has
always been a resident of Tacloban City, a
component of the First District, before coming to the
Municipality of Tolosa.
Along this point, it is interesting to note that prior to
her registration in Tolosa, respondent announced that

she would be registering in Tacloban City so that she

can be a candidate for the District. However, this
intention was rebuffed when petitioner wrote the
Election Officer of Tacloban not to allow respondent
since she is a resident of Tolosa and not Tacloban.
She never disputed this claim and instead implicitly
acceded to it by registering in Tolosa.
This incident belies respondent's claim of "honest
misinterpretation or honest mistake." Besides, the
Certificate of Candidacy only asks for RESIDENCE.
Since on the basis of her Answer, she was quite
aware of "residence of origin" which she interprets to
be Tacloban City, it is curious why she did not cite
Tacloban City in her Certificate of Candidacy. Her
explanation that she thought what was asked was
her actual and physical presence in Tolosa is not easy
to believe because there is none in the question that
insinuates about Tolosa. In fact, item no. 8 in the
Certificate
of
Candidacy
speaks
clearly
of
"Residency in the CONSTITUENCY where I seek to be
elected immediately preceding the election." Thus,
the explanation of respondent fails to be persuasive.
From the foregoing, respondent's defense of an
honest mistake or misinterpretation, therefore, is
devoid of merit.
To further buttress respondent's contention that an
amendment may be made, she cited the case
ofAlialy v. COMELEC (2 SCRA 957). The reliance of
respondent on the case of Alialy is misplaced. The
case only applies to the "inconsequential deviations
which cannot affect the result of the election, or
deviations from provisions intended primarily to
secure timely and orderly conduct of elections." The
Supreme Court in that case considered the
amendment only as a matter of form. But in the
instant case, the amendment cannot be considered
as a matter of form or an inconsequential deviation.

The change in the number of years of residence in

the place where respondent seeks to be elected is a
substantial matter which determines her qualification
as a candidacy, specially those intended to suppress,
accurate material representation in the original
certificate which adversely affects the filer. To admit
the amended certificate is to condone the evils
brought by the shifting minds of manipulating
candidate, of the detriment of the integrity of the
election.

Based on these reasons the Amended/Corrected

Certificate of Candidacy cannot be admitted by this
Commission.

Moreover, to allow respondent to change the seven

(7) month period of her residency in order to prolong
it by claiming it was "since childhood" is to allow an
untruthfulness to be committed before this
Commission. The arithmetical accuracy of the 7
months residency the respondent indicated in her
certificate of candidacy can be gleaned from her
entry in her Voter's Registration Record accomplished
on January 28, 1995 which reflects that she is a
resident of Brgy. Olot, Tolosa, Leyte for 6 months at
the time of the said registration (Annex A, Petition).
Said accuracy is further buttressed by her letter to
the election officer of San Juan, Metro Manila, dated
August 24, 1994, requesting for the cancellation of
her registration in the Permanent List of Voters
thereat so that she can be re-registered or
transferred to Brgy. Olot, Tolosa, Leyte. The dates of
these three (3) different documents show the
respondent's consistent conviction that she has
transferred her residence to Olot, Tolosa, Leyte from
Metro Manila only for such limited period of time,
starting in the last week of August 1994 which on
March 8, 1995 will only sum up to 7 months. The
Commission, therefore, cannot be persuaded to
believe in the respondent's contention that it was an
error.

In election cases, the term "residence" has always

been considered as synonymous with "domicile"
which imports not only the intention to reside in a
fixed place but also personal presence in-that place,
coupled with conduct indicative of such intention.
Domicile denotes a fixed permanent residence to
which when absent for business or pleasure, or for
like reasons, one intends to return. (Perfecto Faypon
vs. Eliseo Quirino, 96 Phil 294; Romualdez vs. RTCTacloban, 226 SCRA 408). In respondent's case, when
she returned to the Philippines in 1991, the residence
she chose was not Tacloban but San Juan, Metro
Manila. Thus, her animus revertendi is pointed to
Metro Manila and not Tacloban.

xxx xxx xxx

xxx xxx xxx

Anent the second issue, and based on the foregoing
discussion, it is clear that respondent has not
complied with the one year residency requirement of
the Constitution.

This Division is aware that her claim that she has

been a resident of the First District since childhood is
nothing more than to give her a color of qualification
where she is otherwise constitutionally disqualified. It
cannot hold ground in the face of the facts admitted
by the respondent in her affidavit. Except for the
time that she studied and worked for some years
after graduation in Tacloban City, she continuously
lived in Manila. In 1959, after her husband was
elected Senator, she lived and resided in San Juan,
Metro Manila where she was a registered voter. In
1965, she lived in San Miguel, Manila where she was
again a registered voter. In 1978, she served as
member of the Batasang Pambansa as the

representative of the City of Manila and later on

served as the Governor of Metro Manila. She could
not have served these positions if she had not been a
resident of the City of Manila. Furthermore, when she
filed her certificate of candidacy for the office of the
President in 1992, she claimed to be a resident of
San Juan, Metro Manila. As a matter of fact on August
24, 1994, respondent wrote a letter with the election
officer of San Juan, Metro Manila requesting for the
cancellation of her registration in the permanent list
of voters that she may be re-registered or transferred
to Barangay Olot, Tolosa, Leyte. These facts manifest
that she could not have been a resident of Tacloban
City since childhood up to the time she filed her
certificate of candidacy because she became a
resident of many places, including Metro Manila. This
debunks her claim that prior to her residence in
Tolosa, Leyte, she was a resident of the First
Legislative District of Leyte since childhood.

City, where she spent her childhood and school days,

as her place of domicile.

In this case, respondent's conduct reveals her lack of

intention to make Tacloban her domicile. She
registered as a voter in different places and on
several occasions declared that she was a resident of
Manila. Although she spent her school days in
Tacloban, she is considered to have abandoned such
place when she chose to stay and reside in other
different places. In the case of Romualdez
vs. RTC(226 SCRA 408) the Court explained how one
acquires a new domicile by choice. There must
concur: (1) residence or bodily presence in the new
locality; (2) intention to remain there; and (3)
intention to abandon the old domicile. In other words
there must basically be animus manendi with animus
non revertendi. When respondent chose to stay in
Ilocos and later on in Manila, coupled with her
intention to stay there by registering as a voter there
and expressly declaring that she is a resident of that
place, she is deemed to have abandoned Tacloban

To further support the assertion that she could have

not been a resident of the First District of Leyte for
more than one year, petitioner correctly pointed out
that on January 28, 1995 respondent registered as a
voter at precinct No. 18-A of Olot, Tolosa, Leyte. In
doing so, she placed in her Voter Registration Record
that she resided in the municipality of Tolosa for a
period of six months. This may be inconsequential as
argued by the respondent since it refers only to her
residence in Tolosa, Leyte. But her failure to prove
that she was a resident of the First District of Leyte
prior to her residence in Tolosa leaves nothing but a
convincing proof that she had been a resident of the
district for six months only. 15

Pure intention to reside in that place is not sufficient,

there must likewise be conduct indicative of such
intention. Respondent's statements to the effect that
she has always intended to return to Tacloban,
without the accompanying conduct to prove that
intention, is not conclusive of her choice of
residence. Respondent has not presented any
evidence to show that her conduct, one year prior
the election, showed intention to reside in Tacloban.
Worse, what was evident was that prior to her
residence in Tolosa, she had been a resident of
Manila.
It is evident from these circumstances that she was
not a resident of the First District of Leyte "since
childhood."

In a Resolution promulgated a day before the May 8, 1995

elections, the COMELEC en banc denied petitioner's Motion for
Reconsideration 16 of the April 24, 1995 Resolution declaring her
not qualified to run for the position of Member of the House of

Representatives for the First Legislative District of Leyte.

Resolution tersely stated:

17

The

II. The Jurisdictional Issue

a) Prior to the elections

After deliberating on the Motion for Reconsideration,

the Commission RESOLVED to DENY it, no new
substantial matters having been raised therein to
warrant re-examination of the resolution granting the
petition for disqualification. 18
On May 11, 1995, the COMELEC issued a Resolution allowing
petitioner's proclamation should the results of the canvass show
that she obtained the highest number of votes in the congressional
elections in the First District of Leyte. On the same day, however,
the COMELEC reversed itself and issued a second Resolution
directing that the proclamation of petitioner be suspended in the
event that she obtains the highest number of votes. 19
In a Supplemental Petition dated 25 May 1995, petitioner averred
that she was the overwhelming winner of the elections for the
congressional seat in the First District of Leyte held May 8, 1995
based on the canvass completed by the Provincial Board of
Canvassers on May 14, 1995. Petitioner alleged that the canvass
showed that she obtained a total of 70,471 votes compared to the
36,833 votes received by Respondent Montejo. A copy of said
Certificate of Canvass was annexed to the Supplemental Petition.
On account of the Resolutions disqualifying petitioner from running
for the congressional seat of the First District of Leyte and the
public respondent's Resolution suspending her proclamation,
petitioner comes to this court for relief.
Petitioner raises several issues in her Original and Supplemental
Petitions. The principal issues may be classified into two general
areas:
I. The issue of Petitioner's qualifications
Whether or not petitioner was a resident, for election
purposes, of the First District of Leyte for a period of
one year at the time of the May 9, 1995 elections.

Whether or not the COMELEC properly exercised its

jurisdiction in disqualifying petitioner outside the
period mandated by the Omnibus Election Code for
disqualification cases under Article 78 of the said
Code.
b) After the Elections
Whether or not the House of Representatives
Electoral Tribunal assumed exclusive jurisdiction over
the question of petitioner's qualifications after the
May 8, 1995 elections.
I. Petitioner's qualification
A perusal of the Resolution of the COMELEC's Second Division
reveals a startling confusion in the application of settled concepts
of "Domicile" and "Residence" in election law. While the COMELEC
seems to be in agreement with the general proposition that for the
purposes of election law, residence is synonymous with domicile,
the Resolution reveals a tendency to substitute or mistake the
concept of domicile for actual residence, a conception not intended
for the purpose of determining a candidate's qualifications for
election to the House of Representatives as required by the 1987
Constitution. As it were, residence, for the purpose of meeting the
qualification for an elective position, has a settled meaning in our
jurisdiction.
Article 50 of the Civil Code decrees that "[f]or the exercise of civil
rights and the fulfillment of civil obligations, the domicile of natural
persons is their place of habitual residence." In Ong
vs. Republic 20 this court took the concept of domicile to mean an
individual's "permanent home", "a place to which, whenever absent
for business or for pleasure, one intends to return, and depends on
facts and circumstances in the sense that they disclose
intent." 21 Based on the foregoing, domicile includes the twin

elements of "the fact of residing or physical presence in a fixed

place" and animus manendi, or the intention of returning there
permanently.
Residence, in its ordinary conception, implies the factual
relationship of an individual to a certain place. It is the physical
presence of a person in a given area, community or country. The
essential distinction between residence and domicile in law is that
residence involves the intent to leave when the purpose for which
the resident has taken up his abode ends. One may seek a place for
purposes such as pleasure, business, or health. If a person's intent
be to remain, it becomes his domicile; if his intent is to leave as
soon as his purpose is established it is residence. 22 It is thus, quite
perfectly normal for an individual to have different residences in
various places. However, a person can only have a single domicile,
unless, for various reasons, he successfully abandons his domicile
in
favor
of
another
domicile
of
choice.
In Uytengsu
23
vs. Republic, we laid this distinction quite clearly:
There is a difference between domicile and
residence. "Residence" is used to indicate a place of
abode, whether permanent or temporary; "domicile"
denotes a fixed permanent residence to which, when
absent, one has the intention of returning. A man
may have a residence in one place and a domicile in
another. Residence is not domicile, but domicile is
residence coupled with the intention to remain for an
unlimited time. A man can have but one domicile for
the same purpose at any time, but he may have
numerous places of residence. His place of residence
is generally his place of domicile, but it is not by any
means necessarily so since no length of residence
without intention of remaining will constitute
domicile.
For political purposes the concepts of residence and domicile are
dictated by the peculiar criteria of political laws. As these concepts
have evolved in our election law, what has clearly and
unequivocally emerged is the fact that residence for election
purposes is used synonymously with domicile.

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

Mrs. Rosario Braid: The next question is on Section 7,

page 2. I think Commissioner Nolledo has raised the
same point that "resident" has been interpreted at
times as a matter of intention rather than actual
residence.
Mr. De los Reyes: Domicile.
Ms. Rosario Braid: Yes, So, would the gentleman
consider at the proper time to go back to actual
residence rather than mere intention to reside?
Mr. De los Reyes: But we might encounter some
difficulty especially considering that a provision in
the Constitution in the Article on Suffrage says that
Filipinos living abroad may vote as enacted by law.
So, we have to stick to the original concept that it
should be by domicile and not physical residence.30
In Co vs. Electoral Tribunal of the House of Representatives, 31 this
Court concluded that the framers of the 1987 Constitution
obviously adhered to the definition given to the term residence in
election law, regarding it as having the same meaning as
domicile. 32
In the light of the principles just discussed, has petitioner Imelda
Romualdez Marcos satisfied the residency requirement mandated
by Article VI, Sec. 6 of the 1987 Constitution? Of what significance
is the questioned entry in petitioner's Certificate of Candidacy
stating her residence in the First Legislative District of Leyte as
seven (7) months?
It is the fact of residence, not a statement in a certificate of
candidacy which ought to be decisive in determining whether or
not and individual has satisfied the constitution's residency
qualification requirement. The said statement becomes material
only when there is or appears to be a deliberate attempt to
mislead, misinform, or hide a fact which would otherwise render a
candidate ineligible. It would be plainly ridiculous for a candidate to

deliberately and knowingly make a statement in a certificate of

candidacy which would lead to his or her disqualification.
It stands to reason therefore, that petitioner merely committed an
honest mistake in jotting the word "seven" in the space provided
for the residency qualification requirement. The circumstances
leading to her filing the questioned entry obviously resulted in the
subsequent confusion which prompted petitioner to write down the
period of her actual stay in Tolosa, Leyte instead of her period of
residence in the First district, which was "since childhood" in the
space provided. These circumstances and events are amply
detailed in the COMELEC's Second Division's questioned resolution,
albeit with a different interpretation. For instance, when herein
petitioner announced that she would be registering in Tacloban City
to make her eligible to run in the First District, private respondent
Montejo opposed the same, claiming that petitioner was a resident
of Tolosa, not Tacloban City. Petitioner then registered in her place
of actual residence in the First District, which is Tolosa, Leyte, a fact
which she subsequently noted down in her Certificate of Candidacy.
A close look at said certificate would reveal the possible source of
the confusion: the entry for residence (Item No. 7) is followed
immediately by the entry for residence in the constituency where a
candidate seeks election thus:
7. RESIDENCE (complete Address): Brgy. Olot, Tolosa,
Leyte
POST
OFFICE
ADDRESS
FOR
PURPOSES: Brgy. Olot, Tolosa, Leyte

ELECTION

8. RESIDENCE IN THE CONSTITUENCY WHERE I SEEK

TO
BE
ELECTED
IMMEDIATELY
PRECEDING
THE
ELECTION:_________ Years and Seven Months.
Having been forced by private respondent to register in her place of
actual residence in Leyte instead of petitioner's claimed domicile, it
appears that petitioner had jotted down her period of stay in her
legal residence or domicile. The juxtaposition of entries in Item 7
and Item 8 the first requiring actual residence and the second

requiring domicile coupled with the circumstances surrounding

petitioner's registration as a voter in Tolosa obviously led to her
writing down an unintended entry for which she could be
disqualified. This honest mistake should not, however, be allowed
to negate the fact of residence in the First District if such fact were
established by means more convincing than a mere entry on a
piece of paper.
We now proceed to the matter of petitioner's domicile.
In support of its asseveration that petitioner's domicile could not
possibly be in the First District of Leyte, the Second Division of the
COMELEC, in its assailed Resolution of April 24,1995 maintains that
"except for the time when (petitioner) studied and worked for some
years after graduation in Tacloban City, she continuously lived in
Manila." The Resolution additionally cites certain facts as indicative
of the fact that petitioner's domicile ought to be any place where
she lived in the last few decades except Tacloban, Leyte. First,
according to the Resolution, petitioner, in 1959, resided in San Juan,
Metro Manila where she was also registered voter. Then, in 1965,
following the election of her husband to the Philippine presidency,
she lived in San Miguel, Manila where she as a voter. In 1978 and
thereafter, she served as a member of the Batasang Pambansa and
Governor of Metro Manila. "She could not, have served these
positions if she had not been a resident of Metro Manila," the
COMELEC stressed. Here is where the confusion lies.
We have stated, many times in the past, that an individual does not
lose his domicile even if he has lived and maintained residences in
different places. Residence, it bears repeating, implies a factual
relationship to a given place for various purposes. The absence
from legal residence or domicile to pursue a profession, to study or
to do other things of a temporary or semi-permanent nature does
not constitute loss of residence. Thus, the assertion by the
COMELEC that "she could not have been a resident of Tacloban City
since childhood up to the time she filed her certificate of candidacy
because she became a resident of many places" flies in the face of
settled jurisprudence in which this Court carefully made distinctions
between (actual) residence and domicile for election law purposes.
In Larena vs. Teves, 33 supra, we stressed:

[T]his court is of the opinion and so holds that a

person who has his own house wherein he lives with
his family in a municipality without having ever had
the intention of abandoning it, and without having
lived either alone or with his family in another
municipality, has his residence in the former
municipality, notwithstanding his having registered
as an elector in the other municipality in question
and having been a candidate for various insular and
provincial positions, stating every time that he is a
resident of the latter municipality.
More significantly, in Faypon vs. Quirino,

34

We explained that:

A citizen may leave the place of his birth to look for

"greener pastures," as the saying goes, to improve
his lot, and that, of course includes study in other
places, practice of his avocation, or engaging in
business. When an election is to be held, the citizen
who left his birthplace to improve his lot may desire
to return to his native town to cast his ballot but for
professional or business reasons, or for any other
reason, he may not absent himself from his
professional or business activities; so there he
registers himself as voter as he has the qualifications
to be one and is not willing to give up or lose the
opportunity to choose the officials who are to run the
government especially in national elections. Despite
such registration, the animus revertendi to his home,
to his domicile or residence of origin has not forsaken
him. This may be the explanation why the
registration of a voter in a place other than his
residence of origin has not been deemed sufficient to
constitute abandonment or loss of such residence. It
finds justification in the natural desire and longing of
every person to return to his place of birth. This
strong feeling of attachment to the place of one's
birth must be overcome by positive proof of
abandonment for another.

From the foregoing, it can be concluded that in its above-cited

statements supporting its proposition that petitioner was ineligible
to run for the position of Representative of the First District of
Leyte, the COMELEC was obviously referring to petitioner's various
places of (actual) residence, not her domicile. In doing so, it not
only ignored settled jurisprudence on residence in election law and
the deliberations of the constitutional commission but also the
provisions of the Omnibus Election Code (B.P. 881). 35
What is undeniable, however, are the following set of facts which
establish the fact of petitioner's domicile, which we lift verbatim
from the COMELEC's Second Division's assailed Resolution: 36
In or about 1938 when respondent was a little over 8
years old, she established her domicile in Tacloban,
Leyte (Tacloban City). She studied in the Holy Infant
Academy in Tacloban from 1938 to 1949 when she
graduated from high school. She pursued her college
studies in St. Paul's College, now Divine Word
University in Tacloban, where she earned her degree
in Education. Thereafter, she taught in the Leyte
Chinese School, still in Tacloban City. In 1952 she
went to Manila to work with her cousin, the late
speaker Daniel Z. Romualdez in his office in the
House of Representatives. In 1954, she married exPresident Ferdinand E. Marcos when he was still a
congressman of Ilocos Norte and registered there as
a voter. When her husband was elected Senator of
the Republic in 1959, she and her husband lived
together in San Juan, Rizal where she registered as a
voter. In 1965, when her husband was elected
President of the Republic of the Philippines, she lived
with him in Malacanang Palace and registered as a
voter in San Miguel, Manila.
[I]n February 1986 (she claimed that) she and her
family were abducted and kidnapped to Honolulu,
Hawaii. In November 1991, she came home to
Manila. In 1992, respondent ran for election as
President of the Philippines and filed her Certificate

of Candidacy wherein she indicated that she is a

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

Second, domicile of origin is not easily lost. To successfully effect a

change of domicile, one must demonstrate: 37
1. An actual removal or an actual change of domicile;
2. A bona fide intention of abandoning the former
place of residence and establishing a new one; and
3. Acts which correspond with the purpose.
In the absence of clear and positive proof based on these criteria,
the residence of origin should be deemed to continue. Only with
evidence showing concurrence of all three requirements can the
presumption of continuity or residence be rebutted, for a change of
residence requires an actual and deliberate abandonment, and one
cannot have two legal residences at the same time. 38 In the case
at bench, the evidence adduced by private respondent plainly lacks
the degree of persuasiveness required to convince this court that
an abandonment of domicile of origin in favor of a domicile of
choice indeed occurred. To effect an abandonment requires the
voluntary act of relinquishing petitioner's former domicile with
an intent to supplant the former domicile with one of her own
choosing (domicilium voluntarium).
In this connection, it cannot be correctly argued that petitioner lost
her domicile of origin by operation of law as a result of her
marriage to the late President Ferdinand E. Marcos in 1952. For
there is a clearly established distinction between the Civil Code
concepts of "domicile" and "residence." 39 The presumption that the
wife automatically gains the husband's domicile by operation of law
upon marriage cannot be inferred from the use of the term
"residence" in Article 110 of the Civil Code because the Civil Code is
one area where the two concepts are well delineated. Dr. Arturo
Tolentino, writing on this specific area explains:
In the Civil Code, there is an obvious difference
between domicile and residence. Both terms imply
relations between a person and a place; but in
residence, the relation is one of fact while in domicile

it is legal or juridical, independent of the necessity of

physical presence. 40
Article 110 of the Civil Code provides:
Art. 110. The husband shall fix the residence of
the family. But the court may exempt the wife from
living with the husband if he should live abroad
unless in the service of the Republic.
A survey of jurisprudence relating to Article 110 or to the concepts
of domicile or residence as they affect the female spouse upon
marriage yields nothing which would suggest that the female
spouse automatically loses her domicile of origin in favor of the
husband's choice of residence upon marriage.
Article 110 is a virtual restatement of Article 58 of the Spanish Civil
Code of 1889 which states:
La mujer esta obligada a seguir a su marido donde
quiera que fije su residencia. Los Tribunales, sin
embargo, podran con justa causa eximirla de esta
obligacion cuando el marido transende su residencia
a ultramar o' a pais extranjero.
Note the use of the phrase "donde quiera su fije de residencia" in
the
aforequoted
article,
which
means
wherever
(the
husband) wishes to establish residence. This part of the article
clearly contemplates only actual residence because it refers to a
positive act of fixing a family home or residence. Moreover, this
interpretation is further strengthened by the phrase "cuando el
marido translade su residencia" in the same provision which
means, "when the husband shall transfer his residence," referring
to another positive act of relocating the family to another home or
place of actual residence. The article obviously cannot be
understood
to
refer
to
domicile
which
is
a
fixed,
fairly-permanent concept when it plainly connotes the possibility of
transferring from one place to another not only once, but as often
as the husband may deem fit to move his family, a circumstance
more consistent with the concept of actual residence.

The right of the husband to fix the actual residence is in harmony

with the intention of the law to strengthen and unify the family,
recognizing the fact that the husband and the wife bring into the
marriage different domiciles (of origin). This difference could, for
the sake of family unity, be reconciled only by allowing the husband
to fix a single place of actual residence.
Very significantly, Article 110 of the Civil Code is found under Title
V under the heading: RIGHTS AND OBLIGATIONS BETWEEN
HUSBAND AND WIFE. Immediately preceding Article 110 is Article
109 which obliges the husband and wife to live together, thus:
Art. 109. The husband and wife are obligated to
live together, observe mutual respect and fidelity
and render mutual help and support.
The duty to live together can only be fulfilled if the husband and
wife are physically together. This takes into account the situations
where the couple has many residences (as in the case of the
petitioner). If the husband has to stay in or transfer to any one of
their residences, the wife should necessarily be with him in order
that they may "live together." Hence, it is illogical to conclude that
Art. 110 refers to "domicile" and not to "residence." Otherwise, we
shall be faced with a situation where the wife is left in the domicile
while the husband, for professional or other reasons, stays in one of
their (various) residences. As Dr. Tolentino further explains:
Residence and Domicile Whether the word
"residence" as used with reference to particular
matters is synonymous with "domicile" is a question
of some difficulty, and the ultimate decision must be
made from a consideration of the purpose and intent
with which the word is used. Sometimes they are
used synonymously, at other times they are
distinguished from one another.
xxx xxx xxx
Residence in the civil law is a material fact, referring
to the physical presence of a person in a place. A

person can have two or more residences, such as a

country residence and a city residence. Residence is
acquired by living in place; on the other hand,
domicile can exist without actually living in the place.
The important thing for domicile is that, once
residence has been established in one place, there
be an intention to stay there permanently, even if
residence is also established in some other
place. 41
In fact, even the matter of a common residence between the
husband and the wife during the marriage is not an iron-clad
principle; In cases applying the Civil Code on the question of a
common matrimonial residence, our jurisprudence has recognized
certain situations 42 where the spouses could not be compelled to
live with each other such that the wife is either allowed to maintain
a residence different from that of her husband or, for obviously
practical reasons, revert to her original domicile (apart from being
allowed to opt for a new one). In De la Vina vs. Villareal 43 this Court
held that "[a] married woman may acquire a residence or domicile
separate from that of her husband during the existence of the
marriage where the husband has given cause for divorce." 44 Note
that the Court allowed the wife either to obtain new residence or to
choose a new domicile in such an event. In instances where the
wife actually opts, .under the Civil Code, to live separately from her
husband either by taking new residence or reverting to her domicile
of origin, the Court has held that the wife could not be compelled to
live with her husband on pain of contempt. In Arroyo vs. Vasques
de Arroyo 45 the Court held that:
Upon examination of the authorities, we are
convinced that it is not within the province of the
courts of this country to attempt to compel one of
the spouses to cohabit with, and render conjugal
rights to, the other. Of course where the property
rights of one of the pair are invaded, an action for
restitution of such rights can be maintained. But we
are disinclined to sanction the doctrine that an order,
enforcible (sic) by process of contempt, may be
entered to compel the restitution of the purely

personal right of consortium. At best such an order

can be effective for no other purpose than to compel
the spouses to live under the same roof; and he
experience of those countries where the courts of
justice have assumed to compel the cohabitation of
married people shows that the policy of the practice
is extremely questionable. Thus in England, formerly
the Ecclesiastical Court entertained suits for the
restitution of conjugal rights at the instance of either
husband or wife; and if the facts were found to
warrant it, that court would make a mandatory
decree, enforceable by process of contempt in case
of disobedience, requiring the delinquent party to
live with the other and render conjugal rights. Yet this
practice was sometimes criticized even by the judges
who felt bound to enforce such orders, and in Weldon
v. Weldon (9 P.D. 52), decided in 1883, Sir James
Hannen, President in the Probate, Divorce and
Admiralty Division of the High Court of Justice,
expressed his regret that the English law on the
subject was not the same as that which prevailed in
Scotland, where a decree of adherence, equivalent to
the decree for the restitution of conjugal rights in
England, could be obtained by the injured spouse,
but could not be enforced by imprisonment.
Accordingly, in obedience to the growing sentiment
against the practice, the Matrimonial Causes Act
(1884) abolished the remedy of imprisonment;
though a decree for the restitution of conjugal rights
can still be procured, and in case of disobedience
may serve in appropriate cases as the basis of an
order for the periodical payment of a stipend in the
character of alimony.
In the voluminous jurisprudence of the United States,
only one court, so far as we can discover, has ever
attempted to make a preemptory order requiring one
of the spouses to live with the other; and that was in
a case where a wife was ordered to follow and live
with her husband, who had changed his domicile to

the City of New Orleans. The decision referred to

(Bahn v. Darby, 36 La. Ann., 70) was based on a
provision of the Civil Code of Louisiana similar to
article 56 of the Spanish Civil Code. It was decided
many years ago, and the doctrine evidently has not
been fruitful even in the State of Louisiana. In other
states of the American Union the idea of enforcing
cohabitation by process of contempt is rejected. (21
Cyc., 1148).
In a decision of January 2, 1909, the Supreme Court
of Spain appears to have affirmed an order of the
Audiencia Territorial de Valladolid requiring a wife to
return to the marital domicile, and in the alternative,
upon her failure to do so, to make a particular
disposition of certain money and effects then in her
possession and to deliver to her husband, as
administrator of the ganancial property, all income,
rents, and interest which might accrue to her from
the property which she had brought to the marriage.
(113 Jur. Civ., pp. 1, 11) But it does not appear that
this order for the return of the wife to the marital
domicile was sanctioned by any other penalty than
the consequences that would be visited upon her in
respect to the use and control of her property; and it
does not appear that her disobedience to that order
would
necessarily
have
been
followed
by
imprisonment for contempt.
Parenthetically when Petitioner was married to then Congressman
Marcos, in 1954, petitioner was obliged by virtue of Article 110 of
the Civil Code to follow her husband's actual place of residence
fixed by him. The problem here is that at that time, Mr. Marcos had
several places of residence, among which were San Juan, Rizal and
Batac, Ilocos Norte. There is no showing which of these places Mr.
Marcos did fix as his family's residence. But assuming that Mr.
Marcos had fixed any of these places as the conjugal residence,
what petitioner gained upon marriage was actual residence. She
did not lose her domicile of origin.

