PFR Notes 08 August 2016

PFR NOTES 08 AUGUST 2016
(2) The final decree of legal separation shall be set

aside, but the separation of property and any forfeiture
of the share of the guilty spouse already effected shall
subsist, unless the spouses agree to revive their
former property regime.
The court's order containing the foregoing shall be
recorded in the proper civil registries. (108a)
New Civil Code (R.A. No. 8533)

Art. 15. Any contracting party between the age of
twenty-one and twenty-five shall be obliged to ask
their parents or guardian for advice upon the intended
marriage. If they do not obtain such advice, or if it be
unfavorable, the marriage license shall not be issued
till after three months following the completion of the
publication of the application therefor. A sworn
statement by the contracting parties to the effect that
such advice has been sought, together with the written
advice given, if any, shall be attached to the
application for marriage license. Should the parents or
guardian refuse to give any advice, this fact shall be
stated in the sworn statement. (62a)
Art. 71. The management of the household shall be

the right and the duty of both spouses. The expenses
for such management shall be paid in accordance with
the provisions of Article 70. (115a)
Art. 75. The future spouses may, in the marriage
settlements, agree upon the regime of absolute
community, conjugal partnership of gains, complete
separation of property, or any other regime. In the
absence of a marriage settlement, or when the regime
agreed upon is void, the system of absolute
community of property as established in this Code
shall govern. (119a)
Art. 17. The local civil registrar shall prepare a notice

which shall contain the full names and residences of
the applicants for a marriage license and other data
given in the applications. The notice shall be posted
for ten consecutive days on a bulletin board outside
the office of the local civil registrar located in a
conspicuous place within the building and accessible
to the general public. This notice shall request all
persons having knowledge of any impediment to the
marriage to advise the local civil registrar thereof. The
marriage license shall be issued after the completion
of the period of publication. (63a)
Art. 124. The administration and enjoyment of the

conjugal partnership shall belong to both spouses
jointly. In case of disagreement, the husband's decision
shall prevail, subject to recourse to the court by the
wife for proper remedy, which must be availed of
within five years from the date of the contract
implementing such decision.
In the event that one spouse is incapacitated or
otherwise unable to participate in the administration of
the conjugal properties, the other spouse may assume
sole powers of administration. These powers do not
include disposition or encumbrance without authority
of the court or the written consent of the other spouse.
In the absence of such authority or consent, the
Art. 66. The reconciliation referred to in the preceding

Articles shall have the following consequences:
(1) The legal separation proceedings, if still pending,
shall thereby be terminated at whatever stage; and
disposition or encumbrance shall be void. However,

the transaction shall be construed as a continuing offer
on the part of the consenting spouse and the third
person, and may be perfected as a binding contract
upon the acceptance by the other spouse or
authorization by the court before the offer is
withdrawn by either or both offerors. (165a)
REPUBLIC ACT NO. 8171 - AN ACT PROVIDING
FOR THE REPATRIATION OF FILIPINO WOMEN
WHO HAVE LOST THEIR PHILIPPINE CITIZENSHIP
BY MARRIAGE TO ALIENS AND OF NATURALBORN FILIPINOS
Sec. 2. Repatriation shall be effected by taking the

necessary oath of allegiance to the Republic of the
Philippines and registration in the proper civil registry
and in the Bureau of Immigration. The Bureau of
Immigration shall thereupon cancel the pertinent alien
certificate of registration and issue the certificate of
identification as Filipino citizen to the repatriated
citizen.
Sec. 3. All laws, decrees, orders, rules and
regulations, or parts thereof inconsistent with this Act
are hereby repealed or amended accordingly.
Section 1. Filipino women who have lost their

Philippine citizenship by marriage to aliens and
natural-born Filipinos who have lost their Philippine
citizenship, including their minor children, on account
of political or economic necessity, may reacquire
Philippine citizenship through repatriation in the
manner provided in Sec. 4 of Commonwealth Act No.
63, as amended: provided, that the applicant is not a:
Sec. 4. This Act shall take effect thirty (30) days

after its publication in a newspaper of general
circulation.
Lapsed into law on October 23, 1995 without the
signature of the President, in accordance with Article
VI, Sec. 27 (1) of the Constitution.
(1) Person opposed to organized government or

affiliated with any association or group of persons who
uphold and teach doctrines opposing organized
government;
EXECUTIVE ORDER NO. 227
July 17, 1987
AMENDING EXECUTIVE ORDER NO. 209,

OTHERWISE KNOWN AS THE "FAMILY CODE OF
THE PHILIPPINES"
(2) Person defending or teaching the necessity or

propriety of violence, personal assault, or association
for the predominance of their ideas;
I, CORAZON C. AQUINO, President of the Philippines, do

hereby order:
(3) Person convicted of crimes involving moral

turpitude; or
Sec. 1.
Article 26 of the Executive Order No. 209
is hereby amended to read as follows:
(4) Person suffering from mental alienation or

incurable contagious diseases.
"Art. 26.
All marriage solemnized outside the
Philippines in accordance with the laws in force in the
2
country where they were solemnized, and valid there

as such, shall also be valid in this country, except
those prohibited under Articles 35(1), (4), (5) and (6),
36, 37 and 38.
FAMILY CODE (E.O. 209, July 6, 1987)

Art. 10.
Marriages between Filipino citizens
abroad may be solemnized by a consul-general, consul
or vice-consul of the Republic of the Philippines. The
issuance of the marriage license and the duties of the
local civil registrar and of the solemnizing officer with
regard to the celebration of marriage shall be
performed by said consular official. (75a)
Where a marriage between a Filipino citizen and a

foreigner is validly celebrated and a divorce is
thereafter validly obtained abroad by the alien spouse
capacitating him or her to remarry, the Filipino spouses
shall have capacity to remarry under Philippine law."
Sec. 2.
Article 36 of Executive Order No. 209 is
hereby amended to read as follows:
Art. 21.
When either or both of the contracting
parties are citizens of a foreign country, it shall be
necessary for them before a marriage license can be
obtained, to submit a certificate of legal capacity to
contract marriage, issued by their respective
diplomatic or consular officials.
"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."
Art. 26.
All marriages solemnized outside the
Philippines, in accordance with the laws in force in the
those prohibited under Articles 35 (1), (4), (5) and (6),
3637 and 38. (17a)
Sec. 3.
Article 39 of the Executive Order No. 209
is hereby amended to read as follows:
"Art. 39.
The action or defense for the declaration
of absolute nullity of marriage shall not prescribe.
However, in the case of marriages celebrated before
the effectivity of this Code and falling under Article 36,
such action or defense shall have taken effect."

capacitating him or her to remarry, the Filipino spouse
shall have capacity to remarry under Philippine law.
(As amended by Executive Order 227)
Sec. 4.
This Executive Order shall take effect
upon the effectivity of the Family Code of the
Philippines.
EXECUTIVE ORDER NO. 292 (INSTITUTING THE

"ADMINISTRATIVE CODE OF 1987"
Done in the City of Manila, this 17th day of July, in the

year of Our Lord, nineteen hundred and eighty-seven.
3
Section 6. Effect of Marriage. - Citizens of the

Philippines who marry aliens shall retain their
citizenship, unless by their act or omission they are
deemed, under the law, to have renounced it.
"WHEREFORE, this Court declares the marriage

between Grace J. Garcia and Rederick A. Recio
solemnized on January 12, 1994 at Cabanatuan City as
dissolved and both parties can now remarry under
existing and applicable laws to any and/or both
parties."3
Republic of the Philippines

SUPREME COURT
Manila
THIRD DIVISION
G.R. No. 138322
October 2, 2001
GRACE J. GARCIA, a.k.a. GRACE J. GARCIA-RECIO,
petitioner,
vs.
REDERICK A. RECIO, respondents.
The assailed Order denied reconsideration of the

above-quoted Decision.
The Facts
Rederick A. Recio, a Filipino, was married to Editha
Samson, an Australian citizen, in Malabon, Rizal, on
March 1, 1987.4 They lived together as husband and
wife in Australia. On May 18, 1989,5 a decree of
divorce, purportedly dissolving the marriage, was
issued by an Australian family court.
PANGANIBAN, J.:
A divorce obtained abroad by an alien may be
recognized in our jurisdiction, provided such decree is
valid according to the national law of the foreigner.
However, the divorce decree and the governing
personal law of the alien spouse who obtained the
divorce must be proven. Our courts do not take judicial
notice of foreign laws and judgment; hence, like any
other facts, both the divorce decree and the national
law of the alien must be alleged and proven according
to our law on evidence.
On June 26, 1992, respondent became an Australian

citizen, as shown by a "Certificate of Australian
Citizenship" issued by the Australian government.6
Petitioner a Filipina and respondent were married
on January 12, 1994 in Our Lady of Perpetual Help
Church in Cabanatuan City.7 In their application for a
marriage license, respondent was declared as "single"
and "Filipino."8
The Case
Starting October 22, 1995, petitioner and respondent
lived separately without prior judicial dissolution of
their marriage. While the two were still in Australia,
their conjugal assets were divided on May 16, 1996, in
accordance with their Statutory Declarations secured
in Australia.9
Before us is a Petition for Review under Rule 45 of the

Rules of Court, seeking to nullify the January 7, 1999
Decision1 and the March 24, 1999 Order2 of the
Regional Trial Court of Cabanatuan City, Branch 28, in
Civil Case No. 3026-AF. The assailed Decision disposed
as follows:
4
On March 3, 1998, petitioner filed a Complaint for

Declaration of Nullity of Marriage10 in the court a quo,
on the ground of bigamy respondent allegedly had a
prior subsisting marriage at the time he married her on
January 12, 1994. She claimed that she learned of
respondent's marriage to Editha Samson only in
November, 1997.
The trial court declared the marriage dissolved on the

ground that the divorce issued in Australia was valid
and recognized in the Philippines. It deemed the
marriage ended, but not on the basis of any defect in
an essential element of the marriage; that is,
respondent's alleged lack of legal capacity to remarry.
Rather, it based its Decision on the divorce decree
obtained by respondent. The Australian divorce had
ended the marriage; thus, there was no more martial
union to nullify or annual.
In his Answer, respondent averred that, as far back as

1993, he had revealed to petitioner his prior marriage
and its subsequent dissolution.11 He contended that
his first marriage to an Australian citizen had been
validly dissolved by a divorce decree obtained in
Australian in 1989;12 thus, he was legally capacitated
to marry petitioner in 1994.1wphi1.nt
Hence, this Petition.18

Issues
Petitioner submits the following issues for our
consideration:
On July 7, 1998 or about five years after the couple's

wedding and while the suit for the declaration of nullity
was pending respondent was able to secure a divorce
decree from a family court in Sydney, Australia
because the "marriage ha[d] irretrievably broken
down."13
"I
The trial court gravely erred in finding that the divorce
decree obtained in Australia by the respondent ipso
facto terminated his first marriage to Editha Samson
thereby capacitating him to contract a second
marriage with the petitioner.
Respondent prayed in his Answer that the Complained

be dismissed on the ground that it stated no cause of
action.14 The Office of the Solicitor General agreed
with respondent.15 The court marked and admitted
the documentary evidence of both parties.16 After
they submitted their respective memoranda, the case
was submitted for resolution.17
"2
The failure of the respondent, who is now a naturalized
Australian, to present a certificate of legal capacity to
marry constitutes absence of a substantial requisite
voiding the petitioner' marriage to the respondent.
Thereafter, the trial court rendered the assailed

Decision and Order.
"3
Ruling of the Trial Court
The trial court seriously erred in the application of Art.

26 of the Family Code in this case.
Petitioner assails the trial court's recognition of the

divorce between respondent and Editha Samson.
Citing Adong v. Cheong Seng Gee,20 petitioner argues
that the divorce decree, like any other foreign
judgment, may be given recognition in this jurisdiction
only upon proof of the existence of (1) the foreign law
allowing absolute divorce and (2) the alleged divorce
decree itself. She adds that respondent miserably
failed to establish these elements.
"4
The trial court patently and grievously erred in
disregarding Arts. 11, 13, 21, 35, 40, 52 and 53 of the
Family Code as the applicable provisions in this case.
"5
Petitioner adds that, based on the first paragraph of

Article 26 of the Family Code, marriages solemnized
abroad are governed by the law of the place where
they were celebrated (the lex loci celebrationist). In
effect, the Code requires the presentation of the
foreign law to show the conformity of the marriage in
question to the legal requirements of the place where
the marriage was performed.
The trial court gravely erred in pronouncing that the

divorce gravely erred in pronouncing that the divorce
decree obtained by the respondent in Australia ipso
facto capacitated the parties to remarry, without first
securing a recognition of the judgment granting the
divorce decree before our courts."19
The Petition raises five issues, but for purposes of this
Decision, we shall concentrate on two pivotal ones: (1)
whether the divorce between respondent and Editha
Samson was proven, and (2) whether respondent was
proven to be legally capacitated to marry petitioner.
Because of our ruling on these two, there is no more
necessity to take up the rest.
At the outset, we lay the following basic legal

principles as the take-off points for our discussion.
Philippine law does not provide for absolute divorce;
hence, our courts cannot grant it.21 A marriage
between two Filipinos cannot be dissolved even by a
divorce obtained abroad, because of Articles 1522 and
1723 of the Civil Code.24 In mixed marriages involving
a Filipino and a foreigner, Article 2625 of the Family
Code allows the former to contract a subsequent
marriage in case the divorce is "validly obtained
abroad by the alien spouse capacitating him or her to
remarry."26 A divorce obtained abroad by a couple,
who are both aliens, may be recognized in the
Philippines, provided it is consistent with their
respective national laws.27
The Court's Ruling

The Petition is partly meritorious.
First Issue:
Proving the Divorce Between Respondent and Editha
Samson
A comparison between marriage and divorce, as far as

pleading and proof are concerned, can be made. Van
Dorn v. Romillo Jr. decrees that "aliens may obtain
divorces abroad, which may be recognized in the
Philippines, provided they are valid according to their
national law."28 Therefore, before a foreign divorce
decree can be recognized by our courts, the party
pleading it must prove the divorce as a fact and
demonstrate its conformity to the foreign law allowing
it.29 Presentation solely of the divorce decree is
insufficient.
decree of annulment or declaration of nullity of his or

her previous marriage. x x x.
"ART. 52. The judgment of annulment or of absolute
nullity of the marriage, the partition and distribution of
the properties of the spouses, and the delivery of the
children's presumptive legitimes shall be recorded in
the appropriate civil registry and registries of property;
otherwise, the same shall not affect their persons."
Respondent, on the other hand, argues that the
Australian divorce decree is a public document a
written official act of an Australian family court.
Therefore, it requires no further proof of its
authenticity and due execution.
Divorce as a Question of Fact

Petitioner insists that before a divorce decree can be
admitted in evidence, it must first comply with the
registration requirements under Articles 11, 13 and 52
of the Family Code. These articles read as follows:
Respondent is getting ahead of himself. Before a

foreign judgment is given presumptive evidentiary
value, the document must first be presented and
admitted in evidence.30 A divorce obtained abroad is
proven by the divorce decree itself. Indeed the best
evidence of a judgment is the judgment itself.31 The
decree purports to be a written act or record of an act
of an officially body or tribunal of a foreign country.32
"ART. 11. Where a marriage license is required, each of

the contracting parties shall file separately a sworn
application for such license with the proper local civil
registrar which shall specify the following:
xxx
xxx
xxx
Under Sections 24 and 25 of Rule 132, on the other
hand, a writing or document may be proven as a public
or official record of a foreign country by either (1) an
official publication or (2) a copy thereof attested33 by
the officer having legal custody of the document. If the
record is not kept in the Philippines, such copy must be
(a) accompanied by a certificate issued by the proper
diplomatic or consular officer in the Philippine foreign
service stationed in the foreign country in which the
record is kept and (b) authenticated by the seal of his
office.34
"(5) If previously married, how, when and where the

previous marriage was dissolved or annulled;
xxx
xxx
xxx
"ART. 13. In case either of the contracting parties has

been previously married, the applicant shall be
required to furnish, instead of the birth of baptismal
certificate required in the last preceding article, the
death certificate of the deceased spouse or the judicial
7
she is the party challenging the validity of a foreign

judgment. He contends that petitioner was satisfied
with the original of the divorce decree and was
cognizant of the marital laws of Australia, because she
had lived and worked in that country for quite a long
time. Besides, the Australian divorce law is allegedly
known by Philippine courts: thus, judges may take
judicial notice of foreign laws in the exercise of sound
discretion.
The divorce decree between respondent and Editha

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

"the party who alleges the existence of a fact or thing
necessary in the prosecution or defense of an
action."41 In civil cases, plaintiffs have the burden of
proving the material allegations of the complaint when
those are denied by the answer; and defendants have
the burden of proving the material allegations in their
answer when they introduce new matters.42 Since the
divorce was a defense raised by respondent, the
burden of proving the pertinent Australian law
validating it falls squarely upon him.
Compliance with the quoted articles (11, 13 and 52) of

the Family Code is not necessary; respondent was no
longer bound by Philippine personal laws after he
acquired Australian citizenship in 1992.39
Naturalization is the legal act of adopting an alien and
clothing him with the political and civil rights belonging
to a citizen.40 Naturalized citizens, freed from the
protective cloak of their former states, don the attires
of their adoptive countries. By becoming an Australian,
respondent severed his allegiance to the Philippines
and the vinculum juris that had tied him to Philippine
personal laws.
It is well-settled in our jurisdiction that our courts

cannot take judicial notice of foreign laws.43 Like any
other facts, they must be alleged and proved.
Australian marital laws are not among those matters
that judges are supposed to know by reason of their
judicial function.44 The power of judicial notice must
be exercised with caution, and every reasonable doubt
upon the subject should be resolved in the negative.
Second Issue:
Burden of Proving Australian Law

Respondent's Legal Capacity to Remarry
Respondent contends that the burden to prove
Australian divorce law falls upon petitioner, because
8
Petitioner contends that, in view of the insufficient

proof of the divorce, respondent was legally
incapacitated to marry her in 1994.
court may allow a remarriage only after proof of good

behavior.47
On its face, the herein Australian divorce decree
contains a restriction that reads:
Hence, she concludes that their marriage was void ab

initio.
"1. A party to a marriage who marries again before this

decree becomes absolute (unless the other party has
died) commits the offence of bigamy."48
Respondent replies that the Australian divorce decree,

which was validly admitted in evidence, adequately
established his legal capacity to marry under
Australian law.
This quotation bolsters our contention that the divorce

obtained by respondent may have been restricted. It
did not absolutely establish his legal capacity to
remarry according to his national law. Hence, we find
no basis for the ruling of the trial court, which
erroneously assumed that the Australian divorce ipso
facto restored respondent's capacity to remarry
despite the paucity of evidence on this matter.
Respondent's contention is untenable. In its strict legal

sense, divorce means the legal dissolution of a lawful
union for a cause arising after marriage. But divorces
are of different types. The two basic ones are (1)
absolute divorce or a vinculo matrimonii and (2)
limited divorce or a mensa et thoro. The first kind
terminates the marriage, while the second suspends it
and leaves the bond in full force.45 There is no
showing in the case at bar which type of divorce was
procured by respondent.
We also reject the claim of respondent that the divorce

decree raises a disputable presumption or presumptive
evidence as to his civil status based on Section 48,
Rule 3949 of the Rules of Court, for the simple reason
that no proof has been presented on the legal effects
of the divorce decree obtained under Australian laws.
Respondent presented a decree nisi or an interlocutory

decree a conditional or provisional judgment of
divorce. It is in effect the same as a separation from
bed and board, although an absolute divorce may
follow after the lapse of the prescribed period during
which no reconciliation is effected.46
Significance of the Certificate of Legal Capacity

Petitioner argues that the certificate of legal capacity
required by Article 21 of the Family Code was not
submitted together with the application for a marriage
license. According to her, its absence is proof that
respondent did not have legal capacity to remarry.
Even after the divorce becomes absolute, the court

may under some foreign statutes and practices, still
restrict remarriage. Under some other jurisdictions,
remarriage may be limited by statute; thus, the guilty
party in a divorce which was granted on the ground of
adultery may be prohibited from remarrying again. The
We clarify. To repeat, the legal capacity to contract

marriage is determined by the national law of the
9
party concerned. The certificate mentioned in Article

21 of the Family Code would have been sufficient to
establish the legal capacity of respondent, had he duly
presented it in court. A duly authenticated and
admitted certificate is prima facie evidence of legal
capacity to marry on the part of the alien applicant for
a marriage license.50
Based on the above records, we cannot conclude that

respondent, who was then a naturalized Australian
citizen, was legally capacitated to marry petitioner on
January 12, 1994. We agree with petitioner's
contention that the court a quo erred in finding that
the divorce decree ipso facto clothed respondent with
the legal capacity to remarry without requiring him to
adduce sufficient evidence to show the Australian
personal law governing his status; or at the very least,
to prove his legal capacity to contract the second
marriage.
As it is, however, there is absolutely no evidence that

proves respondent's legal capacity to marry petitioner.
A review of the records before this Court shows that
only the following exhibits were presented before the
lower court: (1) for petitioner: (a) Exhibit "A"
Complaint;51 (b) Exhibit "B" Certificate of Marriage
Between Rederick A. Recto (Filipino-Australian) and
Grace J. Garcia (Filipino) on January 12, 1994 in
Cabanatuan City, Nueva Ecija;52 (c) Exhibit "C"
Certificate of Marriage Between Rederick A. Recio
(Filipino) and Editha D. Samson (Australian) on March
1, 1987 in Malabon, Metro Manila;53 (d) Exhibit "D"
Office of the City Registrar of Cabanatuan City
Certification that no information of annulment between
Rederick A. Recto and Editha D. Samson was in its
records;54 and (e) Exhibit "E" Certificate of
Australian Citizenship of Rederick A. Recto;55 (2) for
respondent: (Exhibit "1" Amended Answer;56 (b)
Exhibit "S" Family Law Act 1975 Decree Nisi of
Dissolution of Marriage in the Family Court of
Australia;57 (c) Exhibit "3" Certificate of Australian
Citizenship of Rederick A. Recto;58 (d) Exhibit "4"
Decree Nisi of Dissolution of Marriage in the Family
Court of Australia Certificate;59 and Exhibit "5"
Statutory Declaration of the Legal Separation Between
Rederick A. Recto and Grace J. Garcia Recio since
October 22, 1995.60
Neither can we grant petitioner's prayer to declare her

marriage to respondent null and void on the ground of
bigamy. After all, it may turn out that under Australian
law, he was really capacitated to marry petitioner as a
direct result of the divorce decree. Hence, we believe
that the most judicious course is to remand this case
to the trial court to receive evidence, if any, which
show petitioner's legal capacity to marry petitioner.
Failing in that, then the court a quo may declare a
nullity of the parties' marriage on the ground of
bigamy, there being already in evidence two existing
marriage certificates, which were both obtained in the
Philippines, one in Malabon, Metro Manila dated March
1, 1987 and the other, in Cabanatuan City dated
January 12, 1994.
WHEREFORE, in the interest of orderly
procedure and substantial justice, we REMAND
the case to the court a quo for the purpose of
receiving evidence which conclusively show
respondent's legal capacity to marry petitioner;
and failing in that, of declaring the parties'
marriage void on the ground of bigamy, as
above discussed. No costs.
10
13 Id., pp. 77-78.

SO ORDERED.
14 Id., p. 43.
Melo, Puno, Vitug, and Sandoval-Gutierrez, JJ.,
concur.
15 Rollo, pp. 48-51.
Footnotes
16 TSN, December 16, 1998, pp. 1-8; records, pp. 172179.
1 Penned by Judge Feliciano V. Buenaventura; rollo, pp.

7-9.
17 RTC Order of December 16, 1998; ibid., p. 203.
2 Rollo, p. 10.
18 The case was deemed submitted for decision on

January 11, 2000, upon this Court's receipt of the
Memorandum for petitioner, signed by Atty. Olivia
Velasco-Jacoba. The Memorandum for respondent,
signed by Atty. Gloria V. Gomez of Gomez and
Associates, had been filed on December 10, 1999.
3 Ibid, p. 9.
4 Rollo, p. 37.
5 Ibid., p. 47.
6 Id., p. 44.
19 Petitioner's Memorandum, pp. 8-9; rollo, pp. 242243.
7 Id., p. 36.
20 43 Phil. 43, 49, March 3, 1922.
8 Annex "I"; temporary rollo, p. 9.
21 Ruben F. Balane, "Family Courts and Significant

Jurisprudence in Family Law," Journal of the Integrated
Bar of the Philippines, 1st & 2nd Quarters, 2001, Vol.
XXVII, No. 1, p. 25.
9 The couple secured an Australian "Statutory

Declaration" of their legal separation and division of
conjugal assets. See Annexes "3" and "4" of
Respondent's Comment; rollo, p. 48.
22 "ART. 15. Laws relating to family rights and duties,

or to the status, condition and legal capacity of
persons are binding upon citizens of the Philippines,
even though living abroad."
10 Id., pp. 33-35.

11 Id., p. 39.
23 "ART. 17. The forms and solemnities of contracts,

wills, and other public instruments shall be governed
by the laws of the country in which they are executed.
12 Amended Answer, p. 2; rollo, p. 39.
11
xxx
xxx
29 For a detailed discussion of Van Dorn, see Salonga,

Private International Law, 1995 ed. pp. 295-300. See
also Jose C. Vitug, Compendium of Civil Law and
Jurisprudence, 1993 ed., p. 16;
xxx
"Prohibitive laws concerning persons, their acts or

property, and those which have for their object public
order, public policy and good customs shall not be
rendered ineffective by laws or judgments
promulgated, or by determinations or conventions
agreed upon in a foreign country."
30 "SEC. 19. Classes of documents. For the purpose

of their presentation in evidence, documents are either
public or private.
"Public documents are:
25 Tenchaves v. Escano 15 SCRA 355, 362, November

29, 1965; Barretto Gonzalez v. Gonzales, 58 Phil. 67,
71-72, March 7, 1933.
"(a) The written official acts, or records of the official

acts of the sovereign authority, official bodies and
tribunals, and public officers, whether in the
Philippines, or of a foreign country.
"Art. 26. All marriages solemnized outside the

those prohibited under Articles 35(1), (4), (5), and (6),
36, 37, and 38. (71a).
xxx
xxx
x x x."
31 Burr W. Jones, Commentaries on the Law of

Evidence in Civil Cases, Vol. IV, 1926 ed., p. 3511; 3,
Rule 130 of the Rules on Evidence provides that "when
the subject of inquiry is the contents of a document,
no evidence shall be admissible other than the original
document itself."
"Where a marriage between a Filipino citizen and a

shall have capacity to remarry under Philippine law."
(As amended by EO 227, prom. July 27, 1987).
32 "SEC. 19. Classes of documents. For the purpose

of their presentation in evidence, documents are either
public or private.
26 Cf. Van Dorn v. Romillo Jr., 139 SCRA 139, 143-144,

October 8, 1985; and Pilapil v. Ibay-Somera, 174 SCRA
653, 663, June 30, 1989.1wphi1.nt
Public documents are:

"(a) The written official acts, or records of the official
acts of the sovereign authority, official bodies and
tribunals, and public officers, whether in the
Philippines, or of a foreign country.
27 Van Dorn v. Romillo Jr., supra.

28 Ibid., p. 143.
12
xxx
xxx
x x x."
176), but only photocopies of the same documents

were attached to the records (Records, Index of
Exhibit, p. 1.).
33 "Sec. 25. What attestation of copy must state.

Whenever a copy of a document or record is attested
for the purpose of evidence, the attestation must
state, in substance, that the copy is a correct copy of
the original, or a specific part thereof, as the case may
be. The attestation must be under the official seal of
the attesting officer, if there be any, or if he be the
clerk of a court having a seal, under the seal of such
court."
36 TSN, December 15, 1998, p. 7; records, p. 178.

37 TSN, December 16, 1998, p. 7; records, p. 178.
38 People v. Yatco, 97 Phil. 941, 945, November 28,
1955; Marella v. Reyes, 12 Phil. 1, 3, November 10,
1908; People v. Diaz, 271 SCRA 504, 516, April 18,
1997; De la Torre v. Court of Appeals, 294 SCRA 196,
203-204, August 14, 1998, Maunlad Savings & Loan
Asso., Inc. v. Court of Appeals, GR No. 114942,
November 27, 2000, pp. 8-9.
34 "Sec. 24. Proof of official record. The record of

public documents referred to in paragraph (a) of
Section 19, when admissible for any purpose, may be
evidenced by an official publication thereof or by a
copy attested by the officer having the legal custody of
the record, or by his deputy, and accompanied, if the
record is not kept in the Philippines, with a certificate
that such officer has the custody. If the office in which
the record is kept is in a foreign country, the certificate
may be made by a secretary of the embassy or
legation, consul general, consul, vice-consul, or
consular agent or by any officer in the foreign service
of the Philippines stationed in the foreign country in
which the record is kept, and authenticated by the seal
of his office."
39 Art. 15, Civil Code.

40 Joaquin Bernas, The 1987 Constitution of the
Republic of the Philippines: A Commentary, 1996 ed.,
p. 566.
41 Ricardo J. Francisco, Evidence: Rules of Court in the
Philippines, second edition, p. 382.
42 Ibid., p. 384.
43 Wildvalley Shipping Co., Ltd. v. Court of Appeals, GR
No. 119602, October 56, 2000, p. 7.
See also Asiavest Ltd. v. Court of Appeals, 296 SCRA

539, 550-551, September 25, 1998; Pacific Asia
Overseas Shipping Corp. v. National Labor Relations
Commission, 161 SCRA 122, 133-134, May 6, 1988.
44 Francisco, p. 29, citing De los Angeles v. Cabahug,

106 839, December 29, 1959.
35 The transcript of stenographic notes states that the

original copies of the divorce decrees were presented
in court (TSN, December 16, 1998, p. 5; records, p.
45 274 CJS, 15-17, 1.

46 Ibid., p. 611-613, 161.
13
47 27A CJS, 625, 162.
52 Ibid., p. 4.
48 Rollo, p. 36.
53 Id., p. 5.
49 "SEC. 48. Effect of foreign judgments or final

orders. The effect of a judgment or final order of a
tribunal of a foreign country, having jurisdiction to
render the judgment or final order is as follows:
54 Id., p. 180.
55 Id., pp. 170-171.
26 Id., pp. 84-89.
xxx
xxx
xxx
57 Id., pp. 181-182.
"(b) In case of a judgment or final order against a

person, the judgment or final order is presumptive
evidence of a right as between the parties and their
successors in interest by a subsequent title.
58 Id., pp. 40-41.

59 Id., pp. 183.
"In either case, the judgment or final order may be

repelled by evidence of a want of jurisdiction, want of
notice to the party, collusion, fraud, or clear mistake of
law or fact."
60 Id., pp. 184-187.

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

certificate is merely an irregularity in complying with
the formal requirement for procuring a marriage
license. Under Article 4 of the Family Code, an
irregularity will not affect the validity of a marriage
celebrated on the basis of a marriage license issued
without that certificate. (Vitug, Compendium, pp. 120126); Sempio-Diy, Handbook on the Family Code of the
Philippines, 197 reprint, p. 17; Rufus Rodriguez, The
Family Code of the Philippines Annotated, 1990 ed., p.
42; Melencio Sta. Maria Jr., Persons and Family
Relations Law, 1999 ed., p. 146.).
MELENCIO-HERRERA, J.:\
In this Petition for certiorari and Prohibition, petitioner
Alice Reyes Van Dorn seeks to set aside the Orders,
dated September 15, 1983 and August 3, 1984, in Civil
51 Records, pp. 1-3.

14
Case No. 1075-P, issued by respondent Judge, which

denied her Motion to Dismiss said case, and her Motion
for Reconsideration of the Dismissal Order,
respectively.
Generally, the denial of a Motion to Dismiss in a civil

case is interlocutory and is not subject to appeal.
certiorari and Prohibition are neither the remedies to
question the propriety of an interlocutory order of the
trial Court. However, when a grave abuse of discretion
was patently committed, or the lower Court acted
capriciously and whimsically, then it devolves upon
this Court in a certiorari proceeding to exercise its
supervisory authority and to correct the error
committed which, in such a case, is equivalent to lack
of jurisdiction. 1 Prohibition would then lie since it
would be useless and a waste of time to go ahead with
the proceedings. 2 Weconsider the petition filed in this
case within the exception, and we have given it due
course.
The basic background facts are that petitioner is a

citizen of the Philippines while private respondent is a
citizen of the United States; that they were married in
Hongkong in 1972; that, after the marriage, they
established their residence in the Philippines; that they
begot two children born on April 4, 1973 and
December 18, 1975, respectively; that the parties
were divorced in Nevada, United States, in 1982; and
that petitioner has re-married also in Nevada, this time
to Theodore Van Dorn.
Dated June 8, 1983, private respondent filed suit
against petitioner in Civil Case No. 1075-P of the
Regional Trial Court, Branch CXV, in Pasay City, stating
that petitioner's business in Ermita, Manila, (the
Galleon Shop, for short), is conjugal property of the
parties, and asking that petitioner be ordered to render
an accounting of that business, and that private
respondent be declared with right to manage the
conjugal property. Petitioner moved to dismiss the case
on the ground that the cause of action is barred by
previous judgment in the divorce proceedings before
the Nevada Court wherein respondent had
acknowledged that he and petitioner had "no
community property" as of June 11, 1982. The Court
below denied the Motion to Dismiss in the mentioned
case on the ground that the property involved is
located in the Philippines so that the Divorce Decree
has no bearing in the case. The denial is now the
subject of this certiorari proceeding.
For resolution is the effect of the foreign divorce on the

parties and their alleged conjugal property in the
Philippines.
Petitioner contends that respondent is estopped from
laying claim on the alleged conjugal property because
of the representation he made in the divorce
proceedings before the American Court that they had
no community of property; that the Galleon Shop was
not established through conjugal funds, and that
respondent's claim is barred by prior judgment.
For his part, respondent avers that the Divorce Decree
issued by the Nevada Court cannot prevail over the
prohibitive laws of the Philippines and its declared
national policy; that the acts and declaration of a
foreign Court cannot, especially if the same is contrary
to public policy, divest Philippine Courts of jurisdiction
to entertain matters within its jurisdiction.
15
For the resolution of this case, it is not necessary to

determine whether the property relations between
petitioner and private respondent, after their marriage,
were upon absolute or relative community property,
upon complete separation of property, or upon any
other regime. The pivotal fact in this case is the
Nevada divorce of the parties.
3.
'I'hat there are no community obligations to be
adjudicated by the court.
xxx
xxx
xxx 4
There can be no question as to the validity of that

Nevada divorce in any of the States of the United
States. The decree is binding on private respondent as
an American citizen. For instance, private respondent
cannot sue petitioner, as her husband, in any State of
the Union. What he is contending in this case is that
the divorce is not valid and binding in this jurisdiction,
the same being contrary to local law and public policy.
The Nevada District Court, which decreed the divorce,

had obtained jurisdiction over petitioner who appeared
in person before the Court during the trial of the case.
It also obtained jurisdiction over private respondent
who, giving his address as No. 381 Bush Street, San
Francisco, California, authorized his attorneys in the
divorce case, Karp & Gradt Ltd., to agree to the divorce
on the ground of incompatibility in the understanding
that there were neither community property nor
community obligations. 3 As explicitly stated in the
Power of Attorney he executed in favor of the law firm
of KARP & GRAD LTD., 336 W. Liberty, Reno, Nevada, to
represent him in the divorce proceedings:
xxx
xxx
It is true that owing to the nationality principle

embodied in Article 15 of the Civil Code, 5 only
Philippine nationals are covered by the policy against
absolute divorces the same being considered contrary
to our concept of public police and morality. However,
aliens may obtain divorces abroad, which may be
recognized in the Philippines, provided they are valid
according to their national law. 6 In this case, the
divorce in Nevada released private respondent from
the marriage from the standards of American law,
under which divorce dissolves the marriage. As stated
by the Federal Supreme Court of the United States in
Atherton vs. Atherton, 45 L. Ed. 794, 799:
xxx
You are hereby authorized to accept service of

Summons, to file an Answer, appear on my behalf and
do an things necessary and proper to represent me,
without further contesting, subject to the following:
The purpose and effect of a decree of divorce from the

bond of matrimony by a court of competent
jurisdiction are to change the existing status or
domestic relation of husband and wife, and to free
them both from the bond. The marriage tie when thus
severed as to one party, ceases to bind either. A
husband without a wife, or a wife without a husband, is
unknown to the law. When the law provides, in the
1.
That my spouse seeks a divorce on the ground
of incompatibility.
2.
That there is no community of property to be
adjudicated by the Court.
16
nature of a penalty. that the guilty party shall not

marry again, that party, as well as the other, is still
absolutely freed from the bond of the former marriage.
Teehankee (Chairman), Plana, Relova, Gutierrez,

Jr., De la Fuente and Patajo, JJ., concur.
Thus, pursuant to his national law, private respondent

is no longer the husband of petitioner. He would have
no standing to sue in the case below as petitioner's
husband entitled to exercise control over conjugal
assets. As he is bound by the Decision of his own
country's Court, which validly exercised jurisdiction
over him, and whose decision he does not repudiate,
he is estopped by his own representation before said
Court from asserting his right over the alleged conjugal
property.
Footnotes
1
Sanchez vs. Zosa, 68 SCRA 171 (1975); Malit vs.
People, 114 SCRA 348 (1982).
2
U.S.T. vs. Hon. Villanueva, et al., 106 Phil. 439
(1959).
To maintain, as private respondent does, that, under

our laws, petitioner has to be considered still married
to private respondent and still subject to a wife's
obligations under Article 109, et. seq. of the Civil Code
cannot be just. Petitioner should not be obliged to live
together with, observe respect and fidelity, and render
support to private respondent. The latter should not
continue to be one of her heirs with possible rights to
conjugal property. She should not be discriminated
against in her own country if the ends of justice are to
be served.
Annex "Y", Petition for Certiorari.
p. 98, Rollo.
5
"Art. 15. Laws relating to family rights and
duties or to the status, condition and legal capacity of
persons are binding upon citizens of the Philippines,
even though living abroad.
6
cf. Recto vs. Harden, 100 Phil. 427 [1956]; Paras,
Civil Code, 1971 ed., Vol. I, p. 52; Salonga, Private
International Law, 1979 ed., p. 231."
WHEREFORE, the Petition is granted, and

respondent Judge is hereby ordered to dismiss
the Complaint filed in Civil Case No. 1075-P of
his Court.

