G.R. No.
190814 October 9, 2013 separation, Ara and Ava have remained in Michelles
MICHELLE LANA BROWN- ARANETA, for herself and
representing her minor daughters, ARABELLA MARGARITA B.
ARANET A and A V ANGELINAMYKAELA B.
ARANETA, Petitioners,
vs.
JUAN IGNACIO ARANETA, Respondent.
D E C I S I O N
VELASCO, J.:
The Case
Assailed and sought to be set aside in this Petition for
Review on Certiorari under Rule 45 are the May 11, 2009
Decision1 of the Court of Appeals (CA) in CA-G .R. SP
No. 105442 and its Resolution2 of December28, 2009
denying petitioner's motion for reconsideration of said
decision.
The assailed decision ordered the dismissal of Civil
Case No. 08-023 of the Regional Trial Court (RTC),
Branch 207 in Muntinlupa City and nullified all the
issuances it made in that case, a petition for
protection order under Republic Act No. (RA) 9262,
otherwise known as the Anti-Violence Against Women and
Their Children Act of 2004, commenced by petitioner
Michelle Lana Brown-Araneta (Michelle) against
respondent Juan Ignacio Araneta (Juan Ignacio) before
that court.
The facts
On April 14, 2000, Juan Ignacio and Michelle were
married in Las Vegas, Nevada, USA. The union produced
two (2) children, namely: Arabella Margarita (Ara) and
Avangelina Mykaela (Ava), born on February 22, 2003 and
April 15, 2005, respectively. After a little over seven
years of disharmonious relationship, husband and wife
separated. Since the couples estrangement and de facto
custody.
In November 2007 before the RTC of Makati City, Juan
Ignacio filed, pursuant to A.M. No. 03-04-04-SC3 or The
Rule on Custody of Minors and Writ of Habeas Corpus in
Relation to Custody of Minors (Rule on Custody of
Minors), a Petition for the Custody of the Minors
Arabella Margarita Araneta and Avangelina Mykaela
Araneta (Petition for Custody), with prayer for
visitation rights against Michelle and her mother,
Glenda B. Santos (Santos). Docketed as SP PROC. Case No.
M-6543, this petition was eventually raffled to Branch
60 of the Makati City RTC (Makati RTC), presided over by
Judge Marissa Macaraig-Guillen (Judge Macaraig-Guillen).
1. Immediately issue a Provisional Order granting
[him]visitation rights with respect to the minors
[Ava and Ara] x x x during the pendency of these
proceedings;
2. Immediately issue an ex parte Hold Departure
Order preventing the departure of [both] minors x
x x from the country; and
3. After appropriate proceedings, render judgment
granting him joint custody, or alternatively,
granting him permanent visitation rights, over
both his legitimate children x x x.4
To facilitate service of summons, Juan Ignacio, via a
Motion and Urgent Manifestation of November 27, 2007,
would inform the Makati RTC that Michelle and Santos may
have transferred to No. 408 Anonas Street, Ayala Alabang
Village, Muntinlupa City (Anonas residence), an address
different from what he provided in his basic petition,
referring to the Molave Drive residence in the same
village. In her Officers Return dated December 10,
2007,5 process server Linda Fallorin stated the
following: (1) she initially attempted to serve the
summons upon Michelle and Santos on December 7,2007 at
the Anonas residence, only to be told by one Roberto
Anonas, who refused to receive the summons, that both
CHILD WITNESS. CUSTODY OF MINORS. NULLITY OF MARRIAGE. LEGAL SEPN 1
were out at that time; and (2) on December 10, 2007, she
was finally able to serve the summons upon Michelle and
Santos by substituted service through the driver of
Santos husband.
On December 18, 2007, Juan Ignacio moved for the
issuance of provisional visitorial order. After a
hearing on this motion, the Makati RTC issued on
December 21, 2007 an Order7 allowing Juan Ignacio to
visit her daughters on Christmas Day and New Years Day.
The visiting grant came after the court, taking stock of
the Officers Return, declared that it has acquired
jurisdiction over the person of Michelle, but despite
being given the opportunity to file a responsive
pleading, she has failed to do so.
Christmas and New Years Day 2008 came and went, but
Juan Ignacio was unable to see his little girls in those
days for reasons of little materiality to this
narration.
On January 2, 2008, Michelle filed in SP PROC. Case No.
M-6543 a Motion to Admit Answer and an Answer (with
Affirmative Defenses and With Very Urgent Ex-Parte
Motion for Issuance of Protection Order).8
In her Motion to Admit Answer, Michelle acknowledged
learning from her mother about the delivery of the
summons and a copy of the petition for custody to their
Anonas Residence. She, however, disregarded said summons
thinking, so she claimed, that it was improperly served
upon her person. It was, she added, only upon learning
of the issuance of the provisional order of visitation
rights that she gathered enough courage to come out to
present her side.9
In her Answer, on the other hand, Michelle owned up sole
responsibility for the decision not to allow her husband
to see their daughters. In support of her plea for the
dismissal of his petition for custody, the denial of
visitation rights pendente lite, and in the meanwhile
the ex parte issuance in her favor of a temporary
protection order (TPO),10 she recounted in lurid details
incidents characterizing the painful life she and her
children allegedly had to endure from her husband whom
she tagged as a drug user, sexual pervert, emotionally
unstable and temperamental, among other names. In her
words, Juan Ignacios "wild, decadent, irresponsible
lifestyle makes him unfit to exercise parental authority
and even enjoy visitation rights."11
During the January 4, 2008 hearing on Michelles prayer
for a TPO, Judge Macaraig-Guillen expressed her bent to
maintain her jurisdiction over SP PROC. Case No. M-6543
and her disinclination to issue the desired TPO. In her
Order of even date, she directed that the ensuing
observations she earlier made be entered into the
records:
1. She is not inclined to issue a [TPO] in favor
of respondent at this time because she initially
questioned the jurisdiction of this Court over her
person and only resorted to this Urgent Ex-Parte
Motion for a Protective Order after she realized
that the Court had every intention of maintaining
jurisdiction over this case x x x. It was
emphasized that the Court does not issue
Protective Orders over a person who has not
bothered to appear in Court x x x. Until the
respondent herself shows up in order to recognize
the jurisdiction of this Court over her and in
order to substantiate the allegations in her
Urgent Motion, there is no basis for this Court to
address the matters contained in the said Urgent
Ex-Parte Motion.
2. Secondly, x x x even assuming for the sake of
argument that the petitioner is, as respondent
described him to be, temperamental, violent, a
habitual drug user and a womanizer, these
qualities cannot, per se, prevent him from
exercising visitation rights over his children
because these are rights due to him inherently, he
being their biological father.12
CHILD WITNESS. CUSTODY OF MINORS. NULLITY OF MARRIAGE. LEGAL SEPN 2
During the same hearing, the Makati RTC granted Juan
Ignacio visitation rights on one (1) Saturday and Sunday
in January 2008 considering that he was unable to see
his children on the days granted under the December 21,
2007 Order.
Subsequently, by its Order of January 21, 2008, as would
later be effectively reiterated by another Order 13 of
March 7, 2008, the Makati RTC resolved to deny admission
of Michelles answer to the petition for custody and
declared her in default, pertinently disposing thusly:
WHEREFORE, in view of the foregoing, respondent
Aranetas Motion to Admit Answer of January 2, 2008 is
herein DENIED for lack of merit.
Because of respondent Aranetas failure to file her
responsive pleading within the reglementary period, x x
x respondent Araneta isherein declared in DEFAULT in
this proceedings.
As a consequence of this ruling, x x x the petitioner is
allowed to present evidence ex-parte to substantiate the
allegation in his Petition x x x.14
On January 21, 2008 also, Michelle interposed a Motion
to Withdraw Urgent Ex-Parte Motion for Protective Order,
there pointing out that no right of Juan Ignacio, if
any, will be affected if the said urgent motion is
withdrawn or expunged from her answer. And obviously to
sway the Makati RTCs mind of the resulting
insignificance of such withdrawal, if approved, Michelle
cited the ensuing observation thus made by the court
during the hearing on January 4, 2008:
COURT:
Well, I agree, she should really appear but whether or
not she should really appear here and substantiate her
allegations for the issuance of a protective order as
far as I am concerned is irrelevant insofar as the
enforcement of petitioners visitation rights are
concerned, this case is for custody, this is not a case
for the issuance of protective orders that is only a
counter manifestation that she is seeking.15
It is upon the foregoing set of events and proceedings
that Michelle, on March 25, 2008, instituted, pursuant
to RA 9262, a Petition For Temporary and Permanent
Protection Order16 (Petition for Protection Order)
before the RTC in Muntinlupa City, docketed as Civil
Case No. 08-023.Thereat, Michelle claimed, among other
things, that in the course of their marriage, Juan
Ignacio made her and their children engage in sexual
acts inimical to their emotional, physical and
psychological development and well-being; that he
engaged in perverted sexual acts with friends,
victimizing her and the children; that he has
consistently failed and refused to support their family;
and that he has a violent temper and was consistently
harassing and threatening her to get sole custody of the
children. Michelle volunteered the information that, per
her therapist, she is suffering from Battered Womans
Syndrome.17
In the verification portion of her petition for
protection order, Michelle stated that "there is x x x a
pending petition for the custody of our children in the
[RTC] Br. 60, Makati City, x x x Civil Case No. M-
6543."18
The following events and proceedings then transpired:
1. On March 31, 2008, the Muntinlupa RTC granted
Michelles prayer for a TPO which, at its most
basic, ordered Juan Ignacio (1) to stay away at a
specified distance from Michelle and the children,
inclusive of their present residence and other
places they frequent; and (2) to desist from
calling or otherwise communicating with Michelle.
(2) On April 14, 2008, Juan Ignacio filed in Civil
Case No. M-6543 a "Motion to Dismiss Petition with
Prayer to Lift [TPO]"19 anchored on several
grounds, foremost of which are the following: (a)
CHILD WITNESS. CUSTODY OF MINORS. NULLITY OF MARRIAGE. LEGAL SEPN 3
litis pendentia, Juan Ignacio noting in this
regard that the Makati RTC is competent to grant
in its SP PROC. Case No. M-6543 the very same
reliefs Michelle seeks in Civil Case No. M-6543,
pursuant to Sections 17 and 18 of the Rule on
Custody of Minors;20 (b) in view of item (a)
above, the Makati RTC, having first assumed
jurisdiction over identical subject matters,
issues and parties, does so to the exclusion of
the Muntinlupa RTC; and (c) Michelles act of
filing her petition for protection order before
the Muntinlupa RTC constitutes, under the
premises, forum shopping, a practice proscribed
owing to the possibility of different courts
arriving at conflicting decisions. Juan Ignacio
would in fact stress that the TPO thus issued by
the Muntinlupa RTC directing him to stay at least
a kilometer away from his children already
conflicted with the Makati RTC-issued provisional
orders granting him visitation rights over them.
(3) By Order of May 12, 2008, the Muntinlupa RTC,
conceding the exclusionary effect of the
assumption at the first instance by the Makati RTC
of jurisdiction on the issue of custody on Ava and
Ara and the likelihood of the issuance by either
court of clashing decisions, partially granted
Juan Ignacios motion to dismiss and accordingly
modified the TPO issued on March 31, 2008. As thus
modified, the protection order, or to be precise,
the reliefs provided in favor of Michelle in said
TPO shall exclude from its coverage the orders
issued by the Makati RTC in the exercise of its
jurisdiction on the pending custody case.
In another Order of June 30, 2008, the Muntinlupa
RTC denied Juan Ignacios Motion for
Reconsideration of the earlier May 12, 2008 Order
on the ground that such a motion is a prohibited
pleading.21
(4) Meanwhile, Michelle, in connection with
certain orders of the Makati RTC in the custody
case, denying her motion to admit answer and its
jurisdictional issue pronouncements, went to the
CA on certiorari via a petition docketed as CA-
G.R. SP No. 103392.
On August 28, 2008, in CA-G.R. SP No. 103392, the CA
rendered a judgment finding partly for Michelle, as
petitioner, it being the appellate courts determination
that the substituted service of summons upon her in the
custody suit was defective and irregular. Accordingly,
the period within which Michelle was to file an answer,
so the CA declared, did not start to run and, hence, the
denial by the Makati RTC of her motion to admit answer
in the custody case and corollarily, its holding that
she is in default, by virtue of its Orders dated January
21, 2008 and March 7, 2008, were unwarranted and ought
to be nullified. Neither of the parties appealed the
foregoing Decision. The CA Decision, thus, became final.
The fallo of the said CA Decision reads:
WHEREFORE, the foregoing considered, the instant
petition is hereby PARTLY GRANTED. Accordingly, the
assailed Orders of 21January 2008 and 7 March 2008 are
REVERSED and SET ASIDE while the Orders of 29 February
2008 and 31 March 2008, in so far as the denial of
petitioners Motion for Inhibition is concerned, are
AFFIRMED. No costs.
SO ORDERED.22
Partly, the CA wrote:
x x x The pivotal issue x x x is whether the Makati RTC
had acquired jurisdiction over the person of the
petitioner, and if so, whether the disposition of the
respondent Makati RTC judge in declaring her in default
has factual and legal basis. Admittedly, the summons and
the copy of the petition were not personally served upon
the petitioner as explicitly required under Section 5 of
A.M. No. 03-04-04-SC x x x.
CHILD WITNESS. CUSTODY OF MINORS. NULLITY OF MARRIAGE. LEGAL SEPN 4
Indeed, the records would show that the summons and the
petition were served upon the petitioner x x x by
substituted service as they were received by x x x a
certain Nilo Santos at said Anonas residence, an address
belatedly supplied by private respondent himself.
However, x x x petitioner had actually been informed of
such substituted service sometime in the second week of
December 2007 and that she had opted to simply disregard
the same since she had thought that such service is
invalid x x x.
Despite the fact that she had known of the existence of
the petition a quo and the fact that the service of
summons had been made upon her by substituted service,
petitioner made a decision whether it be an informed one
or not, not to move for its dismissal on the ground of
lack of jurisdiction over her person x x x. It was only
upon the issuance of the Provisional Order that she had
opted to participate in the proceeding by filing her
responsive pleading to the petition. Unfortunately
though, the respondent Makati RTC judge denied her
motion to admit and declared her in default on the basis
of its disquisition that the failure of the petitioner