On the other hand, the common law concept of "matrimonial

domicile" appears to have been incorporated, as a result of our
jurisprudential experiences after the drafting of the Civil Code of
1950, into the New Family Code. To underscore the difference
between the intentions of the Civil Code and the Family Code
drafters, the term residence has been supplanted by the term
domicile in an entirely new provision (Art. 69) distinctly different in
meaning and spirit from that found in Article 110. The provision
recognizes revolutionary changes in the concept of women's rights
in the intervening years by making the choice of domicile a product
of mutual agreement between the spouses. 46
Without as much belaboring the point, the term residence may
mean one thing in civil law (or under the Civil Code) and quite
another thing in political law. What stands clear is that insofar as
the Civil Code is concerned-affecting the rights and obligations of
husband and wife the term residence should only be interpreted
to mean "actual residence." The inescapable conclusion derived
from this unambiguous civil law delineation therefore, is that when
petitioner married the former President in 1954, she kept her
domicile of origin and merely gained a new home, not a domicilium
necessarium.
Even assuming for the sake of argument that petitioner gained a
new "domicile" after her marriage and only acquired a right to
choose a new one after her husband died, petitioner's acts
following her return to the country clearly indicate that she not only
impliedly but expressly chose her domicile of origin (assuming this
was lost by operation of law) as her domicile. This "choice" was
unequivocally expressed in her letters to the Chairman of the PCGG
when petitioner sought the PCGG's permission to "rehabilitate (our)
ancestral house in Tacloban and Farm in Olot, Leyte. . . to make
them livable for the Marcos family to have a home in our
homeland." 47 Furthermore, petitioner obtained her residence
certificate in 1992 in Tacloban, Leyte, while living in her brother's
house, an act which supports the domiciliary intention clearly
manifested in her letters to the PCGG Chairman. She could not
have gone straight to her home in San Juan, as it was in a state of
disrepair, having been previously looted by vandals. Her "homes"
and "residences" following her arrival in various parts of Metro

Manila merely qualified as temporary or "actual residences," not

domicile. Moreover, and proceeding from our discussion pointing
out specific situations where the female spouse either reverts to
her domicile of origin or chooses a new one during the subsistence
of the marriage, it would be highly illogical for us to assume that
she cannot regain her original domicile upon the death of her
husband absent a positive act of selecting a new one where
situations exist within the subsistence of the marriage itself where
the wife gains a domicile different from her husband.
In the light of all the principles relating to residence and domicile
enunciated by this court up to this point, we are persuaded that the
facts established by the parties weigh heavily in favor of a
conclusion supporting petitioner's claim of legal residence or
domicile in the First District of Leyte.
II. The jurisdictional issue
Petitioner alleges that the jurisdiction of the COMELEC had already
lapsed considering that the assailed resolutions were rendered on
April 24, 1995, fourteen (14) days before the election in violation of
Section 78 of the Omnibus Election Code. 48 Moreover, petitioner
contends that it is the House of Representatives Electoral Tribunal
and not the COMELEC which has jurisdiction over the election of
members of the House of Representatives in accordance with
Article VI Sec. 17 of the Constitution. This is untenable.
It is a settled doctrine that a statute requiring rendition of judgment
within a specified time is generally construed to be merely
directory, 49 "so that non-compliance with them does not invalidate
the judgment on the theory that if the statute had intended such
result it would have clearly indicated it." 50 The difference between
a mandatory and a directory provision is often made on grounds of
necessity. Adopting the same view held by several American
authorities, this court in Marcelino vs. Cruz held that: 51
The difference between a mandatory and directory
provision is often determined on grounds of
expediency, the reason being that less injury results

to the general public by disregarding than enforcing

the letter of the law.
In Trapp v. Mc Cormick, a case calling for the
interpretation of a statute containing a limitation of
thirty (30) days within which a decree may be
entered without the consent of counsel, it was held
that "the statutory provisions which may be thus
departed from with impunity, without affecting the
validity of statutory proceedings, are usually those
which relate to the mode or time of doing that which
is essential to effect the aim and purpose of the
Legislature or some incident of the essential act."
Thus, in said case, the statute under examination
was construed merely to be directory.
The mischief in petitioner's contending that the COMELEC should
have abstained from rendering a decision after the period stated in
the Omnibus Election Code because it lacked jurisdiction, lies in the
fact that our courts and other quasi-judicial bodies would then
refuse to render judgments merely on the ground of having failed
to reach a decision within a given or prescribed period.

It would be an abdication of many of the ideals enshrined in the

1987 Constitution for us to either to ignore or deliberately make
distinctions in law solely on the basis of the personality of a
petitioner in a case. Obviously a distinction was made on such a
ground here. Surely, many established principles of law, even of
election laws were flouted for the sake perpetuating power during
the pre-EDSA regime. We renege on these sacred ideals, including
the meaning and spirit of EDSA ourselves bending established
principles of principles of law to deny an individual what he or she
justly deserves in law. Moreover, in doing so, we condemn
ourselves to repeat the mistakes of the past.
WHEREFORE, having determined that petitioner possesses the
necessary residence qualifications to run for a seat in the House of
Representatives in the First District of Leyte, the COMELEC's
questioned Resolutions dated April 24, May 7, May 11, and May 25,
1995 are hereby SET ASIDE. Respondent COMELEC is hereby
directed to order the Provincial Board of Canvassers to proclaim
petitioner as the duly elected Representative of the First District of
Leyte.
SO ORDERED.

In any event, with the enactment of Sections 6 and 7 of R.A. 6646

in relation to Section 78 of B.P. 881, 52 it is evident that the
respondent Commission does not lose jurisdiction to hear and
decide a pending disqualification case under Section 78 of B.P. 881
even after the elections.
As to the House of Representatives Electoral Tribunal's supposed
assumption of jurisdiction over the issue of petitioner's
qualifications after the May 8, 1995 elections, suffice it to say that
HRET's jurisdiction as the sole judge of all contests relating to the
elections, returns and qualifications of members of Congress begins
only after a candidate has become a member of the House of
Representatives. 53 Petitioner not being a member of the House of
Representatives, it is obvious that the HRET at this point has no
jurisdiction over the question.

G.R. No. L-53703 August 19, 1986

LILIA OLIVA WIEGEL, petitioner,
vs.
THE HONORABLE ALICIA V. SEMPIO-DIY (as presiding judge
of the Juvenile and Domestic Relations Court of Caloocan
City) and KARL HEINZ WIEGEL, respondents.
PARAS, J.:

In an action (Family Case No. 483) filed before the erstwhile

Juvenile and Domestic Relations Court of Caloocan City, herein
respondent Karl Heinz Wiegel (plaintiff therein) asked for the
declaration of Nullity of his marriage (celebrated on July, 1978 at
the Holy Catholic Apostolic Christian Church Branch in Makati,
Metro Manila) with herein petitioner Lilia Oliva Wiegel (Lilia, for
short, and defendant therein) on the ground of Lilia's previous
existing marriage to one Eduardo A. Maxion, the ceremony having
been performed on June 25, 1972 at our Lady of Lourdes Church in
Quezon City. Lilia, while admitting the existence of said prior
subsisting marriage claimed that said marriage was null and void,
she and the first husband Eduardo A. Maxion having been allegedly
forced to enter said marital union. In the pre-trial that ensued, the
issue agreed upon by both parties was the status of the first
marriage (assuming the presence of force exerted against both
parties): was said prior marriage void or was it merely voidable?
Contesting the validity of the pre-trial order, Lilia asked the
respondent court for an opportunity to present evidence(1) that the first marriage was vitiated by force exercised upon both
her and the first husband; and
(2) that the first husband was at the time of the marriage in 1972
already married to someone else.
Respondent judge ruled against the presentation of evidence
because the existence of force exerted on both parties of the first
marriage had already been agreed upon. Hence, the present
petition for certiorari assailing the following Orders of
therespondent Judge(1) the Order dated March 17, 1980 in which the parties were
compelled to submit the case for resolution based on "agreed
facts;" and
(2) the Order dated April 14, 1980, denying petitioner's motion to
allow her to present evidence in her favor.
We find the petition devoid of merit.

There is no need for petitioner to prove that her first marriage was
vitiated by force committed against both parties because assuming
this to be so, the marriage will not be void but merely viodable (Art.
85, Civil Code), and therefore valid until annulled. Since no
annulment has yet been made, it is clear that when she married
respondent she was still validly married to her first husband,
consequently, her marriage to respondent is VOID (Art. 80, Civil
Code).
There is likewise no need of introducing evidence about the existing
prior marriage of her first husband at the time they married each
other, for then such a marriage though void still needs according to
this Court a judicial declaration 1 of such fact and for all legal
intents and purposes she would still be regarded as a married
woman at the time she contracted her marriage with respondent
Karl Heinz Wiegel); accordingly, the marriage of petitioner and
respondent would be regarded VOID under the law.
WHEREFORE, this petition is hereby DISMISSED, for lack of merit,
and the Orders complained of are hereby AFFIRMED. Costs against
petitioner.
SO ORDERED.

parcel of agricultural land located at San Felipe, Binalonan,

Pangasinan with an area of 10,080 square meters. Consequently,
Transfer Certificate of Title No. 101736 covering said rice land was
issued in their names.
G.R. No. 116668 July 28, 1997
ERLINDA A. AGAPAY, petitioner,
vs.
CARLINA (CORNELIA) V. PALANG and HERMINIA P. DELA
CRUZ, respondents.
ROMERO, J.:
Before us is a petition for review of the decision of the Court of
Appeals in CA-G.R. CV No. 24199 entitled "Erlinda Agapay v. Carlina
(Cornelia) Palang and Herminia P. Dela Cruz" dated June 22, 1994
involving the ownership of two parcels of land acquired during the
cohabitation of petitioner and private respondent's legitimate
spouse.
Miguel Palang contracted his first marriage on July 16, 1949 when
he took private respondent Carlina (or Cornelia) Vallesterol as a
wife at the Pozorrubio Roman Catholic Church in Pangasinan. A few
months after the wedding, in October 1949, he left to work in
Hawaii. Miguel and Carlina's only child, Herminia Palang, was born
on May 12, 1950.
Miguel returned in 1954 for a year. His next visit to the Philippines
was in 1964 and during the entire duration of his year-long sojourn
he stayed in Zambales with his brother, not in Pangasinan with his
wife and child. The trial court found evidence that as early as 1957,
Miguel had attempted to divorce Carlina in Hawaii. 1 When he
returned for good in 1972, he refused to live with private
respondents, but stayed alone in a house in Pozorrubio,
Pangasinan.
On July 15, 1973, the then sixty-three-year-old Miguel contracted
his second marriage with nineteen-year-old Erlinda Agapay, herein
petitioner. 2 Two months earlier, on May 17, 1973, Miguel and
Erlinda, as evidenced by the Deed of Sale, jointly purchased a

A house and lot in Binalonan, Pangasinan was likewise purchased

on September 23, 1975, allegedly by Erlinda as the sole vendee.
TCT No. 143120 covering said property was later issued in her
name.
On October 30, 1975, Miguel and Cornelia Palang executed a Deed
of Donation as a form of compromise agreement to settle and end a
case filed by the latter. 3 The parties therein agreed to donate their
conjugal property consisting of six parcels of land to their only
child, Herminia Palang. 4
Miguel and Erlinda's cohabitation produced a son, Kristopher A.
Palang, born on December 6, 1977. In 1979, Miguel and Erlinda
were convicted of Concubinage upon Carlina's complaint. 5 Two
years later, on February 15, 1981, Miguel died.
On July 11, 1981, Carlina Palang and her daughter Herminia Palang
de la Cruz, herein private respondents, instituted the case at bar,
an action for recovery of ownership and possession with damages
against petitioner before the Regional Trial Court in Urdaneta,
Pangasinan (Civil Case No. U-4265). Private respondents sought to
get back the riceland and the house and lot both located at
Binalonan, Pangasinan allegedly purchased by Miguel during his
cohabitation with petitioner.
Petitioner, as defendant below, contended that while the riceland
covered by TCT No. 101736 is registered in their names (Miguel and
Erlinda), she had already given her half of the property to their son
Kristopher Palang. She added that the house and lot covered by
TCT No. 143120 is her sole property, having bought the same with
her own money. Erlinda added that Carlina is precluded from
claiming aforesaid properties since the latter had already donated
their conjugal estate to Herminia.

After trial on the merits, the lower court rendered its decision on
June 30, 1989 dismissing the complaint after declaring that there
was little evidence to prove that the subject properties pertained to
the conjugal property of Carlina and Miguel Palang. The lower court
went on to provide for the intestate shares of the parties,
particularly of Kristopher Palang, Miguel's illegitimate son. The
dispositive portion of the decision reads.
WHEREFORE, premises considered, judgment is hereby
rendered

On appeal, respondent court reversed the trial court's decision. The

Court of Appeals rendered its decision on July 22, 1994 with the
following dispositive portion;
WHEREFORE, PREMISES CONSIDERED, the appealed
decision in hereby REVERSED and another one entered:
1. Declaring plaintiffs-appellants
properties in question;

the

owners

of

the

1) Dismissing the complaint, with costs against plaintiffs;

2. Ordering defendant-appellee to vacate and deliver the

properties in question to herein plaintiffs-appellants;

2) Confirming the ownership of defendant Erlinda Agapay of

the residential lot located at Poblacion, Binalonan,
Pangasinan, as evidenced by TCT No. 143120, Lot 290-B
including the old house standing therein;

3. Ordering the Register of Deeds of Pangasinan to cancel

Transfer Certificate of Title Nos. 143120 and 101736 and to
issue in lieu thereof another certificate of title in the name
of plaintiffs-appellants.

3) Confirming the ownership of one-half (1/2) portion of that

piece of agricultural land situated at Balisa, San Felipe,
Binalonan, Pangasinan, consisting of 10,080 square meters
and as evidenced by TCT No. 101736, Lot 1123-A to Erlinda
Agapay;

No pronouncement as to costs. 7

4. Adjudicating to Kristopher Palang as his inheritance from

his deceased father, Miguel Palang, the one-half (1/2) of the
agricultural land situated at Balisa, San Felipe, Binalonan,
Pangasinan, under TCT No. 101736 in the name of Miguel
Palang, provided that the former (Kristopher) executes,
within 15 days after this decision becomes final and
executory, a quit-claim forever renouncing any claims to
annul/reduce the donation to Herminia Palang de la Cruz of
all conjugal properties of her parents, Miguel Palang and
Carlina Vallesterol Palang, dated October 30, 1975,
otherwise, the estate of deceased Miguel Palang will have to
be settled in another separate action;
5) No pronouncement as to damages and attorney's fees.
SO ORDERED. 6

Hence, this petition.

Petitioner claims that the Court of Appeals erred in not sustaining
the validity of two deeds of absolute sale covering the riceland and
the house and lot, the first in favor of Miguel Palang and Erlinda
Agapay and the second, in favor of Erlinda Agapay alone. Second,
petitioner contends that respondent appellate court erred in not
declaring Kristopher A. Palang as Miguel Palang's illegitimate son
and thus entitled to inherit from Miguel's estate. Third, respondent
court erred, according to petitioner, "in not finding that there is
sufficient pleading and evidence that Kristopher A. Palang or
Christopher A. Palang should be considered as party-defendant in
Civil Case No. U-4625 before the trial court and in CA-G.R. No.
24199. 8
After studying the merits of the instant case, as well as the
pertinent provisions of law and jurisprudence, the Court denies the
petition and affirms the questioned decision of the Court of
Appeals.

The first and principal issue is the ownership of the two pieces of
property subject of this action. Petitioner assails the validity of the
deeds of conveyance over the same parcels of land. There is no
dispute that the transfer of ownership from the original owners of
the riceland and the house and lot, Corazon Ilomin and the spouses
Cespedes, respectively, were valid.
The sale of the riceland on May 17, 1973, was made in favor of
Miguel and Erlinda. The provision of law applicable here is Article
148 of the Family Code providing for cases of cohabitation when a
man and a woman who are notcapacitated to marry each other live
exclusively with each other as husband and wife without the benefit
of marriage or under a void marriage. While Miguel and Erlinda
contracted marriage on July 15, 1973, said union was patently void
because the earlier marriage of Miguel and Carlina was still
subsisting and unaffected by the latter'sde facto separation.
Under Article 148, only the properties acquired by both of the
parties through their actual joint contribution of money, property or
industry shall be owned by them in common in proportion to their
respective contributions. It must be stressed that actual
contribution is required by this provision, in contrast to Article 147
which states that efforts in the care and maintenance of the family
and household, are regarded as contributions to the acquisition of
common property by one who has no salary or income or work or
industry. If the actual contribution of the party is not proved, there
will be no co-ownership and no presumption of equal shares. 9
In the case at bar, Erlinda tried to establish by her testimony that
she is engaged in the business of buy and sell and had a sarisari store 10 but failed to persuade us that she actually contributed
money to buy the subject riceland. Worth noting is the fact that on
the date of conveyance, May 17, 1973, petitioner was only around
twenty years of age and Miguel Palang was already sixty-four and a
pensioner of the U.S. Government. Considering her youthfulness, it
is unrealistic to conclude that in 1973 she contributed P3,750.00 as
her share in the purchase price of subject property, 11 there being
no proof of the same.

Petitioner now claims that the riceland was bought two months
before Miguel and Erlinda actually cohabited. In the nature of an
afterthought, said added assertion was intended to exclude their
case from the operation of Article 148 of the Family Code. Proof of
the precise date when they commenced their adulterous
cohabitation not having been adduced, we cannot state definitively
that the riceland was purchased even before they started living
together. In any case, even assuming that the subject property was
bought before cohabitation, the rules of co-ownership would still
apply and proof of actual contribution would still be essential.
Since petitioner failed to prove that she contributed money to the
purchase price of the riceland in Binalonan, Pangasinan, we find no
basis to justify her co-ownership with Miguel over the same.
Consequently, the riceland should, as correctly held by the Court of
Appeals, revert to the conjugal partnership property of the
deceased Miguel and private respondent Carlina Palang.
Furthermore, it is immaterial that Miguel and Carlina previously
agreed to donate their conjugal property in favor of their daughter
Herminia in 1975. The trial court erred in holding that the decision
adopting their compromise agreement "in effect partakes the
nature of judicial confirmation of the separation of property
between spouses and the termination of the conjugal
partnership." 12 Separation of property between spouses during the
marriage shall not take place except by judicial order or without
judicial conferment when there is an express stipulation in the
marriage settlements. 13 The judgment which resulted from the
parties' compromise was not specifically and expressly for
separation of property and should not be so inferred.
With respect to the house and lot, Erlinda allegedly bought the
same for P20,000.00 on September 23, 1975 when she was only 22
years old. The testimony of the notary public who prepared the
deed of conveyance for the property reveals the falsehood of this
claim. Atty. Constantino Sagun testified that Miguel Palang provided
the money for the purchase price and directed that Erlinda's name
alone be placed as the vendee. 14

The transaction was properly a donation made by Miguel to Erlinda,

but one which was clearly void and inexistent by express provision
of law because it was made between persons guilty of adultery or
concubinage at the time of the donation, under Article 739 of the
Civil Code. Moreover, Article 87 of the Family Code expressly
provides that the prohibition against donations between spouses
now applies to donations between persons living together as
husband and wife without a valid marriage, 15 for otherwise, the
condition of those who incurred guilt would turn out to be better
than those in legal union. 16

WHEREFORE, the instant petition is hereby DENIED. The questioned

decision of the Court of Appeals is AFFIRMED. Costs against
petitioner.
SO ORDERED.

The second issue concerning Kristopher Palang's status and claim

as an illegitimate son and heir to Miguel's estate is here resolved in
favor of respondent court's correct assessment that the trial court
erred in making pronouncements regarding Kristopher's heirship
and filiation "inasmuch as questions as to who are the heirs of the
decedent, proof of filiation of illegitimate children and the
determination of the estate of the latter and claims thereto should
be ventilated in the proper probate court or in a special proceeding
instituted for the purpose and cannot be adjudicated in the instant
ordinary civil action which is for recovery of ownership and
possession." 17
As regards the third issue, petitioner contends that Kristopher
Palang should be considered as party-defendant in the case at bar
following the trial court's decision which expressly found that
Kristopher had not been impleaded as party defendant but
theorized that he had submitted to the court's jurisdiction through
his mother/guardian ad litem. 18 The trial court erred gravely.
Kristopher, not having been impleaded, was, therefore, not a party
to the case at bar. His mother, Erlinda cannot be called his
guardian ad litem for he was not involved in the case at bar.
Petitioner adds that there is no need for Kristopher to file another
action to prove that he is illegitimate son of Miguel, in order to
avoid multiplicity of suits. 19 Petitioner's grave error has been
discussed in the preceding paragraph where the need for probate
proceedings to resolve the settlement of Miguel's estate and
Kristopher's successional rights has been pointed out.

G.R. No. 112019 January 4, 1995

LEOUEL SANTOS, petitioner,
vs.
THE HONORABLE COURT OF APPEALS AND JULIA ROSARIO
BEDIA-SANTOS, respondents.
VITUG, J.:
Concededly a highly, if not indeed the most likely, controversial
provision introduced by the Family Code is Article 36 (as amended
by E.O. No. 227 dated 17 July 1987), which declares:

Art. 36. A marriage contracted by any party who, at

the time of the celebration, was psychologically
incapacitated to comply with the essential marital
obligations of marriage, shall likewise be void even if
such incapacity becomes manifest only after its
solemnization.
The present petition for review on certiorari, at the instance
of Leouel Santos ("Leouel"), brings into fore the above
provision which is now invoked by him. Undaunted by the
decisions of the court a quo 1 and the Court of
Appeal, 2 Leouel persists in beseeching its application in his
attempt to have his marriage with herein private
respondent, Julia Rosario Bedia-Santos ("Julia"), declared a
nullity.
It was in Iloilo City where Leouel, who then held the rank of First
Lieutenant in the Philippine Army, first met Julia. The meeting later
proved to be an eventful day for Leouel and Julia. On 20 September
1986, the two exchanged vows before Municipal Trial Court Judge
Cornelio G. Lazaro of Iloilo City, followed, shortly thereafter, by a
church wedding. Leouel and Julia lived with the latter's parents at
the J. Bedia Compound, La Paz, Iloilo City. On 18 July 1987, Julia
gave birth to a baby boy, and he was christened Leouel Santos, Jr.
The ecstasy, however, did not last long. It was bound to happen,
Leouel averred, because of the frequent interference by Julia's
parents into the young spouses family affairs. Occasionally, the
couple would also start a "quarrel" over a number of other things,
like when and where the couple should start living independently
from Julia's parents or whenever Julia would express resentment on
Leouel's spending a few days with his own parents.
On 18 May 1988, Julia finally left for the United Sates of America to
work as a nurse despite Leouel's pleas to so dissuade her. Seven
months after her departure, or on 01 January 1989, Julia called up
Leouel for the first time by long distance telephone. She promised
to return home upon the expiration of her contract in July 1989. She
never did. When Leouel got a chance to visit the United States,
where he underwent a training program under the auspices of the
Armed Forces of the Philippines from 01 April up to 25 August 1990,

he desperately tried to locate, or to somehow get in touch with,

Julia but all his efforts were of no avail.
Having failed to get Julia to somehow come home, Leouel filed with
the regional trial Court of Negros Oriental, Branch 30, a complaint
for "Voiding of marriage Under Article 36 of the Family Code"
(docketed, Civil Case No. 9814). Summons was served by
publication in a newspaper of general circulation in Negros Oriental.
On 31 May 1991, respondent Julia, in her answer (through counsel),
opposed the complaint and denied its allegations, claiming, in
main, that it was the petitioner who had, in fact, been irresponsible
and incompetent.
A possible collusion between the parties to obtain a decree of
nullity of their marriage was ruled out by the Office of the Provincial
Prosecutor (in its report to the court).
On 25 October 1991, after pre-trial conferences had repeatedly
been set, albeit unsuccessfully, by the court, Julia ultimately filed a
manifestation, stating that she would neither appear nor submit
evidence.
On 06 November 1991, the court a quo finally dismissed the
complaint for lack of merit. 3
Leouel appealed to the Court of Appeal. The latter affirmed the
decision of the trial court. 4
The petition should be denied not only because of its noncompliance with Circular 28-91, which requires a certification of
non-shopping, but also for its lack of merit.
Leouel argues that the failure of Julia to return home, or at the very
least to communicate with him, for more than five years are
circumstances that clearly show her being psychologically
incapacitated to enter into married life. In his own words, Leouel
asserts:

. . . (T)here is no leave, there is no affection for (him)

because respondent Julia Rosario Bedia-Santos failed
all these years to communicate with the petitioner. A
wife who does not care to inform her husband about
her whereabouts for a period of five years, more or
less, is psychologically incapacitated.
The family Code did not define the term "psychological incapacity."
The deliberations during the sessions of the Family Code Revision
Committee, which has drafted the Code, can, however, provide an
insight on the import of the provision.
Art. 35. The following marriages shall be void from
the beginning:
xxx xxx xxx
Art. 36. . . .
(7) Those marriages contracted by any party who, at
the time of the celebration, was wanting in the
sufficient use of reason or judgment to understand
the
essential
nature
of
marriage
or
was
psychologically
or
mentally
incapacitated
to
discharge the essential marital obligations, even if
such lack of incapacity is made manifest after the
celebration.
On subparagraph (7), which as lifted from the Canon
Law, Justice (Jose B.L.) Reyes suggested that they
say "wanting in sufficient use," but Justice (Eduardo)
Caguioa preferred to say "wanting in the sufficient
use." On the other hand, Justice Reyes proposed that
they say "wanting in sufficient reason." Justice
Caguioa, however, pointed out that the idea is that
one is not lacking in judgment but that he is lacking
in the exercise of judgment. He added that lack of
judgment would make the marriage voidable. Judge
(Alicia Sempio-) Diy remarked that lack of judgment
is more serious than insufficient use of judgment and

yet the latter would make the marriage null and void
and the former only voidable. Justice Caguioa
suggested that subparagraph (7) be modified to
read:
"That contracted by any party who, at
the time of the celebration, was
psychologically
incapacitated
to
discharge
the
essential
marital
obligations, even if such lack of
incapacity is made manifest after the
celebration."
Justice Caguioa explained that the phrase "was
wanting in sufficient use of reason of judgment to
understand the essential nature of marriage" refers
to defects in the mental faculties vitiating consent,
which is not the idea in subparagraph (7), but lack of
appreciation of one's marital obligations.
Judge Diy raised the question: Since "insanity" is also
a psychological or mental incapacity, why is
"insanity" only a ground for annulment and not for
declaration or nullity? In reply, Justice Caguioa
explained that in insanity, there is the appearance of
consent, which is the reason why it is a ground for
voidable marriages, while subparagraph (7) does not
refer to consent but to the very essence of marital
obligations.
Prof.
(Araceli)
Baviera
suggested
that,
in
subparagraph (7), the word "mentally" be deleted,
with which Justice Caguioa concurred. Judge Diy,
however, prefers to retain the word "mentally."
Justice Caguioa remarked that subparagraph (7)
refers to psychological impotence. Justice (Ricardo)
Puno stated that sometimes a person may be
psychologically impotent with one but not with

another. Justice (Leonor Ines-) Luciano said that it is

called selective impotency.
Dean (Fortunato) Gupit stated that the confusion lies
in the fact that in inserting the Canon Law annulment
in the Family Code, the Committee used a language
which describes a ground for voidable marriages
under the Civil Code. Justice Caguioa added that in
Canon Law, there are voidable marriages under the
Canon Law, there are no voidable marriages Dean
Gupit said that this is precisely the reason why they
should make a distinction.
Justice Puno remarked that in Canon Law, the defects
in marriage cannot be cured.
Justice Reyes pointed out that the problem is: Why is
"insanity" a ground for void ab initio marriages? In
reply, Justice Caguioa explained that insanity is
curable and there are lucid intervals, while
psychological incapacity is not.
On another point, Justice Puno suggested that the
phrase "even if such lack or incapacity is made
manifest" be modified to read "even if such lack or
incapacity becomes manifest."
Justice Reyes remarked that in insanity, at the time of
the marriage, it is not apparent.
Justice Caguioa stated that there are two
interpretations of the phrase "psychological or
mentally incapacitated" in the first one, there is
vitiation of consent because one does not know all
the consequences of the marriages, and if he had
known these completely, he might not have
consented to the marriage.
xxx xxx xxx

Prof. Bautista stated that he is in favor of making

psychological incapacity a ground for voidable
marriages since otherwise it will encourage one who
really understood the consequences of marriage to
claim that he did not and to make excuses for
invalidating the marriage by acting as if he did not
understand the obligations of marriage. Dean Gupit
added that it is a loose way of providing for divorce.
xxx xxx xxx
Justice Caguioa explained that his point is that in the
case of incapacity by reason of defects in the mental
faculties, which is less than insanity, there is a defect
in consent and, therefore, it is clear that it should be
a ground for voidable marriage because there is the
appearance of consent and it is capable of
convalidation for the simple reason that there are
lucid intervals and there are cases when the insanity
is curable. He emphasized that psychological
incapacity does not refer to mental faculties and has
nothing to do with consent; it refers to obligations
attendant to marriage.
xxx xxx xxx
On psychological incapacity, Prof. (Flerida Ruth P.)
Romero inquired if they do not consider it as going to
the very essence of consent. She asked if they are
really removing it from consent. In reply, Justice
Caguioa explained that, ultimately, consent in
general is effected but he stressed that his point is
that it is not principally a vitiation of consent since
there is a valid consent. He objected to the lumping
together of the validity of the marriage celebration
and the obligations attendant to marriage, which are
completely different from each other, because they
require a different capacity, which is eighteen years
of age, for marriage but in contract, it is different.
Justice Puno, however, felt that psychological

incapacity is still a kind of vice of consent and that it

should not be classified as a voidable marriage which
is incapable of convalidation; it should be
convalidated but there should be no prescription. In
other words, as long as the defect has not been
cured, there is always a right to annul the marriage
and if the defect has been really cured, it should be a
defense in the action for annulment so that when the
action for annulment is instituted, the issue can be
raised that actually, although one might have been
psychologically incapacitated, at the time the action
is brought, it is no longer true that he has no concept
of the consequence of marriage.
Prof. (Esteban) Bautista raised the question: Will not
cohabitation be a defense? In response, Justice Puno
stated that even the bearing of children and
cohabitation should not be a sign that psychological
incapacity has been cured.
Prof. Romero opined that psychological incapacity is
still insanity of a lesser degree. Justice Luciano
suggested that they invite a psychiatrist, who is the
expert on this matter. Justice Caguioa, however,
reiterated that psychological incapacity is not a
defect in the mind but in the understanding of the
consequences of marriage, and therefore, a
psychiatrist will not be a help.
Prof. Bautista stated that, in the same manner that
there is a lucid interval in insanity, there are also
momentary periods when there is an understanding
of the consequences of marriage. Justice Reyes and
Dean Gupit remarked that the ground of
psychological incapacity will not apply if the marriage
was contracted at the time when there is
understanding of the consequences of marriage. 5

Judge Diy proposed that they include physical

incapacity to copulate among the grounds for void
marriages. Justice Reyes commented that in some
instances the impotence that in some instances the
impotence is only temporary and only with respect to
a particular person. Judge Diy stated that they can
specify that it is incurable. Justice Caguioa remarked
that the term "incurable" has a different meaning in
law and in medicine. Judge Diy stated that
"psychological incapacity" can also be cured. Justice
Caguioa, however, pointed out that "psychological
incapacity" is incurable.
Justice Puno observed that under the present draft
provision, it is enough to show that at the time of the
celebration of the marriage, one was psychologically
incapacitated so that later on if already he can
comply with the essential marital obligations, the
marriage is still void ab initio. Justice Caguioa
explained that since in divorce, the psychological
incapacity may occur after the marriage, in void
marriages, it has to be at the time of the celebration
of marriage. He, however, stressed that the idea in
the provision is that at the time of the celebration of
the marriage, one is psychologically incapacitated to
comply with the essential marital obligations, which
incapacity continues and later becomes manifest.
Justice Puno and Judge Diy, however, pointed out
that it is possible that after the marriage, one's
psychological incapacity become manifest but later
on he is cured. Justice Reyes and Justice Caguioa
opined that the remedy in this case is to allow him to
remarry. 6
xxx xxx xxx
Justice Puno formulated the next Article as follows:

xxx xxx xxx

Art. 37. A marriage contracted by any

party who, at the time of the
celebration,
was
psychologically
incapacitated, to comply with the
essential obligations of marriage shall
likewise be void from the beginning
even if such incapacity becomes
manifest after its solemnization.
Justice Caguioa suggested that "even if" be
substituted with "although." On the other hand, Prof.
Bautista proposed that the clause "although such
incapacity becomes manifest after its solemnization"
be deleted since it may encourage one to create the
manifestation of psychological incapacity. Justice
Caguioa pointed out that, as in other provisions, they
cannot argue on the basis of abuse.

consent. He explained that "psychological incapacity"

refers to lack of understanding of the essential
obligations of marriage.
Justice Puno reminded the members that, at the last
meeting, they have decided not to go into the
classification of "psychological incapacity" because
there was a lot of debate on it and that this is
precisely the reason why they classified it as a
special case.
At this point, Justice Puno, remarked that, since there
having been annulments of marriages arising from
psychological incapacity, Civil Law should not
reconcile with Canon Law because it is a new ground
even under Canon Law.