SUPREME COURT
FIRST DIVISION
G.R. No. 154380 October 5, 2005
REPUBLIC OF THE PHILIPPINES, Petitioner,
vs.
CIPRIANO ORBECIDO III, Respondent.
DECISION
Without costs.
SO ORDERED.
17
was blessed with a son and a daughter, Kristoffer

Simbortriz V. Orbecido and Lady Kimberly V. Orbecido.
QUISUMBING, J.:
Given a valid marriage between two Filipino citizens,
where one party is later naturalized as a foreign citizen
and obtains a valid divorce decree capacitating him or
her to remarry, can the Filipino spouse likewise
remarry under Philippine law?
In 1986, Ciprianos wife left for the United States

bringing along their son Kristoffer. A few years later,
Cipriano discovered that his wife had been naturalized
as an American citizen.
Sometime in 2000, Cipriano learned from his son that
his wife had obtained a divorce decree and then
married a certain Innocent Stanley. She, Stanley and
her child by him currently live at 5566 A. Walnut Grove
Avenue, San Gabriel, California.
Before us is a case of first impression that behooves

the Court to make a definite ruling on this apparently
novel question, presented as a pure question of law.
In this petition for review, the Solicitor General assails
the Decision1 dated May 15, 2002, of the Regional Trial
Court of Molave, Zamboanga del Sur, Branch 23 and
its Resolution2 dated July 4, 2002 denying the motion
for reconsideration. The court a quo had declared that
herein respondent Cipriano Orbecido III is capacitated
to remarry. The fallo of the impugned Decision reads:
Cipriano thereafter filed with the trial court a petition

for authority to remarry invoking Paragraph 2 of Article
26 of the Family Code. No opposition was filed. Finding
merit in the petition, the court granted the same. The
Republic, herein petitioner, through the Office of the
Solicitor General (OSG), sought reconsideration but it
was denied.
WHEREFORE, by virtue of the provision of the second

paragraph of Art. 26 of the Family Code and by reason
of the divorce decree obtained against him by his
American wife, the petitioner is given the capacity to
remarry under the Philippine Law.
In this petition, the OSG raises a pure question of law:

WHETHER OR NOT RESPONDENT CAN REMARRY
UNDER ARTICLE 26 OF THE FAMILY CODE4
IT IS SO ORDERED.3
The OSG contends that Paragraph 2 of Article 26 of the

Family Code is not applicable to the instant case
because it only applies to a valid mixed marriage; that
is, a marriage celebrated between a Filipino citizen and
an alien. The proper remedy, according to the OSG, is
to file a petition for annulment or for legal separation.5
Furthermore, the OSG argues there is no law that
governs respondents situation. The OSG posits that
The factual antecedents, as narrated by the trial court,

are as follows.
On May 24, 1981, Cipriano Orbecido III married Lady
Myros M. Villanueva at the United Church of Christ in
the Philippines in Lam-an, Ozamis City. Their marriage
18
this is a matter of legislation and not of judicial

determination.6
legal interest in the controversy; and (4) that the issue

is ripe for judicial determination.8
For his part, respondent admits that Article 26 is not

directly applicable to his case but insists that when his
naturalized alien wife obtained a divorce decree which
capacitated her to remarry, he is likewise capacitated
by operation of law pursuant to Section 12, Article II of
the Constitution.7
This case concerns the applicability of Paragraph 2 of

Article 26 to a marriage between two Filipino citizens
where one later acquired alien citizenship, obtained a
divorce decree, and remarried while in the U.S.A. The
interests of the parties are also adverse, as petitioner
representing the State asserts its duty to protect the
institution of marriage while respondent, a private
citizen, insists on a declaration of his capacity to
remarry. Respondent, praying for relief, has legal
interest in the controversy. The issue raised is also ripe
for judicial determination inasmuch as when
respondent remarries, litigation ensues and puts into
question the validity of his second marriage.
At the outset, we note that the petition for authority to

remarry filed before the trial court actually constituted
a petition for declaratory relief. In this connection,
Section 1, Rule 63 of the Rules of Court provides:
RULE 63
DECLARATORY RELIEF AND SIMILAR REMEDIES
Coming now to the substantive issue, does Paragraph

2 of Article 26 of the Family Code apply to the case of
respondent? Necessarily, we must dwell on how this
provision had come about in the first place, and what
was the intent of the legislators in its enactment?
Section 1. Who may file petitionAny person

interested under a deed, will, contract or other written
instrument, or whose rights are affected by a statute,
executive order or regulation, ordinance, or other
governmental regulation may, before breach or
violation thereof, bring an action in the appropriate
Regional Trial Court to determine any question of
construction or validity arising, and for a declaration of
his rights or duties, thereunder.
Brief Historical Background

On July 6, 1987, then President Corazon Aquino signed
into law Executive Order No. 209, otherwise known as
the "Family Code," which took effect on August 3,
1988. Article 26 thereof states:
...
All marriages solemnized outside the Philippines in
accordance with the laws in force in the country where
they were solemnized, and valid there as such, shall
also be valid in this country, except those prohibited
under Articles 35, 37, and 38.
The requisites of a petition for declaratory relief are:

(1) there must be a justiciable controversy; (2) the
controversy must be between persons whose interests
are adverse; (3) that the party seeking the relief has a
19
On July 17, 1987, shortly after the signing of the

original Family Code, Executive Order No. 227 was
likewise signed into law, amending Articles 26, 36, and
39 of the Family Code. A second paragraph was added
to Article 26. As so amended, it now provides:
1. The rule is discriminatory. It discriminates against

those whose spouses are Filipinos who divorce them
abroad. These spouses who are divorced will not be
able to re-marry, while the spouses of foreigners who
validly divorce them abroad can.
ART. 26. All marriages solemnized outside the

36, 37 and 38.
2. This is the beginning of the recognition of the

validity of divorce even for Filipino citizens. For those
whose foreign spouses validly divorce them abroad will
also be considered to be validly divorced here and can
re-marry. We propose that this be deleted and made
into law only after more widespread consultation.
(Emphasis supplied.)

(Emphasis supplied)
Legislative Intent
Records of the proceedings of the Family Code
deliberations showed that the intent of Paragraph 2 of
Article 26, according to Judge Alicia Sempio-Diy, a
member of the Civil Code Revision Committee, is to
avoid the absurd situation where the Filipino spouse
remains married to the alien spouse who, after
obtaining a divorce, is no longer married to the Filipino
spouse.
On its face, the foregoing provision does not appear to

govern the situation presented by the case at hand. It
seems to apply only to cases where at the time of the
celebration of the marriage, the parties are a Filipino
citizen and a foreigner. The instant case is one where
at the time the marriage was solemnized, the parties
were two Filipino citizens, but later on, the wife was
naturalized as an American citizen and subsequently
obtained a divorce granting her capacity to remarry,
and indeed she remarried an American citizen while
residing in the U.S.A.
Interestingly, Paragraph 2 of Article 26 traces its origin

to the 1985 case of Van Dorn v. Romillo, Jr.10 The Van
Dorn case involved a marriage between a Filipino
citizen and a foreigner. The Court held therein that a
divorce decree validly obtained by the alien spouse is
valid in the Philippines, and consequently, the Filipino
spouse is capacitated to remarry under Philippine law.
Noteworthy, in the Report of the Public Hearings9 on

the Family Code, the Catholic Bishops Conference of
the Philippines (CBCP) registered the following
objections to Paragraph 2 of Article 26:
Does the same principle apply to a case where at the

time of the celebration of the marriage, the parties
20
were Filipino citizens, but later on, one of them obtains

a foreign citizenship by naturalization?
obtaining a divorce is no longer married to the Filipino

spouse, then the instant case must be deemed as
coming within the contemplation of Paragraph 2 of
Article 26.
The jurisprudential answer lies latent in the 1998 case

of Quita v. Court of Appeals.11 In Quita, the parties
were, as in this case, Filipino citizens when they got
married. The wife became a naturalized American
citizen in 1954 and obtained a divorce in the same
year. The Court therein hinted, by way of obiter
dictum, that a Filipino divorced by his naturalized
foreign spouse is no longer married under Philippine
law and can thus remarry.
In view of the foregoing, we state the twin elements

for the application of Paragraph 2 of Article 26 as
follows:
1. There is a valid marriage that has been celebrated
between a Filipino citizen and a foreigner; and
2. A valid divorce is obtained abroad by the alien
spouse capacitating him or her to remarry.
Thus, taking into consideration the legislative intent

and applying the rule of reason, we hold that
Paragraph 2 of Article 26 should be interpreted to
include cases involving parties who, at the time of the
celebration of the marriage were Filipino citizens, but
later on, one of them becomes naturalized as a foreign
citizen and obtains a divorce decree. The Filipino
spouse should likewise be allowed to remarry as if the
other party were a foreigner at the time of the
solemnization of the marriage. To rule otherwise would
be to sanction absurdity and injustice. Where the
interpretation of a statute according to its exact and
literal import would lead to mischievous results or
contravene the clear purpose of the legislature, it
should be construed according to its spirit and reason,
disregarding as far as necessary the letter of the law. A
statute may therefore be extended to cases not within
the literal meaning of its terms, so long as they come
within its spirit or intent.12
The reckoning point is not the citizenship of the parties

at the time of the celebration of the marriage, but their
citizenship at the time a valid divorce is obtained
abroad by the alien spouse capacitating the latter to
remarry.
In this case, when Ciprianos wife was naturalized as
an American citizen, there was still a valid marriage
that has been celebrated between her and Cipriano. As
fate would have it, the naturalized alien wife
subsequently obtained a valid divorce capacitating her
to remarry. Clearly, the twin requisites for the
application of Paragraph 2 of Article 26 are both
present in this case. Thus Cipriano, the "divorced"
Filipino spouse, should be allowed to remarry.
We are also unable to sustain the OSGs theory that
the proper remedy of the Filipino spouse is to file
either a petition for annulment or a petition for legal
separation. Annulment would be a long and tedious
process, and in this particular case, not even feasible,
If we are to give meaning to the legislative intent to

21
considering that the marriage of the parties appears to

have all the badges of validity. On the other hand,
legal separation would not be a sufficient remedy for it
would not sever the marriage tie; hence, the legally
separated Filipino spouse would still remain married to
the naturalized alien spouse.
considering that in the present petition there is no

sufficient evidence submitted and on record, we are
unable to declare, based on respondents bare
allegations that his wife, who was naturalized as an
American citizen, had obtained a divorce decree and
had remarried an American, that respondent is now
capacitated to remarry. Such declaration could only be
made properly upon respondents submission of the
aforecited evidence in his favor.
However, we note that the records are bereft of

competent evidence duly submitted by respondent
concerning the divorce decree and the naturalization
of respondents wife. It is settled rule that one who
alleges a fact has the burden of proving it and mere
allegation is not evidence.13
ACCORDINGLY, the petition by the Republic of

the Philippines is GRANTED. The assailed
Decision dated May 15, 2002, and Resolution
dated July 4, 2002, of the Regional Trial Court of
Molave, Zamboanga del Sur, Branch 23, are
hereby SET ASIDE.
Accordingly, for his plea to prosper, respondent herein

must prove his allegation that his wife was naturalized
as an American citizen. Likewise, before a foreign
divorce decree can be recognized by our own courts,
the party pleading it must prove the divorce as a fact
and demonstrate its conformity to the foreign law
allowing it.14 Such foreign law must also be proved as
our courts cannot take judicial notice of foreign laws.
Like any other fact, such laws must be alleged and
proved.15 Furthermore, respondent must also show
that the divorce decree allows his former wife to
remarry as specifically required in Article 26.
Otherwise, there would be no evidence sufficient to
declare that he is capacitated to enter into another
marriage.
No pronouncement as to costs.
SO ORDERED.
LEONARDO A. QUISUMBING
Associate Justice
WE CONCUR:
HILARIO G. DAVIDE, JR.
Chief Justice
Nevertheless, we are unanimous in our holding that

Paragraph 2 of Article 26 of the Family Code (E.O. No.
209, as amended by E.O. No. 227), should be
interpreted to allow a Filipino citizen, who has been
divorced by a spouse who had acquired foreign
citizenship and remarried, also to remarry. However,
Chairman
CONSUELO YNARES-SANTIAGO, ANTONIO T. CARPIO
Associate Justice Associate Justice
22
from conception. The natural and primary right and

duty of parents in the rearing of the youth for civic
efficiency and the development of moral character
shall receive the support of the Government.
ADOLFO S. AZCUNA
Associate Justice
CERTIFICATION
8 Office of the Ombudsman v. Ibay, G.R. No. 137538, 3

September 2001, 364 SCRA 281, 286, citing Galarosa
v. Valencia, G.R. No. 109455, 11 November 1993, 227
SCRA 729, 737.
Pursuant to Section 13, Article VIII of the Constitution,

it is hereby certified that the conclusions in the above
Decision were reached in consultation before the case
was assigned to the writer of the opinion of the Courts
Division.
9 Held on January 27 and 28, 1988 and February 3,

1988.
HILARIO G. DAVIDE, JR.
10 No. L-68470, 8 October 1985, 139 SCRA 139.
Chief Justice
11 G.R. No. 124862, 22 December 1998, 300 SCRA

406.
Footnotes
12 Lopez & Sons, Inc. v. Court of Tax Appeals, No. L9274, 1 February 1957, 100 Phil. 850, 855.
1 Rollo, pp. 20-22.

13 Cortes v. Court of Appeals, G.R. No. 121772, 13
January 2003, 395 SCRA 33, 38.
2 Id. at 27-29.
3 Id. at 21-22.
14 Garcia v. Recio, G.R. No. 138322, 2 October 2001,

366 SCRA 437, 447.
4 Id. at 105.
15 Id. at 451.
5 Id. at 106-110.
6 Id. at 110.
G.R. No. 186571
7 Sec. 12. The State recognizes the sanctity of family
life and shall protect and strengthen the family as a
basic autonomous social institution. It shall equally
protect the life of the mother and the life of the unborn
August 11, 2010
GERBERT R. CORPUZ, Petitioner,

vs.
23
DAISYLYN TIROL STO. TOMAS and The SOLICITOR

GENERAL, Respondents.
the marriage between him and Daisylyn still subsists

under Philippine law; to be enforceable, the foreign
divorce decree must first be judicially recognized by a
competent Philippine court, pursuant to NSO Circular
No. 4, series of 1982.6
DECISION
BRION, J.:
Accordingly, Gerbert filed a petition for judicial

recognition of foreign divorce and/or declaration of
marriage as dissolved (petition) with the RTC. Although
summoned, Daisylyn did not file any responsive
pleading but submitted instead a notarized
letter/manifestation to the trial court. She offered no
opposition to Gerberts petition and, in fact, alleged
her desire to file a similar case herself but was
prevented by financial and personal circumstances.
She, thus, requested that she be considered as a
party-in-interest with a similar prayer to Gerberts.
Before the Court is a direct appeal from the decision1

of the Regional Trial Court (RTC) of Laoag City, Branch
11, elevated via a petition for review on certiorari2
under Rule 45 of the Rules of Court (present petition).
Petitioner Gerbert R. Corpuz was a former Filipino
citizen who acquired Canadian citizenship through
naturalization on November 29, 2000.3 On January 18,
2005, Gerbert married respondent Daisylyn T. Sto.
Tomas, a Filipina, in Pasig City.4 Due to work and other
professional commitments, Gerbert left for Canada
soon after the wedding. He returned to the Philippines
sometime in April 2005 to surprise Daisylyn, but was
shocked to discover that his wife was having an affair
with another man. Hurt and disappointed, Gerbert
returned to Canada and filed a petition for divorce. The
Superior Court of Justice, Windsor, Ontario, Canada
granted Gerberts petition for divorce on December 8,
2005. The divorce decree took effect a month later, on
January 8, 2006.5
In its October 30, 2008 decision,7 the RTC denied

Gerberts petition. The RTC concluded that Gerbert was
not the proper party to institute the action for judicial
recognition of the foreign divorce decree as he is a
naturalized Canadian citizen. It ruled that only the
Filipino spouse can avail of the remedy, under the
second paragraph of Article 26 of the Family Code,8 in
order for him or her to be able to remarry under
Philippine law.9 Article 26 of the Family Code reads:
Two years after the divorce, Gerbert has moved on and

has found another Filipina to love. Desirous of
marrying his new Filipina fiance in the Philippines,
Gerbert went to the Pasig City Civil Registry Office and
registered the Canadian divorce decree on his and
Daisylyns marriage certificate. Despite the
registration of the divorce decree, an official of the
National Statistics Office (NSO) informed Gerbert that
Art. 26. All marriages solemnized outside the

36, 37 and 38.
24

shall likewise have capacity to remarry under
Philippine law.
might be prosecuted for bigamy if he marries his

Filipina fiance in the Philippines since two marriage
certificates, involving him, would be on file with the
Civil Registry Office. The Office of the Solicitor General
and Daisylyn, in their respective Comments,14 both
support Gerberts position.
This conclusion, the RTC stated, is consistent with the

legislative intent behind the enactment of the second
paragraph of Article 26 of the Family Code, as
determined by the Court in Republic v. Orbecido III;10
the provision was enacted to "avoid the absurd
situation where the Filipino spouse remains married to
the alien spouse who, after obtaining a divorce, is no
longer married to the Filipino spouse."11
Essentially, the petition raises the issue of whether the

second paragraph of Article 26 of the Family Code
extends to aliens the right to petition a court of this
jurisdiction for the recognition of a foreign divorce
decree.
THE COURTS RULING
The alien spouse can claim no right under the second
paragraph of Article 26 of the Family Code as the
substantive right it establishes is in favor of the Filipino
spouse
THE PETITION
From the RTCs ruling,12 Gerbert filed the present
petition.13
The resolution of the issue requires a review of the

legislative history and intent behind the second
paragraph of Article 26 of the Family Code.
Gerbert asserts that his petition before the RTC is

essentially for declaratory relief, similar to that filed in
Orbecido; he, thus, similarly asks for a determination
of his rights under the second paragraph of Article 26
of the Family Code. Taking into account the rationale
behind the second paragraph of Article 26 of the
Family Code, he contends that the provision applies as
well to the benefit of the alien spouse. He claims that
the RTC ruling unduly stretched the doctrine in
Orbecido by limiting the standing to file the petition
only to the Filipino spouse an interpretation he claims
to be contrary to the essence of the second paragraph
of Article 26 of the Family Code. He considers himself
as a proper party, vested with sufficient legal interest,
to institute the case, as there is a possibility that he
The Family Code recognizes only two types of

defective marriages void15 and voidable16
marriages. In both cases, the basis for the judicial
declaration of absolute nullity or annulment of the
marriage exists before or at the time of the marriage.
Divorce, on the other hand, contemplates the
dissolution of the lawful union for cause arising after
the marriage.17 Our family laws do not recognize
absolute divorce between Filipino citizens.18
Recognizing the reality that divorce is a possibility in
marriages between a Filipino and an alien, President
25
Corazon C. Aquino, in the exercise of her legislative

powers under the Freedom Constitution,19 enacted
Executive Order No. (EO) 227, amending Article 26 of
the Family Code to its present wording, as follows:
latter should not continue to be one of her heirs with

possible rights to conjugal property. She should not be
discriminated against in her own country if the ends of
justice are to be served.22
Art. 26. All marriages solemnized outside the

36, 37 and 38.
As the RTC correctly stated, the provision was included

in the law "to avoid the absurd situation where the
Filipino spouse remains married to the alien spouse
who, after obtaining a divorce, is no longer married to
the Filipino spouse."23 The legislative intent is for the
benefit of the Filipino spouse, by clarifying his or her
marital status, settling the doubts created by the
divorce decree. Essentially, the second paragraph of
Article 26 of the Family Code provided the Filipino
spouse a substantive right to have his or her marriage
to the alien spouse considered as dissolved,
capacitating him or her to remarry.24 Without the
second paragraph of Article 26 of the Family Code, the
judicial recognition of the foreign decree of divorce,
whether in a proceeding instituted precisely for that
purpose or as a related issue in another proceeding,
would be of no significance to the Filipino spouse since
our laws do not recognize divorce as a mode of
severing the marital bond;25 Article 17 of the Civil
Code provides that the policy against absolute
divorces cannot be subverted by judgments
promulgated in a foreign country. The inclusion of the
second paragraph in Article 26 of the Family Code
provides the direct exception to this rule and serves as
basis for recognizing the dissolution of the marriage
between the Filipino spouse and his or her alien
spouse.

shall likewise have capacity to remarry under
Philippine law.
Through the second paragraph of Article 26 of the
Family Code, EO 227 effectively incorporated into the
law this Courts holding in Van Dorn v. Romillo, Jr.20
and Pilapil v. Ibay-Somera.21 In both cases, the Court
refused to acknowledge the alien spouses assertion of
marital rights after a foreign courts divorce decree
between the alien and the Filipino. The Court, thus,
recognized that the foreign divorce had already
severed the marital bond between the spouses. The
Court reasoned in Van Dorn v. Romillo that:
To maintain x x x that, under our laws, [the Filipino
spouse] has to be considered still married to [the alien
spouse] and still subject to a wife's obligations x x x
cannot be just. [The Filipino spouse] should not be
obliged to live together with, observe respect and
fidelity, and render support to [the alien spouse]. The
Additionally, an action based on the second paragraph

of Article 26 of the Family Code is not limited to the
recognition of the foreign divorce decree. If the court
26
finds that the decree capacitated the alien spouse to

remarry, the courts can declare that the Filipino spouse
is likewise capacitated to contract another marriage.
No court in this jurisdiction, however, can make a
similar declaration for the alien spouse (other than
that already established by the decree), whose status
and legal capacity are generally governed by his
national law.26
Rules of Court which provides for the effect of foreign

judgments. This Section states:
SEC. 48. Effect of foreign judgments or final orders.
The effect of a judgment or final order of a tribunal of a
foreign country, having jurisdiction to render the
judgment or final order is as follows:
(a) In case of a judgment or final order upon a specific
thing, the judgment or final order is conclusive upon
the title of the thing; and
Given the rationale and intent behind the enactment,

and the purpose of the second paragraph of Article 26
of the Family Code, the RTC was correct in limiting the
applicability of the provision for the benefit of the
Filipino spouse. In other words, only the Filipino spouse
can invoke the second paragraph of Article 26 of the
Family Code; the alien spouse can claim no right under
this provision.
(b) In case of a judgment or final order against a

In either case, the judgment or final order may be
law or fact.
The foreign divorce decree is presumptive evidence of

a right that clothes the party with legal interest to
petition for its recognition in this jurisdiction
We qualify our above conclusion i.e., that the second
paragraph of Article 26 of the Family Code bestows no
rights in favor of aliens with the complementary
statement that this conclusion is not sufficient basis to
dismiss Gerberts petition before the RTC. In other
words, the unavailability of the second paragraph of
Article 26 of the Family Code to aliens does not
necessarily strip Gerbert of legal interest to petition
the RTC for the recognition of his foreign divorce
decree. The foreign divorce decree itself, after its
authenticity and conformity with the aliens national
law have been duly proven according to our rules of
evidence, serves as a presumptive evidence of right in
favor of Gerbert, pursuant to Section 48, Rule 39 of the
To our mind, direct involvement or being the subject of

the foreign judgment is sufficient to clothe a party with
the requisite interest to institute an action before our
courts for the recognition of the foreign judgment. In a
divorce situation, we have declared, no less, that the
divorce obtained by an alien abroad may be
recognized in the Philippines, provided the divorce is
valid according to his or her national law.27
The starting point in any recognition of a foreign
divorce judgment is the acknowledgment that our
courts do not take judicial notice of foreign judgments
and laws. Justice Herrera explained that, as a rule, "no
sovereign is bound to give effect within its dominion to
27
a judgment rendered by a tribunal of another

country."28 This means that the foreign judgment and
its authenticity must be proven as facts under our
rules on evidence, together with the aliens applicable
national law to show the effect of the judgment on the
alien himself or herself.29 The recognition may be
made in an action instituted specifically for the
purpose or in another action where a party invokes the
foreign decree as an integral aspect of his claim or
defense.
We deem it more appropriate to take this latter course

of action, given the Article 26 interests that will be
served and the Filipina wifes (Daisylyns) obvious
conformity with the petition. A remand, at the same
time, will allow other interested parties to oppose the
foreign judgment and overcome a petitioners
presumptive evidence of a right by proving want of
jurisdiction, want of notice to a party, collusion, fraud,
or clear mistake of law or fact. Needless to state, every
precaution must be taken to ensure conformity with
our laws before a recognition is made, as the foreign
judgment, once recognized, shall have the effect of res
judicata32 between the parties, as provided in Section
48, Rule 39 of the Rules of Court.33
In Gerberts case, since both the foreign divorce

decree and the national law of the alien, recognizing
his or her capacity to obtain a divorce, purport to be
official acts of a sovereign authority, Section 24, Rule
132 of the Rules of Court comes into play. This Section
requires proof, either by (1) official publications or (2)
copies attested by the officer having legal custody of
the documents. If the copies of official records are not
kept in the Philippines, these must be (a) accompanied
by a certificate issued by the proper diplomatic or
consular officer in the Philippine foreign service
stationed in the foreign country in which the record is
kept and (b) authenticated by the seal of his office.
In fact, more than the principle of comity that is served

by the practice of reciprocal recognition of foreign
judgments between nations, the res judicata effect of
the foreign judgments of divorce serves as the deeper
basis for extending judicial recognition and for
considering the alien spouse bound by its terms. This
same effect, as discussed above, will not obtain for the
Filipino spouse were it not for the substantive rule that
the second paragraph of Article 26 of the Family Code
provides.
The records show that Gerbert attached to his petition

a copy of the divorce decree, as well as the required
certificates proving its authenticity,30 but failed to
include a copy of the Canadian law on divorce.31
Under this situation, we can, at this point, simply
dismiss the petition for insufficiency of supporting
evidence, unless we deem it more appropriate to
remand the case to the RTC to determine whether the
divorce decree is consistent with the Canadian divorce
law.
Considerations beyond the recognition of the foreign

divorce decree
As a matter of "housekeeping" concern, we note that
the Pasig City Civil Registry Office has already
recorded the divorce decree on Gerbert and Daisylyns
marriage certificate based on the mere presentation of
the decree.34 We consider the recording to be legally
improper; hence, the need to draw attention of the
bench and the bar to what had been done.
28
(h) acknowledgment of natural children;

Article 407 of the Civil Code states that "[a]cts, events
and judicial decrees concerning the civil status of
persons shall be recorded in the civil register." The law
requires the entry in the civil registry of judicial
decrees that produce legal consequences touching
upon a persons legal capacity and status, i.e., those
affecting "all his personal qualities and relations, more
or less permanent in nature, not ordinarily terminable
at his own will, such as his being legitimate or
illegitimate, or his being married or not."35
(i) naturalization; and

(j) changes of name.
xxxx
Sec. 4. Civil Register Books. The local registrars shall
keep and preserve in their offices the following books,
in which they shall, respectively make the proper
entries concerning the civil status of persons:
A judgment of divorce is a judicial decree, although a

foreign one, affecting a persons legal capacity and
status that must be recorded. In fact, Act No. 3753 or
the Law on Registry of Civil Status specifically requires
the registration of divorce decrees in the civil registry:
(1) Birth and death register;

(2) Marriage register, in which shall be entered not
only the marriages solemnized but also divorces and
dissolved marriages.
Sec. 1. Civil Register. A civil register is established for

recording the civil status of persons, in which shall be
entered:
(3) Legitimation, acknowledgment, adoption, change

of name and naturalization register.
(a) births;
But while the law requires the entry of the divorce

decree in the civil registry, the law and the submission
of the decree by themselves do not ipso facto
authorize the decrees registration. The law should be
read in relation with the requirement of a judicial
recognition of the foreign judgment before it can be
given res judicata effect. In the context of the present
case, no judicial order as yet exists recognizing the
foreign divorce decree. Thus, the Pasig City Civil
Registry Office acted totally out of turn and without
authority of law when it annotated the Canadian
divorce decree on Gerbert and Daisylyns marriage
certificate, on the strength alone of the foreign decree
presented by Gerbert.
(b) deaths;
(c) marriages;
(d) annulments of marriages;
(e) divorces;
(f) legitimations;
(g) adoptions;
29
have or claim any interest must be made parties to the

proceedings;39 and that the time and place for
hearing must be published in a newspaper of general
circulation.40 As these basic jurisdictional
requirements have not been met in the present case,
we cannot consider the petition Gerbert filed with the
RTC as one filed under Rule 108 of the Rules of Court.
Evidently, the Pasig City Civil Registry Office was

aware of the requirement of a court recognition, as it
cited NSO Circular No. 4, series of 1982,36 and
Department of Justice Opinion No. 181, series of
198237 both of which required a final order from a
competent Philippine court before a foreign judgment,
dissolving a marriage, can be registered in the civil
registry, but it, nonetheless, allowed the registration of
the decree. For being contrary to law, the registration
of the foreign divorce decree without the requisite
judicial recognition is patently void and cannot
produce any legal effect.1avvphi1
We hasten to point out, however, that this ruling

should not be construed as requiring two separate
proceedings for the registration of a foreign divorce
decree in the civil registry one for recognition of the
foreign decree and another specifically for cancellation
of the entry under Rule 108 of the Rules of Court. The
recognition of the foreign divorce decree may be made
in a Rule 108 proceeding itself, as the object of special
proceedings (such as that in Rule 108 of the Rules of
Court) is precisely to establish the status or right of a
party or a particular fact. Moreover, Rule 108 of the
Rules of Court can serve as the appropriate adversarial
proceeding41 by which the applicability of the foreign
judgment can be measured and tested in terms of
jurisdictional infirmities, want of notice to the party,
collusion, fraud, or clear mistake of law or fact.
Another point we wish to draw attention to is that the

recognition that the RTC may extend to the Canadian
divorce decree does not, by itself, authorize the
cancellation of the entry in the civil registry. A petition
for recognition of a foreign judgment is not the proper
proceeding, contemplated under the Rules of Court, for
the cancellation of entries in the civil registry.
Article 412 of the Civil Code declares that "no entry in
a civil register shall be changed or corrected, without
judicial order." The Rules of Court supplements Article
412 of the Civil Code by specifically providing for a
special remedial proceeding by which entries in the
civil registry may be judicially cancelled or corrected.
Rule 108 of the Rules of Court sets in detail the
jurisdictional and procedural requirements that must
be complied with before a judgment, authorizing the
cancellation or correction, may be annotated in the
civil registry. It also requires, among others, that the
verified petition must be filed with the RTC of the
province where the corresponding civil registry is
located;38 that the civil registrar and all persons who
WHEREFORE, we GRANT the petition for review

on certiorari, and REVERSE the October 30, 2008
decision of the Regional Trial Court of Laoag
City, Branch 11, as well as its February 17, 2009
order. We order the REMAND of the case to the
trial court for further proceedings in accordance
with our ruling above. Let a copy of this Decision
be furnished the Civil Registrar General. No
costs.
SO ORDERED.
30
Chief Justice
ARTURO D. BRION
Associate Justice
Footnotes
WE CONCUR:
* Designated additional Member of the Third Division,
in view of the retirement of Chief Justice Reynato S.
Puno, per Special Order No. 843 dated May 17, 2010.
CONCHITA CARPIO MORALES

Associate Justice
LUCAS P. BERSAMIN
Associate Justice ROBERTO A. ABAD
Associate Justice
MARTIN S. VILLARAMA, JR.
Associate Justice
1 Dated October 30, 2008, penned by Judge Perla B.

Querubin; rollo, pp. 24-31.
2 Id. at 3-20.
3 Id. at 27.
ATTESTATION
4 Marriage Certificate, id. at 37.
I attest that the conclusions in the above Decision had
been reached in consultation before the case was
assigned to the writer of the opinion of the Courts
Division.
5 Certificate of Divorce, id. at 38.

6 Id. at 47-50; the pertinent portion of NSO Circular No.
4, series of 1982, states:
CONCHITA CARPIO MORALES

Associate Justice
Chairperson
It would therefore be premature to register the decree

of annulment in the Register of Annulment of
Marriages in Manila, unless and until final order of
execution of such foreign judgment is issued by
competent Philippine court.
CERTIFICATION
and the Division Chairpersons Attestation, it is hereby
certified that the conclusions in the above Decision
had been reached in consultation before the case was
assigned to the writer of the opinion of the Courts
Division.
7 Supra note 1.
8 Executive Order No. 209, enacted on July 6, 1987.
9 Rollo, p. 31.
RENATO C. CORONA
10 G.R. No. 154380, October 5, 2005, 472 SCRA 114.

31
24 The capacity of the Filipino spouse to remarry,

however, depends on whether the foreign divorce
decree capacitated the alien spouse to do so.
11 Id. at 121.
12 Gerberts motion for reconsideration of the RTCs
October 30, 2008 decision was denied in an order
dated February 17, 2009; rollo, p. 32.
25 See Article 17 in relation to Article 15 of the Civil

Code:
13 Supra note 2.
Art. 15. Laws relating to family rights and duties, or to

the status, condition and legal capacity of persons are
binding upon citizens of the Philippines, even though
living abroad.
14 Rollo, pp. 79-87 and 125-142, respectively.

15 The void marriages are those enumerated under
Articles 35, 36, 37, 38, 40, 41, 44, and 53 in relation to
Article 52 of the Family Code.
xxxx
Art. 17. x x x Prohibitive laws concerning persons, their
acts or property, and those which have for their object
public order, public policy and good customs shall not
be rendered ineffective by laws or judgments
agreed upon in a foreign country.
16 The voidable marriages are those enumerated

under Article 45 of the Family Code.
17 Garcia v. Recio, G.R. No. 138322, October 2, 2001,
366 SCRA 437, 452.
18 Ibid. See A. Tolentino, Commentaries and
Jurisprudence on the Civil Code of the Philippines,
Volume One, with the Family Code of the Philippines
(2004 ed.), p. 262.
26 Parenthetically, we add that an aliens legal

capacity to contract is evidenced by a certificate
issued by his or her respective diplomatic and consular
officials, which he or she must present to secure a
marriage license (Article 21, Family Code). The Filipino
spouse who seeks to remarry, however, must still
resort to a judicial action for a declaration of authority
to remarry.
19 Proclamation No. 3, issued on March 25, 1996.

20 G.R. No. L-68470, October 8, 1985, 139 SCRA 139.
21 G.R. No. 80116, June 30, 1989, 174 SCRA 653.
27 Garcia v. Recio, supra note 17 at 447; citing Van

Dorn v. Romillo, supra note 20.
22 Van Dorn v. Romillo, supra note 20 at 144.

28 Remedial Law, Volume II, Rules 23-56 (2007 ed.), p.
529.
23 Republic v. Orbecido, supra note 10 at 121.
32
29 Republic v. Orbecido III, supra note 10 at 123 and

Garcia v. Recio, supra note 17 at 448; see also Bayot v.
Court of Appeals, G.R. No. 155635, November 7, 2008,
570 SCRA 472.
prima facie evidence of the justness of the claim of a

party and, as such, is subject to proof to the contrary.
34 On the face of the marriage certificate, the word
"DIVORCED" was written in big, bold letters; rollo, p.
37.
30 Rollo, pp. 38-41.