to file her responsive pleading is not due to excusable
negligence or other circumstances beyond her control.
Still and all, it cannot be denied that the trial court,
previous to or at the time the petitioner had filed her
responsive pleading, has yet to acquire jurisdiction
over the person of the latter. The Rule on Custody of
Minors specifically requires that service of summons be
made personally on the respondent and yet the trial
court served the same upon the person of the petitioner
by substituted service without proof of exhaustion of
means to personally serve the same or the impossibility
thereof to warrant the extraordinary method of
substituted service.
Surely, while the Rule on Custody of Minors provides
that the Rules of Court shall apply suppletorily in
custody proceedings, the express provision requiring
personal service and the very nature of custody cases
should have caused the respondent judge x x x to adhere
to the evident intention of the rules, that is to have
both parties in a custody case participate therein.
Regrettably, the respondent judge, relying on the
Officers Return x x x, precipitately declared x x x
that the trial court had already acquired jurisdiction
over the person of the petitioner. x x x
Sadly though, respondent judge, in grave abuse of
discretion, assumed jurisdiction over the person of the
petitioner and proceeded to act on the petition. Worse,
x x x the respondent judge denied the motion to admit
filed by the petitioner and declared the latter in
default. While the petitioner had already submitted
herself to the jurisdiction of the trial court by way of
her voluntary act of filing a responsive pleading to the
petition a quo, the period to file said responsive
pleading, as already stated, in so far as the petitioner
is concerned has yet to commence, and thus, the filing
of her motion to admit answer cannot plausibly be
considered as to have been filed beyond the reglementary
period. In this light, the denial of said motion and the
issuance of the default order are unwarranted and are
reversible errors of jurisdiction x x x.23 (Emphasis
added.)
(5) From the adverse May 12, 2008 and June 30, 2008
Orders of the Muntinlupa RTC in Civil Case No. M-6543,
Juan Ignacio also repaired to the CA on a petition for
certiorari. Docketed as CA-G.R. SP. No. 105442, the
petition prayed that the Muntinlupa RTC be enjoined from
further taking cognizance of Michelles protection order
petition as the said case will infringe or intrude upon
the Makati RTCs disposition of the custody case.24
Michelle opposed and sought the dismissal of the
certiorari petition on the ground that it is a
prohibited pleading under Sec. 22(j) of RA 9262.
Eventually, the CA issued, on May 11, 2009, the assailed
Decision which, on one hand, found Michelle guilty of
forum shopping, a sufficient cause for summary dismissal
of a case, but viewed, on the other, Juan Ignacios
CHILD WITNESS. CUSTODY OF MINORS. NULLITY OF MARRIAGE. LEGAL SEPN 5
petition for certiorari as a prohibited pleading which,
ordinarily, would then render it dismissible. In the
veritable clash under the premises of the effects of
forum shopping and the rule on prohibited pleading, the
CA nonetheless ruled for Juan Ignacio, as petitioner,
pertinently disposing as follows:
ACCORDINGLY, the petition is GIVEN DUE COURSE. Civil
Case No. 08-023 is ORDERED DISMISSED and all issuances
made by RTC, Branch 207, Muntinlupa City, are declared
void. The RTC Branch 60, Makati City is DIRECTED to
proceed with the case with dispatch.25
The CA extricated itself from the foregoing legal bind
on the basis of the following ratiocination and the
plausible suppositions interjected thereat:
In resolving the present petition, the Court had to
consider two (2) things. First, pursuant to Section 22
(j) of A.M. No. 04-10-11-SC, a petition for certiorari
against any interlocutory order issued by a family court
is a prohibited pleading. Accordingly, if this Court
were to strictly follow [said] Section 22 (j) x x x,
then the present petition for certiorari must be
dismissed. Second, the Private Respondent had first
moved that the Makati RTC issue a TPO and that when her
motion was denied, she filed a petition before the
Muntinlupa RTC asking that the said court issue a TPO.
In short, the Private Respondent committed forum-
shopping. And when forum-shopping is committed, the
case(s) must be dismissed with prejudice.
Thus, it falls upon this Court to balance the conflict.
This Court notes that the Muntinlupa RTC tried to
balance out the conflicting jurisdictional issues with
the Makati RTC by stating in its first assailed Order
that the reliefs provided in favor of herein private
respondent in the TPO x x x are modified, to exclude
from its coverage those Orders issued by the Makati
Court in the exercise of its jurisdiction on the pending
custody case. Be that as it may, the Muntinlupa RTC
itself recognized the jurisdiction of the Makati RTC and
that the case before it would, in fact, impinge upon the
jurisdiction of the latter court when it stated that the
disposition on the matter by this Court may result in
the possibility of conflicting decisions/orders. In
short, the Muntinlupa RTC itself acknowledges the fact
that any future issuances, including its eventual
decision on the petition before it, would affect the
custody case pending before the Makati RTC and might
even result to conflicting decisions.
Thus, in the interest of judicial stability, it is
incumbent upon this Court to ensure that this
eventuality will not come to pass.
x x x x
To test the argument that a petition for certiorari is
an absolutely prohibited pleading, let us push the
present case to its logical extreme.
What if a woman claiming to be a battered wife leaves
one of her children with her parents and another with a
sibling of hers? She then went to another place,
transferred residency, and filed a petition for TPO. Her
parents and sibling, who reside in another locality,
likewise files a petition for TPO in behalf of the
grandchild and nephew/niece entrusted]in their custody.
x x x What if the family courts refuse consolidation? Is
the man devoid of any remedy and would have to spend his
time shuttling between three (3) localities since a
petition for certiorari is a prohibited pleading?
What if the woman went to another locality purposely in
order to find a friendly venue x x x? Again, if we are
to strictly construe Section22 (j) of A.M. No. 04-10-11-
SC that man would just have to bear the consequences
since he cannot seek the extraordinary writ of
certiorari. Or, what if both of the spouses do not
reside within the courts jurisdiction, but the judge
refuses to grant a motion to dismiss due to his zeal?
What remedy would a man have since he cannot resort to a
petition for certiorari?
CHILD WITNESS. CUSTODY OF MINORS. NULLITY OF MARRIAGE. LEGAL SEPN 6
The rules are not sacrosanct. If they go in the way of
the smooth and orderly administration of justice, then
magistrates should apply their best judgment. If not,
courts would be so hideously bound or captives to the
stern and literal provisions of the law that they
themselves would, wittingly or otherwise, become
administrators of injustice.
On the one hand, this Court hereby notes that Private
Respondent herself recognizes the jurisdiction of the
Makati RTC to issue a TPO. It was only after the Makati
RTC denied her prayer for a TPO when she filed a
petition before the Muntinlupa RTC asking for the
issuance of a TPO. It is thus highly disturbing that the
Private Respondent sought another forum in order to try
to obtain a favorable judgment. Thus, as aptly pointed
out by the Petitioner, some sort of forum-shopping was
committed.
On the other hand, if the Court were to dismiss the
present petition on the ground that a petition for
certiorari is a prohibited pleading, it would have to
close its eyes to the fact that the Private Respondent
willfully committed forum-shopping. To dismiss the
present petition would, in effect, "reward" her for this
negative act. This, the Court cannot countenance.
x x x x
Accordingly, x x x Civil Case No. 08-023 must not be
allowed to proceed any further. Imperatively, to ensure
that the jurisdiction of the Makati RTC remains
unshackled, all of the issuances of the Muntinlupa RTC
should, by all means, be nullified.26 (Emphasis added.)
The CA denied Michelles motion for reconsideration per
its equally assailed Resolution of December 28, 2009.
Aggrieved, Michelle, for herself and for her minor
daughters, filed the instant recourse, her submissions
revolving on the twin issues of forum shopping and the
prohibition under Sec. 22 of the Rule on Violence
Against Women and Children27 against the filing of
petitions for certiorari to defeat TPOs issued to
promote the protection of victims of violence against
women and their children.
Michelle presently argues that the assailed Decision of
the CA is based on an erroneous appreciation of the
facts of the case. To her, there was no forum shopping
when she filed her Petition for Protection Order in the
Muntinlupa RTC while the custody case was pending in the
Makati RTC. Her stated reason: the absence in both cases
of identity of parties and rights asserted, on top of
which the reliefs sought and prayed for are different
and not founded on the same set of facts.
To downplay the application of the litis pendentia
principle, she argues that it was impossible for her to
apply for and secure a protective order under RA 9262 in
the custody case before the Makati RTC being, first, a
respondent, not a petitioner in the Makati case; and
second, the venue for an application for protection
order is, under RA 9262, the place where the woman or
the offended party resides, which in her case is
Muntinlupa.28
Michelle would invite attention to her having withdrawn
her motion for protective order in the custody case
before the Makati RTC before she filed her Petition for
Protective Order with the Muntinlupa RTC. Additionally,
she points to the CAs Decision of August 28, 2008 in
CA-G.R. SP No. 103392 (2008 CA Decision), which held
that the Makati RTC did not acquire jurisdiction over
her so that all issuances of the Makati RTC were void.
All these, Michelle claims, argue against the existence
of litis pendentia.
The Issue
The issue to be resolved in this case is whether or not
petitioner, in filing her Petition for Protection Order
before the Muntinlupa RTC, violated the rule on forum
shopping, given the pendency of the respondents
Petition for Custody before the Makati RTC and
CHILD WITNESS. CUSTODY OF MINORS. NULLITY OF MARRIAGE. LEGAL SEPN 7
considering incidentally that she filed said petition
for protection order after the Makati RTC had denied her
application for protection order in the custody case.
The Courts Ruling
Before anything else, however, the Court wishes to point
out disturbing developments in this proceeding which
ought not to be swept under the rug on the simplistic
pretext that they may not be determinative of the
outcome of this case. But first, some basic premises on
record.
First, as correctly stated in this petition, Michelle
withdrew her Ex Parte Motion for Issuance of Protective
Order in the custody case prior to her filing of her
Petition for Protection Order with the Muntinlupa RTC.
It should be made clear, however, that she filed said
motion to withdraw on January 21, 2008, or after the
Makati RTC, in its Order dated January 4,2008, had, for
all intents and purposes, denied the said ex parte
motion. To recapitulate, the Makati RTC judge made it of
record that she was not inclined to issue a protective
order in favor of a person, i.e., petitioner Michelle,
who has not bothered to appear in court, even assuming,
she adds, that the person against whom the protection
order is directed, i.e., Juan Ignacio, is prone to
violence, a drug user and a womanizer.
Second, there is absolutely nothing in the 2008 CA
Decision declaring that all issuances of the Makati RTC
were void. In order to bolster her position that the
rule against forum shopping was not breached in this
case, Michelle matter-of-factly alleged in this recourse
that since in the 2008 CA Decision it was ruled that the
Makati RTC did not acquire jurisdiction over her person
due to the irregularity in the service of summons, then
"all the issuances or orders of the Makati RTC in the
custody case were void;"29 and "therefore, there was no
litis pendentia to begin with since the RTC of Makati
City Branch 60 had no jurisdiction from the start."30
For perspective, the 2008 CA Decision did not rule that
the Makati RTC did not acquire jurisdiction over
Michelle. Quite the contrary. As a matter of record, the
CA in that disposition found and thus declared Michelle
to have voluntarily submitted herself to the
jurisdiction of the Makati RTC when she filed her Answer
in SP. PROC. Case No. 6543 on January 2, 2008.But to be
precise about things, the CA in that 2008 Decision
found, as having been tainted with of grave abuse of
discretion, only that part of the Makati RTCs
disposition denying Michelles motion to admit answer
for belated filing and the consequent default order.
Along this line, the CA merely nullified the Makati
RTCs Orders dated January 21, 2008 and March 7, 2008
which declared Michelle in default and denied her motion
for reconsideration, respectively. The ensuing excerpts
of the 2008 CA Decision speak for themselves:
Sadly though, respondent judge, in grave abuse of
discretion, assumed jurisdiction over the person of the
petitioner and proceeded to act on the petition. Worse,
without due regard to the plain intention of the rule in
ensuring the adjudication of the controversy surrounding
a custody case based on its merits, the respondent judge
denied the motion to admit filed by the petitioner and
declared the latter in default. While the petitioner had
already submitted herself to the jurisdiction of the
trial court by way of her voluntary act of filing a
responsive pleading to the petition a quo, the period to
file said responsive pleading, as already stated, in so
far as the petitioner is concerned has yet to commence,
and thus, the filing of her motion to admit answer
cannot plausibly be considered as to have been filed
beyond the reglementary period. In this light, the
denial of said motion and the issuance of the default
order are unwarranted and are reversible errors of
jurisdiction, therefore correctible by a writ of
certiorari. (Emphasis supplied.)
x x x x
WHEREFORE, the foregoing considered, the instant
petition is hereby PARTLY GRANTED. Accordingly, the
CHILD WITNESS. CUSTODY OF MINORS. NULLITY OF MARRIAGE. LEGAL SEPN 8
assailed Orders of 21January 2008 and 7 March 2008 are
REVERSED and SET ASIDE while the Orders of 29 February
2008 and 31 March 2008, in so far as the denial of
petitioners Motion for Inhibition is concerned, are
AFFIRMED. No costs.
SO ORDERED.31
Withal, the Court finds it downright offensive and
utterly distasteful that petitioner raised the following
as one of the issues in this appellate proceeding:
Whether or not the petitioners are guilty of forum-
shopping when the Petition for Custody of private
respondent Araneta was dismissed by the Court of Appeals
on the ground that the RTC of Makati City Branch60 did
not acquire jurisdiction because the summons was not
served personally upon herein Petitioner Michelle Lana
Brown Araneta.32 (Emphasis supplied.)