Judge Diy suggested that they also include mental

and physical incapacities, which are lesser in degree
than psychological incapacity. Justice Caguioa
explained that mental and physical incapacities are
vices of consent while psychological incapacity is not
a species of vice or consent.

Prof. Romero raised the question: With this common

provision in Civil Law and in Canon Law, are they
going to have a provision in the Family Code to the
effect that marriages annulled or declared void by
the church on the ground of psychological incapacity
is automatically annulled in Civil Law? The other
members replied negatively.

Dean Gupit read what Bishop Cruz said on the matter

in the minutes of their February 9, 1984 meeting:

Justice Puno and Prof. Romero inquired if Article 37

should be retroactive or prospective in application.

"On the third ground, Bishop Cruz

indicated
that
the
phrase
"psychological or mental impotence" is
an invention of some churchmen who
are moralists but not canonists, that is
why it is considered a weak phrase. He
said that the Code of Canon Law would
rather express it as "psychological or
mental incapacity to discharge . . ."

Justice Diy opined that she was for its retroactivity

because it is their answer to the problem of church
annulments of marriages, which are still valid under
the Civil Law. On the other hand, Justice Reyes and
Justice Puno were concerned about the avalanche of
cases.

Justice Caguioa remarked that they deleted the word

"mental" precisely to distinguish it from vice of

Dean Gupit suggested that they put the issue to a

vote, which the Committee approved.
The members voted as follows:

(1) Justice Reyes, Justice Puno and Prof. Romero were

for prospectivity.
(2) Justice Caguioa, Judge Diy, Dean Gupit, Prof.
Bautista and Director Eufemio were for retroactivity.
(3) Prof. Baviera abstained.
Justice Caguioa suggested that they put in the
prescriptive period of ten years within which the
action for declaration of nullity of the marriage
should be filed in court. The Committee approved the
suggestion. 7
It could well be that, in sum, the Family Code Revision Committee
in ultimately deciding to adopt the provision with less specificity
than expected, has in fact, so designed the law as to allow some
resiliency in its application. Mme. Justice Alicia V. Sempio-Diy, a
member of the Code Committee, has been quoted by Mr. Justice
Josue N. Bellosillo in Salita vs. Hon. Magtolis (G.R. No. 106429, 13
June 1994); thus: 8
The Committee did not give any examples of
psychological incapacity for fear that the giving of
examples would limit the applicability of the
provision under the principle of ejusdem generis.
Rather, the Committee would like the judge to
interpret the provision on a case-to-case basis,
guided by experience, the findings of experts and
researchers in psychological disciplines, and by
decisions of church tribunals which, although not
binding on the civil courts, may be given persuasive
effect since the provision was taken from Canon Law.
A part of the provision is similar to Canon 1095 of the New Code of
Canon Law, 9 which reads:
Canon 1095. They are incapable of contracting
marriage:

1. who lack sufficient use of reason;

2. who suffer from a grave defect of discretion of
judgment concerning essentila matrimonial rights
and duties, to be given and accepted mutually;
3. who for causes of psychological nature are unable
to assume the essential obligations of marriage.
(Emphasis supplied.)
Accordingly, although neither decisive nor even perhaps all that
persuasive for having no juridical or secular effect, the
jurisprudence under Canon Law prevailing at the time of the code's
enactment, nevertheless, cannot be dismissed as impertinent for
its value as an aid, at least, to the interpretation or construction of
the codal provision.
One author, Ladislas Orsy, S.J., in his treaties, 10 giving an account
on how the third paragraph of Canon 1095 has been framed,
states:
The history of the drafting of this canon does not
leave any doubt that the legislator intended, indeed,
to broaden the rule. A strict and narrow norm was
proposed first:
Those who cannot assume the
essential obligations of marriage
because of a grave psycho-sexual
anomaly (ob gravem anomaliam
psychosexualem)
are
unable
to
contract
marriage
(cf. SCH/1975,
canon 297, a new canon, novus);
then a broader one followed:
. . . because of a grave psychological anomaly (ob
gravem anomaliam psychicam) . . . (cf. SCH/1980,
canon 1049);

then the same wording was retained in the text

submitted to the pope (cf. SCH/1982, canon 1095, 3);
finally, a new version was promulgated:
because of causes of a psychological nature (ob
causas naturae psychiae).
So the progress was from psycho-sexual to
psychological anomaly, then the term anomaly was
altogether eliminated. it would be, however, incorrect
to draw the conclusion that the cause of the
incapacity need not be some kind of psychological
disorder; after all, normal and healthy person should
be able to assume the ordinary obligations of
marriage.
Fr. Orsy concedes that the term "psychological incapacity" defies
any precise definition since psychological causes can be of an
infinite variety.
In a book, entitled "Canons and Commentaries on Marriage,"
written by Ignatius Gramunt, Javier Hervada and LeRoy Wauck, the
following explanation appears:
This incapacity consists of the following: (a) a
true inability to commit oneself to the essentials of
marriage. Some psychosexual disorders and other
disorders of personality can be the psychic cause of
this defect, which is here described in legal terms.
This particular type of incapacity consists of a
real inability to render what is due by the contract.
This could be compared to the incapacity of a farmer
to enter a binding contract to deliver the crops which
he cannot possibly reap; (b) this inability to commit
oneself must refer to the essential obligations of
marriage: the conjugal act, the community of life and
love, the rendering of mutual help, the procreation
and education of offspring; (c) the inability must be
tantamount to a psychological abnormality. The mere

difficulty of assuming these obligations, which could

be overcome by normal effort, obviously does not
constitute incapacity. The canon contemplates a true
psychological disorder which incapacitates a person
from giving what is due (cf. John Paul II, Address to R.
Rota, Feb. 5, 1987). However, if the marriage is to be
declared invalid under this incapacity, it must be
proved not only that the person is afflicted by a
psychological defect, but that the defect did in
fact deprive the person, at the moment of giving
consent, of the ability to assume the essential duties
of marriage and consequently of the possibility of
being bound by these duties.
Justice Sempio-Diy 11 cites with approval the work of Dr. Gerardo
Veloso, a former Presiding Judge of the Metropolitan Marriage
Tribunal of the Catholic Archdiocese of Manila (Branch 1), who
opines that psychological incapacity must be characterized by (a)
gravity, (b) juridical antecedence, and (c) incurability. The
incapacity must be grave or serious such that the party would be
incapable of carrying out the ordinary duties required in marriage;
it must be rooted in the history of the party antedating the
marriage, although the overt manifestations may emerge only after
the marriage; and it must be incurable or, even if it were otherwise,
the cure would be beyond the means of the party involved.
It should be obvious, looking at all the foregoing disquisitions,
including, and most importantly, the deliberations of the Family
Code Revision Committee itself, that the use of the phrase
"psychological incapacity" under Article 36 of the Code has not
been meant to comprehend all such possible cases of psychoses
as, likewise mentioned by some ecclesiastical authorities,
extremely low intelligence, immaturity, and like circumstances
(cited in Fr. Artemio Baluma's "Void and Voidable Marriages in the
Family Code and their Parallels in Canon Law," quoting from the
Diagnostic Statistical Manual of Mental Disorder by the American
Psychiatric Association; Edward Hudson's "Handbook II for Marriage
Nullity Cases"). Article 36 of the Family Code cannot be taken and
construed independently of, but must stand in conjunction with,
existing precepts in our law on marriage. Thus correlated,

"psychological incapacity" should refer to no less than a mental

(not physical) incapacity that causes a party to be truly incognitive
of the basic marital covenants that concomitantly must be
assumed and discharged by the parties to the marriage which, as
so expressed by Article 68 of the Family Code, include their mutual
obligations to live together, observe love, respect and fidelity and
render help and support. There is hardly any doubt that the
intendment of the law has been to confine the meaning of
"psychological incapacity" to the most serious cases of personality
disorders clearly demonstrative of an utter intensitivity or inability
to give meaning and significance to the marriage. This pschologic
condition must exist at the time the marriage is celebrated. The law
does not evidently envision, upon the other hand, an inability of the
spouse to have sexual relations with the other. This conclusion is
implicit under Article 54 of the Family Code which considers
children conceived prior to the judicial declaration of nullity of the
void marriage to be "legitimate."

Marriage is not an adventure but a lifetime commitment. We should

continue to be reminded that innate in our society, then enshrined
in our Civil Code, and even now still indelible in Article 1 of the
Family Code, is that

The other forms of psychoses, if existing at the inception of

marriage, like the state of a party being of unsound mind or
concealment of drug addiction, habitual alcoholism, homosexuality
or
lesbianism,
merely
renders
the
marriage
contract voidable pursuant to Article 46, Family Code. If drug
addiction, habitual alcholism, lesbianism or homosexuality should
occur only during the marriage, they become mere grounds for
legal separation under Article 55 of the Family Code. These
provisions of the Code, however, do not necessarily preclude the
possibility of these various circumstances being themselves,
depending on the degree and severity of the disorder, indicia of
psychological incapacity.

Sec. 1. The State recognizes the Filipino family as the

foundation of the nation. Accordingly, it shall
strengthen its solidarity and actively promote its total
development.

Until further statutory and jurisprudential parameters are

established, every circumstance that may have some bearing on
the degree, extent, and other conditions of that incapacity must, in
every case, be carefully examined and evaluated so that no
precipitate and indiscriminate nullity is peremptorily decreed. The
well-considered opinions of psychiatrists, psychologists, and
persons with expertise in psychological disciplines might be helpful
or even desirable.

Art. 1. Marriage is a special contract of permanent

union between a man a woman entered into in
accordance with law for the establishment of
conjugal and family life. It is the foundation of the
family and an inviolable social institution whose
nature, consequences, and incidents are governed by
law and not subject to stipulation, except that
marriage settlements may fix the property relations
during the marriage within the limits provided by this
Code. (Emphasis supplied.)
Our Constitution is no less emphatic:

Sec. 2. Marriage, as an inviolable social institution, is

the foundation of the family and shall be protected
by the State. (Article XV, 1987 Constitution).
The above provisions express so well and so distinctly the basic
nucleus of our laws on marriage and the family, and they are doubt
the tenets we still hold on to.
The factual settings in the case at bench, in no measure at all, can
come close to the standards required to decree a nullity of
marriage. Undeniably and understandably, Leouel stands
aggrieved, even desperate, in his present situation. Regrettably,
neither law nor society itself can always provide all the specific
answers to every individual problem.
WHEREFORE, the petition is DENIED.

SO ORDERED.

G.R. No. 108763 February 13, 1997

REPUBLIC OF THE PHILIPPINES, petitioner,
vs.
COURT OF APPEALS and RORIDEL OLAVIANO
MOLINA, respondents.
PANGANIBAN, J.:
The Family Code of the Philippines provides an entirely new ground
(in addition to those enumerated in the Civil Code) to assail the
validity of a marriage, namely, "psychological incapacity." Since the
Code's effectivity, our courts have been swamped with various
petitions to declare marriages void based on this ground. Although
this Court had interpreted the meaning of psychological incapacity
in the recent case of Santos vs. Court of Appeals, still many judges
and lawyers find difficulty in applying said novel provision in
specific cases. In the present case and in the context of the herein
assailed Decision of the Court of Appeals, the Solicitor General has
labelled exaggerated to be sure but nonetheless expressive of
his frustration Article 36 as the "most liberal divorce procedure in
the world." Hence, this Court in addition to resolving the present
case, finds the need to lay down specific guidelines in the
interpretation and application of Article 36 of the Family Code.
Before us is a petition for review on certiorari under Rule 45
challenging the January 25, 1993 Decision1 of the Court of
Appeals 2 in CA-G.R. CV No. 34858 affirming in toto the May 14,
1991 decision of the Regional Trial Court of La Trinidad, 3 Benguet,
which declared the marriage of respondent Roridel Olaviano Molina
to Reynaldo Molina void ab initio, on the ground of "psychological
incapacity" under Article 36 of the Family Code.
The Facts

This case was commenced on August 16, 1990 with the filing by
respondent Roridel O. Molina of a verified petition for declaration of
nullity of her marriage to Reynaldo Molina. Essentially, the petition
alleged that Roridel and Reynaldo were married on April 14, 1985 at
the San Agustin Church 4 in Manila; that a son, Andre O. Molina was
born; that after a year of marriage, Reynaldo showed signs of
"immaturity and irresponsibility" as a husband and a father since
he preferred to spend more time with his peers and friends on
whom he squandered his money; that he depended on his parents
for aid and assistance, and was never honest with his wife in regard
to their finances, resulting in frequent quarrels between them; that
sometime in February 1986, Reynaldo was relieved of his job in
Manila, and since then Roridel had been the sole breadwinner of
the family; that in October 1986 the couple had a very intense
quarrel, as a result of which their relationship was estranged; that
in March 1987, Roridel resigned from her job in Manila and went to
live with her parents in Baguio City; that a few weeks later,
Reynaldo left Roridel and their child, and had since then abandoned
them; that Reynaldo had thus shown that he was psychologically
incapable of complying with essential marital obligations and was a
highly immature and habitually quarrel some individual who
thought of himself as a king to be served; and that it would be to
the couple's best interest to have their marriage declared null and
void in order to free them from what appeared to be an
incompatible marriage from the start.
In his Answer filed on August 28, 1989, Reynaldo admitted that he
and Roridel could no longer live together as husband and wife, but
contended that their misunderstandings and frequent quarrels were
due to (1) Roridel's strange behavior of insisting on maintaining her
group of friends even after their marriage; (2) Roridel's refusal to
perform some of her marital duties such as cooking meals; and (3)
Roridel's failure to run the household and handle their finances.
During the pre-trial on October 17, 1990, the following were
stipulated:
1. That the parties herein were legally married on
April 14, 1985 at the Church of St. Augustine, Manila;

2. That out of their marriage, a child named Albert

Andre Olaviano Molina was born on July 29, 1986;
3. That the parties are separated-in-fact for more
than three years;
4. That petitioner is not asking support for her and
her child;
5. That the respondent is not asking for damages;
6. That the common child of the parties is in the
custody of the petitioner wife.
Evidence for herein respondent wife consisted of her own testimony
and that of her friends Rosemarie Ventura and Maria Leonora
Padilla as well as of Ruth G. Lalas, a social worker, and of Dr.
Teresita Hidalgo-Sison, a psychiatrist of the Baguio General Hospital
and Medical Center. She also submitted documents marked as
Exhibits "A" to "E-1." Reynaldo did not present any evidence as he
appeared only during the pre-trial conference.
On May 14, 1991, the trial court rendered judgment declaring the
marriage void. The appeal of petitioner was denied by the Court of
Appeals which affirmed in toto the RTC's decision. Hence, the
present recourse.
The Issue
In his petition, the Solicitor General insists that "the Court of
Appeals made an erroneous and incorrect interpretation of the
phrase 'psychological incapacity' (as provided under Art. 36 of the
Family Code) and made an incorrect application thereof to the facts
of the case," adding that the appealed Decision tended "to
establish in effect the most liberal divorce procedure in the world
which is anathema to our culture."
In denying the Solicitor General's appeal, the respondent Court
relied 5 heavily on the trial court's findings "that the marriage
between the parties broke up because of their opposing and

conflicting personalities." Then, it added it sown opinion that "the

Civil Code Revision Committee (hereinafter referred to as
Committee) intended to liberalize the application of our civil laws
on personal and family rights. . . ." It concluded that:
As ground for annulment of marriage, We view
psychologically incapacity as a broad range of
mental and behavioral conduct on the part of one
spouse indicative of how he or she regards the
marital union, his or her personal relationship with
the other spouse, as well as his or her conduct in the
long haul for the attainment of the principal
objectives of marriage. If said conduct, observed and
considered as a whole, tends to cause the union to
self-destruct because it defeats the very objectives of
marriage, then there is enough reason to leave the
spouses to their individual fates.
In the case at bar, We find that the trial judge
committed no indiscretion in analyzing and deciding
the instant case, as it did, hence, We find no cogent
reason to disturb the findings and conclusions thus
made.
Respondent, in her Memorandum, adopts these discussions of the
Court of Appeals.
The petitioner, on the other hand, argues that "opposing and
conflicting personalities" is not equivalent to psychological
incapacity, explaining that such ground "is not simply
the neglect by the parties to the marriage of their responsibilities
and duties, but a defect in their psychological nature which renders
them incapable of performing such marital responsibilities and
duties."
The Court's Ruling
The petition is meritorious.

In Leouel Santos vs. Court of Appeals 6 this Court, speaking thru Mr.
Justice Jose C. Vitug, ruled that "psychological incapacity should
refer to no less than a mental (nor physical) incapacity . . . and that
(t)here is hardly any doubt that the intendment of the law has been
to confine the meaning of 'psychological incapacity' to the most
serious cases of personality disorders clearly demonstrative of an
utter insensitivity or inability to give meaning and significance to
the marriage. This psychologic condition must exist at the time the
marriage is celebrated." Citing Dr. Gerardo Veloso, a former
presiding judge of the Metropolitan Marriage Tribunal of the
Catholic Archdiocese of Manila, 7 Justice Vitug wrote that "the
psychological incapacity must be characterized by (a) gravity, (b)
juridical antecedence, and (c) incurability."
On the other hand, in the present case, there is no clear showing to
us that the psychological defect spoken of is an incapacity. It
appears to us to be more of a "difficulty," if not outright "refusal" or
"neglect" in the performance of some marital obligations. Mere
showing
of
"irreconciliable
differences"
and
"conflicting
personalities" in no wise constitutes psychological incapacity. It is
not enough to prove that the parties failed to meet their
responsibilities and duties as married persons; it is essential that
they must be shown to be incapable of doing so, due to some
psychological (nor physical) illness.
The evidence adduced by respondent merely showed that she and
her husband could nor get along with each other. There had been
no showing of the gravity of the problem; neither its juridical
antecedence nor its incurability. The expert testimony of Dr. Sison
showed no incurable psychiatric disorder but only incompatibility,
not psychological incapacity. Dr. Sison testified: 8
COURT
Q It is therefore the recommendation
of the psychiatrist based on your
findings that it is better for the Court
to annul (sic) the marriage?
A Yes, Your Honor.

Q There is no hope for the marriage?

A There is no hope, the man is also
living with another woman.
Q Is it also the stand of the psychiatrist
that the parties are psychologically
unfit for each other but they are
psychologically fit with other parties?
A Yes, Your Honor.
Q Neither are they psychologically
unfit for their professions?
A Yes, Your Honor.
The Court has no more
questions.
In the case of Reynaldo, there is no showing that his alleged
personality traits were constitutive of psychological incapacity
existing at the time of marriage celebration. While some effort was
made to prove that there was a failure to fulfill pre-nuptial
impressions of "thoughtfulness and gentleness" on Reynaldo's part
of being "conservative, homely and intelligent" on the part of
Roridel, such failure of expectation is nor indicative of antecedent
psychological incapacity. If at all, it merely shows love's temporary
blindness to the faults and blemishes of the beloved.
During its deliberations, the Court decided to go beyond merely
ruling on the facts of this case vis-a-vis existing law and
jurisprudence. In view of the novelty of Art. 36 of the Family Code
and the difficulty experienced by many trial courts interpreting and
applying it, the Court decided to invite two amici curiae, namely,
the Most Reverend Oscar V. Cruz, 9 Vicar Judicial (Presiding Judge) of
the National Appellate Matrimonial Tribunal of the Catholic Church
in the Philippines, and Justice Ricardo C. Puno, 10 a member of the
Family Code Revision Committee. The Court takes this occasion to
thank these friends of the Court for their informative and

interesting discussions during the oral argument on December 3,

1996, which they followed up with written memoranda.
From their submissions and the Court's own deliberations, the
following guidelines in the interpretation and application of Art. 36
of the Family Code are hereby handed down for the guidance of the
bench and the bar:
(1) The burden of proof to show the nullity of the marriage belongs
to the plaintiff. Any doubt should be resolved in favor of the
existence and continuation of the marriage and against its
dissolution and nullity. This is rooted in the fact that both our
Constitution and our laws cherish the validity of marriage and unity
of the family. Thus, our Constitution devotes an entire Article on the
Family, 11 recognizing it "as the foundation of the nation." It decrees
marriage as legally "inviolable," thereby protecting it from
dissolution at the whim of the parties. Both the family and marriage
are to be "protected" by the state.
The Family Code 12 echoes this constitutional edict on marriage and
the
family
and
emphasizes
thepermanence,
inviolability and solidarity
(2) The root cause of the psychological incapacity must be (a)
medically or clinically identified, (b) alleged in the complaint, (c)
sufficiently proven by experts and (d) clearly explained in the
decision. Article 36 of the Family Code requires that the incapacity
must be psychological not physical. although its manifestations
and/or symptoms may be physical. The evidence must convince the
court that the parties, or one of them, was mentally or physically ill
to such an extent that the person could not have known the
obligations he was assuming, or knowing them, could not have
given valid assumption thereof. Although no example of such
incapacity need be given here so as not to limit the application of
the
provision
under
the
principle
of ejusdem
generis, 13 nevertheless such root cause must be identified as a
psychological illness and its incapacitating nature explained. Expert
evidence may be given qualified psychiatrist and clinical
psychologists.

(3) The incapacity must be proven to be existing at "the time of the

celebration" of the marriage. The evidence must show that the
illness was existing when the parties exchanged their "I do's." The
manifestation of the illness need not be perceivable at such time,
but the illness itself must have attached at such moment, or prior
thereto.
(4) Such incapacity must also be shown to be medically or clinically
permanent or incurable. Such incurability may be absolute or even
relative only in regard to the other spouse, not necessarily
absolutely against everyone of the same sex. Furthermore, such
incapacity must be relevant to the assumption of marriage
obligations, not necessarily to those not related to marriage, like
the exercise of a profession or employment in a job. Hence, a
pediatrician may be effective in diagnosing illnesses of children and
prescribing medicine to cure them but may not be psychologically
capacitated to procreate, bear and raise his/her own children as an
essential obligation of marriage.
(5) Such illness must be grave enough to bring about the disability
of the party to assume the essential obligations of marriage. Thus,
"mild characteriological peculiarities, mood changes, occasional
emotional outbursts" cannot be accepted as root causes. The
illness must be shown as downright incapacity or inability, nor a
refusal, neglect or difficulty, much less ill will. In other words, there
is a natal or supervening disabling factor in the person, an adverse
integral element in the personality structure that effectively
incapacitates the person from really accepting and thereby
complying with the obligations essential to marriage.
(6) The essential marital obligations must be those embraced by
Articles 68 up to 71 of the Family Code as regards the husband and
wife as well as Articles 220, 221 and 225 of the same Code in
regard to parents and their children. Such non-complied marital
obligation(s) must also be stated in the petition, proven by
evidence and included in the text of the decision.
(7) Interpretations given by the National Appellate Matrimonial
Tribunal of the Catholic Church in the Philippines, while not
controlling or decisive, should be given great respect by our courts.

It is clear that Article 36 was taken by the Family Code Revision

Committee from Canon 1095 of the New Code of Canon Law, which
became effective in 1983 and which provides:
The following are incapable of contracting marriage:
Those who are unable to assume the essential
obligations of marriage due to causes of
psychological nature. 14
Since the purpose of including such provision in our Family Code is
to harmonize our civil laws with the religious faith of our people, it
stands to reason that to achieve such harmonization, great
persuasive weight should be given to decision of such appellate
tribunal. Ideally subject to our law on evidence what is
decreed as canonically invalid should also be decreed civilly void.
This is one instance where, in view of the evident source and
purpose of the Family Code provision, contemporaneous religious
interpretation is to be given persuasive effect. Here, the State and
the Church while remaining independent, separate and apart
from each other shall walk together in synodal cadence towards
the same goal of protecting and cherishing marriage and the family
as the inviolable base of the nation.
(8) The trial court must order the prosecuting attorney or fiscal and
the Solicitor General to appear as counsel for the state. No decision
shall he handed down unless the Solicitor General issues a
certification, which will be quoted in the decision, briefly staring
therein his reasons for his agreement or opposition, as the case
may be, to the petition. The Solicitor General, along with the
prosecuting attorney, shall submit to the court such certification
within fifteen (15) days from the date the case is deemed
submitted for resolution of the court. The Solicitor General shall
discharge
the
equivalent
function
of
the defensor
vinculi contemplated under Canon 1095.
In the instant case and applying Leouel Santos, we have already
ruled to grant the petition. Such ruling becomes even more cogent
with the use of the foregoing guidelines.

WHEREFORE, the petition is GRANTED. The assailed Decision is

REVERSED and SET ASIDE. The marriage of Roridel Olaviano to
Reynaldo Molina subsists and remains valid.
SO ORDERED.

