Vous êtes sur la page 1sur 79

THIRD DIVISION

For the resolution of the Court is a petition for review on certiorari under Rule 45 of
EDWARD KENNETH NGO TE, G.R. No. 161793
Petitioner, the Rules of Court assailing the August 5, 2003 Decision[1] of the Court of Appeals
Present: (CA) in CA-G.R. CV No. 71867. The petition further assails the January 19, 2004
- versus - YNARES-SANTIAGO, J., Resolution[2] denying the motion for the reconsideration of the challenged decision.
Chairperson,
AUSTRIA-MARTINEZ,
ROWENA ONG GUTIERREZ YU-TE, CHICO-NAZARIO,
The relevant facts and proceedings follow.
Respondent, NACHURA, and
PERALTA, JJ.
REPUBLIC OF THEPHILIPPINES,
Oppositor. Promulgated: Petitioner Edward Kenneth Ngo Te first got a glimpse of respondent

February 13, 2009 Rowena Ong Gutierrez Yu-Te in a gathering organized by the Filipino-Chinese

association in their college. Edward was then initially attracted to Rowena’s close
x------------------------------------------------------------------------------------x
friend; but, as the latter already had a boyfriend, the young man decided to court

Rowena. That was in January 1996, when petitioner was a sophomore student and

respondent, a freshman.[3]
DECISION

NACHURA, J.: Sharing similar angst towards their families, the two understood one

another and developed a certain degree of closeness towards each other. In

March 1996, or around three months after their first meeting, Rowena asked

Far from novel is the issue involved in this petition. Psychological incapacity, since Edward that they elope. At first, he refused, bickering that he was young and

its incorporation in our laws, has become a clichéd subject of discussion in our jobless. Her persistence, however, made him relent. Thus, they left Manila and

jurisprudence. The Court treats this case, however, with much ado, it having sailed to Cebu that month; he, providing their travel money and she, purchasing

realized that current jurisprudential doctrine has unnecessarily imposed a the boat ticket.[4]

perspective by which psychological incapacity should be viewed, totally

inconsistent with the way the concept was formulated—free in form and devoid of However, Edward’s P80,000.00 lasted for only a month. Their pension

any definition. house accommodation and daily sustenance fast depleted it. And they could not

find a job. In April 1996, they decided to go back to Manila. Rowena proceeded to
her uncle’s house and Edward to his parents’ home. As his family was abroad, and annulment of his marriage to Rowena on the basis of the latter’s psychological

Rowena kept on telephoning him, threatening him that she would commit suicide, incapacity. This was docketed as Civil Case No. Q-00-39720.[11]

Edward agreed to stay with Rowena at her uncle’s place.[5]

As Rowena did not file an answer, the trial court, on July 11, 2000, ordered

On April 23, 1996, Rowena’s uncle brought the two to a court to get the Office of the City Prosecutor (OCP) of Quezon City to investigate whether there

married. He was then 25 years old, and she, 20. [6] The two then continued to stay was collusion between the parties.[12] In the meantime, on July 27, 2000, the Office

at her uncle’s place where Edward was treated like a prisoner—he was not allowed of the Solicitor General (OSG) entered its appearance and deputized the OCP to

to go out unaccompanied. Her uncle also showed Edward his guns and warned the appear on its behalf and assist it in the scheduled hearings.[13]

latter not to leave Rowena.[7] At one point, Edward was able to call home and talk

to his brother who suggested that they should stay at their parents’ home and live On August 23, 2000, the OCP submitted an investigation report stating that

with them. Edward relayed this to Rowena who, however, suggested that he it could not determine if there was collusion between the parties; thus, it

should get his inheritance so that they could live on their own. Edward talked to recommended trial on the merits.[14]

his father about this, but the patriarch got mad, told Edward that he would be

disinherited, and insisted that Edward must go home.[8] The clinical psychologist who examined petitioner found both parties

psychologically incapacitated, and made the following findings and conclusions:

After a month, Edward escaped from the house of Rowena’s uncle, and
BACKGROUND DATA & BRIEF MARITAL HISTORY:
stayed with his parents. His family then hid him from Rowena and her family
EDWARD KENNETH NGO TE is a [29-year-old] Filipino male adult born and
whenever they telephoned to ask for him.[9]
baptized Born Again Christian at Manila. He finished two years in college
at AMA Computer College last 1994 and is currently unemployed. He is
married to and separated from ROWENA GUTIERREZ YU-TE. He presented
In June 1996, Edward was able to talk to Rowena. Unmoved by his himself at my office for a psychological evaluation in relation to his petition
for Nullification of Marriage against the latter by the grounds of
persistence that they should live with his parents, she said that it was better for psychological incapacity. He is now residing at 181 P. Tuazon
them to live separate lives. They then parted ways.[10] Street, Quezon City.

Petitioner got himself three siblings who are now in business and one
deceased sister. Both his parents are also in the business world by whom
After almost four years, or on January 18, 2000, Edward filed a petition he [considers] as generous, hospitable, and patient. This said virtues are
said to be handed to each of the family member. He generally considers
before the Regional Trial Court (RTC) of Quezon City, Branch 106, for the
himself to be quiet and simple. He clearly remembers himself to be afraid
of meeting people. After 1994, he tried his luck in being a Sales Executive
of Mansfield International Incorporated. And because of job incompetence, Contract before the Judge. Petitioner actually never applied for any
as well as being quiet and loner, he did not stay long in the job until Marriage License.
1996. His interest lie[s] on becoming a full servant of God by being a
priest or a pastor. He [is] said to isolate himself from his friends even Respondent decided that they should stay first at their house until after
during his childhood days as he only loves to read the Bible and hear its arrival of the parents of petitioner. But when the parents of petitioner
message. arrived, respondent refused to allow petitioner to go home. Petitioner was
threatened in so many ways with her uncle showing to him many
Respondent is said to come from a fine family despite having a lazy father guns. Respondent even threatened that if he should persist in going
and a disobedient wife. She is said to have not finish[ed] her collegiate home, they will commission their military friends to harm his
degree and shared intimate sexual moments with her boyfriend prior to family. Respondent even made petitioner sign a declaration that if he
that with petitioner. should perish, the authorities should look for him at his parents[‫ ]ۥ‬and
relatives[‫ ]ۥ‬houses. Sometime in June of 1996, petitioner was able to
In January of 1996, respondent showed her kindness to petitioner and this escape and he went home. He told his parents about his predicament and
became the foundation of their intimate relationship. After a month of they forgave him and supported him by giving him military
dating, petitioner mentioned to respondent that he is having problems with escort. Petitioner, however, did not inform them that he signed a marriage
his family. Respondent surprisingly retorted that she also hates her family contract with respondent. When they knew about it[,] petitioner was
and that she actually wanted to get out of their lives. From that [time on], referred for counseling. Petitioner[,] after the counseling[,] tried to contact
respondent had insisted to petitioner that they should elope and live respondent. Petitioner offered her to live instead to[sic] the home of
together. Petitioner hesitated because he is not prepared as they are both petitioner’s parents while they are still studying. Respondent refused the
young and inexperienced, but she insisted that they would somehow idea and claimed that she would only live with him if they will have a
manage because petitioner is rich. In the last week of March 1996, separate home of their own and be away from his parents. She also
respondent seriously brought the idea of eloping and she already bought intimated to petitioner that he should already get his share of whatever he
tickets for the boat going to Cebu. Petitioner reluctantly agreed to the idea would inherit from his parents so they can start a new life. Respondent
and so they eloped to Cebu. The parties are supposed to stay at the house demanded these not knowing [that] the petitioner already settled his
of a friend of respondent, but they were not able to locate her, so differences with his own family. When respondent refused to live with
petitioner was compelled to rent an apartment. The parties tried to look petitioner where he chose for them to stay, petitioner decided to tell her
for a job but could not find any so it was suggested by respondent that to stop harassing the home of his parents. He told her already that he was
they should go back and seek help from petitioner’s parents. When the disinherited and since he also does not have a job, he would not be able to
parties arrived at the house of petitioner, all of his whole family was all out support her. After knowing that petitioner does not have any money
of the country so respondent decided to go back to her home for the anymore, respondent stopped tormenting petitioner and informed
meantime while petitioner stayed behind at their home. After a few days petitioner that they should live separate lives.
of separation, respondent called petitioner by phone and said she wanted
to talk to him. Petitioner responded immediately and when he arrived at The said relationship between Edward and Rowena is said to be
their house, respondent confronted petitioner as to why he appeared to be undoubtedly in the wreck and weakly-founded. The break-up was caused
cold, respondent acted irrationally and even threatened to commit by both parties[’] unreadiness to commitment and their young age. He
suicide. Petitioner got scared so he went home again. Respondent would was still in the state of finding his fate and fighting boredom, while she was
call by phone every now and then and became angry as petitioner does still egocentrically involved with herself.
not know what to do. Respondent went to the extent of threatening to file
a case against petitioner and scandalize his family in the TESTS ADMINISTERED:
newspaper. Petitioner asked her how he would be able to make amends
and at this point in time[,] respondent brought the idea of marriage. Revised Beta Examination
Petitioner[,] out of frustration in life[,] agreed to her to pacify her. And so Bender Visual Motor Gestalt Test
on April 23, 1996, respondent’s uncle brought the parties to Valenzuela[,] Draw A Person Test
and on that very same day[,] petitioner was made to sign the Marriage Rorschach Psychodiagnostic Test
Sach’s Sentence Completion Test during marriage. Both parties display psychological incapacities that made
MMPI marriage a big mistake for them to take.[15]

TEST RESULTS & EVALUATION:

Both petitioner and respondent are dubbed to be emotionally immature The trial court, on July 30, 2001, rendered its Decision[16] declaring the
and recklessly impulsive upon swearing to their marital vows as each of marriage of the parties null and void on the ground that both parties were
them was motivated by different notions on marriage.
psychologically incapacitated to comply with the essential marital obligations.
Edward Kenneth Ngo Te, the petitioner in this case[,] is said to be still
[17]
unsure and unready so as to commit himself to marriage. He is still The Republic, represented by the OSG, timely filed its notice of appeal.[18]
founded to be on the search of what he wants in life. He is absconded as
an introvert as he is not really sociable and displays a lack of interest in
social interactions and mingling with other individuals. He is seen too akin On review, the appellate court, in the assailed August 5, 2003
to this kind of lifestyle that he finds it boring and uninteresting to commit
himself to a relationship especially to that of respondent, as aggravated by Decision[19] in CA-G.R. CV No. 71867, reversed and set aside the trial court’s ruling.
her dangerously aggressive moves. As he is more of the reserved and [20]
timid type of person, as he prefer to be religiously attached and spend a It ruled that petitioner failed to prove the psychological incapacity of
solemn time alone. respondent. The clinical psychologist did not personally examine respondent, and
ROWENA GUTIERREZ YU-TE, the respondent, is said to be of the relied only on the information provided by petitioner. Further, the psychological
aggressive-rebellious type of woman. She is seen to be somewhat
exploitative in her [plight] for a life of wealth and glamour. She is seen to incapacity was not shown to be attended by gravity, juridical antecedence and
take move on marriage as she thought that her marriage with petitioner
incurability. In sum, the evidence adduced fell short of the requirements stated
will bring her good fortune because he is part of a rich family. In order to
have her dreams realized, she used force and threats knowing that [her] in Republic v. Court of Appeals and Molina[21] needed for the declaration of nullity
husband is somehow weak-willed. Upon the realization that there is really
no chance for wealth, she gladly finds her way out of the relationship. of the marriage under Article 36 of the Family Code.[22] The CA faulted the lower

REMARKS: court for rendering the decision without the required certification of the OSG briefly

stating therein the OSG’s reasons for its agreement with or opposition to, as the
Before going to marriage, one should really get to know himself
and marry himself before submitting to marital vows. Marriage should not case may be, the petition.[23] The CA later denied petitioner’s motion for
be taken out of intuition as it is profoundly a serious institution solemnized
by religious and law. In the case presented by petitioner and respondent[,] reconsideration in the likewise assailed January 19, 2004 Resolution.[24]
(sic) it is evidently clear that both parties have impulsively taken marriage
for granted as they are still unaware of their own selves. He is extremely
introvert to the point of weakening their relationship by his weak Dissatisfied, petitioner filed before this Court the instant petition for review
behavioral disposition. She, on the other hand[,] is extremely exploitative
and aggressive so as to be unlawful, insincere and undoubtedly uncaring in on certiorari. On June 15, 2005, the Court gave due course to the petition and
her strides toward convenience. It is apparent that she is suffering the
grave, severe, and incurable presence of Narcissistic and Antisocial required the parties to submit their respective memoranda.[25]
Personality Disorder that started since childhood and only manifested
In his memorandum,[26] petitioner argues that the CA erred in substituting
Article 36. A marriage contracted by any party who, at the time of
its own judgment for that of the trial court. He posits that the RTC declared the the celebration, was psychologically incapacitated to comply with the
essential marital obligations of marriage, shall likewise be void even if such
marriage void, not only because of respondent’s psychological incapacity, but
incapacity becomes manifest only after its solemnization.
rather due to both parties’ psychological incapacity. Petitioner also points out that

there is no requirement for the psychologist to personally examine


As borne out by the deliberations of the Civil Code Revision Committee
respondent. Further, he avers that the OSG is bound by the actions of the OCP
that drafted the Family Code, Article 36 was based on grounds available in the
because the latter represented it during the trial; and it had been furnished copies
Canon Law. Thus, Justice Flerida Ruth P. Romero elucidated in her separate opinion
of all the pleadings, the trial court orders and notices.[27]
in Santos v. Court of Appeals:[33]

For its part, the OSG contends in its memorandum, [28] that the annulment However, as a member of both the Family Law Revision Committee
of the Integrated Bar of the Philippines and the Civil Code Revision
petition filed before the RTC contains no statement of the essential marital Commission of the UP Law Center, I wish to add some observations. The
obligations that the parties failed to comply with. The root cause of the letter dated April 15, 1985 of then Judge Alicia V. Sempio-Diy written in
behalf of the Family Law and Civil Code Revision Committee to then
psychological incapacity was likewise not alleged in the petition; neither was it Assemblywoman Mercedes Cojuangco-Teodoro traced the background of
the inclusion of the present Article 36 in the Family Code.
medically or clinically identified. The purported incapacity of both parties was not
“During its early meetings, the Family Law Committee had
shown to be medically or clinically permanent or incurable. And the clinical
thought of including a chapter on absolute divorce in the draft of a
psychologist did not personally examine the respondent. Thus, the OSG concludes new Family Code (Book I of the Civil Code) that it had been tasked
by the IBP and the UP Law Center to prepare. In fact, some
that the requirements in Molina[29] were not satisfied.[30] members of the Committee were in favor of a no-fault divorce
between the spouses after a number of years of separation, legal
or de facto. Justice J.B.L. Reyes was then requested to prepare a
The Court now resolves the singular issue of whether, based on Article 36 proposal for an action for dissolution of marriage and the effects
thereof based on two grounds: (a) five continuous years of
of the Family Code, the marriage between the parties is null and void.[31] separation between the spouses, with or without a judicial decree
I. of legal separation, and (b) whenever a married person would have
obtained a decree of absolute divorce in another country. Actually,
such a proposal is one for absolute divorce but called by another
We begin by examining the provision, tracing its origin and charting the name. Later, even the Civil Code Revision Committee took time to
discuss the proposal of Justice Reyes on this matter.
development of jurisprudence interpreting it.
Subsequently, however, when the Civil Code Revision
Committee and Family Law Committee started holding joint
Article 36 of the Family Code[32] provides: meetings on the preparation of the draft of the New Family Code,
they agreed and formulated the definition of marriage as —
as well as the following implementing provisions:
‘a special contract of permanent partnership
between a man and a woman entered into in accordance ‘Art. 32. The absolute nullity of a marriage may be
with law for the establishment of conjugal and family life. It invoked or pleaded only on the basis of a final judgment
is an inviolable social institution whose nature, declaring the marriage void, without prejudice to the
consequences, and incidents are governed by law and not provision of Article 34.’
subject to stipulation, except that marriage settlements
may fix the property relations during the marriage within ‘Art. 33. The action or defense for the declaration
the limits provided by law.’ of the absolute nullity of a marriage shall not prescribe.’

With the above definition, and considering the Christian xxx xxx xxx
traditional concept of marriage of the Filipino people as a
permanent, inviolable, indissoluble social institution upon which It is believed that many hopelessly broken marriages in our country today
the family and society are founded, and also realizing the strong may already be dissolved or annulled on the grounds proposed by the Joint
opposition that any provision on absolute divorce would encounter Committee on declaration of nullity as well as annulment of marriages,
from the Catholic Church and the Catholic sector of our citizenry to thus rendering an absolute divorce law unnecessary. In fact, during a
whom the great majority of our people belong, the two conference with Father Gerald Healy of the Ateneo University, as well as
Committees in their joint meetings did not pursue the idea of another meeting with Archbishop Oscar Cruz of the Archdiocese of
absolute divorce and, instead, opted for an action for judicial Pampanga, the Joint Committee was informed that since Vatican II, the
declaration of invalidity of marriage based on grounds available in Catholic Church has been declaring marriages null and void on the ground
the Canon Law. It was thought that such an action would not only of “lack of due discretion” for causes that, in other jurisdictions, would be
be an acceptable alternative to divorce but would also solve the clear grounds for divorce, like teen-age or premature marriages; marriage
nagging problem of church annulments of marriages on grounds to a man who, because of some personality disorder or disturbance, cannot
not recognized by the civil law of the State. Justice Reyes was, support a family; the foolish or ridiculous choice of a spouse by an
thus, requested to again prepare a draft of provisions on such otherwise perfectly normal person; marriage to a woman who refuses to
action for celebration of invalidity of marriage. Still later, to avoid cohabit with her husband or who refuses to have children. Bishop Cruz also
the overlapping of provisions on void marriages as found in the informed the Committee that they have found out in tribunal work that a
present Civil Code and those proposed by Justice Reyes on judicial lot of machismo among husbands are manifestations of their sociopathic
declaration of invalidity of marriage on grounds similar to the personality anomaly, like inflicting physical violence upon their wives,
Canon Law, the two Committees now working as a Joint Committee constitutional indolence or laziness, drug dependence or addiction, and
in the preparation of a New Family Code decided to consolidate the psychosexual anomaly.[34]
present provisions on void marriages with the proposals of Justice
Reyes. The result was the inclusion of an additional kind of void
marriage in the enumeration of void marriages in the present Civil
Code, to wit: In her separate opinion in Molina,[35] she expounded:

‘(7) those marriages contracted by any party who, At the Committee meeting of July 26, 1986, the draft provision
at the time of the celebration, was wanting in the sufficient read:
use of reason or judgment to understand the essential
nature of marriage or was psychologically or mentally “(7) Those marriages contracted by any party who, at the time
incapacitated to discharge the essential marital of the celebration, was wanting in the sufficient use of reason or judgment
obligations, even if such lack or incapacity is made to understand the essential nature of marriage or was psychologically or
manifest after the celebration. mentally incapacitated to discharge the essential marital obligations, even
if such lack of incapacity is made manifest after the celebration.”
problematic. Yet, the possibility that one may be cured after the
The twists and turns which the ensuing discussion took finally psychological incapacity becomes manifest after the marriage was not
produced the following revised provision even before the session was over: ruled out by Justice Puno and Justice Alice Sempio-Diy. Justice Caguioa
suggested that the remedy was to allow the afflicted spouse to remarry.
“(7) That contracted by any party who, at the time of the
celebration, was psychologically incapacitated to discharge the essential For clarity, the Committee classified the bases for determining void
marital obligations, even if such lack or incapacity becomes manifest after marriages, viz.:
the celebration.”
1. lack of one or more of the essential requisites of marriage
Noticeably, the immediately preceding formulation above has as contract;
dropped any reference to “wanting in the sufficient use of reason or 2. reasons of public policy;
judgment to understand the essential nature of marriage” and to “mentally 3. special cases and special situations.
incapacitated.” It was explained that these phrases refer to “defects in the
mental faculties vitiating consent, which is not the idea . . . but lack of The ground of psychological incapacity was subsumed under “special
appreciation of one's marital obligation.” There being a defect in consent, cases and special situations,” hence, its special treatment in Art. 36 in the
“it is clear that it should be a ground for voidable marriage because there Family Code as finally enacted.
is the appearance of consent and it is capable of convalidation for the
simple reason that there are lucid intervals and there are cases when the Nowhere in the Civil Code provisions on Marriage is there a ground
insanity is curable . . . Psychological incapacity does not refer to mental for avoiding or annulling marriages that even comes close to being
faculties and has nothing to do with consent; it refers to obligations psychological in nature.
attendant to marriage.”
Where consent is vitiated due to circumstances existing at the time
My own position as a member of the Committee then was that of the marriage, such marriage which stands valid until annulled is capable
psychological incapacity is, in a sense, insanity of a lesser degree. of ratification or convalidation.