Petitioners above posture smacks of bad faith, taken
doubtless to deceive and mislead the Court. Indeed,
nothing in either the body or the fallo of the 2008 CA
Decision would yield the conclusion that the petition
for custody is being dismissed, as petitioner
unabashedly would have the Court believe.
Was there forum shopping? Did petitioner forum shop?
A circumstance of forum shopping occurs when, as a
result or in anticipation of an adverse decision in one
forum, a party seeks a favorable opinion in another
forum through means other than appeal or certiorari by
raising identical causes of action, subject matter and
issues. Stated a bit differently, forum shopping is the
institution of two or more actions involving the same
parties for the same cause of action, either
simultaneously or successively, on the supposition that
one or the other court would come out with a favorable
disposition.33 An indicium of the presence of, or the
test for determining whether a litigant violated the
rule against, forum shopping is where the elements of
litis pendentia are present or where a final judgment in
one case will amount to res judicata in the other
case.34
Litis pendentia,35 as a ground for the dismissal of a
civil suit, refers to that situation wherein another
action is pending between the same parties for the same
cause of action, such that the second action becomes
vexatious and unnecessary.36 For the bar of litis
pendentia to be invoked, the concurring requisites must
be present: (1) identity of parties, or at least such
parties as represent the same interests in both actions;
(2) identity of rights asserted and relief prayed for,
the relief being founded on the same facts; and (3) the
identity of the two preceding particulars is such that
any judgment rendered in the pending case, regardless of
which party is successful would amount to res judicata
in the other.37
Thus, it has been held that there is forum shopping (1)
whenever as a result of an adverse decision in one
forum, a party seeks a favorable decision (other than by
appeal or certiorari) in another; or (2) if, after he
has filed a petition before the Supreme Court, a party
files another before the CA since in such case said
party deliberately splits appeals "in the hope that even
as one case in which a particular remedy is sought is
dismissed, another case(offering a similar remedy) would
still be open"; or (3) where a party attempts to obtain
a preliminary injunction in another court after failing
to obtain it from the original court.38
The evil sought to be avoided by the rule against forum
shopping is the rendition by two competent tribunals of
two separate and contradictory decisions. Unscrupulous
party litigants, taking advantage of a variety of
competent tribunals, may repeatedly try their luck in
several different fora until a favorable result is
reached. To avoid the resultant confusion, the Court
adheres to the rules against forum shopping, and a
breach of these rules results in the dismissal of the
case.39
CHILD WITNESS. CUSTODY OF MINORS. NULLITY OF MARRIAGE. LEGAL SEPN 9
Considering the above doctrinal pronouncements on forum
shopping, We find all the badges of this deplorable,
docket-clogging practice present in this case.
As a result or in anticipation of an adverse ruling of
the Makati RTC,
petitioner sought the favorable opinion of the
Muntinlupa RTC
As discussed above, the presiding judge of the Makati
RTC, in the custody case, made of record that she was
not inclined to issue a protection order in favor of
Michelle because she did not bother to appear in Court
and that the allegations against Juan Ignacio cannot,
per se, prevent him from exercising visitation rights
over his children. After this adverse ruling, Michelle
sought the favorable opinion of the Muntinlupa RTC by
filing an independent Petition for Protection Order.
The cases have identical parties
Clearly, the Petition for Custody and the Petition for
Protection Order have the same parties who represent the
same interests. The fact that Avaand Ara, who are
parties in the Petition for Protection Order, are not
impleaded in the Petition for Custody is of no moment
because they are precisely the very subjects of the
Petition for Custody and their respective rights are
represented by their mother, Michelle. In a long line of
cases on forum shopping, the Court has held that
absolute identity of the parties is not required, it
being enough that there is substantial identity of the
parties40 or at least such parties represent the same
interests in both actions. It does not matter, as here,
that in the Petition for Custody, Juan Ignacio is the
petitioner and Michelle is the respondent while in the
Petition for Protection Order, their roles are reversed.
That a party is the petitioner in one case and at the
same time, the respondent in the other case does not,
without more, remove the said cases from the ambit of
the rules on forum shopping. So did the Court hold, for
example in First Philippine International Bank v. Court
of Appeals, that forum shopping exists even in cases
like this where petitioners or plaintiffs in one case
were impleaded as respondents or defendants in
another.41 Moreover, this Court has constantly held that
the fact that the positions of the parties are reversed,
i.e., the plaintiffs in the first case are the
defendants in the second case or vice versa, does not
negate the identity of parties for purposes of
determining whether the case is dismissible on the
ground of litis pendentia.42
The rights asserted and reliefs prayed for are based on
the same facts
Further, the rights asserted and reliefs prayed for in
Civil Case No. 08-023 are practically based on the same
facts and are so intertwined with that in SP. PROC. Case
No. 6543, such that any judgment rendered in the pending
cases, regardless of which party is successful, will
amount to res judicata.
In the custody case, Juan Ignacio mainly asserted his
right, as father, to visit his children and enjoy joint
custody over them. He prayed for a judgment granting him
joint custody, or alternatively, permanent visitation
rights over Ava and Ara.
In disposing of the custody case, the Makati RTC is
expected, following the rationale behind the issuance of
the Rule on Custody of Minors, to consider, among
others, the best interest of the children,43 any threat
or danger of physical, mental, sexual or emotional
violence which endangers their safety and best interest,
their health, safety and welfare,44 any history of child
or spousal abuse by the person seeking
custody,45 habitual use of alcohol, dangerous drugs or
regulated substances,46 marital misconduct,47 and the
most suitable physical, emotional, spiritual,
psychological and educational environment for the
holistic development and growth of the minor.48
Michelles answer and motion for issuance of protection
order in the custody case contained allegations of
psychological, sexual, emotional and economic abuse she
CHILD WITNESS. CUSTODY OF MINORS. NULLITY OF MARRIAGE. LEGAL SEPN 10
and her children suffered at the hands of Juan Ignacio
to defeat his asserted right to have joint custody over
Ava and Ara and as argument that the grant of visitation
rights in his favor will not be in the best interest of
the children. These allegations of abuse were in
substance the very same ones she made in her Petition
for Protection Order.
Juan Ignacios rights and reliefs prayed for are
dependent on and, to be sure, would be predicated on the
question of whether or not granting him the desired
custody or at least visitations rights over the children
are in their best interest. In deciding this issue, the
Makati RTC will definitely have to reckon with and make
a finding on Michelles allegations of psychological,
sexual, emotional and economic abuse.
Similarly, the Muntinlupa RTC must necessarily consider
and make a determination based on the very same facts
and allegations on whether or not Michelle shall be
entitled to the relief she prayed for in her own
petition, in particular, a permanent protection order
against Juan Ignacio.
Elements of litis pendentia are present and any judgment
in the pending cases would amount to res judicata
Any judgment rendered in the pending cases, regardless
of which party is successful, would amount to res
judicata. Consider: If the Makati RTC were to grant Juan
Ignacios petition for custody, this would necessarily
mean that it would be in the best interest of the
children if he were allowed to visit and spend time with
them and that granting Juan Ignacio visitation rights
would not pose any danger or threat to the children.
On the other hand, a grant by the Muntinlupa RTC of
Michelles prayer for a permanent protection order would
presuppose at the minimum that it would be to the
childrens best interest if Juan Ignacio is directed to
keep away from them, necessary implying that he is unfit
even to visit Araand Ava. Conversely, if Juan Ignacios
Petition for Custody were denied, then it would mean
that the Makati RTC gave weight and credence to
Michelles allegations of abuse and found them to be in
the best interest of the children to bar Juan Ignacio
from visiting them. Thus, the Muntinlupa RTC should have
no ground to deny Michelles Petition for Protection
Order pending before it.
The evil sought to be avoided by the rule against
forum shopping is present in this case
The grave mischief sought to be avoided by the rule
against forum shopping, i.e., the rendition by two
competent tribunals of two separate and contradictory
decisions, is well-nigh palpable in this case. If the
Muntinlupa RTC were to rule that Michelle was entitled
to a Protection Order, this would necessarily conflict
with any order or decision from the Makati RTC granting
Juan Ignacio visitation rights over Ava and Ara. As
aptly pointed out by Juan Ignacio in his Comment such a
conflict had already occurred, as the TPO issued by the
Muntinlupa RTC actually conflicted with the Orders
issued by the Makati RTC granting Juan Ignacio temporary
visitation rights over his children. There now exists an
Order from the Muntinlupa RTC which, among others,
directed Juan Ignacio to stay at least one (1) kilometer
away from Ava and Ara, even as the Makati RTC
recognized, in two (2) separate Orders, that he had the
right, albeit temporarily to see his children.49
In fact, Michelle was very much aware of the possible
conflicts between the orders of Makati RTC and
Muntinlupa RTC. In her Opposition (to Urgent Motion for
Immediate Enforcement of Visitation Orders dated
December 21, 2007 and January 4, 2008), she recognized
that the granting of visitation rights in favor of Juan
Ignacio would conflict the TPO and, therefore, the
Makati Court would be rendering a conflicting decision
with that of the Muntinlupa RTC, viz:
x x x There is therefore, no conflict of jurisdiction in
this case but since the petitioner filed a Petition for
Certiorari in the Court of Appeals, which includes the
issue of custody, we submit that the matter of custody
CHILD WITNESS. CUSTODY OF MINORS. NULLITY OF MARRIAGE. LEGAL SEPN 11
pendente lite including visitation, should not and can
not be resolved by this Honorable Court without
conflicting with the Temporary Protection Order of a co-
equal court, the RTC of Muntinlupa City. x x xx
x x x
If the petitioner is granted visitation rights, the
Honorable Court, with due respect would be allowing him
to violate the TPO against him; the Honorable Court
would then be rendering a conflicting
decision.50 (Emphasis supplied.)
No less than the Muntinlupa RTC itself recognized the
resulting aberration of its orders conflicting with
that/those of the Makati RTC. As it were, the former, in
its Order of May 12, 2008, resolving Juan Ignacios
Motion to Dismiss with Prayer to Lift Temporary
Protection Order, categorically stated that there may be
orders in the protection order case that would possibly
conflict with the orders issued by the Makati RTC in the
custody case. So it was that to address these possible
conflicts, the Muntinlupa RTC partially granted Juan
Ignacios Motion to Dismiss by modifying the reliefs
provided under the TPO by excluding from its coverage
those orders issued by the Makati RTC in the exercise of
its jurisdiction over the custody case. Pursuant to the
foregoing Order of the Muntinlupa RTC, the December 21,
2007 and January 4, 2008 Orders of the Makati RTC,
granting Juan Ignacio visitation rights on Christmas Day
and New Years Day and one (1) Saturday and Sunday in
January 2008, are not covered by the reliefs under the
TPO. Hence, despite the TPO directing Juan Ignacio to
stay at least one (1) kilometer away from Ava and Ara,
Juan Ignacio would still have the right to see his
children by virtue of the orders issued by the Makati
RTC granting him temporary visitation rights. The said
Muntinlupa RTC Order reads:
Based on the pleadings filed, this (Muntinlupa) Court
holds that since the Makati Court first acquired
jurisdiction over the issue of custody, the latter
continues to exercise it, so that any disposition on the
matter by this Court may result in the possibility of
conflicting decisions/orders.
Wherefore, this Court partially grants respondents
Motion to Dismiss insofar as those matters covered by
A.M. No. 03-04-04-SC, Rule on Custody of Minors and Writ
of Habeas corpus in Relation to Custody of Minors are
concerned, which are within the jurisdiction of the
Makati Court, but continues to take cognizance on
matters not included therein (A.M. No. 03-04-04-SC) but
within the protective mantle of R.A. No. 9262.
Consequently, the reliefs provided in favor of the
petitioner in the Temporary Protection Order dated March
31, 2008 are modified, to exclude from its coverage
those Orders issued by the Makati Court in the exercise
of its jurisdiction on the pending custody case.
The motions to lift the temporary protection order
(except on those matter stated above) and to cite
petitioner in contempt of court are denied for lack of
merit.51 (Emphasis supplied.)
Verily, the Muntinlupa RTC was aware that its issuances
and its eventual final disposition on the Petition for
Protection Order would affect the custody case before
the Makati RTC, if not totally clash with the latter
courts decision. We agree with the CAs ensuing
observation:
This Court notes that the Muntinlupa RTC tried to
balance out the conflicting jurisdictional issues with
the Makati RTC by stating in its first assailed Order
that the reliefs provided in favor of herein private
respondent in the TPO dated March 31, 2008 are modified,
to exclude from its coverage those Orders issued by the
Makati Court in the exercise of its jurisdiction on the
pending custody case. Be that as it may, the Muntinlupa
RTC itself recognized the jurisdiction of the Makati RTC
and that the case before it would, in fact, impinge upon
the jurisdiction of the latter court when it stated that
the disposition on the matter by this Court may result
in the possibility of conflicting decisions/orders. In
CHILD WITNESS. CUSTODY OF MINORS. NULLITY OF MARRIAGE. LEGAL SEPN 12
short, the Muntinlupa RTC itself acknowledges the fact
that any future issuances, including its eventual
decision on the petition before it, would affect the
custody case pending before the Makati RTC and might
even result to conflicting decisions. Thus, in the
interest of judicial stability, it is incumbent upon
this Court to ensure that this eventuality will not come
to pass.52