An ill-starred marriage of a Filipina and a foreigner which ended in a

foreign absolute divorce, only to be followed by a criminal infidelity
suit of the latter against the former, provides Us the opportunity to
lay down a decisional rule on what hitherto appears to be an
unresolved jurisdictional question.
On September 7, 1979, petitioner Imelda Manalaysay Pilapil, a
Filipino citizen, and private respondent Erich Ekkehard Geiling, a
German national, were married before the Registrar of Births,
Marriages and Deaths at Friedensweiler in the Federal Republic of
Germany. The marriage started auspiciously enough, and the
couple lived together for some time in Malate, Manila where their
only child, Isabella Pilapil Geiling, was born on April 20, 1980. 1
Thereafter, marital discord set in, with mutual recriminations
between the spouses, followed by a separation de facto between
them.
After about three and a half years of marriage, such connubial
disharmony eventuated in private respondent initiating a divorce
proceeding against petitioner in Germany before the Schoneberg
Local Court in January, 1983. He claimed that there was failure of
their marriage and that they had been living apart since April,
1982. 2
Petitioner, on the other hand, filed an action for legal separation,
support and separation of property before the Regional Trial Court
of Manila, Branch XXXII, on January 23, 1983 where the same is still
pending as Civil Case No. 83-15866. 3

G.R. No. 80116 June 30, 1989

IMELDA MANALAYSAY PILAPIL, petitioner,
vs.
HON. CORONA IBAY-SOMERA, in her capacity as Presiding
Judge of the Regional Trial Court of Manila, Branch XXVI;
HON. LUIS C. VICTOR, in his capacity as the City Fiscal of
Manila; and ERICH EKKEHARD GEILING, respondents.
REGALADO, J.:

On January 15, 1986, Division 20 of the Schoneberg Local Court,

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

On June 27, 1986, or more than five months after the issuance of
the divorce decree, private respondent filed two complaints for
adultery before the City Fiscal of Manila alleging that, while still
married to said respondent, petitioner "had an affair with a certain
William Chia as early as 1982 and with yet another man named
Jesus Chua sometime in 1983". Assistant Fiscal Jacinto A. de los
Reyes, Jr., after the corresponding investigation, recommended the
dismissal of the cases on the ground of insufficiency of
evidence. 5 However, upon review, the respondent city fiscal
approved a resolution, dated January 8, 1986, directing the filing of
two complaints for adultery against the petitioner. 6 The complaints
were accordingly filed and were eventually raffled to two branches
of the Regional Trial Court of Manila. The case entitled "People of
the Philippines vs. Imelda Pilapil and William Chia", docketed as
Criminal Case No. 87-52435, was assigned to Branch XXVI presided
by the respondent judge; while the other case, "People of the
Philippines vs. Imelda Pilapil and James Chua", docketed as Criminal
Case No. 87-52434 went to the sala of Judge Leonardo Cruz, Branch
XXV, of the same court. 7
On March 14, 1987, petitioner filed a petition with the Secretary of
Justice asking that the aforesaid resolution of respondent fiscal be
set aside and the cases against her be dismissed. 8 A similar
petition was filed by James Chua, her co-accused in Criminal Case
No. 87-52434. The Secretary of Justice, through the Chief State
Prosecutor, gave due course to both petitions and directed the
respondent city fiscal to inform the Department of Justice "if the
accused have already been arraigned and if not yet arraigned, to
move to defer further proceedings" and to elevate the entire
records of both cases to his office for review. 9
Petitioner thereafter filed a motion in both criminal cases to defer
her arraignment and to suspend further proceedings thereon. 10 As
a consequence, Judge Leonardo Cruz suspended proceedings in
Criminal Case No. 87-52434. On the other hand, respondent judge
merely reset the date of the arraignment in Criminal Case No. 8752435 to April 6, 1987. Before such scheduled date, petitioner
moved for the cancellation of the arraignment and for the
suspension of proceedings in said Criminal Case No. 87-52435 until
after the resolution of the petition for review then pending before

the Secretary of Justice. 11 A motion to quash was also filed in the

same case on the ground of lack of jurisdiction, 12 which motion was
denied by the respondent judge in an order dated September 8,
1987. The same order also directed the arraignment of both
accused therein, that is, petitioner and William Chia. The latter
entered a plea of not guilty while the petitioner refused to be
arraigned. Such refusal of the petitioner being considered by
respondent judge as direct contempt, she and her counsel were
fined and the former was ordered detained until she submitted
herself for arraignment. 13 Later, private respondent entered a plea
of not guilty. 14
On October 27, 1987, petitioner filed this special civil action
for certiorari and prohibition, with a prayer for a temporary
restraining order, seeking the annulment of the order of the lower
court denying her motion to quash. The petition is anchored on the
main ground that the court is without jurisdiction "to try and decide
the charge of adultery, which is a private offense that cannot be
prosecuted de officio (sic), since the purported complainant, a
foreigner, does not qualify as an offended spouse having obtained a
final divorce decree under his national law prior to his filing the
criminal complaint." 15
On October 21, 1987, this Court issued a temporary restraining
order enjoining the respondents from implementing the aforesaid
order of September 8, 1987 and from further proceeding with
Criminal Case No. 87-52435. Subsequently, on March 23, 1988
Secretary of Justice Sedfrey A. Ordoez acted on the aforesaid
petitions for review and, upholding petitioner's ratiocinations,
issued a resolution directing the respondent city fiscal to move for
the dismissal of the complaints against the petitioner. 16
We find this petition meritorious. The writs prayed for shall
accordingly issue.
Under Article 344 of the Revised Penal Code, 17 the crime of
adultery, as well as four other crimes against chastity, cannot be
prosecuted except upon a sworn written complaint filed by
the offended spouse. It has long since been established, with
unwavering consistency, that compliance with this rule is a

jurisdictional, and not merely a formal, requirement. 18 While in

point of strict law the jurisdiction of the court over the offense is
vested in it by the Judiciary Law, the requirement for a sworn
written complaint is just as jurisdictional a mandate since it is that
complaint which starts the prosecutory proceeding 19 and without
which the court cannot exercise its jurisdiction to try the case.
Now, the law specifically provides that in prosecutions for adultery
and concubinage the person who can legally file the complaint
should be the offended spouse, and nobody else. Unlike the
offenses of seduction, abduction, rape and acts of lasciviousness,
no provision is made for the prosecution of the crimes of adultery
and concubinage by the parents, grandparents or guardian of the
offended party. The so-called exclusive and successive rule in the
prosecution of the first four offenses above mentioned do not apply
to adultery and concubinage. It is significant that while the State,
as parens patriae, was added and vested by the 1985 Rules of
Criminal Procedure with the power to initiate the criminal action for
a deceased or incapacitated victim in the aforesaid offenses of
seduction, abduction, rape and acts of lasciviousness, in default of
her parents, grandparents or guardian, such amendment did not
include the crimes of adultery and concubinage. In other words,
only the offended spouse, and no other, is authorized by law to
initiate the action therefor.
Corollary to such exclusive grant of power to the offended spouse
to institute the action, it necessarily follows that such initiator must
have the status, capacity or legal representation to do so at the
time of the filing of the criminal action. This is a familiar and
express rule in civil actions; in fact, lack of legal capacity to sue, as
a ground for a motion to dismiss in civil cases, is determined as of
the filing of the complaint or petition.
The absence of an equivalent explicit rule in the prosecution of
criminal cases does not mean that the same requirement and
rationale would not apply. Understandably, it may not have been
found necessary since criminal actions are generally and
fundamentally commenced by the State, through the People of the
Philippines, the offended party being merely the complaining
witness therein. However, in the so-called "private crimes" or those

which cannot be prosecuted de oficio, and the present prosecution

for adultery is of such genre, the offended spouse assumes a more
predominant role since the right to commence the action, or to
refrain therefrom, is a matter exclusively within his power and
option.
This policy was adopted out of consideration for the aggrieved
party who might prefer to suffer the outrage in silence rather than
go through the scandal of a public trial. 20 Hence, as cogently
argued by petitioner, Article 344 of the Revised Penal Code thus
presupposes that the marital relationship is still subsisting at the
time of the institution of the criminal action for, adultery. This is a
logical consequence since the raison d'etre of said provision of law
would be absent where the supposed offended party had ceased to
be the spouse of the alleged offender at the time of the filing of the
criminal case. 21
In these cases, therefore, it is indispensable that the status and
capacity of the complainant to commence the action be definitely
established and, as already demonstrated, such status or capacity
must indubitably exist as of the time he initiates the action. It
would be absurd if his capacity to bring the action would be
determined
by
his
status before or subsequent to
the
commencement thereof, where such capacity or status existed
prior to but ceased before, or was acquired subsequent to but did
not exist at the time of, the institution of the case. We would
thereby have the anomalous spectacle of a party bringing suit at
the very time when he is without the legal capacity to do so.
To repeat, there does not appear to be any local precedential
jurisprudence on the specific issue as to when precisely the status
of a complainant as an offended spouse must exist where a
criminal prosecution can be commenced only by one who in law
can be categorized as possessed of such status. Stated differently
and with reference to the present case, the inquiry ;would be
whether it is necessary in the commencement of a criminal action
for adultery that the marital bonds between the complainant and
the accused be unsevered and existing at the time of the institution
of the action by the former against the latter.

American jurisprudence, on cases involving statutes in that

jurisdiction which are in pari materia with ours, yields the rule
that after a divorce has been decreed, the innocent spouse no
longer has the right to institute proceedings against the
offenders where the statute provides that the innocent spouse shall
have the exclusive right to institute a prosecution for adultery.
Where, however, proceedings have been properly commenced, a
divorce subsequently granted can have no legal effect on the
prosecution of the criminal proceedings to a conclusion. 22
In the cited Loftus case, the Supreme Court of Iowa held that
'No prosecution for adultery can be commenced
except on the complaint of the husband or wife.'
Section 4932, Code. Though Loftus was husband of
defendant when the offense is said to have been
committed, he had ceased to be such when the
prosecution was begun; and appellant insists that his
status was not such as to entitle him to make the
complaint. We have repeatedly said that the offense
is against the unoffending spouse, as well as the
state, in explaining the reason for this provision in
the statute; and we are of the opinion that the
unoffending spouse must be such when the
prosecution is commenced. (Emphasis supplied.)
We see no reason why the same doctrinal rule should not apply in
this case and in our jurisdiction, considering our statutory law and
jural policy on the matter. We are convinced that in cases of such
nature, the status of the complainant vis-a-vis the accused must be
determined as of the time the complaint was filed. Thus, the person
who initiates the adultery case must be an offended spouse, and by
this is meant that he is still married to the accused spouse, at the
time of the filing of the complaint.
In the present case, the fact that private respondent obtained a
valid divorce in his country, the Federal Republic of Germany, is
admitted. Said divorce and its legal effects may be recognized in
the Philippines insofar as private respondent is concerned 23 in view

of the nationality principle in our civil law on the matter of status of

persons.
Thus, in the recent case of Van Dorn vs. Romillo, Jr., et al., 24 after a
divorce was granted by a United States court between Alice Van
Dornja Filipina, and her American husband, the latter filed a civil
case in a trial court here alleging that her business concern was
conjugal property and praying that she be ordered to render an
accounting and that the plaintiff be granted the right to manage
the business. Rejecting his pretensions, this Court perspicuously
demonstrated the error of such stance, thus:
There can be no question as to the validity of that
Nevada divorce in any of the States of the United
States. The decree is binding on private respondent
as an American citizen. For instance, private
respondent cannot sue petitioner, as her husband, in
any State of the Union. ...
It is true that owing to the nationality principle
embodied in Article 15 of the Civil Code, only
Philippine nationals are covered by the policy against
absolute divorces the same being considered
contrary to our concept of public policy and morality.
However, aliens may obtain divorces abroad, which
may be recognized in the Philippines, provided they
are valid according to their national law. ...
Thus, pursuant to his national law, private
respondent is no longer the husband of petitioner. He
would have no standing to sue in the case below as
petitioner's husband entitled to exercise control over
conjugal assets. ... 25
Under the same considerations and rationale, private respondent,
being no longer the husband of petitioner, had no legal standing to
commence the adultery case under the imposture that he was the
offended spouse at the time he filed suit.

The allegation of private respondent that he could not have brought

this case before the decree of divorce for lack of knowledge, even if
true, is of no legal significance or consequence in this case. When
said respondent initiated the divorce proceeding, he obviously
knew that there would no longer be a family nor marriage vows to
protect once a dissolution of the marriage is decreed. Neither would
there be a danger of introducing spurious heirs into the family,
which is said to be one of the reasons for the particular formulation
of our law on adultery, 26 since there would thenceforth be no
spousal relationship to speak of. The severance of the marital bond
had the effect of dissociating the former spouses from each other,
hence the actuations of one would not affect or cast obloquy on the
other.
The aforecited case of United States vs. Mata cannot be
successfully relied upon by private respondent. In applying Article
433 of the old Penal Code, substantially the same as Article 333 of
the Revised Penal Code, which punished adultery "although the
marriage be afterwards declared void", the Court merely stated
that "the lawmakers intended to declare adulterous the infidelity of
a married woman to her marital vows, even though it should be
made to appear that she is entitled to have her marriage contract
declared null and void, until and unless she actually secures a
formal judicial declaration to that effect". Definitely, it cannot be
logically inferred therefrom that the complaint can still be filed after
the declaration of nullity because such declaration that the
marriage is void ab initio is equivalent to stating that it never
existed. There being no marriage from the beginning, any
complaint for adultery filed after said declaration of nullity would no
longer have a leg to stand on. Moreover, what was consequently
contemplated and within the purview of the decision in said case is
the situation where the criminal action for adultery was
filed before the termination of the marriage by a judicial declaration
of its nullity ab initio. The same rule and requisite would necessarily
apply where the termination of the marriage was effected, as in this
case, by a valid foreign divorce.
Private respondent's invocation of Donio-Teves, et al. vs.
Vamenta, hereinbefore cited, 27 must suffer the same fate of
inapplicability. A cursory reading of said case reveals that the

offended spouse therein had duly and seasonably filed a complaint

for adultery, although an issue was raised as to its sufficiency but
which was resolved in favor of the complainant. Said case did not
involve a factual situation akin to the one at bar or any issue
determinative of the controversy herein.
WHEREFORE, the questioned order denying petitioner's motion to
quash is SET ASIDE and another one enteredDISMISSING the
complaint in Criminal Case No. 87-52435 for lack of jurisdiction. The
temporary restraining order issued in this case on October 21, 1987
is hereby made permanent.
SO ORDERED.

Philippines? Are the marriage performed in the Philippines

according to the rites of the Mohammedan religion valid? As the
decision of the Supreme Court on the last point will affect
marriages consummated by not less than one hundred and fifty
thousand Moros who profess the Mohammedan faith, the
transcendental importance of the cause can be realized. We
proposed to give to the subject the serious consideration which it
deserves.
Cheong Boo, a native of China, died intestate in Zamboanga,
Philippine Islands, on August 5, 1919. He left property worth nearly
P100,000. The estate of the deceased was claimed, on the one
hand, by Cheong Seng Gee, who alleged that he was a legitimate
child by a marriage contracted by Cheong Boo with Tan Dit in China
in 1895. The estate was claimed, on the other hand, by the Mora
Adong who alleged that she had been lawfully married to Cheong
Boo in 1896 in Basilan, Philippine Islands, and her daughters,
Payang, married to Cheng Bian Chay, and Rosalia Cheong Boo,
unmarried.

G.R. No. 18081

March 3, 1922

IN THE MATTER OF THE ESTATE OF CHEONG BOO, deceased.

MORA ADONG, petitioner-appellant,
vs.
CHEONG SENG GEE, opponent-appellant.
MALCOLM, J.:
The two question presented for determination by these appeals
may be framed as follows: Is a marriage contracted in China and
proven mainly by an alleged matrimonial letter, valid in the

The conflicting claims to the estate of Cheong Boo were ventilated

in the Court of First Instance of Zamboanga. The trial judge, the
Honorable Quirico Abeto, after hearing the evidence presented by
both sides, reached the conclusion, with reference to the
allegations of Cheong Seng Gee, that the proof did not sufficiently
establish the Chinese marriage, but that because Cheong Seng Gee
had been admitted to the Philippine Islands as the son of the
deceased, he should share in the estate as a natural child. With
reference to the allegations of the Mora Adong and her daughters
Payang and Rosalia, the trial judge reached the conclusion that the
marriage between the Mora Adong and the deceased had been
adequately proved but that under the laws of the Philippine Islands
it could not be held to be a lawful marriage; accordingly, the
daughters Payang and Rosalia would inherit as natural children. The
order of the trial judge, following these conclusions, was that there
should be a partition of the property of the deceased Cheong Boo
between the natural children, Cheong Seng Gee, Payang, and
Rosalia.
From the judgment of the Judge of First Instance both parties
perfected appeals. As to the facts, we can say that we agree in
substance with the findings of the trial court. As to the legal issues
submitted for decision by the numerous assignments of error, these
can best be resolved under two heads, namely: (1) The validity of

the Chinese marriage; and (2) the validity of the Mohammedan

marriage.
1. Validity of the Chinese Marriage
The theory advanced on behalf of the claimant Cheong Seng Gee
was that Cheong Boo was married in the city of Amoy, China,
during the second moon of the twenty-first year of the Emperor
Quang Su, or, according to the modern count, on February 16,
1985, to a young lady named Tan Dit. Witnesses were presented
who testified to having been present at the marriage ceremony.
There was also introduced in evidence a document in Chinese
which in translation reads as follows:
One hundred
years of life
and health for
both.

Your nephew, Tan Chao, respecfully

answers the venerable Chiong Ing,
father of the bridegroom, accepting
his offer of marriage, and let this
document serve as proof of the
acceptance of said marriage which is
to be celebrated during the merry
season of the flowers.
I take advantage of this occasion to
wish for your and the spouses much
happiness, a long life, and prolific
issue, as noble and great as that
which you brought forth. I consider
the marriage of your son Boo with my
sister Lit Chia as a mandate of God
and I hope that they treat each other
with great love and mutual courtesy
and that both they and their parents
be very happy.
Given during the second moon of the
twenty-first year of the reign of the
Emperor Quang Su.

Cheong Boo is said to have remained in China for one year and four
months after his marriage during which time there was born to him

and his wife a child named Cheong Seng Gee. Cheong Boo then left
China for the Philippine Islands and sometime thereafter took to
himself a concubine Mora by whom he had two children. In 1910,
Cheong Boo was followed to the Philippines by Cheong Seng Gee
who, as appears from documents presented in evidence, was
permitted to land in the Philippine Islands as the son of Cheong
Boo. The deceased, however, never returned to his native hearth
and seems never to have corresponded with his Chinese wife or to
have had any further relations with her except once when he sent
her P10.
The trial judge found, as we have said, that the proof did not
sustain the allegation of the claimant Cheong Seng Gee, that
Cheong Boo had married in China. His Honor noted a strong
inclination on the part of the Chinese witnesses, especially the
brother of Cheong Boo, to protect the interests of the alleged son,
Cheong Seng Gee, by overstepping the limits of truthfulness. His
Honor also noted that reliable witnesses stated that in the year
1895, when Cheong Boo was supposed to have been in China, he
was in reality in Jolo, in the Philippine Islands. We are not disposed
to disturb this appreciation of fact by the trial court. The
immigration documents only go to show the relation of parent and
child existing between the deceased Cheong Boo and his son
Cheong Seng Gee and do not establish the marriage between the
deceased and the mother of Cheong Seng Gee.
Section IV of the Marriage Law (General Order No. 68) provides that
"All marriages contracted without these Islands, which would be
valid by the laws of the country in which the same were contracted,
are valid in these Islands." To establish a valid foreign marriage
pursuant to this comity provision, it is first necessary to prove
before the courts of the Islands the existence of the foreign law as
a question of fact, and it is then necessary to prove the alleged
foreign marriage by convincing evidence.
As a case directly in point is the leading one of Sy Joc
Lieng vs. Encarnacion ([1910]), 16 Phil., 137; [1913], 228 U.S.,
335). Here, the courts of the Philippines and the Supreme Court of
the United States were called upon to decide, as to the conflicting
claims to the estate of a Chinese merchant, between the
descendants of an alleged Chinese marriage and the descendants
of an alleged Philippine marriage. The Supreme Courts of the
Philippine Islands and the United States united in holding that the
Chinese marriage was not adequately proved. The legal rule was
stated by the United States Supreme Court to be this: A Philippine

marriage, followed by forty years of uninterrupted marital life,

should not be impugned and discredited, after the death of the
husband and administration of his estate, though an alleged prior
Chinese marriage, "save upon proof so clear, strong, and
unequivocal as to produce a moral conviction of the existence of
such impediment." Another case in the same category is that of
Son Cui vs. Guepangco ([1912], 22 Phil., 216).
In the case at bar there is no competent testimony as to what the
laws of China in the Province of Amoy concerning marriage were in
1895. As in the Encarnacion case, there is lacking proof so clear,
strong, and unequivocal as to produce a moral conviction of the
existence of the alleged prior Chinese marriage. Substitute twentythree years for forty years and the two cases are the same.
The lower court allowed the claimant, Cheong Seng Gee, the
testamentary rights of an acknowledged natural child. This finding
finds some support in Exhibit 3, the affidavit of Cheong Boo before
the American Vice-Consul at Sandakan, British North Borneo. But
we are not called upon to make a pronouncement on the question,
because the oppositor-appellant indicates silent acquiescence by
assigning no error.
2. Validity of the Mohammedan Marriage
The biographical data relating to the Philippine odyssey of the
Chinaman Cheong Boo is fairly complete. He appears to have first
landed on Philippine soil sometime prior to the year 1896. At least,
in the year las mentioned, we find him in Basilan, Philippine Islands.
There he was married to the Mora Adong according to the
ceremonies prescribed by the book on marriage of the Koran, by
the Mohammedan Iman (priest) Habubakar. That a marriage
ceremony took place is established by one of the parties to the
marriage, the Mora Adong, by the Iman who solemnized the
marriage, and by other eyewitnesses, one of whom was the father
of the bride, and another, the chief of the rancheria, now a
municipal councilor. The groom complied with Quranic law by giving
to the bride a dowry of P250 in money and P250 in goods.
The religious rites began with the bride and groom seating
themselves in the house of the father of the bride, Marahadja
Sahibil. The Iman read from the Koran. Then the Iman asked the
parents if they had any objection to the marriage. The marital act
was consummated by the groom entering the woman's mosquito
net.

From the marriage day until the death of Cheong Boo, twenty-three
years later, the Chinaman and the Mora Adong cohabited as
husband and wife. To them were born five children, two of whom,
Payang and Rosalia, are living. Both in his relations with Mora
Adong and with third persons during his lifetime, Cheong Boo
treated Adong as his lawful wife. He admitted this relationship in
several private and public documents. Thus, when different legal
documents were executed, including decrees of registration,
Cheong Boo stated that he was married to the Mora Adong while as
late as 1918, he gave written consent to the marriage of his minor
daughter, Payang.
Notwithstanding the insinuation of counsel for the Chinese
appellant that the custom is prevalent among the Moros to favor in
their testimony, a relative or friend, especially when they do not
swear on the Koran to tell the truth, it seems to us that proof could
not be more convincing of the fact that a marriage was contracted
by the Chinaman Cheong Boo and the Mora Adong, according to
the ceremonies of the Mohammedan religion.
It is next incumbent upon us to approach the principal question
which we announced in the very beginning of this decision, namely,
Are the marriages performed in the Philippines according to the
rites of the Mohammedan religion valid? Three sections of the
Marriage Law (General Order No. 68) must be taken into
consideration.
Section V of the Marriage Law provides that "Marriage may be
solemnized by either a judge of any court inferior to the Supreme
Court, justice of the peace, or priest or minister of the Gospel of
any denomination . . ." Counsel, failing to take account of the word
"priest," and only considering the phrase "minister of the Gospel of
any denomination" would limit the meaning of this clause to
ministers of the Christian religion. We believe this is a strained
interpretation. "Priest," according to the lexicographers, means one
especially consecrated to the service of a divinity and considered
as the medium through whom worship, prayer, sacrifice, or other
service is to be offered to the being worshipped, and pardon,
blessing, deliverance, etc., obtained by the worshipper, as a priest
of Baal or of Jehovah; a Buddhist priest. "Minister of the Gospel"
means all clergymen of every denomination and faith. A
"denomination" is a religious sect having a particular name.
(Haggin vs. Haggin [1892], 35 Neb., 375; In reReinhart, 9 O. Dec.,
441; Hale vs. Everett [1868], 53 N. H. 9.) A Mohammedan Iman is a

"priest or minister of the Gospel," and Mohammedanism is a

"denomination," within the meaning of the Marriage Law.
The following section of the Marriage Law, No. VI, provides that "No
particular form for the ceremony of marriage is required, but the
parties must declare, in the presence of the person solemnizing the
marriage, that they take each other as husband and wife." The law
is quite correct in affirming that no precise ceremonial is
indispensable requisite for the creation of the marriage contract.
The two essentials of a valid marriage are capacity and consent.
The latter element may be inferred from the ceremony performed,
the acts of the parties, and habit or repute. In this instance, there is
no question of capacity. Nor do we think there can exist any doubt
as to consent. While it is true that during the Mohammedan
ceremony, the remarks of the priest were addressed more to the
elders than to the participants, it is likewise true that the Chinaman
and the Mora woman did in fact take each other to be husband and
wife and did thereafter live together as husband and wife.
(Travers vs. Reinhardt [1907], 205 U.S., 423.
It would be possible to leave out of view altogether the two
sections of the Marriage Law which have just been quoted and
discussed. The particular portion of the law which, in our opinion, is
controlling, is section IX, reading as follows: "No marriage
heretofore solemnized before any person professing to have
authority therefor shall be invalid for want of such authority or on
account of any informality, irregularity, or omission, if it was
celebrated with the belief of the parties, or either of them, that he
had authority and that they have been lawfully married."
The trial judge in construing this provision of law said that he did
not believe that the legislative intention in promulgating it was to
validate marriages celebrated between Mohammedans. To quote
the judge:
This provisions relates to marriages contracted by virtue of
the provisions of the Spanish law before revolutionary
authorized to solemnized marriages, and it is not to be
presumed that the legislator intended by this law to validate
void marriages celebrated during the Spanish sovereignty
contrary to the laws which then governed.

What authority there is for this statement, we cannot conceive. To

our mind, nothing could be clearer than the language used in
section IX. Note for a moment the all embracing words found in this
section:
"No marriage" Could more inclusive words be found? "Heretofore
solemnized" Could any other construction than that of
retrospective force be given to this phrase? "Before any person
professing to have authority therefor shall be invalid for want of
such authority" Could stronger language than this be invoked to
announce legislative intention? "Or on account of any informality,
irregularity, or omission" Could the legislative mind frame an
idea which would more effectively guard the marriage relation
against technicality? "If it was celebrated with the belief of the
parties, or either of them, that he had authority and that they have
been lawfully married" What was the purpose of the legislator
here, if it was not to legalize the marriage, if it was celebrated by
any person who thought that he had authority to perform the same,
and if either of the parties thought that they had been married? Is
there any word or hint of any word which would restrict the curative
provisions of section IX of the Marriage Law to Christian marriages?
By what system of mental gymnastics would it be possible to
evolve from such precise language the curious idea that it was
restricted to marriages performed under the Spanish law before the
revolutionary authorities?
In view of the importance of the question, we do not desire to stop
here but would ascertain from other sources the meaning and
scope of Section IX of General Order No. 68.
The purpose of the government toward the Mohammedan
population of the Philippines has, time and again, been announced
by treaty, organic law, statutory law, and executive proclamation.
The Treaty of Paris in its article X, provided that "The inhabitants of
the territories over which Spain relinquishes or cedes her
sovereignty shall be secured Instructions to the Philippine
Commission imposed on every branch of the Government of the
Philippine Islands the inviolable rule "that no law shall be made
respecting an establishment of religion or prohibiting the free
exercise thereof, and that the free exercise and enjoyment of
religious profession and worship, without discrimination or
preference, shall forever be allowed ... That no form of religion and
no minister of religion shall be forced upon any community or upon
any citizen of the Islands; that, upon the other hand, no minister of
religion shall be interfered with or molested in following his calling,

and that the separation between state and church shall be real,
entire, and absolute." The notable state paper of President
McKinley also enjoined the Commission, "to bear in mind that the
Government which they are establishing is designed . . . for the
happiness, peace, and prosperity of the people of the Philippine
Islands" and that, therefore, "the measures adopted should be
made to conform to their customs, their habits, and even their
prejudices. . . . The Philippine Bill and the Jones Law reproduced the
main constitutional provisions establishing religious toleration and
equality.
Executive and legislative policy both under Spain and the United
States followed in the same path. For instance, in the Treaty of April
30, 1851, entered into by the Captain General of the Philippines
and the Sultan of Sulu, the Spanish Government guaranteed "with
all solemnity to the Sultan and other inhabitants of Sulu the free
exercise of their religion, with which it will not interfere in the
slightest way, and it will also respect their customs." (See
furtherDecree of the Governor-General of January 14, 1881.) For
instance, Act No. 2520 of the Philippine Commission, section 3,
provided that "Judges of the Court of First Instance and justices of
the peace deciding civil cases in which the parties are
Mohammedans or pagans, when such action is deemed wise, may
modify the application of the law of the Philippine Islands, except
laws of the United States applicable to the Philippine Islands, taking
into account local laws and customs. . . ." (See further Act No. 787,
sec. 13 [ j]; Act No. 1283, sec. 6 [b]; Act No. 114 of the Legislative
Council amended and approved by the Philippine Commission;
Cacho vs. Government of the United States [1914], 28 Phil., 616.)
Various responsible officials have so oft announced the purpose of
the Government not to interfere with the customs of the Moros,
especially their religious customs, as to make quotation of the
same superfluous.

The retrospective provisions of the Philippine Marriage Law

undoubtedly were inspired by the governmental policy in the
United States, with regard to the marriages of the Indians, the
Quakers, and the Mormons. The rule as to Indians marriages is, that
a marriage between two Indians entered into according to the
customs and laws of the people at a place where such customs and
laws are in force, must be recognized as a valid marriage. The rule
as to the Society of Quakers is, that they will be left to their own
customs and that their marriages will be recognized although they
use no solemnization. The rule as to Mormon marriages is that the
sealing ceremony entered into before a proper official by members
of that Church competent to contract marriage constitutes a valid
marriage.
The basis of human society throughout the civilized world is that of
marriage. Marriage in this jurisdiction is not only a civil contract,
but, it is a new relation, an institution in the maintenance of which
the public is deeply interested. Consequently, every intendment of
the law leans toward legalizing matrimony. Persons dwelling
together in apparent matrimony are presumed, in the absence of
any counter-presumption or evidence special to the case, to be in
fact married. The reason is that such is the common order of
society, and if the parties were not what they thus hold themselves
out as being, they would be living in the constant violation of
decency and of law. A presumption established by our Code of Civil
Procedure is "that a man and woman deporting themselves as
husband and wife have entered into a lawful contract of marriage.:"
(Sec. 334, No. 28.) Semper praesumitur pro matrimonio Always
presume marriage. (U. S. vs. Villafuerte and Rabano [1905], 4 Phil.,
476; Son Cui vs.Guepangco, supra; U.S. vs. Memoracion and Uri
[1916], 34 Phil., 633; Teter vs. Teter [1884], 101 Ind., 129.)
Section IX of the Marriage Law is in the nature of a curative
provision intended to safeguard society by legalizing prior
marriages. We can see no substantial reason for denying to the
legislative power the right to remove impediments to an effectual
marriage. If the legislative power can declare what shall be valid
marriages, it can render valid, marriages which, when they took
place, were against the law. Public policy should aid acts intended
to validate marriages and should retard acts intended to invalidate
marriages. (Coghsen vs. Stonington [1822], 4 Conn, 209;
Baity vs. Cranfill [1884], 91 N. C., 273.)
The courts can properly incline the scales of their decisions in
favors of that solution which will mot effectively promote the public

policy. That is the true construction which will best carry legislative
intention into effect. And here the consequences, entailed in
holding that the marriage of the Mora Adong and the deceased
Cheong Boo, in conformity with the Mohammedan religion and
Moro customs, was void, would be far reaching in disastrous result.
The last census shows that there are at least one hundred fifty
thousand Moros who have been married according to local custom.
We then have it within our power either to nullify or to validate all
of these marriages; either to make all of the children born of these
unions bastards or to make them legitimate; either to proclaim
immorality or to sanction morality; either to block or to advance
settled governmental policy. Our duty is a obvious as the law is
plain.
In moving toward our conclusion, we have not lost sight of the
decisions of this court in the cases of United Statesvs. Tubban
([1915]), 29 Phil., 434) and United States vs. Verzola ([1916, 33
Phil., 285). We do not, however, believe these decisions to be
controlling. In the first place, these were criminal actions and two
Justice dissented.. In the second place, in the Tubban case, the
marriage in question was a tribal marriage of the Kalingas, while in
the Verzola case, the marriage had been performed during the
Spanish regime by a lieutenant of the Guardia Civil. In neither case,
in deciding as to whether or not the accused should be given the
benefit of the so-called unwritten law, was any consideration given
to the provisions of section IX of General Order No. 68. We are free
to admit that, if necessary, we would unhesitatingly revoke the
doctrine announced in the two cases above mentioned.
We regard the evidence as producing a moral conviction of the
existence of the Mohammedan marriage. We regard the provisions
of section IX of the Marriage law as validating marriages performed
according to the rites of the Mohammedan religion.
There are other questions presented in the various assignments of
error which it is unnecessary to decide. Inresume, we find the
Chinese marriage not to be proved and that the Chinaman Cheong
Seng Gee has only the rights of a natural child, and we find the
Mohammedan marriage to be proved and to be valid, thus giving to
the widow and the legitimate children of this union the rights
accruing to them under the law.