31 The foreign divorce decree only stated that the
marriage between Gerbert and Daisylyn was dissolved
by the Canadian court. The full text of the courts
judgment was not included.
35 Silverio v. Republic, G.R. No. 174689, October 22,

2007, 537 SCRA 373, 390, citing Beduya v. Republic,
120 Phil. 114 (1964).
36 Rollo, pp. 47-50.
32 Literally means "a thing adjudged," Blacks Law

Dictionary (5th ed.), p. 1178; it establishes a rule that
a final judgment or decree on the merits by a court of
competent jurisdiction is conclusive of the rights of the
parties or their privies in all later suits, on points and
matters determined in the former. Supra note 28 at
462.
37 Id. at 51.
38 Section 1, Rule 108, Rules of Court.
33 See Philsec Investment Corporation v. Court of

Appeals, G.R. No. 103493, June 19, 1997, 274 SCRA
102, 110, where the Court said:
41 When the entry sought to be corrected is

substantial (i.e., the civil status of a person), a Rule
108 proceeding is deemed adversarial in nature. See
Co v. Civil Register of Manila, G.R. No. 138496,
February 23, 2004, 423 SCRA 420, 430.
While this Court has given the effect of res judicata to

foreign judgments in several cases, it was after the
parties opposed to the judgment had been given
ample opportunity to repel them on grounds allowed
under the law. It is not necessary for this purpose to
initiate a separate action or proceeding for
enforcement of the foreign judgment. What is essential
is that there is opportunity to challenge the foreign
judgment, in order for the court to properly determine
its efficacy. This is because in this jurisdiction, with
respect to actions in personam, as distinguished from
actions in rem, a foreign judgment merely constitutes
G.R. No. 196049

June 26, 2013
MINORU FUJIKI, PETITIONER,
vs.
MARIA PAZ GALELA MARINAY, SHINICHI
MAEKARA, LOCAL CIVIL REGISTRAR OF QUEZON
CITY, AND THE ADMINISTRATOR AND CIVIL
REGISTRAR GENERAL OF THE NATIONAL
STATISTICS OFFICE, RESPONDENTS.
33
DECISION
This is a direct recourse to this Court from the Regional

Trial Court (RTC), Branch 107, Quezon City, through a
petition for review on certiorari under Rule 45 of the
Rules of Court on a pure question of law. The petition
assails the Order1 dated 31 January 2011 of the RTC in
Civil Case No. Q-11-68582 and its Resolution dated 2
March 2011 denying petitioners Motion for
Reconsideration. The RTC dismissed the petition for
"Judicial Recognition of Foreign Judgment (or Decree of
Absolute Nullity of Marriage)" based on improper
venue and the lack of personality of petitioner, Minoru
Fujiki, to file the petition.
Fujiki and Marinay met in Japan and they were able to

reestablish their relationship. In 2010, Fujiki helped
Marinay obtain a judgment from a family court in Japan
which declared the marriage between Marinay and
Maekara void on the ground of bigamy.4 On 14 January
2011, Fujiki filed a petition in the RTC entitled: "Judicial
Recognition of Foreign Judgment (or Decree of
Absolute Nullity of Marriage)." Fujiki prayed that (1)
the Japanese Family Court judgment be recognized; (2)
that the bigamous marriage between Marinay and
Maekara be declared void ab initio under Articles 35(4)
and 41 of the Family Code of the Philippines;5 and (3)
for the RTC to direct the Local Civil Registrar of Quezon
City to annotate the Japanese Family Court judgment
on the Certificate of Marriage between Marinay and
Maekara and to endorse such annotation to the Office
of the Administrator and Civil Registrar General in the
National Statistics Office (NSO).6
The Facts
The Ruling of the Regional Trial Court
Petitioner Minoru Fujiki (Fujiki) is a Japanese national

who married respondent Maria Paz Galela Marinay
(Marinay) in the Philippines2 on 23 January 2004. The
marriage did not sit well with petitioners parents.
Thus, Fujiki could not bring his wife to Japan where he
resides. Eventually, they lost contact with each other.
A few days after the filing of the petition, the RTC

immediately issued an Order dismissing the petition
and withdrawing the case from its active civil docket.7
The RTC cited the following provisions of the Rule on
Declaration of Absolute Nullity of Void Marriages and
Annulment of Voidable Marriages (A.M. No. 02-11-10SC):
CARPIO, J.:
The Case
In 2008, Marinay met another Japanese, Shinichi

Maekara (Maekara). Without the first marriage being
dissolved, Marinay and Maekara were married on 15
May 2008 in Quezon City, Philippines. Maekara brought
Marinay to Japan. However, Marinay allegedly suffered
physical abuse from Maekara. She left Maekara and
started to contact Fujiki.3
Sec. 2. Petition for declaration of absolute nullity of

void marriages.
(a) Who may file. A petition for declaration of
absolute nullity of void marriage may be filed solely by
the husband or the wife.
34
The petitioner contended that the Japanese judgment

was consistent with Article 35(4) of the Family Code of
the Philippines11 on bigamy and was therefore entitled
to recognition by Philippine courts.12
xxxx
Sec. 4. Venue. The petition shall be filed in the Family
Court of the province or city where the petitioner or
the respondent has been residing for at least six
months prior to the date of filing, or in the case of a
non-resident respondent, where he may be found in
the Philippines, at the election of the petitioner. x x x
In any case, it was also Fujikis view that A.M. No. 0211-10-SC applied only to void marriages under Article
36 of the Family Code on the ground of psychological
incapacity.13 Thus, Section 2(a) of A.M. No. 02-11-10SC provides that "a petition for declaration of absolute
nullity of void marriages may be filed solely by the
husband or the wife." To apply Section 2(a) in bigamy
would be absurd because only the guilty parties would
be permitted to sue. In the words of Fujiki, "[i]t is not,
of course, difficult to realize that the party interested
in having a bigamous marriage declared a nullity
would be the husband in the prior, pre-existing
marriage."14 Fujiki had material interest and therefore
the personality to nullify a bigamous marriage.
The RTC ruled, without further explanation, that the

petition was in "gross violation" of the above
provisions. The trial court based its dismissal on
Section 5(4) of A.M. No. 02-11-10-SC which provides
that "[f]ailure to comply with any of the preceding
requirements may be a ground for immediate
dismissal of the petition."8 Apparently, the RTC took
the view that only "the husband or the wife," in this
case either Maekara or Marinay, can file the petition to
declare their marriage void, and not Fujiki.
Fujiki argued that Rule 108 (Cancellation or Correction

of Entries in the Civil Registry) of the Rules of Court is
applicable. Rule 108 is the "procedural
implementation" of the Civil Register Law (Act No.
3753)15 in relation to Article 413 of the Civil Code.16
The Civil Register Law imposes a duty on the
"successful petitioner for divorce or annulment of
marriage to send a copy of the final decree of the
court to the local registrar of the municipality where
the dissolved or annulled marriage was solemnized."17
Section 2 of Rule 108 provides that entries in the civil
registry relating to "marriages," "judgments of
annulments of marriage" and "judgments declaring
marriages void from the beginning" are subject to
cancellation or correction.18 The petition in the RTC
sought (among others) to annotate the judgment of
Fujiki moved that the Order be reconsidered. He

argued that A.M. No. 02-11-10-SC contemplated
ordinary civil actions for declaration of nullity and
annulment of marriage. Thus, A.M. No. 02-11-10-SC
does not apply. A petition for recognition of foreign
judgment is a special proceeding, which "seeks to
establish a status, a right or a particular fact,"9 and
not a civil action which is "for the enforcement or
protection of a right, or the prevention or redress of a
wrong."10 In other words, the petition in the RTC
sought to establish (1) the status and concomitant
rights of Fujiki and Marinay as husband and wife and
(2) the fact of the rendition of the Japanese Family
Court judgment declaring the marriage between
Marinay and Maekara as void on the ground of bigamy.
35
the Japanese Family Court on the certificate of

marriage between Marinay and Maekara.
The RTC further justified its motu proprio dismissal of

the petition based on Braza v. The City Civil Registrar
of Himamaylan City, Negros Occidental.25 The Court in
Braza ruled that "[i]n a special proceeding for
correction of entry under Rule 108 (Cancellation or
Correction of Entries in the Original Registry), the trial
court has no jurisdiction to nullify marriages x x x."26
Braza emphasized that the "validity of marriages as
well as legitimacy and filiation can be questioned only
in a direct action seasonably filed by the proper party,
and not through a collateral attack such as [a] petition
[for correction of entry] x x x."27
Fujikis motion for reconsideration in the RTC also

asserted that the trial court "gravely erred" when, on
its own, it dismissed the petition based on improper
venue. Fujiki stated that the RTC may be confusing the
concept of venue with the concept of jurisdiction,
because it is lack of jurisdiction which allows a court to
dismiss a case on its own. Fujiki cited Dacoycoy v.
Intermediate Appellate Court19 which held that the
"trial court cannot pre-empt the defendants
prerogative to object to the improper laying of the
venue by motu proprio dismissing the case."20
Moreover, petitioner alleged that the trial court should
not have "immediately dismissed" the petition under
Section 5 of A.M. No. 02-11-10-SC because he
substantially complied with the provision.
The RTC considered the petition as a collateral attack

on the validity of marriage between Marinay and
Maekara. The trial court held that this is a
"jurisdictional ground" to dismiss the petition.28
Moreover, the verification and certification against
forum shopping of the petition was not authenticated
as required under Section 529 of A.M. No. 02-11-10-SC.
Hence, this also warranted the "immediate dismissal"
of the petition under the same provision.
On 2 March 2011, the RTC resolved to deny petitioners

motion for reconsideration. In its Resolution, the RTC
stated that A.M. No. 02-11-10-SC applies because the
petitioner, in effect, prays for a decree of absolute
nullity of marriage.21 The trial court reiterated its two
grounds for dismissal, i.e. lack of personality to sue
and improper venue under Sections 2(a) and 4 of A.M.
No. 02-11-10-SC. The RTC considered Fujiki as a "third
person"22 in the proceeding because he "is not the
husband in the decree of divorce issued by the
Japanese Family Court, which he now seeks to be
judicially recognized, x x x."23 On the other hand, the
RTC did not explain its ground of impropriety of venue.
It only said that "[a]lthough the Court cited Sec. 4
(Venue) x x x as a ground for dismissal of this case[,] it
should be taken together with the other ground cited
by the Court x x x which is Sec. 2(a) x x x."24
The Manifestation and Motion of the Office of the

Solicitor General and the Letters of Marinay and
Maekara
On 30 May 2011, the Court required respondents to file
their comment on the petition for review.30 The public
respondents, the Local Civil Registrar of Quezon City
and the Administrator and Civil Registrar General of
the NSO, participated through the Office of the
Solicitor General. Instead of a comment, the Solicitor
General filed a Manifestation and Motion.31
36
The Solicitor General agreed with the petition. He

prayed that the RTCs "pronouncement that the
petitioner failed to comply with x x x A.M. No. 02-1110-SC x x x be set aside" and that the case be
reinstated in the trial court for further proceedings.32
The Solicitor General argued that Fujiki, as the spouse
of the first marriage, is an injured party who can sue to
declare the bigamous marriage between Marinay and
Maekara void. The Solicitor General cited Juliano-Llave
v. Republic33 which held that Section 2(a) of A.M. No.
02-11-10-SC does not apply in cases of bigamy. In
Juliano-Llave, this Court explained:
foreign divorce decree may be made in a Rule 108

proceeding itself, as the object of special proceedings
(such as that in Rule 108 of the Rules of Court) is
precisely to establish the status or right of a party or a
particular fact."37 While Corpuz concerned a foreign
divorce decree, in the present case the Japanese
Family Court judgment also affected the civil status of
the parties, especially Marinay, who is a Filipino
citizen.
The Solicitor General asserted that Rule 108 of the
Rules of Court is the procedure to record "[a]cts,
events and judicial decrees concerning the civil status
of persons" in the civil registry as required by Article
407 of the Civil Code. In other words, "[t]he law
requires the entry in the civil registry of judicial
decrees that produce legal consequences upon a
persons legal capacity and status x x x."38 The
Japanese Family Court judgment directly bears on the
civil status of a Filipino citizen and should therefore be
proven as a fact in a Rule 108 proceeding.
[t]he subsequent spouse may only be expected to take

action if he or she had only discovered during the
connubial period that the marriage was bigamous, and
especially if the conjugal bliss had already vanished.
Should parties in a subsequent marriage benefit from
the bigamous marriage, it would not be expected that
they would file an action to declare the marriage void
and thus, in such circumstance, the "injured spouse"
who should be given a legal remedy is the one in a
subsisting previous marriage. The latter is clearly the
aggrieved party as the bigamous marriage not only
threatens the financial and the property ownership
aspect of the prior marriage but most of all, it causes
an emotional burden to the prior spouse. The
subsequent marriage will always be a reminder of the
infidelity of the spouse and the disregard of the prior
marriage which sanctity is protected by the
Constitution.34
Moreover, the Solicitor General argued that there is no

jurisdictional infirmity in assailing a void marriage
under Rule 108, citing De Castro v. De Castro39 and
Nial v. Bayadog40 which declared that "[t]he validity
of a void marriage may be collaterally attacked."41
Marinay and Maekara individually sent letters to the
Court to comply with the directive for them to
comment on the petition.42 Maekara wrote that
Marinay concealed from him the fact that she was
previously married to Fujiki.43 Maekara also denied
that he inflicted any form of violence on Marinay.44 On
the other hand, Marinay wrote that she had no reason
to oppose the petition.45 She would like to maintain
The Solicitor General contended that the petition to

recognize the Japanese Family Court judgment may be
made in a Rule 108 proceeding.35 In Corpuz v. Santo
Tomas,36 this Court held that "[t]he recognition of the
37
her silence for fear that anything she say might cause
misunderstanding between her and Fujiki.46
I.
The Issues
For Philippine courts to recognize a foreign judgment

relating to the status of a marriage where one of the
parties is a citizen of a foreign country, the petitioner
only needs to prove the foreign judgment as a fact
under the Rules of Court. To be more specific, a copy of
the foreign judgment may be admitted in evidence and
proven as a fact under Rule 132, Sections 24 and 25,
in relation to Rule 39, Section 48(b) of the Rules of
Court.49 Petitioner may prove the Japanese Family
Court judgment through (1) an official publication or
(2) a certification or copy attested by the officer who
has custody of the judgment. If the office which has
custody is in a foreign country such as Japan, the
certification may be made by the proper diplomatic or
consular officer of the Philippine foreign service in
Japan and authenticated by the seal of office.50
Petitioner raises the following legal issues:

(1) Whether the Rule on Declaration of Absolute Nullity
of Void Marriages and Annulment of Voidable Marriages
(A.M. No. 02-11-10-SC) is applicable.
(2) Whether a husband or wife of a prior marriage can
file a petition to recognize a foreign judgment
nullifying the subsequent marriage between his or her
spouse and a foreign citizen on the ground of bigamy.
(3) Whether the Regional Trial Court can recognize the
foreign judgment in a proceeding for cancellation or
correction of entries in the Civil Registry under Rule
108 of the Rules of Court.
To hold that A.M. No. 02-11-10-SC applies to a petition

for recognition of foreign judgment would mean that
the trial court and the parties should follow its
provisions, including the form and contents of the
petition,51 the service of summons,52 the
investigation of the public prosecutor,53 the setting of
pre-trial,54 the trial55 and the judgment of the trial
court.56 This is absurd because it will litigate the case
anew. It will defeat the purpose of recognizing foreign
judgments, which is "to limit repetitive litigation on
claims and issues."57 The interpretation of the RTC is
tantamount to relitigating the case on the merits. In
Mijares v. Raada,58 this Court explained that "[i]f
every judgment of a foreign court were reviewable on
the merits, the plaintiff would be forced back on
The Ruling of the Court

We grant the petition.
The Rule on Declaration of Absolute Nullity of Void
Marriages and Annulment of Voidable Marriages (A.M.
No. 02-11-10-SC) does not apply in a petition to
recognize a foreign judgment relating to the status of a
marriage where one of the parties is a citizen of a
foreign country. Moreover, in Juliano-Llave v.
Republic,47 this Court held that the rule in A.M. No. 0211-10-SC that only the husband or wife can file a
declaration of nullity or annulment of marriage "does
not apply if the reason behind the petition is
bigamy."48
38
his/her original cause of action, rendering immaterial

the previously concluded litigation."59
creates a "presumptive evidence of a right as between

the parties and their successors in interest by a
subsequent title." Moreover, Section 48 of the Rules of
Court states that "the judgment or final order may be
law or fact." Thus, Philippine courts exercise limited
review on foreign judgments. Courts are not allowed to
delve into the merits of a foreign judgment. Once a
foreign judgment is admitted and proven in a
Philippine court, it can only be repelled on grounds
external to its merits, i.e. , "want of jurisdiction, want
of notice to the party, collusion, fraud, or clear mistake
of law or fact." The rule on limited review embodies
the policy of efficiency and the protection of party
expectations,61 as well as respecting the jurisdiction
of other states.62
A foreign judgment relating to the status of a marriage

affects the civil status, condition and legal capacity of
its parties. However, the effect of a foreign judgment is
not automatic. To extend the effect of a foreign
judgment in the Philippines, Philippine courts must
determine if the foreign judgment is consistent with
domestic public policy and other mandatory laws.60
Article 15 of the Civil Code provides that "[l]aws
relating to family rights and duties, or to the status,
condition and legal capacity of persons are binding
upon citizens of the Philippines, even though living
abroad." This is the rule of lex nationalii in private
international law. Thus, the Philippine State may
require, for effectivity in the Philippines, recognition by
Philippine courts of a foreign judgment affecting its
citizen, over whom it exercises personal jurisdiction
relating to the status, condition and legal capacity of
such citizen.
Since 1922 in Adong v. Cheong Seng Gee,63 Philippine

courts have recognized foreign divorce decrees
between a Filipino and a foreign citizen if they are
successfully proven under the rules of evidence.64
Divorce involves the dissolution of a marriage, but the
recognition of a foreign divorce decree does not
involve the extended procedure under A.M. No. 02-1110-SC or the rules of ordinary trial. While the
Philippines does not have a divorce law, Philippine
courts may, however, recognize a foreign divorce
decree under the second paragraph of Article 26 of the
Family Code, to capacitate a Filipino citizen to remarry
when his or her foreign spouse obtained a divorce
decree abroad.65
A petition to recognize a foreign judgment declaring a

marriage void does not require relitigation under a
Philippine court of the case as if it were a new petition
for declaration of nullity of marriage. Philippine courts
cannot presume to know the foreign laws under which
the foreign judgment was rendered. They cannot
substitute their judgment on the status, condition and
legal capacity of the foreign citizen who is under the
jurisdiction of another state. Thus, Philippine courts
can only recognize the foreign judgment as a fact
according to the rules of evidence.
There is therefore no reason to disallow Fujiki to simply

prove as a fact the Japanese Family Court judgment
nullifying the marriage between Marinay and Maekara
Section 48(b), Rule 39 of the Rules of Court provides

that a foreign judgment or final order against a person
39
on the ground of bigamy. While the Philippines has no

divorce law, the Japanese Family Court judgment is
fully consistent with Philippine public policy, as
bigamous marriages are declared void from the
beginning under Article 35(4) of the Family Code.
Bigamy is a crime under Article 349 of the Revised
Penal Code. Thus, Fujiki can prove the existence of the
Japanese Family Court judgment in accordance with
Rule 132, Sections 24 and 25, in relation to Rule 39,
Section 48(b) of the Rules of Court.
Sec. 1. Who may file petition. Any person interested

in any act, event, order or decree concerning the civil
status of persons which has been recorded in the civil
register, may file a verified petition for the cancellation
or correction of any entry relating thereto, with the
Regional Trial Court of the province where the
corresponding civil registry is located. (Emphasis
supplied)
Fujiki has the personality to file a petition to recognize
the Japanese Family Court judgment nullifying the
marriage between Marinay and Maekara on the ground
of bigamy because the judgment concerns his civil
status as married to Marinay. For the same reason he
has the personality to file a petition under Rule 108 to
cancel the entry of marriage between Marinay and
Maekara in the civil registry on the basis of the decree
of the Japanese Family Court.
II.
Since the recognition of a foreign judgment only
requires proof of fact of the judgment, it may be made
in a special proceeding for cancellation or correction of
entries in the civil registry under Rule 108 of the Rules
of Court. Rule 1, Section 3 of the Rules of Court
provides that "[a] special proceeding is a remedy by
which a party seeks to establish a status, a right, or a
particular fact." Rule 108 creates a remedy to rectify
facts of a persons life which are recorded by the State
pursuant to the Civil Register Law or Act No. 3753.
These are facts of public consequence such as birth,
death or marriage,66 which the State has an interest
in recording. As noted by the Solicitor General, in
Corpuz v. Sto. Tomas this Court declared that "[t]he
recognition of the foreign divorce decree may be made
in a Rule 108 proceeding itself, as the object of special
proceedings (such as that in Rule 108 of the Rules of
Court) is precisely to establish the status or right of a
party or a particular fact."67
There is no doubt that the prior spouse has a personal

and material interest in maintaining the integrity of the
marriage he contracted and the property relations
arising from it. There is also no doubt that he is
interested in the cancellation of an entry of a
bigamous marriage in the civil registry, which
compromises the public record of his marriage. The
interest derives from the substantive right of the
spouse not only to preserve (or dissolve, in limited
instances68) his most intimate human relation, but
also to protect his property interests that arise by
operation of law the moment he contracts marriage.69
These property interests in marriage include the right
to be supported "in keeping with the financial capacity
of the family"70 and preserving the property regime of
the marriage.71
Rule 108, Section 1 of the Rules of Court states:
40
Property rights are already substantive rights

protected by the Constitution,72 but a spouses right
in a marriage extends further to relational rights
recognized under Title III ("Rights and Obligations
between Husband and Wife") of the Family Code.73
A.M. No. 02-11-10-SC cannot "diminish, increase, or
modify" the substantive right of the spouse to maintain
the integrity of his marriage.74 In any case, Section
2(a) of A.M. No. 02-11-10-SC preserves this
substantive right by limiting the personality to sue to
the husband or the wife of the union recognized by
law.
criminal action which leads to the declaration of nullity

of a bigamous marriage,78 there is more reason to
confer personality to sue on the husband or the wife of
a subsisting marriage. The prior spouse does not only
share in the public interest of prosecuting and
preventing crimes, he is also personally interested in
the purely civil aspect of protecting his marriage.
When the right of the spouse to protect his marriage is
violated, the spouse is clearly an injured party and is
therefore interested in the judgment of the suit.79
Juliano-Llave ruled that the prior spouse "is clearly the
an emotional burden to the prior spouse."80 Being a
real party in interest, the prior spouse is entitled to sue
in order to declare a bigamous marriage void. For this
purpose, he can petition a court to recognize a foreign
judgment nullifying the bigamous marriage and
judicially declare as a fact that such judgment is
effective in the Philippines. Once established, there
should be no more impediment to cancel the entry of
the bigamous marriage in the civil registry.
Section 2(a) of A.M. No. 02-11-10-SC does not preclude

a spouse of a subsisting marriage to question the
validity of a subsequent marriage on the ground of
bigamy. On the contrary, when Section 2(a) states that
"[a] petition for declaration of absolute nullity of void
marriage may be filed solely by the husband or the
wife"75it refers to the husband or the wife of the
subsisting marriage. Under Article 35(4) of the Family
Code, bigamous marriages are void from the
beginning. Thus, the parties in a bigamous marriage
are neither the husband nor the wife under the law.
The husband or the wife of the prior subsisting
marriage is the one who has the personality to file a
petition for declaration of absolute nullity of void
marriage under Section 2(a) of A.M. No. 02-11-10-SC.
III.
In Braza v. The City Civil Registrar of Himamaylan City,
Negros Occidental, this Court held that a "trial court
has no jurisdiction to nullify marriages" in a special
proceeding for cancellation or correction of entry
under Rule 108 of the Rules of Court.81 Thus, the
"validity of marriage[] x x x can be questioned only in
a direct action" to nullify the marriage.82 The RTC
relied on Braza in dismissing the petition for
Article 35(4) of the Family Code, which declares

bigamous marriages void from the beginning, is the
civil aspect of Article 349 of the Revised Penal Code,76
which penalizes bigamy. Bigamy is a public crime.
Thus, anyone can initiate prosecution for bigamy
because any citizen has an interest in the prosecution
and prevention of crimes.77 If anyone can file a
41
recognition of foreign judgment as a collateral attack

on the marriage between Marinay and Maekara.
substantive and procedural safeguards of marriage

under Philippine law, nor of the jurisdiction of Family
Courts under R.A. No. 8369. A recognition of a foreign
judgment is not an action to nullify a marriage. It is an
action for Philippine courts to recognize the effectivity
of a foreign judgment, which presupposes a case
which was already tried and decided under foreign law.
The procedure in A.M. No. 02-11-10-SC does not apply
in a petition to recognize a foreign judgment annulling
a bigamous marriage where one of the parties is a
citizen of the foreign country. Neither can R.A. No.
8369 define the jurisdiction of the foreign court.
Braza is not applicable because Braza does not involve

a recognition of a foreign judgment nullifying a
bigamous marriage where one of the parties is a
citizen of the foreign country.
To be sure, a petition for correction or cancellation of
an entry in the civil registry cannot substitute for an
action to invalidate a marriage. A direct action is
necessary to prevent circumvention of the substantive
and procedural safeguards of marriage under the
Family Code, A.M. No. 02-11-10-SC and other related
laws. Among these safeguards are the requirement of
proving the limited grounds for the dissolution of
marriage,83 support pendente lite of the spouses and
children,84 the liquidation, partition and distribution of
the properties of the spouses,85 and the investigation
of the public prosecutor to determine collusion.86 A
direct action for declaration of nullity or annulment of
marriage is also necessary to prevent circumvention of
the jurisdiction of the Family Courts under the Family
Courts Act of 1997 (Republic Act No. 8369), as a
petition for cancellation or correction of entries in the
civil registry may be filed in the Regional Trial Court
"where the corresponding civil registry is located."87
In other words, a Filipino citizen cannot dissolve his
marriage by the mere expedient of changing his entry
of marriage in the civil registry.
Article 26 of the Family Code confers jurisdiction on

Philippine courts to extend the effect of a foreign
divorce decree to a Filipino spouse without undergoing
trial to determine the validity of the dissolution of the
marriage. The second paragraph of Article 26 of the
Family Code provides that "[w]here a marriage
between a Filipino citizen and a foreigner is validly
celebrated and a divorce is thereafter validly obtained
abroad by the alien spouse capacitating him or her to
remarry, the Filipino spouse shall have capacity to
remarry under Philippine law." In Republic v.
Orbecido,88 this Court recognized the legislative intent
of the second paragraph of Article 26 which is "to
obtaining a divorce, is no longer married to the Filipino
spouse"89 under the laws of his or her country. The
second paragraph of Article 26 of the Family Code only
authorizes Philippine courts to adopt the effects of a
foreign divorce decree precisely because the
Philippines does not allow divorce. Philippine courts
cannot try the case on the merits because it is
tantamount to trying a case for divorce.
However, this does not apply in a petition for

correction or cancellation of a civil registry entry based
on the recognition of a foreign judgment annulling a
marriage where one of the parties is a citizen of the
foreign country. There is neither circumvention of the
42
Moreover, notwithstanding Article 26 of the Family

Code, Philippine courts already have jurisdiction to
extend the effect of a foreign judgment in the
Philippines to the extent that the foreign judgment
does not contravene domestic public policy. A critical
difference between the case of a foreign divorce
decree and a foreign judgment nullifying a bigamous
marriage is that bigamy, as a ground for the nullity of
marriage, is fully consistent with Philippine public
policy as expressed in Article 35(4) of the Family Code
and Article 349 of the Revised Penal Code. The Filipino
spouse has the option to undergo full trial by filing a
petition for declaration of nullity of marriage under
A.M. No. 02-11-10-SC, but this is not the only remedy
available to him or her. Philippine courts have
jurisdiction to recognize a foreign judgment nullifying a
bigamous marriage, without prejudice to a criminal
prosecution for bigamy.
The second paragraph of Article 26 is only a corrective

measure to address the anomaly that results from a
marriage between a Filipino, whose laws do not allow
divorce, and a foreign citizen, whose laws allow
divorce. The anomaly consists in the Filipino spouse
being tied to the marriage while the foreign spouse is
free to marry under the laws of his or her country. The
correction is made by extending in the Philippines the
effect of the foreign divorce decree, which is already
effective in the country where it was rendered. The
second paragraph of Article 26 of the Family Code is
based on this Courts decision in Van Dorn v. Romillo90
which declared that the Filipino spouse "should not be
discriminated against in her own country if the ends of
justice are to be served."91
The principle in Article 26 of the Family Code applies in
a marriage between a Filipino and a foreign citizen who
obtains a foreign judgment nullifying the marriage on
the ground of bigamy. The Filipino spouse may file a
petition abroad to declare the marriage void on the
ground of bigamy. The principle in the second
paragraph of Article 26 of the Family Code applies
because the foreign spouse, after the foreign judgment
nullifying the marriage, is capacitated to remarry
under the laws of his or her country. If the foreign
judgment is not recognized in the Philippines, the
Filipino spouse will be discriminatedthe foreign
spouse can remarry while the Filipino spouse cannot
remarry.
In the recognition of foreign judgments, Philippine

courts are incompetent to substitute their judgment on
how a case was decided under foreign law. They
cannot decide on the "family rights and duties, or on
the status, condition and legal capacity" of the foreign
citizen who is a party to the foreign judgment. Thus,
Philippine courts are limited to the question of whether
to extend the effect of a foreign judgment in the
Philippines. In a foreign judgment relating to the status
of a marriage involving a citizen of a foreign country,
Philippine courts only decide whether to extend its
effect to the Filipino party, under the rule of lex
nationalii expressed in Article 15 of the Civil Code.
Under the second paragraph of Article 26 of the Family

Code, Philippine courts are empowered to correct a
situation where the Filipino spouse is still tied to the
marriage while the foreign spouse is free to marry.
For this purpose, Philippine courts will only determine

(1) whether the foreign judgment is inconsistent with
an overriding public policy in the Philippines; and (2)
43
whether any alleging party is able to prove an extrinsic

ground to repel the foreign judgment, i.e. want of
jurisdiction, want of notice to the party, collusion,
fraud, or clear mistake of law or fact. If there is neither
inconsistency with public policy nor adequate proof to
repel the judgment, Philippine courts should, by
default, recognize the foreign judgment as part of the
comity of nations. Section 48(b), Rule 39 of the Rules
of Court states that the foreign judgment is already
"presumptive evidence of a right between the parties."
Upon recognition of the foreign judgment, this right
becomes conclusive and the judgment serves as the
basis for the correction or cancellation of entry in the
civil registry. The recognition of the foreign judgment
nullifying a bigamous marriage is a subsequent event
that establishes a new status, right and fact92 that
needs to be reflected in the civil registry. Otherwise,
there will be an inconsistency between the recognition
of the effectivity of the foreign judgment and the
public records in the Philippines.1wphi1
Sections 4 and 5, respectively, of A.M. No. 02-11-10SC.
However, the recognition of a foreign judgment

nullifying a bigamous marriage is without prejudice to
prosecution for bigamy under Article 349 of the
Revised Penal Code.93 The recognition of a foreign
judgment nullifying a bigamous marriage is not a
ground for extinction of criminal liability under Articles
89 and 94 of the Revised Penal Code. Moreover, under
Article 91 of the Revised Penal Code, "[t]he term of
prescription [of the crime of bigamy] shall not run
when the offender is absent from the Philippine
archipelago."
2 In Pasay City, Metro Manila.
WHEREFORE, we GRANT the petition. The Order dated

31 January 2011 and the Resolution dated 2 March
2011 of the Regional Trial Court, Branch 107, Quezon
City, in Civil Case No. Q-11-68582 are REVERSED and
SET ASIDE. The Regional Trial Court is ORDERED to
REINSTATE the petition for further proceedings in
accordance with this Decision.
SO ORDERED.
Brion, Del Castillo, Perez, and Perlas-Bernabe, JJ.,
concur.
Footnotes
1 Penned by Judge Jose L. Bautista Jr.
3 See rollo, p. 88; Trial Family Court Decree No. 15 of

2009, Decree of Absolute Nullity of Marriage between
Maria Paz Galela Marinay and Shinichi Maekara dated
18 August 2010. Translated by Yoshiaki Kurisu, Kurisu
Gyoseishoshi Lawyers Office (see rollo, p. 89).
4 Id.
5 FAMILY CODE OF THE PHILIPPINES (E.O. No. 209 as
amended):
Since A.M. No. 02-11-10-SC is inapplicable, the Court

no longer sees the need to address the questions on
venue and the contents and form of the petition under
Art. 35. The following marriages shall be void from the

beginning:
44
Sec. 5. Contents and form of petition. (1) The petition

shall allege the complete facts constituting the cause
of action.
xxxx
(4) Those bigamous or polygamous marriages not
falling under Article 41;
(2) It shall state the names and ages of the common

children of the parties and specify the regime
governing their property relations, as well as the
properties involved.
xxxx
Art. 41. A marriage contracted by any person during
subsistence of a previous marriage shall be null and
void, unless before the celebration of the subsequent
marriage, the prior spouse had been absent for four
consecutive years and the spouse present has a wellfounded belief that the absent spouse was already
dead. In case of disappearance where there is danger
of death under the circumstances set forth in the
provisions of Article 391 of the Civil Code, an absence
of only two years shall be sufficient.
If there is no adequate provision in a written

agreement between the parties, the petitioner may
apply for a provisional order for spousal support,
custody and support of common children, visitation
rights, administration of community or conjugal
property, and other matters similarly requiring urgent
action.
(3) It must be verified and accompanied by a
certification against forum shopping. The verification
and certification must be signed personally by the
petitioner. No petition may be filed solely by counsel or
through an attorney-in-fact.
6 Rollo, pp. 79-80.

7 The dispositive portion stated:
WHEREFORE, the instant case is hereby ordered
DISMISSED and WITHDRAWN from the active civil
docket of this Court. The RTC-OCC, Quezon City is
directed to refund to the petitioner the amount of One
Thousand Pesos (P1,000) to be taken from the Sheriffs
Trust Fund.
If the petitioner is in a foreign country, the verification

and certification against forum shopping shall be
authenticated by the duly authorized officer of the
Philippine embassy or legation, consul general, consul
or vice-consul or consular agent in said country.
(4) It shall be filed in six copies. The petitioner shall
serve a copy of the petition on the Office of the
Solicitor General and the Office of the City or Provincial
Prosecutor, within five days from the date of its filing
and submit to the court proof of such service within
the same period.
8 Rollo, pp. 44-45. Section 5 of the Rule on Declaration

of Absolute Nullity of Void Marriages and Annulment of
Voidable Marriages (A.M. No. 02-11-10-SC) provides:
45
Failure to comply with any of the preceding

dismissal of the petition.
17 Act No. 3753, Sec. 7. Registration of marriage. - All

civil officers and priests or ministers authorized to
solemnize marriages shall send a copy of each
marriage contract solemnized by them to the local civil
registrar within the time limit specified in the existing
Marriage Law.
9 RULES OF COURT, Rule 1, Sec. 3(c). See rollo, pp. 5556 (Petitioners Motion for Reconsideration).
10 RULES OF COURT, Rule 1, Sec. 3(a).
In cases of divorce and annulment of marriage, it shall

be the duty of the successful petitioner for divorce or
annulment of marriage to send a copy of the final
decree of the court to the local civil registrar of the
municipality where the dissolved or annulled marriage
was solemnized.
11 FAMILY CODE (E.O. No. 209 as amended), Art. 35.

The following marriages shall be void from the
beginning:
xxxx
In the marriage register there shall be entered the full

name and address of each of the contracting parties,
their ages, the place and date of the solemnization of
the marriage, the names and addresses of the
witnesses, the full name, address, and relationship of
the minor contracting party or parties or the person or
persons who gave their consent to the marriage, and
the full name, title, and address of the person who
solemnized the marriage.
xxxx
12 Rollo, p. 56.
13 FAMILY CODE, 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.
In cases of divorce or annulment of marriages, there

shall be recorded the names of the parties divorced or
whose marriage was annulled, the date of the decree
of the court, and such other details as the regulations
to be issued may require.
14 Rollo, p. 68.
15 Enacted 26 November 1930.
18 RULES OF COURT, Rule 108, Sec. 2. Entries subject

to cancellation or correction. Upon good and valid
grounds, the following entries in the civil register may
be cancelled or corrected: (a) births; (b) marriages; (c)
deaths; (d) legal separations; (e) judgments of
16 CIVIL CODE, Art. 413. All other matters pertaining

to the registration of civil status shall be governed by
special laws.
46
annulments of marriage; (f) judgments declaring

marriages void from the beginning; (g) legitimations;
(h) adoptions; (i) acknowledgments of natural children;
(j) naturalization; (k) election, loss or recovery of
citizenship; (1) civil interdiction; (m) judicial
determination of filiation; (n) voluntary emancipation
of a minor; and (o) changes of name.
and certification must be signed personally by the

19 273 Phil. 1 (1991).
If the petitioner is in a foreign country, the verification

and certification against forum shopping shall be
authenticated by the duly authorized officer of the
Philippine embassy or legation, consul general, consul
or vice-consul or consular agent in said country.
20 Id. at 7. See rollo, pp. 65 and 67.
xxxx
21 Rollo, p. 47.
22 Id. at 46.

23 Id. at 48.
30 Resolution dated 30 May 2011. Rollo, p. 105.
24 Id.
31 Under Solicitor General Jose Anselmo I. Cadiz.
25 G.R. No. 181174, 4 December 2009, 607 SCRA 638.
32 Rollo, p. 137. The "Conclusion and Prayer" of the

"Manifestation and Motion (In Lieu of Comment)" of the
Solicitor General stated:
26 Id. at 641.
27 Id. at 643.
In fine, the court a quos pronouncement that the

petitioner failed to comply with the requirements
provided in A.M. No. 02-11-10-SC should accordingly
be set aside. It is, thus, respectfully prayed that Civil
Case No. Q-11-68582 be reinstated for further
proceedings.
28 See rollo, p. 49.

29 Section 5 of A.M. No. 02-11-10-SC states in part:
Contents and form of petition. x x x
Other reliefs, just and equitable under the premises

are likewise prayed for.
xxxx
(3) It must be verified and accompanied by a
33 G.R. No. 169766, 30 March 2011, 646 SCRA 637.
47
34 Id. at 656. Quoted in the Manifestation and Motion

of the Solicitor General, pp. 8-9. See rollo, pp. 132-133.
having the legal custody of the record, or by his

deputy, and accompanied, if the record is not kept in
the Philippines, with a certificate that such officer has
the custody. If the office in which the record is kept is
in a foreign country, the certificate may be made by a
secretary of the embassy or legation, consul general,
consul, vice consul, or consular agent or by any officer
in the foreign service of the Philippines stationed in the
foreign country in which the record is kept, and
authenticated by the seal of his office.
35 Rollo, p. 133.
36 G.R. No. 186571, 11 August 2010, 628 SCRA 266.
37 Id. at 287.
38 Rollo, p. 133.
39 G.R. No. 160172, 13 February 2008, 545 SCRA 162.
Sec. 25. What attestation of copy must state.

Whenever a copy of a document or record is attested
for the purpose of evidence, the attestation must
state, in substance, that the copy is a correct copy of
the original, or a specific part thereof, as the case may
be. The attestation must be under the official seal of
the attesting officer, if there be any, or if he be the
clerk of a court having a seal, under the seal of such
court.
40 384 Phil. 661 (2000).

41 De Castro v. De Castro, supra note 39 at 169.
42 Supra note 30.
44 Id.
Rule 39, Sec. 48. Effect of foreign judgments or final

orders. The effect of a judgment or final order of a
tribunal of a foreign country, having jurisdiction to
render the judgment or final order, is as follows:

46 Id.
(a) In case of a judgment or final order upon a specific

thing, the judgment or final order is conclusive upon
the title of the thing; and
47 Supra note 33.

48 Supra note 33 at 655.
(b) In case of a judgment or final order against a

49 RULES OF COURT, Rule 132, Sec. 24. Proof of official

record. The record of public documents referred to
in paragraph (a) of Section 19, when admissible for
any purpose, may be evidenced by an official
publication thereof or by a copy attested by the officer
48
In either case, the judgment or final order may be

law or fact.

agreed upon in a foreign country.
61 Mijares v. Raada, supra note 57 at 386. "Otherwise
known as the policy of preclusion, it seeks to protect
party expectations resulting from previous litigation, to
safeguard against the harassment of defendants, to
insure that the task of courts not be increased by
never-ending litigation of the same disputes, and in a
larger sense to promote what Lord Coke in the
Ferrers Case of 1599 stated to be the goal of all law:
rest and quietness." (Citations omitted)
50 See RULES OF COURT, Rule 132, Sec. 24-25. See

also Corpuz v. Santo Tomas, supra note 36 at 282.
51 A.M. No. 02-11-10-SC, Sec. 5.
52 Id., Sec. 6.
53 Id., Sec. 9.
62 Mijares v. Raada, supra note 57 at 382. "The rules

of comity, utility and convenience of nations have
established a usage among civilized states by which
final judgments of foreign courts of competent
jurisdiction are reciprocally respected and rendered
efficacious under certain conditions that may vary in
different countries." (Citations omitted)
54 Id., Sec. 11-15.

55 Id., Sec. 17-18.
56 Id., Sec. 19 and 22-23.
57 Mijares v. Raada, 495 Phil. 372, 386 (2005) citing
Eugene Scoles & Peter Hay, Conflict of Laws 916 (2nd
ed., 1982).
63 43 Phil. 43 (1922).
58 Id.
64 Corpuz v. Sto. Tomas, G.R. No. 186571, 11 August

2010, 628 SCRA 266, 280; Garcia v. Recio, 418 Phil.
723 (2001); Adong v. Cheong Seng Gee, supra.
59 Id. at 386.
65 FAMILY CODE, Art. 26. x x x
60 Civil Code, Art. 17. x x x
xxxx
Prohibitive laws concerning persons, their acts or
property, and those which have for their object public
order, public policy and good customs shall not be
rendered ineffective by laws or judgments
49
66 Act No. 3753, Sec. 1. Civil Register. A civil

register is established for recording the civil status of
persons, in which shall be entered: (a) births; (b)
deaths; (c) marriages; (d) annulments of marriages; (e)
divorces; (f) legitimations; (g) adoptions; (h)
acknowledgment of natural children; (i) naturalization;
and (j) changes of name.
74 CONSTITUTION, Art. VIII, Sec. 5(5). The Supreme

Court shall have the following powers:
xxxx
(5) Promulgate rules concerning the protection and
enforcement of constitutional rights, pleading,
practice, and procedure in all courts, the admission to
the practice of law, the integrated bar, and legal
assistance to the underprivileged. Such rules shall
provide a simplified and inexpensive procedure for the
speedy disposition of cases, shall be uniform for all
courts of the same grade, and shall not diminish,
increase, or modify substantive rights. x x x
Cf. RULES OF COURT, Rule 108, Sec. 2. Entries subject

to cancellation or correction. Upon good and valid
grounds, the following entries in the civil register may
be cancelled or corrected: (a) births; (b) marriages; (c)
deaths; (d) legal separations; (e) judgments of
annulments of marriage; (f) judgments declaring
marriages void from the beginning; (g) legitimations;
(h) adoptions; (i) acknowledgments of natural children;
(j) naturalization; (k) election, loss or recovery of
citizenship; (1) civil interdiction; (m) judicial
determination of filiation; (n) voluntary emancipation
of a minor; and (o) changes of name.
x x x x (Emphasis supplied)
75 Emphasis supplied.
76 Revised Penal Code (Act No. 3815, as amended),
Art. 349. Bigamy. - The penalty of prisin mayor shall
be imposed upon any person who shall contract a
second or subsequent marriage before the former
marriage has been legally dissolved, or before the
absent spouse has been declared presumptively dead
by means of a judgment rendered in the proper
proceedings.
67 Corpuz v. Sto. Tomas, supra note 36 at 287.