Civil Case No. 08-023 should, thus, be dismissed with

prejudice for being a clear case of forum shopping.

WHEREFORE, premises considered, the appealed May 11,

2009Decision and the December 28, 2009 Resolution of the
Court of Appeals in C A-G.R. SP. No. 105442,
particularly insofar as these ordered the dismissal or
subject Civil Case No. 08-023 and the nullification of RULE ON DECLARATION OF ABSOLUTE NULLITY OF VOID
the orders made in that case, are hereby AFFIRMED. MARRIAGES AND ANNULMENT OF VOIDABLE MARRIAGES
Republic of the Philippines
No costs. SUPREME COURT
Manila
SO ORDERED.
SECOND DIVISION
PRESBITERO J. VELASCO, JR.
Associate Justice G.R. No. 186400 October 20, 2010

CYNTHIA S. BOLOS, Petitioner,

vs.
DANILO T. BOLOS, Respondent.

D E C I S I O N

MENDOZA, J.:

This is a petition for review on certiorari under Rule

45 of the Rules of Court seeking a review of the
December 10, 2008 Decision1 of the Court of
Appeals (CA) in an original action for certiorari under
Rule 65 entitled "Danilo T. Bolos v. Hon. Lorifel Lacap
Pahimna and Cynthia S. Bolos," docketed as CA-G.R. SP.
No. 97872, reversing the January 16, 2007 Order of the
Regional Trial Court of Pasig City, Branch
CHILD WITNESS. CUSTODY OF MINORS. NULLITY OF MARRIAGE. LEGAL SEPN 13
69 (RTC), declaring its decision pronouncing the nullity
of marriage between petitioner and respondent final and
executory.
On July 10, 2003, petitioner Cynthia
Bolos (Cynthia) filed a petition for the declaration of
nullity of her marriage to respondent Danilo
Bolos (Danilo) under Article 36 of the Family Code,
docketed as JDRC No. 6211.
After trial on the merits, the RTC granted the petition
for annulment in a Decision, dated August 2, 2006, with
the following disposition:
WHEREFORE, judgment is hereby rendered declaring the
marriage between petitioner CYNTHIA S. BOLOS and
respondent DANILO T. BOLOS celebrated on February 14,
1980 as null and void ab initio on the ground of
psychological incapacity on the part of both petitioner
and respondent under Article 36 of the Family Code with
all the legal consequences provided by law.
Furnish the Local Civil Registrar of San Juan as well as
the National Statistics Office (NSO) copy of this
decision.
SO ORDERED.2
A copy of said decision was received by Danilo on August
25, 2006. He timely filed the Notice of Appeal on
September 11, 2006.
In an order dated September 19, 2006, the RTC denied due
course to the appeal for Danilos failure to file the
required motion for reconsideration or new trial, in
violation of Section 20 of the Rule on Declaration of
Absolute Nullity of Void Marriages and Annulment of
Voidable Marriages.
On November 23, 2006, a motion to reconsider the denial
of Danilos appeal was likewise denied.
On January 16, 2007, the RTC issued the order declaring
its August 2, 2006 decision final and executory and
granting the Motion for Entry of Judgment filed by
Cynthia.
Not in conformity, Danilo filed with the CA a petition
for certiorari under Rule 65 seeking to annul the orders
of the RTC as they were rendered with grave abuse of
discretion amounting to lack or in excess of
jurisdiction, to wit: 1) the September 19, 2006 Order
which denied due course to Danilos appeal; 2) the
November 23, 2006 Order which denied the motion to
reconsider the September 19, 2006 Order; and 3) the
January 16, 2007 Order which declared the August 2, 2006
decision as final and executory. Danilo also prayed that
he be declared psychologically capacitated to render the
essential marital obligations to Cynthia, who should be
declared guilty of abandoning him, the family home and
their children.
As earlier stated, the CA granted the petition and
reversed and set aside the assailed orders of the RTC.
The appellate court stated that the requirement of a
motion for reconsideration as a prerequisite to appeal
under A.M. No. 02-11-10-SC did not apply in this case as
the marriage between Cynthia and Danilo was solemnized
on February 14, 1980 before the Family Code took effect.
It relied on the ruling of this Court in Enrico v. Heirs
of Sps. Medinaceli3 to the effect that the "coverage [of
A.M. No. 02-11-10-SC] extends only to those marriages
entered into during the effectivity of the Family Code
which took effect on August 3, 1988."
Cynthia sought reconsideration of the ruling by filing
her Manifestation with Motion for Extension of Time to
File Motion for Reconsideration and Motion for Partial
Reconsideration [of the Honorable Courts Decision dated
December 10, 2008]. The CA, however, in its February 11,
2009 Resolution,4 denied the motion for extension of
time considering that the 15-day reglementary period to
file a motion for reconsideration is non-extendible,
pursuant to Section 2, Rule 40, 1997 Rules on Civil
CHILD WITNESS. CUSTODY OF MINORS. NULLITY OF MARRIAGE. LEGAL SEPN 14
Procedure citing Habaluyas v. Japson, 142 SCRA 208. The
motion for partial reconsideration was likewise denied.
Hence, Cynthia interposes the present petition via Rule
45 of the Rules of Court raising the following
I S S U E S
I IMPORTANCE OF THE ISSUE AND THE SPECIAL CIRCUMSTANCES IN
THE COURT OF APPEALS GRAVELY ERRED IN ISSUING THE
QUESTIONED DECISION DATED DECEMBER 10, 2008 CONSIDERING
THAT:
A. THE PRONOUNCEMENT OF THE HONORABLE COURT IN
ENRICO V. SPS. MEDINACELI IS NOT APPLICABLE TO THE
INSTANT CASE CONSIDERING THAT THE FACTS AND THE
ISSUE THEREIN ARE NOT SIMILAR TO THE INSTANT CASE.
B. ASSUMING ARGUENDO THAT THE PRONOUNCEMENT OF THE
HONORABLE COURT IS APLLICABLE TO THE INSTANT CASE,
ITS RULING IN ENRICO V. SPS. MEDINACELI IS
PATENTLY ERRONEOUS BECAUSE THE PHRASE "UNDER THE
FAMILY CODE" IN A.M. NO. 02-11-10-SC PERTAINS TO
THE WORD "PETITIONS" RATHER THAN TO THE WORD
"MARRIAGES."
C. FROM THE FOREGOING, A.M. NO. 02-11-10-SC
ENTITLED "RULE ON DECLARATION OF ABSOLUTE NULLITY
OF VOID MARRIAGES AND ANNULMENT OF VOIDABLE
MARRIAGES" IS APPLICABLE TO MARRIAGES SOLEMNIZED
BEFORE THE EFFECTIVITY OF THE FAMILY CODE. HENCE,
A MOTION FOR RECONSIDERATION IS A PRECONDITION FOR
AN APPEAL BY HEREIN RESPONDENT.
D. CONSIDERING THAT HEREIN RESPONDENT REFUSED TO
COMPLY WITH A PRECONDITION FOR APPEAL, A
RELAXATION OF THE RULES ON APPEAL IS NOT PROPER IN
HIS CASE.
II
THE COURT OF APPEALS GRAVELY ERRED IN ISSUING THE
QUESTIONED RESOLUTION DATED FEBRUARY 11, 2009
CONSIDERING THE FOREGOING AND THE FACTUAL CIRCUMSTANCES
OF THIS CASE.
III
THE TENETS OF JUSTICE AND FAIR PLAY, THE NOVELTY AND
THIS CASE JUSTIFY AND WARRANT A LIBERAL VIEW OF THE
RULES IN FAVOR OF THE PETITIONER. MOREOVER, THE INSTANT
PETITION IS MERITORIOUS AND NOT INTENDED FOR DELAY.5
From the arguments advanced by Cynthia, the principal
question to be resolved is whether or not A.M. No. 02-
11-10-SC entitled "Rule on Declaration of Absolute
Nullity of Void Marriages and Annulment of Voidable
Marriages," is applicable to the case at bench.
Petitioner argues that A.M. No. 02-11-10-SC is also
applicable to marriages solemnized before the
effectivity of the Family Code. According to Cynthia,
the CA erroneously anchored its decision to an obiter
dictum in the aforecited Enrico case, which did not even
involve a marriage solemnized before the effectivity of
the Family Code.
She added that, even assuming arguendo that the
pronouncement in the said case constituted a decision on
its merits, still the same cannot be applied because of
the substantial disparity in the factual milieu of the
Enrico case from this case. In the said case, both the
marriages sought to be declared null were solemnized,
and the action for declaration of nullity was filed,
after the effectivity of both the Family Code in 1988
and of A.M. No. 02-11-10-SC in 2003. In this case, the
marriage was solemnized before the effectivity of the
Family Code and A.M. No. 02-11-10-SC while the action
was filed and decided after the effectivity of both.
Danilo, in his Comment,6 counters that A.M. No. 02-11-
10-SC is not applicable because his marriage with
CHILD WITNESS. CUSTODY OF MINORS. NULLITY OF MARRIAGE. LEGAL SEPN 15
Cynthia was solemnized on February 14, 1980, years
before its effectivity. He further stresses the
meritorious nature of his appeal from the decision of
the RTC declaring their marriage as null and void due to
his purported psychological incapacity and citing the
mere "failure" of the parties who were supposedly
"remiss," but not "incapacitated," to render marital
obligations as required under Article 36 of the Family
Code.
The Court finds the petition devoid of merit.
Petitioner insists that A.M. No. 02-11-10-SC governs
this case. Her stance is unavailing. The Rule on
Declaration of Absolute Nullity of Void Marriages and
Annulment of Voidable Marriages as contained in A.M. No.
02-11-10-SC which the Court promulgated on March 15,
2003, is explicit in its scope. Section 1 of the Rule,
in fact, reads:
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
the Philippines.
The Rules of Court shall apply suppletorily.
The categorical language of A.M. No. 02-11-10-SC leaves
no room for doubt. The coverage extends only to those
marriages entered into during the effectivity of the
Family Code which took effect on August 3, 1988.7 The
rule sets a demarcation line between marriages covered
by the Family Code and those solemnized under the Civil
Code.8
The Court finds Itself unable to subscribe to
petitioners interpretation that the phrase "under the
Family Code" in A.M. No. 02-11-10-SC refers to the word
"petitions" rather than to the word "marriages."
A cardinal rule in statutory construction is that when
the law is clear and free from any doubt or ambiguity,
there is no room for construction or interpretation.
There is only room for application.9 As the statute is
clear, plain, and free from ambiguity, it must be given
its literal meaning and applied without attempted
interpretation. This is what is known as the plain-
meaning rule or verba legis. It is expressed in the
maxim, index animi sermo, or "speech is the index of
intention." Furthermore, there is the maxim verba legis
non est recedendum, or "from the words of a statute
there should be no departure."10
There is no basis for petitioners assertion either that
the tenets of substantial justice, the novelty and
importance of the issue and the meritorious nature of
this case warrant a relaxation of the Rules in her
favor. Time and again the Court has stressed that the
rules of procedure must be faithfully complied with and
should not be discarded with the mere expediency of
claiming substantial merit.11 As a corollary, rules
prescribing the time for doing specific acts or for
taking certain proceedings are considered absolutely
indispensable to prevent needless delays and to orderly
and promptly discharge judicial business. By their very
nature, these rules are regarded as mandatory.12
The appellate court was correct in denying petitioners
motion for extension of time to file a motion for
reconsideration considering that the reglementary period
for filing the said motion for reconsideration is non-
extendible. As pronounced in Apex Mining Co., Inc. v.
Commissioner of Internal Revenue, 13
The rule is and has been that the period for filing a
motion for reconsideration is non-extendible. The Court
has made this clear as early as 1986 in Habaluyas
Enterprises vs. Japzon. Since then, the Court has
consistently and strictly adhered thereto.1avvphil
Given the above, we rule without hesitation that the
appellate courts denial of petitioners motion for
reconsideration is justified, precisely because
petitioners earlier motion for extension of time did
not suspend/toll the running of the 15-day reglementary
CHILD WITNESS. CUSTODY OF MINORS. NULLITY OF MARRIAGE. LEGAL SEPN 16
period for filing a motion for reconsideration. Under
the circumstances, the CA decision has already attained
finality when petitioner filed its motion for
reconsideration. It follows that the same decision was
already beyond the review jurisdiction of this Court.
In fine, the CA committed no reversible error in setting
aside the RTC decision which denied due course to
respondents appeal and denying petitioners motion for
extension of time to file a motion for reconsideration.
Appeal is an essential part of our judicial system. Its
purpose is to bring up for review a final judgment of
the lower court. The courts should, thus, proceed with
caution so as not to deprive a party of his right to
appeal.14 In the recent case of Almelor v. RTC of Las
Pinas City, Br. 254,15 the Court reiterated: While the
right to appeal is a statutory, not a natural right,
nonetheless it is an essential part of our judicial
system and courts should proceed with caution so as not
to deprive a party of the right to appeal, but rather,
ensure that every party-litigant has the amplest
opportunity for the proper and just disposition of his
cause, free from the constraints of technicalities.
In the case at bench, the respondent should be given the
fullest opportunity to establish the merits of his
appeal considering that what is at stake is the
sacrosanct institution of marriage.
No less than the 1987 Constitution recognizes marriage
as an inviolable social institution. This constitutional
policy is echoed in our Family Code. Article 1 thereof
emphasizes its permanence and inviolability, thus:
Article 1. Marriage is a special contract of permanent
union between a man and a woman entered into in
accordance with law for the establishment of conjugal
and family life. It is the foundation of the family and
an inviolable social institution whose nature,
consequences, and incidents are governed by law and not
subject to stipulation, except that marriage settlements
may fix the property relations during the marriage
within the limits provided by this Code.
This Court is not unmindful of the constitutional policy
to protect and strengthen the family as the basic
autonomous social institution and marriage as the
foundation of the family.16
Our family law is based on the policy that marriage is
not a mere contract, but a social institution in which
the State is vitally interested. The State finds no
stronger anchor than on good, solid and happy families.
The break up of families weakens our social and moral
fabric and, hence, their preservation is not the concern
alone of the family members.17
WHEREFORE, the petition is DENIED.
SO ORDERED.
JOSE CATRAL MENDOZA
Associate Justice
Republic of the Philippines
SUPREME COURT
Manila
FIRST DIVISION
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.
CHILD WITNESS. CUSTODY OF MINORS. NULLITY OF MARRIAGE. LEGAL SEPN 17
 D E C I S I O N
DEL CASTILLO, J.:
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.
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 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.
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.
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,5filed 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:
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 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;
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
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
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 the case
CHILD WITNESS. CUSTODY OF MINORS. NULLITY OF MARRIAGE. LEGAL SEPN 18
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.13Thus, 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.
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
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
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 day,
the hearing was reset to July 9, 1997.21 The day before
this scheduled hearing, Estrellita again asked for a
postponement.22
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.
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:
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
CHILD WITNESS. CUSTODY OF MINORS. NULLITY OF MARRIAGE. LEGAL SEPN 19
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.
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 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.
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
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
CHILD WITNESS. CUSTODY OF MINORS. NULLITY OF MARRIAGE. LEGAL SEPN 20
held when a party has failed to file an answer in a suit
for declaration of nullity of marriage.
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
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
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
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.
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.
Zorayda and Adib, on the other hand, did not file any
comment.
Issues
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;
2. Whether the marriage between Estrellita and the
late Sen. Tamano was bigamous; and
3. Whether Zorayda and Adib have the legal
standing to have Estrellitas marriage declared
void ab initio.
Our Ruling
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.
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 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
CHILD WITNESS. CUSTODY OF MINORS. NULLITY OF MARRIAGE. LEGAL SEPN 21
which, apparently, is Estrellitas basis for her
argument, to wit:
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 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 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.
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.
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 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.
The Public Prosecutor issued a report as
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
CHILD WITNESS. CUSTODY OF MINORS. NULLITY OF MARRIAGE. LEGAL SEPN 22
Declaration of Absolute Nullity of Void Marriages and
Annulment of Voidable Marriages (A.M. No. 02-11-10-
SC)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:
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.
(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.
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.
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:
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
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
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.
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.
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
CHILD WITNESS. CUSTODY OF MINORS. NULLITY OF MARRIAGE. LEGAL SEPN 23
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 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:
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.
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
An instance of retroactive application of the Muslim
Code is Article 186(2) which states:
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.
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.
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.
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.
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.
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:
CHILD WITNESS. CUSTODY OF MINORS. NULLITY OF MARRIAGE. LEGAL SEPN 24
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]
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
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
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.
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
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
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
CHILD WITNESS. CUSTODY OF MINORS. NULLITY OF MARRIAGE. LEGAL SEPN 25
No. 61762, as well as its subsequent Resolution issued This is a direct recourse to this Court from the
on September 13, 2005, are hereby AFFIRMED. Regional Trial Court (RTC), Branch 107, Quezon City,
through a petition for review on certiorari under Rule
SO ORDERED. 45 of the Rules of Court on a pure question of law. The
petition assails the Order1 dated 31 January 2011 of the
MARIANO C. DEL CASTILLO RTC in Civil Case No. Q-11-68582 and its Resolution
Associate Justice 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.