Judgment is reversed in part, and the case shall be returned to the

lower court for a partition of the property in accordance with this
decision, and for further proceedings in accordance with law.
Without special findings as to costs in this instance, it is so ordered.

G.R. No. 104818 September 17, 1993

ROBERTO DOMINGO, petitioner,
vs.
COURT OF APPEALS and DELIA SOLEDAD AVERA represented
by her Attorney-in-Fact MOISES R. AVERA,respondents.
ROMERO, J.:
The instant petition seeks the reversal of respondent court's ruling
finding no grave abuse of discretion in the lower court's order
denying petitioner's motion to dismiss the petition for declaration
of nullity of marriage and separation of property.
On May 29, 1991, private respondent Delia Soledad A. Domingo
filed a petition before the Regional Trial Court of Pasig entitled
"Declaration of Nullity of Marriage and Separation of Property"

against petitioner Roberto Domingo. The petition which was

docketed as Special Proceedings No. 1989-J alleged among others
that: they were married on November 29, 1976 at the YMCA Youth
Center Bldg., as evidenced by a Marriage Contract Registry No.
1277K-76 with Marriage License No. 4999036 issued at Carmona,
Cavite; unknown to her, he had a previous marriage with one
Emerlina dela Paz on April 25, 1969 which marriage is valid and still
existing; she came to know of the prior marriage only sometime in
1983 when Emerlina dela Paz sued them for bigamy; from January
23 1979 up to the present, she has been working in Saudi Arabia
and she used to come to the Philippines only when she would avail
of the one-month annual vacation leave granted by her foreign
employer since 1983 up to the present, he has been unemployed
and completely dependent upon her for support and subsistence;
out of her personal earnings, she purchased real and personal
properties with a total amount of approximately P350,000.00,
which are under the possession and administration of Roberto;
sometime in June 1989, while on her one-month vacation, she
discovered that he was cohabiting with another woman; she further
discovered that he had been disposing of some of her properties
without her knowledge or consent; she confronted him about this
and thereafter appointed her brother Moises R. Avera as her
attorney-in-fact to take care of her properties; he failed and refused
to turn over the possession and administration of said properties to
her brother/attorney-in-fact; and he is not authorized to administer
and possess the same on account of the nullity of their marriage.
The petition prayed that a temporary restraining order or a writ of
preliminary injunction be issued enjoining Roberto from exercising
any act of administration and ownership over said properties; their
marriage be declared null and void and of no force and effect; and
Delia Soledad be declared the sole and exclusive owner of all
properties acquired at the time of their void marriage and such
properties be placed under the proper management and
administration of the attorney-in-fact.
Petitioner filed a Motion to Dismiss on the ground that the petition
stated no cause of action. The marriage being void ab initio, the
petition for the declaration of its nullity is, therefore, superfluous
and unnecessary. It added that private respondent has no property
which is in his possession.

On August 20, 1991, Judge Maria Alicia M. Austria issued an Order

denying the motion to dismiss for lack of merit. She explained:
Movant argues that a second marriage contracted
after a first marriage by a man with another woman
is illegal and void (citing the case of Yap v. Court of
Appeals, 145 SCRA 229) and no judicial decree is
necessary to establish the invalidity of a void
marriage (citing the cases of People v. Aragon, 100
Phil. 1033; People v. Mendoza, 95 Phil. 845). Indeed,
under the Yap case there is no dispute that the
second marriage contracted by respondent with
herein petitioner after a first marriage with another
woman is illegal and void. However, as to whether or
not the second marriage should first be judicially
declared a nullity is not an issue in said case. In the
case of Vda. de Consuegra v. GSIS, the Supreme
Court ruled in explicit terms, thus:
And with respect to the right of the
second wife, this Court observed that
although the second marriage can be
presumed to be void ab initio as it was
celebrated while the first marriage was
still subsisting, still there is need for
judicial declaration of its nullity. (37
SCRA 316, 326)
The above ruling which is of later
vintage deviated from the previous
rulings of the Supreme Court in the
aforecited cases of Aragon and
Mendoza.
Finally, the contention of respondent
movant that petitioner has no property
in his possession is an issue that may
be determined only after trial on the
merits. 1

A motion for reconsideration was filed stressing the erroneous

application of Vda. de Consuegra v. GSIS 2 and the absence of
justiciable controversy as to the nullity of the marriage. On
September 11, 1991, Judge Austria denied the motion for
reconsideration and gave petitioner fifteen (15) days from receipt
within which to file his answer.
Instead of filing the required answer, petitioner filed a special civil
action of certiorari and mandamus on the ground that the lower
court acted with grave abuse of discretion amounting to lack of
jurisdiction in denying the motion to dismiss.
On February 7, 1992, the Court of Appeals 3 dismissed the petition.
It explained that the case of Yap v. CA 4 cited by petitioner and that
of Consuegra v. GSIS relied upon by the lower court do not have
relevance in the case at bar, there being no identity of facts
because these cases dealt with the successional rights of the
second wife while the instant case prays for separation of property
corollary with the declaration of nullity of marriage. It observed that
the separation and subsequent distribution of the properties
acquired during the union can be had only upon proper
determination of the status of the marital relationship between said
parties, whether or not the validity of the first marriage is denied by
petitioner. Furthermore, in order to avoid duplication and
multiplicity of suits, the declaration of nullity of marriage may be
invoked in this proceeding together with the partition and
distribution of the properties involved. Citing Articles 48, 50 and 52
of the Family Code, it held that private respondent's prayer for
declaration of absolute nullity of their marriage may be raised
together with other incidents of their marriage such as the
separation of their properties. Lastly, it noted that since the Court
has jurisdiction, the alleged error in refusing to grant the motion to
dismiss is merely one of law for which the remedy ordinarily would
have been to file an answer, proceed with the trial and in case of an
adverse decision, reiterate the issue on appeal. The motion for
reconsideration was subsequently denied for lack of merit. 5
Hence, this petition.

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

Though the logician may say that where the former

marriage was void there would be nothing to
dissolve, still it is not for the spouses to judge
whether that marriage was void or not. That
judgment is reserved to the courts. . . . 10
This dissenting opinion was adopted as the majority position in
subsequent cases involving the same issue. Thus, in Gomez
v. Lipana, 11 the
Court
abandoned
its
earlier
ruling
in
the Aragon and Mendoza cases. In reversing the lower court's order
forfeiting the husband's share of the disputed property acquired
during the second marriage, the Court stated that "if the nullity, or
annulment of the marriage is the basis for the application of Article
1417, there is need for a judicial declaration thereof, which of
course contemplates an action for that purpose."
Citing Gomez v. Lipana, the Court subsequently held in Vda. de
Consuegra v. Government Service Insurance System, that
"although the second marriage can be presumed to be void ab
initio as it was celebrated while the first marriage was still
subsisting, still there is need for judicial declaration of such nullity."
In Tolentino v. Paras, 12 however, the Court turned around and
applied the Aragon and Mendoza ruling once again. In granting the
prayer of the first wife asking for a declaration as the lawful
surviving spouse and the correction of the death certificate of her
deceased husband, it explained that "(t)he second marriage that he
contracted with private respondent during the lifetime of his first
spouse is null and void from the beginning and of no force and
effect. No judicial decree is necessary to establish the invalidity of
a void marriage."
However, in the more recent case of Wiegel v. Sempio-Diy 13 the
Court reverted to the Consuegra case and held that there was "no
need of introducing evidence about the existing prior marriage of
her first husband at the time they married each other, for then such
a marriage though void still needs according to this Court a judicial
declaration of such fact and for all legal intents and purposes she
would still be regarded as a married woman at the time she
contracted her marriage with respondent Karl Heinz Wiegel."

Came the Family Code which settled once and for all the conflicting
jurisprudence on the matter. A declaration of the absolute nullity of
a marriage is now explicitly required either as a cause of action or a
ground for defense. 14Where the absolute nullity of a previous
marriage is sought to be invoked for purposes of contracting a
second marriage, the sole basis acceptable in law for said projected
marriage be free from legal infirmity is a final judgment declaring
the previous marriage void. 15
The Family Law Revision Committee and the Civil Code Revision
Committee 16 which drafted what is now the Family Code of the
Philippines took the position that parties to a marriage should not
be allowed to assume that their marriage is void even if such be
the fact but must first secure a judicial declaration of the nullity of
their marriage before they can be allowed to marry again. This is
borne out by the following minutes of the 152nd Joint Meeting of
the Civil Code and Family Law Committees where the present
Article 40, then Art. 39, was discussed.
B. Article 39.
The absolute nullity of a marriage may
be invoked only on the basis of a final
judgment declaring the marriage void,
except as provided in Article 41.
Justice Caguioa remarked that the above provision
should include not only void but also voidable
marriages. He then suggested that the above
provision be modified as follows:
The validity of a marriage may be
invoked only . . .
Justice Reyes (J.B.L. Reyes), however, proposed that
they say:
The validity or invalidity of a marriage
may
be
invoked
only . . .

On the other hand, Justice Puno suggested that they say:

The invalidity of a marriage may be
invoked only . . .
Justice Caguioa explained that his idea is that one
cannot determine for himself whether or not his
marriage is valid and that a court action is needed.
Justice Puno accordingly proposed that the provision
be modified to read:
The invalidity of a marriage may be
invoked only on the basis of a final
judgment annulling the marriage or
declaring the marriage void, except as
provided in Article 41.
Justice Caguioa remarked that in annulment, there is
no question. Justice Puno, however, pointed out that,
even if it is a judgment of annulment, they still have
to produce the judgment.
Justice Caguioa suggested that they say:
The invalidity of a marriage may be
invoked only on the basis of a final
judgment declaring the marriage
invalid, except as provided in Article
41.
Justice Puno raised the question: When a marriage is
declared invalid, does it include the annulment of a
marriage and the declaration that the marriage is
void? Justice Caguioa replied in the affirmative. Dean
Gupit added that in some judgments, even if the
marriage is annulled, it is declared void. Justice Puno
suggested that this matter be made clear in the
provision.

Prof. Baviera remarked that the original idea in the

provision is to require first a judicial declaration of a
void marriage and not annullable marriages, with
which the other members concurred. Judge Diy
added that annullable marriages are presumed valid
until a direct action is filed to annul it, which the
other members affirmed. Justice Puno remarked that
if this is so, then the phrase "absolute nullity" can
stand since it might result in confusion if they change
the phrase to "invalidity" if what they are referring to
in the provision is the declaration that the marriage
is void.

Justice Puno suggested that the above be modified as

follows:

Prof. Bautista commented that they will be doing

away with collateral defense as well as collateral
attack. Justice Caguioa explained that the idea in the
provision is that there should be a final judgment
declaring the marriage void and a party should not
declare for himself whether or not the marriage is
void, while the other members affirmed. Justice
Caguioa added that they are, therefore, trying to
avoid a collateral attack on that point. Prof. Bautista
stated that there are actions which are brought on
the assumption that the marriage is valid. He then
asked: Are they depriving one of the right to raise the
defense that he has no liability because the basis of
the liability is void? Prof. Bautista added that they
cannot say that there will be no judgment on the
validity or invalidity of the marriage because it will be
taken up in the same proceeding. It will not be a
unilateral
declaration
that,
it
is
a
void
marriage. Justice Caguioa saw the point of Prof.
Bautista and suggested that they limit the provision
to remarriage. He then proposed that Article 39 be
reworded as follows:

For the purpose of establishing the

validity of a subsequent marriage, the
absolute nullity of a previous marriage
may only be invoked on the basis of a
final judgment declaring such nullity,
except as provided in Article 41.

The absolute nullity of a marriage for

purposes of remarriage may be
invoked only on the basis of final
judgment . . .

The absolute nullity of a previous

marriage may be invoked for purposes
of establishing the validity of a
subsequent marriage only on the basis
of a final judgment declaring such
previous marriage void, except as
provided in Article 41.
Justice Puno later modified the above as follows:

Justice Caguioa commented that the above provision

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

The absolute nullity of a previous

marriage may be invoked for purposes
of remarriage only on the basis of a
final judgment declaring such previous
marriage void, except as provided in
Article 41. 17
In fact, the requirement for a declaration of absolute nullity of a
marriage is also for the protection of the spouse who, believing that
his or her marriage is illegal and void, marries again. With the
judicial declaration of the nullity of his or her first marriage, the
person who marries again cannot be charged with bigamy. 18
Just over a year ago, the Court made the pronouncement that there
is a necessity for a declaration of absolute nullity of a prior
subsisting marriage before contracting another in the recent case
of Terre v. Terre. 19 The Court, in turning down the defense of
respondent Terre who was charged with grossly immoral conduct
consisting of contracting a second marriage and living with another
woman other than complainant while his prior marriage with the
latter remained subsisting, said that "for purposes of determining
whether a person is legally free to contract a second marriage, a
judicial declaration that the first marriage was null and void ab
initio is essential."
As regards the necessity for a judicial declaration of absolute nullity
of marriage, petitioner submits that the same can be maintained
only if it is for the purpose of remarriage. Failure to allege this
purpose, according to petitioner's theory, will warrant dismissal of
the same.
Article 40 of the Family Code provides:
Art. 40. The absolute nullity of a previous marriage
may be invoked for purposes of remarriage on the
basis solely of a final judgment declaring such
previous marriage void. (n)
Crucial to the proper interpretation of Article 40 is the position in
the provision of the word "solely." As it is placed, the same shows

that it is meant to qualify "final judgment declaring such previous

marriage void." Realizing the need for careful craftsmanship in
conveying the precise intent of the Committee members, the
provision in question, as it finally emerged, did not state "The
absolute nullity of a previous marriage may be invoked solely for
purposes of remarriage . . .," in which case "solely" would clearly
qualify the phrase "for purposes of remarriage." Had the
phraseology been such, the interpretation of petitioner would have
been correct and, that is, that the absolute nullity of a previous
marriage may be invoked solely for purposes of remarriage, thus
rendering irrelevant the clause "on the basis solely of a final
judgment declaring such previous marriage void."
That Article 40 as finally formulated included the significant clause
denotes that such final judgment declaring the previous marriage
void need not be obtained only for purposes of remarriage.
Undoubtedly, one can conceive of other instances where a party
might well invoke the absolute nullity of a previous marriage for
purposes other than remarriage, such as in case of an action for
liquidation, partition, distribution and separation of property
between the erstwhile spouses, as well as an action for the custody
and support of their common children and the delivery of the
latters' presumptive legitimes. In such cases, evidence needs must
be adduced, testimonial or documentary, to prove the existence of
grounds rendering such a previous marriage an absolute nullity.
These need not be limited solely to an earlier final judgment of a
court declaring such previous marriage void. Hence, in the instance
where a party who has previously contracted a marriage which
remains subsisting desires to enter into another marriage which is
legally unassailable, he is required by law to prove that the
previous one was an absolute nullity. But this he may do on the
basis solely of a final judgment declaring such previous marriage
void.
This leads us to the question: Why the distinction? In other words,
for purposes of remarriage, why should the only legally acceptable
basis for declaring a previous marriage an absolute nullity be a final
judgment declaring such previous marriage void? Whereas, for
purposes other than remarriage, other evidence is acceptable?

Marriage, a sacrosanct institution, declared by the Constitution as

an "inviolable social institution, is the foundation of the family;" as
such, it "shall be protected by the State." 20 In more explicit terms,
the Family Code characterizes it as "a special contract of
permanent union between a man and a woman entered into in
accordance with law for the establishment of conjugal, and family
life." 21 So crucial are marriage and the family to the stability and
peace of the nation that their "nature, consequences, and incidents
are governed by law and not subject to stipulation . . ." 22 As a
matter of policy, therefore, the nullification of a marriage for the
purpose of contracting another cannot be accomplished merely on
the basis of the perception of both parties or of one that their union
is so defective with respect to the essential requisites of a contract
of marriage as to render it void ipso jure and with no legal effect
and nothing more. Were this so, this inviolable social institution
would be reduced to a mockery and would rest on very shaky
foundations indeed. And the grounds for nullifying marriage would
be as diverse and far-ranging as human ingenuity and fancy could
conceive. For such a social significant institution, an official state
pronouncement through the courts, and nothing less, will satisfy
the exacting norms of society. Not only would such an open and
public declaration by the courts definitively confirm the nullity of
the contract of marriage, but the same would be easily verifiable
through records accessible to everyone.
That the law seeks to ensure that a prior marriage is no
impediment to a second sought to be contracted by one of the
parties may be gleaned from new information required in the
Family Code to be included in the application for a marriage license,
viz, "If previously married, how, when and where the previous
marriage was dissolved and annulled." 23
Reverting to the case before us, petitioner's interpretation of Art.
40 of the Family Code is, undoubtedly, quite restrictive. Thus, his
position that private respondent's failure to state in the petition
that the same is filed to enable her to remarry will result in the
dismissal of SP No. 1989-J is untenable. His misconstruction of Art.
40 resulting from the misplaced emphasis on the term "solely" was
in fact anticipated by the members of the Committee.

Dean Gupit commented the word "only" may be

misconstrued to refer to "for purposes of
remarriage." Judge Diy stated that "only" refers to
"final judgment." Justice Puno suggested that they
say "on the basis only of a final judgment." Prof.
Baviera suggested that they use the legal term
"solely" instead of "only," which the Committee
approved. 24 (Emphasis supplied)
Pursuing his previous argument that the declaration for absolute
nullity of marriage is unnecessary, petitioner suggests that private
respondent should have filed an ordinary civil action for the
recovery of the properties alleged to have been acquired during
their union. In such an eventuality, the lower court would not be
acting as a mere special court but would be clothed with
jurisdiction to rule on the issues of possession and ownership. In
addition, he pointed out that there is actually nothing to separate
or partition as the petition admits that all the properties were
acquired with private respondent's money.
The Court of Appeals disregarded this argument and concluded that
"the prayer for declaration of absolute nullity of marriage may be
raised together with the other incident of their marriage such as
the separation of their properties."
When a marriage is declared void ab initio, the law states that the
final judgment therein shall provide for "the liquidation, partition
and distribution of the properties of the spouses, the custody and
support of the common children, and the delivery of their
presumptive legitimes, unless such matters had been adjudicated
in previous judicial proceedings." 25 Other specific effects flowing
therefrom, in proper cases, are the following:
Art. 43. xxx xxx xxx
(2) The absolute community of property or the
conjugal partnership, as the case may be, shall be
dissolved and liquidated, but if either spouse
contracted said marriage in bad faith, his or her
share of the net profits of the community property or

conjugal partnership property shall be forfeited in

favor of the common children or, if there are none,
the children of the guilty spouse by a previous
marriage or, in default of children, the innocent
spouse;
(3) Donations by reason of marriage shall remain
valid, except that if the donee contracted the
marriage in bad faith, such donations made to said
donee are revoked by operation of law;

lower court committed no grave abuse of discretion in denying

petitioner's motion to dismiss SP No. 1989-J.
WHEREFORE, the instant petition is hereby DENIED. The decision of
respondent Court dated February 7, 1992 and the Resolution dated
March 20, 1992 are AFFIRMED.
SO ORDERED.

(4) The innocent spouse may revoke the designation

of the other spouse who acted in bad faith as a
beneficiary in any insurance policy, even if such
designation be stipulated as irrevocable; and
(5) The spouse who contracted the subsequent
marriage in bad faith shall be disqualified to inherit
from the innocent spouse by testate and intestate
succession. (n)
Art. 44. If both spouses of the subsequent marriage
acted in bad faith, said marriage shall be void ab
initio and all donations by reason of marriage and
testamentary disposition made by one in favor of the
other are revoked by operation of law. (n) 26
Based on the foregoing provisions, private respondent's ultimate
prayer for separation of property will simply be one of the
necessary consequences of the judicial declaration of absolute
nullity of their marriage. Thus, petitioner's suggestion that in order
for their properties to be separated, an ordinary civil action has to
be instituted for that purpose is baseless. The Family Code has
clearly provided the effects of the declaration of nullity of marriage,
one of which is the separation of property according to the regime
of property relations governing them. It stands to reason that the
lower court before whom the issue of nullity of a first marriage is
brought is likewise clothed with jurisdiction to decide the incidental
questions regarding the couple's properties. Accordingly, the
respondent court committed no reversible error in finding that the

G.R. No. 83598 March 7, 1997

LEONCIA BALOGBOG and GAUDIOSO BALOGBOG, petitioners,
vs.
HONORABLE COURT OF APPEALS, RAMONITO BALOGBOG
and GENEROSO BALOGBOG, respondents.

MENDOZA, J.:
This is a petition for review of the decision 1 of the Court of Appeals,
affirming the decision of the Court of First Instance of Cebu City
(Branch IX), declaring private respondents heirs of the deceased
Basilio and Genoveva Balogbog entitled to inherit from them.
The facts are as follows. Petitioners Leoncia and Gaudioso Balogbog
are the children of Basilio Balogbog and Genoveva Arzibal who died
intestate in 1951 and 1961, respectively. They had an older
brother, Gavino, but he died in 1935, predeceasing their parents.
In 1968, private respondents Ramonito and Generoso Balogbog
brought an action for partition and accounting against petitioners,
claiming that they were the legitimate children of Gavino by
Catalina Ubas and that, as such, they were entitled to the one-third
share of Gavino in the estate of their grandparents.
In their answer, petitioners denied knowing private respondents.
They alleged that their brother Gavino died single and without issue
in their parents' residence at Tag-amakan, Asturias, Cebu. In the
beginning they claimed that the properties of the estate had been
sold to them by their mother when she was still alive, but they later
withdrew this allegation.
Private respondents presented Priscilo Y. Trazo, 2 then 81 years old,
mayor of the municipality of Asturias from 1928 to 1934, who
testified that he knew Gavino and Catalina to be husband and wife
and Ramonito to be their first child. On crossexamination, Trazo
explained that he knew Gavino and Catalina because they
performed at his campaign rallies, Catalina as "balitaw" dancer and
Gavino Balogbog as her guitarist. Trazo said he attended the
wedding of Gavino and Catalina sometime in 1929, in which Rev.
Father Emiliano Jomao-as officiated and Egmidio Manuel, then a
municipal councilor, acted as one of the witnesses.
The second witness presented was Matias Pogoy, 3 a family friend
of private respondents, who testified that private respondents are
the children of Gavino and Catalina. According to him, the wedding
of Gavino and Catalina was solemnized in the Catholic Church of

Asturias, Cebu and that he knew this because he attended their

wedding and was in fact asked by Gavino to accompany Catalina
and carry her wedding dress from her residence in Camanaol to the
poblacion of Asturias before the wedding day. He testified that
Gavino died in 1935 in his residence at Obogon, Balamban, Cebu,
in the presence of his wife. (This contradicts petitioners' claim
made in their answer that Gavino died in the ancestral house at
Tag-amakan, Asturias.) Pogoy said he was a carpenter and he was
the one who had made the coffin of Gavino. He also made the
coffin of the couple's son, Petronilo, who died when he was six.
Catalina Ubas testified concerning her marriage to Gavino. 4 She
testified that after the wedding, she was handed a "receipt,"
presumably the marriage certificate, by Fr. Jomao-as, but it was
burned during the war. She said that she and Gavino lived together
in Obogon and begot three children, namely, Ramonito, Petronilo,
and Generoso. Petronilo died after an illness at the age of six. On
crossexamination, she stated that after the death of Gavino, she
lived in common law relation with a man for a year and then they
separated.
Private respondents produced a certificate from the Office of the
Local Civil Registrar (Exh. P) that the Register of Marriages did not
have a record of the marriage of Gavino and Catalina, another
certificate from the Office of the Treasurer (Exh. L) that there was
no record of the birth of Ramonito in that office and, for this reason,
the record must be presumed to have been lost or destroyed during
the war, and a certificate by the Parish Priest of Asturias that there
was likewise no record of birth of Ramonito in the church, the
records of which were either lost or destroyed during the war. (Exh.
M)
On the other hand, as defendant below, petitioner Leoncia
Balogbog testified 5 that Gavino died single at the family residence
in Asturias. She denied that her brother had any legitimate children
and stated that she did not know private respondents before this
case was filed. She obtained a certificate (Exh. 10) from the Local
Civil Registrar of Asturias to the effect that that office did not have
a record of the names of Gavino and Catalina. The certificate was
prepared by Assistant Municipal Treasurer Juan Maranga, who

testified that there was no record of the marriage of Gavino and

Catalina in the Book of Marriages between 1925 to 1935. 6
Witness Jose Narvasa testified 7 that Gavino died single in 1935 and
that Catalina lived with a certain Eleuterio Keriado after the war,
although he did not know whether they were legally married. He
added, however, that Catalina had children by a man she had
married before the war, although he did not know the names of the
children. On crossexamination, Narvasa stated that Leoncia
Balogbog, who requested him to testify, was also his bondsman in a
criminal case filed by a certain Mr. Cuyos.
Ramonito Balogbog was presented
testimony.

First. Petitioners contend that the marriage of Gavino and Catalina

should have been proven in accordance with Arts. 53 and 54 of the
Civil Code of 1889 because this was the law in force at the time the
alleged marriage was celebrated. Art. 53 provides that marriages
celebrated under the Civil Code of 1889 should be proven only by a
certified copy of the memorandum in the Civil Registry, unless the
books thereof have not been kept or have been lost, or unless they
are questioned in the courts, in which case any other proof, such as
that of the continuous possession by parents of the status of
husband and wife, may be considered, provided that the
registration of the birth of their children as their legitimate children
is also submitted in evidence.

to rebut Leoncia Balogbog's

On June 15, 1973, the Court of First Instance of Cebu City rendered
judgment for private respondents (plaintiffs below), ordering
petitioners to render an accounting from 1960 until the finality of
its judgment, to partition the estate and deliver to private
respondents one-third of the estate of Basilio and Genoveva, and to
pay attorney's fees and costs.
Petitioners filed a motion for new trial and/or reconsideration,
contending that the trial court erred in not giving weight to the
certification of the Office of the Municipal Treasurer of Asturias
(Exh. 10) to the effect that no marriage of Gavino and Catalina was
recorded in the Book of Marriages for the years 1925-1935. Their
motion was denied by the trial court, as was their second motion
for new trial and/or reconsideration based on the church records of
the parish of Asturias which did not contain the record of the
alleged marriage in that church.
On appeal, the Court of Appeals affirmed. It held that private
respondents failed to overcome the legal presumption that a man
and a woman deporting themselves as husband and wife are in fact
married, that a child is presumed to be legitimate, and that things
happen according to the ordinary course of nature and the ordinary
habits of life. 9 Hence, this petition.
We find no reversible error committed by the Court of Appeals.

This Court noted long ago, however, that Arts. 42 to 107 of the Civil
Code of 1889 of Spain did not take effect, having been suspended
by the Governor General of the Philippines shortly after the
extension
of
that
code
to
this
10
country. Consequently, Arts. 53 and 54 never came into force.
Since this case was brought in the lower court in 1968, the
existence of the marriage must be determined in accordance with
the present Civil Code, which repealed the provisions of the former
Civil Code, except as they related to vested rights, 11 and the rules
on evidence. Under the Rules of Court, the presumption is that a
man and a woman conducting themselves as husband and wife are
legally married. 12 This presumption may be rebutted only by
cogent proof to the contrary. 13 In this case, petitioners' claim that
the certification presented by private respondents (to the effect
that the record of the marriage had been lost or destroyed during
the war) was belied by the production of the Book of Marriages by
the assistant municipal treasurer of Asturias. Petitioners argue that
this book does not contain any entry pertaining to the alleged
marriage of private respondents' parents.
This contention has no merit. In Pugeda v. Trias, 14 the defendants,
who questioned the marriage of the plaintiffs, produced a
photostatic copy of the record of marriages of the Municipality of
Rosario, Cavite for the month of January, 1916, to show that there
was no record of the alleged marriage. Nonetheless, evidence
consisting of the testimonies of witnesses was held competent to
prove the marriage. Indeed, although a marriage contract is

considered primary evidence of marriage, 15 the failure to present it

is not proof that no marriage took place. Other evidence may be
presented
to
prove
marriage. 16 Here, private respondents proved, through testimonial
evidence, that Gavino and Catalina were married in 1929; that they
had three children, one of whom died in infancy; that their marriage
subsisted until 1935 when Gavino died; and that their children,
private respondents herein, were recognized by Gavino's family and
by the public as the legitimate children of Gavino.
Neither is there merit in the argument that the existence of the
marriage cannot be presumed because there was no evidence
showing in particular that Gavino and Catalina, in the presence of
two witnesses, declared that they were taking each other as
husband and wife. 17 An exchange of vows can be presumed to
have been made from the testimonies of the witnesses who state
that a wedding took place, since the very purpose for having a
wedding is to exchange vows of marital commitment. It would
indeed be unusual to have a wedding without an exchange of vows
and quite unnatural for people not to notice its absence.
The law favors the validity of marriage, because the State is
interested in the preservation of the family and the sanctity of the
family is a matter of constitutional concern. As stated in Adong
v. Cheong Seng Gee: 18
The basis of human society throughout the civilized
world is that of marriage. Marriage in this jurisdiction
is not only a civil contract, but it is a new relation, an
institution in the maintenance of which the public is
deeply interested. Consequently, every intendment
of the law leans toward legalizing matrimony. Persons
dwelling together in apparent matrimony are
presumed, in the absence of any counterpresumption or evidence special to the case, to be in
fact married. The reason is that such is the common
order of society, and if the parties were not what
they thus hold themselves out as being, they would
be living in the constant violation of decency and of
law. A presumption established by our Code of Civil

Procedure is "that a man and a woman deporting

themselves as husband and wife have entered into a
lawful contract of marriage." (Sec. 334, No.
28) Semper praesumitur pro matrimonio Always
presume marriage. (U.S. vs. Villafuerte and Rabano
[1905], 4 Phil., 476; Son Cui vs. Guepangco, supra;
U.S. vs. Memoracion and Uri [1916], 34 Phil., 633;
Teter vs. Teter [1884], 101 Ind., 129.)
Second. Petitioners contend that private respondents' reliance
solely on testimonial evidence to support their claim that private
respondents had been in the continuous possession of the status of
legitimate children is contrary to Art. 265 of the Civil Code which
provides that such status shall be proven by the record of birth in
the Civil Register, by an authentic document or by final judgment.
But in accordance with Arts. 266 and 267, in the absence of titles
indicated in Art. 265, the filiation of children may be proven by
continuous possession of the status of a legitimate child and by any
other means allowed by the Rules of Court or special laws. Thus the
Civil Code provides:
Art. 266. In the absence of the titles indicated in the
preceding article, the filiation shall be proved by the
continuous possession of status of a legitimate child.
Art. 267. In the absence of a record of birth,
authentic document, final judgment or possession of
status, legitimate filiation may be proved by any
other means allowed by the Rules of Court and
special laws.
Petitioners contend that there is no justification for presenting
testimonies as to the possession by private respondents of the
status of legitimate children because the Book of Marriages for the
years 1928-1929 is available.
What is in issue, however, is not the marriage of Gavino and
Catalina but the filiation of private respondents as their children.
The marriage of Gavino and Catalina has already been shown in the
preceding discussion. The treasurer of Asturias, Cebu certified that

the records of birth of that municipality for the year 1930 could not
be found, presumably because they were lost or destroyed during
the war (Exh. L). But Matias Pogoy testified that Gavino and
Catalina begot three children, one of whom, Petronilo, died at the
age of six. Catalina testified that private respondents Ramonito and
Generoso are her children by Gavino Balogbog. That private
respondents are the children of Gavino and Catalina Balogbog
cannot therefore be doubted.