As to the proposal of Justice Caguioa to use the term On the other hand, for reasons of public policy or lack of essential
“psychological or mental impotence,” Archbishop Oscar Cruz opined in the requisites, some marriages are void from the beginning.
earlier February 9, 1984 session that this term “is an invention of some
churchmen who are moralists but not canonists, that is why it is considered With the revision of Book I of the Civil Code, particularly the
a weak phrase.” He said that the Code of Canon Law would rather express provisions on Marriage, the drafters, now open to fresh winds of change in
it as “psychological or mental incapacity to discharge . . .” Justice Ricardo keeping with the more permissive mores and practices of the time, took a
C. Puno opined that sometimes a person may be psychologically impotent leaf from the relatively liberal provisions of Canon Law.
with one but not with another.
Canon 1095 which states, inter alia, that the following persons are
One of the guidelines enumerated in the majority opinion for the incapable of contracting marriage: “3. (those) who, because of causes of a
interpretation and application of Art. 36 is: “Such incapacity must also be psychological nature, are unable to assume the essential obligations of
shown to be medically or clinically permanent or incurable. Such marriage” provided the model for what is now Art. 36 of the Family Code:
incurability may be absolute or even relative only in regard to the other “A marriage contracted by any party who, at the time of the celebration,
spouse, not necessarily absolutely against everyone of the same sex.” was psychologically incapacitated to comply with the essential marital
obligations of marriage, shall likewise be void even if such incapacity
The Committee, through Prof. Araceli T. Barrera, considered the becomes manifest only after its solemnization.”
inclusion of the phrase “and is incurable” but Prof. Esteban B. Bautista
commented that this would give rise to the question of how they will It bears stressing that unlike in Civil Law, Canon Law recognizes
determine curability and Justice Caguioa agreed that it would be more only two types of marriages with respect to their validity: valid and void.
Civil Law, however, recognizes an intermediate state, the voidable or reasoned for the first time in several cases that the capacity to give valid
annullable marriages. When the Ecclesiastical Tribunal “annuls” a consent at the time of marriage was probably not present in persons who
marriage, it actually declares the marriage null and void, i.e., it never had displayed such problems shortly after the marriage. The nature of this
really existed in the first place, for a valid sacramental marriage can never change was nothing short of revolutionary. Once the Rota itself had
be dissolved. Hence, a properly performed and consummated marriage demonstrated a cautious willingness to use this kind of hindsight, the way
between two living Roman Catholics can only be nullified by the formal was paved for what came after 1970. Diocesan Tribunals began to accept
annulment process which entails a full tribunal procedure with a Court proof of serious psychological problems that manifested themselves
selection and a formal hearing. shortly after the ceremony as proof of an inability to give valid consent at
the time of the ceremony.[36]
Such so-called church “annulments” are not recognized by Civil
Law as severing the marriage ties as to capacitate the parties to enter
lawfully into another marriage. The grounds for nullifying civil marriage,
not being congruent with those laid down by Canon Law, the former being Interestingly, the Committee did not give any examples of psychological
more strict, quite a number of married couples have found themselves in incapacity for fear that by so doing, it might limit the applicability of the provision
limbo—freed from the marriage bonds in the eyes of the Catholic Church
but yet unable to contract a valid civil marriage under state laws. Heedless under the principle of ejusdem generis. The Committee desired that the courts
of civil law sanctions, some persons contract new marriages or enter into
live-in relationships. should interpret the provision on a case-to-case basis; guided by experience, the

findings of experts and researchers in psychological disciplines, and by decisions of


It was precisely to provide a satisfactory solution to such
anomalous situations that the Civil Law Revision Committee decided to church tribunals which, although not binding on the civil courts, may be given
engraft the Canon Law concept of psychological incapacity into the Family
Code—and classified the same as a ground for declaring marriages void ab persuasive effect since the provision itself was taken from the Canon Law.[37] The
initio or totally inexistent from the beginning.
law is then so designed as to allow some resiliency in its application.[38]
A brief historical note on the Old Canon Law (1917). This Old Code,
while it did not provide directly for psychological incapacity, in effect,
recognized the same indirectly from a combination of three old canons: Yet, as held in Santos,[39] the phrase “psychological incapacity” is not
“Canon #1081 required persons to be ‘capable according to law’ in order
to give valid consent; Canon #1082 required that persons ‘be at least not meant to comprehend all possible cases of psychoses. It refers to no less than a
ignorant’ of the major elements required in marriage; and Canon #1087
mental (not physical) incapacity that causes a party to be truly noncognitive of the
(the force and fear category) required that internal and external freedom
be present in order for consent to be valid. This line of interpretation basic marital covenants that concomitantly must be assumed and discharged by
produced two distinct but related grounds for annulment called ‘lack of
due discretion’ and ‘lack of due competence.’ Lack of due discretion means the parties to the marriage which, as expressed by Article 68 [40] of the Family Code,
that the person did not have the ability to give valid consent at the time of
the wedding and, therefore, the union is invalid. Lack of due competence include their mutual obligations to live together, observe love, respect and fidelity;
means that the person was incapable of carrying out the obligations of the and render help and support. The intendment of the law has been to confine it to
promise he or she made during the wedding ceremony.”
the most serious of cases of personality disorders clearly demonstrative of an utter
Favorable annulment decisions by the Roman Rota in the 1950s
and 1960s involving sexual disorders such as homosexuality and insensitivity or inability to give meaning and significance to the marriage.[41] This
nymphomania laid the foundation for a broader approach to the kind of
interpretation is, in fact, consistent with that in Canon Law, thus:
proof necessary for psychological grounds for annulment. The Rota had
to the nature of the activity itself [sadism, masochism,
homosexuality]. However, these anomalies notwithstanding, it is
3.5.3.1. The Meaning of Incapacity to Assume. A sharp conceptual altogether possible that the higher faculties remain intact such that a
distinction must be made between the second and third paragraphs of person so afflicted continues to have an adequate understanding of what
C.1095, namely between the grave lack of discretionary judgment and the marriage is and of the gravity of its responsibilities. In fact, he can choose
incapacity to assume the essential obligation. Mario Pompedda, a rotal marriage freely. The question though is whether such a person can
judge, explains the difference by an ordinary, if somewhat banal, assume those responsibilities which he cannot fulfill, although he may be
example. Jose wishes to sell a house to Carmela, and on the assumption able to understand them. In this latter hypothesis, the incapacity to
that they are capable according to positive law to enter such contract, assume the essential obligations of marriage issues from the incapacity to
there remains the object of the contract, viz, the house. The house is posit the object of consent, rather than the incapacity to posit consent
located in a different locality, and prior to the conclusion of the contract, itself.
the house was gutted down by fire unbeknown to both of them. This is the
hypothesis contemplated by the third paragraph of the canon. The third Ecclesiastical jurisprudence has been hesitant, if not actually confused, in
paragraph does not deal with the psychological process of giving consent this regard. The initial steps taken by church courts were not too clear
because it has been established a priori that both have such a capacity to whether this incapacity is incapacity to posit consent or incapacity to posit
give consent, and they both know well the object of their consent [the the object of consent. A case c. Pinna, for example, arrives at the
house and its particulars]. Rather, C.1095.3 deals with the object of the conclusion that the intellect, under such an irresistible impulse, is
consent/contract which does not exist. The contract is invalid because it prevented from properly deliberating and its judgment lacks freedom. This
lacks its formal object. The consent as a psychological act is both valid line of reasoning supposes that the intellect, at the moment of consent, is
and sufficient. The psychological act, however, is directed towards an under the influence of this irresistible compulsion, with the inevitable
object which is not available. Urbano Navarrete summarizes this conclusion that such a decision, made as it was under these
distinction: the third paragraph deals not with the positing of consent but circumstances, lacks the necessary freedom. It would be incontrovertible
with positing the object of consent. The person may be capable of positing that a decision made under duress, such as this irresistible impulse, would
a free act of consent, but he is not capable of fulfilling the responsibilities not be a free act. But this is precisely the question: is it, as a matter of
he assumes as a result of the consent he elicits. fact, true that the intellect is always and continuously under such an
irresistible compulsion? It would seem entirely possible, and certainly
Since the address of Pius XII to the auditors of the Roman Rota in 1941 more reasonable, to think that there are certain cases in which one who is
regarding psychic incapacity with respect to marriage arising from sexually hyperaesthetic can understand perfectly and evaluate quite
pathological conditions, there has been an increasing trend to understand maturely what marriage is and what it implies; his consent would be
as ground of nullity different from others, the incapacity to assume the juridically ineffective for this one reason that he cannot posit the object of
essential obligations of marriage, especially the incapacity which arises consent, the exclusive jus in corpus to be exercised in a normal way and
from sexual anomalies. Nymphomania is a sample which ecclesiastical with usually regularity. It would seem more correct to say that the consent
jurisprudence has studied under this rubric. may indeed be free, but is juridically ineffective because the party is
consenting to an object that he cannot deliver. The house he is selling was
The problem as treated can be summarized, thus: do sexual anomalies gutted down by fire.
always and in every case imply a grave psychopathological condition which
affects the higher faculties of intellect, discernment, and freedom; or are 3.5.3.2. Incapacity as an Autonomous Ground. Sabattani seems to
there sexual anomalies that are purely so – that is to say, they arise from have seen his way more clearly through this tangled mess, proposing as he
certain physiological dysfunction of the hormonal system, and they affect did a clear conceptual distinction between the inability to give consent on
the sexual condition, leaving intact the higher faculties however, so that the one hand, and the inability to fulfill the object of consent, on the
these persons are still capable of free human acts. The evidence from the other. It is his opinion that nymphomaniacs usually understand the
empirical sciences is abundant that there are certain anomalies of a sexual meaning of marriage, and they are usually able to evaluate its
nature which may impel a person towards sexual activities which are not implications. They would have no difficulty with positing a free and
normal, either with respect to its frequency [nymphomania, satyriasis] or intelligent consent. However, such persons, capable as they are of eliciting
an intelligent and free consent, experience difficulty in another sphere: heterosexual consortium, which goes to the very substance of
delivering the object of the consent. Anne, another rotal judge, had matrimony. Another incapacity could arise when a spouse is unable to
likewise treated the difference between the act of consenting and the act concretize the good of himself or of the other party. The canon speaks, not
of positing the object of consent from the point of view of a person afflicted of the bonum partium, but of the bonum conjugum. A spouse who is
with nymphomania. According to him, such an affliction usually leaves the capable only of realizing or contributing to the good of the other party qua
process of knowing and understanding and evaluating intact. What it persona rather than qua conjunx would be deemed incapable of
affects is the object of consent: the delivering of the goods. contracting marriage. Such would be the case of a person who may be
quite capable of procuring the economic good and the financial security of
3.5.3.3 Incapacity as Incapacity to Posit the Object of the other, but not capable of realizing the bonum conjugale of the
Consent. From the selected rotal jurisprudence cited, supra, it is possible other. These are general strokes and this is not the place for detained and
to see a certain progress towards a consensus doctrine that the incapacity individual description.
to assume the essential obligations of marriage (that is to say, the formal
object of consent) can coexist in the same person with the ability to make A rotal decision c. Pinto resolved a petition where the concrete
a free decision, an intelligent judgment, and a mature evaluation and circumstances of the case concerns a person diagnosed to be suffering
weighing of things. The decision coram Sabattani concerning a from serious sociopathy. He concluded that while the respondent may
nymphomaniac affirmed that such a spouse can have difficulty not only have understood, on the level of the intellect, the essential obligations of
with regard to the moment of consent but also, and especially, with regard marriage, he was not capable of assuming them because of his
to the matrimonium in facto esse. The decision concludes that a person in “constitutional immorality.”
such a condition is incapable of assuming the conjugal obligation of
fidelity, although she may have no difficulty in understanding what the Stankiewicz clarifies that the maturity and capacity of the person as
obligations of marriage are, nor in the weighing and evaluating of those regards the fulfillment of responsibilities is determined not only at the
same obligations. moment of decision but also and especially during the moment of
execution of decision. And when this is applied to constitution of the
Prior to the promulgation of the Code of Canon Law in 1983, it was not marital consent, it means that the actual fulfillment of the essential
unusual to refer to this ground as moral impotence or psychic impotence, obligations of marriage is a pertinent consideration that must be factored
or similar expressions to express a specific incapacity rooted in some into the question of whether a person was in a position to assume the
anomalies and disorders in the personality. These anomalies leave intact obligations of marriage in the first place. When one speaks of the inability
the faculties of the will and the intellect. It is qualified as moral or psychic, of the party to assume and fulfill the obligations, one is not looking
obviously to distinguish it from the impotence that constitutes the at matrimonium in fieri, but also and especially at matrimonium in facto
impediment dealt with by C.1084. Nonetheless, the anomalies render the esse. In [the] decision of 19 Dec. 1985, Stankiewicz collocated the
subject incapable of binding himself in a valid matrimonial pact, to the incapacity of the respondent to assume the essential obligations of
extent that the anomaly renders that person incapable of fulfilling the marriage in the psychic constitution of the person, precisely on the basis of
essential obligations. According to the principle affirmed by the long his irresponsibility as regards money and his apathy as regards the rights
tradition of moral theology: nemo ad impossibile tenetur. of others that he had violated. Interpersonal relationships are invariably
disturbed in the presence of this personality disorder. A lack of empathy
xxxx (inability to recognize and experience how others feel) is common. A
sense of entitlement, unreasonable expectation, especially favorable
3.5.3.5 Indications of Incapacity. There is incapacity when either or treatment, is usually present. Likewise common is interpersonal
both of the contractants are not capable of initiating or maintaining this exploitativeness, in which others are taken advantage of in order to
consortium. One immediately thinks of those cases where one of the achieve one’s ends.
parties is so self-centered [e.g., a narcissistic personality] that he does not
even know how to begin a union with the other, let alone how to maintain Authors have made listings of obligations considered as essential
and sustain such a relationship. A second incapacity could be due to the matrimonial obligations. One of them is the right to the communio
fact that the spouses are incapable of beginning or maintaining a vitae. This and their corresponding obligations are basically centered
around the good of the spouses and of the children. Serious psychic however remote, in the development of the habit, while one accepts as
anomalies, which do not have to be necessarily incurable, may give rise to given one’s psychic constitution. It would seem then that the law insists
the incapacity to assume any, or several, or even all of these rights. There that the source of the incapacity must be one which is not the fruit of some
are some cases in which interpersonal relationship is impossible. Some degree of freedom.[42]
characteristic features of inability for interpersonal relationships in
marriage include affective immaturity, narcissism, and antisocial traits.