The Facts

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.

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
SECOND DIVISION Japan. However, Marinay allegedly suffered physical
abuse from Maekara. She left Maekara and started to
G.R. No. 196049 June 26, 2013 contact Fujiki.3

MINORU FUJIKI, PETITIONER, Fujiki and Marinay met in Japan and they were able to
vs. reestablish their relationship. In 2010, Fujiki helped
MARIA PAZ GALELA MARINAY, SHINICHI MAEKARA, LOCAL CIVIL Marinay obtain a judgment from a family court in Japan
REGISTRAR OF QUEZON CITY, AND THE ADMINISTRATOR AND which declared the marriage between Marinay and Maekara
CIVIL REGISTRAR GENERAL OF THE NATIONAL STATISTICS void on the ground of bigamy.4 On 14 January 2011,
OFFICE, RESPONDENTS. 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
D E C I S I O N
Japanese Family Court judgment be recognized; (2) that
the bigamous marriage between Marinay and Maekara be
CARPIO, J.: declared void ab initio under Articles 35(4) and 41 of
the Family Code of the Philippines;5 and (3) for the RTC
The Case to direct the Local Civil Registrar of Quezon City to
CHILD WITNESS. CUSTODY OF MINORS. NULLITY OF MARRIAGE. LEGAL SEPN 26
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 Ruling of the Regional Trial Court
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. 02-11-10-SC):
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.
x x x x
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
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 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. The petitioner contended that the
Japanese judgment was consistent with Article 35(4) of
the Family Code of the Philippines11on bigamy and was
therefore entitled to recognition by Philippine
courts.12
In any case, it was also Fujikis view that A.M. No. 02-
11-10-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. 02-11-10-SC
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.
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
CHILD WITNESS. CUSTODY OF MINORS. NULLITY OF MARRIAGE. LEGAL SEPN 27
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 the
Japanese Family Court on the certificate of marriage
between Marinay and Maekara.
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."20Moreover, 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.
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 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
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.
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
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. 02-11-10-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
CHILD WITNESS. CUSTODY OF MINORS. NULLITY OF MARRIAGE. LEGAL SEPN 28
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:
[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
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
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.
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.43Maekara 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 her silence for
fear that anything she say might cause misunderstanding
between her and Fujiki.46
The Issues
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
CHILD WITNESS. CUSTODY OF MINORS. NULLITY OF MARRIAGE. LEGAL SEPN 29
 cancellation or correction of entries in the Civil
Registry under Rule 108 of the Rules of Court.
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. 02-11-10-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
I.
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
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 his/her original cause of action, rendering
immaterial the previously concluded litigation."59
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.
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.
CHILD WITNESS. CUSTODY OF MINORS. NULLITY OF MARRIAGE. LEGAL SEPN 30
Section 48(b), Rule 39 of the Rules of Court provides
that a foreign judgment or final order against a person
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
repelled by evidence of a want of jurisdiction, want of
notice to the party, collusion, fraud, or clear mistake
of 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
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. 02-11-10-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
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 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.
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
Rule 108, Section 1 of the Rules of Court states:
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
CHILD WITNESS. CUSTODY OF MINORS. NULLITY OF MARRIAGE. LEGAL SEPN 31
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.
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
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.
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.
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.77If anyone can file a 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 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."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.
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
CHILD WITNESS. CUSTODY OF MINORS. NULLITY OF MARRIAGE. LEGAL SEPN 32
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
recognition of foreign judgment as a collateral attack
on the marriage between Marinay and Maekara.
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.
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
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.
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 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"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.
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
CHILD WITNESS. CUSTODY OF MINORS. NULLITY OF MARRIAGE. LEGAL SEPN 33
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.
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.
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.
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.
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)
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
However, the recognition of a foreign judgment
nullifying a bigamous marriage is without prejudice to
CHILD WITNESS. CUSTODY OF MINORS. NULLITY OF MARRIAGE. LEGAL SEPN 34
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."

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 Sections
4 and 5, respectively, of A.M. No. 02-11-10-SC.

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.
G.R. No. 195432 August 27, 2014
Brion, Del Castillo, Perez, and Perlas-Bernabe, JJ.,
concur.
EDELINA T. ANDO, Petitioner,
vs.
DEPARTMENT OF FOREIGN AFFAIRS, Respondent.

D E C I S I O N

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.

STATEMENT OF THE FACTS AND OF THE CASE

CHILD WITNESS. CUSTODY OF MINORS. NULLITY OF MARRIAGE. LEGAL SEPN 35
The pertinent facts of the case, as alleged by
petitioner, are as follows:
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.
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.
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.
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.
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.
x x x x
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 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:
(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
(c) directing the Department ofForeign Affairs to
honor petitioners marriage to her husband
Masatomi Y. Ando and to issue a Philippine
CHILD WITNESS. CUSTODY OF MINORS. NULLITY OF MARRIAGE. LEGAL SEPN 36
 Passport to petitioner under the name "Edelina
Ando y Tungol".
Petitioner prays for such other just and equitable
reliefs.3
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.
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
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:
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.
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:
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.
Petitioners allegation of Sec. 2 (a) of A.M. No. 02-11-
10-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 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.
CHILD WITNESS. CUSTODY OF MINORS. NULLITY OF MARRIAGE. LEGAL SEPN 37
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.
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.
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
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.
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.
On 29 November 2011, petitioner filed her Reply to the
Comment, addressing the issues raised therein.
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.
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
CHILD WITNESS. CUSTODY OF MINORS. NULLITY OF MARRIAGE. LEGAL SEPN 38
 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.
b) In case of annulment of marriage, the applicant
must present a certified true copy of her
annotated Marriage Contract or Certificate of
Registration and the Court Order effecting the
annulment.
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.
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.
In this case, petitioner was allegedly told that she
would not be issued a Philippine passport under her
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:
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.
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.
CHILD WITNESS. CUSTODY OF MINORS. NULLITY OF MARRIAGE. LEGAL SEPN 39
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.