68 FAMILY CODE, Art. 35-67.
70 FAMILY CODE, Art. 195 in relation to Art. 194.
71 See supra note 69.
77 See III RAMON AQUINO, THE REVISED PENAL CODE

(1997), 518.
72 CONSTITUTION, Art. III, Sec. 1: "No person shall be

deprived of life, liberty, or property without due
process of law x x x."
78 RULES OF COURT, Rule 111, Sec. 1. Institution of

criminal and civil actions. (a) When a criminal action
is instituted, the civil action for the recovery of civil
liability arising from the offense charged shall be

50
deemed instituted with the criminal action unless the

offended party waives the civil action, reserves the
right to institute it separately or institutes the civil
action prior to the criminal action.
85 FAMILY CODE, Art. 50. The effects provided for by

paragraphs (2), (3), (4) and (5) of Article 43 and by
Article 44 shall also apply in the proper cases to
marriages which are declared ab initio or annulled by
final judgment under Articles 40 and 45.
xxxx
The final judgment in such cases shall provide for the
liquidation, partition and distribution of the properties
of the spouses, the custody and support of the
common children, and the delivery of third
presumptive legitimes, unless such matters had been
adjudicated in previous judicial proceedings.
79 Cf. RULES OF COURT, Rule 3, Sec. 2. Parties in

interest. A real party in interest is the party who
stands to be benefited or injured by the judgment in
the suit, or the party entitled to the avails of the suit.
Unless otherwise authorized by law or these Rules,
every action must be prosecuted or defended in the
name of the real party in interest.
All creditors of the spouses as well as of the absolute

community or the conjugal partnership shall be
notified of the proceedings for liquidation.
80 Juliano-Llave v. Republic, supra note 33.

81 Supra note 25.
In the partition, the conjugal dwelling and the lot on

which it is situated, shall be adjudicated in accordance
with the provisions of Articles 102 and 129.
82 Supra note 25.

83 See supra note 68.
A.M. No. 02-11-10-SC, Sec. 19. Decision. (1) If the

court renders a decision granting the petition, it shall
declare therein that the decree of absolute nullity or
decree of annulment shall be issued by the court only
after compliance with Articles 50 and 51 of the Family
Code as implemented under the Rule on Liquidation,
Partition and Distribution of Properties.
84 FAMILY CODE, Art. 49. During the pendency of the

action and in the absence of adequate provisions in a
written agreement between the spouses, the Court
shall provide for the support of the spouses and the
custody and support of their common children. The
Court shall give paramount consideration to the moral
and material welfare of said children and their choice
of the parent with whom they wish to remain as
provided to in Title IX. It shall also provide for
appropriate visitation rights of the other parent.
xxxx
86 FAMILY CODE, Art. 48. In all cases of annulment or
declaration of absolute nullity of marriage, the Court
shall order the prosecuting attorney or fiscal assigned
to it to appear on behalf of the State to take steps to
Cf. RULES OF COURT, Rule 61.
51
prevent collusion between the parties and to take care

that evidence is not fabricated or suppressed.
91 Id. at 363.
92 See RULES OF COURT, Rule 1, Sec. 3(c).
In the cases referred to in the preceding paragraph, no

judgment shall be based upon a stipulation of facts or
confession of judgment.
93 See RULES OF COURT, Rule 72, Sec. 2. Applicability

of rules of civil actions. In the absence of special
provisions, the rules provided for in ordinary actions
shall be, as far as practicable, applicable in special
proceedings.
A.M. No. 02-11-10-SC, Sec. 9. Investigation report of

public prosecutor. (1) Within one month after receipt
of the court order mentioned in paragraph (3) of
Section 8 above, the public prosecutor shall submit a
report to the court stating whether the parties are in
collusion and serve copies thereof on the parties and
their respective counsels, if any.
Rule 111, Sec. 2. When separate civil action is

suspended. x x x
If the criminal action is filed after the said civil action
has already been instituted, the latter shall be
suspended in whatever stage it may be found before
judgment on the merits. The suspension shall last until
final judgment is rendered in the criminal action.
Nevertheless, before judgment on the merits is
rendered in the civil action, the same may, upon
motion of the offended party, be consolidated with the
criminal action in the court trying the criminal action.
In case of consolidation, the evidence already adduced
in the civil action shall be deemed automatically
reproduced in the criminal action without prejudice to
the right of the prosecution to cross-examine the
witnesses presented by the offended party in the
criminal case and of the parties to present additional
evidence. The consolidated criminal and civil actions
shall be tried and decided jointly.
(2) If the public prosecutor finds that collusion exists,

he shall state the basis thereof in his report. The
parties shall file their respective comments on the
finding of collusion within ten days from receipt of a
copy of the report The court shall set the report for
hearing and if convinced that the parties are in
collusion, it shall dismiss the petition.
(3) If the public prosecutor reports that no collusion
exists, the court shall set the case for pre-trial. It shall
be the duty of the public prosecutor to appear for the
State at the pre-trial.
87 RULES OF COURT, Rule 108, Sec. 1.
88 509 Phil. 108 (2005).
During the pendency of the criminal action, the

running of the period of prescription of the civil action
which cannot be instituted separately or whose
proceeding has been suspended shall be tolled.
89 Id. at 114.
90 223 Phil. 357 (1985).
52
The extinction of the penal action does not carry with

it extinction of the civil action. However, the civil
action based on delict shall be deemed extinguished if
there is a finding in a final judgment in the criminal
action that the act or omission from which the civil
liability may arise did not exist.
4. On 16 September 2004, Yuichiro Kobayashi sought

in Japan, and was validly granted under Japaneselaws,
a divorce in respect of his marriage with petitioner. A
copy of the Divorce Certificate duly issued by the
Consulate-General of Japan and duly authenticated by
the Department of Foreign Affairs, Manila, is heretoas
Annex B and made an integral part hereof. 5. Said
Divorce Certificate was duly registered with the Office
of the Civil Registry of Manila. A copy of the
Certification dated 28 October 2005 is hereto attached
as Annex C and made an integral part hereof.
G.R. No. 195432

August 27, 2014
EDELINA T. ANDO, Petitioner,
vs.
DEPARTMENT OF FOREIGN AFFAIRS, Respondent.
DECISION
6. Believing in good faith that said divorce capacitated

her to remarry and that by such she reverted to her
single status, petitioner married Masatomi Y. Ando on
13 September 2005 in a civil wedding celebrated in
Sta. Ana, Pampanga. A copy of their Certificate of
Marriage is hereto attached as Annex D and made an
integral part hereof.
SERENO, CJ:
This is a Petition for Review under Rule 45 of the Rules
of Court, seeking the nullification of the Orders dated
14 January and 8 February 2011 issued by the Regional
Trial Court (R TC), Third Judicial Region, Branch 45,1
City of San Fernando, Pampanga, in Civil Case No. 137,
which dismissed the Petition for Declaratory Relief filed
therein.
7. In the meantime, Yuichiro Kobayashi married Ryo

Miken on 27 December 2005. A copy of the
JapaneseFamily Registry Record of Kobayashi showing
the divorce he obtained and his remarriage with Ryo
Miken, duly authenticated by the Consulate-General of
Japan and the Department of Foreign Affairs, Manila, is
hereto attached as Annex E and made an integral
part hereof.
STATEMENT OF THE FACTS AND OF THE CASE

The pertinent facts of the case, as alleged by
petitioner, are as follows:
8. Recently, petitioner applied for the renewal of her

Philippine passport to indicate her surname withher
husband Masatomi Y. Ando but she was told at the
Department of Foreign Affairs that the same cannot be
issued to her until she can prove bycompetent court
decision that her marriage with her said husband
Masatomi Y. Ando is valid until otherwise declared.
3. On 16 September 2001, petitioner married Yuichiro

Kobayashi, a Japanese National, in a civil wedding
solemnized at Candaba, Pampanga. A copy of their
Certificate of Marriage is hereto attached as Annex 'A'
and made an integral part hereof.
53
xxxx
Petitioner prays for such other just and equitable

reliefs.3
12. Prescinding from the foregoing, petitioners

marriage with her said husband Masatomi Y. Ando
musttherefore be honored, considered and declared
valid, until otherwise declared by a competent court.
Consequently, and until then, petitioner therefore is
and must be declared entitled to the issuance of a
Philippine passport under the name Edelina Ando y
Tungol. Hence, this petitioner pursuant to Rule 63 of
the Rules of Court.2
On 15 November 2010, in an Order dismissing the

Petition for want of cause and action, as well as
jurisdiction, the RTC held thus:
Records of the case would reveal that prior to
petitioners marriage to Masatomi Y. Ando, herein
petitioner was married to Yuichiro Kobayashi, a
Japanese National, in Candaba, Pampanga, on
September 16, 2001, and that though a divorce was
obtained and granted in Japan, with respect to the
their (sic) marriage, there is no showing that petitioner
herein complied with the requirements set forth in Art.
13 of the Family Code that is obtaining a judicial
recognition of the foreign decree of absolute divorce in
our country.
On 29 October 2010, petitioner filed with the RTC a

Petition for Declaratory Relief, which was later raffled
off to Branch 46. She impleaded the Department of
Foreign Affairs (DFA) as respondent and prayed for the
following reliefs before the lower court:
WHEREFORE, petitioner most respectfully prays of this
Honorable Court that after proper proceedings,
judgment be rendered, as follows:
It is therefore evident, under the foregoing

circumstances, that herein petitioner does not have
any causeof action and/or is entitled to the reliefs
prayed for under Rule 63 of the Rules of Court. In the
same vein, though there is other adequate remedy
available to the petitioner, such remedy is however
beyond the authority and jurisdiction of this court to
act upon and grant, as it isonly the family court which
is vested with such authority and jurisdiction.4
(a) declaring as valid and subsisting the marriage

between petitioner Edelina T. Ando and her husband
Masatomi Y. Ando until otherwise declared by a
competent court;
(b) declaring petitioner entitled to the issuance of a
Philippine Passport under the name "Edelina Ando y
Tungol"; and
On 3 December 2010, petitioner filed an Ex

ParteMotion for Reconsideration of the Order dated 15
November 2010. In anOrder dated 14 December 2010,
the RTC granted the motion in this wise:
(c) directing the Department ofForeign Affairs to honor

petitioners marriage to her husband Masatomi Y. Ando
and to issue a Philippine Passport to petitioner under
the name "Edelina Ando y Tungol".
54
WHEREFORE, considering that the allegations and

reliefs prayed for by the petitioner in her petition and
the instant Motion for Reconsideration falls within the
jurisdiction of the Special Family Court of this
jurisdiction and for the interest ofsubstantial justice,
the Order of the Court dated November 15, 2010 is
hereby reconsidered.
nullity of marriage is not even a requisite to make a

marriage valid.
In view of the foregoing, the dismissal of this case is
imperative.6
On 1 February 2011,petitioner filed an Ex ParteMotion
for Reconsideration of the Order dated 14 January
2011. The motion was denied by the RTC in open court
on 8 February2011, considering that neither the Office
of the Solicitor General (OSG) nor respondent was
furnished with copies of the motion.
Let the record of this case be therefore referred back

to the Office of the Clerk of Court for proper
endorsement to the Family Court of this jurisdiction for
appropriateaction and/or disposition.5 Thereafter, the
case was raffled to Branch 45 of the RTC. On 14
January 2011, the trial court dismissed the Petition
anew on the ground that petitioner had no cause of
action. The Order reads thus:
On 24 March 2011, petitioner filed the instant Petition

for Review, raising the sole issue of whether or not the
RTC erred in ruling that she had no cause of action.
The petition specifically admits that the marriage she

seeks to be declared as valid is already her second
marriage, a bigamous marriage under Article 35(4) of
the Family Codeconsidering that the first one, though
allegedly terminated by virtue of the divorce obtained
by Kobayashi, was never recognized by a Philippine
court, hence, petitioner is considered as still married to
Kobayashi. Accordingly, the second marriage with
Ando cannot be honored and considered asvalid at this
time.
Petitioner argues that under A.M. No. 02-11-10-SC, or

the Rule on the Declaration of Absolute Nullity of Void
Marriages and Annulment of Voidable Marriages, it is
solely the wife or the husband who can file a petition
for the declaration of the absolute nullity of a void
marriage. Thus, as the state is not even allowed to
filea direct petition for the declaration of the absolute
nullity of a void marriage,with even more reason can it
not collaterally attack the validity of a marriage, as in
a petition for declaratory relief. Further, petitioner
alleges that under the law, a marriage even one that
is void or voidable shall be deemed valid until
declared otherwise in a judicial proceeding.
Petitioners allegation of Sec. 2 (a) of A.M. No. 02-1110-SC is misplaced. The fact that no judicial
declaration of nullity of her marriage with Ando was
rendered does not make the same valid because such
declaration under Article 40 ofthe Family Code is
applicable onlyin case of re-marriage. More
importantly, the absence of a judicial declaration of
Petitioner also argues that assuming a court judgment

recognizing a judicial decree of divorce is required
under Article 13 of the Family Code, noncompliance
therewith is a mere irregularity in the issuance of a
marriage license. Any irregularity in the formal
55
requisites of marriage, such as with respect to the

marriage license, shall notaffect the legality of the
marriage. Petitioner further claims that all the
requisites for a petition for declaratory relief have
been complied with.
THE COURTS RULING

The Court finds the Petition to be without merit.
First, with respect to her prayer tocompel the DFA to
issue her passport, petitioner incorrectly filed a
petition for declaratory relief before the RTC. She
should have first appealed before the Secretary of
Foreign Affairs, since her ultimate entreaty was
toquestion the DFAs refusal to issue a passport to her
under her second husbands name.
With respect to the failure to furnish a copy of the Ex

ParteMotion for Reconsideration to the OSG and the
DFA, petitioner avers that at the time of the filing, the
RTC had yet to issue a summons to respondent; thus, it
had yet to acquire jurisdiction over them.
Thereafter, the DFA, through the OSG, filed a Comment
on the Petition. The latter raised the following
arguments: (1) the Petition was improperly verified, as
the juratin the Verification thereof only stated that the
affiant had exhibited "her currentand valid proof of
identity," which proof was not properly indicated,
however; (2) prior judicial recognition by a Philippine
court of a divorce decree obtained by the alien spouse
is required before a Filipino spouse can remarry and be
entitled to the legal effects of remarriage; (3)
petitioner failed to show that she had first exhausted
all available administrative remedies, such as
appealing to the Secretary of the DFA under Republic
Act No. (R.A.) 8239, or the Philippine Passport Act of
1996, before resorting to the special civil action of
declaratory relief; and (4) petitioners Motion for
Reconsideration before the RTC was a mere scrap of
paper and did not toll the running of the period to
appeal. Hence, the RTC Order dated 14 January 2011 is
now final.
Under the Implementing Rules and Regulations (IRR) of

R.A. 8239, which was adopted on 25 February 1997,
the following are the additional documentary
requirements before a married woman may obtain a
passport under the name of her spouse:
SECTION 2. The issuance of passports to married,
divorced or widowed women shall be made
inaccordance with the following provisions:
a) In case of a woman who is married and who decides
to adopt the surname of her husband pursuant to Art.
370 of Republic Act No. 386, she must present the
original or certifiedtrue copy of her marriage contract,
and one photocopy thereof.
In addition thereto, a Filipino who contracts marriage in
the Philippines to a foreigner, shall be required to
present a Certificate of Attendance in a Guidance and
Counselling Seminar conducted by the CFO when
applying for a passport for the first time.
On 29 November 2011, petitioner filed her Reply to the

Comment, addressing the issues raised therein.
b) In case of annulment of marriage, the applicant

must present a certified true copy of her annotated
56
Marriage Contract or Certificate of Registration and the

Court Order effecting the annulment.
second husbands name.1wphi1 Should her

application for a passport be denied, the remedies
available to her are provided in Section 9 of R.A. 8239,
which reads thus:
c) In case of a woman who was divorced by her alien

husband, she must present a certified true copy of the
Divorce Decree duly authenticated by the Philippine
Embassy or consular post which has jurisdiction over
the place where the divorce is obtained or by the
concerned foreign diplomatic or consular mission in
the Philippines.
Sec. 9. Appeal. Any person who feels aggrieved as a

result of the application of this Act of the implementing
rules and regulations issued by the Secretary shall
have the right to appeal to the Secretary of Foreign
Affairs from whose decision judicial review may be had
to the Courts in due course.
When the divorcee is a Filipino Muslim, she must

present a certified true copy of the Divorce Decree or a
certified true copy of the Certificate of Divorce from
the Shariah Court or the OCRG. d) In the event that
marriage is dissolved by the death of the husband, the
applicant must present the original or certified true
copy of the Death Certificate of the husband or the
Declaration of Presumptive Death by a Civil or Shariah
Court, in which case the applicant may choose to
continue to use her husbands surname or resume the
use of her maiden surname. From the above
provisions, it is clear that for petitioner to obtain a
copy of her passport under her married name, all she
needed to present were the following: (1) the original
or certified true copyof her marriage contract and one
photocopy thereof; (2) a Certificate of Attendance in a
Guidance and Counseling Seminar, if applicable; and
(3) a certified true copy of the Divorce Decree duly
authenticated by the Philippine Embassy or consular
post that has jurisdiction over the place where the
divorce is obtained or by the concerned foreign
diplomatic or consular mission in the Philippines.
The IRR further provides in detail:

ARTICLE 10
Appeal
In the event that an application for a passport is
denied, or an existing one cancelled or restricted, the
applicant or holder thereof shall have the right to
appeal in writing to the Secretary within fifteen (15)
days from notice of denial, cancellation or restriction.
Clearly, she should have filed anappeal with the
Secretary of the DFA in the event of the denial of her
application for a passport, after having complied with
the provisions of R.A. 8239. Petitioners argument that
her application "cannot be said to havebeen either
denied, cancelled or restricted by [the DFA ], so as to
make her an aggrieved party entitled to appeal",7 as
instead she "was merely told"8 that her passport
cannot be issued, does not persuade. The law provides
a direct recourse for petitioner in the event of the
denial of her application.
In this case, petitioner was allegedly told that she

would not be issued a Philippine passport under her
57
Second, with respect to her prayer for the recognition

of her second marriage as valid, petitioner should have
filed, instead, a petition for the judicial recognition of
her foreign divorce from her first husband.
SO ORDERED.
In Garcia v. Recio,9 we ruled that a divorce obtained

abroad by an alien may be recognized in our
jurisdiction, provided the decree is valid according to
the national law of the foreigner. The presentation
solely of the divorce decree is insufficient; both the
divorce decree and the governing personal law of the
alien spouse who obtained the divorce must be
proven. Because our courts do not take judicial notice
of foreign laws and judgment, our law on evidence
requires that both the divorce decree and the national
law of the alien must be alleged and proven and like
any other fact.10
WE CONCUR:
While it has been ruled that a petition for the authority

to remarry filed before a trial court actually constitutes
a petition for declaratory relief,11 we are still unable to
grant the prayer of petitioner. As held by the RTC,
there appears to be insufficient proof or evidence
presented on record of both the national law of her
first husband, Kobayashi, and of the validity of the
divorce decree under that national law.12 Hence, any
declaration as to the validity of the divorce can only be
made upon her complete submission of evidence
proving the divorce decree and the national law of her
alien spouse, in an action instituted in the proper
forum.
Pursuant to Section 13 Article VIII of the Constitution, I

certify that the conclusions in the above Decision had
assigned to the writer of the opinion of the Court's
Division.
MARIA LOURDES P. A. SERENO

Chief Justice, Chairperson
TERESITA J. LEONARDO-DE CASTRO

Associate Justice
LUCAS P. BERSAMIN
Associate Justice JOSE PORTUGAL PEREZ
Associate Justice
JOSE C. MENDOZA*
Associate Justice
CERTIFICATION

Chief Justice
Footnotes
* Designated additional member in l!eu of Associate
Justice Estela M. Pelas-Bernabe per S.O. No. 1754
dated 18 August 2014.
WHEREFORE, the instant Petition is DENIED without

prejudice to petitioner's recourse to the proper
remedies available.
1 The Petition before the RTC was initially raffled to

Branch 46, but was later transferred to Branch 45.
58
May the heirs of a deceased person file a petition for

the declaration of nullity of his marriage after his
death?
2 Rollo, pp. 10-12.

3 Id. at 38-39.
Pepito Nial was married to Teodulfa Bellones on

September 26, 1974. Out of their marriage were born
herein petitioners. Teodulfa was shot by Pepito
resulting in her death on April 24, 1985. One year and
8 months thereafter or on December 11, 1986, Pepito
and respondent Norma Badayog got married without
any marriage license. In lieu thereof, Pepito and Norma
executed an affidavit dated December 11, 1986
stating that they had lived together as husband and
wife for at least five years and were thus exempt from
securing a marriage license. On February 19, 1997,
Pepito died in a car accident. After their father's death,
petitioners filed a petition for declaration of nullity of
the marriage of Pepito to Norma alleging that the said
marriage was void for lack of a marriage license. The
case was filed under the assumption that the validity
or invalidity of the second marriage would affect
petitioner's successional rights. Norma filed a motion
to dismiss on the ground that petitioners have no
cause of action since they are not among the persons
who could file an action for "annulment of marriage"
under Article 47 of the Family Code.
4 Id. at 52-53.
5 Id. at 60.
6 Id. at 31-32.
7 Petitioner's Reply, rollo, p. 138.
8 Id.
9 418 Phil. 723 (2001).
10 Corpuz v. Sta. Tomas, G.R. No. 186571, 11 August
2010, 628 SCRA 266.
11 Republic v. Orbecido Ill, 509 Phil. 108 (2005).
12 Rollo, pp. 52 and 31.
G.R. No. 133778
March 14, 2000
ENGRACE NIAL for Herself and as Guardian ad
Litem of the minors BABYLINE NIAL, INGRID
NIAL, ARCHIE NIAL & PEPITO NIAL, JR.,
petitioners,
vs.
NORMA BAYADOG, respondent.
Judge Ferdinand J. Marcos of the Regional Trial Court of

Toledo City, Cebu, Branch 59, dismissed the petition
after finding that the Family Code is "rather silent,
obscure, insufficient" to resolve the following issues:
(1) Whether or not plaintiffs have a cause of action
against defendant in asking for the declaration of the
nullity of marriage of their deceased father, Pepito G.
Nial, with her specially so when at the time of the
YNARES-SANTIAGO, J.:
59
filing of this instant suit, their father Pepito G. Nial is

already dead;
requisite of marriage under Article 53 of the Civil Code,

6 the absence of which renders the marriage void ab
initio pursuant to Article 80(3) 7 in relation to Article
58. 8 The requirement and issuance of marriage
license is the State's demonstration of its involvement
and participation in every marriage, in the
maintenance of which the general public is interested.
9 This interest proceeds from the constitutional
mandate that the State recognizes the sanctity of
family life and of affording protection to the family as a
basic "autonomous social institution." 10 Specifically,
the Constitution considers marriage as an "inviolable
social institution," and is the foundation of family life
which shall be protected by the State. 11 This is why
the Family Code considers marriage as "a special
contract of permanent union" 12 and case law
considers it "not just an adventure but a lifetime
commitment." 13
(2) Whether or not the second marriage of plaintiffs'

deceased father with defendant is null and void ab
initio;
(3) Whether or not plaintiffs are estopped from
assailing the validity of the second marriage after it
was dissolved due to their father's death. 1
Thus, the lower court ruled that petitioners should
have filed the action to declare null and void their
father's marriage to respondent before his death,
applying by analogy Article 47 of the Family Code
which enumerates the time and the persons who could
initiate an action for annulment of marriage. 2 Hence,
this petition for review with this Court grounded on a
pure question of law.
However, there are several instances recognized by

the Civil Code wherein a marriage license is dispensed
with, one of which is that provided in Article 76, 14
referring to the marriage of a man and a woman who
have lived together and exclusively with each other as
husband and wife for a continuous and unbroken
period of at least five years before the marriage. The
rationale why no license is required in such case is to
avoid exposing the parties to humiliation, shame and
embarrassment concomitant with the scandalous
cohabitation of persons outside a valid marriage due
to the publication of every applicant's name for a
marriage license. The publicity attending the marriage
license may discourage such persons from legitimizing
their status. 15 To preserve peace in the family, avoid
the peeping and suspicious eye of public exposure and
contain the source of gossip arising from the
This petition was originally dismissed for noncompliance with Section 11, Rule 13 of the 1997 Rules
of Civil Procedure, and because "the verification failed
to state the basis of petitioner's averment that the
allegations in the petition are "true and correct"." It
was thus treated as an unsigned pleading which
produces no legal effect under Section 3, Rule 7, of the
1997 Rules. 3 However, upon motion of petitioners,
this Court reconsidered the dismissal and reinstated
the petition for review. 4
The two marriages involved herein having been
solemnized prior to the effectivity of the Family Code
(FC), the applicable law to determine their validity is
the Civil Code which was the law in effect at the time
of their celebration. 5 A valid marriage license is a
60
publication of their names, the law deemed it wise to

preserve their privacy and exempt them from that
requirement.
union had it not been for the absence of the marriage.

This 5-year period should be the years immediately
before the day of the marriage and it should be a
period of cohabitation characterized by exclusivity
meaning no third party was involved at anytime within
the 5 years and continuity that is unbroken.
Otherwise, if that continuous 5-year cohabitation is
computed without any distinction as to whether the
parties were capacitated to marry each other during
the entire five years, then the law would be
sanctioning immorality and encouraging parties to
have common law relationships and placing them on
the same footing with those who lived faithfully with
their spouse. Marriage being a special relationship
must be respected as such and its requirements must
be strictly observed. The presumption that a man and
a woman deporting themselves as husband and wife is
based on the approximation of the requirements of the
law. The parties should not be afforded any excuse to
not comply with every single requirement and later
use the same missing element as a pre-conceived
escape ground to nullify their marriage. There should
be no exemption from securing a marriage license
unless the circumstances clearly fall within the ambit
of the exception. It should be noted that a license is
required in order to notify the public that two persons
are about to be united in matrimony and that anyone
who is aware or has knowledge of any impediment to
the union of the two shall make it known to the local
civil registrar. 17 The Civil Code provides:
There is no dispute that the marriage of petitioners'

father to respondent Norma was celebrated without
any marriage license. In lieu thereof, they executed an
affidavit stating that "they have attained the age of
majority, and, being unmarried, have lived together as
husband and wife for at least five years, and that we
now desire to marry each other." 16 The only issue
that needs to be resolved pertains to what nature of
cohabitation is contemplated under Article 76 of the
Civil Code to warrant the counting of the five year
period in order to exempt the future spouses from
securing a marriage license. Should it be a
cohabitation wherein both parties are capacitated to
marry each other during the entire five-year
continuous period or should it be a cohabitation
wherein both parties have lived together and
exclusively with each other as husband and wife
during the entire five-year continuous period
regardless of whether there is a legal impediment to
their being lawfully married, which impediment may
have either disappeared or intervened sometime
during the cohabitation period?
Working on the assumption that Pepito and Norma
have lived together as husband and wife for five years
without the benefit of marriage, that five-year period
should be computed on the basis of a cohabitation as
"husband and wife" where the only missing factor is
the special contract of marriage to validate the union.
In other words, the five-year common-law cohabitation
period, which is counted back from the date of
celebration of marriage, should be a period of legal
Art. 63: . . . This notice shall request all persons having

knowledge of any impediment to the marriage to
advice the local civil registrar thereof. . . .
61
Art. 64: Upon being advised of any alleged impediment

to the marriage, the local civil registrar shall forthwith
make an investigation, examining persons under
oath. . . .
marriage was dissolved to the time of his marriage

with respondent, only about twenty months had
elapsed. Even assuming that Pepito and his first wife
had separated in fact, and thereafter both Pepito and
respondent had started living with each other that has
already lasted for five years, the fact remains that
their five-year period cohabitation was not the
cohabitation contemplated by law. It should be in the
nature of a perfect union that is valid under the law
but rendered imperfect only by the absence of the
marriage contract. Pepito had a subsisting marriage at
the time when he started cohabiting with respondent.
It is immaterial that when they lived with each other,
Pepito had already been separated in fact from his
lawful spouse. The subsistence of the marriage even
where there was actual severance of the filial
companionship between the spouses cannot make any
cohabitation by either spouse with any third party as
being one as "husband and wife".
This is reiterated in the Family Code thus:

Art. 17 provides in part: . . . This notice shall request
all persons having knowledge of any impediment to
the marriage to advise the local civil registrar thereof. .
..
Art. 18 reads in part: . . . In case of any impediment
known to the local civil registrar or brought to his
attention, he shall note down the particulars thereof
and his findings thereon in the application for a
marriage license. . . .
This is the same reason why our civil laws, past or
present, absolutely prohibited the concurrence of
multiple marriages by the same person during the
same period. Thus, any marriage subsequently
contracted during the lifetime of the first spouse shall
be illegal and void, 18 subject only to the exception in
cases of absence or where the prior marriage was
dissolved or annulled. The Revised Penal Code
complements the civil law in that the contracting of
two or more marriages and the having of extramarital
affairs are considered felonies, i.e., bigamy and
concubinage and adultery. 19 The law sanctions
monogamy.
Having determined that the second marriage involved

in this case is not covered by the exception to the
requirement of a marriage license, it is void ab initio
because of the absence of such element.
The next issue to be resolved is: do petitioners have
the personality to file a petition to declare their
father's marriage void after his death?
Contrary to respondent judge's ruling, Article 47 of the
Family Code 20 cannot be applied even by analogy to
petitions for declaration of nullity of marriage. The
second ground for annulment of marriage relied upon
by the trial court, which allows "the sane spouse" to
file an annulment suit "at anytime before the death of
either party" is inapplicable. Article 47 pertains to the
In this case, at the time of Pepito and respondent's

marriage, it cannot be said that they have lived with
each other as husband and wife for at least five years
prior to their wedding day. From the time Pepito's first
62
grounds, periods and persons who can file an

annulment suit, not a suit for declaration of nullity of
marriage. The Code is silent as to who can file a
petition to declare the nullity of a marriage. Voidable
and void marriages are not identical. A marriage that is
annulable is valid until otherwise declared by the
court; whereas a marriage that is void ab initio is
considered as having never to have taken place 21
and cannot be the source of rights. The first can be
generally ratified or confirmed by free cohabitation or
prescription while the other can never be ratified. A
voidable marriage cannot be assailed collaterally
except in a direct proceeding while a void marriage
can be attacked collaterally. Consequently, void
marriages can be questioned even after the death of
either party but voidable marriages can be assailed
only during the lifetime of the parties and not after
death of either, in which case the parties and their
offspring will be left as if the marriage had been
perfectly valid. 22 That is why the action or defense for
nullity is imprescriptible, unlike voidable marriages
where the action prescribes. Only the parties to a
voidable marriage can assail it but any proper
interested party may attack a void marriage. Void
marriages have no legal effects except those declared
by law concerning the properties of the alleged
spouses, regarding co-ownership or ownership through
actual joint contribution, 23 and its effect on the
children born to such void marriages as provided in
Article 50 in relation to Article 43 and 44 as well as
Article 51, 53 and 54 of the Family Code. On the
contrary, the property regime governing voidable
marriages is generally conjugal partnership and the
children conceived before its annulment are
legitimate.
Contrary to the trial court's ruling, the death of

petitioner's father extinguished the alleged marital
bond between him and respondent. The conclusion is
erroneous and proceeds from a wrong premise that
there was a marriage bond that was dissolved between
the two. It should be noted that their marriage was
void hence it is deemed as if it never existed at all and
the death of either extinguished nothing.
Jurisprudence under the Civil Code states that no
judicial decree is necessary in order to establish the
nullity of a marriage. 24 "A void marriage does not
require a judicial decree to restore the parties to their
original rights or to make the marriage void but though
no sentence of avoidance be absolutely necessary, yet
as well for the sake of good order of society as for the
peace of mind of all concerned, it is expedient that the
nullity of the marriage should be ascertained and
declared by the decree of a court of competent
jurisdiction." 25 "Under ordinary circumstances, the
effect of a void marriage, so far as concerns the
conferring of legal rights upon the parties, is as though
no marriage had ever taken place. And therefore,
being good for no legal purpose, its invalidity can be
maintained in any proceeding in which the fact of
marriage may be material, either direct or collateral, in
any civil court between any parties at any time,
whether before or after the death of either or both the
husband and the wife, and upon mere proof of the
facts rendering such marriage void, it will be
disregarded or treated as non-existent by the courts."
It is not like a voidable marriage which cannot be
collaterally attacked except in direct proceeding
instituted during the lifetime of the parties so that on
the death of either, the marriage cannot be
impeached, and is made good ab initio. 26 But Article
63
40 of the Family Code expressly provides that there

must be a judicial declaration of the nullity of a
previous marriage, though void, before a party can
enter into a second marriage 27 and such absolute
nullity can be based only on a final judgment to that
effect. 28 For the same reason, the law makes either
the action or defense for the declaration of absolute
nullity of marriage imprescriptible. 29 Corollarily, if the
death of either party would extinguish the cause of
action or the ground for defense, then the same
cannot be considered imprescriptible.
SO ORDERED.
Davide, Jr., C.J., Puno and Kapunan, JJ., concur.
Pardo, J., on official business abroad.
Footnotes
1 The dispositive portion of the Order dated March 27,
1998 issued by Judge Ferdinand J. Marcos of Regional
Trial Court (RTC) Branch 59, Toledo City, reads:
"WHEREFORE, premises considered, defendant's
motion to dismiss is hereby granted and this instant
case is hereby ordered dismissed without costs." (p. 6;
Rollo, p. 21).
However, other than for purposes of remarriage, no

judicial action is necessary to declare a marriage an
absolute nullity.1wphi1 For other purposes, such as
but not limited to determination of heirship, legitimacy
or illegitimacy of a child, settlement of estate,
dissolution of property regime, or a criminal case for
that matter, the court may pass upon the validity of
marriage even in a suit not directly instituted to
question the same so long as it is essential to the
determination of the case. This is without prejudice to
any issue that may arise in the case. When such need
arises, a final judgment of declaration of nullity is
necessary even if the purpose is other than to remarry.
The clause "on the basis of a final judgment declaring
such previous marriage void" in Article 40 of the Family
Code connotes that such final judgment need not be
obtained only for purpose of remarriage.
2 Order, p. 4; Rollo, p. 19.

3 Minute Resolution dated July 13, 1998; Rollo, p. 39.
4 Minute Resolution dated October 7, 1998; Rollo, p.
50.
5 Tamano v. Ortiz, 291 SCRA 584 (1998).
6 Now Article 3, Family Code. Art. 53. No marriage
shall be solemnized unless all the requisites are
complied with:
(1) Legal capacity of the contracting parties; their
consent, freely given;
WHEREFORE, the petition is GRANTED. The assailed

Order of the Regional Trial Court, Toledo City, Cebu,
Branch 59, dismissing Civil Case No. T-639, is
REVERSED and SET ASIDE. The said case is ordered
REINSTATED.1wphi1.nt
(2) Authority of the person performing the marriage;

and
64
(3) A marriage license, except in a marriage of

exceptional character.
14 Now Article 34, Family Code. Art. 76. No marriage

license shall be necessary when a man and a woman
who have attained the age of majority and who, being
unmarried, have lived together as husband and wife
for at least five years, desire to marry each other. The
contracting parties shall state the foregoing facts in an
affidavit before any person authorized by law to
administer oaths. The official, priest or minister who
solemnized the marriage shall also state in an affidavit
that he took steps to ascertain the ages and other
qualifications of the contracting parties and that he
found no legal impediment to the marriage.
7 Now Article 4, Family Code. Art. 80. The following

marriages shall be void from the beginning:
xxx
xxx
xxx
(3) Those solemnized without a marriage license, save

marriages of exceptional character.
xxx
xxx
xxx
8 Art. 58. Save marriages of an exceptional character

authorized in Chapter 2 of this Title, but not those
under article 75, no marriage shall be solemnized
without a license first being issued by the local civil
registrar of the municipality where either contracting
party habitually resides.
15 Report of the Code Commission, p. 80.
9 Perido v. Perido, 63 SCRA 97 (1975).

10 Sec. 12, Article II, 1987 Constitution; Hernandez v.
CA, G.R. No. 126010, December 8, 1999; See also
Tuason v. CA, 256 SCRA 158 (1996).
18 Art. 83, Civil Code provides "Any marriage

subsequently contracted by any person during the
lifetime of the first spouse of such person with any
person other than such first spouse shall be illegal and
void from its performance, unless:
11 Sec. 2, Article XV (The Family), 1987 Constitution.
(1) the first marriage was annulled or dissolved; or
12 Art. 1, Family Code provides: "Marriage is a special

contract of permanent union between a man and a
woman entered into in accordance with law for the
establishment of conjugal or family life. . . .
(2) the first spouse had been absent for seven

consecutive years. . . .
16 Rollo, p. 29.
17 Art. 63 and 64, Civil Code; Article 17 and 18, Family
Code.
Art. 41 of the Family Code reads: "A marriage

contracted by any person during the subsistence of a
previous marriage shall be null and void, unless before
the celebration of the subsequent marriage, the prior
spouse had been absent for four consecutive years. . ."
13 Santos v. CA, 58 SCAD 17 (1995); 310 Phil. 21, 41

(1995).
65
21 Suntay v. Cojuanco-Suntay, 300 SCRA 760 (1998);

People v. Retirement Board, 272 III. App. 59 cited in I
Tolentino, Civil Code, 1990 ed. p. 271.
19 Arts. 333 and 334, Revised Penal Code.

20 Art. 47. The action for annulment of marriage must
be filed by the following persons and within the
periods indicated herein:
22 In re Conza's Estate, 176 III. 192; Miller v. Miller,

175 Cal. 797, 167 Pac. 394 cited in I Tolentino, Civil
Code, 1990 ed., p. 271.
(1) For causes mentioned in number 1 of Article 45 by

the party whose parent or guardian did not give his or
her consent, within five years after attaining the age of
twenty-one; or by the parent or guardian or person
having legal charge of the minor, at any time before
such party has reached the age of twenty-one;
23 Art. 148-149, Family Code; Article 144, Civil Code.

24 Odayat v. Amante, 77 SCRA 338 (1977); Weigel v.
Sempio-Dy, 143 SCRA 499 (1986); People v. Mendoza,
95 Phil. 845 (1954); 50 O.G. (10) 4767 cited in People
v. Aragon, 100 Phil. 1033 (1957); 53 O.G. 3749.
(2) For causes mentioned in number 2 of Article 45, by

the sane spouse, who had no knowledge of the other's
insanity; or by any relative or guardian or person
having legal charge of the insane, at anytime before
the death of either party, or by the insane spouse
during a lucid interval or after regaining sanity;
25 35 Am. Jur. 219-220.