Marriage and Homosexuality. Until 1967, it was not very clear under what Conscious of the law’s intention that it is the courts, on a case-to-case
rubric homosexuality was understood to be invalidating of marriage – that basis, that should determine whether a party to a marriage is psychologically
is to say, is homosexuality invalidating because of the inability to evaluate
the responsibilities of marriage, or because of the inability to fulfill its incapacitated, the Court, in sustaining the lower court’s judgment of annulment
obligations. Progressively, however, rotal jurisprudence began to
understand it as incapacity to assume the obligations of marriage so that in Tuason v. Court of Appeals,[43] ruled that the findings of the trial court are final
by 1978, Parisella was able to consider, with charity, homosexuality as an
and binding on the appellate courts.[44]
autonomous ground of nullity. This is to say that a person so afflicted is
said to be unable to assume the essential obligations of marriage. In this
same rotal decision, the object of matrimonial consent is understood to
refer not only to the jus in corpus but also the consortium totius vitae. The Again, upholding the trial court’s findings and declaring that its decision
third paragraph of C.1095 [incapacity to assume the essential obligations
of marriage] certainly seems to be the more adequate juridical structure to was not a judgment on the pleadings, the Court, in Tsoi v. Court of Appeals,
account for the complex phenomenon that homosexuality is. The [45]
explained that when private respondent testified under oath before the lower
homosexual is not necessarily impotent because, except in very few
exceptional cases, such a person is usually capable of full sexual relations court and was cross-examined by the adverse party, she thereby presented
with the spouse. Neither is it a mental infirmity, and a person so afflicted
does not necessarily suffer from a grave lack of due discretion because this evidence in the form of testimony. Importantly, the Court, aware of parallel
sexual anomaly does not by itself affect the critical, volitive, and
decisions of Catholic marriage tribunals, ruled that the senseless and protracted
intellectual faculties. Rather, the homosexual person is unable to assume
the responsibilities of marriage because he is unable to fulfill this object of refusal of one of the parties to fulfill the marital obligation of procreating children is
the matrimonial contract. In other words, the invalidity lies, not so much in
the defect of consent, as in the defect of the object of consent. equivalent to psychological incapacity.

3.5.3.6 Causes of Incapacity. A last point that needs to be addressed


is the source of incapacity specified by the canon: causes of a The resiliency with which the concept should be applied and the case-to-
psychological nature. Pompedda proffers the opinion that the clause is a
reference to the personality of the contractant. In other words, there must case basis by which the provision should be interpreted, as so intended by its
be a reference to the psychic part of the person. It is only when there is
something in the psyche or in the psychic constitution of the person which framers, had, somehow, been rendered ineffectual by the imposition of a set of
impedes his capacity that one can then affirm that the person is incapable
strict standards in Molina,[46] thus:
according to the hypothesis contemplated by C.1095.3. A person is judged
incapable in this juridical sense only to the extent that he is found to have
something rooted in his psychic constitution which impedes the From their submissions and the Court's own deliberations, the
assumption of these obligations. A bad habit deeply engrained in one’s following guidelines in the interpretation and application of Art. 36 of the
consciousness would not seem to qualify to be a source of this invalidating Family Code are hereby handed down for the guidance of the bench and
incapacity. The difference being that there seems to be some freedom, the bar:
psychologically capacitated to procreate, bear and raise his/her own
(1) The burden of proof to show the nullity of the marriage children as an essential obligation of marriage.
belongs to the plaintiff. Any doubt should be resolved in favor of the
existence and continuation of the marriage and against its dissolution and (5) Such illness must be grave enough to bring about the
nullity. This is rooted in the fact that both our Constitution and our laws disability of the party to assume the essential obligations of marriage.
cherish the validity of marriage and unity of the family. Thus, our Thus, “mild characterological peculiarities, mood changes, occasional
Constitution devotes an entire Article on the Family, recognizing it “as the emotional outbursts” cannot be accepted as root causes. The illness must
foundation of the nation.” It decrees marriage as legally “inviolable,” be shown as downright incapacity or inability, not a refusal, neglect or
thereby protecting it from dissolution at the whim of the parties. Both the difficulty, much less ill will. In other words, there is a natal or supervening
family and marriage are to be “protected” by the state. disabling factor in the person, an adverse integral element in the
personality structure that effectively incapacitates the person from really
The Family Code echoes this constitutional edict on marriage and accepting and thereby complying with the obligations essential to
the family and emphasizes their permanence, inviolability and solidarity. marriage.