A. Yes.

Moreover, the evidence in the record shows that petitioner

Gaudioso Balogbog admitted to the police of Balamban, Cebu that
Ramonito is his nephew. As the Court of Appeals found:

A. We are close because aside from the

fact that he is my nephew we were
also leaving (sic) in the same house in
Butuan City, and I even barrow (sic)
from him money in the amount of
P300.00, when I return to Balamban,
Cebu.

Q. Do you mean to say that you are

close to him?
A. Yes. We are close.
Q. Why do you say you are close?

Ironically, it is appellant Gaudioso himself who

supplies the clincher that tips the balance in favor of
the appellees. In an investigation before the Police
Investigating Committee of Balamban, Cebu, held on
March 8, 1968, conducted for the purpose of
inquiring into a complaint filed by Ramonito against a
patrolman of the Balamban police force, Gaudioso
testified that the complainant in that administrative
case is his nephew. Excerpts from the transcript of
the proceedings conducted on that date (Exhs. "N",
"N-1", "N-2", "N-3" and "N-4") read:

xxx xxx xxx

Q. Why is Ramonito Balogbog your
nephew?
A. Because he is the son of my elder
brother.

Atty. Kiamco May it please this

investigative body.

This admission of relationship is admissible against

Gaudioso although made in another case. It is
considered as a reliable declaration against interest
(Rule 130, Section 22). Significantly, Gaudioso did
not try to offer any explanation to blunt the effects of
that declaration. He did not even testify during the
trial. Such silence can only mean that Ramonito is
indeed the nephew of Gaudioso, the former being the
son of Gavino.

Q. Do you know the complainant in this

Administrative Case No. 1?
A. Yes I know.
Q. Why do you know him?
A. I know because he is my nephew.

WHEREFORE, the decision appealed from is AFFIRMED.

Q. Are you in good terms with your

nephew, the complainant?

SO ORDERED.

G.R. No. 162368

July 17, 2006

MA. ARMIDA PEREZ-FERRARIS, petitioner,

vs.
BRIX FERRARIS, respondent.
RESOLUTION
YNARES-SANTIAGO, J.:
This resolves the motion for reconsideration filed by petitioner Ma.
Armida Perez-Ferraris of the Resolution dated June 9, 2004 denying
the petition for review on certiorari of the Decision and Resolution
of the Court of Appeals dated April 30, 2003 and February 24, 2004,
respectively, for failure of the petitioner to sufficiently show that
the Court of Appeals committed any reversible error.
On February 20, 2001, the Regional Trial Court of Pasig City, Branch
151 rendered a Decision1 denying the petition for declaration of
nullity of petitioner's marriage with Brix Ferraris. The trial court
noted that suffering from epilepsy does not amount to

psychological incapacity under Article 36 of the Civil Code and the

evidence on record were insufficient to prove infidelity. Petitioner's
motion for reconsideration was denied in an Order 2 dated April 20,
2001 where the trial court reiterated that there was no evidence
that respondent is mentally or physically ill to such an extent that
he could not have known the obligations he was assuming, or
knowing them, could not have given valid assumption thereof.
Petitioner appealed to the Court of Appeals which affirmed3 in toto
the judgment of the trial court. It held that the evidence on record
did not convincingly establish that respondent was suffering from
psychological incapacity or that his "defects" were incurable and
already present at the inception of the marriage. 4 The Court of
Appeals also found that Dr. Dayan's testimony failed to establish
the substance of respondent's psychological incapacity; that she
failed to explain how she arrived at the conclusion that the
respondent has a mixed personality disorder; that she failed to
clearly demonstrate that there was a natal or supervening disabling
factor or an adverse integral element in respondent's character
that effectively incapacitated him from accepting and complying
with the essential marital obligations.5
Petitioner's motion for reconsideration was denied 6 for lack of
merit; thus, she filed a petition for review on certiorari with this
Court. As already stated, the petition for review was denied for
failure of petitioner to show that the appellate tribunal committed
any reversible error.
Petitioner filed the instant motion for reconsideration. 7 The Court
required respondent Brix Ferraris to file comment 8 but failed to
comply; thus, he is deemed to have waived the opportunity to file
comment. Further, the Court directed the Office of the Solicitor
General (OSG) to comment on petitioner's motion for
reconsideration which it complied on March 2, 2006.

The issue of whether or not psychological incapacity exists in a

given case calling for annulment of marriage depends crucially,
more than in any field of the law, on the facts of the case. 9 Such
factual issue, however, is beyond the province of this Court to
review. It is not the function of the Court to analyze or weigh all
over again the evidence or premises supportive of such factual
determination.10 It is a well-established principle that factual
findings of the trial court, when affirmed by the Court of Appeals,
are binding on this Court,11 save for the most compelling and
cogent reasons, like when the findings of the appellate court go
beyond the issues of the case, run contrary to the admissions of
the parties to the case, or fail to notice certain relevant facts which,
if properly considered, will justify a different conclusion; or when
there is a misappreciation of facts, 12 which are unavailing in the
instant case.
The term "psychological incapacity" to be a ground for the nullity of
marriage under Article 36 of the Family Code, refers to a serious
psychological illness afflicting a party even before the celebration
of the marriage. It is a malady so grave and so permanent as to
deprive one of awareness of the duties and responsibilities of the
matrimonial bond one is about to assume. 13 As all people may have
certain quirks and idiosyncrasies, or isolated characteristics
associated with certain personality disorders, there is hardly any
doubt that the intendment of the law has been to confine the
meaning of "psychological incapacity" to the most serious cases of
personality disorders clearly demonstrative of an utter insensitivity
or inability to give meaning and significance to the marriage. 14 It is
for this reason that the Court relies heavily on psychological
experts for its understanding of the human personality. However,
the root cause must be identified as a psychological illness and its
incapacitating nature must be fully explained, 15 which petitioner
failed to convincingly demonstrate.
As aptly held by the Court of Appeals:

After considering the arguments of both the petitioner and the

OSG, the Court resolves to deny petitioner's motion for
reconsideration.

Simply put, the chief and basic consideration in the

resolution of marital annulment cases is the presence of
evidence that can adequately establish respondent's
psychological condition. Here, appellant contends that there

is such evidence. We do not agree. Indeed, the evidence on

record did not convincingly establish that respondent was
suffering from psychological incapacity. There is absolutely
no showing that his "defects" were already present at the
inception of the marriage, or that those are incurable.
Quite apart from being plainly self-serving, petitioner's
evidence showed that respondent's alleged failure to
perform his so-called marital obligations was not at all a
manifestation of some deep-seated, grave, permanent and
incurable psychological malady. To be sure, the couple's
relationship before the marriage and even during their brief
union (for well about a year or so) was not all bad. During
that relatively short period of time, petitioner was happy
and contented with her life in the company of respondent. In
fact, by petitioner's own reckoning, respondent was a
responsible and loving husband. x x x. Their problems began
when petitioner started doubting respondent's fidelity. It was
only when they started fighting about the calls from women
that respondent began to withdraw into his shell and corner,
and failed to perform his so-called marital obligations.
Respondent could not understand petitioner's lack of trust in
him and her constant naggings. He thought her suspicions
irrational. Respondent could not relate to her anger, temper
and jealousy. x x x.
xxxx
At any rate, Dr. Dayan did not explain how she arrived at her
diagnosis that respondent has a mixed personality disorder
called "schizoid," and why he is the "dependent and
avoidant type." In fact, Dr. Dayan's statement that one
suffering from such mixed personality disorder is dependent
on others for decision x x x lacks specificity; it seems to
belong to the realm of theoretical speculation. Also, Dr.
Dayan's information that respondent had extramarital affairs
was supplied by the petitioner herself. Notably, when asked
as to the root cause of respondent's alleged psychological
incapacity, Dr. Dayan's answer was vague, evasive and
inconclusive. She replied that such disorder "can be part of

his family upbringing" x x x. She stated that there was a

history of respondent's parents having difficulties in their
relationship. But this input on the supposed problematic
history of respondent's parents also came from petitioner.
Nor did Dr. Dayan clearly demonstrate that there was really
"a natal or supervening disabling factor" on the part of
respondent, or an "adverse integral element" in
respondent's character that effectively incapacitated him
from accepting, and, thereby complying with, the essential
marital obligations. Of course, petitioner likewise failed to
prove that respondent's supposed psychological or mental
malady existed even before the marriage. All these
omissions must be held up against petitioner, for the reason
that upon her devolved the onus of establishing nullity of
the marriage. Indeed, any doubt should be resolved in favor
of the validity of the marriage and the indissolubility of the
marital vinculum.16
We find respondent's alleged mixed personality disorder, the
"leaving-the-house" attitude whenever they quarreled, the violent
tendencies during epileptic attacks, the sexual infidelity, the
abandonment and lack of support, and his preference to spend
more time with his band mates than his family, are not rooted on
some debilitating psychological condition but a mere refusal or
unwillingness to assume the essential obligations of marriage.
In Republic v. Court of Appeals,17 where therein respondent
preferred to spend more time with his friends than his family on
whom he squandered his money, depended on his parents for aid
and assistance, and was dishonest to his wife regarding his
finances, the Court held that the psychological defects spoken of
were more of a "difficulty," if not outright "refusal" or "neglect" in
the performance of some marital obligations and that a mere
showing of irreconcilable differences and conflicting personalities in
no wise constitute psychological incapacity; it is not enough to
prove that the parties failed to meet their responsibilities and
duties as married persons; it is essential that they must be shown
to be incapable of doing so, due to some psychological, not
physical, illness.

Also, we held in Hernandez v. Court of Appeals18 that habitual

alcoholism, sexual infidelity or perversion, and abandonment do not
by themselves constitute grounds for declaring a marriage void
based on psychological incapacity.
While petitioner's marriage with the respondent failed and appears
to be without hope of reconciliation, the remedy however is not
always to have it declared void ab initio on the ground of
psychological incapacity. An unsatisfactory marriage, however, is
not a null and void marriage.19 No less than the Constitution
recognizes the sanctity of marriage and the unity of the family; it
decrees marriage as legally "inviolable" and protects it from
dissolution at the whim of the parties. Both the family and marriage
are to be "protected" by the state.20
Thus, in determining the import of "psychological incapacity" under
Article 36, it must be read in conjunction with, although to be taken
as distinct from Articles 35,21 37,22 38,23 and 4124 that would
likewise, but for different reasons, render the marriage void ab
initio, or Article 4525 that would make the marriage merely voidable,
or Article 55 that could justify a petition for legal separation. Care
must be observed so that these various circumstances are not
applied so indiscriminately as if the law were indifferent on the
matter.26 Article 36 should not to be confused with a divorce law
that cuts the marital bond at the time the causes therefor manifest
themselves.27 Neither it is to be equated with legal separation, in
which the grounds need not be rooted in psychological incapacity
but on physical violence, moral pressure, moral corruption, civil
interdiction, drug addiction, habitual alcoholism, sexual infidelity,
abandonment and the like.28
WHEREFORE, in view of the foregoing, the motion for
reconsideration of the Resolution dated June 9, 2004 denying the
petition for review on certiorari for failure of the petitioner to
sufficiently show that the Court of Appeals committed any
reversible error, is DENIED WITH FINALITY.
SO ORDERED.

BRION, J.:
Enrique Agraviador y Alunan (petitioner) challenges through his
petition for review on certiorari1 the decision dated May 31,
20052 and the resolution dated December 6, 2005 3 of the Court of
Appeals (CA) in CA-G.R. CV No. 75207.The challenged decision
reversed the resolution4 of the Regional Trial Court (RTC), Branch
276, Muntinlupa City, declaring the marriage of the petitioner and
Erlinda Amparo-Agraviador (respondent) null and void on the
ground of the latters psychological incapacity. The assailed
resolution, on the other hand, denied the petitioners motion for
reconsideration.
Antecedent Facts
The petitioner first met the respondent in 1971 at a beerhouse
where the latter worked. The petitioner, at that time, was a 24-year
old security guard of the Bureau of Customs, while the respondent
was a 17-year old waitress. Their meeting led to a courtship, and
they eventually became sweethearts. They often spent nights
together at the respondents rented room, and soon entered into a
common-law relationship.
On May 23, 1973, the petitioner and the respondent contracted
marriage in a ceremony officiated by Reverend Juanito Reyes at a
church in Tondo, Manila. The petitioners family was apprehensive
about this marriage because of the nature of the respondents work
and because she came from a broken family. Out of their union, the
petitioner and the respondent begot four (4) children, namely:
Erisque, Emmanuel, Evelyn, and Eymarey.
G.R. No. 170729

December 8, 2010

ENRIQUE AGRAVIADOR y ALUNAN, Petitioner,

vs.
ERLINDA AMPARO-AGRAVIADOR and REPUBLIC OF THE
PHILIPPINES, Respondents.
DECISION

On March 1, 2001, the petitioner filed with the RTC a petition for the
declaration of nullity of his marriage with the respondent, under
Article 36 of the Family Code, as amended. 5 The case was docketed
as Civil Case No. 01-081. He alleged that the respondent was
psychologically incapacitated to exercise the essential obligations
of marriage as she was carefree and irresponsible, and refused to
do household chores like cleaning and cooking; stayed away from
their house for long periods of time; had an affair with a lesbian; did
not take care of their sick child; consulted a witch doctor in order to

bring him bad fate; and refused to use the family name Agraviador
in her activities.
The petitioner likewise claimed that the respondent refused to have
sex with him since 1993 because she became "very close" to a
male tenant in their house. In fact, he discovered their love notes to
each other, and caught them inside his room several times.
The respondent moved to dismiss the petition on the ground that
the root cause of her psychological incapacity was not medically
identified and alleged in the petition.6 The RTC denied this motion
in its order dated July 2, 2001.7

The petitioner declared that he filed the petition for nullity because
the respondent refused to change; he loves his children and does
not want their children to be affected by their mothers conduct. He
intimated that he might remarry if it would benefit their children.
Aside from his testimony, the petitioner also presented a certified
true copy of their marriage contract (Exh. "B") 11and the psychiatric
evaluation report (Exh. "A")12 of Dr. Juan Cirilo L. Patac.
In his Psychiatric Evaluation Report, Dr. Patac made the following
findings:
REMARKS AND RECOMMENDATIONS

In her answer, the respondent denied that she engaged in

extramarital affairs and maintained that it was the petitioner who
refused to have sex with her. She claimed that the petitioner
wanted to have their marriage annulled because he wanted to
marry their former household helper, Gilda Camarin. She added
that she was the one who took care of their son at the hospital
before he died.
The RTC ordered the city prosecutor and/or the Solicitor General to
investigate if collusion existed between the parties. 9 The RTC, in its
Order of November 20, 2001, allowed the petitioner to present his
evidence ex parte.10The petitioner, thus, presented testimonial and
documentary evidence to substantiate his claims.
In his testimony, the petitioner confirmed what he stated in his
petition, i.e., that the respondent was carefree, irresponsible,
immature, and whimsical; stubbornly did what she wanted; did not
stay long in the conjugal dwelling; refused to do household chores;
refused to take care of him and their children; and consulted a
witch doctor in order to bring bad luck upon him.
The petitioner further confirmed that the respondent abandoned
their sick child, which led to the latters death. The petitioner
further stated that the respondent became very close to a male
border of their house; he discovered their love notes to each other,
and caught them inside his room several times.

Based on the information gathered from Enrique, his son and their
helper, the psychological report and the mental status examination,
Enrique is found to be psychologically capable to fulfill the essential
obligations of marriage. He coped with Erlindas selfish and
irresponsible behavior as he dutifully performed what she failed to
do for the family. He patiently tried to understand her and exerted
every effort to make her realize the harm caused by her neglect to
the family. Throughout their marriage, he provided emotional and
material support for the family. He engaged in other business
endeavors aside from his employment as he maintained to be
financially productive.
The same data revealed that Erlinda failed to fulfill the essential
obligations of marriage. She manifested inflexible maladaptive
behavior even at the time before their marriage. She is known to be
stubborn and uncaring who did things her way without regard to
the feelings of others. She is an irresponsible individual who
selfishly ignored and neglected her role as daughter to her parents
as wife to Enrique and mother to their children. Before the marriage
at a young age of 17, Erlinda defied her parents as she lived alone,
rented a room for herself and allowed Enrique to sleep with her.
She did not care about the needs of Enrique before and after
marriage and she maintained to be so with her children. She
abandoned and relegated her duty to her family to their helper. She
never stayed long in their house despite pleadings from her
children and Enrique. Her irresponsible, uncaring behavior even led

to the death of one of their children. Likewise, she does not show
concern and ignores a daughter who is presently manifesting
behavioral problem. She kept secrets as she never allowed her
husband and children know where she stays when shes not at
work. She falsified documents as she hid her marital status when
she used her maiden surname in her present employment. She is
having illicit affairs and is reported to be presently having an affair
with a lesbian. Her desire to bring bad fate and death to Enrique
through her consultation with a "mangkukulam" point out her lack
of care, love, and respect to Enrique.
Erlindas lack of motivation and insight greatly affected her
capacity to render love, respect and support to her family.
The above data shows that Erlinda is suffering from a Personality
Disorder (Mixed Personality Disorder). She has been having this
disorder since her adolescence. There is no definite treatment for
this disorder. She is deemed psychologically incapacitated to
perform the obligations of marriage.
In fairness to Erlinda, she is recommended to undergo the same
examination as Enrique underwent.13
The RTC Ruling
The RTC nullified the marriage of the petitioner and the respondent
in its decision of April 26, 2002. It saw merit in the petitioners
testimony and Dr. Patacs psychiatric evaluation report, and
concluded that:
Without contradiction the recitation by Petitioner and the findings
of the doctor show that Respondent is indeed suffering from "Mixed
Personality Disorder" that render her incapable of complying with
her marital obligations. Respondents refusal to commit herself to
the marriage, her tendencies to avoid a close relationship with
Petitioner, preferring to be with her lover and finally abandoning
their home for a lesbian, a disregard of social norm, show that she
was never prepared for marital commitment in the first place. This
incapacity is deeply rooted from her family upbringing with no hope
for a cure. Therefore, for the good of society and of the parties

themselves, it is best that this marriage between ENRIQUE

AGRAVIADOR Y ALUNAN and ERLINDA AMPARO AGRAVIADOR be
annulled as if it never took place at all. The Civil Registrar of the
City of Manila and the General Civil Registrar, National Census and
Statistics Office, East Avenue, Quezon City, are hereby requested to
make the necessary correction of the civil record of the marriage
between the parties and on their respective civil status.
The children ERISQUE AGRAVIADOR, EMMANUEL AGRAVIADOR,
EVELYN AGRAVIADOR and EYMAREY AGRAVIADOR will however
remain as their legitimate children.
It is SO ORDERED.14
The CA Decision
The Republic of the Philippines, through the Office of the Solicitor
General, appealed the RTC decision to the CA. The CA, in its
decision15 dated May 31, 2005, reversed and set aside the RTC
resolution, and dismissed the petition.
The CA held that Dr. Patacs psychiatric evaluation report failed to
establish that the respondents personality disorder was serious,
grave and permanent; it likewise did not mention the root cause of
her incapacity. The CA further ruled that Dr. Patac had no basis in
concluding that the respondents disorder had no definite
treatment because he did not subject her to a mental assessment.
The CA added that the "psychiatric remarks" in the Report were
nothing but a showcase of respondents character flaws and
liabilities. There was no proof of a natal or supervening factor that
effectively incapacitated the respondent from accepting and
complying with the essential obligations of marriage. If at all, these
character flaws may only give rise to a legal separation suit.
The petitioner moved to reconsider this decision, but the CA denied
his motion in its resolution of December 6, 2005.16
The Petition and Issues

The petitioner now comes to us via the present petition to

challenge and seek the reversal of the CA ruling, based on the
following arguments:
I. THE EVIDENCE ADDUCED BY [HIM] WAS MORE THAN
SUBSTANTIAL TO ESTABLISH THE PSYCHOLOGICAL INCAPACITY OF
THE RESPONDENT[;]
II. THE GUIDELINES SET FORTH IN REPUBLIC V. MOLINA [HAD BEEN]
SATISIFIED[;]
III. THE ADMISSIBILITY XXX OF THE PSYCHIATRIC EVALUATION
REPORT XXX STILL STANDS FOR NOT HAVING BEEN CONTESTED
XXX BY THE STATE AND/THE RESPONDENT[; and]
IV. THE DEGREE OF PROOF REQUIRED IN CIVIL CASES HAD BEEN
SATISIFIED[.]
The issue in this case essentially boils down to whether there is
basis to nullify the petitioners marriage to the respondent on the
ground of psychological incapacity to comply with the essential
marital obligations.
The Courts Ruling
We resolve to deny the petition for lack of merit, and hold that no
sufficient basis exists to annul the marriage, pursuant to Article 36
of the Family Code and its related jurisprudence.
The totality of evidence presented
failed to establish the respondents
psychological incapacity
The petition for declaration of nullity of marriage is anchored on
Article 36 of the Family Code which provides that "[a] marriage
contracted by any party who, at the time of the celebration, was
psychologically incapacitated to comply with the essential marital
obligations of marriage, shall likewise be void even if such
incapacity becomes manifest only after its solemnization." It

introduced the concept of psychological incapacity as a ground for

nullity of marriage, although this concept eludes exact definition.
The initial common consensus on psychological incapacity under
Article 36 of the Family Code was that it did not involve a species of
vice of consent. Justices Sempio-Diy and Caguioa, both members of
the Family Code revision committee that drafted the Code,
conceded that the spouse may have given free and voluntary
consent to a marriage but was, nonetheless, incapable of fulfilling
such rights and obligations. Dr. Arturo Tolentino likewise stated in
the 1990 edition of his commentaries on the Family Code that this
"psychological incapacity to comply with the essential marital
obligations does not affect the consent to the marriage."17
In Santos v. Court of Appeals,18 the Court first declared that
psychological incapacity must be characterized by (a) gravity; (b)
juridical antecedence; and (c) incurability. It should refer to "no less
than a mental (not physical) incapacity that causes a party to be
truly incognitive of the basic marital covenants that concomitantly
must be assumed and discharged by the parties to the
marriage."19 It must be confined to the most serious cases of
personality disorders clearly demonstrative of an utter insensitivity
or inability to give meaning and significance to the marriage.
We laid down more definitive guidelines in the interpretation and
application of Article 36 of the Family Code in Republic v. Court of
Appeals20 (the Molina case) where we said:
(1) The burden of proof to show the nullity of the marriage
belongs to the plaintiff. Any doubt should be resolved in
favor of the existence and continuation of the marriage and
against its dissolution and nullity. This is rooted in the fact
that both our Constitution and our laws cherish the validity
of marriage and unity of the family. Thus, our Constitution
devotes an entire Article on the Family, recognizing it "as
the foundation of the nation." It decrees marriage as legally
"inviolable," thereby protecting it from dissolution at the
whim of the parties. Both the family and marriage are to be
"protected" by the state.

The Family Code echoes this constitutional edict on

marriage and the family and emphasizes their permanence,
inviolability and solidarity.
(2) The root cause of the psychological incapacity must be
(a) medically or clinically identified, (b) alleged in the
complaint, (c) sufficiently proven by experts and (d) clearly
explained in the decision. Article 36 of the Family Code
requires that the incapacity must be psychological - not
physical, although its manifestations and/or symptoms may
be physical. The evidence must convince the court that the
parties, or one of them, was mentally or psychically ill to
such an extent that the person could not have known the
obligations he was assuming, or knowing them, could not
have given valid assumption thereof. Although no example
of such incapacity need be given here so as not to limit the
application of the provision under the principle ofejusdem
generis, nevertheless such root cause must be identified as
a psychological illness and its incapacitating nature fully
explained. Expert evidence may be given by qualified
psychiatrists and clinical psychologists.
(3) The incapacity must be proven to be existing at "the
time of the celebration" of the marriage. The evidence must
show that the illness was existing when the parties
exchanged their "I do's." The manifestation of the illness
need not be perceivable at such time, but the illness itself
must have attached at such moment, or prior thereto.
(4) Such incapacity must also be shown to be medically or
clinically permanent or incurable. Such incurability may be
absolute or even relative only in regard to the other spouse,
not necessarily absolutely against everyone of the same
sex. Furthermore, such incapacity must be relevant to the
assumption of marriage obligations, not necessarily to those
not related to marriage, like the exercise of a profession or
employment in a job. x x x
(5) Such illness must be grave enough to bring about the
disability of the party to assume the essential obligations of

marriage. Thus, "mild characteriological peculiarities, mood

changes, occasional emotional outbursts" cannot be
accepted as root causes. The illness must be shown as
downright incapacity or inability, not a refusal, neglect or
difficulty, much less ill will. In other words, there is a natal or
supervening disabling factor in the person, an adverse
integral element in the personality structure that effectively
incapacitates the person from really accepting and thereby
complying with the obligations essential to marriage.
(6) The essential marital obligations must be those
embraced by Articles 68 up to 71 of the Family Code as
regards the husband and wife as well as Articles 220, 221
and 225 of the same Code in regard to parents and their
children. Such non-complied marital obligation(s) must also
be stated in the petition, proven by evidence and included in
the text of the decision.
(7) Interpretations given by the National Appellate
Matrimonial Tribunal of the Catholic Church in the
Philippines, while not controlling or decisive, should be given
great respect by our courts. x x x
(8) The trial court must order the prosecuting attorney or
fiscal and the Solicitor General to appear as counsel for the
state. No decision shall be handed down unless the Solicitor
General issues a certification, which will be quoted in the
decision, briefly stating therein his reasons for his
agreement or opposition, as the case may be, to the
petition. The Solicitor General, along with the prosecuting
attorney, shall submit to the court such certification within
fifteen (15) days from the date the case is deemed
submitted for resolution of the court. The Solicitor General
shall discharge the equivalent function of the defensor
vinculicontemplated under Canon 1095.
These guidelines incorporate the basic requirements we established
in Santos. A later case, Marcos v. Marcos, 21further clarified that
there is no requirement that the defendant/respondent spouse
should be personally examined by a physician or psychologist as a

condition sine qua non for the declaration of nullity of marriage

based on psychological incapacity. Accordingly, it is no longer
necessary to introduce expert opinion in a petition under Article 36
of the Family Code if the totality of evidence shows that
psychological incapacity exists and its gravity, juridical
antecedence, and incurability can be duly established.
A later case, Ngo Te v. Yu-Te, 22 declared that it may have been
inappropriate for the Court to impose a rigid set of rules, as the one
in Molina, in resolving all cases of psychological incapacity. We
stated that instead of serving as a guideline, Molina unintentionally
became a straightjacket, forcing all cases involving psychological
incapacity to fit into and be bound by it, which is not only contrary
to the intention of the law but unrealistic as well because, with
respect to psychological incapacity, no case can be considered as
on "all fours" with another. Ngo Te, therefore, put into question the
applicability of time-tested guidelines set forth in Molina.
Ting v. Velez-Ting23 and the fairly recent case of Suazo v.
Suazo24 squarely met the issue and laid to rest any question
regarding the applicability of Molina. In these cases, we clarified
that Ngo Te did not abandon Molina; far from abandoning Molina, it
simply suggested the relaxation of its stringent requirements. We
also explained in Suazo that Ngo Te merely stands for a more
flexible approach in considering petitions for declaration of nullity
of marriages based on psychological incapacity.
Under these established guidelines, we find the totality of the
petitioners evidence insufficient to prove the respondents
psychological incapacity.
a. Petitioners court testimony
For clarity, we reproduce the pertinent portions of the petitioners
testimony that essentially confirmed what the petition alleged:
Q: Out of your marriage with the said respondent, were you blessed
with children, and how many?

A: Yes, sir, we were blessed with four (4), two (2) boys and two (2)
girls.
Q: Where are they now?
A: All grown up with the exception of one who died of pneumonia
due to the neglect and fault of my said wife who abandone[d] him
at the time of his illness.
Q: Is that the reason why you file[d] the instant petition, Mr.
Witness?
A: It is only one of the several reasons, Sir.
Q: Can you cite these reasons, you mentioned?
A: She appears to be carefree, irresponsible, immature, whimsical
and used to impose what she wanted to get, she refused to do
household chores, like cooking, caring for the husband and
children, used to stay from the conjugal dwelling, initially for weeks,
then for months and lately fully abandoned the family house and
stay with a lesbian. [sic]
At first, I discovered a love note while being so secretive and used
to be very close to a male renter in the ground floor of their house
and caught them several times alone in his room, thus explaining
the reason why she refused to have sex since 1993, up to and until
the present time.
Lately, we discovered that she used to consult a cult
"mangkukulam" to bring bad fate against the family and death for
me.
Q: By the way did you give her the chance to change?
A: I gave her but she refused to reform.
xxxx

Q: Can you not give a last chance for you to save your marriage?
A: I think I cannot since she does not accept her fault and she does
not want to change for the sake of our family. 25

that the respondent "does not accept her fault," "does not want to
change," and "refused to reform" are insufficient to establish a
psychological or mental defect that is serious, grave, or incurable
as contemplated by Article 36 of the Family Code.