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

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.

WHEREFORE, the instant Petition is DENIED without

prejudice to petitioner's recourse to the proper
remedies available.

SO ORDERED.

CHILD WITNESS. CUSTODY OF MINORS. NULLITY OF MARRIAGE. LEGAL SEPN 40

 this case involving legal separation escalating to
questions on dissolution and partition of properties.

The Case
BRIGIDO B. QUIAO, G.R. No 176556
This case comes before us via Petition for Review
Petitioner,
on Certiorari[1] under Rule 45 of the Rules of Court. The
Present:
petitioner seeks that we vacate and set aside the
[2]
Order dated January 8, 2007 of the Regional Trial Court
CARPIO, J., Chairperson,
(RTC), Branch 1, Butuan City. In lieu of the said order,
- versus - BRION, we are asked to issue a Resolution defining the net
PEREZ, profits subject of the forfeiture as a result of the
SERENO, and decree of legal separation in accordance with the

REYES, JJ. provision of Article 102(4) of the Family Code, or

alternatively, in accordance with the provisions of
RITA C. QUIAO, KITCHIE C. QUIAO,
LOTIS C. QUIAO, PETCHIE C. QUIAO, Article 176 of the Civil Code.
represented by their mother RITA
QUIAO, Promulgated: Antecedent Facts
Respondents. July 4, 2012 On October 26, 2000, herein respondent Rita C. Quiao
(Rita) filed a complaint for legal separation against
DECISION
herein petitioner Brigido B. Quiao (Brigido).
REYES, J.: [3]
Subsequently, the RTC rendered a Decision[4] dated

The family is the basic and the most important October 10, 2005, the dispositive portion of which

institution of society. It is in the family where provides:

children are born and molded either to become useful WHEREFORE, viewed from the foregoing
citizens of the country or troublemakers in the considerations, judgment is hereby rendered declaring
community. Thus, we are saddened when parents have to the legal separation of plaintiff Rita C. Quiao and
separate and fight over properties, without regard to defendant-respondent Brigido B. Quiao pursuant to
the message they send to their children.Notwithstanding Article 55.
this, we must not shirk from our obligation to rule on
CHILD WITNESS. CUSTODY OF MINORS. NULLITY OF MARRIAGE. LEGAL SEPN 41
 As such, the herein parties shall be shall be divided equally between herein
entitled to live separately from each other, [respondents] and [petitioner] subject to
but the marriage bond shall not be severed. the respective legitimes of the children and
the payment of the unpaid conjugal
liabilities of [P]45,740.00.
Except for Letecia C. Quiao who is of
legal age, the three minor children, namely,
Kitchie, Lotis and Petchie, all surnamed [Petitioners] share, however, of the
Quiao shall remain under the custody of the net profits earned by the conjugal
plaintiff who is the innocent spouse. partnership is forfeited in favor of the
common children.

Further, except for the personal and

real properties already foreclosed by the He is further ordered to reimburse
RCBC, all the remaining properties, namely: [respondents] the sum of [P]19,000.00 as
attorney's fees and litigation expenses of
[P]5,000.00[.]
1. coffee mill in Balongagan, Las
Nieves, Agusan del Norte;
SO ORDERED.[5]
2. coffee mill in Durian, Las
Nieves, Agusan del Norte;

3. corn mill in Casiklan, Las

Neither party filed a motion for reconsideration
Nieves, Agusan del Norte;
and appeal within the period provided for under Section
4. coffee mill in Esperanza,
Agusan del Sur; 17(a) and (b) of the Rule on Legal Separation.[6]

5. a parcel of land with an area On December 12, 2005, the respondents filed a
of 1,200 square meters located in
Tungao, Butuan City; motion for execution[7] which the trial court granted in

6. a parcel of agricultural land its Order dated December 16, 2005, the dispositive
with an area of 5 hectares located in Manila portion of which reads:
de Bugabos, Butuan City;

7. a parcel of land with an area Wherefore, finding the motion to be well taken,
of 84 square meters located in the same is hereby granted. Let a writ of
Tungao, Butuan City;
execution be issued for the immediate enforcement
8. Bashier Bon Factory located in
of the Judgment.
Tungao, Butuan City;
SO ORDERED.[8]

CHILD WITNESS. CUSTODY OF MINORS. NULLITY OF MARRIAGE. LEGAL SEPN 42

Subsequently, on February 10, 2006, the RTC issued
a Writ of Execution[9] which reads as follows:

On July 7, 2006, or after more than nine

NOW THEREFORE, that of the goods and
months from the promulgation of the Decision, the
chattels of the [petitioner] BRIGIDO B. QUIAO you
petitioner filed before the RTC a Motion for
cause to be made the sums stated in the afore-
Clarification, [12]
asking the RTC to define the term Net
quoted DECISION [sic], together with your lawful
Profits Earned.
fees in the service of this Writ, all in the
Philippine Currency. To resolve the petitioner's Motion for
But if sufficient personal property Clarification, the RTC issued an Order[13] dated August
cannot be found whereof to satisfy this
31, 2006, which held that the phrase NET PROFIT EARNED
execution and your lawful fees, then we
command you that of the lands and buildings denotes the remainder of the properties of the parties
of the said [petitioner], you make the said
after deducting the separate properties of each [of the]
sums in the manner required by law. You are
enjoined to strictly observed Section 9, spouse and the debts.[14] The Order further held that
Rule 39, Rule [sic] of the 1997 Rules of
after determining the remainder of the properties, it
Civil Procedure.
shall be forfeited in favor of the common children
You are hereby ordered to make a
return of the said proceedings immediately because the offending spouse does not have any right to
after the judgment has been satisfied in any share of the net profits earned, pursuant to
part or in full in consonance with Section
14, Rule 39 of the 1997 Rules of Civil Articles 63, No. (2) and 43, No. (2) of the Family Code.
Procedure, as amended.[10] [15]
The dispositive portion of the Order states:

WHEREFORE, there is no blatant disparity

On July 6, 2006, the writ was partially executed when the sheriff intends to forfeit all the
with the petitioner paying the respondents the amount remaining properties after deducting the payments
of P46,870.00, representing the following payments: of the debts for only separate properties of the
defendant-respondent shall be delivered to him
(a) P22,870.00 as petitioner's share of the
which he has none.
payment of the conjugal share;
The Sheriff is herein directed to
(b) P19,000.00 as attorney's fees; and proceed with the execution of the Decision.

IT IS SO ORDERED.[16]
(c) P5,000.00 as litigation expenses.[11]

CHILD WITNESS. CUSTODY OF MINORS. NULLITY OF MARRIAGE. LEGAL SEPN 43

 Not satisfied with the trial court's Order, the

Not satisfied with the trial court's Order, the petitioner filed on February 27, 2007 this instant

petitioner filed a Motion for Reconsideration [17] on Petition for Review under Rule 45 of the Rules of Court,

September 8, 2006. Consequently, the RTC issued another raising the following:

Order[18]dated November 8, 2006, holding that although

Issues
the Decision dated October 10, 2005 has become final and
I
executory, it may still consider the Motion for
Clarification because the petitioner simply wanted to
IS THE DISSOLUTION AND THE CONSEQUENT
clarify the meaning of net profit earned.
LIQUIDATION OF THE COMMON PROPERTIES OF THE
[19]
Furthermore, the same Order held: HUSBAND AND WIFE BY VIRTUE OF THE DECREE OF
LEGAL SEPARATION GOVERNED BY ARTICLE 125
(SIC) OF THE FAMILY CODE?

ALL TOLD, the Court Order dated August II

31, 2006 is hereby ordered set aside. NET
PROFIT EARNED, which is subject of
forfeiture in favor of [the] parties' common WHAT IS THE MEANING OF THE NET PROFITS
children, is ordered to be computed in EARNED BY THE CONJUGAL PARTNERSHIP FOR
accordance [with] par. 4 of Article 102 of PURPOSES OF EFFECTING THE FORFEITURE
the Family Code.[20] AUTHORIZED UNDER ARTICLE 63 OF THE FAMILY
CODE?

III
On November 21, 2006, the respondents filed a
Motion for Reconsideration, [21]
praying for the
WHAT LAW GOVERNS THE PROPERTY RELATIONS
correction and reversal of the Order dated November 8, BETWEEN THE HUSBAND AND WIFE WHO GOT MARRIED
2006. Thereafter, on January 8, 2007,[22] the trial court IN 1977? CAN THE FAMILY CODE OF
THE PHILIPPINES BE GIVEN RETROACTIVE EFFECT
had changed its ruling again and granted the FOR PURPOSES OF DETERMINING THE NET PROFITS
respondents' Motion for Reconsideration whereby the SUBJECT OF FORFEITURE AS A RESULT OF THE
DECREE OF LEGAL SEPARATION WITHOUT IMPAIRING
Order dated November 8, 2006 was set aside to reinstate VESTED RIGHTS ALREADY ACQUIRED UNDER THE
the Order dated August 31, 2006. CIVIL CODE?

CHILD WITNESS. CUSTODY OF MINORS. NULLITY OF MARRIAGE. LEGAL SEPN 44

 IV
Section 3. Period of ordinary appeal. - The appeal
shall be taken within fifteen (15) days from
WHAT PROPERTIES SHALL BE INCLUDED IN THE notice of the judgment or final order appealed
FORFEITURE OF THE SHARE OF THE GUILTY SPOUSE
IN THE NET CONJUGAL PARTNERSHIP AS A RESULT from. Where a record on appeal is required, the
OF THE ISSUANCE OF THE DECREE OF LEGAL appellant shall file a notice of appeal and a
SEPARATION?[23]
record on appeal within thirty (30) days from
notice of the judgment or final order.
Our Ruling
The period of appeal shall be interrupted by
While the petitioner has raised a number of issues a timely motion for new trial or
on the applicability of certain laws, we are well-aware reconsideration. No motion for extension of
time to file a motion for new trial or
that the respondents have called our attention to the reconsideration shall be allowed.
fact that the Decision dated October 10, 2005 has
attained finality when the Motion for Clarification was
In Neypes v. Court of Appeals,
filed.[24] Thus, we are constrained to resolve first the [25]
we clarified that to standardize the appeal
issue of the finality of the Decision dated October 10, periods provided in the Rules and to afford
litigants fair opportunity to appeal their cases,
2005 and subsequently discuss the matters that we can we held that it would be practical to allow a
clarify. fresh period of 15 days within which to file the
notice of appeal in the RTC, counted from receipt
of the order dismissing a motion for a new trial
or motion for reconsideration.[26]
The Decision dated
October 10, 2005 has In Neypes, we explained that the "fresh period
become final and
rule" shall also apply to Rule 40 governing appeals from
executory at the
time the Motion for the Municipal Trial Courts to the RTCs; Rule 42 on
Clarification was
petitions for review from the RTCs to the Court of
filed on July 7,
2006. Appeals (CA); Rule 43 on appeals from quasi-judicial
agencies to the CA and Rule 45 governing appeals
by certiorari to the Supreme Court. We also said, The
Section 3, Rule 41 of the Rules of Court provides:
new rule aims to regiment or make the appeal period
uniform, to be counted from receipt of the order denying

CHILD WITNESS. CUSTODY OF MINORS. NULLITY OF MARRIAGE. LEGAL SEPN 45

the motion for new trial, motion for reconsideration to appeal lapses and no appeal is perfected within such
(whether full or partial) or any final order or period. Consequently, no court, not even this Court, can
resolution. [27]
In other words, a party litigant may file arrogate unto itself appellate jurisdiction to review a
his notice of appeal within a fresh 15-day period from case or modify a judgment that became final.[28]
his receipt of the trial court's decision or final order
denying his motion for new trial or motion for The petitioner argues that the decision he is

reconsideration. Failure to avail of the fresh 15-day questioning is a void judgment. Being such, the

period from the denial of the motion for reconsideration petitioner's thesis is that it can still be disturbed

makes the decision or final order in question final and even after 270 days had lapsed from the issuance of the

executory. decision to the filing of the motion for

clarification. He said that a void judgment is no
In the case at bar, the trial court rendered its
judgment at all. It never attains finality and cannot be
Decision on October 10, 2005. The petitioner neither
a source of any right nor any obligation. [29] But what
filed a motion for reconsideration nor a notice of
precisely is a void judgment in our jurisdiction? When
appeal. On December 16, 2005, or after 67 days had
does a judgment becomes void?
lapsed, the trial court issued an order granting the
respondent's motion for execution; and on February 10,
2006, or after 123 days had lapsed, the trial court
issued a writ of execution. Finally, when the writ had A judgment is null and void when the court which

already been partially executed, the petitioner, on July rendered it had no power to grant the relief or no