(2) The root cause of the psychological incapacity must be (a) (6) The essential marital obligations must be those embraced
medically or clinically identified, (b) alleged in the complaint, (c) by Articles 68 up to 71 of the Family Code as regards the husband and wife
sufficiently proven by experts and (d) clearly explained in the decision. as well as Articles 220, 221 and 225 of the same Code in regard to parents
Article 36 of the Family Code requires that the incapacity must be and their children. Such non-complied marital obligation(s) must also be
psychological—not physical, although its manifestations and/or symptoms stated in the petition, proven by evidence and included in the text of the
may be physical. The evidence must convince the court that the parties, or decision.
one of them, was mentally or psychically ill to such an extent that the
person could not have known the obligations he was assuming, or knowing (7) Interpretations given by the National Appellate Matrimonial
them, could not have given valid assumption thereof. Although no example Tribunal of the Catholic Church in the Philippines, while not controlling or
of such incapacity need be given here so as not to limit the application of decisive, should be given great respect by our courts. It is clear that Article
the provision under the principle of ejusdem generis, nevertheless such 36 was taken by the Family Code Revision Committee from Canon 1095 of
root cause must be identified as a psychological illness and its the New Code of Canon Law, which became effective in 1983 and which
incapacitating nature fully explained. Expert evidence may be given by provides:
qualified psychiatrists and clinical psychologists.
“The following are incapable of contracting marriage: Those who
(3) The incapacity must be proven to be existing at “the time are unable to assume the essential obligations of marriage due to causes
of the celebration” of the marriage. The evidence must show that the of psychological nature.”
illness was existing when the parties exchanged their “I do's.” The
manifestation of the illness need not be perceivable at such time, but the Since the purpose of including such provision in our Family Code is
illness itself must have attached at such moment, or prior thereto. to harmonize our civil laws with the religious faith of our people, it stands
to reason that to achieve such harmonization, great persuasive weight
(4) Such incapacity must also be shown to be medically or should be given to decisions of such appellate tribunal. Ideally— subject to
clinically permanent or incurable. Such incurability may be absolute or our law on evidence—what is decreed as canonically invalid should also be
even relative only in regard to the other spouse, not necessarily absolutely decreed civilly void.
against everyone of the same sex. Furthermore, such incapacity must be
relevant to the assumption of marriage obligations, not necessarily to This is one instance where, in view of the evident source and
those not related to marriage, like the exercise of a profession or purpose of the Family Code provision, contemporaneous religious
employment in a job. Hence, a pediatrician may be effective in diagnosing interpretation is to be given persuasive effect. Here, the State and the
illnesses of children and prescribing medicine to cure them but may not be Church—while remaining independent, separate and apart from each other
—shall walk together in synodal cadence towards the same goal of
protecting and cherishing marriage and the family as the inviolable base of
the nation. of experts and researchers in psychological disciplines, and by decisions of church

tribunals.”
(8) The trial court must order the prosecuting attorney or fiscal
and the Solicitor General to appear as counsel for the state. No decision
shall be handed down unless the Solicitor General issues a certification,
which will be quoted in the decision, briefly stating therein his reasons for In hindsight, it may have been inappropriate for the Court to impose a rigid
his agreement or opposition, as the case may be, to the petition. The
set of rules, as the one in Molina, in resolving all cases of psychological
Solicitor General, along with the prosecuting attorney, shall submit to the
court such certification within fifteen (15) days from the date the case is incapacity. Understandably, the Court was then alarmed by the deluge of petitions
deemed submitted for resolution of the court. The Solicitor General shall
discharge the equivalent function of the defensor vinculi contemplated for the dissolution of marital bonds, and was sensitive to the OSG’s exaggeration of
under Canon 1095.[47]
Article 36 as the “most liberal divorce procedure in the world.”[50] The unintended

consequences of Molina, however, has taken its toll on people who have to live
Noteworthy is that in Molina, while the majority of the Court’s membership with deviant behavior, moral insanity and sociopathic personality anomaly, which,
concurred in the ponencia of then Associate Justice (later Chief Justice) Artemio V. like termites, consume little by little the very foundation of their families, our basic
Panganiban, three justices concurred “in the result” and another three—including, social institutions. Far from what was intended by the Court, Molina has become a
as aforesaid, Justice Romero—took pains to compose their individual separate strait-jacket, forcing all sizes to fit into and be bound by it. Wittingly or unwittingly,
opinions. Then Justice Teodoro R. Padilla even emphasized that “each case must the Court, in conveniently applying Molina, has allowed diagnosed sociopaths,
be judged, not on the basis of a priori assumptions, predelictions or schizophrenics, nymphomaniacs, narcissists and the like, to continuously debase
generalizations, but according to its own facts. In the field of psychological and pervert the sanctity of marriage. Ironically, the Roman Rota has annulled
incapacity as a ground for annulment of marriage, it is trite to say that no case is marriages on account of the personality disorders of the said individuals.[51]
on ‘all fours’ with another case. The trial judge must take pains in examining the

factual milieu and the appellate court must, as much as possible, avoid The Court need not worry about the possible abuse of the remedy provided
[48]
substituting its own judgment for that of the trial court.” by Article 36, for there are ample safeguards against this contingency, among

which is the intervention by the State, through the public prosecutor, to guard
[49]
Predictably, however, in resolving subsequent cases, the Court has against collusion between the parties and/or fabrication of evidence.[52] The Court
applied the aforesaid standards, without too much regard for the law’s clear should rather be alarmed by the rising number of cases involving marital abuse,
intention that each case is to be treated differently, as “courts should child abuse, domestic violence and incestuous rape.
interpret the provision on a case-to-case basis; guided by experience, the findings
In dissolving marital bonds on account of either party’s psychological predilections or generalizations but according to its own facts. And, to repeat for

incapacity, the Court is not demolishing the foundation of families, but it is actually emphasis, courts should interpret the provision on a case-to-case basis; guided by

protecting the sanctity of marriage, because it refuses to allow a person afflicted experience, the findings of experts and researchers in psychological disciplines,

with a psychological disorder, who cannot comply with or assume the essential and by decisions of church tribunals.

marital obligations, from remaining in that sacred bond. It may be stressed that

the infliction of physical violence, constitutional indolence or laziness, drug II.

dependence or addiction, and psychosexual anomaly are manifestations of a

sociopathic personality anomaly.[53] Let it be noted that in Article 36, there is no We now examine the instant case.

marriage to speak of in the first place, as the same is void from the very beginning.
[54]
To indulge in imagery, the declaration of nullity under Article 36 will simply The parties’ whirlwind relationship lasted more or less six (6) months. They

provide a decent burial to a stillborn marriage. met in January 1996, eloped in March, exchanged marital vows in May, and parted

ways in June. The psychologist who provided expert testimony found both parties

The prospect of a possible remarriage by the freed spouses should not psychologically incapacitated. Petitioner’s behavioral pattern falls under the

pose too much of a concern for the Court. First and foremost, because it is none of classification of dependent personality disorder, and respondent’s, that of the

its business. And second, because the judicial declaration of psychological narcissistic and antisocial personality disorder.[56]

incapacity operates as a warning or a lesson learned. On one hand, the normal

spouse would have become vigilant, and never again marry a person with a By the very nature of Article 36, courts, despite having the primary task

personality disorder. On the other hand, a would-be spouse of the psychologically and burden of decision-making, must not discount but, instead, must

incapacitated runs the risk of the latter’s disorder recurring in their marriage. consider as decisive evidence the expert opinion on the psychological and

mental temperaments of the parties.[57]

Lest it be misunderstood, we are not suggesting the abandonment

of Molina in this case. We simply declare that, as aptly stated by Justice Dante O. Justice Romero explained this in Molina, as follows:

Tinga in Antonio v. Reyes,[55] there is need to emphasize other perspectives as well


Furthermore, and equally significant, the professional opinion of a
which should govern the disposition of petitions for declaration of nullity under psychological expert became increasingly important in such cases. Data
about the person's entire life, both before and after the ceremony, were
Article 36. At the risk of being redundant, we reiterate once more the principle
presented to these experts and they were asked to give professional
that each case must be judged, not on the basis of a priori assumptions, opinions about a party's mental capacity at the time of the wedding. These
opinions were rarely challenged and tended to be accepted as decisive “The courts consider the following elements crucial to the
evidence of lack of valid consent. marital commitment: (1) a permanent and faithful commitment to
the marriage partner; (2) openness to children and partner; (3)
The Church took pains to point out that its new openness in this stability; (4) emotional maturity; (5) financial responsibility; (6) an
area did not amount to the addition of new grounds for annulment, but ability to cope with the ordinary stresses and strains of marriage,
rather was an accommodation by the Church to the advances made in etc.”
psychology during the past decades. There was now the expertise to
provide the all-important connecting link between a marriage breakdown Fr. Green goes on to speak about some of the psychological conditions that
and premarital causes. might lead to the failure of a marriage:

During the 1970s, the Church broadened its whole idea of marriage “At stake is a type of constitutional impairment precluding conjugal
from that of a legal contract to that of a covenant. The result of this was communion even with the best intentions of the parties. Among
that it could no longer be assumed in annulment casesthat a person who the psychic factors possibly giving rise to his or her inability to
could intellectually understand the concept of marriage could necessarily fulfill marital obligations are the following: (1) antisocial personality
give valid consent to marry. The ability to both grasp and assume the real with its fundamental lack of loyalty to persons or sense of moral
obligations of a mature, lifelong commitment are now considered a values; (2) hyperesthesia, where the individual has no real freedom
necessary prerequisite to valid matrimonial consent. of sexual choice; (3) the inadequate personality where personal
responses consistently fall short of reasonable expectations.
Rotal decisions continued applying the concept of incipient
psychological incapacity, “not only to sexual anomalies but to all kinds of xxxx
personality disorders that incapacitate a spouse or both spouses from
assuming or carrying out the essential obligations of marriage. For The psychological grounds are the best approach for
marriage . . . is not merely cohabitation or the right of the spouses to each anyone who doubts whether he or she has a case for an annulment
other's body for heterosexual acts, but is, in its totality the right to the on any other terms. A situation that does not fit into any of the
community of the whole of life; i.e., the right to a developing lifelong more traditional categories often fits very easily into the
relationship. Rotal decisions since 1973 have refined the meaning of psychological category.
psychological or psychic capacity for marriage as presupposing the
development of an adult personality; as meaning the capacity of the As new as the psychological grounds are, experts are
spouses to give themselves to each other and to accept the other as a already detecting a shift in their use. Whereas originally the
distinct person; that the spouses must be ‘other oriented’ since the emphasis was on the parties' inability to exercise proper judgment
obligations of marriage are rooted in a self-giving love; and that the at the time of the marriage (lack of due discretion), recent cases
spouses must have the capacity for interpersonal relationship because seem to be concentrating on the parties' incapacity to assume or
marriage is more than just a physical reality but involves a true carry out their responsibilities and obligations as promised (lack of
intertwining of personalities. The fulfillment of the obligations of marriage due competence). An advantage to using the ground of lack of due
depends, according to Church decisions, on the strength of this competence is that at the time the marriage was entered into civil
interpersonal relationship. A serious incapacity for interpersonal sharing divorce and breakup of the family almost always is proof of
and support is held to impair the relationship and consequently, the ability someone's failure to carry out marital responsibilities as
to fulfill the essential marital obligations. The marital capacity of one promised at the time the marriage was entered into.”[58]
spouse is not considered in isolation but in reference to the fundamental
relationship to the other spouse.