26 18 RCL 446-7; 35 Am Jur. 221.
27 Apiag v. Cantero, 335 Phil. 511 (1997); 268 SCRA
47 (1997); Atienza v. Judge Brillantes, Jr., 60 SCAD 119;
312 Phil. 939 (1995).

the injured party, within five years after the discovery
of the fraud;
28 Domingo v. CA, 226 SCRA 572 (1993).

the injured party, within five years from the time the
force, intimidation or undue influence disappeared or
ceased;
29 Art. 39, Family Code as amended by E.O. 209 and

227 s. 1987 and further amended by R.A. No. 8533
dated February 23, 1998.
For causes mentioned in numbers 5 and 6 of Article

45, by the injured party, within five years after the
marriage.
66
Article 34 Marriage without marriage license

Art. 34. No license shall be necessary for the marriage
of a man and a woman who have lived together as
husband and wife for at least five years and without
any legal impediment to marry each other. The
administer oaths. The solemnizing officer shall also
state under oath that he ascertained the qualifications
of the contracting parties are found no legal
impediment to the marriage. (76a)
(6) Those subsequent marriages that are void under

Article 53.
Art. 36. A marriage contracted by any party who, at
the time of the celebration, was psychologically
solemnization. (As amended by Executive Order 227)
Art. 37. Marriages between the following are
incestuous and void from the beginning, whether
relationship between the parties be legitimate or
illegitimate:
(1) Between ascendants and descendants of any
degree; and
(2) Between brothers and sisters, whether of the full or
half blood. (81a)
Art. 4. The absence of any of the essential or formal

requisites shall render the marriage void ab initio,
except as stated in Article 35 (2).
Chapter 3. Void and Voidable Marriages
Art. 35. The following marriages shall be void from
the beginning:
Art. 38. The following marriages shall be void from

the beginning for reasons of public policy:
(1) Those contracted by any party below eighteen

years of age even with the consent of parents or
guardians;
(2) Those solemnized by any person not legally
authorized to perform marriages unless such
marriages were contracted with either or both parties
believing in good faith that the solemnizing officer had
the legal authority to do so;
(3) Those solemnized without license, except those
covered the preceding Chapter;
failing under Article 41;
(5) Those contracted through mistake of one
contracting party as to the identity of the other; and
(1) Between collateral blood relatives whether

legitimate or illegitimate, up to the fourth civil degree;
(2) Between step-parents and step-children;
(3) Between parents-in-law and children-in-law;
(4) Between the adopting parent and the adopted
child;
(5) Between the surviving spouse of the adopting
parent and the adopted child;
(6) Between the surviving spouse of the adopted child
and the adopter;
(7) Between an adopted child and a legitimate child of
the adopter;
(8) Between adopted children of the same adopter;
and
67
(9) Between parties where one, with the intention to

marry the other, killed that other person's spouse, or
his or her own spouse. (82)
Art. 42. The subsequent marriage referred to in the

preceding Article shall be automatically terminated by
the recording of the affidavit of reappearance of the
absent spouse, unless there is a judgment annulling
the previous marriage or declaring it void ab initio.
A sworn statement of the fact and circumstances of
reappearance shall be recorded in the civil registry of
the residence of the parties to the subsequent
marriage at the instance of any interested person, with
due notice to the spouses of the subsequent marriage
and without prejudice to the fact of reappearance
being judicially determined in case such fact is
disputed. (n)
Art. 39. The action or defense for the declaration of

absolute nullity of a marriage shall not prescribe. (As
amended by Executive Order 227 and Republic Act No.
8533; The phrase "However, in case of marriage
celebrated before the effectivity of this Code and
falling under Article 36, such action or defense shall
prescribe in ten years after this Code shall taken
effect"has been deleted by Republic Act No. 8533
[Approved February 23, 1998]).
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)
Art. 44. If both spouses of the subsequent marriage

acted in bad faith, said marriage shall be void ab initio
and all donations by reason of marriage and
testamentary dispositions made by one in favor of the
other are revoked by operation of law. (n)
Art. 41. A marriage contracted by any person during

subsistence of a previous marriage shall be null and
void, unless before the celebration of the subsequent
marriage, the prior spouse had been absent for four
consecutive years and the spouse present has a wellfounded belief that the absent spouse was already
dead. In case of disappearance where there is danger
of death under the circumstances set forth in the
provisions of Article 391 of the Civil Code, an absence
of only two years shall be sufficient.
For the purpose of contracting the subsequent
marriage under the preceding paragraph the spouse
present must institute a summary proceeding as
provided in this Code for the declaration of
presumptive death of the absentee, without prejudice
to the effect of reappearance of the absent spouse.
(83a)
Art. 45. A marriage may be annulled for any of the

following causes, existing at the time of the marriage:
(1) That the party in whose behalf it is sought to have
the marriage annulled was eighteen years of age or
over but below twenty-one, and the marriage was
solemnized without the consent of the parents,
guardian or person having substitute parental
authority over the party, in that order, unless after
attaining the age of twenty-one, such party freely
cohabited with the other and both lived together as
husband and wife;
(2) That either party was of unsound mind, unless such
party after coming to reason, freely cohabited with the
other as husband and wife;
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(3) That the consent of either party was obtained by

fraud, unless such party afterwards, with full
knowledge of the facts constituting the fraud, freely
cohabited with the other as husband and wife;
(4) That the consent of either party was obtained by
force, intimidation or undue influence, unless the same
having disappeared or ceased, such party thereafter
freely cohabited with the other as husband and wife;
(5) That either party was physically incapable of
consummating the marriage with the other, and such
incapacity continues and appears to be incurable; or
(6) That either party was afflicted with a sexuallytransmissible disease found to be serious and appears
to be incurable. (85a)
Art. 47. The action for annulment of marriage must be

filed by the following persons and within the periods
indicated herein:
(1) For causes mentioned in number 1 of Article 45 by
the party whose parent or guardian did not give his or
her consent, within five years after attaining the age of
twenty-one, or by the parent or guardian or person
having legal charge of the minor, at any time before
such party has reached the age of twenty-one;
the same spouse, who had no knowledge of the other's
insanity; or by any relative or guardian or person
having legal charge of the insane, at any time before
the death of either party, or by the insane spouse
during a lucid interval or after regaining sanity;
the injured party, within five years after the discovery
of the fraud;
the injured party, within five years from the time the
force, intimidation or undue influence disappeared or
ceased;
(5) For causes mentioned in number 5 and 6 of Article
45, by the injured party, within five years after the
marriage. (87a)
Art. 46. Any of the following circumstances shall

constitute fraud referred to in Number 3 of the
preceding Article:
(1) Non-disclosure of a previous conviction by final
judgment of the other party of a crime involving moral
turpitude;
(2) Concealment by the wife of the fact that at the
time of the marriage, she was pregnant by a man
other than her husband;
(3) Concealment of sexually transmissible disease,
regardless of its nature, existing at the time of the
marriage; or
(4) Concealment of drug addiction, habitual alcoholism
or homosexuality or lesbianism existing at the time of
the marriage.
No other misrepresentation or deceit as to character,
health, rank, fortune or chastity shall constitute such
fraud as will give grounds for action for the annulment
of marriage. (86a)
Art. 48. In all cases of annulment or declaration of

absolute nullity of marriage, the Court shall order the
prosecuting attorney or fiscal assigned to it to appear
on behalf of the State to take steps to prevent
collusion between the parties and to take care that
evidence is not fabricated or suppressed.
confession of judgment. (88a)
69
Art. 49. During the pendency of the action and in the

absence of adequate provisions in a written agreement
between the spouses, the Court shall provide for the
support of the spouses and the custody and support of
their common children. The Court shall give paramount
consideration to the moral and material welfare of said
children and their choice of the parent with whom they
wish to remain as provided to in Title IX. It shall also
provide for appropriate visitation rights of the other
parent. (n)
RIGHTS AND OBLIGATIONS BETWEEN HUSBAND AND

WIFE
Art. 68. The husband and wife are obliged to live
together, observe mutual love, respect and fidelity,
and render mutual help and support. (109a)
Art. 69. The husband and wife shall fix the family
domicile. In case of disagreement, the court shall
decide.
The court may exempt one spouse from living with the
other if the latter should live abroad or there are other
valid and compelling reasons for the exemption.
However, such exemption shall not apply if the same is
not compatible with the solidarity of the family. (110a)
Art. 50. The effects provided for by paragraphs (2),

(3), (4) and (5) of Article 43 and by Article 44 shall also
apply in the proper cases to marriages which are
declared ab initio or annulled by final judgment under
Articles 40 and 45.
The final judgment in such cases shall provide for the
of the spouses, the custody and support of the
common children, and the delivery of third
presumptive legitimes, unless such matters had been
adjudicated in previous judicial proceedings.
All creditors of the spouses as well as of the absolute
community or the conjugal partnership shall be
notified of the proceedings for liquidation.
In the partition, the conjugal dwelling and the lot on
which it is situated, shall be adjudicated in accordance
with the provisions of Articles 102 and 129.
Art. 70. The spouses are jointly responsible for the

support of the family. The expenses for such support
and other conjugal obligations shall be paid from the
community property and, in the absence thereof, from
the income or fruits of their separate properties. In
case of insufficiency or absence of said income or
fruits, such obligations shall be satisfied from the
separate properties. (111a)
Art. 71. The management of the household shall be
the right and the duty of both spouses. The expenses
for such management shall be paid in accordance with
the provisions of Article 70. (115a)
Art. 53. Either of the former spouses may marry again

after compliance with the requirements of the
immediately preceding Article; otherwise, the
subsequent marriage shall be null and void.
Art. 72. When one of the spouses neglects his or her

duties to the conjugal union or commits acts which
tend to bring danger, dishonor or injury to the other or
to the family, the aggrieved party may apply to the
court for relief. (116a)
TITLE III
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Art. 73. Either spouse may exercise any legitimate

profession, occupation, business or activity without the
consent of the other. The latter may object only on
valid, serious, and moral grounds.
In case of disagreement, the court shall decide
whether or not:
(1) The objection is proper; and
(2) Benefit has occurred to the family prior to the
objection or thereafter. If the benefit accrued prior to
the objection, the resulting obligation shall be enforced
against the separate property of the spouse who has
not obtained consent.
The foregoing provisions shall not prejudice the rights
of creditors who acted in good faith. (117a)
63, No. (2), the said profits shall be the increase in

value between the market value of the community
property at the time of the celebration of the marriage
and the market value at the time of its dissolution.
Chapter 7. Property Regime of Unions Without
Marriage
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 coownership.
In the absence of proof to the contrary, properties
acquired while they lived together shall be presumed
to have been obtained by their joint efforts, work or
industry, and shall be owned by them in equal shares.
For purposes of this Article, a party who did not
participate in the acquisition by the other party of any
property shall be deemed to have contributed jointly in
the acquisition thereof if the former's efforts consisted
in the care and maintenance of the family and of the
household.
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 coownership 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
Art. 101. If a spouse without just cause abandons the

other or fails to comply with his or her obligations to
the family, the aggrieved spouse may petition the
court for receivership, for judicial separation of
property or for authority to be the sole administrator of
the absolute community, subject to such precautionary
conditions as the court may impose.
The obligations to the family mentioned in the
preceding paragraph refer to marital, parental or
property relations.
Art. 102. Upon dissolution of the absolute community
regime, the following procedure shall apply:
(4) The net remainder of the properties of the absolute
community shall constitute its net assets, which shall
be divided equally between husband and wife, unless
a different proportion or division was agreed upon in
the marriage settlements, or unless there has been a
voluntary waiver of such share provided in this Code.
For purpose of computing the net profits subject to
forfeiture in accordance with Articles 43, No. (2) and
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vacant share shall belong to the respective surviving

descendants. In the absence of descendants, such
share shall belong to the innocent party. In all cases,
the forfeiture shall take place upon termination of the
cohabitation. (144a)
Art. 237. The annulment or declaration of nullity of

the marriage of a minor or of the recorded agreement
mentioned in the foregoing. Articles 234 and 235 shall
revive the parental authority over the minor but shall
not affect acts and transactions that took place prior to
the recording of the final judgment in the Civil
Register. (n)
Art. 148. In cases of cohabitation not falling under the

preceding Article, 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. In the absence of proof to the contrary,
their contributions and corresponding shares are
presumed to be equal. The same rule and presumption
shall apply to joint deposits of money and evidences of
credit.
If one of the parties is validly married to another, his or
her share in the co-ownership shall accrue to the
absolute community or conjugal partnership existing in
such valid marriage. If the party who acted in bad faith
is not validly married to another, his or her shall be
forfeited in the manner provided in the last paragraph
of the preceding Article.
The foregoing rules on forfeiture shall likewise apply
even if both parties are in bad faith. (144a)
Art. 255. If any provision of this Code is held invalid,

all the other provisions not affected thereby shall
remain valid.
Revised Penal Code

Art. 344. Prosecution of the crimes of adultery,
concubinage, seduction, abduction, rape and acts of
lasciviousness. The crimes of adultery and
concubinage shall not be prosecuted except upon a
complaint filed by the offended spouse.
The offended party cannot institute criminal
prosecution without including both the guilty parties, if
they are both alive, nor, in any case, if he shall have
consented or pardoned the offenders.chanrobles
virtual law library
Art. 176. Illegitimate children shall use the surname

and shall be under the parental authority of their
mother, and shall be entitled to support in conformity
with this Code. The legitime of each illegitimate child
shall consist of one-half of the legitime of a legitimate
child. Except for this modification, all other provisions
in the Civil Code governing successional rights shall
remain in force. (287a)
The offenses of seduction, abduction, rape or acts of

lasciviousness, shall not be prosecuted except upon a
complaint filed by the offended party or her parents,
grandparents, or guardian, nor, in any case, if the
offender has been expressly pardoned by the above
named persons, as the case may be.chanrobles virtual
law library
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In cases of seduction, abduction, acts of lasciviousness

and rape, the marriage of the offender with the
offended party shall extinguish the criminal action or
remit the penalty already imposed upon him. The
provisions of this paragraph shall also be applicable to
the co-principals, accomplices and accessories after
the fact of the above-mentioned crimes.
RESOLUTION
Acting on the letter of the Chairman of the
Committee on Revision of the Rules of Court
submitting for this Court's consideration and approval
the Proposed Rule on Declaration of Absolute Nullity of
Void Marriages and Annulment of Voidable Marriages,
the Court Resolved to APPROVE the same.
Chapter Two
ILLEGAL MARRIAGES
The Rule shall take effect on March 15, 2003

following its publication in a newspaper of general
circulation not later than March 7, 2003
Art. 349. Bigamy. The penalty of prision mayor

shall be imposed upon any person who shall contract a
proceedings.
EO 227
Sec. 2.
Article 36 of Executive Order No. 209 is
"Art. 36.
A marriage contracted by any party who,
at the time of the celebration, was psychologically
solemnization."
A.M. No. 02-11-10-SC
March 4, 2003
RE: PROPOSED RULE ON DECLARATION OF ABSOLUTE

NULLITY OF VOID MARRIAGES AND ANNULMENT OF
VOIDABLE MARRIAGES
73
A.M. No. 02-11-10-SC, March 4, 2003
showing the either or both parties were psychologically

incapacitated from complying with the essential
marital obligations of marriages at the time of the
celebration of marriage even if such incapacity
becomes manifest only after its celebration.
Davide, C.J. Bellosillo, Puno, Vitug Mendoza,

Panganiban, Quisumbing, Sandoval-Gutierrez,
Carpio, Austria-Martinez, Carpio Morales,
Callejo, Sr. and Azcuna
Ynares-Santiago, on leave
Corona, on official leave
The complete facts should allege the physical

manifestations, if any, as are indicative of
psychological incapacity at the time of the celebration
of the marriage but expert opinion need not be
alleged.
RULE ON DECLARATION OF ABSOLUTE NULLITY

OF VOID MARIAGES AND ANNULMENT OF
VOIDABLE MARRIAGES
Section 3. Petition for annulment of voidable

marriages. -
Section 1. Scope - This Rule shall govern petitions for

declaration of absolute nullity of void marriages and
annulment of voidable marriages under the Family
Code of te Philippines.
(a) Who may file. - The following persons may file a

petition for annulment of voidable marriage based on
any of the grounds under article 45 of the Family Code
and within the period herein indicated:
The Rules of Court shall apply suppletorily.

Section 2. Petition for declaration of absolute nullity
of void marriages.
(1) The contracting party whose parent, or guardian, or

person exercising substitute parental authority did not
give his or her consent, within five years after
attaining the age of twenty-one unless, after attaining
the age of twenty-one, such party freely cohabitated
with the other as husband or wife; or the parent,
guardian or person having legal charge of the
contracting party , at any time before such party has
reached the age of twenty-one;
(a) Who may file. - A petition for declaration of

absolute nullity of void marriage may be filed solely by
the husband or the wife. (n)
(b) Where to file. - The petition shal be filed in the
Family Court.
(c) Imprecriptibility ofaction or defense. - An Action or
defense for the declaration of absolute nullity of void
marriage shall not prescribe.
(2) The sane spouse who had no knowledge of the

other's insanity; or by any relative, guardian, or person
having legal charge of the insane, at any time before
the death of either party; or by the insane spouse
during the a lucid interval or after regaining sanity,
provided that the petitioner , after coming to reason,
(d) What to allege. - A petition under Article 36 of

Family Code shall specially allege te complete facts
74
has not freely cohabited with the other as husband or

wife;
found in the Philippines, at the election of the

petitioner.
(3) The injured party whose consent was obtained by

fraud, within five years after the discovery of the
fraud, provided that said party, with full knowledge of
the facts constituting the fraud, has not freely
cohabited with the other as husband or wife;
Section 5. Contents and form of petition. - (1) The

petition shall allege the complete facts constituting the
cause of action.
(2) It shall state the names and ages of the common
(4) The injured party whose consent was obtained by

force, intimidation, or undue influence, within five
years from the time the force intimidation, or undue
influence disappeared or ceased, provided that the
force, intimidation, or undue influence having
disappeared or ceased, said party has not thereafter
freely cohabited with the other as husband or wife;

apply for a provisional order for spousal support, the
property, and other matters similarly requiringurgent
action.
(5) The injured party where the other spouse is

physically incapable of consummating the marriage
with the other and such incapability continues and
appears to be incurable, within five years after the
celebration of marriage; and
(3) It must be verified and accompanied celebration of

marriage. (b) Where to file.-The petition shall be filed
in the Family Court.
(6) Te injured party where the other party was afflicted

with a sexually-transmissible disease found to be
serious and appears to be incurable, within five years
after the celebration of marriage.
Section 4. Venue. - The petition shall be filed in the

Family Court of the province or city where the
petitioner or the respondent has been residing for at
least six months prior to the date of filing, or in the
case of a non-resident respondent, where he may be
found in the Philippines at the election of the
petitioner.
(b) Where to file. - The petition shall be filed in the

Family Court.
Section 4. Venue. - The Petition shall be filed in the
Family Court of the province or city where the
petitioner or the respondent has been residing for at
least six months prior to the date of filing. Or in the
case of non-resident respondent, where he may be
Section 5. Contents and form of petition. - (1) The

petition shall allege the complete facts constituting the
cause of action.
75
(2) it shall state the names and ages of the common

Section 6. Summons. - The service of summons shall

be governed by Rule 14 of the Rules of Court and by
the following rules:
(1) Where the respondent cannot be located at his
given address or his whereabouts are unknown and
cannot be ascertained by diligent inquiry, service of
summons may, by leave of court, be effected upon him
by publication once a week for two consecutive weeks
in a newspaper of general circulation in the Philippines
and in such places as the court may order In addition,
a copy of the summons shall be served on the
respondent at his last known address by registered
mail or any other means the court may deem
sufficient.

apply for a provisional order for spousal support,
property, and other matters similarly requiring urgent
action.
(3) it must be verified and accompanied by a
and certification must be signed personally by me
(2) The summons to be published shall be contained in

an order of the court with the following data: (a) title of
the case; (b) docket number; (c) nature of the petition;
(d) principal grounds of the petition and the reliefs
prayed for; and (e) a directive for the respondent to
answer within thirty days from the last issue of
publication.
If the petitioner is in a foreign country, the

verification and certification against forum shopping
shall be authenticated by the duly authorized officer of
the Philippine embassy or legation, consul general,
consul or vice-consul or consular agent in said country.
Section 7. Motion to dismiss. - No motion to dismiss

the petition shall be allowed except on the ground of
lack of jurisdiction over the subject matter or over the
parties; provided, however, that any other ground that
might warrant a dismissal of the case may be raised as
an affirmative defense in an answer.
(4) it shall be filed in six copies. The petitioner shall

serve a copy of the petition on the Office of the
Solicitor General and the Office of the City or Provincial
Prosecutor, within five days from the date of its filing
and submit to the court proof of such service within
the same period.
Section 8. Answer. - (1) The respondent shall file his

answer within fifteen days from service of summons,
or within thirty days from the last issue of publication
in case of service of summons by publication. The

76
answer must be verified by the respondent himself and

not by counsel or attorney-in-fact.
Section 11. Pre-trial. (1) Pre-trial mandatory. - A pre-trial is mandatory. On

motion or motu proprio, the court shall set the pre-trial
after the last pleading has been served and filed, or
upon receipt of the report of the public prosecutor that
no collusion exists between the parties.
(2) If the respondent fails to file an answer, the court

shall not declare him or her in default.
(3) Where no answer is filed or if the answer does not
tender an issue, the court shall order the public
prosecutor to investigate whether collusion exists
between the parties.
(2) Notice of pre-trial. - (a) The notice of pre-trial shall

contain:
Section 9. Investigation report of public prosecutor. (1) Within one month after receipt of the court order
mentioned in paragraph (3) of Section 8 above, the
public prosecutor shall submit a report to the court
stating whether the parties are in collusion and serve
copies thereof on the parties and their respective
counsels, if any.
(1) the date of pre-trial conference; and

(2) an order directing the parties to file and serve their
respective pre-trial briefs in such manner as shall
ensure the receipt thereof by the adverse party at
least three days before the date of pre-trial.
(b) The notice shall be served separately on the
parties and their respective counsels as well as on the
public prosecutor. It shall be their duty to appear
personally at the pre-trial.

he shall state the on the finding of collusion within ten
days from receipt of a copy of a report The court shall
set the report for hearing and If convinced that the
parties are in collusion, it shall dismiss the petition.
(c) Notice of pre-trial shall be sent to the respondent

even if he fails to file an answer. In case of summons
by publication and the respondent failed to file his
answer, notice of pre-trial shall be sent to respondent
at his last known address.

Section 12. Contents of pre-trial brief. - The pre-trial

brief shall contain the following:
Section 10. Social worker. - The court may require a

social worker to conduct a case study and submit the
corresponding report at least three days before the
pre-trial. The court may also require a case study at
any stage of the case whenever necessary.
(a) A statement of the willingness of the parties to

enter into agreements as may be allowed by law,
indicating the desired terms thereof;
77
(b) A concise statement of their respective claims

together with the applicable laws and authorities;
State during the trial on the merits to prevent

suppression or fabrication of evidence.
(c) Admitted facts and proposed stipulations of facts,

as well as the disputed factual and legal issues;
Section 14. Pre-trial conference. -At the pre-trial

conference, the court:
(d) All the evidence to be presented, including expert

opinion, if any, briefly stating or describing the nature
and purpose thereof;
(a) May refer the issues to a mediator who shall assist

the parties in reaching an agreement on matters not
prohibited by law.
(e) The number and names of the witnesses and their

respective affidavits; and
The mediator shall render a report within one

month from referral which, for good reasons, the court
may extend for a period not exceeding one month.
(f) Such other matters as the court may require.

(b) In case mediation is not availed of or where it fails,
the court shall proceed with the pre-trial conference,
on which occasion it shall consider the advisability of
receiving expert testimony and such other makers as
may aid in the prompt disposition of the petition.
Failure to file the pre-trial brief or to comply with

its required contents shall have the same effect as
failure to appear at the pre-trial under the succeeding
paragraphs.
Section 13. Effect of failure to appear at the pre-trial. {a) If the petitioner fails to appear personally, the case
shall be dismissed unless his counsel or a duly
authorized representative appears in court and proves
a valid excuse for the non-appearance of the
petitioner.
Section 15. Pre-trial order. - {a) The proceedings in the

pre-trial shall be recorded. Upon termination of the
pre-trial, the court shall Issue a pre-trial order which
shall recite in detail the matters taken up In the
conference, the action taken thereon, the amendments
allowed on the pleadings, and except as to the ground
of declaration of nullity or annulment, the agreements
or admissions made by the parties on any of the
matters considered, including any provisional order
that may be necessary or agreed upon by the parties.
(b) If the respondent has filed his answer but fails to

appear, the court shall proceed with the pre-trial and
require the public prosecutor to investigate the nonappearance of the respondent and submit within
fifteen days thereafter a report to the court stating
whether his non-appearance is due to any collusion
between the parties. If there Is no collusion, the court
shall require the public prosecutor to intervene for the
(b)
Should the action proceed to trial, the order
shall contain a recital of the following;
(1) Facts undisputed, admitted, and those which need
not be proved subject to Section 16 of this Rule;
78
(2) Factual and legal issues to be litigated;
(d) Future support;
(3) Evidence, including objects and documents, that

have been marked and will be presented;
(e) The jurisdiction of courts; and

(f) Future legitime.
(4) Names of witnesses who will be presented and

their testimonies in the form of affidavits; and
Section 17. Trial. - (1) The presiding judge shall

personally conduct the trial of the case. No delegation
of the reception of evidence to a commissioner shall
be allowed except as to matters involving property
relations of the spouses.
(5) Schedule of the presentation of evidence.

(c) The pre-trial order shall also contain a directive to
the public prosecutor to appear for the State and take
steps to prevent collusion between the parties at any
stage of the proceedings and fabrication or
suppression of evidence during the trial on the merits.
(2) The grounds for declaration of absolute nullity or

annulment of marriage must be proved. No judgment
on the pleadings, summary judgment, or confession of
judgment shall be allowed.
(d) The parlies shall not be allowed to raise issues or

present witnesses and evidence other than those
stated in the pre-trial order.
(3) The court may order the exclusion from the

courtroom of all persons, including members of the
press, who do not have a direct interest in the case.
Such an order may be made if the court determines on
the record that requiring a party to testify in open
court would not enhance the ascertainment of truth;
would cause to the party psychological harm or
inability to effectively communicate due to
embarrassment, fear, or timidity; would violate the
right of a party to privacy; or would be offensive to
decency or public morals.
The order shall control the trial of the case, unless

modified by the court to prevent manifest injustice.
(e) The parties shall have five days from receipt of the
pre-trial order to propose corrections or modifications.
Section 16. Prohibited compromise. - The court-shall
not allow compromise on prohibited matters, such as
the following:
(4) No copy shall be taken nor any examination or

perusal of the records of the case or parts thereof be
made by any person other than a party or counsel of a
party, except by order of the court.
(a) The civil status of persons;

(b) The validity of a marriage or of a legal separation;
(c) Any ground for legal separation;
79
Section 18. Memoranda. - The court may require the

parties and the public prosecutor, in consultation with
the Office of the Solicitor General, to file their
respective memoranda support of their claims within
fifteen days from the date the trial is terminated. It
may require the Office of the Solicitor General to file its
own memorandum if the case is of significant interest
to the State. No other pleadings or papers may be
submitted without leave of court. After the lapse of the
period herein provided, the case will be considered
submitted for decision, with or without the
memoranda.
(4) Upon the finality of the decision, the court shall

forthwith issue the corresponding decree if the parties
have no properties.
If the parties have properties, the court shall
observe the procedure prescribed in Section 21 of this
Rule.
The entry of judgment shall be registered in the
Civil Registry where the marriage was recorded and In
the Civil Registry where the Family Court'granting the
petition for declaration of absolute nullity or
annulment of marriage is located.
Section 19. Decision. - (1) If the court renders a

decision granting the petition, it shall declare therein
that the decree of absolute nullity or decree of
annulment shall be issued by the court only after
compliance with Article 50 and 51 of the Family Code
as implemented under the Rule on Liquidation,
Partition and Distribution of Properties.
Section 20. Appeal. (1) Pre-condition. - No appeal from the decision shall
be allowed unless the appellant has filed a motion for
reconsideration or new trial within fifteen days from
notice of judgment.
(2) The parties, including the Solicitor General and the

public prosecutor, shall be served with copies of the
decision personally or by registered mail. If the
respondent summoned by publication failed to appear
in the action, the dispositive part of the decision shall
be published once in a newspaper of general
circulation.
(2) Notice of appeal. - An aggrieved party or the

Solicitor General may appeal from the decision by
filing a Notice of Appeal within fifteen days from notice
of denial of the motion for reconsideration or new trial.
The appellant shall serve a copy of the notice of
appeal on the adverse parties.
Section 21. Liquidation, partition and distribution,
custody, support of common children and delivery of
their presumptive iegltimes. - Upon entry of the
judgment granting the petition, or, in case of appeal,
upon receipt of the entry of judgment of the appellate
court granting the petition, the Family Court, on
motion of either party, shall proceed with the
(3) The decision becomes final upon the expiration of

fifteen days from notice to the parties. Entry of
judgment shall be made if no motion for
reconsideration or new trial, or appeal Is filed by any of
the parties the public prosecutor, or the Solicitor
General.
80
of the spouses, including custody, support of common

children and delivery of their presumptive legitimes
pursuant to Articles 50 and 51 of the Family Code
unless such matters had been adjudicated in previous
judicial proceedings.
shall cause the registration of the Decree in the Civil

Registry where the marriage was registered, the Civil
Registry of the place where the Family Court is
situated, and in the National Census and Statistics
Office. He shall report td the court compliance with this
requirement within thirty days from receipt of the copy
of the Decree.
Section 22. Issuance of Decree of Declaration of

Absolute Nullity or Annulment of Marriage." (a) The
court shall issue the Decree after;
(b)
In case service of summons was made by
publication, the parties shall cause the publication of
the Decree once in a newspaper of general circulation.
(1) Registration of the entry of judgment granting the

petition for declaration of nullity or annulment of
marriage in the Civil Registry where the marriage was
celebrated and in the Civil Registry of the place where
the Family Court is located;
(c)
The registered Decree shall be the best
evidence to prove the declaration of absolute nullity or
annulment of marriage and shall serve as notice to
third persons concerning the properties of petitioner
and respondent as well as the properties or
presumptive legitimes delivered to their common
children.
(2) Registration of the approved partition and

distribution of the properties of the spouses, in the
proper Register of Deeds where the real properties are
located; and
Section 24. Effect of death of a party; duty of the

Family Court or Appellate Court. - (a) In case a party
dies at any stage of the proceedings before the entry
of judgment, the court shall order the case closed and
terminated, without prejudice to the settlement of the
estate in proper proceedings in the regular courts.
(3) The delivery of the children's presumptive legitimes

in cash, property, or sound securities.
(b) The court shall quote in the Decree the dispositive
portion of the judgment entered and attach to the
Decree the approved deed of partition.
(b) If the party dies after the entry of judgment of

nullity or annulment, the judgment shall be binding
upon the parties and their successors in interest in the
settlement of the estate in the regular courts.
Except in the case of children under Articles 36

and 53 of the Family Code, the court shall order the
Local Civil Registrar to issue an amended birth
certificate indicating the new civil status of the
children affected.
Section 25. Effectlvity. - This Rule shall take effect on

March 15, 2003 following its publication in a
newspaper of general circulation not later than March
7, 2003.
Section 23. Registration and publication of the decree;

decree as best evidence. - (a) The prevailing party
81
Republic Act No. 6809

1989
December 13,
"Nothing in this Code shall be construed to derogate

from the duty or responsibility of parents and
guardians for children and wards below twenty-one
years of age mentioned in the second and third
paragraphs of Article 2180 of the Civil Code."
AN ACT LOWERING THE AGE OF MAJORITY FROM

TWENTY-ONE TO EIGHTEEN YEARS, AMENDING
FOR THE PURPOSE EXECUTIVE ORDER
NUMBERED TWO HUNDRED NINE, AND FOR
OTHER PURPOSES
Section 4.
Upon the effectivity of this Act, existing
wills, bequests, donations, grants, insurance policies
and similar instruments containing references and
provisions favorable to minors will not retroact to their
prejudice.
Be it enacted by the Senate and House of

Representatives of the Philippines in Congress
assembled::
Section 5.
This Act shall take effect upon completion
of its publication in at least two (2) newspapers of
general circulation.
Section 1.
Article 234 of Executive Order No. 209,
the Family Code of the Philippines, is hereby amended
to read as follows:
Approved: December 13, 1989

"Art. 234.
Emancipation takes place by the
attainment of majority. Unless otherwise provided,
majority commences at the age of eighteen years."
Republic Act No. 8533
February 23, 1998
AN ACT AMENDING TITLE I, CHAPTER 3, ARTICLE

39 OF EXECUTIVE ORDER NO. 209, OTHERWISE
KNOWN AS THE FAMILY CODE OF THE
PHILIPPINES, NULLIFYING THE PRESCRIPTIVE
PERIOD FOR ACTION OR DEFENSES GROUNDED
ON PSYCHOLOGICAL INCAPACITY
Section 2.
Articles 235 and 237 of the same Code
are hereby repealed.
Section 3.
Article 236 of the same Code is also
"Art. 236.
Emancipation shall terminate parental
authority over the person and property of the child
who shall then be qualified and responsible for all acts
of civil life, save the exceptions established by existing
laws in special cases.
Be it enacted by the Senate and House of

Representatives of the Philippines in Congress
assembled::
Section 1. Title I, Chapter 3, Article 39 of Executive
Order No. 209, otherwise known as the Family Code of
the Philippines, is hereby amended to read as follows:
"Contracting marriage shall require parental consent

until the age of twenty-one.
82
"TITLE I MARRIAGE
"CHAPTER 3 VOID AND VOIDABLE MARRIAGES
Resolution denying reconsideration. The assailed

Decision affirmed the ruling of the Regional Trial Court
(RTC) of Bacolod City in Criminal Case No. 13848,
which convicted herein petitioner of bigamy as follows:
"Art. 39. The action or defense for the declaration of

absolute nullity of a marriage shall not prescribe."
"WHEREFORE, finding the guilt of accused Dr. Vincent

Paul G. Mercado a.k.a. Dr. Vincent G. Mercado of the
crime of Bigamy punishable under Article 349 of the
Revised Penal Code to have been proven beyond
reasonable doubt, [the court hereby renders] judgment
imposing upon him a prison term of three (3) years,
four (4) months and fifteen (15) days of prision
correccional, as minimum of his indeterminate
sentence, to eight (8) years and twenty-one (21) days
of prision mayor, as maximum, plus accessory
penalties provided by law.
Section 2. Effectivity clause. This Act shall take effect

after fifteen (15) days following its publication in the
Official Gazette or in two (2) newspapers of general
circulation.
Approved: February 23, 1998
G.R. No. 137110
August 1, 2000
VINCENT PAUL G. MERCADO a.k.a. VINCENT G.
MERCADO, petitioner,
vs.
CONSUELO TAN, respondent.
DECISION
Costs against accused."2

The Facts
PANGANIBAN, J.:
The facts are quoted by Court of Appeals (CA) from the

trial courts judgment, as follows: "From the evidence
adduced by the parties, there is no dispute that
accused Dr. Vincent Mercado and complainant Ma.
Consuelo Tan got married on June 27, 1991 before
MTCC-Bacolod City Br. 7 Judge Gorgonio J. Ibaez [by
reason of] which a Marriage Contract was duly
executed and signed by the parties. As entered in said
document, the status of accused was single. There is
no dispute either that at the time of the celebration of
the wedding with complainant, accused was actually a
married man, having been in lawful wedlock with Ma.
Thelma Oliva in a marriage ceremony solemnized on
April 10, 1976 by Judge Leonardo B. Caares, CFI-Br.
XIV, Cebu City per Marriage Certificate issued in
A judicial declaration of nullity of a previous marriage

is necessary before a subsequent one can be legally
contracted. One who enters into a subsequent
marriage without first obtaining such judicial
declaration is guilty of bigamy. This principle applies
even if the earlier union is characterized by statute as
"void."
The Case
Before us is a Petition for Review on Certiorari assailing
the July 14, 1998 Decision of the Court of Appeals
(CA)1 in CA-GR CR No. 19830 and its January 4, 1999
83
connection therewith, which matrimony was further

blessed by Rev. Father Arthur Baur on October 10,
1976 in religious rites at the Sacred Heart Church,
Cebu City. In the same manner, the civil marriage
between accused and complainant was confirmed in a
church ceremony on June 29, 1991 officiated by Msgr.
Victorino A. Rivas, Judicial Vicar, Diocese of Bacolod
City. Both marriages were consummated when out of
the first consortium, Ma. Thelma Oliva bore accused
two children, while a child, Vincent Paul, Jr. was sired
by accused with complainant Ma. Consuelo Tan.
elements of the crime are present, namely: (a) that the

offender has been previously legally married; (2) that
the first marriage has not been legally dissolved or in
case the spouse is absent, the absent spouse could not
yet be presumed dead according to the Civil Code; (3)
that he contract[ed] a second or subsequent marriage;
and (4) that the second or subsequent marriage ha[d]
all the essential requisites for validity. x x x
"While acknowledging the existence of the two
marriage[s], accused posited the defense that his
previous marriage ha[d] been judicially declared null
and void and that the private complainant had
knowledge of the first marriage of accused.
"On October 5, 1992, a letter-complaint for bigamy

was filed by complainant through counsel with the City
Prosecutor of Bacolod City, which eventually resulted
[in] the institution of the present case before this Court
against said accused, Dr. Vincent G. Mercado, on
March 1, 1993 in an Information dated January 22,
1993.
"It is an admitted fact that when the second marriage

was entered into with Ma. Consuelo Tan on June 27,
1991, accuseds prior marriage with Ma. Thelma V.
Oliva was subsisting, no judicial action having yet been
initiated or any judicial declaration obtained as to the
nullity of such prior marriage with Ma. Thelma V. Oliva.
Since no declaration of the nullity of his first marriage
ha[d] yet been made at the time of his second
marriage, it is clear that accused was a married man
when he contracted such second marriage with
complainant on June 27, 1991. He was still at the time
validly married to his first wife."3
"On November 13, 1992, or more than a month after

the bigamy case was lodged in the Prosecutors Office,
accused filed an action for Declaration of Nullity of
Marriage against Ma. Thelma V. Oliva in RTC-Br. 22,
Cebu City, and in a Decision dated May 6, 1993 the
marriage between Vincent G. Mercado and Ma. Thelma
V. Oliva was declared null and void.
"Accused is charged [with] bigamy under Article 349 of
the Revised Penal Code for having contracted a second
marriage with herein complainant Ma. Consuelo Tan on
June 27, 1991 when at that time he was previously
united in lawful marriage with Ma. Thelma V. Oliva on
April 10, 1976 at Cebu City, without said first marriage
having been legally dissolved. As shown by the
evidence and admitted by accused, all the essential
Ruling of the Court of Appeals

Agreeing with the lower court, the Court of Appeals
stated:
"Under Article 40 of the Family Code, the absolute
nullity of a previous marriage may be invoked for
purposes of remarriage on the basis solely of a final
84
judgment declaring such previous marriage void. But

here, the final judgment declaring null and void
accuseds previous marriage came not before the
celebration of the second marriage, but after, when
the case for bigamy against accused was already tried
in court. And what constitutes the crime of bigamy is
the act of any person who shall contract a second
subsequent marriage before the former marriage has
been legally dissolved."4
The Petition is not meritorious.