7, 2006 or after 270 days had lapsed, filed his Motion jurisdiction over the subject matter or over the parties

for Clarification on the definition of the net profits or both.[30] In other words, a court, which does not have

earned. From the foregoing, the petitioner had clearly the power to decide a case or that has no jurisdiction

slept on his right to question the RTCs Decision dated over the subject matter or the parties, will issue a

October 10, 2005. For 270 days, the petitioner never void judgment or a coram non judice.[31]

raised a single issue until the decision had already

been partially executed. Thus at the time the petitioner
filed his motion for clarification, the trial courts
The questioned judgment does not fall within the
decision has become final and executory. A judgment
purview of a void judgment. For sure, the trial court
becomes final and executory when the reglementary period
CHILD WITNESS. CUSTODY OF MINORS. NULLITY OF MARRIAGE. LEGAL SEPN 46
has jurisdiction over a case involving legal From the aforecited facts, the questioned October
separation. Republic Act (R.A.) No. 8369 confers upon an 10, 2005 judgment of the trial court is clearly not
RTC, designated as the Family Court of a city, the void ab initio, since it was rendered within the ambit
exclusive original jurisdiction to hear and decide, of the court's jurisdiction. Being such, the same cannot
among others, complaints or petitions relating to anymore be disturbed, even if the modification is meant
marital status and property relations of the husband and to correct what may be considered an erroneous
wife or those living together. [32]
The Rule on Legal conclusion of fact or law. [36]
In fact, we have ruled that
Separation[33] provides that the petition [for legal for [as] long as the public respondent acted with
separation] shall be filed in the Family Court of the jurisdiction, any error committed by him or it in the
province or city where the petitioner or the respondent exercise thereof will amount to nothing more than an
has been residing for at least six months prior to the error of judgment which may be reviewed or corrected
date of filing or in the case of a non-resident only by appeal.[37] Granting without admitting that the
respondent, where he may be found in the Philippines, at RTC's judgment dated October 10, 2005 was erroneous, the
the election of the petitioner.[34] In the instant case, petitioner's remedy should be an appeal filed within the
herein respondent Rita is found to reside in reglementary period. Unfortunately, the petitioner
Tungao, Butuan City for more than six months prior to failed to do this. He has already lost the chance to
the date of filing of the petition; thus, the RTC, question the trial court's decision, which has become
clearly has jurisdiction over the respondent's petition immutable and unalterable. What we can only do is to
below.Furthermore, the RTC also acquired jurisdiction clarify the very question raised below and nothing more.
over the persons of both parties, considering that
summons and a copy of the complaint with its annexes
were served upon the herein petitioner on December 14,
For our convenience, the following matters cannot
2000 and that the herein petitioner filed his Answer to
anymore be disturbed since the October 10, 2005 judgment
the Complaint on January 9, 2001.[35] Thus, without
has already become immutable and unalterable, to wit:
doubt, the RTC, which has rendered the questioned
judgment, has jurisdiction over the complaint and the
persons of the parties.

CHILD WITNESS. CUSTODY OF MINORS. NULLITY OF MARRIAGE. LEGAL SEPN 47

 (a) The finding that the petitioner is the
offending spouse since he cohabited with a woman who is
not his wife;[38] (g) The revocation of provisions in favor of the
offending spouse made in the will of the innocent
spouse; [44]

(b) The trial court's grant of the petition for

legal separation of respondent Rita;[39]
(h) The holding that the property relation of the
parties is conjugal partnership of gains and pursuant to
Article 116 of the Family Code, all properties acquired
(c) The dissolution and liquidation of the during the marriage, whether acquired by one or both
conjugal partnership; [40]
spouses, is presumed to be conjugal unless the contrary
is proved;[45]

(d) The forfeiture of the petitioner's right to

any share of the net profits earned by the conjugal (i) The finding that the spouses acquired their
partnership;[41] real and personal properties while they were living
together;[46]

(e) The award to the innocent spouse of the minor

children's custody;[42] (j) The list of properties which Rizal Commercial
Banking Corporation (RCBC) foreclosed;[47]

(f) The disqualification of the offending spouse

from inheriting from the innocent spouse by intestate (k) The list of the remaining properties of the
succession; [43]
couple which must be dissolved and liquidated and the

CHILD WITNESS. CUSTODY OF MINORS. NULLITY OF MARRIAGE. LEGAL SEPN 48

fact that respondent Rita was the one who took charge of (p) The holding that the petitioner's share of the
the administration of these properties;[48] net profits earned by the conjugal partnership is
forfeited in favor of the common children; [53]
and
(l) The holding that the conjugal partnership
shall be liable to matters included under Article 121 of
the Family Code and the conjugal liabilities
totaling P503,862.10 shall be charged to the income (q) The order to the petitioner to reimburse the

generated by these properties;[49] respondents the sum of P19,000.00 as attorney's fees and
litigation expenses of P5,000.00.[54]

(m) The fact that the trial court had no way of

knowing whether the petitioner had separate properties After discussing lengthily the immutability of the

which can satisfy his share for the support of the Decision dated October 10, 2005, we will discuss the

family;[50] following issues for the enlightenment of the parties

and the public at large.

(n) The holding that the applicable law in this Article 129 of the
Family Code applies
case is Article 129(7);[51] to the present case
since the parties'
property relation is
governed by
the system of
(o) The ruling that the remaining properties not relative community
or conjugal
subject to any encumbrance shall therefore be divided partnership of
equally between the petitioner and the respondent gains.
without prejudice to the children's legitime; [52]

The petitioner claims that the court a quo is wrong

when it applied Article 129 of the Family Code, instead
of Article 102. He confusingly argues that Article 102
applies because there is no other provision under the

CHILD WITNESS. CUSTODY OF MINORS. NULLITY OF MARRIAGE. LEGAL SEPN 49

Family Code which defines net profits earned subject of property relation, the husband and the wife place
forfeiture as a result of legal separation. in a common fund the fruits of their separate
property and the income from their work or
Offhand, the trial court's Decision dated October industry.[56] The husband and wife also own in
common all the property of the conjugal
10, 2005 held that Article 129(7) of the Family Code partnership of gains.[57]
applies in this case. We agree with the trial court's
Second, since at the time of the dissolution of
holding.
the petitioner and the respondent's marriage the
First, let us determine what governs the couple's operative law is already the Family Code, the same
property relation. From the record, we can deduce that applies in the instant case and the applicable law in so
the petitioner and the respondent tied the marital knot far as the liquidation of the conjugal partnership
on January 6, 1977. Since at the time of the exchange of assets and liabilities is concerned is Article 129 of
marital vows, the operative law was the Civil Code of the Family Code in relation to Article 63(2) of the
the Philippines (R.A. No. 386) and since they did not Family Code. The latter provision is applicable because
agree on a marriage settlement, the property relations according to Article 256 of the Family Code [t]his Code
between the petitioner and the respondent is the system shall have retroactive effect insofar as it does not
of relative community or conjugal partnership of gains. prejudice or impair vested or acquired rights in
[55]
Article 119 of the Civil Code provides: accordance with the Civil Code or other law.[58]

Now, the petitioner asks: Was his vested right

Art. 119. The future spouses may in over half of the common properties of the conjugal
the marriage settlements agree upon absolute
or relative community of property, or upon partnership violated when the trial court forfeited them
complete separation of property, or upon any in favor of his children pursuant to Articles 63(2) and
other regime.In the absence of marriage
settlements, or when the same are void, the 129 of the Family Code?
system of relative community or conjugal
partnership of gains as established in this We respond in the negative.
Code, shall govern the property relations
between husband and wife. Indeed, the petitioner claims that his vested
rights have been impaired, arguing: As earlier adverted

Thus, from the foregoing facts and law, it to, the petitioner acquired vested rights over half of
is clear that what governs the property relations the conjugal properties, the same being owned in common
of the petitioner and of the respondent is
conjugal partnership of gains. And under this by the spouses. If the provisions of the Family Code are

CHILD WITNESS. CUSTODY OF MINORS. NULLITY OF MARRIAGE. LEGAL SEPN 50

to be given retroactive application to the point of foreign to the will of the holder, or to the
authorizing the forfeiture of the petitioner's share in exercise of which no obstacle exists, and which is
the net remainder of the conjugal partnership immediate and perfect in itself and not dependent
properties, the same impairs his rights acquired prior upon a contingency. The term vested right
to the effectivity of the Family Code. [59]
In other expresses the concept of present fixed interest
words, the petitioner is saying that since the property which, in right reason and natural justice, should
relations between the spouses is governed by the regime be protected against arbitrary State action, or an
of Conjugal Partnership of Gains under the Civil Code, innately just and imperative right which
the petitioner acquired vested rights over half of the enlightened free society, sensitive to inherent
properties of the Conjugal Partnership of Gains, and irrefragable individual rights, cannot deny.
pursuant to Article 143 of the Civil Code, which
provides: All property of the conjugal partnership of
gains is owned in common by the husband and wife. To be vested, a right must have become
[60] a titlelegal or equitableto the present or
Thus, since he is one of the owners of the properties
future enjoyment of property.[62] (Citations
covered by the conjugal partnership of gains, he has a omitted)
vested right over half of the said properties, even
after the promulgation of the Family Code; and he
insisted that no provision under the Family Code may
deprive him of this vested right by virtue of Article
256 of the Family Code which prohibits retroactive In our en banc Resolution dated October 18, 2005
application of the Family Code when it will prejudice a for ABAKADA Guro Party List Officer Samson S.
person's vested right. Alcantara, et al. v. The Hon. Executive Secretary

However, the petitioner's claim of vested right Eduardo R. Ermita, [63]

we also explained:

is not one which is written on stone. In Go, Jr. v.

Court of Appeals,[61] we define and explained vested
The concept of vested right is a
right in the following manner: consequence of the constitutional guaranty
of due process that expresses a present
A vested right is one whose existence, fixed interest which in right reason and
effectivity and extent do not depend upon events natural justice is protected against
arbitrary state action; it includes not only
CHILD WITNESS. CUSTODY OF MINORS. NULLITY OF MARRIAGE. LEGAL SEPN 51
 legal or equitable title to the enforcement
Furthermore, we take note that the alleged
of a demand but also exemptions from new
obligations created after the right has deprivation of the petitioner's vested right is one
become vested.Rights are considered vested
founded, not only in the provisions of the Family Code,
when the right to enjoyment is a present
interest, absolute, unconditional, and but in Article 176 of the Civil Code. This provision is
perfect or fixed and irrefutable.
[64] like Articles 63 and 129 of the Family Code on the
(Emphasis and underscoring supplied)
forfeiture of the guilty spouse's share in the conjugal
partnership profits. The said provision says:

Art. 176. In case of legal separation,

From the foregoing, it is clear that while one may
not be deprived of his vested right, he may lose the
same if there is due process and such deprivation is
founded in law and jurisprudence.
In the present case, the petitioner was accorded
his right to due process. First, he was well-aware that
the respondent prayed in her complaint that all of the
the guilty spouse shall forfeit his or her
share of the conjugal partnership profits,
which shall be awarded to the children of
both, and the children of the guilty spouse
had by a prior marriage. However, if the
conjugal partnership property came mostly or
entirely from the work or industry, or from
the wages and salaries, or from the fruits
of the separate property of the guilty
spouse, this forfeiture shall not apply.

conjugal properties be awarded to her. [65] In fact, in

his Answer, the petitioner prayed that the trial court In case there are no children, the
innocent spouse shall be entitled to all the
divide the community assets between the petitioner and
net profits.
the respondent as circumstances and evidence warrant
after the accounting and inventory of all the community
From the foregoing, the petitioner's claim
properties of the parties.[66] Second, when the Decision of a vested right has no basis considering that
dated October 10, 2005 was promulgated, the petitioner even under Article 176 of the Civil Code, his
share of the conjugal partnership profits may be
never questioned the trial court's ruling forfeiting forfeited if he is the guilty party in a legal
what the trial court termed as net profits, pursuant to separation case. Thus, after trial and after the
petitioner was given the chance to present his
Article 129(7) of the Family Code.[67] Thus, the evidence, the petitioner's vested right claim may
petitioner cannot claim being deprived of his right to in fact be set aside under the Civil Code since
the trial court found him the guilty party.
due process.