Fr. Green, in an article in Catholic Mind, lists six elements Hernandez v. Court of Appeals[59] emphasizes the importance of presenting
necessary to the mature marital relationship: expert testimony to establish the precise cause of a party’s psychological
incapacity, and to show that it existed at the inception of the marriage. And
A group of disorders involving behaviors or traits that are characteristic of
as Marcos v. Marcos[60] asserts, there is no requirement that the person to be a person’s recent and long-term functioning. Patterns of perceiving and
thinking are not usually limited to isolated episodes but are deeply
declared psychologically incapacitated be personally examined by a physician, if
ingrained, inflexible, maladaptive and severe enough to cause the
the totality of evidence presented is enough to sustain a finding of psychological individual mental stress or anxieties or to interfere with interpersonal
relationships and normal functioning. Personality disorders are often
incapacity.[61] Verily, the evidence must show a link, medical or the like, between recognizable by adolescence or earlier, continue through adulthood and
become less obvious in middle or old age. An individual may have more
the acts that manifest psychological incapacity and the psychological disorder than one personality disorder at a time.
itself.
The common factor among individuals who have personality
disorders, despite a variety of character traits, is the way in which the
disorder leads to pervasive problems in social and occupational
This is not to mention, but we mention nevertheless for emphasis, that the adjustment. Some individuals with personality disorders are perceived by
others as overdramatic, paranoid, obnoxious or even criminal, without an
presentation of expert proof presupposes a thorough and in-depth assessment of
awareness of their behaviors. Such qualities may lead to trouble getting
the parties by the psychologist or expert, for a conclusive diagnosis of a grave, along with other people, as well as difficulties in other areas of life and
often a tendency to blame others for their problems. Other individuals
severe and incurable presence of psychological incapacity.[62] Parenthetically, the with personality disorders are not unpleasant or difficult to work with but
tend to be lonely, isolated or dependent. Such traits can lead to
Court, at this point, finds it fitting to suggest the inclusion in the Rule on interpersonal difficulties, reduced self-esteem and dissatisfaction with life.
Declaration of Absolute Nullity of Void Marriages and Annulment of Voidable
Causes of Personality Disorders Different mental health
Marriages,[63] an option for the trial judge to refer the case to a court-appointed viewpoints propose a variety of causes of personality disorders. These
include Freudian, genetic factors, neurobiologic theories and brain wave
psychologist/expert for an independent assessment and evaluation of the activity.
psychological state of the parties. This will assist the courts, who are no experts in
Freudian Sigmund Freud believed that fixation at certain stages of
the field of psychology, to arrive at an intelligent and judicious determination of development led to certain personality types. Thus, some disorders as
described in the Diagnostic and Statistical Manual of Mental Disorders (3d
the case. The rule, however, does not dispense with the parties’ prerogative to ed., rev.) are derived from his oral, anal and phallic character
types. Demanding and dependent behavior (dependent and passive-
present their own expert witnesses. aggressive) was thought to derive from fixation at the oral
stage. Characteristics of obsessionality, rigidity and emotional aloofness
were thought to derive from fixation at the anal stage; fixation at the
Going back, in the case at bench, the psychological assessment, which we phallic stage was thought to lead to shallowness and an inability to engage
in intimate relationships. However, later researchers have found little
consider as adequate, produced the findings that both parties are afflicted with evidence that early childhood events or fixation at certain stages of
development lead to specific personality patterns.
personality disorders—to repeat, dependent personality disorder for petitioner, and

narcissistic and antisocial personality disorder for respondent. We note that The Genetic Factors Researchers have found that there may be a
genetic factor involved in the etiology of antisocial and borderline
Encyclopedia of Mental Health discusses personality disorders as follows—
personality disorders; there is less evidence of inheritance of other
personality disorders. Some family, adoption and twin studies suggest that
schizotypal personality may be related to genetic factors. A personality disorder characterized by a pattern of dependent and
submissive behavior. Such individuals usually lack self-esteem and
Neurobiologic Theories In individuals who have borderline frequently belittle their capabilities; they fear criticism and are easily hurt
personality, researchers have found that low cerebrospinal fluid 5- by others’ comments. At times they actually bring about dominance by
hydroxyindoleacetic acid (5-HIAA) negatively correlated with measures of others through a quest for overprotection.
aggression and a past history of suicide attempts. Schizotypal personality
has been associated with low platelet monoamine oxidase (MAO) activity Dependent personality disorder usually begins in early
and impaired smooth pursuit eye movement. adulthood. Individuals who have this disorder may be unable to make
everyday decisions without advice or reassurance from others, may allow
Brain Wave Activity Abnormalities in electroencephalograph (EEG) have others to make most of their important decisions (such as where to live),
been reported in antisocial personality for many years; slow wave is the tend to agree with people even when they believe they are wrong, have
most widely reported abnormality. A study of borderline patients reported difficulty starting projects or doing things on their own, volunteer to do
that 38 percent had at least marginal EEG abnormalities, compared with things that are demeaning in order to get approval from other people, feel
19 percent in a control group. uncomfortable or helpless when alone and are often preoccupied with fears
of being abandoned.[65]
Types of Disorders According to the American Psychiatric
Association’s Diagnostic and Statistical Manual of Mental Disorders (3d ed.,
rev., 1987), or DSM-III-R, personality disorders are categorized into three and antisocial personality disorder described, as follows—
major clusters:

Cluster A: Paranoid, schizoid and schizotypal personality disorders. Characteristics include a consistent pattern of behavior that is intolerant of
Individuals who have these disorders often appear to have odd or eccentric the conventional behavioral limitations imposed by a society, an inability
habits and traits. to sustain a job over a period of years, disregard for the rights of others
(either through exploitiveness or criminal behavior), frequent physical
Cluster B: Antisocial, borderline, histrionic and narcissistic personality fights and, quite commonly, child or spouse abuse without remorse and a
disorders. Individuals who have these disorders often appear overly tendency to blame others. There is often a façade of charm and even
emotional, erratic and dramatic. sophistication that masks disregard, lack of remorse for mistreatment of
others and the need to control others.
Cluster C: Avoidant, dependent, obsessive-compulsive and passive-
aggressive personality disorders. Individuals who have these disorders Although characteristics of this disorder describe criminals, they also may
often appear anxious or fearful. befit some individuals who are prominent in business or politics whose
habits of self-centeredness and disregard for the rights of others may be
The DSM-III-R also lists another category, “personality disorder not hidden prior to a public scandal.
otherwise specified,” that can be used for other specific personality
disorders or for mixed conditions that do not qualify as any of the specific During the 19th century, this type of personality disorder was referred to as
personality disorders. moral insanity. The term described immoral, guiltless behavior that was
not accompanied by impairments in reasoning.
Individuals with diagnosable personality disorders usually have
long-term concerns, and thus therapy may be long-term.[64] According to the classification system used in the Diagnostic and
Statistical Manual of Mental Disorders (3d ed., rev. 1987), anti-social
personality disorder is one of the four “dramatic” personality disorders, the
Dependent personality disorder is characterized in the following manner— others being borderline, histrionic and narcissistic.[66]
her tendency to blame others, and her intolerance of the conventional behavioral

The seriousness of the diagnosis and the gravity of the disorders considered, the limitations imposed by society.[68] Moreover, as shown in this case, respondent is

Court, in this case, finds as decisive the psychological evaluation made by the impulsive and domineering; she had no qualms in manipulating petitioner with her

expert witness; and, thus, rules that the marriage of the parties is null and void on threats of blackmail and of committing suicide.

ground of both parties’ psychological incapacity. We further consider that the trial

court, which had a first-hand view of the witnesses’ deportment, arrived at the Both parties being afflicted with grave, severe and incurable psychological

same conclusion. incapacity, the precipitous marriage which they contracted on April 23, 1996 is

thus, declared null and void.

Indeed, petitioner, who is afflicted with dependent personality disorder, cannot

assume the essential marital obligations of living together, observing love, respect WHEREFORE, premises considered, the petition for review

and fidelity and rendering help and support, for he is unable to make everyday on certiorari is GRANTED. The August 5, 2003 Decision and the January 19, 2004

decisions without advice from others, allows others to make most of his important Resolution of the Court of Appeals in CA-G.R. CV No. 71867

decisions (such as where to live), tends to agree with people even when he are REVERSED and SET ASIDE, and the Decision, dated July 30,

believes they are wrong, has difficulty doing things on his own, volunteers to do 2001, REINSTATED.

things that are demeaning in order to get approval from other people, feels

uncomfortable or helpless when alone and is often preoccupied with fears of being SO ORDERED.

abandoned.[67] As clearly shown in this case, petitioner followed everything dictated

to him by the persons around him. He is insecure, weak and gullible, has no sense

of his identity as a person, has no cohesive self to speak of, and has no goals and

clear direction in life.

Although on a different plane, the same may also be said of the respondent. Her

being afflicted with antisocial personality disorder makes her unable to assume the

essential marital obligations. This finding takes into account her disregard for the

rights of others, her abuse, mistreatment and control of others without remorse,
Antonio Valdes and Consuelo Gomez were married on 05 January 1971.
Begotten during the marriage were five children. In a petition, dated 22 June 1992,
Valdes sought the declaration of nullity of the marriage pursuant to Article 36 of
the Family Code (docketed Civil Case No. Q-92-12539, Regional Trial Court of
Quezon City, Branch 102). After hearing the parties following the joinder of issues,
the trial court,[1] in its decision of 29 July 1994, granted the petition; viz:

"WHEREFORE, judgment is hereby rendered as follows:

"(1) The marriage of petitioner Antonio Valdes and respondent Consuelo Gomez-
Valdes is hereby declared null and void under Article 36 of the Family Code on the
ground of their mutual psychological incapacity to comply with their essential
marital obligations;

"(2) The three older children, Carlos Enrique III, Antonio Quintin and Angela
Rosario shall choose which parent they would want to stay with.

"Stella Eloisa and Joaquin Pedro shall be placed in the custody of their mother,
herein respondent Consuelo Gomez-Valdes.