Main Issue:Effect of Nullity of Previous Marriage
Petitioner was convicted of bigamy under Article 349
of the Revised Penal Code, which provides:
"The penalty of prision mayor shall be imposed upon
any person who shall contract a second or subsequent
marriage before the former marriage has been legally
dissolved, or before the absent spouse has been
declared presumptively dead by means of a judgment
rendered in the proper proceedings."
Hence, this Petition.5

The Issues
In his Memorandum, petitioner raises the following
issues:
The elements of this crime are as follows:

"1. That the offender has been legally married;
"A
2. That the marriage has not been legally dissolved or,
in case his or her spouse is absent, the absent spouse
could not yet be presumed dead according to the Civil
Code;
Whether or not the element of previous legal marriage

is present in order to convict petitioner.
"B
3. That he contracts a second or subsequent marriage;

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

essential requisites for validity."7
When the Information was filed on January 22, 1993,
all the elements of bigamy were present. It is
undisputed that petitioner married Thelma G. Oliva on
April 10, 1976 in Cebu City. While that marriage was
still subsisting, he contracted a second marriage, this
time with Respondent Ma. Consuelo Tan who
subsequently filed the Complaint for bigamy.
"C
Whether or not petitioner is entitled to an acquittal on
the basis of reasonable doubt."6
The Courts Ruling
85
Petitioner contends, however, that he obtained a

judicial declaration of nullity of his first marriage under
Article 36 of the Family Code, thereby rendering it void
ab initio. Unlike voidable marriages which are
considered valid until set aside by a competent court,
he argues that a void marriage is deemed never to
have taken place at all.8 Thus, he concludes that there
is no first marriage to speak of. Petitioner also quotes
the commentaries9 of former Justice Luis Reyes that "it
is now settled that if the first marriage is void from the
beginning, it is a defense in a bigamy charge. But if
the first marriage is voidable, it is not a defense."
Since the second marriage was obviously void and

illegal, the Court ruled that there was no need for a
judicial declaration of its nullity. Hence, the accused
did not commit bigamy when he married for the third
time. This ruling was affirmed by the Court in People v.
Aragon,12 which involved substantially the same facts.
But in subsequent cases, the Court impressed the
need for a judicial declaration of nullity. In Vda de
Consuegra v. GSIS,13 Jose Consuegra married for the
second time while the first marriage was still
subsisting. Upon his death, the Court awarded one half
of the proceeds of his retirement benefits to the first
wife and the other half to the second wife and her
children, notwithstanding the manifest nullity of the
second marriage. It held: "And with respect to the right
of the second wife, this Court observes that although
the second marriage can be presumed to be void ab
initio as it was celebrated while the first marriage was
still subsisting, still there is need for judicial
declaration of such nullity."
Respondent, on the other hand, admits that the first

marriage was declared null and void under Article 36
of the Family Code, but she points out that that
declaration came only after the Information had been
filed. Hence, by then, the crime had already been
consummated. She argues that a judicial declaration of
nullity of a void previous marriage must be obtained
before a person can marry for a subsequent time.
We agree with the respondent.
In Tolentino v. Paras,14 however, the Court again held

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

judicial declaration of nullity of the previous marriage
has been characterized as "conflicting."10 In People v.
Mendoza,11 a bigamy case involving an accused who
married three times, the Court ruled that there was no
need for such declaration. In that case, the accused
contracted a second marriage during the subsistence
of the first. When the first wife died, he married for the
third time. The second wife then charged him with
bigamy. Acquitting him, the Court held that the second
marriage was void ab initio because it had been
contracted while the first marriage was still in effect.
86
In Wiegel v. Sempio-Diy,15 the Court stressed the need

for such declaration. In that case, Karl Heinz Wiegel
filed an action for the declaration of nullity of his
marriage to Lilia Olivia Wiegel on the ground that the
latter had a prior existing marriage. After pretrial, Lilia
asked that she be allowed to present evidence to
prove, among others, that her first husband had
previously been married to another woman. In holding
that there was no need for such evidence, the Court
ruled: "x x x There is likewise no need of introducing
evidence about the existing prior marriage of her first
husband at the time they married each other, for then
such a marriage though void still needs, according to
this Court, a judicial declaration of such fact and for all
legal intents and purposes she would still be regarded
as a married woman at the time she contracted her
marriage with respondent Karl Heinz Wiegel; x x x."
the person who marries again cannot be charged with

bigamy."18
Unlike Mendoza and Aragon, Domingo as well as the
other cases herein cited was not a criminal prosecution
for bigamy. Nonetheless, Domingo underscored the
need for a judicial declaration of nullity of a void
marriage on the basis of a new provision of the Family
Code, which came into effect several years after the
promulgation of Mendoza and Aragon.
In Mendoza and Aragon, the Court relied on Section 29
of Act No. 3613 (Marriage Law), which provided:
"Illegal marriages. Any marriage subsequently
contracted by any person during the lifetime of the
first spouse shall be illegal and void from its
performance, unless:
Subsequently, in Yap v. CA,16 the Court reverted to the

ruling in People v. Mendoza, holding that there was no
need for such declaration of nullity.
(a) The first marriage was annulled or dissolved;

(b) The first spouse had been absent for seven
consecutive years at the time of the second marriage
without the spouse present having news of the
absentee being alive, or the absentee being generally
considered as dead and believed to be so by the
spouse present at the time of contracting such
subsequent marriage, the marriage as contracted
being valid in either case until declared null and void
by a competent court."
In Domingo v. CA,17 the issue raised was whether a

judicial declaration of nullity was still necessary for the
recovery and the separation of properties of erstwhile
spouses. Ruling in the affirmative, the Court declared:
"The Family Code has settled once and for all the
conflicting jurisprudence on the matter. A declaration
of the absolute nullity of a marriage is now explicitly
required either as a cause of action or a ground for
defense; in fact, the requirement for a declaration of
absolute nullity of a marriage is also for the protection
of the spouse who, believing that his or her marriage is
illegal and void, marries again. With the judicial
declaration of the nullity of his or her first marriage,
The Court held in those two cases that the said

provision "plainly makes a subsequent marriage
contracted by any person during the lifetime of his first
spouse illegal and void from its performance, and no
87
judicial decree is necessary to establish its invalidity,

as distinguished from mere annulable marriages."19
judicial declaration of nullity of a void marriage -- has

been cast aside by Article 40 of the Family Code. Such
declaration is now necessary before one can contract a
second marriage. Absent that declaration, we hold that
one may be charged with and convicted of bigamy.
The provision appeared in substantially the same form

under Article 83 of the 1950 Civil Code and Article 41
of the Family Code. However, Article 40 of the Family
Code, a new provision, expressly requires a judicial
declaration of nullity of the previous marriage, as
follows:
The present ruling is consistent with our

pronouncement in Terre v. Terre,21 which involved an
administrative Complaint against a lawyer for marrying
twice. In rejecting the lawyers argument that he was
free to enter into a second marriage because the first
one was void ab initio, the Court ruled: "for purposes
of determining whether a person is legally free to
contract a second marriage, a judicial declaration that
the first marriage was null and void ab initio is
essential." The Court further noted that the said rule
was "cast into statutory form by Article 40 of the
Family Code." Significantly, it observed that the second
marriage, contracted without a judicial declaration that
the first marriage was void, was "bigamous and
criminal in character."
"ART. 40. The absolute nullity of a previous marriage

basis solely of a final judgment declaring such
marriage void."
In view of this provision, Domingo stressed that a final
judgment declaring such marriage void was necessary.
Verily, the Family Code and Domingo affirm the earlier
ruling in Wiegel. Thus, a Civil Law authority and
member of the Civil Code Revision Commitee has
observed:
"[Article 40] is also in line with the recent decisions of
the Supreme Court that the marriage of a person may
be null and void but there is need of a judicial
declaration of such fact before that person can marry
again; otherwise, the second marriage will also be void
(Wiegel v. Sempio-Diy, Aug. 19/86, 143 SCRA 499, Vda.
De Consuegra v. GSIS, 37 SCRA 315). This provision
changes the old rule that where a marriage is illegal
and void from its performance, no judicial decree is
necessary to establish its validity (People v. Mendoza,
95 Phil. 843; People v. Aragon, 100 Phil. 1033)."20
Moreover, Justice Reyes, an authority in Criminal Law

whose earlier work was cited by petitioner, changed
his view on the subject in view of Article 40 of the
Family Code and wrote in 1993 that a person must first
obtain a judicial declaration of the nullity of a void
marriage before contracting a subsequent marriage:22
"It is now settled that the fact that the first marriage is
void from the beginning is not a defense in a bigamy
charge. As with a voidable marriage, there must be a
judicial declaration of the nullity of a marriage before
contracting the second marriage. Article 40 of the
Family Code states that x x x. The Code Commission
believes that the parties to a marriage should not be
In this light, the statutory mooring of the ruling in

Mendoza and Aragon that there is no need for a
88
allowed to assume that their marriage is void, even if

such is the fact, but must first secure a judicial
declaration of nullity of their marriage before they
should be allowed to marry again. x x x."
affirmative relief from this Court.24 In any event, we

find no reason to reverse or set aside the pertinent
ruling of the CA on this point, which we quote
hereunder:
In the instant case, petitioner contracted a second

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

presented in this case that Consuelo Tan is not the
innocent victim that she claims to be; she was well
aware of the existence of the previous marriage when
she contracted matrimony with Dr. Mercado. The
testimonies of the defense witnesses prove this, and
we find no reason to doubt said testimonies.
That he subsequently obtained a judicial declaration of

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

aware of his previous marriage does not inspire belief,
especially as she had seen that Dr. Mercado had two
(2) children with him. We are convinced that she took
the plunge anyway, relying on the fact that the first
wife would no longer return to Dr. Mercado, she being
by then already living with another man.
xxx
xxx
xxx
"Consuelo Tan can therefore not claim damages in this

case where she was fully conscious of the
consequences of her act. She should have known that
she would suffer humiliation in the event the truth
[would] come out, as it did in this case, ironically
because of her personal instigation. If there are indeed
damages caused to her reputation, they are of her own
willful making."25
Under the circumstances of the present case, he is

guilty of the charge against him.
Damages
In her Memorandum, respondent prays that the Court
set aside the ruling of the Court of Appeals insofar as it
denied her claim of damages and attorneys fees.23
WHEREFORE, the Petition is DENIED and the assailed

Decision AFFIRMED. Costs against petitioner.
Her prayer has no merit. She did not appeal the ruling
of the CA against her; hence, she cannot obtain
SO ORDERED.
89
8 Citing Tolentino, Civil Code of the Philippines:

Commentaries and Jurisprudence, Vol. I, p. 265.
Melo, (Chairman), Purisima, and Gonzaga-Reyes, JJ.,

concur.
Vitug, J., see concurring and dissenting opinion.
9 Reyes, The Revised Penal Code, Book Two, 12th ed.

(1981), p. 907.9
Footnotes
10 Domingo v. CA, 226 SCRA 572, September 17,

1993, per Romero, J.
1 Penned by J. Salome A. Montoya, Division chairman;

with the concurrence of JJ Conchita Carpio Morales and
Bernardo P. Abesamis, members.
11 95 Phil. 845, September 28, 1954.

12 100 Phil. 1033, February 28, 1957.
2 RTC Decision, pp. 16-17; rollo, pp. 136-137. This was

written by Judge Edgar G. Garvilles.
13 37 SCRA 315, 326, January 30, 1971, per Zaldivar, J.

Emphasis supplied. See also Gomez v. Lipana, 33 SCRA
615, June 30, 1970.
3 CA Decision, pp. 2-4; rollo, pp. 45-47.

4 Ibid., p. 6; rollo, p. 13.
14 122 SCRA 525,529, May 30, 1983; per MelencioHerrera, J. Emphasis supplied.
5 The case was deemed submitted for resolution on

May 26, 2000, upon receipt by this Court of the OSG
Memorandum signed by Sol. Gen. Ricardo P. Galvez,
Asst. Sol. Gen. Mariano M Martinez and Sol. Jesus P.
Castelo. Respondents Memorandum, which was
signed by Atty. Julius C. Baldado, was received on
November 11, 1999; while petitioners Memorandum,
signed by Attys. Bernard B. Lopez and Maritoni Z.
Liwanag, had been filed earlier on September 30,
1999.
15 143 SCRA 499, August 19, 1986, per Paras, J.

Emphasis supplied.
16 145 SCRA 229, October 28, 1986.
17 226 SCRA 572, September 17, 1993, per Romero, J,
citing Sempio-Diy, Handbook of the Family Code of the
Philippines, 1988, p. 46.
18 Supra, p. 579.
6 Petitioners Memorandum, p. 5; rollo, p. 215.

19 People v. Mendoza, 95 Phil. 845, 847, September
28, 1954, per Paras, CJ. See also People v. Aragon, 100
Phil. 1033, 1034-1035, February 28, 1957, per
Labrador, J.
7 Reyes, The Revised Penal Code, Book Two, 13th ed.

(1993), p. 828.
90
20 Sempio-Diy, Handbook on the Family Code of the

Philippines, 1995 ed., p. 56.
The civil law rule stated in Article 40 of the Family

Code is a given but I have strong reservations on its
application beyond what appears to be its expressed
context. The subject of the instant petition is a criminal
prosecution, not a civil case, and the ponencia affirms
the conviction of petitioner Vincent Paul G. Mercado for
bigamy.
21 211 SCRA 6, 11, July 3, 1992, per curiam.

22 Reyes, Revised Penal Code, Book Two, 13th ed.
(1993), p. 829. Emphasis supplied. Petitioner had cited
the statement of Justice Reyes that "if the first
marriage is void from the beginning, it is a defense in a
bigamy charge." This statement, however, appeared in
the 1981 edition of Reyes book, before the enactment
of the Family Code.
Article 40 of the Family code reads:

"ART. 40. The absolute nullity of a previous marriage
marriage void."
23 Respondents Memorandum, p. 16; rollo, p. 259.

24 Lagandaon v. Court of Appeals, 290 SCRA 330, May
21, 1998; Dio v. Concepcion, 296 SCRA 579,
September 25, 1998.
The phrase "for purposes of remarriage" is not at all

insignificant. Void marriages, like void contracts, are
inexistent from the very beginning. It is only by way of
exception that the Family code requires a judicial
declaration of nullity of the previous marriage before a
subsequent marriage is contracted; without such
declaration, the validity and the full legal consequence
of the subsequent marriage would itself be in similar
jeopardy under Article 53, in relation to Article 52, of
the Family Code. Parenthetically, I would daresay that
the necessity of a judicial declaration of nullity of a
void marriage for the purpose of remarriage should be
held to refer merely to cases where it can be said that
a marriage, at least ostensibly, had taken place. No
such judicial declaration of nullity, in my view, should
still be deemed essential when the "marriage," for
instance, is between persons of the same sex or when
either or both parties had not at all given consent to
the "marriage." Indeed, it is likely that Article 40 of the
Family Code has been meant and intended to refer
25 CA Decision, pp. 7-9; rollo, pp. 50-52.

The Lawphil Project - Arellano Law Foundation
CONCURRING AND DISSENTING OPINION
VITUG, J.:
At the pith of the controversy is the defense of the
absolute nullity of a previous marriage in an
indictment for bigamy. The majority opinion, penned
by my esteemed brother, Mr. Justice Artemio V.
Panganiban, enunciates that it is only a judicially
decreed prior void marriage which can constitute a
defense against the criminal charge.
91
only to marriages declared void under the provisions of

Articles 35, 36, 37, 38 and 53 thereof.
total nullity and inexistent, should be capable of being

independently raised by way of a defense in a criminal
case for bigamy. I see no incongruence between this
rule in criminal law and that of the Family Code, and
each may be applied within the respective spheres of
governance.
In fine, the Family Code, I respectfully submit, did not

have the effect of overturning the rule in criminal law
and related jurisprudence. The Revised Penal Code
expresses:
Accordingly, I vote to grant the petition.

"Art. 349. Bigamy.---The penalty of prision mayor shall
be imposed upon any person who shall contract a
proceedings.
Footnotes
1 100 Phil. 1033.
Surely, the foregoing provision contemplated an

existing, not void, prior marriage. Covered by article
349 would thus be, for instance, a voidable marriage,
it obviously being valid and subsisting until set aside
by a competent court. As early as People vs. Aragon,1
this Court has underscored:
"xxx Our Revised Penal Code is of recent enactment
and had the rule enunciated in Spain and in America
requiring judicial declaration of nullity of ab initio void
marriages been within the contemplation of the
legislature, an express provision to that effect would or
should have been inserted in the law. In its absence,
we are bound by said rule of strict interpretation."
Unlike a voidable marriage which legally exists until
judicially annulled (and therefore not a defense in
bigamy if the second marriage were contracted prior
to the decree of annulment), the complete nullity,
however, of a previously contracted marriage, being a
92
marriage contract between him and Villareyes.

Invoking this previous marriage, petitioner thereafter
left the conjugal dwelling which he shared with
Ancajas, stating that he was going to cohabit with
Villareyes.1
G.R. No. 150758

February 18, 2004
VERONICO TENEBRO, petitioner
vs.
THE HONORABLE COURT OF APPEALS,
respondent.
On January 25, 1993, petitioner contracted yet another

marriage, this one with a certain Nilda Villegas, before
Judge German Lee, Jr. of the Regional Trial Court of
Cebu City, Branch 15.2 When Ancajas learned of this
third marriage, she verified from Villareyes whether
the latter was indeed married to petitioner. In a
handwritten letter,3 Villareyes confirmed that
petitioner, Veronico Tenebro, was indeed her husband.
DECISION
We are called on to decide the novel issue concerning
the effect of the judicial declaration of the nullity of a
second or subsequent marriage, on the ground of
psychological incapacity, on an individuals criminal
liability for bigamy. We hold that the subsequent
judicial declaration of nullity of marriage on the ground
of psychological incapacity does not retroact to the
date of the celebration of the marriage insofar as the
Philippines penal laws are concerned. As such, an
individual who contracts a second or subsequent
marriage during the subsistence of a valid marriage is
criminally liable for bigamy, notwithstanding the
subsequent declaration that the second marriage is
void ab initio on the ground of psychological
incapacity.
Ancajas thereafter filed a complaint for bigamy against

petitioner.4 The Information,5 which was docketed as
Criminal Case No. 013095-L, reads:
That on the 10th day of April 1990, in the City of Lapulapu, Philippines, and within the jurisdiction of this
Honorable Court, the aforenamed accused, having
been previously united in lawful marriage with Hilda
Villareyes, and without the said marriage having been
legally dissolved, did then and there willfully,
unlawfully and feloniously contract a second marriage
with LETICIA ANCAJAS, which second or subsequent
marriage of the accused has all the essential requisites
for validity were it not for the subsisting first marriage.
Petitioner in this case, Veronico Tenebro, contracted

marriage with private complainant Leticia Ancajas on
April 10, 1990. The two were wed by Judge Alfredo B.
Perez, Jr. of the City Trial Court of Lapu-lapu City.
Tenebro and Ancajas lived together continuously and
without interruption until the latter part of 1991, when
Tenebro informed Ancajas that he had been previously
married to a certain Hilda Villareyes on November 10,
1986. Tenebro showed Ancajas a photocopy of a
CONTRARY TO LAW.
When arraigned, petitioner entered a plea of "not
guilty".6
93
During the trial, petitioner admitted having cohabited

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

FOR (sic) THE CRIME OF BIGAMY DESPITE CLEAR
PROOF THAT THE MARRIAGE BETWEEN THE ACCUSED
AND PRIVATE COMPLAINANT HAD BEEN DECLARED
NULL AND VOID AB INITIO AND WITHOUT LEGAL FORCE
AND EFFECT.11
On November 10, 1997, the Regional Trial Court of

Lapu-lapu City, Branch 54, rendered a decision finding
the accused guilty beyond reasonable doubt of the
crime of bigamy under Article 349 of the Revised Penal
Code, and sentencing him to four (4) years and two (2)
months of prision correccional, as minimum, to eight
(8) years and one (1) day of prision mayor, as
maximum.10 On appeal, the Court of Appeals affirmed
the decision of the trial court. Petitioners motion for
reconsideration was denied for lack of merit.
(1) that the offender has been legally married;
After a careful review of the evidence on record, we

find no cogent reason to disturb the assailed
judgment.
Under Article 349 of the Revised Penal Code, the
elements of the crime of Bigamy are:
(2) that the first marriage has not been legally

dissolved or, in case his or her spouse is absent, the
absent spouse could not yet be presumed dead
according to the Civil Code;
(3) that he contracts a second or subsequent
marriage; and
(4) that the second or subsequent marriage has all the
essential requisites for validity.12
Hence, the instant petition for review on the following

assignment of errors:
Petitioners assignment of errors presents a two-tiered

defense, in which he (1) denies the existence of his
first marriage to Villareyes, and (2) argues that the
declaration of the nullity of the second marriage on the
ground of psychological incapacity, which is an alleged
indicator that his marriage to Ancajas lacks the
essential requisites for validity, retroacts to the date
on which the second marriage was celebrated.13
Hence, petitioner argues that all four of the elements
I. THE HONORABLE COURT OF APPEALS GRAVELY

ERRED, AND THIS ERROR IS CORRECTIBLE IN THIS
APPEAL WHEN IT AFFIRMED THE DECISION OF THE
HONORABLE COURT A QUO CONVICTING THE ACCUSED
FOR (sic) THE CRIME OF BIGAMY, DESPITE THE NONEXISTENCE OF THE FIRST MARRIAGE AND
INSUFFICIENCY OF EVIDENCE.
94
of the crime of bigamy are absent, and prays for his

acquittal.14
relevant to public documents are applicable to all.

Pertinent to the marriage contract, Section 7 of Rule
130 of the Rules of Court reads as follows:
Petitioners defense must fail on both counts.

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

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

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

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

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

cannot adequately assail the marriage contract, which
in itself would already have been sufficient to establish
the existence of a marriage between Tenebro and
Villareyes.
All three of these documents fall in the category of
public documents, and the Rules of Court provisions
95
The marriage contract presented by the prosecution

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

effects of the subsequent judicial declaration20 of the
nullity of the second marriage on the ground of
psychological incapacity.
Petitioner argues that this subsequent judicial
declaration retroacts to the date of the celebration of
the marriage to Ancajas. As such, he argues that, since
his marriage to Ancajas was subsequently declared
void ab initio, the crime of bigamy was not
committed.21
This argument is not impressed with merit.
Petitioner makes much of the judicial declaration of the
nullity of the second marriage on the ground of
psychological incapacity, invoking Article 36 of the
Family Code. What petitioner fails to realize is that a
declaration of the nullity of the second marriage on the
ground of psychological incapacity is of absolutely no
moment insofar as the States penal laws are
concerned.
Finally, although the accused claims that he took steps

to verify the non-existence of the first marriage to
Villareyes by requesting his brother to validate such
purported non-existence, it is significant to note that
the certifications issued by the National Statistics
Office and the City Civil Registry of Manila are dated
October 7, 1995 and February 3, 1997, respectively.
Both documents, therefore, are dated after the
accuseds marriage to his second wife, private
respondent in this case.
As a second or subsequent marriage contracted during

the subsistence of petitioners valid marriage to
Villareyes, petitioners marriage to Ancajas would be
null and void ab initio completely regardless of
petitioners psychological capacity or incapacity.22
Since a marriage contracted during the subsistence of
a valid marriage is automatically void, the nullity of
this second marriage is not per se an argument for the
avoidance of criminal liability for bigamy. Pertinently,
Article 349 of the Revised Penal Code criminalizes "any
person who shall contract a second or subsequent
marriage before the former marriage has been legally
As such, this Court rules that there was sufficient

evidence presented by the prosecution to prove the
first and second requisites for the crime of bigamy.
96
dissolved, or before the absent spouse has been

declared presumptively dead by means of a judgment
rendered in the proper proceedings". A plain reading of
the law, therefore, would indicate that the provision
penalizes the mere act of contracting a second or a
subsequent marriage during the subsistence of a valid
marriage.
solemnizing officer in the presence of at least two

witnesses).24 Under Article 5 of the Family Code, any
male or female of the age of eighteen years or
upwards not under any of the impediments mentioned
in Articles 3725 and 3826 may contract marriage.27
In this case, all the essential and formal requisites for
the validity of marriage were satisfied by petitioner
and Ancajas. Both were over eighteen years of age,
and they voluntarily contracted the second marriage
with the required license before Judge Alfredo B. Perez,
Jr. of the City Trial Court of Lapu-lapu City, in the
presence of at least two witnesses.
Thus, as soon as the second marriage to Ancajas was

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

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

marriage on the ground of psychological incapacity is
not an indicator that petitioners marriage to Ancajas
lacks the essential requisites for validity. The requisites
for the validity of a marriage are classified by the
Family Code into essential (legal capacity of the
contracting parties and their consent freely given in
the presence of the solemnizing officer)23 and formal
(authority of the solemnizing officer, marriage license,
and marriage ceremony wherein the parties personally
declare their agreement to marry before the
97
As such, we rule that the third and fourth requisites for

the crime of bigamy are present in this case, and
affirm the judgment of the Court of Appeals.
WHEREFORE, in view of all the foregoing, the instant

petition for review is DENIED. The assailed decision of
the Court of Appeals in CA-G.R. CR No. 21636,
convicting petitioner Veronico Tenebro of the crime of
Bigamy and sentencing him to suffer the
indeterminate penalty of four (4) years and two (2)
months of prision correccional, as minimum, to eight
(8) years and one (1) day of prision mayor, as
maximum, is AFFIRMED in toto.
As a final point, we note that based on the evidence on

record, petitioner contracted marriage a third time,
while his marriages to Villareyes and Ancajas were
both still subsisting. Although this is irrelevant in the
determination of the accuseds guilt for purposes of
this particular case, the act of the accused displays a
deliberate disregard for the sanctity of marriage, and
the State does not look kindly on such activities.
Marriage is a special contract, the key characteristic of
which is its permanence. When an individual manifests
a deliberate pattern of flouting the foundation of the
States basic social institution, the States criminal
laws on bigamy step in.
SO ORDERED.
Davide, Jr., C.J. (Chairman), Panganiban, SandovalGutierrez, Corona, and Azcuna, JJ., concur.
Puno, J., join the opinion of J. Vitug.
Vitug, J., see separate opinion.
Quisumbing, J., join the dissent in view of void nuptia.
Carpio, J., see dissenting opinion.
Austria-Martinez, J., join the dissent of J. Carpio.
Carpio-Morales, J., join the dissent of J. Carpio.
Tinga, J., join the dissent of J. Carpio.
Callejo, Sr., J., see separate dissent.
Under Article 349 of the Revised Penal Code, as

amended, the penalty for the crime of bigamy is
prision mayor, which has a duration of six (6) years
and one (1) day to twelve (12) years. There being
neither aggravating nor mitigating circumstance, the
same shall be imposed in its medium period. Applying
the Indeterminate Sentence Law, petitioner shall be
entitled to a minimum term, to be taken from the
penalty next lower in degree, i.e., prision correccional
which has a duration of six (6) months and one (1) day
to six (6) years. Hence, the Court of Appeals correctly
affirmed the decision of the trial court which sentenced
petitioner to suffer an indeterminate penalty of four (4)
years and two (2) months of prision correccional, as
minimum, to eight (8) years and one (1) day of prision
mayor, as maximum.
SEPARATE OPINION>
VITUG, J.:
Veronico Tenebro has been charged with bigamy for
contracting, while still being married to Hilda
Villareyes, a second marriage with private complainant
Leticia Ancajas. Tenebro argues that since his second
marriage with Ancajas has ultimately been declared
void ab initio on the ground of the latters
psychological incapacity, he should be acquitted for
the crime of bigamy.
98
the decree of annulment)4 the complete nullity,

however, of a previously contracted marriage, being
void ab initio and legally inexistent, can outrightly be
defense in an indictment of bigamy.
The offense of bigamy is committed when one

contracts "a second or subsequent marriage before the
former marriage has been legally dissolved, or before
the absent spouse has been declared presumptively
dead by means of a judgment rendered in the proper
proceedings".1 Bigamy presupposes a valid prior
marriage and a subsequent marriage, contracted
during the subsistence of the prior union, which would
have been binding were it not for its being bigamous.
It has been held that, by virtue of Article 40 of the

Family Code, a person may be convicted of bigamy
although the first marriage is ultimately adjudged void
ab initio if, at the time the second marriage is
contracted, there has as yet no judicial declaration of
nullity of the prior marriage.5 I maintain strong
reservations to this ruling. Article 40 of the Family
Code reads:
Would the absolute nullity of either the first or the

second marriage, prior to its judicial declaration as
being void, constitute a valid defense in a criminal
action for bigamy?
"Article 40. The absolute nullity of the previous

marriage may be invoked for purposes of remarriage
on the basis solely of the final judgment declaring such
previous marriage void."
I believe that, except for a void marriage on account of

the psychological incapacity of a party or both parties
to the marriage under Article 36 of the Family Code (as
so hereinafter explained), the answer must be in the
affirmative. Void marriages are inexistent from the
very beginning, and no judicial decree is required to
establish their nullity.2 As early as the case of People
vs. Aragon3 this Court has underscored the fact that
the Revised Penal Code itself does not, unlike the rule
then prevailing in Spain, require the judicial
declaration of nullity of a prior void marriage before it
can be raised by way of a defense in a criminal case
for bigamy. Had the law contemplated otherwise, said
the Court, " an express provision to that effect would
or should have been inserted in the law, (but that in)
its absence, (the courts) are bound by (the) rule of
strict interpretation" of penal statutes. In contrast to a
voidable marriage which legally exists until judicially
annulled (and, therefore, not a defense in a bigamy
charge if the second marriage were contracted prior to
It is only "for purpose of remarriage" that the law has

expressed that the absolute nullity of the previous
marriage may be invoked "on the basis solely of the
final judgment declaring such previous marriage void."
It may not be amiss to state that under the regime of
the Civil Code of 1950, the Supreme Court, in Wiegel
vs. Judge Sempio-Diy,6 has held that a subsequent
marriage of one of the spouses of a prior void marriage
is itself (the subsequent marriage) void if it were
contracted before a judicial declaration of nullity of the
previous marriage. Although this pronouncement has
been abandoned in a later decision of the court in Yap
vs. Court of Appeals,7 the Family Code, however has
seen it fit to adopt the Wiegel rule but only for purpose
of remarriage which is just to say that the subsequent
marriage shall itself be considered void. There is no
clear indication to conclude that the Family Code has
99
amended or intended to amend the Revised penal

Code or to abandon the settled and prevailing
jurisprudence on the matter.8
parties) which are capable of relatively easy

demonstration, psychological incapacity, however,
being a mental state, may not so readily be as
evident.11 It would have been logical for the Family
Code to consider such a marriage explicitly voidable
rather than void if it were not for apparent attempt to
make it closely coincide with the Canon Law rules and
nomenclature.
A void marriage under Article 36 of the Family Code is

a class by itself. The provision has been from Canon
law primarily to reconcile the grounds for nullity of
marriage under civil law with those of church laws.9
The "psychological incapacity to comply" with the
essential marital obligations of the spouses is
completely distinct from other grounds for nullity
which are confined to the essential or formal requisites
of a marriage, such as lack of legal capacity or
disqualification of the contracting parties, want of
consent, absence of a marriage license, or the like.
Indeed, a void marriage due to psychological

incapacity appears to merely differ from a voidable
marriage in that, unlike the latter, it is not
convalidated by either cohabitation or prescription. It
might be recalled that prior to republic Act No. 8533,
further amending the Family Code, an action or
defense of absolute nullity of marriage falling under
Article 36, celebrated before the effectivity of the
Code, could prescribe in ten years following the
effectivity of the Family Code. The initial provision of
the ten-year period of prescription seems to betray a
real consciousness by the framers that marriages
falling under Article 36 are truly meant to be
inexistent.
The effects of a marriage attended by psychological

incapacity of a party or the parties thereto may be said
to have the earmarks of a voidable, more than a void,
marriage, remaining to be valid until it is judicially
decreed to be a nullity. Thus, Article 54 of the Family
Code considers children conceived or born of such a
void marriage before its judicial declaration of nullity
to be legitimate similar to the rule on a voidable
marriage. It is expected, even as I believe it safe to
assume, that the spouses rights and obligations,
property regime and successional rights would
continue unaffected, as if it were a voidable marriage,
unless and until the marriage is judicially declared void
for basically two reasons: First, psychological
incapacity, a newly-added ground for the nullity of a
marriage under the Family Code, breaches neither the
essential nor the formal requisites of a valid
marriages;10 and second, unlike the other grounds for
nullity of marriage (i.e., relationship, minority of the
parties, lack of license, mistake in the identity of the
Considerations, both logical and practical, would point

to the fact that a "void" marriage due to psychological
incapacity remains, for all intents and purposes, to be
binding and efficacious until judicially declared
otherwise. Without such marriage having first been
declared a nullity (or otherwise dissolved), a
subsequent marriage could constitute bigamy. Thus, a
civil case questioning the validity of the first marriage
would not be a prejudicial issue much in the same way
that a civil case assailing a prior "voidable" marriage
(being valid until annulled) would not be a prejudicial
100
question to the prosecution of a criminal offense for

bigamy.
the marriage, the judgment of the court is no defense

on the part of the offender who had entered into it.
In cases where the second marriage is void on grounds

other than the existence of the first marriage, this
Court has declared in a line of cases that no crime of
bigamy is committed.12 The Court has explained that
for a person to be held guilty of bigamy, it must, even
as it needs only, be shown that the subsequent
marriage has all the essential elements of a valid
marriage, were it not for the subsisting first union.
Hence, where it is established that the second
marriage has been contracted without the necessary
license and thus void,13 or that the accused is merely
forced to enter into the second (voidable) marriage,14
no criminal liability for the crime of bigamy can attach.
In both and like instances, however, the lapses refers
to the elements required for contracting a valid
marriage. If, then, all the requisites for the perfection
of the contract marriage, freely and voluntarily entered
into, are shown to be extant, the criminal liability for
bigamy can unassailably arise.
Accordingly, I vote to dismiss the petition.
Since psychological incapacity, upon the other hand,

does not relate to an infirmity in the elements, either
essential or formal, in contacting a valid marriage, the
declaration of nullity subsequent to the bigamous
marriage due to that ground, without more, would be
inconsequential in a criminal charge for bigamy. The
judicial declaration of nullity of a bigamous marriage
on the ground of psychological incapacity merely
nullifies the effects of the marriage but it does not
negate the fact of perfection of the bigamous
marriage. Its subsequent declaration of nullity
dissolves the relationship of the spouses but, being
alien to the requisite conditions for the perfection of
8 Id., pp. 6-7.
Footnotes
1 TSN, 24 July 1995, pp. 4-11.
2 Record, p. 78.
3 Record, p. 84.
4 TSN, 24 July 1995, pp. 11-12; TSN, 13 September
1995, pp. 6-9.
5 Record, pp. 1-2.
6 Id., p. 66.
7 TSN, 11 December 1996, p. 6.
9 Id., pp. 7-8.

10 Penned by Judge Rumoldo F. Fernandez, Rollo, pp.
156-162.
11 Rollo, p. 7.
12 Reyes, L.B., THE REVISED PENAL CODE. Book Two,
14th ed., 1998, p. 907.
13 Rollo, pp. 7-16.
101
(1) Between ascendants and descendants of any

degree; and
14 Id., pp. 16-18.

15 Record, p. 85.
(2) Between brothers and sisters, whether of the full

or half-blood.
16 Record, p. 84.
26 Art. 38. The following marriages shall be void from
the beginning for reasons of public policy:
17 Record, p. 148.
18 Record, p. 149.
(1) Between collateral blood relatives; whether

legitimate or illegitimate, up to the fourth civil degree;
19 Mariategui v. Court of Appeals, G.R. No. 57062, 24

January 1992, 205 SCRA 337, 343, citing People v.
Borromeo, 218 Phil. 122, 126.
(2) Between step-parents and stepchildren;

(3) Between parents-in-law and children-in-law;
20 Decision dated November 20, 1995, penned by

Judge Epifanio C. Llano of the Regional Trial Court of
Argao, Cebu, Branch 26, in Civil Case No. AV-885
(Annex "C", Rollo, p. 43).
(4) Between the adopting parent and the adopted

child;
(5) Between the surviving spouse of the adopting
parent and the adopted child;
21 Record, pp. 16-18.

22 Family Code, Art. 41.
(6) Between the surviving spouse of the adopted child

and the adopter;

(7) Between an adopted child and a legitimate child of
the adopter;
24 Family Code, Art. 3; Vitug, Civil Law and

Jurisprudence, 1993 Edition, pp. 119-120, citing the
Family Code, Articles 2 and 3.
(8) Between adopted children of the same adopter;

and
25 Art. 37. Marriages between the following are

incestuous and void from the beginning, whether the
relationship between the parties be legitimate or
illegitimate:
(9) Between parties where one, with the intention to

marry the other, killed that other persons spouse or
his or her own spouse.
102
27 Valdez v. Regional Trial Court, Branch 102, Quezon

City, G.R. No. 122749, 31 July 1996.
9 Deliberations of the family Code Revision

Committee, 9 August 1996.
10 Art. 2. No marriage shall be valid, unless these

essential requisites are present:
VITUG,
(1) Legal capacity of the contracting parties who must

be a male and a female; and
1 Article 349, Revised Penal Code.

(2) Consent freely given in the presence of the
solemnizing officer. (53a)
2 Odayat vs. Amante, 77 SCRA 338; see also People vs

Aragon, 100 Phil. 1033.
Art. 3. The formal requisites of marriage are:

3 100 Phil 1033.
(1) Authority of the solemnizing officer;
4 See People vs. Mendoza, 50 O.G. 4767.
(2) A valid marriage license except in the cases
provided for in Chapter 2 of this Title; and
5 Mercado vs. Tan, 337 SCRA 122; Te vs. Court of

Appeals, 346 SCRA 327.
(3) A marriage ceremony which takes place with the

appearance of the contracting parties before the
solemnizing officer and their personal declaration that
they take other as husband and wife in the presence of
not less than two witnesses of legal age. (53a, 55a)
6 143 SCRA 499.