CHILD WITNESS. CUSTODY OF MINORS. NULLITY OF MARRIAGE. LEGAL SEPN 52

 More, in Abalos v. Dr. Macatangay, Jr.,[68] we executory. The doctrine of immutability and
reiterated our long-standing ruling that: unalterability of a final judgment prevents us from
disturbing the Decision dated October 10, 2005 because
final and executory decisions can no longer be reviewed
[P]rior
to the liquidation of the conjugal partnersh nor reversed by this Court.[71]
ip, the interest of each spouse in the
conjugal assets is inchoate, a mere From the above discussions, Article 129 of the
expectancy, which constitutes neither a Family Code clearly applies to the present case since
legal nor an equitable estate, and does not
ripen into title until it appears that there the parties' property relation is governed by the system
are assets in the community as a result of of relative community or conjugal partnership of
the liquidation and settlement. The interest
of each spouse is limited to the net gains and since the trial court's Decision has attained
remainder or remanente liquido (haber finality and immutability.
ganancial) resulting from the liquidation of
the affairs of the partnership after its
dissolution. Thus, the right of the husband
or wife to one-half of the conjugal assets
does not vest until the The net profits of
dissolution and liquidation of the conjugal the conjugal
partnership, or after dissolution of the partnership of gains
marriage, when it is finally determined are all the fruits
that, after settlement of conjugal of the separate
obligations, there are net assets left which properties of the
can be divided between the spouses or their spouses and the
respective heirs.[69] (Citations omitted) products of their
labor and industry.

Finally, as earlier discussed, the trial court has

The petitioner inquires from us the meaning of net
already decided in its Decision dated October 10, 2005
profits earned by the conjugal partnership for purposes
that the applicable law in this case is Article 129(7)
of effecting the forfeiture authorized under Article 63
of the Family Code.[70] The petitioner did not file a
of the Family Code. He insists that since there is no
motion for reconsideration nor a notice of appeal. Thus,
other provision under the Family Code, which defines net
the petitioner is now precluded from questioning the
profits earned subject of forfeiture as a result of
trial court's decision since it has become final and
CHILD WITNESS. CUSTODY OF MINORS. NULLITY OF MARRIAGE. LEGAL SEPN 53
legal separation, then Article 102 of the Family Code Article 129 of the Family Code. Where lies the
applies. difference? As earlier shown, the difference lies in the
processes used under the dissolution of the absolute
What does Article 102 of the Family Code say? Is
community regime under Article 102 of the Family Code,
the computation of net profits earned in the conjugal
and in the processes used under the dissolution of the
partnership of gains the same with the computation of
conjugal partnership regime under Article 129 of the
net profits earned in the absolute community?
Family Code.
Now, we clarify.
Let us now discuss the difference in the
First and foremost, we must distinguish between processes between the absolute community regime and the
the applicable law as to the property relations between conjugal partnership regime.
the parties and the applicable law as to the definition
of net profits. As earlier discussed, Article 129 of the
Family Code applies as to the property relations of the On Absolute Community Regime:
parties. In other words, the computation and the
When a couple enters into a regime of absolute
succession of events will follow the provisions under
community, the husband and the wife becomes joint owners
Article 129 of the said Code. Moreover, as to the
of all the properties of the marriage. Whatever property
definition of net profits, we cannot but refer to
each spouse brings into the marriage, and those acquired
Article 102(4) of the Family Code, since it expressly
during the marriage (except those excluded under Article
provides that for purposes of computing the net profits
92 of the Family Code) form the common mass of the
subject to forfeiture under Article 43, No. (2) and
couple's properties. And when the couple's marriage or
Article 63, No. (2), Article 102(4) applies. In this
community is dissolved, that common mass is divided
provision, net profits shall be the increase in value
between the spouses, or their respective heirs, equally
between the market value of the community property at
or in the proportion the parties have established,
the time of the celebration of the marriage and the
irrespective of the value each one may have originally
market value at the time of its dissolution. [72] Thus,
owned.[73]
without any iota of doubt, Article 102(4) applies to
both the dissolution of the absolute community regime
under Article 102 of the Family Code, and to the
dissolution of the conjugal partnership regime under
CHILD WITNESS. CUSTODY OF MINORS. NULLITY OF MARRIAGE. LEGAL SEPN 54
 Under Article 102 of the Family Code, upon Granting without admitting that Article 102
dissolution of marriage, an inventory is prepared, applies to the instant case, let us see what will happen
listing separately all the properties of the absolute if we apply Article 102:
community and the exclusive properties of each; then the
(a) According to the trial court's finding of
debts and obligations of the absolute community are paid
facts, both husband and wife have no separate
out of the absolute community's assets and if the
properties, thus, the remaining properties in the list
community's properties are insufficient, the separate
above are all part of the absolute community. And its
properties of each of the couple will be solidarily
market value at the time of the dissolution of the
liable for the unpaid balance. Whatever is left of the
absolute community constitutes the market value at
separate properties will be delivered to each of them.
dissolution.
The net remainder of the absolute community is its net
assets, which shall be divided between the husband and (b) Thus, when the petitioner and the respondent

the wife; and for purposes of computing the net profits finally were legally separated, all the properties which

subject to forfeiture, said profits shall be the remained will be liable for the debts and obligations of

increase in value between the market value of the the community. Such debts and obligations will be

community property at the time of the celebration of the subtracted from the market value at dissolution.

marriage and the market value at the time of its

(c) What remains after the debts and obligations
dissolution.[74]
have been paid from the total assets of the absolute

Applying Article 102 of the Family Code, the net community constitutes the net remainder or net

profits requires that we first find the market value of asset. And from such net asset/remainder of the

the properties at the time of the community's petitioner and respondent's remaining properties, the

dissolution. From the totality of the market value of market value at the time of marriage will be subtracted

all the properties, we subtract the debts and and the resulting totality constitutes the net profits.

obligations of the absolute community and this result to

(d) Since both husband and wife have no separate
the net assets or net remainder of the properties of the
properties, and nothing would be returned to each of
absolute community, from which we deduct the market
them, what will be divided equally between them is
value of the properties at the time of marriage, which
simply the net profits. However, in the Decision dated
then results to the net profits.[75]
October 10, 2005, the trial court forfeited the half-

CHILD WITNESS. CUSTODY OF MINORS. NULLITY OF MARRIAGE. LEGAL SEPN 55

share of the petitioner in favor of his children. Thus, mixture or merger of those debts or properties between
if we use Article 102 in the instant case (which should the spouses. Rather, it establishes a complete
not be the case), nothing is left to the petitioner separation of capitals. [77]

since both parties entered into their marriage without

Considering that the couple's marriage has been
bringing with them any property.
dissolved under the Family Code, Article 129 of the same
Code applies in the liquidation of the couple's
properties in the event that the conjugal partnership of
On Conjugal Partnership Regime:
gains is dissolved, to wit:
Before we go into our disquisition on the
Conjugal Partnership Regime, we make it clear that
Art. 129. Upon the dissolution of the
Article 102(4) of the Family Code applies in the instant
conjugal partnership regime, the following
case for purposes only of defining net profit. As procedure shall apply:
earlier explained, the definition of net profits in
Article 102(4) of the Family Code applies to both the
(1) An inventory shall be prepared,
absolute community regime and conjugal partnership
listing separately all the properties of the
regime as provided for under Article 63, No. (2) of the conjugal partnership and the exclusive
Family Code, relative to the provisions on Legal properties of each spouse.

Separation.

Now, when a couple enters into a regime of

conjugal partnership of gains under Article 142 of the
Civil Code, the husband and the wife place in common
fund the fruits of their separate property and income
from their work or industry, and divide equally, upon
the dissolution of the marriage or of the partnership,
the net gains or benefits obtained indiscriminately by
either spouse during the marriage.[76] From the foregoing
provision, each of the couple has his
property and debts. The law does not intend to effect a
(2) Amounts advanced by the conjugal
partnership in payment of personal debts and
obligations of either spouse shall be
credited to the conjugal partnership as an
asset thereof.
(3) Each spouse shall be reimbursed
for the use of his or her exclusive funds in
and her own the acquisition of property or for the value
of his or her exclusive property, the

CHILD WITNESS. CUSTODY OF MINORS. NULLITY OF MARRIAGE. LEGAL SEPN 56

ownership of which has been vested by law in
the conjugal partnership.
(4) The debts and obligations of the
conjugal partnership shall be paid out of
the conjugal assets. In case of
insufficiency of said assets, the spouses
shall be solidarily liable for the unpaid
balance with their separate properties, in
accordance with the provisions of paragraph
(2) of Article 121.
(5) Whatever remains of the exclusive
properties of the spouses shall thereafter
be delivered to each of them.
(6) Unless the owner had been
indemnified from whatever source, the loss
or deterioration of movables used for the
benefit of the family, belonging to either
spouse, even due to fortuitous event, shall
be paid to said spouse from the conjugal
funds, if any.
(7) The net remainder of the conjugal
partnership properties shall constitute the
profits, which shall be divided equally
between husband and wife, unless a different
proportion or division was agreed upon in
the marriage settlements or unless there has
been a voluntary waiver or forfeiture of
such share as provided in this Code.
(8) The presumptive legitimes of the
common children shall be delivered upon the
partition in accordance with Article 51.
(9) In the partition of the
properties, the conjugal dwelling and the
lot on which it is situated shall, unless
otherwise agreed upon by the parties, be
adjudicated to the spouse with whom the
majority of the common children choose to
remain. Children below the age of seven
years are deemed to have chosen the mother,
unless the court has decided otherwise. In
case there is no such majority, the court
shall decide, taking into consideration the
best interests of said children.
In the normal course of events, the following are
the steps in the liquidation of the properties of the
spouses:
(a) An inventory of all the actual properties
shall be made, separately listing the couple's conjugal
properties and their separate properties.[78] In the
instant case, the trial court found that the couple has
CHILD WITNESS. CUSTODY OF MINORS. NULLITY OF MARRIAGE. LEGAL SEPN 57
no separate properties when they married.[79] Rather, the (b) Ordinarily, the benefit received by a spouse
trial court identified the following conjugal from the conjugal partnership during the marriage is
properties, to wit: returned in equal amount to the assets of the conjugal
1. coffee mill in Balongagan, Las Nieves, partnership;[81]and if the community is enriched at the
Agusan del Norte; expense of the separate properties of either spouse, a
restitution of the value of such properties to their
2. coffee mill in Durian, Las Nieves, Agusan respective owners shall be made.[82]
del Norte;
(c) Subsequently, the couple's conjugal
partnership shall pay the debts of the conjugal
3. corn mill in Casiklan, Las Nieves, Agusan
del Norte; partnership; while the debts and obligation of each of
the spouses shall be paid from their respective separate
properties. But if the conjugal partnership is not
4. coffee mill in Esperanza, Agusan del Sur;
sufficient to pay all its debts and obligations, the
spouses with their separate properties shall be
5. a parcel of land with an area of 1,200
square meters located in solidarily liable. [83]

Tungao, Butuan City;

(d) Now, what remains of the separate or
exclusive properties of the husband and of the wife
6. a parcel of agricultural land with an
shall be returned to each of them. [84] In the instant
area of 5 hectares located in Manila de
Bugabos, Butuan City; case, since it was already established by the trial
court that the spouses have no separate properties,
[85]
there is nothing to return to any of them. The
7. a parcel of land with an area of 84
square meters located in listed properties above are considered part of the
Tungao, Butuan City;
conjugal partnership. Thus, ordinarily, what remains in
the above-listed properties should be divided equally
8. Bashier Bon Factory located in between the spouses and/or their respective heirs.
Tungao, Butuan City.[80] [86]
However, since the trial court found the petitioner
the guilty party, his share from the net profits of the
conjugal partnership is forfeited in favor of the common

CHILD WITNESS. CUSTODY OF MINORS. NULLITY OF MARRIAGE. LEGAL SEPN 58

children, pursuant to Article 63(2) of the Family WHEREFORE, the Decision dated October 10, 2005 of
Code. Again, lest we be confused, like in the absolute the Regional Trial Court, Branch 1 of Butuan City
community regime, nothing will be returned to the guilty is AFFIRMED. Acting on the Motion for Clarification
party in the conjugal partnership regime, because there dated July 7, 2006 in the Regional Trial Court, the
is no separate property which may be accounted for in Order dated January 8, 2007 of the Regional Trial Court
the guilty party's favor. is hereby CLARIFIED in accordance with the above
discussions.

SO ORDERED.
In the discussions above, we have seen that in
both instances, the petitioner is not entitled to any
property at all. Thus, we cannot but uphold the Decision
dated October 10, 2005 of the trial court. However, we
BIENVENIDO L. REYES
must clarify, as we already did above, the Order dated
January 8, 2007. Associate Justice

CHILD WITNESS. CUSTODY OF MINORS. NULLITY OF MARRIAGE. LEGAL SEPN 59