"The petitioner and respondent shall have visitation rights over the children who
are in the custody of the other.

"(3) The petitioner and respondent are directed to start proceedings on the
FIRST DIVISION liquidation of their common properties as defined by Article 147 of the Family
[G.R. No. 122749. July 31, 1996] Code, and to comply with the provisions of Articles 50, 51 and 52 of the same
code, within thirty (30) days from notice of this decision.
ANTONIO A. S. VALDES, petitioner, vs. REGIONAL TRIAL COURT, BRANCH 102,
QUEZON CITY, and CONSUELO M. GOMEZ-VALDES,respondents. "Let a copy of this decision be furnished the Local Civil Registrar of Mandaluyong,
Metro Manila, for proper recording in the registry of marriages."[2] (Italics ours)
DECISION
VITUG, J.: Consuelo Gomez sought a clarification of that portion of the decision directing
compliance with Articles 50, 51 and 52 of the Family Code. She asserted that the
Family Code contained no provisions on the procedure for the liquidation of
The petition for review bewails, purely on a question of law, an alleged error common property in "unions without marriage." Parenthetically, during the hearing
committed by the Regional Trial Court in Civil Case No. Q-92-12539. Petitioner on the motion, the children filed a joint affidavit expressing their desire to remain
avers that the court a quo has failed to apply the correct law that should govern with their father, Antonio Valdes, herein petitioner.
the disposition of a family dwelling in a situation where a marriage is declared
void ab initio because of psychological incapacity on the part of either or both of In an Order, dated 05 May 1995, the trial court made the following
the parties to the contract. clarification:

The pertinent facts giving rise to this incident are, by and large, not in dispute.
"Consequently, considering that Article 147 of the Family Code explicitly provides "III
that the property acquired by both parties during their union, in the absence of
proof to the contrary, are presumed to have been obtained through the joint "Assuming arguendo that Article 147 applies to marriages declared void ab
efforts of the parties and will be owned by them in equal shares, plaintiff and initio on the ground of the psychological incapacity of a spouse, the same may be
defendant will own their 'family home' and all their other properties for that read consistently with Article 129.
matter in equal shares.
"IV
"In the liquidation and partition of the properties owned in common by the plaintiff
and defendant, the provisions on co-ownership found in the Civil Code shall
apply."[3] (Italics supplied) "It is necessary to determine the parent with whom majority of the children wish to
stay."[5]
In addressing specifically the issue regarding the disposition of the family
dwelling, the trial court said: The trial court correctly applied the law. In a void marriage, regardless of the
cause thereof, the property relations of the parties during the period of
cohabitation is governed by the provisions of Article 147 or Article 148, such as the
"Considering that this Court has already declared the marriage between petitioner case may be, of the Family Code. Article 147 is a remake of Article 144 of the Civil
and respondent as null and void ab initio, pursuant to Art. 147, the property Code as interpreted and so applied in previous cases;[6] it provides:
regime of petitioner and respondent shall be governed by therules on co-
ownership.
"ART. 147. When a man and a woman who are capacitated to marry each other,
live exclusively with each other as husband and wife without the benefit of
"The provisions of Articles 102 and 129 of the Family Code finds no application marriage or under a void marriage, their wages and salaries shall be owned by
since Article 102 refers to the procedure for the liquidation of the conjugal them in equal shares and the property acquired by both of them through their
partnership property and Article 129 refers to the procedure for the liquidation of work or industry shall be governed by the rules on co-ownership.
the absolute community of property."[4]
"In the absence of proof to the contrary, properties acquired while they lived
Petitioner moved for a reconsideration of the order. The motion was denied on together shall be presumed to have been obtained by their joint efforts, work or
30 October 1995. industry, and shall be owned by them in equal shares. For purposes of this Article,
In his recourse to this Court, petitioner submits that Articles 50, 51 and 52 of a party who did not participate in the acquisition by the other party of any property
the Family Code should be held controlling; he argues that: shall be deemed to have contributed jointly in the acquisition thereof if the
former's efforts consisted in the care and maintenance of the family and of the
"I household.

"Article 147 of the Family Code does not apply to cases where the parties are "Neither party can encumber or dispose by acts inter vivos of his or her share in
psychological incapacitated. the property acquired during cohabitation and owned in common, without the
consent of the other, until after the termination of their cohabitation.
"II
"When only one of the parties to a void marriage is in good faith, the share of the
"Articles 50, 51 and 52 in relation to Articles 102 and 129 of the Family Code party in bad faith in the co-ownership shall be forfeited in favor of their common
govern the disposition of the family dwelling in cases where a marriage is declared children. In case of default of or waiver by any or all of the common children or
void ab initio, including a marriage declared void by reason of the psychological their descendants, each vacant share shall belong to the respective surviving
incapacity of the spouses. descendants. In the absence of descendants, such share shall belong to the
innocent party. In all cases, the forfeiture shall take place upon termination of the In deciding to take further cognizance of the issue on the settlement of the
cohabitation." parties' common property, the trial court acted neither imprudently nor
precipitately; a court which has jurisdiction to declare the marriage a nullity must
This peculiar kind of co-ownership applies when a man and a woman, be deemed likewise clothed with authority to resolve incidental and consequential
suffering no legal impediment to marry each other, so exclusively live together as matters. Nor did it commit a reversible error in ruling that petitioner and private
husband and wife under a void marriage or without the benefit of marriage. The respondent own the "family home" and all their common property in equal shares,
term "capacitated" in the provision (in the first paragraph of the law) refers to as well as in concluding that, in the liquidation and partition of the property owned
the legal capacity of a party to contract marriage, i.e., any "male or female of the in common by them, the provisions on co-ownership under the Civil Code, not
age of eighteen years or upwards not under any of the impediments mentioned in Articles 50, 51 and 52, in relation to Articles 102 and 129,[12] of the Family Code,
Articles 37 and 38"[7] of the Code. should aptly prevail. The rules set up to govern the liquidation of either the
absolute community or the conjugal partnership of gains, the property regimes
Under this property regime, property acquired by both spouses through recognized for valid and voidable marriages (in the latter case until the contract is
their work and industry shall be governed by the rules on equal co-ownership. Any annulled ),are irrelevant to the liquidation of the co-ownership that exists between
property acquired during the union isprima facie presumed to have been obtained common-law spouses. The first paragraph of Article 50 of the Family Code,
through their joint efforts. A party who did not participate in the acquisition of the applying paragraphs (2 ),(3 ),(4) and (5) of Article 43, [13] relates only, by its explicit
property shall still be considered as having contributed thereto jointly if said terms, to voidable marriages and, exceptionally, to void marriages under Article
party's "efforts consisted in the care and maintenance of the family 40[14] of the Code, i.e., the declaration of nullity of a subsequent marriage
household."[8] Unlike the conjugal partnership of gains, the fruits of the couple's contracted by a spouse of a prior void marriage before the latter is judicially
separate property are not included in the co-ownership. declared void. The latter is a special rule that somehow recognizes the philosophy
and an old doctrine that void marriages are inexistent from the very beginning and
Article 147 of the Family Code, in substance and to the above extent, has no judicial decree is necessary to establish their nullity. In now requiring
clarified Article 144 of the Civil Code; in addition, the law now expressly provides for purposes of remarriage, the declaration of nullity by final judgment of the
that — previously contracted void marriage, the present law aims to do away with any
(a) Neither party can dispose or encumber by act inter vivos his or her continuing uncertainty on the status of the second marriage. It is not then illogical
share in co-ownership property, without the consent of the other, during the period for the provisions of Article 43, in relation to Articles 41[15] and 42,[16] of the Family
of cohabitation; and Code, on the effects of the termination of a subsequent marriage contracted
during the subsistence of a previous marriage to be made applicable pro hac vice.
(b) In the case of a void marriage, any party in bad faith shall forfeit In all other cases, it is not to be assumed that the law has also meant to have
his or her share in the co-ownership in favor of their common children; in default coincident property relations, on the one hand, between spouses in valid and
thereof or waiver by any or all of the common children, each vacant share shall voidable marriages (before annulment) and, on the other, between common-law
belong to the respective surviving descendants, or still in default thereof, to the spouses or spouses of void marriages, leaving to ordain, in the latter case, the
innocent party. The forfeiture shall take place upon the termination of the ordinary rules on co-ownership subject to the provision of Article 147 and Article
cohabitation[9] or declaration of nullity of the marriage.[10] 148 of the Family Code. It must be stressed, nevertheless, even as it may merely
state the obvious, that the provisions of the Family Code on the "family home," i.e.,
When the common-law spouses suffer from a legal impediment to marry or the provisions found in Title V, Chapter 2, of the Family Code, remain in force and
when they do not live exclusively with each other (as husband and wife ),only the effect regardless of the property regime of the spouses.
property acquired by both of them through their actual joint contribution of
money, property or industry shall be owned in common and in proportion to their WHEREFORE, the questioned orders, dated 05 May 1995 and 30 October
respective contributions. Such contributions and corresponding shares, however, 1995, of the trial court are AFFIRMED. No costs.
are prima facie presumed to be equal. The share of any party who is married to
another shall accrue to the absolute community or conjugal partnership, as the SO ORDERED.
case may be, if so existing under a valid marriage. If the party who has acted in
bad faith is not validly married to another, his or her share shall be forfeited in the
manner already heretofore expressed.[11]
Republic of the Philippines
SUPREME COURT
Manila

FIRST DIVISION

G.R. No. 132529. February 2, 2001

SUSAN NICDAO CARIÑO, petitioner,


vs.
SUSAN YEE CARIÑO, respondent.

DECISION

YNARES-SANTIAGO, J.:

The issue for resolution in the case at bar hinges on the validity of the two
marriages contracted by the deceased SPO4 Santiago S. Cariño, whose “death
benefits” is now the subject of the controversy between the two Susans whom he
married.1âwphi1.nêt

Before this Court is a petition for review on certiorari seeking to set aside the
decision 1 of the Court of Appeals in CA-G.R. CV No. 51263, which affirmed in
toto the decision 2 of the Regional Trial Court of Quezon City, Branch 87, in Civil
Case No. Q-93-18632.