7 145 SCRA 229.
8 I might add, parenthetically, that the necessity of a
judicial declaration of nullity of a void marriage even
for purposes of remarriage should refer merely to
cases when it can be said that the marriage, at least
ostensibly, has taken place. For instance, no such
judicial declaration of nullity would yet be required
when either or both parties have not at all given
consent thereto that verily results in a "no" marriage
situation or when the prior "marriage" is between
persons of the same sex.

except as stated in Article 35(2).
A defect in any of the essential requisites shall not
affect the validity of the marriage but the party or
parties responsible for the irregularity shall be civilly,
criminally and administratively liable. (n)
103
11 One might observe that insanity, which could be

worse than psychological incapacity merely renders a
marriage voidable, not void.
for Japan to work but returned to the Philippines in

1992, when she learned that her husband was having
an extra-marital affair and has left their conjugal
home.
12 De la cruz vs. Hon. Ejercito, G.R. No. L-40895, 6

November 1975, 68 SCRA 1; Merced vs. Hon. Diez, et.
Al., 109 Phil 155; Zapanta vs. hon. Montessa, et. al.,
144 Phil. 1227; People vs. Mora Dumpo, 62 Phil 246;
People vs. Lara, 51 O. G. 4079.
After earnest efforts, Narcisa found Salvador in Quezon

City cohabiting with Fe Corazon Plato. She also
discovered that on January 10, 1989, Salvador
contracted a second marriage with a certain Zenaida
Bias before Judge Lilian Dinulos Panontongan in San
Mateo, Rizal.3
13 People vs. Lara, supra.

14 De la Cruz vs. Hon. Ejercito, supra; Merced vs. Hon.
Diez, supra.
On January 19, 1995, an annulment case was filed by

Salvador against Narcisa.4 On May 18, 1995, a case
for bigamy was filed by Narcisa against Salvador and
Zenaida.5
G.R. No. 159218

March 30, 2004
SALVADOR S. ABUNADO and ZENAIDA BIAS
ABUNADO, Petitioners,
vs.
PEOPLE OF THE PHILIPPINES, Respondent
Salvador admitted that he first married Zenaida on

December 24, 1955 before a municipal trial court
judge in Concepcion, Iloilo and has four children with
her prior to their separation in 1966. It appeared
however that there was no evidence of their 1955
marriage so he and Zenaida remarried on January 10,
1989, upon the request of their son for the purpose of
complying with the requirements for his commission in
the military.
DECISION
This petition for review on certiorari seeks to reverse
and set aside the decision1 of the Court of Appeals in
CA-G.R. No. 26135 which affirmed with modification
the decision of the Regional Trial Court, Branch 77, San
Mateo, Rizal in Criminal Case No. 2803 convicting
petitioner Salvador S. Abunado of bigamy.
On May 18, 2001, the trial court convicted petitioner

Salvador Abunado of bigamy and sentenced him to
suffer imprisonment of six (6) years and one (1) day,
as minimum, to eight (8) years and one (1) day, as
maximum. Petitioner Zenaida Bias was acquitted for
insufficiency of evidence.6
The records show that on September 18, 1967,

Salvador married Narcisa Arceo at the Manila City
Hall before Rev. Pedro Tiangco.2 In 1988 Narcisa left
On appeal, the Court of Appeals affirmed with

modification the decision of the trial court, as follows:
104
WHEREFORE, the Decision appealed from is hereby

MODIFIED as to the penalty imposed but AFFIRMED in
all other respects. Appreciating the mitigating
circumstance that accused is 76 years of age and
applying the provisions of the Indeterminate Sentence
Law, the appellant is hereby sentenced to suffer an
indeterminate prison term of two (2) years, four (4)
months and one (1) day of prision correccional as
Minimum to six (6) years and one (1) day of prision
mayor as Maximum. No costs.
The question, therefore, is whether petitioner has been

sufficiently informed of the nature and cause of the
accusation against him, namely, that he contracted a
subsequent marriage with another woman while his
first marriage was subsisting.
The information against petitioner alleges:
That in or about and sometime in the month of
January, 1995 at the Municipality of San Mateo, Rizal
place (sic) within the jurisdiction of this Honorable
Court, the above-named accused, having been legally
married to complainant Narcisa Abunado on
September 16, 1967 which has not been legally
dissolved, did then and there willfully, unlawfully and
feloniously contract a subsequent marriage to Zenaida
Bias Abunado on January 10, 1989 which has all the
essential requisites of a valid marriage.
SO ORDERED.7
Petitioner is now before us on petition for review.
First, he argues that the Information was defective as it
stated that the bigamous marriage was contracted in
1995 when in fact it should have been 1989.
Indeed, an accused has the right to be informed of the
nature and cause of the accusation against him.8 It is
required that the acts and omissions complained of as
constituting the offense must be alleged in the
Information.9
CONTRARY TO LAW.11
The statement in the information that the crime was
committed "in or about and sometime in the month of
January, 1995," was an obvious typographical error, for
the same information clearly states that petitioner
contracted a subsequent marriage to Zenaida Bias
Abunado on January 10, 1989. Petitioners submission,
therefore, that the information was defective is
untenable.
The real nature of the crime charged is determined by

the facts alleged in the Information and not by the title
or designation of the offense contained in the caption
of the Information. It is fundamental that every
element of which the offense is comprised must be
alleged in the Information. What facts and
circumstances are necessary to be alleged in the
Information must be determined by reference to the
definition and essential elements of the specific
crimes.10
The general rule is that a defective information cannot

support a judgment of conviction unless the defect
was cured by evidence during the trial and no
objection appears to have been raised.12 It should be
remembered that bigamy can be successfully
105
prosecuted provided all its elements concur two of

which are a previous marriage and a subsequent
marriage which possesses all the requisites for
validity.13 All of these have been sufficiently
established by the prosecution during the trial.
Notably, petitioner failed to object to the alleged
defect in the Information during the trial and only
raised the same for the first time on appeal before the
Court of Appeals.
A prejudicial question has been defined as one based

on a fact distinct and separate from the crime but so
intimately connected with it that it determines the
guilt or innocence of the accused, and for it to suspend
the criminal action, it must appear not only that said
case involves facts intimately related to those upon
which the criminal prosecution would be based but
also that in the resolution of the issue or issues raised
in the civil case, the guilt or innocence of the accused
would necessarily be determined. The rationale behind
the principle of suspending a criminal case in view of a
prejudicial question is to avoid two conflicting
decisions.16
Second, petitioner argues that Narcisa consented to

his marriage to Zenaida, which had the effect of
absolving him of criminal liability.
In this regard, we agree with the Court of Appeals
when it ruled, thus:
The subsequent judicial declaration of the nullity of the

first marriage was immaterial because prior to the
declaration of nullity, the crime had already been
consummated. Moreover, petitioners assertion would
only delay the prosecution of bigamy cases
considering that an accused could simply file a petition
to declare his previous marriage void and invoke the
pendency of that action as a prejudicial question in the
criminal case. We cannot allow that.17
x x x, while he claims that there was condonation on

the part of complainant when he entered into a
bigamous marriage, the same was likewise not
established by clear and convincing evidence. But
then, a pardon by the offended party does not
extinguish criminal action considering that a crime is
committed against the State and the crime of Bigamy
is a public offense which can be denounced not only by
the person affected thereby but even by a civicspirited citizen who may come to know the same.14
The outcome of the civil case for annulment of

petitioners marriage to Narcisa had no bearing upon
the determination of petitioners innocence or guilt in
the criminal case for bigamy, because all that is
required for the charge of bigamy to prosper is that the
first marriage be subsisting at the time the second
marriage is contracted.18
Third, petitioner claims that his petition for

annulment/declaration of nullity of marriage was a
prejudicial question, hence, the proceedings in the
bigamy case should have been suspended during the
pendency of the annulment case. Petitioner, in fact,
eventually obtained a judicial declaration of nullity of
his marriage to Narcisa on October 29, 1999.15
Thus, under the law, a marriage, even one which is

void or voidable, shall be deemed valid until declared
otherwise in a judicial proceeding.19 In this case, even
if petitioner eventually obtained a declaration that his
106
first marriage was void ab initio, the point is, both the
first and the second marriage were subsisting before
the first marriage was annulled.
which ranges from six (6) months and one (1) day to
six (6) years.
Therefore, the penalty imposed by the Court of
Appeals, i.e., two (2) years, four (4) months and one
(1) day of prision correccional, as minimum, to six (6)
years and one (1) day of prision mayor, as maximum,
is proper.
Finally, petitioner claims that the penalty imposed on

him was improper.
Article 349 of the Revised Penal Code imposes the
penalty of prision mayor for bigamy. Under the
Indeterminate Sentence Law, the court shall sentence
the accused to an indeterminate penalty, the
maximum term of which shall be that which, in view of
the attending circumstances, could be properly
imposed under the Revised Penal Code, and the
minimum term of which shall be within the range of
the penalty next lower to that prescribed by the Code
for the offense. The penalty next lower would be based
on the penalty prescribed by the Code for the offense,
without first considering any modifying circumstance
attendant to the commission of the crime. The
determination of the minimum penalty is left by law to
the sound discretion of the court and it can be
anywhere within the range of the penalty next lower
without any reference to the periods into which it
might be subdivided. The modifying circumstances are
considered only in the imposition of the maximum
term of the indeterminate sentence.20
WHEREFORE, in view of the foregoing, the decision of

the Court of Appeals in CA-G.R. CR No. 26135, finding
petitioner Salvador S. Abunado guilty beyond
reasonable doubt of the crime of bigamy, and
sentencing him to suffer an indeterminate penalty of
two (2) years, four (4) months and one (1) day of
prision correccional, as minimum, to six (6) years and
one (1) day of prision mayor, as maximum, is
AFFIRMED.
Costs de oficio.
SO ORDERED.
Davide, Jr., C.J. (Chairman), Panganiban, YnaresSantiago, Carpio, and Azcuna, JJ.
Concurring Opinion
In light of the fact that petitioner is more than 70 years

of age,21 which is a mitigating circumstance under
Article 13, paragraph 2 of the Revised Penal Code, the
maximum term of the indeterminate sentence should
be taken from prision mayor in its minimum period
which ranges from six (6) years and one (1) day to
eight (8) years, while the minimum term should be
taken from prision correccional in any of its periods
CARPIO, J.:
I concur in the result of the ponencia of Justice
Consuelo Ynares-Santiago finding appellant Salvador
S. Abunado guilty of bigamy.
107
The material facts are not in dispute. On 18 September

1967, Abunado married Narcisa Arceno. While his
marriage with Arceno remained unannulled, Abunado
married Zenaida Bias on 10 January 1989.
Subsequently, on 29 October 1999, Abunado obtained
from the Regional Trial Court of Makati City a judicial
declaration of nullity of his marriage with Arceno. On
18 May 2001, the Regional Trial Court of San Mateo,
Rizal rendered a decision convicting Abunado of
bigamy.
the previous marriage were judicially declared void,

the subsequent marriage would not be deemed
bigamous. The nullity of the previous marriage could
even be judicially declared in the criminal case for
bigamy,2 although the person remarrying "assume(d)
the risk of being prosecuted for bigamy"3 should the
court uphold the validity of the first marriage. Article
40 of the Family Code has changed this.
Now, one must first secure a final judicial declaration
of nullity of the previous marriage before he is freed
from the marital bond or vinculum of the previous
marriage. If he fails to secure a judicial declaration of
nullity and contracts a second marriage, then the
second marriage becomes bigamous. As the Court
stated in Domingo v. Court of Appeals4 in explaining
Article 40 of the Family Code:
The sole issue is whether the second marriage of

Abunado to Bias on 10 January 1989 constitutes the
crime of bigamy under Article 3491 of the Revised
Penal Code. More precisely, the issue turns on whether
Abunados first marriage to Arceno was still subsisting
at the time Abunado married Bias.
Under the Family Code, before one can contract a
second marriage on the ground of nullity of the first
marriage, one must first secure a final judgment
declaring the first marriage void. Article 40 of the
Family Code provides:
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.
Art. 40. The absolute nullity of a previous marriage

marriage void.
Conversely, if the person remarries without securing a

judicial declaration of nullity of his previous marriage,
he is liable for bigamy.
The Family Code took effect on 3 August 1988, before

the second marriage of Abunado on 10 January 1989.
Article 40 of the Family Code considers the marital

vinculum of the previous marriage to subsist for
purposes of remarriage, unless the previous marriage
is judicially declared void by final judgment. Thus, if
the marital vinculum of the previous marriage subsists
because of the absence of judicial declaration of its
nullity, the second marriage is contracted during the
Prior to the Family Code, one could contract a

subsequent marriage on the ground of nullity of the
previous marriage without first securing a judicial
annulment of the previous marriage. If subsequently
108
existence of the first marriage resulting in the crime of

bigamy.
The phrase "for purposes of remarriage" is not at all

insignificant. Void marriages, like void contracts, are
inexistent from the very beginning. It is only by way of
exception that the Family Code requires a judicial
declaration of nullity of the previous marriage before a
subsequent marriage is contracted; x x x.6 (Emphasis
supplied)
Under Article 40 of the Family Code, the marital

vinculum of a previous marriage that is void ab initio
subsists only for purposes of remarriage. For purposes
other than remarriage, marriages that are void ab
initio, such as those falling under Articles 35 and 36 of
the Family Code, are void even without a judicial
declaration of nullity. As the Court held in Cario v.
Cario:5
Thus, the general rule is if the marriage is void ab

initio, it is ipso facto void without need of any judicial
declaration of nullity. The only recognized exception7
under existing law is Article 40 of the Family Code
where a marriage void ab initio is deemed valid for
purposes of remarriage, hence necessitating a judicial
declaration of nullity before one can contract a
subsequent marriage.
Under Article 40 of the Family Code, the absolute

nullity of a previous marriage may be invoked for
purposes of remarriage on the basis solely of a final
judgment declaring such previous marriage void.
Meaning, where the absolute nullity of a previous
marriage is sought to be invoked for purposes of
contracting a second marriage, the sole basis
acceptable in law, for said projected marriage to be
free from legal infirmity, is a final judgment declaring
the previous marriage void. However, for purposes
other than remarriage, no judicial action is necessary
to declare a marriage an absolute nullity. x x x .
(Emphasis supplied)
Article 40 of the Family Code applies only to a situation

where the previous marriage suffers from nullity while
the second marriage does not. Under Article 40, what
requires a judicial declaration of nullity is the previous
marriage, not the subsequent marriage. Article 40
does not apply to a situation where the first marriage
does not suffer from any defect while the second is
void.
Cario, penned by Justice Consuelo Ynares-Santiago

herself, contradicts the statement in her present
ponencia that "under the law, a marriage, even one
which is void or voidable, shall be deemed valid until
declared otherwise in a judicial proceeding." I believe
the ruling in Cario is correct and should not be
disturbed. As Justice Jose C. Vitug explained in his
recent textbook on Civil Law (Volume I):
Accordingly, I vote to deny the petition and affirm the

decision of the Court of Appeals finding appellant
Salvador S. Abunado guilty of the crime of bigamy.
ANTONIO T. CARPIO
Associate Justice
Footnotes
109
1 Penned by Associate Justice Josefina GuevaraSalonga and concurred in by Associate Justices Marina
L. Buzon and Danilo B. Pine.
16 Te v. Court of Appeals, G.R. No. 126746, 29

November 2000, 346 SCRA 327, 335.
2 Exhibit "C", Records, p. 68.
17 Mercado v. Tan, G.R. No. 137110, 1 August 2000,

337 SCRA 122, 133.
3 Exhibit "J", Records, p. 81.

18 Te v. Court of Appeals, supra.
4 Records, p. 202.
19 Supra.
5 Records, p. 1.
20 Garcia v. People, supra.
6 Penned by Judge Francisco C. Rodriguez; Rollo, pp.
33-42.
21 Exhibit "J", Records, p. 81.
7 Rollo, p. 53.
CARPIO
8 Constitution, Art. III, Sec. 14(2).
1 Article 349 of the Revised Penal Code provides as

follows: "Bigamy- The penalty of prision mayor shall be
imposed upon any person who shall contract a second
or subsequent marriage before the former marriage
has been legally dissolved, or before the absent
spouse has been declared presumptively dead by
means of a judgment rendered in the proper
proceedings."
9 Revised Rules on Criminal Procedure, Rule 110, Sec.

6.
10 Garcia v. People, G.R. No. 144785, 11 September
2003.
11 Rollo, p. 30; underscoring ours.
2 People v. Mendoza, 95 Phil. 845 (1954); People v.

Aragon, 100 Phil. 1033 (1957).
12 People v. Villamor, G.R. No. 124441, 7 October

1998, 297 SCRA 262, 270.
3 Landicho v. Relova, et al., 130 Phil. 745 (1968).

13 Marbella-Bobis v. Bobis, G.R. No. 138509, 31 July
2000, 336 SCRA 747, 752-753.
4 G.R. No. 104818, 17 September 1993, 226 SCRA

572.
14 Rollo, p. 51.
5 G.R. No. 132529, 2 February 2001, 351 SCRA 127.
15 Annex "1", Records, p. 208
110
6 Civil Law, Persons and Family Relations, Vol. I, (2003

Ed.)
subsequent Resolution2 dated September 13, 2005,

which affirmed the Decision of the Regional Trial Court
(RTC) of Quezon City, Branch 89 declaring petitioner
Estrellita Juliano-Llaves (Estrellita) marriage to Sen.
Mamintal A.J. Tamano (Sen. Tamano) as void ab initio.
7 See also note 4.
Factual Antecedents
Around 11 months before his death, Sen. Tamano
married Estrellita twice initially under the Islamic
laws and tradition on May 27, 1993 in Cotabato City3
and, subsequently, under a civil ceremony officiated
by an RTC Judge at Malabang, Lanao del Sur on June 2,
1993.4 In their marriage contracts, Sen. Tamanos civil
status was indicated as divorced.
Since then, Estrellita has been representing herself to
the whole world as Sen. Tamanos wife, and upon his
death, his widow.
G.R. No. 169766

March 30, 2011
ESTRELLITA JULIANO-LLAVE, Petitioner,
vs.
REPUBLIC OF THE PHILIPPINES, HAJA PUTRI
ZORAYDA A. TAMANO and ADIB AHMAD A.
TAMANO, Respondents.
A new law ought to affect the future, not what is past.

Hence, in the case of subsequent marriage laws, no
vested rights shall be impaired that pertain to the
protection of the legitimate union of a married couple.
On November 23, 1994, private respondents Haja Putri

Zorayda A. Tamano (Zorayda) and her son Adib Ahmad
A. Tamano (Adib), in their own behalf and in behalf of
the rest of Sen. Tamanos legitimate children with
Zorayda,5 filed a complaint with the RTC of Quezon
City for the declaration of nullity of marriage between
Estrellita and Sen. Tamano for being bigamous. The
complaint6 alleged, inter alia, that Sen. Tamano
married Zorayda on May 31, 1958 under civil rites, and
that this marriage remained subsisting when he
married Estrellita in 1993. The complaint likewise
averred that:
This petition for review on certiorari assails the

Decision1 dated August 17, 2004 of the Court of
Appeals (CA) in CA-G.R. CV No. 61762 and its
11. The marriage of the deceased and Complainant

Zorayda, having been celebrated under the New Civil
Code, is therefore governed by this law. Based on
DECISION
DEL CASTILLO, J.:
111
Article 35 (4) of the Family Code, the subsequent

marriage entered into by deceased Mamintal with
Defendant Llave is void ab initio because he
contracted the same while his prior marriage to
Complainant Zorayda was still subsisting, and his
status being declared as "divorced" has no factual or
legal basis, because the deceased never divorced
Complainant Zorayda in his lifetime, and he could not
have validly done so because divorce is not allowed
under the New Civil Code;
the case because under Presidential Decree (PD) No.

1083, or the Code of Muslim Personal Laws of the
Philippines (Muslim Code), questions and issues
involving Muslim marriages and divorce fall under the
exclusive jurisdiction of sharia courts.
The trial court denied Estrellitas motion and asserted
its jurisdiction over the case for declaration of
nullity.13 Thus, Estrellita filed in November 1995 a
certiorari petition with this Court questioning the
denial of her Motion to Dismiss. On December 15,
1995, we referred the petition to the CA14 which was
docketed thereat as CA-G.R. SP No. 39656.
11.1 Moreover, the deceased did not and could not

have divorced Complainant Zorayda by invoking the
provision of P.D. 1083, otherwise known as the Code of
Muslim Personal Laws, for the simple reason that the
marriage of the deceased with Complainant Zorayda
was never deemed, legally and factually, to have been
one contracted under Muslim law as provided under
Art. 186 (2) of P.D. 1083, since they (deceased and
Complainant Zorayda) did not register their mutual
desire to be thus covered by this law;7
During the pendency of CA-G.R. SP No. 39656, the RTC

continued to try the case since there can be no default
in cases of declaration of nullity of marriage even if the
respondent failed to file an answer. Estrellita was
allowed to participate in the trial while her opposing
parties presented their evidence. When it was
Estrellitas turn to adduce evidence, the hearings set
for such purpose15 were postponed mostly at her
instance until the trial court, on March 22, 1996,
suspended the proceedings16 in view of the CAs
temporary restraining order issued on February 29,
1996, enjoining it from hearing the case.17
Summons was then served on Estrellita on December

19, 1994. She then asked from the court for an
extension of 30 days to file her answer to be counted
from January 4, 1995,8 and again, another 15 days9 or
until February 18, 1995, both of which the court
granted.10
Eventually, however, the CA resolved the petition

adverse to Estrellita in its Decision dated September
30, 1996.18 Estrellita then elevated the appellate
courts judgment to this Court by way of a petition for
review on certiorari docketed as G.R. No. 126603.19
Instead of submitting her answer, however, Estrellita

filed a Motion to Dismiss11 on February 20, 1995
where she declared that Sen. Tamano and Zorayda are
both Muslims who were married under the Muslim
rites, as had been averred in the latters disbarment
complaint against Sen. Tamano.12 Estrellita argued
that the RTC has no jurisdiction to take cognizance of
Subsequent to the promulgation of the CA Decision,

the RTC ordered Estrellita to present her evidence on
June 26, 1997.20 As Estrellita was indisposed on that
112
day, the hearing was reset to July 9, 1997.21 The day

before this scheduled hearing, Estrellita again asked
for a postponement.22
A comparison between Exhibits A and B (supra)

immediately shows that the second marriage of the
late Senator with [Estrellita] was entered into during
the subsistence of his first marriage with [Zorayda].
This renders the subsequent marriage void from the
very beginning. The fact that the late Senator declared
his civil status as "divorced" will not in any way affect
the void character of the second marriage because, in
this jurisdiction, divorce obtained by the Filipino
spouse is not an acceptable method of terminating the
effects of a previous marriage, especially, where the
subsequent marriage was solemnized under the Civil
Code or Family Code.30
Unhappy with the delays in the resolution of their case,

Zorayda and Adib moved to submit the case for
decision,23 reasoning that Estrellita had long been
delaying the case. Estrellita opposed, on the ground
that she has not yet filed her answer as she still awaits
the outcome of G.R. No. 126603.24
On June 29, 1998, we upheld the jurisdiction of the RTC
of Quezon City,25 stating as one of the reasons that as
sharia courts are not vested with original and
exclusive jurisdiction in cases of marriages celebrated
under both the Civil Code and PD 1083, the RTC, as a
court of general jurisdiction, is not precluded from
assuming jurisdiction over such cases. In our
Resolution dated August 24, 1998,26 we denied
Estrellitas motion for reconsideration27 with finality.
Ruling of the Court of Appeals

In her appeal,31 Estrellita argued that she was denied
her right to be heard as
the RTC rendered its judgment even without waiting for
the finality of the Decision of the Supreme Court in
G.R. No. 126603. She claimed that the RTC should
have required her to file her answer after the denial of
her motion to dismiss. She maintained that Sen.
Tamano is capacitated to marry her as his marriage
and subsequent divorce with Zorayda is governed by
the Muslim Code. Lastly, she highlighted Zoraydas
lack of legal standing to question the validity of her
marriage to the deceased.
A few days before this resolution, or on August 18,

1998, the RTC rendered the aforementioned judgment
declaring Estrellitas marriage with Sen. Tamano as
void ab initio.28
Ruling of the Regional Trial Court
The RTC, finding that the marital ties of Sen. Tamano
and Zorayda were never severed, declared Sen.
Tamanos subsequent marriage to Estrellita as void ab
initio for being bigamous under Article 35 of the Family
Code of the Philippines and under Article 83 of the Civil
Code of the Philippines.29 The court said:
In dismissing the appeal in its Decision dated August

17, 2004,32 the CA held that Estrellita can no longer
be allowed to file her answer as she was given ample
opportunity to be heard but simply ignored it by asking
for numerous postponements. She never filed her
answer despite the lapse of around 60 days, a period
113
longer than what was prescribed by the rules. It also

ruled that Estrellita cannot rely on her pending petition
for certiorari with the higher courts since, as an
independent and original action, it does not interrupt
the proceedings in the trial court.
Dismiss, and not to the issue of the validity of

Estrellitas marriage to Sen. Tamano.
The Parties Respective Arguments
Reiterating her arguments before the court a quo,
Estrellita now argues that the CA erred in upholding
the RTC judgment as the latter was prematurely
issued, depriving her of the opportunity to file an
answer and to present her evidence to dispute the
allegations against the validity of her marriage. She
claims that Judge Macias v. Macias36 laid down the
rule that the filing of a motion to dismiss instead of an
answer suspends the period to file an answer and,
consequently, the trial court is obliged to suspend
proceedings while her motion to dismiss on the ground
of lack of jurisdiction has not yet been resolved with
finality. She maintains that she merely participated in
the RTC hearings because of the trial courts assurance
that the proceedings will be without prejudice to
whatever action the High Court will take on her
petition questioning the RTCs jurisdiction and yet, the
RTC violated this commitment as it rendered an
adverse judgment on August 18, 1998, months before
the records of G.R. No. 126603 were remanded to the
CA on November 11, 1998.37 She also questions the
lack of a report of the public prosecutor anent a finding
of whether there was collusion, this being a
prerequisite before further proceeding could be held
when a party has failed to file an answer in a suit for
declaration of nullity of marriage.
As to the substantive merit of the case, the CA

adjudged that Estrellitas marriage to Sen. Tamano is
void ab initio for being bigamous, reasoning that the
marriage of Zorayda and Sen. Tamano is governed by
the Civil Code, which does not provide for an absolute
divorce. It noted that their first nuptial celebration was
under civil rites, while the subsequent Muslim
celebration was only ceremonial. Zorayda then,
according to the CA, had the legal standing to file the
action as she is Sen. Tamanos wife and, hence, the
injured party in the senators subsequent bigamous
marriage with Estrellita.
In its September 13, 2005 Resolution,33 the CA denied
Estrellitas Motion for Reconsideration/Supplemental
Motion for Reconsideration where it debunked the
additional errors she raised. The CA noted that the
allegation of lack of the public prosecutors report on
the existence of collusion in violation of both Rule 9,
Section 3(e) of the Rules of Court34 and Article 48 of
the Family Code35 will not invalidate the trial courts
judgment as the proceedings between the parties had
been adversarial, negating the existence of collusion.
Assuming that the issues have not been joined before
the RTC, the same is attributable to Estrellitas refusal
to file an answer. Lastly, the CA disregarded Estrellitas
allegation that the trial court erroneously rendered its
judgment way prior to our remand to the RTC of the
records of the case ratiocinating that G.R. No. 126603
pertains to the issue on the denial of the Motion to
Estrellita is also steadfast in her belief that her

marriage with the late senator is valid as the latter was
already divorced under the Muslim Code at the time he
married her. She asserts that such law automatically
114
applies to the marriage of Zorayda and the deceased

without need of registering their consent to be covered
by it, as both parties are Muslims whose marriage was
solemnized under Muslim law. She pointed out that
Sen. Tamano married all his wives under Muslim rites,
as attested to by the affidavits of the siblings of the
deceased.38
The issues that must be resolved are the following:

1. Whether the CA erred in affirming the trial courts
judgment, even though the latter was rendered
prematurely because: a) the judgment was rendered
without waiting for the Supreme Courts final
resolution of her certiorari petition, i.e., G.R. No.
126603; b) she has not yet filed her answer and thus
was denied due process; and c) the public prosecutor
did not even conduct an investigation whether there
was collusion;
Lastly, Estrellita argues that Zorayda and Adib have no

legal standing to file suit because only the husband or
the wife can file a complaint for the declaration of
nullity of marriage under Supreme Court Resolution
A.M. No. 02-11-10-SC.39
2. Whether the marriage between Estrellita and the

late Sen. Tamano was bigamous; and
Refuting the arguments, the Solicitor General (Sol Gen)

defends the CAs reasoning and stresses that Estrellita
was never deprived of her right to be heard; and, that
filing an original action for certiorari does not stay the
proceedings of the main action before the RTC.
3. Whether Zorayda and Adib have the legal standing

to have Estrellitas marriage declared void ab initio.
Our Ruling
As regards the alleged lack of report of the public

prosecutor if there is collusion, the Sol Gen says that
this is no longer essential considering the vigorous
opposition of Estrellita in the suit that obviously shows
the lack of collusion. The Sol Gen also supports private
respondents legal standing to challenge the validity of
Estrellitas purported marriage with Sen. Tamano,
reasoning that any proper interested party may attack
directly or collaterally a void marriage, and Zorayda
and Adib have such right to file the action as they are
the ones prejudiced by the marital union.
Estrellitas refusal to file an answer eventually led to

the loss of her right to answer; and her pending
petition for certiorari/review on certiorari questioning
the denial of the motion to dismiss before the higher
courts does not at all suspend the trial proceedings of
the principal suit before the RTC of Quezon City.
Firstly, it can never be argued that Estrellita was
deprived of her right to due process. She was never
declared in default, and she even actively participated
in the trial to defend her interest.
Zorayda and Adib, on the other hand, did not file any
comment.
Estrellita invokes Judge Macias v. Macias40 to justify

the suspension of the period to file an answer and of
the proceedings in the trial court until her petition for
Issues
115
certiorari questioning the validity of the denial of her

Motion to Dismiss has been decided by this Court. In
said case, we affirmed the following reasoning of the
CA which, apparently, is Estrellitas basis for her
argument, to wit:
of procedure, the wife still had time to file an answer.

In the instant case, Estrellita had no time left for filing
an answer, as she filed the motion to dismiss beyond
the extended period earlier granted by the trial court
after she filed motions for extension of time to file an
answer.
However, she opted to file, on April 10, 2001, a Motion

to Dismiss, instead of filing an Answer to the
complaint. The filing of said motion suspended the
period for her to file her Answer to the complaint. Until
said motion is resolved by the Respondent Court with
finality, it behooved the Respondent Court to suspend
the hearings of the case on the merits. The
Respondent Court, on April 19, 2001, issued its Order
denying the Motion to Dismiss of the Petitioner. Under
Section 6, Rule 16 of the 1997 Rules of Civil Procedure
[now Section 4], the Petitioner had the balance of the
period provided for in Rule 11 of the said Rules but in
no case less than five (5) days computed from service
on her of the aforesaid Order of the Respondent Court
within which to file her Answer to the complaint: x x
x41 (Emphasis supplied.)
Estrellita argues that the trial court prematurely issued

its judgment, as it should have waited first for the
resolution of her Motion to Dismiss before the CA and,
subsequently, before this Court. However, in upholding
the RTC, the CA correctly ruled that the pendency of a
petition for certiorari does not suspend the
proceedings before the trial court. "An application for
certiorari is an independent action which is not part or
a continuation of the trial which resulted in the
rendition of the judgment complained of."42 Rule 65 of
the Rules of Court is explicit in stating that "[t]he
petition shall not interrupt the course of the principal
case unless a temporary restraining order or a writ of
preliminary injunction has been issued against the
public respondent from further proceeding in the
case."43 In fact, the trial court respected the CAs
temporary restraining order and only after the CA
rendered judgment did the RTC again require Estrellita
to present her evidence.
Estrellita obviously misappreciated Macias. All we

pronounced therein is that the trial court is mandated
to suspend trial until it finally resolves the motion to
dismiss that is filed before it. Nothing in the above
excerpt states that the trial court should suspend its
proceedings should the issue of the propriety or
impropriety of the motion to dismiss be raised before
the appellate courts. In Macias, the trial court failed to
observe due process in the course of the proceeding of
the case because after it denied the wifes motion to
dismiss, it immediately proceeded to allow the
husband to present evidence ex parte and resolved
the case with undue haste even when, under the rules
Notably, when the CA judgment was elevated to us by

way of Rule 45, we never issued any order precluding
the trial court from proceeding with the principal
action. With her numerous requests for
postponements, Estrellita remained obstinate in
refusing to file an answer or to present her evidence
when it was her turn to do so, insisting that the trial
court should wait first for our decision in G.R. No.
126603. Her failure to file an answer and her refusal to
116
present her evidence were attributable only to herself

and she should not be allowed to benefit from her own
dilatory tactics to the prejudice of the other party. Sans
her answer, the trial court correctly proceeded with the
trial and rendered its Decision after it deemed
Estrellita to have waived her right to present her side
of the story. Neither should the lower court wait for the
decision in G.R. No. 126603 to become final and
executory, nor should it wait for its records to be
remanded back to it because G.R. No. 126603 involves
strictly the propriety of the Motion to Dismiss and not
the issue of validity of marriage.

he shall state the basis thereof in his report. The
parties shall file their respective comments on the
finding of collusion within ten days from receipt of a
copy of the report. The court shall set the report for
hearing and if convinced that the parties are in
collusion, it shall dismiss the petition.
The Public Prosecutor issued a report as
Records show that the trial court immediately directed

the public prosecutor to submit the required report,45
which we find to have been sufficiently complied with
by Assistant City Prosecutor Edgardo T. Paragua in his
Manifestation dated March 30, 1995,46 wherein he
attested that there could be no collusion between the
parties and no fabrication of evidence because
Estrellita is not the spouse of any of the private
respondents.

to the non-existence of collusion.

Aside from Article 48 of the Family Code and Rule 9,
Section 3(e) of the Rules of Court, the Rule on
Declaration of Absolute Nullity of Void Marriages and
Annulment of Voidable Marriages (A.M. No. 02-11-10SC)44 also requries the participation of the public
prosecutor in cases involving void marriages. It
specifically mandates the prosecutor to submit his
investigation report to determine whether there is
collusion between the parties:
Furthermore, the lack of collusion is evident in the case

at bar. Even assuming that there is a lack of report of
collusion or a lack of participation by the public
prosecutor, just as we held in Tuason v. Court of
Appeals,47 the lack of participation of a fiscal does not
invalidate the proceedings in the trial court:
Sec. 9. Investigation report of public prosecutor.(1)

Within one month after receipt of the court order
mentioned in paragraph (3) of Section 8 above, the
public prosecutor shall submit a report to the court
stating whether the parties are in collusion and serve
copies thereof on the parties and their respective
counsels, if any.
The role of the prosecuting attorney or fiscal in

annulment of marriage and legal separation
proceedings is to determine whether collusion exists
between the parties and to take care that the evidence
is not suppressed or fabricated. Petitioner's vehement
opposition to the annulment proceedings negates the
117
conclusion that collusion existed between the parties.

There is no allegation by the petitioner that evidence
was suppressed or fabricated by any of the parties.
Under these circumstances, we are convinced that the
non-intervention of a prosecuting attorney to assure
lack of collusion between the contending parties is not
fatal to the validity of the proceedings in the trial
court.48
for a situation where the parties were married both in

civil and Muslim rites."53
Moreover, the Muslim Code took effect only on
February 4, 1977, and this law cannot retroactively
override the Civil Code which already bestowed certain
rights on the marriage of Sen. Tamano and Zorayda.
The former explicitly provided for the prospective
application of its provisions unless otherwise provided:
The Civil Code governs the marriage of Zorayda and

the late Sen. Tamano; their marriage was never
invalidated by PD 1083. Sen. Tamanos subsequent
marriage to Estrellita is void ab initio.
Art. 186 (1). Effect of code on past acts. Acts

executed prior to the effectivity of this Code shall be
governed by the laws in force at the time of their
execution, and nothing herein except as otherwise
specifically provided, shall affect their validity or
legality or operate to extinguish any right acquired or
liability incurred thereby.
The marriage between the late Sen. Tamano and

Zorayda was celebrated in 1958, solemnized under
civil and Muslim rites.49 The only law in force
governing marriage relationships between Muslims
and non-Muslims alike was the Civil Code of 1950,
under the provisions of which only one marriage can
exist at any given time.50 Under the marriage
provisions of the Civil Code, divorce is not recognized
except during the effectivity of Republic Act No. 39451
which was not availed of during its effectivity.
It has been held that:

The foregoing provisions are consistent with the
principle that all laws operate prospectively, unless the
contrary appears or is clearly, plainly and
unequivocably expressed or necessarily implied;
accordingly, every case of doubt will be resolved
against the retroactive operation of laws. Article 186
aforecited enunciates the general rule of the Muslim
Code to have its provisions applied prospectively, and
implicitly upholds the force and effect of a pre-existing
body of law, specifically, the Civil Code in respect of
civil acts that took place before the Muslim Codes
enactment.54
As far as Estrellita is concerned, Sen. Tamanos prior

marriage to Zorayda has been severed by way of
divorce under PD 1083,52 the law that codified Muslim
personal laws. However, PD 1083 cannot benefit
Estrellita. Firstly, Article 13(1) thereof provides that the
law applies to "marriage and divorce wherein both
parties are Muslims, or wherein only the male party is
a Muslim and the marriage is solemnized in
accordance with Muslim law or this Code in any part of
the Philippines." But we already ruled in G.R. No.
126603 that "Article 13 of PD 1083 does not provide
An instance of retroactive application of the Muslim

Code is Article 186(2) which states:
118
A marriage contracted by a Muslim male prior to the

effectivity of this Code in accordance with non-Muslim
law shall be considered as one contracted under
Muslim law provided the spouses register their mutual
desire to this effect.
Estrellita claims that only the husband or the wife in a

void marriage can file a petition for declaration of
nullity of marriage. However, this interpretation does
not apply if the reason behind the petition is bigamy.
Even granting that there was registration of mutual

consent for the marriage to be considered as one
contracted under the Muslim law, the registration of
mutual consent between Zorayda and Sen. Tamano
will still be ineffective, as both are Muslims whose
marriage was celebrated under both civil and Muslim
laws. Besides, as we have already settled, the Civil
Code governs their personal status since this was in
effect at the time of the celebration of their marriage.
In view of Sen. Tamanos prior marriage which
subsisted at the time Estrellita married him, their
subsequent marriage is correctly adjudged by the CA
as void ab initio.
In explaining why under A.M. No. 02-11-10-SC only the

spouses may file the petition to the exclusion of
compulsory or intestate heirs, we said:
The Rationale of the Rules on Annulment of Voidable
Marriages and Declaration of Absolute Nullity of Void
Marriages, Legal Separation and Provisional Orders
explicates on Section 2(a) in the following manner, viz:
(1) Only an aggrieved or injured spouse may file
petitions for annulment of voidable marriages and
declaration of absolute nullity of void marriages. Such
petitions cannot be filed by the compulsory or
intestate heirs of the spouses or by the State. [Section
2; Section 3, paragraph a]
Zorayda and Adib, as the injured parties, have the

legal personalities to file the declaration of nullity of
marriage. A.M. No. 02-11-10-SC, which limits to only
the husband or the wife the filing of a petition for
nullity is prospective in application and does not shut
out the prior spouse from filing suit if the ground is a
bigamous subsequent marriage.
Only an aggrieved or injured spouse may file a petition

for annulment of voidable marriages or declaration of
absolute nullity of void marriages. Such petition cannot
be filed by compulsory or intestate heirs of the
spouses or by the State. The Committee is of the belief
that they do not have a legal right to file the petition.
Compulsory or intestate heirs have only inchoate
rights prior to the death of their predecessor, and
hence can only question the validity of the marriage of
the spouses upon the death of a spouse in a
proceeding for the settlement of the estate of the
deceased spouse filed in the regular courts. On the
other hand, the concern of the State is to preserve
marriage and not to seek its dissolution.57
Her marriage covered by the Family Code of the

Philippines,55 Estrellita relies on A.M. No. 02-11-10-SC
which took effect on March 15, 2003 claiming that
under Section 2(a)56 thereof, only the husband or the
wife, to the exclusion of others, may file a petition for
declaration of absolute nullity, therefore only she and
Sen. Tamano may directly attack the validity of their
own marriage.
119
Zorayda and Adib filed the case for declaration of

nullity of Estrellitas marriage in November 1994. While
the Family Code is silent with respect to the proper
party who can file a petition for declaration of nullity of
marriage prior to A.M. No. 02-11-10-SC, it has been
held that in a void marriage, in which no marriage has
taken place and cannot be the source of rights, any
interested party may attack the marriage directly or
collaterally without prescription, which may be filed
even beyond the lifetime of the parties to the
marriage.59 Since A.M. No. 02-11-10-SC does not
apply, Adib, as one of the children of the deceased
who has property rights as an heir, is likewise
considered to be the real party in interest in the suit he
and his mother had filed since both of them stand to
be benefited or injured by the judgment in the suit.60
Note that the Rationale makes it clear that Section 2(a)

of A.M. No. 02-11-10-SC refers to the "aggrieved or
injured spouse." If Estrellitas interpretation is
employed, the prior spouse is unjustly precluded from
filing an action. Surely, this is not what the Rule
contemplated.
The subsequent spouse may only be expected to take
action if he or she had only discovered during the
connubial period that the marriage was bigamous, and
especially if the conjugal bliss had already vanished.
Should parties in a subsequent marriage benefit from
the bigamous marriage, it would not be expected that
they would file an action to declare the marriage void
and thus, in such circumstance, the "injured spouse"
who should be given a legal remedy is the one in a
subsisting previous marriage. The latter is clearly the
an emotional burden to the prior spouse. The
subsequent marriage will always be a reminder of the
infidelity of the spouse and the disregard of the prior
marriage which sanctity is protected by the
Constitution.
Since our Philippine laws protect the marital union of a

couple, they should be interpreted in a way that would
preserve their respective rights which include striking
down bigamous marriages. We thus find the CA
Decision correctly rendered.
WHEREFORE, the petition is DENIED. The assailed
August 17, 2004 Decision of the Court of Appeals in
CA-G.R. CV No. 61762, as well as its subsequent
Resolution issued on September 13, 2005, are hereby
AFFIRMED.
Indeed, Section 2(a) of A.M. No. 02-11-10-SC precludes

the son from impugning the subsequent
marriage.1wphi1 But in the case at bar, both Zorayda
and Adib have legal personalities to file an action for
nullity. Albeit the Supreme Court Resolution governs
marriages celebrated under the Family Code, such is
prospective in application and does not apply to cases
already commenced before March 15, 2003.58
SO ORDERED.
MARIANO C. DEL CASTILLO
Associate Justice
WE CONCUR:
120
RENATO C. CORONA
Chief Justice
Chairperson
5 Namely Jamila, Jacob, Amina, Macapanton, Ysmael,

Soraya, Adel and Aquil.
6 Rollo, pp. 54-60.
PRESBITERO J. VELASCO, JR.