These exchanges during trial significantly constituted the totality of

the petitioners testimony on the respondents supposed
psychological or mental malady. We glean from these exchanges
the petitioners theory that the respondents psychological
incapacity is premised on her refusal or unwillingness to perform
certain marital obligations, and a number of unpleasant personality
traits such as immaturity, irresponsibility, and unfaithfulness.

In a similar case, Bier v. Bier, 29 we ruled that it was not enough that
the respondent, alleged to be psychologically incapacitated, had
difficulty in complying with his marital obligations, or was unwilling
to perform these obligations. Proof of a natal or supervening
disabling factor an adverse integral element in the respondent's
personality structure that effectively incapacitated him from
complying with his essential marital obligations had to be shown.

These acts, in our view, do not rise to the level of psychological

incapacity that the law requires, and should be distinguished from
the "difficulty," if not outright "refusal" or "neglect," in the
performance of some marital obligations that characterize some
marriages.26 The intent of the law has been to confine the meaning
of psychological incapacity to the most serious cases of personality
disorders existing at the time of the marriage clearly
demonstrating an utter insensitivity or inability to give meaning
and significance to the marriage.27 The psychological illness that
must have afflicted a party at the inception of the marriage should
be a malady so grave and permanent as to deprive one of
awareness of the duties and responsibilities of the matrimonial
bond he or she is about to assume.28

b. Dr. Patacs Psychiatric Evaluation Report

In the present case, the petitioners testimony failed to establish

that the respondents condition is a manifestation of a disordered
personality rooted on some incapacitating or debilitating
psychological condition that makes her completely unable to
discharge the essential marital obligations. If at all, the petitioner
merely showed that the respondent had some personality defects
that showed their manifestation during the marriage; his testimony
sorely lacked details necessary to establish that the respondents
defects existed at the inception of the marriage. In addition, the
petitioner failed to discuss the gravity of the respondents
condition; neither did he mention that the respondents malady was
incurable, or if it were otherwise, the cure would be beyond the
respondents means to undertake. The petitioners declarations

The Court finds that Dr. Patacs Psychiatric Evaluation Report fell
short in proving that the respondent was psychologically
incapacitated to perform the essential marital duties. We
emphasize that Dr. Patac did not personally evaluate and examine
the respondent; he, in fact, recommended at the end of his Report
for the respondent to "undergo the same examination [that the
petitioner] underwent."30 Dr. Patac relied only on the information
fed by the petitioner, the parties second child, Emmanuel, and
household helper. Sarah. Largely, the doctor relied on the
information provided by the petitioner. Thus, while his Report can
be used as a fair gauge to assess the petitioners own psychological
condition (as he was, in fact, declared by Dr. Patac to be
psychologically capable to fulfill the essential obligations of
marriage), the same statement cannot be made with respect to the
respondents condition. The methodology employed simply cannot
satisfy the required depth and comprehensiveness of the
examination required to evaluate a party alleged to be suffering
from a psychological disorder.31
We do not suggest that a personal examination of the party alleged
to be psychologically incapacitated is mandatory. We have
confirmed in Marcos v. Marcos that the person sought to be
declared psychologically incapacitated must be personally
examined by a psychologist as a condition sine qua non to arrive at
such declaration.32 If a psychological disorder can be proven by

independent means, no reason exists why such independent proof

cannot be admitted and given credit. 33 No such independent
evidence appears on record, however, to have been gathered in
this case.
In his Report, Dr. Patac attempted to establish the juridical
antecedence of the respondents condition by stating that the
respondent manifested "inflexible maladaptive behavior" before
marriage, pointing out how the respondent behaved before the
marriage the respondent defied her parents and lived alone;
rented a room for herself; and allowed the petitioner to sleep with
her. These perceived behavioral flaws, to our mind, are insufficient
to establish that the incapacity was rooted in the history of the
respondent antedating the marriage. Dr. Patac failed to elucidate
on the circumstances that led the respondent to act the way she
did, for example, why she "defied her parents" and decided to live
alone; why she "neglected her obligations as a daughter;" and why
she often slept with the petitioner. This is an area where
independent evidence, such as information from a person
intimately related to the respondent, could prove useful. As earlier
stated, no such independent evidence was gathered in this case. In
the absence of such evidence, it is not surprising why the
Psychiatric Report Evaluation failed to explain how and why the
respondents so-called inflexible maladaptive behavior was already
present at the time of the marriage.
Dr. Patacs Psychiatric Evaluation Report likewise failed to prove the
gravity or seriousness of the respondents condition. He simply
made an enumeration of the respondents purported behavioral
defects (as related to him by third persons), and on this basis
characterized the respondent to be suffering from mixed
personality disorder. In the "Background History" portion of his
Psychiatric Evaluation Report, Dr. Patac mentioned that the
respondent employed one of her siblings to do the household
chores; did not help in augmenting the familys earnings; belittled
the petitioners income; continued her studies despite the
petitioners disapproval; seldom stayed at home; became "close" to
a male border; had an affair with a lesbian; did not disclose the
actual date of her departure to Taiwan; threatened to poison the
petitioner and their children; neglected and ignored their children;

used her maiden name at work; and consulted a witch doctor to

bring bad fate to the petitioner. Except for the isolated and
unfounded statement that "Erlindas lack of motivation and insight
greatly affected her capacity to render love, respect and support to
the family,"34 there was no other statement regarding the degree of
severity of the respondents condition, why and to what extent the
disorder is grave, and how it incapacitated her to comply with the
duties required in marriage. There was likewise no showing of a
supervening disabling factor or debilitating psychological condition
that effectively incapacitated the respondent from complying with
the essential marital obligations. At any rate, the personality flaws
mentioned above, even if true, could only amount to insensitivity,
sexual infidelity, emotional immaturity, and irresponsibility, which
do not by themselves warrant a finding of psychological incapacity
under Article 36 of the Family Code.
Interestingly, Dr. Patacs Psychiatric Evaluation Report highlighted
only the respondents negative behavioral traits without balancing
them with her other qualities. The allegations of infidelity and
insinuations of promiscuity, as well as the claim that the
respondent refused to engage in sexual intercourse since 1993, of
course, came from the petitioner, but these claims were not
proven. Even assuming ex gratia argumenti that these accusations
were true, the Psychiatric Evaluation Report did not indicate that
unfaithfulness or promiscuousness were traits that antedated or
existed at the time of marriage. Likewise, the accusation that the
respondent abandoned her sick child which eventually led to the
latters death appears to be an exaggerated claim in the absence
of any specifics and corroboration. On the other hand, the
petitioners own questionable traits his flirtatious nature before
marriage and his admission that he inflicted physical harm on the
respondent every time he got jealous were not pursued. From this
perspective, the Psychiatric Evaluation Report appears to be no
more than a one-sided diagnosis against the respondent that we
cannot consider a reliable basis to conclusively establish the root
cause and the degree of seriousness of her condition.1avvphi1
The Psychiatric Evaluation Report likewise failed to adequately
explain how Dr. Patac came to the conclusion that the respondents
personality disorder had "no definite treatment." It did not discuss

the concept of mixed personality disorder, i.e., its classification,

cause, symptoms, and cure, and failed to show how and to what
extent the respondent exhibited this disorder in order to create a
necessary inference that the respondents condition had no definite
treatment or is incurable. A glaring deficiency, to our mind, is the
Psychiatric Evaluation Reports failure to support its findings and
conclusions with any factual basis. It simply enumerated the
respondents perceived behavioral defects, and then associated
these traits with mixed personality disorder. We find it unfortunate
that Dr. Patac himself was not called on the witness stand to
expound on the findings and conclusions he made in his Psychiatric
Evaluation Report. It would have aided petitioners cause had he
called Dr. Patac to testify.

interdiction, drug addiction, sexual infidelity, abandonment, and

the like.36 Unless the evidence presented clearly reveals a situation
where the parties or one of them, by reason of a grave and
incurable psychological illness existing at the time the marriage
was celebrated, was incapacitated to fulfill the obligations of
marital life (and thus could not then have validly entered into a
marriage), then we are compelled to uphold the indissolubility of
the marital tie.

Admittedly, the standards used by the Court in assessing the

sufficiency of psychological evaluation reports may be deemed very
strict, but these are proper, in view of the principle that any doubt
should be resolved in favor of the validity of the marriage and the
indissolubility of the marital vinculum. 35 Marriage, an inviolable
institution protected by the State, cannot be dissolved at the whim
of the parties, especially where the prices of evidence presented
are grossly deficient to show the juridical antecedence, gravity and
incurability of the condition of the party alleged to be
psychologically incapacitated to assume and perform the essential
marital duties.

SO ORDERED.

The petitioners marriage to the respondent may have failed and

appears to be without hope of reconciliation The remedy, however,
is not always to have it declared void ab initio on the ground of
psychological incapacity. We stress that Article 36 of the Family
Code contemplates downright incapacity or inability to assume and
fulfill the basic marital obligations, not a mere refusal, neglect or
difficulty, much less, ill will, on the part of the errant spouse. It is
not to be confused with a divorce law that cuts the marital bond at
the time the grounds for divorce manifest themselves. The State,
fortunately or unfortunately, has not seen it fit to decree that
divorce should be available in this country. Neither should an Article
36 declaration of nullity be equated with legal separation, in which
the grounds need not be rooted in psychological incapacity but on
physical violence, moral pressure, moral corruption, civil

WHEREFORE, in light of all the foregoing, we DENY the petition and

AFFIRM the Decision and the Resolution of the Court of Appeals
dated May 31, 2005 and December 6, 2005, respectively, in CAG.R. CV No. 75207. Costs against the petitioner.

as held by this Court in Lara vs. Del Rosario, 94 Phil., 778 ,50 Off.
Gaz., p. 1975).
Nevertheless, the Court a quo dismissed the complaint on the
ground that the appellant had acquired no right to a divorce that
the Court bound to recognize after the effectivity of the New Civil
Code. The Court reasoned out as follows:
G.R. No. L-6705

December 23, 1954

PATROCINIO RAYMUNDO, plaintiff-appellant,

vs.
DOROTEO PEAS, defendant-appellee.
REYES, J.B.L., J.:
Patrocinio Raymundo has brought up this case by direct appeal on
points of law against a decision of the Court of First Instance of
Manila (case No. 1169), denying her petition for a decree of divorce
under Act 2710.
The facts are clear and not disputed. Appellant Raymundo and
appellee Doroteo Peas were validly married to each other in
Manila on March 29, 1941. The spouses lived together until 1949,
but had no children, nor acquired conjugal property. Sometime in
July 1949, the husband Doroteo Peas abandoned his wife,
appellant herein, and during August and September, 1949, lived
maritally with another woman, Carmen Paredes. At the instance of
the deserted wife, an information for concubinage was filed on
October 3, 1949 (Criminal Case No. 11140). The husband, Peas,
was convicted and sentenced to imprisonment by the Court of First
Instance of Manila on May 5, 1950. Pending his appeal, on July 14,
1950, the wife instituted the present proceedings, praying for a
decree of absolute divorce. The conviction of Doroteo Peas was
affirmed by the Court of Appeals on October 31, 1951.
The Court below found that the acts of concubinage that gave rise
to the action, as well as the judgment of conviction rendered by the
Court of First Instance, took place before the repeal of Act 2710 by
the new Civil Code, (which becomes effective on August 30, 1950,

Counsel's argument in support of the alleged right of the

plaintiff would be indisputable if (it were ) not for the
following provision of Article 2254 of the new Civil Code.
'Art. 2254. No vested or acquired right can raise from
acts or omissions which are against the law or which
infringe upon the rights of others.'
The above quoted provisions is entirely new, not found in
the old Civil Code. Evidently it is designed to meet situations
like the present. Under its explicit and unequivocal terms no
acquired or vested right can rise from offenses or acts which
infringe upon the rights of others. It follows therefore that
the acts of concubinage of the defendant, which are not only
against the law, but infringe upon the rights of his wife,
could not and did not give rise to o a vested right in favor of
the plaintiff which would entitle her to secure a divorce from
her husband, the defendant herein. Under Article 97 of the
new Civil Code the most that the wife is now entitled to in
case of concubinage on the part of the husband is to secure
a legal separation. (Rec. on Appeal, p. 14.
In our opinion, the judgment appealed from is incorrect. It should
be apparent, upon reflection, that the prohibition of Article 2254
must be directed at the offender, not the offended party who is in
no way responsible for the violation of legal duty. The interpretation
adopted by the Court below results in depriving a victim of any
redress because of the very acts that injured him. The protection of
vested rights is but a consequence of the constitutional guaranty
against deprivation of property can in no way constitute such due
process.

Our view of the true import of Article 2254 is supported by the

Report of Code Commission submitted to the Legislature in
explanation of the motives behind the innovations of the proposed
Civil Code. Speaking of Article 2274 of the draft (now Art. 2254 of
the Code), the Report states:
It is evident that no one can validly claim any vested or
acquired right if the same is founded upon his having
violated the law or invaded the rights of others.
It follows that Article 2254 can not militate against the right of
appellant to secure an absolute divorce as a result of the
concubinage of her husband. Despite the change in legislation,
plaintiff-appellant is protected by Article 2253 of the new Civil
Code:
Art. 2253. The Civil Code of 1889 and other previous laws
shall govern rights originating, under said laws, from acts
done or events which took place under the regime, even
though this Code may regulate them in a different manner,
or may not recognize them.lawphil.net
xxx

xxx

xxx

Conceding that there can not be a vested right in the continuation

of a law recognizing absolute divorce (Grant vs. Grant, 32 Am. Rep.
506), still , the terms of Article 2253 are sufficiently broad to
protect the rights of the appellant to a remedy against her
husband's infidelity in conformity with the terms of the old
legislation. True that the new Civil Code does not recognize
absolute divorce, but only legal separation (Articles 97 to 108),
thereby impliedly repealing Act 2710; but other provisions of the
Code clearly safeguard rights and actions arising under the
preceding law. Its Article 4 expresses the well established principle
that "laws shall have no retroactive effect unless the contrary is
provided"; and Article 2258 plainly indicates that rights and actions
already existing (and a fortiori, actions already initiated) should be
governed by the prior legislation.

Art. 2258. Actions and rights which came into being but
were not exercised before the effectivity of this Code, shall
remain in full force in conformity with the old legislation; but
their exercise, duration and the procedure to enforce them
shall be regulated by this Code and by the Rules of Court. If
the exercise of the right or of the action was commenced
under the old laws, but is pending on the date this Code
takes effect, and the procedure was different from that
established in this new body of laws, the parties concerned
may choose which methods or course to pursue.
Further, Article 2267 explicitly enumerates the articles that are to
apply to actions pending (like the present) when the new Civil Code
became effective, and Articles 97 to 108 on legal separation
are not included therein.
Art. 2267. The following provisions shall apply not only to
future cases but also to those pending on the date this Code
becomes effective:
(1) Article 29, relative to criminal prosecutions wherein the
accused is acquitted on the ground that his guilt has not
been proved beyond reasonable doubt;.
(2) Article 33, concerning cases of defamation, fraud, and
physical injuries.
The plain implication of these provisions is that the Code did not
intend its provisions on legal separation to apply retroactively; and
that the change from absolute divorce to legal separation was not
designed to affect at the time the reform was introduced.
Thus the present case is readily distinguished from the case of
divorce proceedings instituted under Executive Order No. 141 of
the Japanese occupation Executive Commission, and which were
pending at the liberation of the Islands. We ruled in Pea de Luz vs.
Court of First Instance of Leyte, 43 Off. Gaz., p. 4102, that such
pending divorce proceedings must be dismissed because the
occupation divorce law ceased to be in force and effect upon
liberation of the national territory, and because the proclamation of

General McArthur in Leyte on October 23, 1944, had abrogated all

occupation legislation absolutely and without qualification. The
repeal of Act 2710 by the new Civil Code is in a different position,
since the transitional provisions of the latter law expressly
prescribe, as we have seen, the subsistence of rights derived from
acts that took place under the prior legislation.
G.R. No. 79284 November 27, 1987
It is of no comment that the conviction of the husband only became
final after the new Civil Code, denying absolute divorce, came into
effect, for their Court has already ruled in Chereau vs. Fuentebellla
(43 Phil., 220) that section 8 of Act 2710 1is only evidentiary in
character, since it merely has reference, of course, to the species of
proof required to establish the basal fact on which the right to the
divorce rests; and the circumstance that this fact is not so proved in
no wise impairs the jurisdiction of the Court.".
The decision appealed from is reversed, and a new judgment shall
be entered granting a decree of absolute divorce as prayed for.
Without costs.

FROILAN C. GANDIONCO, petitioner,

vs.
HON. SENEN C. PEARANDA, as Presiding Judge of the
Regional Trial Court of Misamis Oriental, Branch 18,
Cagayan de Oro City, and TERESITA S.
GANDIONCO, respondents.
PADILLA, J.:
A special civil action for certiorari, with application for injunction, to
annul (1) the Order of the respondent Judge, dated 10 December
1986, ordering petitioner to pay support pendente lite to private
respondent (his wife) and their child, and (2) the Order of the same
respondent Judge, dated 5 August 1987, denying petitioner's
motion to suspend hearings in the action for legal separation filed
against him by private respondent as well as his motion to inhibit
respondent Judge from further hearing and trying the case.
On 29 May 1986, private respondent, the legal wife of the
petitioner, filed with the Regional Trial Court of Misamis Oriental,
10th Judicial District, Branch 18, in Cagayan de Oro City, presided
over by respondent Judge, a complaint against petitioner for legal
separation, on the ground of concubinage, with a petition for
support and payment of damages. This case was docketed as Civil
Case No. 10636. On 13 October 1986, private respondent also filed
with the Municipal Trial Court, General Santos City, a complaint
against petitioner for concubinage, which was docketed on 23
October 1986 as Criminal Case No. 15437111. On 14 November
1986, application for the provisional remedy of support pendente
lite, pending a decision in the action for legal separation, was filed
by private respondent in the civil case for legal separation. The

respondent judge, as already stated, on 10 December 1986,

ordered The payment of support pendente lite.
In this recourse, petitioner contends that the civil action for legal
separation and the incidents consequent thereto, such as,
application for support pendente lite, should be suspended in view
of the criminal case for concubinage filed against him the private
respondent. In support of his contention, petitioner cites Art. III.
Sec. 3 of the 1985 Rules on Criminal Procedure, which states:
SEC. 3. Other Civil action arising from offenses.
Whenever the offended party shall have instituted
the civil action to enforce the civil liability arising
from the offense. as contemplated in the first Section
1 hereof, the following rules shall be observed:
(a) After a criminal action has been commenced the
pending civil action arising from the same offense
shall be suspended, in whatever stage it may be
found, until final judgment in the criminal proceeding
has been rendered. . . .
The civil action for legal separation, grounded as it is on
concubinage, it is petitioner's position that such civil action arises
from, or is inextricably tied to the criminal action for concubinage,
so that all proceedings related to legal separation will have to be
suspended to await conviction or acquittal for concubinage in the
criminal case. Authority for this position is this Court's decision in
the case of Jerusalem vs. Hon. Roberto Zurbano. 1
Petitioner's contention is not correct.
In Jerusalem, the Court's statement to the effect that suspension
an action for legal separation would be proper if an allegation
concubinage is made therein, relied solely on Sec. 1 of Rule 107
the then provisions of the Rules of Court on criminal procedure,
wit:

of
of
of
to

Sec. 1. Rules governing civil actions arising from

offenses.-Except as otherwise provided by law, the
following rules shall he observed:
(a) When a criminal action is instituted, the civil
action for recovery of civil liability arising from the
offense charged is impliedly instituted with the
criminal action, unless the offended party expressly
waives the civil action or reserves his right to
institute it separately;
(b) Criminal and civil actions arising from the same
offense may be instituted separately, but after the
criminal action has been commenced the civil action
can not be instituted until final judgment has been
rendered in the criminal action;
(c) After a criminal action has been commenced, no
civil action arising from the same offense can be
prosecuted and the same shall be suspended in
whatever stage it may be found until final judgment
in the criminal proceeding has been rendered ...
(Emphasis supplied)
The provisions last quoted did not clearly state, as the 1985 Rules
do, that the civil action to be suspended, with or upon the filing of a
criminal action, is one which is "to enforce the civil liability arising
from the offense". In other words, in view of the amendment under
the 1985 Rules on Criminal Procedure, a civil action for legal
separation, based on concubinage, may proceed ahead of, or
simultaneously with, a criminal action for concubinage, because
said civil action is not one "to enforce the civil liability arising from
the offense" even if both the civil and criminal actions arise from or
are related to the same offense. Such civil action is one intended to
obtain the right to live separately, with the legal consequences
thereof, such as, the dissolution of the conjugal partnership of
gains, custody of offsprings, support, and disqualification from
inheriting from the innocent spouse, among others. As correctly
pointed out by the respondent Judge in his Order dated 5 August
1987:

The unreported case of JERUSALEM vs. Hon. Roberto

Zurbano, Judge of CFI of Antique, et al., L-11935,
April 24, 1959 (105 Phil. 1277) is not controlling. It
applied paragraph C of Sec. 1, of then Rule 107 of
the Rules of Court, which reads:
After a criminal action has been
commenced, no civil action arising
from the same offense can be
prosecuted and the same shall be
suspended, in whatever stage it may
be found, until final judgment in the
criminal
proceeding
has
been
rendered. (Emphasis supplied)
The governing rule is now Sec. 3, Rule 111, 1985 Rules on Criminal
Procedure which refers to "civil actions to enforce the civil liability
arising from the offense" as contemplated in the first paragraph of
Section 1 of Rule 111-which is a civil action "for recovery of civil
liability arising from the offense charged." Sec. 1, Rule 111, (1985)
is specific that it refers to civil action for the recovery of civil
liability arising from the offense charged. Whereas, the old Sec. 1
(c), Rule 107 simply referred to "Civil action arising from the
offense."
As earlier noted this action for legal separation is not to recover
civil liability, in the main, but is aimed at the conjugal rights of the
spouses and their relations to each other, within the contemplation
of Articles 7 to 108, of the Civil Code." 2
Petitioner also argues that his conviction for concubinage will have
to be first secured before the action for legal separation can
prosper or succeed, as the basis of the action for legal separation is
his alleged offense of concubinage.
Petitioner's assumption is erroneous.
A decree of legal separation, on the ground of concubinage, may be
issued upon proof by preponderance of evidence in the action for
legal separation. 3 No criminal proceeding or conviction is

necessary. To this end, the doctrine in Francisco vs. Tayao 4 has

been modified, as that case was decided under Act. No. 2710, when
absolute divorce was then allowed and had for its grounds the
same grounds for legal separation under the New Civil Code, with
the requirement, under such former law, that the guilt of defendant
spouses had to be established by final judgment in a criminal
action. That requirement has not been reproduced or adopted by
the framers of the present Civil Code, and the omission has been
uniformly accepted as a modification of the stringent rule
in Francisco v. Tayao. 5
Petitioner's attempt to resist payment of support pendente lite to
his wife must also fail, as we find no proof of grave abuse of
discretion on the part of the respondent Judge in ordering the
same. Support pendente lite, as a remedy, can be availed of in an
action for legal separation, and granted at the discretion of the
judge. 6 If petitioner finds the amount of support pendente
lite ordered as too onerous, he can always file a motion to modify
or reduce the same.7
Petitioner lastly seeks to have the respondent Judge disqualified
from hearing the case, as the grant of supportpendente lite and the
denial of the motion to suspend hearings in the case, are taken by
the petitioner as a disregard of applicable laws and existing
doctrines, thereby showing the respondent Judge's alleged manifest
partiality to private respondent.
Petitioner's contention is without merit. Divergence of opinions
between a judge hearing a case and a party's counsel, as to
applicable laws and jurisprudence, is not a sufficient ground to
disqualify the judge from hearing the case, on the ground of bias
and manifest partiality. This is more so, in this case, where we find
the judge's disposition of petitioner's motions to be sound and welltaken.
WHEREFORE, the instant petition is hereby DISMISSED. Costs
against petitioner.
SO ORDERED.

This ardent desire favored by good luck and accepted by the

noble lady the one concerned, is to be realized and complied
with under agreement or stipulation which affirms, promotes
and vivifies the union. This agreement donating all my
exclusive properties in order that we shall have a basic
capital for our conjugal life and in order that there will be
ready maintenance and support of offsprings has come out
voluntarily and expontaneously from me, I the very one
concerned.

G.R. No. L-12093

June 29, 1959

ESTANISLAO SERRANO, plaintiff-appellant,

vs.
MELCHOR SOLOMON, defendant-appellee.
MONTEMAYOR, J.:
Estanislao Serrano is appealing the decision of the Court of First
Instance of Ilocos Sur, Judge Jose G. Bautista presiding, declaring
null and void the supposed donation propter nuptias on which his
complaint was based and dismissing the later upon motion of the
defendant. The motion for dismissal was filed before the hearing
but the trial court deferred action upon it until after submission of
evidence by the parties. Said parties entered into a stipulation of
facts after which they declined to submit any other evidence except
Exhibit "A", the supposed deed of donation propter nuptias, the
translation of which, for purposes of reference, is reproduced below:
That, I Melchor Solomon, single, Filipino, of legal age, native
of the municipality of Sinait, province of Ilocos Sur and
residing at present in Sinait, having decided to get married
with the consent of my parents, brothers, or sisters and
relatives,
have
announced
and
manifested
my
determination and desire to Mr. Estanislao Serrano to whose
family the flower I intend to win belongs, namely Miss
Alejandria Feliciano single, born in Hawaii but is actually
residing in Cabugao, Ilocos Sur.

These which I am donating my exclusive properties because

I have honestly acquired the same with the sweat of my
brows and I donate them gladly, to wit . . .;
The referred to properties are donated in accordance with
the existing laws of the Philippines and our children out of
the wedlock will be the ones to inherit same inherit same
with equal shares. But if God will not bless our union with
any child one half of all my properties including the
properties acquired our conjugal union will be given the
(to) my brothers or sisters or their heirs if I, the husband will
die before my wife and if my beloved wife will die before
me, one half of all my properties and those acquired by us
will be given to those who have reared my wife in token of
my love to her. . . . (Emphasis supplied)
Alejandria Feliciano, whose father went to Hawaii to seek his
fortune and who until now resides there, had been left to her
father's friend named Estanislao Serrano who took care of and
raised her from the age 12 until she reached womanhood. On June
21, 1948, defendant Melchor Solomon married Alejandria. On the
same day of the marriage but before the marriage ceremony he
executed the alleged Deed of Donation, Exhibit "A" above
reproduced. Less than nine months after marriage, or rather on
March 2, 1949, Alejandria died without issue. Several months
thereafter Estanislao Serrano commenced the present action to
enforce and implement the terms of the alleged donation
particularly that portion thereof to the effect that if Alejandria died
before her husband Melchor and left no children, then one half of
Melchor's properties and those acquired by him and his wife would

be given to those persons who had raised and taken care of her
namely, Estanislao Serrano.

Code and the New Civil Code, respectively. Manresa, in his

commentary on Article 1327 of the Civil Code says the following:

Acting upon the motion for dismissal the trial court found that the
donation could not be regarded as a donationpropter nuptias for
the reason that though it was executed before the marriage, it was
not made in consideration of the marriage and, what is more
important, that the donation was not made to one or both of the
(marriage) contracting parties, but to a third person.

Donations excluded are those (1) made in favor of the

spouses after the celebration of marriage; (2) executed in
favor of the future spouses but not in consideration of the
marriage; and (3) granted to persons other than the
spouses even though they may be founded on the
marriage (6 M. 232).

After a careful study of the case, we fully agree with the trial court.
Article 1327 of the Old Civil Code reads:

Having come to the conclusion that the Deed of Donation does not
fulfill the requirements of a donation propter nuptias and that it
might be considered a donation inter vivos, can it be considered
valid and effective? Hardly, because it was never accepted by the
donee either in the same instrument or donation or in a separate
document as required by law.

Art. 1327. Donations by reasons of marriage are those

bestowed before its celebration in consideration of the
same, upon one or both of the spouses.
This article was reproduced in the Civil Code under Article 126.
Whether we apply Article 1327 for the reason that the document
Exhibit "A" was executed in 1948 before the promulgation of the
New Civil Code in 1950 or whether we apply Article 126 of the New
Civil Code the result would be the same.
Was the donation made in considerations of the marriage between
Melchor and Alejandria or was it made consideration of the death of
either of them in the absence of any children? True, the Deed of
Donation was executed on the occasion when they married. But,
the marriage in itself was not the only consideration or condition
under which terms of the donation would be carried out. The
marriage would have to be childless and one of the spouses would
have to die before the other before the donation would operate. So,
strictly, speaking, the donation may not be regarded as one made
in consideration of the marriage.
But assuming for the moment that it was made in consideration of
the marriage, still, we have the fact that the donation was being
made not in favor of Alejandria, the wife, but rather in favor of
those who acted as her parents and raised her from girlhood to
womanhood in the absence of her father. That does not place it
within the provisions of Article 1327 and Article 126 of the Old Civil

Again, may the donation be regarded a donation mortis causa, and

given effect? The answer has to be in the negative for the reason
that this Tribunal has heretofore consistently held that a donation
to take effect after the death of the donor, is equivalent to a
disposition or bequest of property by last will, an it should be
executed in accordance with the requisites and strict provisions
governing the execution wills;1 and Exhibit "A" does not fulfill said
requirements. Moreover, in the present case, the donor is still alive
and naturally, even if the donation were otherwise valid, still, the
time and occasion have not arrived for considering its operation
and implementation.
In view of the foregoing, the appealed decision is hereby affirmed,
with costs.

G.R. No. L-11387

February 7, 1917

ASUNCION GEFES, plaintiff-appellee,

vs.
SILVESTRE SALVIO, ET AL., defendants.
SILVESTRE SALVIO, appellant.
TORRES, J.:
This appeal was filed by counsel for Silvestre Salvio from the
judgment of March 17, 1915, in which the trial court held that the
two parcels of land in litigation are the private property of the
plaintiff, Asuncion Gefes, and that she has the right to their
possession and ownership; that the defendants should restore and
deliver said lands to the plaintiff and pay her P1,125, the value of
375 cavanes of rice which she was unable to collect because the
defendants were in possession of the said property; and that
defendants should pay the costs.
By a complaint of the date of February 1, 1913, subsequently
amended by another of June 9 of the same year, counsel for
Asuncion Gefes commenced these proceedings in the Court of First
Instance of the Province of Antique, alleging that the plaintiff was
lawfully married to the defendant Silvestre Salvio, but that by a
written agreement they lived apart; that when plaintiff married the
said defendant she brought to the marriage two parcels of rice land
situated in the municipality of Tibiao, Antique, the extent and
bounds of which property are set forth in the complaint; that
without her knowledge and consent her husband, Silvestre Salvio,
sold these lands to Emerenciana Dayanot for P1,950; that she
received no part whatever of the said sale price; that during the
last four years the possession of this property had been held by the
defendants Rafael Costoy, Ariston Importante, and Emilio
Mabaguial, sons-in-law of the said Dayanot, who, claiming to be the

owners thereof, refused to return them to the plaintiff; that, by

reason of such detention, the plaintiff failed to collect the fruits
from the said properties since they year 1910; and that the value of
said fruits amounted to P2,400. Counsel therefore prayed the court
to order the defendants to restore to the plaintiff the said two
parcels of land and to pay to her the value of the products thereof
which she failed to collect, amounting to P2,400, with the costs
against the defendants.

her husband Silvestre Salvio and certain persons who had

purchased from him the two parcels of land, the subject-matter of
the claim, for the purpose of recovering said lands. She alleged that
she was the exclusive owner of these parcels, having brought them
to her marriage with the said Silvestre Salvio. The latter, however,
claims that the said land is community property and that the
plaintiff is only entitled to one-half of its value; that she has already
received that amount, as shown by certain letters written by her
and in possession of defendant.

The demurrer to the aforementioned complaint having been

overruled, counsel for Silvestre Salvio, in answer to the latter,
denied all the allegations contained therein, except those relative
to the possession of the lands by the persons specified by the
plaintiff; in special defense he alleged that the said parcels of land
are community property of the marriage between the plaintiff and
the defendant Salvio and were sold at the request of the plaintiff
herself for the purpose of obtaining funds wherewith to pay the
debts contracted by her in Iloilo and other pueblos, through
gambling and smoking opium. This defendant therefore prayed to
be absolved from the complaint, with the costs against the plaintiff.

Plaintiff's first husband, Juan Alegata, a Chinaman, died intestate,

but was survived by legitimate children, as stated in pages 4 and 5
of the defendant-appellant's brief, although in the writing found on
page 82 of the record it is said that the appellant Pompeyo Alegata
is a son of the plaintiff and that he also died, in September, 1915;
and notwithstanding that, on the plaintiff's subsequent marriage
with the defendant and Salvio no marriage contract was executed,
it is asserted that the two parcels of land in question came from her
husband's intestate estate and are her exclusive property.

In answer to the original complaint the defendant Rafael Costoy

alleged in his writing of February 8, 1913, that he held possession
of the lands claimed by virtue of an absolute sale made in his favor
by Silvestre Salvio, on February 20, 1911, for P600, as proven by
the notarial document to this effect executed by and between the
parties before the notary public Doroteo E. Alegata. He therefore
prayed to be absolved from the complaint, with the costs against
the plaintiff.

It has been duly proven by the record that as the result of a

complaint filed by Feliciano Omalde, a creditor of the plaintiff's first
husband, Juan Alegata, and by virtue of the judgment rendered in
the proceedings brought under that complaint, the said two parcels
of land, on December 26, 1908, were sold at auction to the
defendant Salvio for P661, as shown by the receipt Exhibit 2, and
that at the expiration of the year fixed by law, the sheriff issued to
the purchaser the proper title deed to the lands that were
adjudicated to him on December 29, 1909, as accredited by the
document Exhibit 3.

After a trial at which evidence was introduced by both parties, the

court rendered the judgment aforementioned, to which only the
defendant Silvestre Salvio excepted and moved for a reopening of
the case the a new trial. This motion was denied, exception was
taken by the defendant, and, the proper bill of exceptions having
been presented, the same was approved and transmitted to this
court.
In accordance with the provisions of paragraph 2 of section 115 of
the Code of Civil Procedure, Asuncion Gefes brought suit against

The defendant Silvestre Salvio swore that these lands became his
property by reason of his having bought them at public auction with
the money borrowed by him from Father Narciso Hijalda; that as
they were his own he sold them to his codefendants, although he
had previously asked his wife's consent to the sale; and that the
said lands did not belong to his wife, because, when she married
him, she did not bring either cash or real property to the marriage.
He also presented several letters, written in Iloilo by the plaintiff
Asuncion Gefes, in one of which she ordered the plaintiff to ask a

higher price for the land. As may be seen by this letter, dated
October
17,
1911, what
land is
concerned
therein
on
of whom Salvio was to ask a greater price, is not specified, neither
does it appear that the land therein referred to was either of the
two parcel in question. Father Narciso Hijalda corroborated the
statements of the defendant and swore that on December 24,
1908, he loaned defendant P700 with which to buy certain lands at
auction.

authority to alienate or encumber the said lands or to execute

contracts in regard thereto without the consent of his wife,
inasmuch as they were not conjugal partnership property. The sale
of the said two parcels of land made by this defendant to this
codefendants, is therefore null and void and of no value or effect,
for the reason that, as they are not conjugal property, and do not
exclusively belong to the defendant Salvio, he could not dispose of
them without the consent of their lawful owner, the plaintiff.

Notwithstanding this, the fact is indisputable that these lands did

not belong to the defendant, and if he bought them at public
auction in December, 1908, for P661, he did so with his wife
Asuncion's own money. This is evidenced by Exhibit A, a document
signed by the said Salvio before the notary Nicolas Tomas on March
27, 1909, in which he clearly sets forth that the said sum of P661,
Philippine currency, which he paid for the properties abovementioned, belonged to the private funds of his wife Asuncion
Gefes. He furthermore declared in the said document that she was
the true and absolute owner of the said lands by him purchased out
of his wife's funds and in her behalf. This document was ratified
before a notary and attests the truth of all its contents, even
against third persons. The defendant's denial of its authenticity is
not supported by any reliable evidence, nor by the affidavit (record,
p. 75) presented for the purpose of obtaining a reopening of the
case. Furthermore, it is to be noted that the defendant Salvio
cannot be heard to repudiate what he solemnly declared in a
notarial document.

With respect to the fruits or products of the said lands, it is

unquestionable that they pertain to the class of community
property and the husband is the administrator thereof.
Notwithstanding that the spouses live separately, in the eyes of the
law the said partnership subsists, as it does not appear that they
have obtained a decree of divorce or a judicial declaration of
separation of property. (Laws 7 and 8, title 10, Fourth Partida.)

So that it is here a question of the plaintiff Gefes' own property,

acquired at public auction and paid for with her own money, as the
defendant, her second husband, expressly testified. It is true that
the said two parcels of land belonged to the estate left by her first
husband at his death; but it is no less true that they were judicially
sold fore the purpose of paying his debts, and on being acquired at
auction by her second husband, in her name and representation
and with her money, they ceased to belong to the intestate estate
of her first husband and became the exclusive property of the wife
of the defendant Salvio (Civ. Code, art. 1396), and, under the
provisions of article 1401 of the Civil Code, cannot be classified as
conjugal partnership property. Therefore the defendant had no

The other defendants failed to appear and were declared in default

(record, p. 31).
For the foregoing reasons, whereby the errors assigned by the
defendant-appellant Silvestre Salvio to the judgment appealed from
have been refuted, the defendants Silvestre Salvio, Rafael Costoy
et al., are hereby sentenced to restore and return to the plaintiff
the two parcels of land claimed in her complaint and the defendant
Silvestre Salvio is absolved from the obligation of paying the value
of the products of the said lands, amounting to P2,400. In so far as
it agrees with this decision, the judgment of the lower court is
affirmed, and reversed in so far as it does not. No special finding is
made as to the costs of this instance. So ordered.

G.R. No. 124005 June 28, 1999

PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
TOMAS ABLOG y FERNANDO, defendant-appellant.
BELLOSILLO, J.:
TOMAS ABLOG y FERNANDO was convicted of raping his ten-year
old grandniece Christine Winda Montera and sentenced to reclusion
perpetua. He was also ordered to indemnify his victim in the sum of
P100,000.00. 1 He now pleads anew for acquittal as he invokes the
constitutional presumption of innocence in his favor. He insists that
the prosecution has failed to prove his guilt beyond reasonable
doubt.
Christine Winda Montera's family lived in a house abutting a wall of
the house of Tomas Ablog at No. 14, Block O, Road 5, West Crame,
Quezon City. The Montera and Ablog families were living
harmoniously until 27 May 1995 as will be narrated hereunder.
Between 7:30 and 8:00 o'clock in the evening of 27 May 1995
Christine Winda Montera nicknamed Tin-tin was sitting on a wooden
bed under their house together with her grandmother Vivian Baldo
whom they fondly called Lola Bibing. They were watching Tin-tin's
mother, Erlinda Baldo Montera, who was washing clothes at the
Montera's private washing area about three (3) steps away.

After some time, Tin-tin asked permission from her Lola Bibing to go
to the comfort room which was used in common by both families to
urinate. She was allowed to go alone. While she was relieving
herself she saw through the sackcloth, which doubled as a covering
and as the door of the room, her granduncle, Tomas Ablog whom
she called Lolo Tomas, coming towards the room and lowering
down the zippers of his short pants. From past experiences with
him, she already sensed his sexual intentions towards her. So, she
hurriedly pulled up her short pants but was dismayed when
her Lolo Tomas suddenly called her. Resigned to her fate and fearful
of his abuse, she remained where she was. It was then that she saw
her granduncle enter the room bringing a slat of wood. In silence,
she watched as he laid it down on the rough floor.
Her Lolo Tomas then looked at her and told her to lie down on the
slat of wood. Tin-tin obliged. Then he commanded her to undress
while he removed his shorts and underpants. After discarding his
underwear and seeing Tin-tin lying naked, cowering, he told her to
spread her legs. He briefly played with Tin-tin's private parts which
she referred to as her "dede" and "pepe" in her testimony. He also
kissed her immature breasts. He then placed himself on top of her
and told her to hold his flaccid penis. Afterwards he penetrated her.
He was pumping on Tin-tin when she heard her grandmother
calling for her. Oblivious of her Lola Bibing's call accused Ablog
continued pumping until her Lola Bibing called for Erlinda. Finally
accused Ablog pulled himself out, stood up, and told Tin-tin to rise
immediately and dress up as she tried to put back her clothes.
Then he instructed Tin-tin to step out of the room first.
As Tin-tin was going out of the room she met her mother Erlinda
who also noticed Ablog coming out of the same room while zipping
up his shorts. Erlinda became suspicious so she hurriedly took Tintin up to their house and told her to sit down. She asked Tin-tin why
she and her Lolo Tomas came out of the comfort room together.
ThenTin-tin tearfully narrated her ravishment by Ablog. Erlinda told
her husband William about Tin-tin's ordeal and the couple agreed to
have their daughter medically examined and to file the necessary
complaint.

Tin-tin was physical examined by Dr. Owen Lebaquin of the PNP

Crime Laboratory Service at Camp Crame, Quezon City. The
medico-legal findings showed shallow and healed lacerations on
the hymen at the 3:00 o'clock and 9:00 o'clock positions and the
external vaginal orifice offered strong resistance to the insertion of
the doctor's index finger. With these findings, the Monteras charged
Tomas Ablog on 31 May 1995 with statutory rape. Thereafter they
were inundated with several offers for settlement of the case from
Baltazar Ablog, a nephew of the accused, and from a certain Aida
Alvarez, a townmate. William Montera himself was approached by
the accused during the investigation at PNP, Camp Crame, to seek
his forgiveness. The Monteras however never yielded.
There is nothing on record to show any compelling reason to doubt
the veracity of the facts established by prosecution witnesses Dr.
Owen Lebaquin, spouses Erlinda and William Montera, and the
offended party herself Christine Winda Montera who clearly
identified in open court her granduncle Tomas Ablog as her defiler.
In the face of his positive identification by Christine, the only
defense accused-appellant could offer was his alleged impotency
on account of old age. He was sixty-eight (68) years old at the time
of the commission of the crime. This was complicated, according to
him, by his recurring and symptomatic hypertension that never
failed to cause him dizziness and general body debility which
limited his daily activities such that he even failed to attend a party
with his friend Grego who called on him in the morning of 27 May
1995.
Accused-appellant further claims he spent the whole day of 27 May
1995 sleeping until his friend Alden Cristobal went to his house at
about 7:00 to 8:00 o'clock in the evening to inquire about the
condition of the fighting cocks Ablog was raising for the cockfight
the next day. After Alden left, Ablog went down from his house to
the place where he kept his cocks near the common comfort room.
He fed them and checked their conditions. Then he washed his
hands and feet at the nearby faucet. While his wife Concepcion was
checking on him from the terrace of the second floor he filled the
drum that was lying alongside the faucet with water with the use of
a hose. When Concepcion called him to go up he told her that the

drum was not yet full. He noticed Tin-tin inside the comfort room
but did not wait for her to come out because her grandmother was
calling for her and Concepcion was also calling for him. Soon
thereafter, he went home and slept. After a while Concepcion woke
him up to ask if he did anything to Tin-tin and he simply replied,
"Ano bang ginawa ko?" Then his wife allowed him to go back to
sleep.
Accused-appellant denies asking forgiveness from William Montera
but admits urging his wife Concepcion to file a complaint for
ejectment against the Monteras as retaliation for the charge of
rape. He could not think of any reason however for the charge
against him as they and the Monteras had no quarrel at all.
The facile version of accused-appellant cannot be fortified by the
testimony of his wife which aside from being obviously biased is
basically negative in nature. Concepcion's testimony cannot prevail
over the offended party's positive identification of Tomas Ablog as
her rapist.
Neither can the claim of impotency by accused-appellant be
countenanced. In People v. Palma, 2 we ruled that impotency as a
defense in rape cases must be proved with certainty to overcome
the presumption in favor of potency. We even rejected that defense
in People v. Olmedillo 3 where a doctor had examined the accused
by stimulating his organ with a wisp of cotton for three (3) minutes
and there was no erection.
With more reason must we reject such defense in the face of the
unsubstantiated allegation of Ablog. For at no time did he present
himself for the same kind of examination. Even the expert witness
he presented, Dr. Arnold Pasia, could not state with unequivocal
conviction that his hypertension was of a permanent nature and of
such gravity that it rendered him bereft of sexual desires and
potency. On the contrary, Dr. Pasia stressed that the hypertension
that Ablog suffered was merely symptomatic and could be healed
by proper medication. Neither can accused-appellant invoke old
age. In People v. Bahuyan, 4 we convicted an octogenarian of rape
as we brushed aside his claim of impotency. There we said that
assuming arguendo that this was the truth, his advanced age did

not mean that sexual intercourse for him was no longer possible, as
age taken alone could not be a criterion in determining sexual
interest and capability of middle-aged and older people.

Also, the condition private complainant described as

"soft" may not be to such a degree that penetration
is impossible. Softness is relative.

Failing to convince us with his allegation of impotency, accusedappellant then attacks the credibility of the offended party, posing
a barrage of questions centered on the supposed inconsistencies in
her testimony and hoping to overwhelm us with the quantity, albeit
lacking in quality, of his contentions. Appellant places much
importance on the omission by Tin-tin of the pumping motions he
allegedly made on her during the rape in her report to the PNP. This
is a stark indication on the part of the defense to harp at matters of
little import for we have always stated that affidavits ex parte are
generally considered to be inferior to testimonies given in open
court. Thus, discrepancies, or omissions as in this case, in the
statements of the affiant in her affidavit and those made by her on
the witness stand do not necessarily discredit her. 5 The nitpicking
continues with the statement of Tin-tinthat Ablog's penis was soft
and only one and three-fourths (1 3/4) to two (2) inches long.
Appellant contends that the victim's declaration is inconsistent with
the findings of the medico-legal officer that the laceration on the
hymen was caused by a blunt and hard object and that the victim's
organ exhibited a strong resistance to the entry of the doctor's
index finger.

Indeed, it may even be the touching by the offended party of the

sexual organ of accused-appellant which transformed its initially
soft condition to hardness. Nor is it improbable for a penis the size
of one and three-fourths (1 3/4) to penetrate the vagina of a tenyear old girl and for her vagina to still exhibit a strong resistance to
an index finger. Not only are the sizes of his penis and an index
finger not too far apart but it must also be stressed that the
resistance of the hymen does not depend on the size of the
penetrator but on the laxity of the hymen itself. 7

We do not see any inconsistency on either point. In the matter of

the condition of the sexual organ of accused-appellant, the
explanation of the Solicitor General 6 is noteworthy
Physical evidence is one of the highest degrees of
proof. The description of private complainant of
appellant's penis as being soft does not merit the
same faith and credit as the testimony of Dr.
Lebaquin absent showing of the circumstances under
which private complainant made her observation.
Two questions easily crop up respecting private
complainant's testimony: how many times did she
observe the condition of appellant's penis, and how
soft is "soft". It may well be that private complainant
observed the condition only once or just a few times.

Lest we lose sight of the fact that statutory rape as defined in Art.
335, par. (3) of the Revised Penal Code is committed by having
carnal knowledge of a woman under twelve (12) years of age, we
must bear in mind that in all the arguments of accused-appellant,
nowhere was there a categorical denial to the evidence of the
prosecution that there was penetration of the labia of the victim. It
is well settled that penetration, no matter how slight, or the mere
introduction of the male organ into the labia of the pudenda
constitutes carnal knowledge. 8 Even the fact that hymenal
lacerations are found to be shallow and healed does not necessarily
negate rape. A freshly broken hymen is not an essential element of
rape. 9 More so when, as in this case, the offended party had
already testified on several incidents of rape committed against her
by the same accused-appellant Tomas Ablog other than on the date
of the rape under consideration. 10 Nor is the presentation of the
victim's underwear or the wooden board used during the
intercourse necessary in the prosecution of the case as incorrectly
presupposed by accused-appellant. 11
Clutching at straws, accused-appellant decries as unnatural the fact
that Tin-tin never cried in court during her testimony and claims
that she testified to not feeling any pain during the rape. A closer
look at the records 12reveals that Tin-tin, by way of rebuttal, indeed
felt pain

Q: When your Lola, the wife of the

accused Tomas Ablog, testified in open
court, she stated before the Court that
she talked to you whether your Lolo
did anything to you and you did not
answer anything. You did not cry. You
did not react. What can you say about
that?
A: I was crying during that time that is
why I cannot answer. What Lolo did to
me is painful. "Umiiyak po ako kaya
hindi po ako nakasagot dahil masakit
po ang ginawa ng kanyang asawa sa
akin".
The trial court found no reason to doubt Tin-tin's credibility when it
made the following observations 13
. . . . the victim, Tin-tin, demonstrated
no tell-tale signs that she was coached
nor
rehearsed
into
giving
the
testimony against her Lolo Tomas. She
delivered the story of her ravishment
exuding the pain of one violated. No
improper motive can be ascribed to
her other than a desire to tell the truth
and to tell it all.
We have no reason to disagree with the findings of the court a quo.
Great weight is accorded to its findings as the trial judge is in the
best position to assess the credibility of witnesses and their
testimonies because of his unique opportunity to observe the
witnesses firsthand and note their demeanor, conduct and attitude
under grueling examination. These are the most significant factors
in evaluating the sincerity of witnesses and in unearthing the
truth. 14
Taking into account altogether the numerous offers for the
settlement of this case, the plea of forgiveness by accused-

appellant which was tantamount to a confession of guilt and his

admission that he could think of no possible ill motive on the part of
the Monteras in charging him with rape, we find beyond a scintilla
of doubt that he is guilty of statutory rape.
Accused-appellant is just fortunate that the relationship he abused
was the very same relationship that saved him from the death
penalty. Section 11 of RA 7659 imposes the supreme penalty only
on relatives by blood or affinity who are within the third civil degree
when the rape victim is under eighteen (18) years of age. Tomas
Ablog, being the husband of Tin-tin's Lola Bibing's sister, is already
a fourth civil degree relation of the offended party.
In line with recent jurisprudence, the award of P100,000.00 as civil
indemnity is reduced to P50,000.00, and conformably with our
ruling in People v. Prades 15 that in crimes of rape moral damages
may be additionally awarded to the victim without need for
pleading or proof of its basis, we deem it just to award to Tintin another P50,000.00 for moral damages.
WHEREFORE, finding no reversible error in the appealed decision
finding accused-appellant TOMAS ABLOG y FERNANDO guilty
beyond reasonable doubt of raping his ten-year old grandniece
Christine Winda Montera and sentencing him to recIusion
perpetua is AFFIRMED with the modification that the civil indemnity
of P100,000.00 is reduced to P50,000.00. Another amount of
P50,000.00 is awarded to the offended party Christine Winda
Montera for moral damages. No costs.1wphi1.nt
SO ORDERED.

G.R. No. 122749 July 31, 1996

ANTONIO A. S. VALDEZ, petitioner,

vs.
REGIONAL TRIAL COURT, BRANCH 102, QUEZON CITY, and
CONSUELO M. GOMEZ-VALDEZ, respondents.
VITUG, J.:p
The petition for new bewails, purely on the question of law, an
alleged error committed by the Regional Trial Court in Civil Case No.
Q-92-12539. Petitioner avers that the court a quo has failed to
apply the correct law that should govern the disposition of a family
dwelling in a situation where a marriage is declared void ab
initio because of psychological incapacity on the part of either or
both parties in the contract.
The pertinent facts giving rise to this incident are, by large, not in
dispute.
Antonio Valdez and Consuelo Gomez were married on 05 January
1971. Begotten during the marriage were five children. In a
petition, dated 22 June 1992, Valdez sought the declaration of
nullity of the marriage pursuant to Article 36 of the Family code
(docketed Civil Case No. Q-92-12539, Regional Trial Court of
Quezon City, Branch 102). After the hearing the parties following
the joinder of issues, the trial court, 1 in its decision of 29 July 1994,
granted the petition, viz:
WHEREFORE, judgment is hereby rendered as follows:
(1) The marriage of petitioner Antonio Valdez and
respondent Consuelo Gomez-Valdez is hereby declared null
and void under Article 36 of the Family Code on the ground
of their mutual psychological incapacity to comply with their
essential marital obligations;
(2) The three older children, Carlos Enrique III, Antonio
Quintin and Angela Rosario shall choose which parent they
would want to stay with.

Stella Eloisa and Joaquin Pedro shall be placed in the

custody of their mother, herein respondent Consuelo
Gomez-Valdes.
The petitioner and respondent shall have visitation rights
over the children who are in the custody of the other.
(3) The petitioner and the respondent are directed to start
proceedings on the liquidation of their common
properties as defined by Article 147 of the Family Code, and
to comply with the provisions of Articles 50, 51, and 52 of
the same code, within thirty (30) days from notice of this
decision.
Let a copy of this decision be furnished the Local Civil
Registrar of Mandaluyong, Metro Manila, for proper
recording in the registry of marriages. 2 (Emphasis ours.)
Consuelo Gomez sought a clarification of that portion of the
decision directing compliance with Articles 50, 51 and 52 of the
Family Code. She asserted that the Family Code contained no
provisions on the procedure for the liquidation of common property
in "unions without marriage." Parenthetically, during the hearing of
the motion, the children filed a joint affidavit expressing their desire
to remain with their father, Antonio Valdez, herein petitioner.
In an order, dated 05 May 1995, the trial court made the following
clarification:
Consequently, considering that Article 147 of the Family
Code explicitly provides that the property acquired by both
parties during their union, in the absence of proof to the
contrary, are presumed to have been obtained through the
joint efforts of the parties and will be owned by them in
equal shares, plaintiff and defendant will own their "family
home" and all their properties for that matter in equal
shares.
In the liquidation and partition of properties owned in
common by the plaintiff and defendant, the provisions on

ownership found in the Civil Code shall apply. 3 (Emphasis

supplied.)
In addressing specifically the issue regarding the disposition of the
family dwelling, the trial court said:

Assuming arguendo that Article 147 applies to marriages

declared void ab initio on the ground of the psychological
incapacity of a spouse, the same may be read consistently
with Article 129.
IV

Considering that this Court has already declared the

marriage between petitioner and respondent as null and
void ab initio, pursuant to Art. 147, the property regime of
petitioner and respondent shall be governed by the rules on
ownership.
The provisions of Articles 102 and 129 of the Family Code
finds no application since Article 102 refers to the procedure
for the liquidation of the conjugal partnership property and
Article 129 refers to the procedure for the liquidation of
the absolute community of property. 4
Petitioner moved for a reconsideration of the order. The motion was
denied on 30 October 1995.
In his recourse to this Court, petitioner submits that Articles 50, 51
and 52 of the Family Code should be held controlling: he argues
that:
I
Article 147 of the Family Code does not apply to cases
where the parties are psychologically incapacitated.
II
Articles 50, 51 and 52 in relation to Articles 102 and 129 of
the Family Code govern the disposition of the family
dwelling in cases where a marriage is declared void ab initio,
including a marriage declared void by reason of the
psychological incapacity of the spouses.
III

It is necessary to determine the parent with whom majority

of the children wish to stay. 5
The trial court correctly applied the law. In a void marriage,
regardless of the cause thereof, the property relations of the parties
during the period of cohabitation is governed by the provisions of
Article 147 or Article 148, such as the case may be, of the Family
Code. Article 147 is a remake of Article 144 of the Civil Code as
interpreted and so applied in previous cases; 6 it provides:
Art. 147. When a man and a woman who are capacitated to
marry each other, live exclusively with each other as
husband and wife without the benefit of marriage or under a
void marriage, their wages and salaries shall be owned by
them in equal shares and the property acquired by both of
them through their work or industry shall be governed by
the rules on co-ownership.
In the absence of proof to the contrary, properties acquired
while they lived together shall be presumed to have been
obtained by their joint efforts, work or industry, and shall be
owned by them in equal shares. For purposes of this Article,
a party who did not participate in the acquisition by the
other party of any property shall be deemed to have
contributed jointly in the acquisition thereof in 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.

When only one of the parties to a void marriage is in good

faith, the share of the party in bad faith in the 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
innocent party. In all cases, the forfeiture shall take place
upon the termination of the cohabitation.
This particular kind of co-ownership applies when a man and a
woman, suffering no illegal impediment to marry each other, so
exclusively live together as husband and wife under a void
marriage or without the benefit of marriage. The term "capacitated"
in the provision (in the first paragraph of the law) refers to the legal
capacity of a party to contract marriage, i.e., any "male or female
of the age of eighteen years or upwards not under any of the
impediments mentioned in Articles 37 and 38" 7 of the Code.
Under this property regime, property acquired by both spouses
through their work and industry shall be governed by the rules on
equal co-ownership. Any property acquired during the union
is prima facie presumed to have been obtained through their joint
efforts. A party who did not participate in the acquisition of the
property shall be considered as having contributed thereto jointly if
said party's "efforts consisted in the care and maintenance of the
family household." 8 Unlike the conjugal partnership of gains, the
fruits of the couple's separate property are not included in the coownership.
Article 147 of the Family Code, in the substance and to the above
extent, has clarified Article 144 of the Civil Code; in addition, the
law now expressly provides that
(a) Neither party can dispose or encumber by act intervivos his or
her share in co-ownership property, without consent of the other,
during the period of cohabitation; and
(b) In the case of a void marriage, any party in bad faith shall forfeit
his or her share in the co-ownership in favor of their common
children; in default thereof or waiver by any or all of the common
children, each vacant share shall belong to the respective surviving

descendants, or still in default thereof, to the innocent party. The

forfeiture shall take place upon the termination of the
cohabitation 9 or declaration of nullity of the marriage. 10
When the common-law spouses suffer from a legal impediment to
marry or when they do not live exclusively with each other (as
husband and wife), only the property acquired by both of them
through their actual joint contribution of money, property or
industry shall be owned in common and in proportion to their
respective contributions. Such contributions and corresponding
shares, however, are prima facie presumed to be equal. The share
of any party who is married to another shall accrue to the absolute
community or conjugal partnership, as the case may be, if so
existing under a valid marriage. If the party who has acted in bad
faith is not validly married to another, his or her share shall be
forfeited in the manner already heretofore expressed. 11
In deciding to take further cognizance of the issue on the
settlement of the parties' common property, the trial court acted
neither imprudently nor precipitately; a court which has jurisdiction
to declare the marriage a nullity must be deemed likewise clothed
in authority to resolve incidental and consequential matters. Nor
did it commit a reversible error in ruling that petitioner and private
respondent own the "family home" and all their common property
in equal shares, as well as in concluding that, in the liquidation and
partition of the property owned in common by them, the provisions
on co-ownership under the Civil Code, not Articles 50, 51 and 52, in
relation to Articles 102 and 129, 12 of the Family Code, should aptly
prevail. The rules set up to govern the liquidation of either the
absolute community or the conjugal partnership of gains, the
property regimes recognized for valid and voidable marriages (in
the latter case until the contract is annulled), are irrelevant to the
liquidation of the co-ownership that exists between common-law
spouses. The first paragraph of Articles 50 of the Family Code,
applying paragraphs (2), (3), (4) and 95) of Article 43, 13 relates
only, by its explicit terms, to voidable marriages and, exceptionally,
to void marriages under Article 4014 of the Code, i.e., the
declaration of nullity of a subsequent marriage contracted by a
spouse of a prior void marriage before the latter is judicially
declared void. The latter is a special rule that somehow recognizes

the philosophy and an old doctrine that void marriages are

inexistent from the very beginning and no judicial decree is
necessary to establish their nullity. In now requiring for purposes of
remarriage, the declaration of nullity by final judgment of the
previously contracted void marriage, the present law aims to do
away with any continuing uncertainty on the status of the second
marriage. It is not then illogical for the provisions of Article 43, in
relation to Articles 41 15 and 42, 16 of the Family Code, on the
effects of the termination of a subsequent marriage contracted
during the subsistence of a previous marriage to be made
applicable pro hac vice. In all other cases, it is not to be assumed
that the law has also meant to have coincident property relations,
on the one hand, between spouses in valid and voidable marriages

(before annulment) and, on the other, between common-law

spouses or spouses of void marriages, leaving to ordain, on the
latter case, the ordinary rules on co-ownership subject to the
provisions of the Family Code on the "family home," i.e., the
provisions found in Title V, Chapter 2, of the Family Code, remain in
force and effect regardless of the property regime of the spouses.
WHEREFORE, the questioned orders, dated 05 May 1995 and 30
October 1995, of the trial court are AFFIRMED. No costs.