Associate Justice TERESITA J. LEONARDO-DE CASTRO
Associate Justice
JOSE PORTUGAL PEREZ
Associate Justice
7 Id. at 57.
8 Records, pp. 14-15, 25-26.
9 Id. at 25-26.
CERTIFICATION
10 Id. at 17, 29.
it is hereby certified that the conclusions in the above
Decision had been reached in consultation before the
case was assigned to the writer of the opinion of the
Courts Division.
11 Id. at 32-38.
12 Id. at 38-40.
13 Id. at 109-111, 123.
RENATO C. CORONA
Chief Justice
14 Id. at 143.
15 Id. at 151, 153, 173, 174.
Footnotes
16 Id. at 213.
1 CA rollo, pp. 129-142; penned by Associate Justice
Aurora Santiago-Lagman and concurred in by
Associate Justices Portia Alio-Hormachuelos and
Rebecca de Guia-Salvador.
17 Id. at 176.
18 Id. at 230-236.
2 Id. at 205-210.
19 Tamano v. Hon. Ortiz, 353 Phil. 775 (1998).
3 Records, p. 103.
20 Records, p. 237. The trial court erred in stating that

let reception of plaintiffs evidence herein be set on
June 26, 1997 x x x" when in fact, it was already
defendants turn.
4 Id. at 13.
121
21 Id. at 240.
30 Rollo, p. 80.
22 Id. at 242-244.
31 CA rollo, pp. 17-41.
23 Id. at 315-318.
32 Rollo, pp. 34-46.
24 Id. at 319-322.
33 Id. at 48-53.
25 Rollo, pp. 69-76.
34 Rules of Court, Rule 9, Section 3(e) Where no

defaults allowed. If the defending party in an action
for annulment or declaration of nullity of marriage or
for legal separation fails to answer, the court shall
order the prosecuting attorney to investigate whether
or not a collusion between the parties exists, and if
there is no collusion, to intervene for the State in order
to see to it that the evidence submitted is not
fabricated.
26 Records, p. 367.
27 Id. at 354-362.
28 Rollo, pp. 77-82; penned by Judge Elsa de Guzman.
29 Family Code, Article 35. The following marriages
shall be void from the beginning:
35 Family Code, Article 48. In all cases of annulment or

declaration of absolute nullity of marriage, the Court
shall order the prosecuting attorney or fiscal assigned
to it to appear on behalf of the State to take steps to
prevent collusion between the parties and to take care
that evidence is not fabricated or suppressed.
xxxx
xxxx

confession of judgment.
New Civil Code, Article 83. Any marriage subsequently

contracted by any person during the lifetime of the
first spouse of such person with any person other than
such first spouse shall be illegal and void from its
performance, unless:
36 457 Phil 463 (2003).

37 Rollo, p. 217.
(1) The first marriage was annulled or dissolved;

38 Id. at 133, 135.
xxxx
39 Inadvertently referred to as A.M. No. 00-11-01-SC.
122
40 Supra note 36.
52 Under Articles 45-57.
41 Id. at 468.
53 Tamano v. Hon. Ortiz, supra note 19 at 781.
42 Sps. Diaz v. Diaz, 387 Phil 314, 334 (2000).
54 Malang v. Judge Moson, supra note 50 at 57.
43 Rules of Court, Rule 65, Section 7.
55 Executive Order No. 209, which took effect on

August 3, 1988.
44 Dated March 4, 2003, with an effectivity date of

March 15, 2003.
56 Sec. 2. Petition for declaration of absolute nullity of

void marriages.
45 Records, p. 30.
(a) Who may file.A petition for declaration of absolute
nullity of void marriage may be filed solely by the
husband or the wife.
46 Id. at 56.
47 326 Phil 169 (1996).
57 Enrico v. Heirs of Sps. Eulogio B. Medinaceli and

Trinidad Catli-Medinaceli, G.R. No. 173614, September
28, 2007, 534 SCRA 418, 429, citing Rationale of the
Rules on Annulment of Voidable Marriages and
Declaration of Absolute Nullity of Void Marriages, Legal
Separation and Provisional Orders.
48 Id. at 181.
49 Supra note 12, where Zoraydas disbarment
complaint stated that the marriage was conducted
under both rites.
50 Malang v. Judge Moson, 398 Phil. 41 (2000).
58 Carlos v. Sandoval, G.R. No. 179922, December 16,

2008, 574 SCRA 116, 132 citing Enrico v. Heirs of Sps.
Eulogio B. Medinaceli and Trinidad Catli-Medinaceli,
supra note 57 at 428.
51 An Act Authorizing For A Period Of Twenty Years

Divorce Among Moslems Residing In Non-Christian
Provinces In Accordance With Moslem Customs and
Practices (approved on June 18, 1949), Section 1 of
which provides:
59 Nial v. Bayadog, 384 Phil 661, 673 (2000).

60 Rules of Court, Rule 3, Section 2.
Section 1. For a period of twenty years from the date

of the approval of this Act, divorce among Moslems
residing in non-Christian provinces shall be recognized
and be governed by Moslem customs and practices.
123
Decision2 in Civil Case No. 03-0382-CFM dated

October 5, 2005 of the Regional Trial Court (RTC),
Branch 109, Pasay City, and the CA Resolution dated
July 24, 2008, denying petitioner's Motion for
Reconsideration of the CA Decision.
The present case stems from a petition filed by
petitioner Syed Azhar Abbas (Syed) for the declaration
of nullity of his marriage to Gloria Goo-Abbas (Gloria)
with the RTC of Pasay City, docketed as Civil Case No.
03-0382-CFM, and raffled to RTC Branch 109. Syed
alleged the absence of a marriage license, as provided
for in Article 4, Chapter I, Title 1 of Executive Order No.
269, otherwise known as the Family Code of the
Philippines, as a ground for the annulment of his
marriage to Gloria.
In the Marriage Contract3 of Gloria and Syed, it is
stated that Marriage License No. 9969967, issued at
Carmona, Cavite on January 8, 1993, was presented to
the solemnizing officer. It is this information that is
crucial to the resolution of this case.
G.R. No. 183896
January 30, 2013
SYED AZHAR ABBAS, Petitioner,
vs.
GLORIA GOO ABBAS, Respondent.
At the trial court, Syed, a Pakistani citizen, testified

that he met Gloria, a Filipino citizen, in Taiwan in 1991,
and they were married on August 9, 1992 at the Taipei
Mosque in Taiwan.4 He arrived in the Philippines in
December of 1992. On January 9, 1993, at around 5
oclock in the afternoon, he was at his mother-in-laws
residence, located at 2676 F. Muoz St., Malate,
Manila, when his mother-in-law arrived with two men.
He testified that he was told that he was going to
undergo some ceremony, one of the requirements for
his stay in the Philippines, but was not told of the
nature of said ceremony. During the ceremony he and
Gloria signed a document. He claimed that he did not
DECISION
VELASCO, JR., J.:
This is a Petition for Review on Certiorari under Rule 45
of the 1997 Rules of Civil Procedure, questioning the
Decision1 of the Court of Appeals (CA) dated March 11,
2008 in CA-G.R. CV No. 86760, which reversed the
124
know that the ceremony was a marriage until Gloria

told him later. He further testified that he did not go to
Carmona, Cavite to apply for a marriage license, and
that he had never resided in that area. In July of 2003,
he went to the Office of the Civil Registrar of Carmona,
Cavite, to check on their marriage license, and was
asked to show a copy of their marriage contract
wherein the marriage license number could be found.5
The Municipal Civil Registrar, Leodivinia C.
Encarnacion, issued a certification on July 11, 2003 to
the effect that the marriage license number appearing
in the marriage contract he submitted, Marriage
License No. 9969967, was the number of another
marriage license issued to a certain Arlindo Getalado
and Myra Mabilangan.6 Said certification reads as
follows:
On cross-examination, Syed testified that Gloria had

filed bigamy cases against him in 2001 and 2002, and
that he had gone to the Municipal Civil Registrar of
Carmona, Cavite to get certification on whether or not
there was a marriage license on advice of his
counsel.8
Petitioner also presented Norberto Bagsic (Bagsic), an
employee of the Municipal Civil Registrar of Carmona,
Cavite. Bagsic appeared under a letter of authority
from the Municipal Civil Registrar of Carmona, Cavite,
and brought documents pertaining to Marriage License
No. 9969967, which was issued to Arlindo Getalado
and Myra Mabilangan on January 20, 1993.9
Bagsic testified that their office issues serial numbers
for marriage licenses and that the numbers are issued
chronologically.10 He testified that the certification
dated July 11, 2003, was issued and signed by
Leodivina Encarnacion, Registrar of the Municipality of
Carmona, Cavite, certifying that Marriage License No.
9969967 was issued for Arlindo Getalado and Myra
Mabilangan on January 19, 1993, and that their office
had not issued any other license of the same serial
number, namely 9969967, to any other person.11
11 July 2003
TO WHOM IT MAY CONCERN:
This is to certify as per Registry Records of Marriage
License filed in this office, Marriage License No.
9969967 was issued in favor of MR. ARLINDO
GETALADO and MISS MYRA MABILANGAN on January
19, 1993.
For her part, Gloria testified on her own behalf, and

presented Reverend Mario Dauz, Atty. Lorenzo
Sanchez, Felicitas Goo and May Ann Ceriola.
No Marriage License appear [sic] to have been issued

to MR. SYED AZHAR ABBAS and MISS GLORIA F. GOO
on January 8, 1993.
Reverend Mario Dauz (Rev. Dauz) testified that he was

a minister of the Gospel and a barangay captain, and
that he is authorized to solemnize marriages within the
Philippines.12 He testified that he solemnized the
marriage of Syed Azhar Abbas and Gloria Goo at the
residence of the bride on January 9, 1993.13 He stated
This certification is being issued to Mr. Syed Azhar

Abbas for whatever legal purpose or intents it may
serve.7
125
that the witnesses were Atty. Lorenzo Sanchez (Atty.

Sanchez) and Mary Ann Ceriola.14 He testified that he
had been solemnizing marriages since 1982, and that
he is familiar with the requirements.15 Rev. Dauz
further testified that Atty. Sanchez gave him the
marriage license the day before the actual wedding,
and that the marriage contract was prepared by his
secretary.16 After the solemnization of the marriage, it
was registered with the Local Civil Registrar of Manila,
and Rev. Dauz submitted the marriage contract and
copy of the marriage license with that office.17
before returning it to Atty. Sanchez who then gave it to

Rev. Dauz, the solemnizing officer.24 She further
testified that she did not read all of the contents of the
marriage license, and that she was told that the
marriage license was obtained from Carmona.25 She
also testified that a bigamy case had been filed by
Gloria against Syed at the Regional Trial Court of
Manila, evidenced by an information for Bigamy dated
January 10, 2003, pending before Branch 47 of the
Regional Trial Court of Manila.26
As to Mary Ann Ceriolas testimony, the counsels for
both parties stipulated that: (a) she is one of the
sponsors at the wedding of Gloria Goo and Syed Abbas
on January 9, 1993; (b) she was seen in the wedding
photos and she could identify all the persons depicted
in said photos; and (c) her testimony corroborates that
of Felicitas Goo and Atty. Sanchez.
Atty. Sanchez testified that he was asked to be the

sponsor of the wedding of Syed Abbas and Gloria Goo
by the mother of the bride, Felicitas Goo.18 He
testified that he requested a certain Qualin to secure
the marriage license for the couple, and that this
Qualin secured the license and gave the same to him
on January 8, 1993.19 He further testified that he did
not know where the marriage license was obtained.20
He attended the wedding ceremony on January 9,
1993, signed the marriage contract as sponsor, and
witnessed the signing of the marriage contract by the
couple, the solemnizing officer and the other witness,
Mary Ann Ceriola.21
The respondent, Gloria, testified that Syed is her

husband, and presented the marriage contract bearing
their signatures as proof.27 She and her mother
sought the help of Atty. Sanchez in securing a
marriage license, and asked him to be one of the
sponsors. A certain Qualin went to their house and said
that he will get the marriage license for them, and
after several days returned with an application for
marriage license for them to sign, which she and Syed
did. After Qualin returned with the marriage license,
they gave the license to Atty. Sanchez who gave it to
Rev. Dauz, the solemnizing officer. Gloria testified that
she and Syed were married on January 9, 1993 at their
residence.28
Felicitas Goo testified that Gloria Goo is her daughter

and Syed Azhar Abbas is her son-in-law, and that she
was present at the wedding ceremony held on January
9, 1993 at her house.22 She testified that she sought
the help of Atty. Sanchez at the Manila City Hall in
securing the marriage license, and that a week before
the marriage was to take place, a male person went to
their house with the application for marriage
license.23 Three days later, the same person went
back to their house, showed her the marriage license
Gloria further testified that she has a daughter with

Syed, born on June 15, 1993.29
126
Gloria also testified that she filed a bigamy case

against Syed, who had married a certain Maria
Corazon Buenaventura during the existence of the
previous marriage, and that the case was docketed as
Criminal Case No. 02A-03408, with the RTC of
Manila.30
WHEREFORE, judgment is hereby rendered in favor of

the petitioner, and against the respondent declaring as
follows:
1. The marriage on January 9, 1993 between petitioner
Syed Azhar Abbas and respondent Gloria Goo-Abbas is
hereby annulled;
Gloria stated that she and Syed had already been

married on August 9, 1992 in Taiwan, but that she did
not know if said marriage had been celebrated under
Muslim rites, because the one who celebrated their
marriage was Chinese, and those around them at the
time were Chinese.31
2. Terminating the community of property relations

between the petitioner and the respondent even if no
property was acquired during their cohabitation by
reason of the nullity of the marriage of the parties.
3. The Local Civil Registrar of Manila and the Civil
Registrar General, National Statistics Office, are hereby
ordered to cancel from their respective civil registries
the marriage contracted by petitioner Syed Azhar
Abbas and respondent Gloria Goo-Abbas on January 9,
1993 in Manila.
The Ruling of the RTC

In its October 5, 2005 Decision, the Pasay City RTC
held that no valid marriage license was issued by the
Municipal Civil Registrar of Carmona, Cavite in favor of
Gloria and Syed, as Marriage License No. 9969967 had
been issued to Arlindo Getalado and Myra Mabilangan,
and the Municipal Civil Registrar of Carmona, Cavite
had certified that no marriage license had been issued
for Gloria and Syed.32 It also took into account the
fact that neither party was a resident of Carmona,
Cavite, the place where Marriage License No. 9969967
was issued, in violation of Article 9 of the Family
Code.33 As the marriage was not one of those exempt
from the license requirement, and that the lack of a
valid marriage license is an absence of a formal
requisite, the marriage of Gloria and Syed on January
9, 1993 was void ab initio.
SO ORDERED.34
Gloria filed a Motion for Reconsideration dated
November 7, 2005, but the RTC denied the same,
prompting her to appeal the questioned decision to the
Court of Appeals.
The Ruling of the CA
In her appeal to the CA, Gloria submitted the following
assignment of errors:
I
The dispositive portion of the Decision reads as

follows:
127
THE LOWER COURT ERRED IN DECLARING THE

MARRIAGE BETWEEN THE PETITIONER AND
RESPONDENT AS NULL AND VOID DUE TO THE
ABSENCE OF A MARRIAGE LICENSE DESPITE EVIDENCE
CLEARLY SHOWING THAT THERE WAS ONE.
It gave weight to the fact that Syed had admitted to

having signed the marriage contract. The CA also
considered that the parties had comported themselves
as husband and wife, and that Syed only instituted his
petition after Gloria had filed a case against him for
bigamy.38
II
The dispositive portion of the CA Decision reads as
follows:
THE LOWER COURT ERRED IN NOT CONSIDERING, AS A

REQUISITE OF A VALID MARRIAGE, THE
OVERWHELMING EVIDENCE SHOWING THAT A
MARRIAGE CEREMONY TOOK PLACE WITH THE
APPEARANCE OF THE CONTRACTING PARTIES BEFORE
THE SOLEMNIZING OFFICER AND THEIR PERSONAL
DECLARATION THAT THEY TOOK EACH OTHER AS
HUSBAND AND WIFE IN THE PRESENCE OF NOT LESS
THAN TWO WITNESSES OF LEGAL AGE.
WHEREFORE, premises considered, the appeal is

GRANTED. The Decision dated 05 October 2005 and
Order dated 27 January 2006 of the Regional Trial
Court of Pasay City, Branch 109, in Civil Case No. 030382-CFM are REVERSED and SET ASIDE and the
Petition for Declaration of Nullity of Marriage is
DISMISSED. The marriage between Shed [sic] Azhar
Abbas and Gloria Goo Abbas contracted on 09 January
1993 remains valid and subsisting. No costs.
III
THE LOWER COURT ERRED IN NOT RULING ON THE
ISSUE OF ESTOPPEL BY LACHES ON THE PART OF THE
PETITIONER, AN ISSUE TIMELY RAISED IN THE COURT
BELOW.35
SO ORDERED.39
Syed then filed a Motion for Reconsideration dated
April 1, 200840 but the same was denied by the CA in
a Resolution dated July 24, 2008.41
The CA gave credence to Glorias arguments, and

granted her appeal. It held that the certification of the
Municipal Civil Registrar failed to categorically state
that a diligent search for the marriage license of Gloria
and Syed was conducted, and thus held that said
certification could not be accorded probative value.36
The CA ruled that there was sufficient testimonial and
documentary evidence that Gloria and Syed had been
validly married and that there was compliance with all
the requisites laid down by law.37
Hence, this petition.

Grounds in Support of Petition
I
THE HONORABLE COURT OF APPEALS COMMITTED
SERIOUS ERROR OF LAW IN CITING REPUBLIC VS.
COURT OF APPEALS AS THE SAME IS DIAMETRICALLY
128
INCONSISTENT AND CONTRARY TO THE COURTS OWN

FINDINGS AND CONCLUSIONS IN THIS CASE.

except as stated in Article 35(2).
II
A defect in any of the essential requisites shall render
the marriage voidable as provided in Article 45.
THE HONORABLE COURT OF APPEALS GRAVELY ERRED

IN REVERSING AND SETTING ASIDE, WITHOUT ANY
FACTUAL AND LEGAL BASIS, THE DECISION OF THE
REGIONAL TRIAL COURT GRANTING THE PETITION FOR
DECLARATION OF NULLITY OF MARRIAGE.42
An irregularity in the formal requisites shall not affect

the validity of the marriage but the party or parties
responsible for the irregularity shall be civilly,
criminally and administratively liable.
The Ruling of this Court

Art. 35. The following marriages shall be void from the
beginning:
The petition is meritorious.

As the marriage of Gloria and Syed was solemnized on
January 9, 1993, Executive Order No. 209, or the
Family Code of the Philippines, is the applicable law.
The pertinent provisions that would apply to this
particular case are Articles 3, 4 and 35(3), which read
as follows:
xxxx
(3) Those solemnized without a license, except those
covered by the preceding Chapter.
There is no issue with the essential requisites under
Art. 2 of the Family Code, nor with the formal
requisites of the authority of the solemnizing officer
and the conduct of the marriage ceremony. Nor is the
marriage one that is exempt from the requirement of a
valid marriage license under Chapter 2, Title I of the
Family Code. The resolution of this case, thus, hinges
on whether or not a valid marriage license had been
issued for the couple. The RTC held that no valid
marriage license had been issued. The CA held that
there was a valid marriage license.
Art. 3. The formal requisites of marriage are:

(1) Authority of the solemnizing officer;
(2) A valid marriage license except in the cases
provided for in Chapter 2 of this Title; and
(3) A marriage ceremony which takes place with the
appearance of the contracting parties before the
solemnizing officer and their personal declaration that
they take each other as husband and wife in the
presence of not less than two witnesses of legal age.
We find the RTC to be correct in this instance.

Respondent Gloria failed to present the actual
marriage license, or a copy thereof, and relied on the
129
marriage contract as well as the testimonies of her

witnesses to prove the existence of said license. To
prove that no such license was issued, Syed turned to
the office of the Municipal Civil Registrar of Carmona,
Cavite which had allegedly issued said license. It was
there that he requested certification that no such
license was issued. In the case of Republic v. Court of
Appeals43 such certification was allowed, as permitted
by Sec. 29, Rule 132 of the Rules of Court, which
reads:
The Court held in that case that the certification issued

by the civil registrar enjoyed probative value, as his
duty was to maintain records of data relative to the
issuance of a marriage license.
The Municipal Civil Registrar of Carmona, Cavite,
where the marriage license of Gloria and Syed was
allegedly issued, issued a certification to the effect
that no such marriage license for Gloria and Syed was
issued, and that the serial number of the marriage
license pertained to another couple, Arlindo Getalado
and Myra Mabilangan. A certified machine copy of
Marriage License No. 9969967 was presented, which
was issued in Carmona, Cavite, and indeed, the names
of Gloria and Syed do not appear in the document.
SEC. 28. Proof of lack of record. A written statement

signed by an officer having the custody of an official
record or by his deputy that after diligent search, no
record or entry of a specified tenor is found to exist in
the records of his office, accompanied by a certificate
as above provided, is admissible as evidence that the
records of his office contain no such record or entry.
In reversing the RTC, the CA focused on the wording of

the certification, stating that it did not comply with
Section 28, Rule 132 of the Rules of Court.
In the case of Republic, in allowing the certification of

the Civil Registrar of Pasig to prove the non-issuance of
a marriage license, the Court held:
The CA deduced that from the absence of the words

"despite diligent search" in the certification, and since
the certification used stated that no marriage license
appears to have been issued, no diligent search had
been conducted and thus the certification could not be
given probative value.
The above Rule authorized the custodian of the

documents to certify that despite diligent search, a
particular document does not exist in his office or that
a particular entry of a specified tenor was not to be
found in a register. As custodians of public documents,
civil registrars are public officers charged with the
duty, inter alia, of maintaining a register book where
they are required to enter all applications for marriage
licenses, including the names of the applicants, the
date the marriage license was issued and such other
relevant data.44
To justify that deduction, the CA cited the case of

Republic v. Court of Appeals.45 It is worth noting that
in that particular case, the Court, in sustaining the
finding of the lower court that a marriage license was
lacking, relied on the Certification issued by the Civil
Registrar of Pasig, which merely stated that the
alleged marriage license could not be located as the
same did not appear in their records. Nowhere in the
Certification was it categorically stated that the officer
130
involved conducted a diligent search, nor is a

categorical declaration absolutely necessary for Sec.
28, Rule 132 of the Rules of Court to apply.
license, admitted not knowing where the license came

from. The task of applying for the license was
delegated to a certain Qualin, who could have testified
as to how the license was secured and thus impeached
the certification of the Municipal Civil Registrar as well
as the testimony of her representative. As Gloria failed
to present this Qualin, the certification of the Municipal
Civil Registrar still enjoys probative value.
Under Sec. 3(m), Rule 131 of the Rules of Court, it is a

disputable presumption that an official duty has been
regularly performed, absent contradiction or other
evidence to the contrary. We held, "The presumption of
regularity of official acts may be rebutted by
affirmative evidence of irregularity or failure to
perform a duty."46 No such affirmative evidence was
shown that the Municipal Civil Registrar was lax in
performing her duty of checking the records of their
office, thus the presumption must stand. In fact, proof
does exist of a diligent search having been conducted,
as Marriage License No. 996967 was indeed located
and submitted to the court. The fact that the names in
said license do not correspond to those of Gloria and
Syed does not overturn the presumption that the
registrar conducted a diligent search of the records of
her office.
It is also noted that the solemnizing officer testified

that the marriage contract and a copy of the marriage
license were submitted to the Local Civil Registrar of
Manila. Thus, a copy of the marriage license could
have simply been secured from that office and
submitted to the court. However, Gloria inexplicably
failed to do so, further weakening her claim that there
was a valid marriage license issued for her and Syed.
In the case of Cario v. Cario,47 following the case of
Republic,48 it was held that the certification of the
Local Civil Registrar that their office had no record of a
marriage license was adequate to prove the nonissuance of said license. The case of Cario further
held that the presumed validity of the marriage of the
parties had been overcome, and that it became the
burden of the party alleging a valid marriage to prove
that the marriage was valid, and that the required
marriage license had been secured.49 Gloria has failed
to discharge that burden, and the only conclusion that
can be reached is that no valid marriage license was
issued. It cannot be said that there was a simple
irregularity in the marriage license that would not
affect the validity of the marriage, as no license was
presented by the respondent. No marriage license was
proven to have been issued to Gloria and Syed, based
on the certification of the Municipal Civil Registrar of
It is telling that Gloria failed to present their marriage

license or a copy thereof to the court. She failed to
explain why the marriage license was secured in
Carmona, Cavite, a location where, admittedly, neither
party resided. She took no pains to apply for the
license, so she is not the best witness to testify to the
validity and existence of said license. Neither could the
other witnesses she presented prove the existence of
the marriage license, as none of them applied for the
license in Carmona, Cavite. Her mother, Felicitas Goo,
could not even testify as to the contents of the license,
having admitted to not reading all of its contents. Atty.
Sanchez, one of the sponsors, whom Gloria and
Felicitas Goo approached for assistance in securing the
131
Carmona, Cavite and Glorias failure to produce a copy

of the alleged marriage license.
contracting a second or subsequent marriage with one

Ma. Corazon (Maryam) T. Buenaventura. We are not
ready to reward (appellee) by declaring the nullity of
his marriage and give him his freedom and in the
process allow him to profit from his own deceit and
perfidy.50
To bolster its ruling, the CA cited other evidence to

support its conclusion that Gloria and Syed were
validly married. To quote the CA:
Moreover, the record is replete with evidence,
testimonial and documentary, that appellant and
appellee have been validly married and there was
compliance with all the requisites laid down by law.
Both parties are legally capacitated to marry. A
certificate of legal capacity was even issued by the
Embassy of Pakistan in favor of appellee. The parties
herein gave their consent freely. Appellee admitted
that the signature above his name in the marriage
contract was his. Several pictures were presented
showing appellant and appellee, before the
solemnizing officer, the witnesses and other members
of appellants family, taken during the marriage
ceremony, as well as in the restaurant where the lunch
was held after the marriage ceremony. Most telling of
all is Exhibit "5-C" which shows appellee signing the
Marriage Contract.
All the evidence cited by the CA to show that a

wedding ceremony was conducted and a marriage
contract was signed does not operate to cure the
absence of a valid marriage license. Article 4 of the
Family Code is clear when it says, "The absence of any
of the essential or formal requisites shall render the
marriage void ab initio, except as stated in Article
35(2)." Article 35(3) of the Family Code also provides
that a marriage solemnized without a license is void
from the beginning, except those exempt from the
license requirement under Articles 27 to 34, Chapter 2,
Title I of the same Code.51 Again, this marriage cannot
be characterized as among the exemptions, and thus,
having been solemnized without a marriage license, is
void ab initio.1wphi1
As to the motive of Syed in seeking to annul his
marriage to Gloria, it may well be that his motives are
less than pure, that he seeks to evade a bigamy suit.
Be that as it may, the same does not make up for the
failure of the respondent to prove that they had a valid
marriage license, given the weight of evidence
presented by petitioner. The lack of a valid marriage
license cannot be attributed to him, as it was Gloria
who took steps to procure the same. The law must be
applied. As the marriage license, a formal requisite, is
clearly absent, the marriage of Gloria and Syed is void
ab initio.
xxxx
The parties have comported themselves as husband
and wife and has [sic] one offspring, Aliea Fatima Goo
Abbas, who was born on 15 June 1993. It took appellee
more than ten (10) years before he filed on 01 August
2003 his Petition for Declaration of Nullity of Marriage
under Article 4 of the Family Code. We take serious
note that said Petition appears to have been instituted
by him only after an Information for Bigamy (Exhibit
"1") dated 10 January 2003 was filed against him for
132
WHEREFORE, in light of the foregoing, the petition is

hereby GRANTED. The assailed Decision dated March
11, 2008 and Resolution dated July 24, 2008 of the
Court of Appeals in CA-G.R. CV No. 86760 are hereby
REVERSED and SET ASIDE. The Decision of the
Regional Trial Court, Branch 109, Pasay City dated
October 5, 2005 in Civil Case No. 03-0382-CFM
annulling the marriage of petitioner with respondent
on January 9, 1993 is hereby REINSTATED.
Associate Justice
Chairperson
CERTIFICATION
Pursuant to Section 13, Article VIII of the Constitution
and the Division Chairperson's Attestation, I certify
that the conclusions in the above Decision had been
reached in consultation before the case was assigned
to the writer of the opinion of the Court's Division.
No costs.
SO ORDERED.

Chief Justice

Associate Justice
Footnotes
WE CONCUR:
1 Penned by Associate Justice Celia C. Librea-Leagogo

and concurred in by Associate Justices Regalado E.
Maambong and Myrna Dimaranan Vidal.
DIOSDADO M. PERALTA
Associate Justice
2 Penned by Judge Tingaraan U. Guiling.

ROBERTO A. ABAD
Associate Justice JOSE CATRAL MENDOZA
Associate Justice
MARVIC MARIO VICTOR F. LEONEN
Associate Justice
3 Rollo, p. 13.
4 Id. at 47.
5 Id.
ATTESTATION
6 Id. at 12.
I attest that the conclusions in the above Decision had
assigned to the writer of the opinion of the Court's
Division.
7 Id. at 10.
8 Id. at 48.

133
9 Id. at 49, "January 19, 1993" in some parts of the

records.
27 Id. at 55.
10 Id.
28 Id.
11 Id. at 49-50.
29 Id. at 56.
12 Id. at 50.
30 Id. at 57.
13 Id.
31 Id.
14 Id.
32 Id. at 58.
15 Id.
17 Id.
33 Article 9. A Marriage License shall be issued by the

Local Civil Registrar of the city or municipality where
either contracting party habitually resides, except in
marriages where no license is required in accordance
with Chapter 2 of this Title.
18 Id.
34 Rollo, pp. 58-59.
19 Id.
35 Id. at 122.
20 Id. at 52.
36 Id. at 128.
21 Id.
37 Id. at 129.
22 Id. at 53.
38 Id. at 130.
23 Id. at 54.
39 Id. at 131.
24 Id.
40 Id. at 135-146.
25 Id.
41 Id. at 173-174.
26 Id.
42 Id. at 31.
16 Id. at 51.
134
that the residence of either party, specifying the barrio

or barangay, is so located that there is no means of
transportation to enable such party to appear
personally before the local civil registrar and that the
officer took the necessary steps to ascertain the ages
and relationship of the contracting parties and the
absence of legal impediment to the marriage.
43 G.R. No. 103047, September 2, 1994, 236 SCRA

257.
44 Id. at 262.
45 Supra note 43.
46 Alcantara v. Alcantara, G.R. No. 167746. August 28,
2007, 531 SCRA 446, 456.
Art. 30. The original of the affidavit required in the last

preceding article, together with a legible copy of the
marriage contract, shall be sent by the person
solemnizing the marriage to the local civil registrar of
the municipality where it was performed within the
period of thirty days after the performance of the
marriage.
47 403 Phil. 861, 869 (2001).

48 Supra note 43.
49 Supra note 47, at 870.
Art. 31. A marriage in articulo mortis between

passengers or crew members may also be solemnized
by a ship captain or by an airplane pilot not only while
the ship is at sea or the plane is in flight, but also
during stopovers at ports of call.
50 Rollo, pp. 129-130.

51 Art. 27. In case either or both of the contracting
parties are at the point of death, the marriage may be
solemnized without necessity of a marriage license
and shall remain valid even if the ailing party
subsequently survives.
Art. 32. A military commander of a unit, who is a

commissioned officer, shall likewise have authority to
solemnize marriages in articulo mortis between
persons within the zone of military operation, whether
members of the armed forces or civilians.
Art. 28. If the residence of either party is so located

that there is no means of transportation to enable such
party to appear personally before the local civil
registrar, the marriage may be solemnized without
necessity of a marriage license.
Art. 33. Marriage among Muslims or among members

of the ethnic cultural communities may be performed
validly without the necessity of marriage licenses,
provided they arc solemnized in accordance with their
customs, rites or practices.
Art. 29. In the cases provided for in the two preceding

articles, the solemnizing officer shall state in an
affidavit executed before the local civil registrar or any
other person legally authorized to administer oaths
that the marriage was performed in articulo mortis or
Art. 34. No license shall be necessary for the marriage

of a man and a woman who have lived together as
135
husband and wife for at least five years and without

any legal impediment to marry each other. The
administer oaths. The solemnizing officer shall also

state under oath that he ascertained the qualifications
of the contracting parties and found no legal
impediment to the marriage.
136

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PFR NOTES 08 AUGUST 2016

(2) The final decree of legal separation shall be set

New Civil Code (R.A. No. 8533)

Art. 71. The management of the household shall be

Art. 17. The local civil registrar shall prepare a notice

Art. 124. The administration and enjoyment of the

Art. 66. The reconciliation referred to in the preceding

disposition or encumbrance shall be void. However,

Sec. 2. Repatriation shall be effected by taking the

Section 1. Filipino women who have lost their

Sec. 4. This Act shall take effect thirty (30) days

(1) Person opposed to organized government or

EXECUTIVE ORDER NO. 227

July 17, 1987

AMENDING EXECUTIVE ORDER NO. 209,

(2) Person defending or teaching the necessity or

I, CORAZON C. AQUINO, President of the Philippines, do

(3) Person convicted of crimes involving moral

(4) Person suffering from mental alienation or

country where they were solemnized, and valid there

FAMILY CODE (E.O. 209, July 6, 1987)

Where a marriage between a Filipino citizen and a

Where a marriage between a Filipino citizen and a

EXECUTIVE ORDER NO. 292 (INSTITUTING THE

Done in the City of Manila, this 17th day of July, in the

Section 6. Effect of Marriage. - Citizens of the

"WHEREFORE, this Court declares the marriage

Republic of the Philippines

The assailed Order denied reconsideration of the

On June 26, 1992, respondent became an Australian

Before us is a Petition for Review under Rule 45 of the

On March 3, 1998, petitioner filed a Complaint for

The trial court declared the marriage dissolved on the

In his Answer, respondent averred that, as far back as

Hence, this Petition.18

On July 7, 1998 or about five years after the couple's

Respondent prayed in his Answer that the Complained

Thereafter, the trial court rendered the assailed

The trial court seriously erred in the application of Art.

Petitioner assails the trial court's recognition of the

Petitioner adds that, based on the first paragraph of

The trial court gravely erred in pronouncing that the

At the outset, we lay the following basic legal

The Court's Ruling

A comparison between marriage and divorce, as far as

decree of annulment or declaration of nullity of his or

Divorce as a Question of Fact

Respondent is getting ahead of himself. Before a

"ART. 11. Where a marriage license is required, each of

"(5) If previously married, how, when and where the

"ART. 13. In case either of the contracting parties has

she is the party challenging the validity of a foreign

The divorce decree between respondent and Editha

We are not persuaded. The burden of proof lies with

Compliance with the quoted articles (11, 13 and 52) of

It is well-settled in our jurisdiction that our courts

Burden of Proving Australian Law

Petitioner contends that, in view of the insufficient

court may allow a remarriage only after proof of good

Hence, she concludes that their marriage was void ab

"1. A party to a marriage who marries again before this

Respondent replies that the Australian divorce decree,

This quotation bolsters our contention that the divorce