During the lifetime of the late SPO4 Santiago S. Cariño, he contracted two
marriages, the first was on June 20, 1969, with petitioner Susan Nicdao Cariño
(hereafter referred to as Susan Nicdao), with whom he had two offsprings, namely,
Sahlee and Sandee Cariño; and the second was on November 10, 1992, with
respondent Susan Yee Cariño (hereafter referred to as Susan Yee), with whom he
had no children in their almost ten year cohabitation starting way back in 1982.

In 1988, SPO4 Santiago S. Cariño became ill and bedridden due to diabetes
complicated by pulmonary tuberculosis. He passed away on November 23, 1992,
under the care of Susan Yee, who spent for his medical and burial expenses. Both
petitioner and respondent filed claims for monetary benefits and financial
assistance pertaining to the deceased from various government agencies.
Petitioner Susan Nicdao was able to collect a total of P146,000.00 from “MBAI,
PCCUI, Commutation, NAPOLCOM, [and] Pag-ibig,” 3 while respondent Susan Yee On appeal by petitioner to the Court of Appeals, the latter affirmed in toto the
received a total of P21,000.00 from “GSIS Life, Burial (GSIS) and burial (SSS).” 4 decision of the trial court. Hence, the instant petition, contending that:

On December 14, 1993, respondent Susan Yee filed the instant case for collection I.
of sum of money against petitioner Susan Nicdao praying, inter alia, that petitioner
be ordered to return to her at least one-half of the one hundred forty-six thousand THE HONORABLE COURT OF APPEALS GRAVELY ERRED IN AFFIRMING THE
pesos (P146,000.00) collectively denominated as “death benefits” which she FINDINGS OF THE LOWER COURT THAT VDA. DE CONSUEGRA VS. GSIS IS
(petitioner) received from “MBAI, PCCUI, Commutation, NAPOLCOM, [and] Pag- APPLICABLE TO THE CASE AT BAR.
ibig.” Despite service of summons, petitioner failed to file her answer, prompting
the trial court to declare her in default.
II.
Respondent Susan Yee admitted that her marriage to the deceased took place
during the subsistence of, and without first obtaining a judicial declaration of THE HONORABLE COURT OF APPEALS GRAVELY ERRED IN APPLYING EQUITY IN THE
nullity of, the marriage between petitioner and the deceased. She, however, INSTANT CASE INSTEAD OF THE CLEAR AND UNEQUIVOCAL MANDATE OF THE
claimed that she had no knowledge of the previous marriage and that she became FAMILY CODE.
aware of it only at the funeral of the deceased, where she met petitioner who
introduced herself as the wife of the deceased. To bolster her action for collection III.
of sum of money, respondent contended that the marriage of petitioner and the
deceased is void ab initio because the same was solemnized without the required THE HONORABLE COURT OF APPEALS GRAVELY ERRED IN NOT FINDING THE CASE
marriage license. In support thereof, respondent presented: 1) the marriage OF VDA. DE CONSUEGRA VS GSIS TO HAVE BEEN MODIFIED, AMENDED AND EVEN
certificate of the deceased and the petitioner which bears no marriage license ABANDONED BY THE ENACTMENT OF THE FAMILY CODE.8
number; 5 and 2) a certification dated March 9, 1994, from the Local Civil Registrar
of San Juan, Metro Manila, which reads –
Under Article 40 of the Family Code, the absolute nullity of a previous marriage
may be invoked for purposes of remarriage on the basis solely of a final judgment
This is to certify that this Office has no record of marriage license of the spouses declaring such previous marriage void. Meaning, where the absolute nullity of a
SANTIAGO CARINO (sic) and SUSAN NICDAO, who are married in this municipality previous marriage is sought to be invoked for purposes of contracting a second
on June 20, 1969. Hence, we cannot issue as requested a true copy or transcription marriage, the sole basis acceptable in law, for said projected marriage to be free
of Marriage License number from the records of this archives. from legal infirmity, is a final judgment declaring the previous marriage
void. 9However, for purposes other than remarriage, no judicial action is necessary
This certification is issued upon the request of Mrs. Susan Yee Cariño for whatever to declare a marriage an absolute nullity. For other purposes, such as but not
legal purpose it may serve. 6 limited to the determination of heirship, legitimacy or illegitimacy of a child,
settlement of estate, dissolution of property regime, or a criminal case for that
On August 28, 1995, the trial court ruled in favor of respondent, Susan Yee, holding matter, the court may pass upon the validity of marriage even after the death of
as follows: the parties thereto, and even in a suit not directly instituted to question the
validity of said marriage, so long as it is essential to the determination of the
case. 10 In such instances, evidence must be adduced, testimonial or documentary,
WHEREFORE, the defendant is hereby ordered to pay the plaintiff the sum of to prove the existence of grounds rendering such a previous marriage an absolute
P73,000.00, half of the amount which was paid to her in the form of death benefits nullity. These need not be limited solely to an earlier final judgment of a court
arising from the death of SPO4 Santiago S. Cariño, plus attorney’s fees in the declaring such previous marriage void. 11
amount of P5,000.00, and costs of suit.
It is clear therefore that the Court is clothed with sufficient authority to pass upon
IT IS SO ORDERED. 7 the validity of the two marriages in this case, as the same is essential to the
determination of who is rightfully entitled to the subject “death benefits” of the Accordingly, the declaration in the instant case of nullity of the previous marriage
deceased. of the deceased and petitioner Susan Nicdao does not validate the second
marriage of the deceased with respondent Susan Yee. The fact remains that their
Under the Civil Code, which was the law in force when the marriage of petitioner marriage was solemnized without first obtaining a judicial decree declaring the
Susan Nicdao and the deceased was solemnized in 1969, a valid marriage license marriage of petitioner Susan Nicdao and the deceased void. Hence, the marriage
is a requisite of marriage, 12 and the absence thereof, subject to certain of respondent Susan Yee and the deceased is, likewise, void ab initio.
exceptions, 13 renders the marriage void ab initio. 14
One of the effects of the declaration of nullity of marriage is the separation of the
In the case at bar, there is no question that the marriage of petitioner and the property of the spouses according to the applicable property regime. 16 Considering
deceased does not fall within the marriages exempt from the license requirement. that the two marriages are void ab initio, the applicable property regime would not
A marriage license, therefore, was indispensable to the validity of their marriage. be absolute community or conjugal partnership of property, but rather, be
This notwithstanding, the records reveal that the marriage contract of petitioner governed by the provisions of Articles 147 and 148 of the Family Code on
and the deceased bears no marriage license number and, as certified by the Local “Property Regime of Unions Without Marriage.”
Civil Registrar of San Juan, Metro Manila, their office has no record of such
marriage license. In Republic v. Court of Appeals, 15 the Court held that such a Under Article 148 of the Family Code, which refers to the property regime of
certification is adequate to prove the non-issuance of a marriage license. Absent bigamous marriages, adulterous relationships, relationships in a state of
any circumstance of suspicion, as in the present case, the certification issued by concubine, relationships where both man and woman are married to other
the local civil registrar enjoys probative value, he being the officer charged under persons, multiple alliances of the same married man, 17 -
the law to keep a record of all data relative to the issuance of a marriage license.
“... [O]nly the properties acquired by both of the parties through their actual joint
Such being the case, the presumed validity of the marriage of petitioner and the contribution of money, property, or industry shall be owned by them in common in
deceased has been sufficiently overcome. It then became the burden of petitioner proportion to their respective contributions ...”
to prove that their marriage is valid and that they secured the required marriage
license. Although she was declared in default before the trial court, petitioner could In this property regime, the properties acquired by the parties through their actual
have squarely met the issue and explained the absence of a marriage license in joint contribution shall belong to the co-ownership. Wages and salaries earned
her pleadings before the Court of Appeals and this Court. But petitioner by each party belong to him or her exclusively. Then too, contributions in the form
conveniently avoided the issue and chose to refrain from pursuing an argument of care of the home, children and household, or spiritual or moral inspiration, are
that will put her case in jeopardy. Hence, the presumed validity of their marriage excluded in this regime. 18
cannot stand.
Considering that the marriage of respondent Susan Yee and the deceased is a
It is beyond cavil, therefore, that the marriage between petitioner Susan Nicdao bigamous marriage, having been solemnized during the subsistence of a previous
and the deceased, having been solemnized without the necessary marriage marriage then presumed to be valid (between petitioner and the deceased), the
license, and not being one of the marriages exempt from the marriage license application of Article 148 is therefore in order.
requirement, is undoubtedly void ab initio.
The disputed P146,000.00 from MBAI [AFP Mutual Benefit Association, Inc.],
It does not follow from the foregoing disquisition, however, that since the marriage NAPOLCOM, Commutation, Pag-ibig, and PCCUI, are clearly renumerations,
of petitioner and the deceased is declared void ab initio, the “death benefits” incentives and benefits from governmental agencies earned by the deceased as a
under scrutiny would now be awarded to respondent Susan Yee. To reiterate, police officer. Unless respondent Susan Yee presents proof to the contrary, it could
under Article 40 of the Family Code, for purposes of remarriage, there must first be not be said that she contributed money, property or industry in the acquisition of
a prior judicial declaration of the nullity of a previous marriage, though void, before these monetary benefits. Hence, they are not owned in common by respondent
a party can enter into a second marriage, otherwise, the second marriage would and the deceased, but belong to the deceased alone and respondent has no right
also be void. whatsoever to claim the same. By intestate succession, the said “death benefits”
of the deceased shall pass to his legal heirs. And, respondent, not being the legal petitioner as her share in the property regime, and the other half pertaining to the
wife of the deceased is not one of them. deceased shall pass by, intestate succession, to his legal heirs, namely, his
children with Susan Nicdao.
As to the property regime of petitioner Susan Nicdao and the deceased, Article 147
of the Family Code governs. This article applies to unions of parties who are legally In affirming the decision of the trial court, the Court of Appeals relied on the case
capacitated and not barred by any impediment to contract marriage, but whose of Vda. de Consuegra v. Government Service Insurance System, 20 where the Court
marriage is nonetheless void for other reasons, like the absence of a marriage awarded one-half of the retirement benefits of the deceased to the first wife and
license. Article 147 of the Family Code reads - the other half, to the second wife, holding that:

Art. 147. When a man and a woman who are capacitated to marry each other, live “... [S]ince the defendant’s first marriage has not been dissolved or declared void
exclusively with each other as husband and wife without the benefit of marriage or the conjugal partnership established by that marriage has not ceased. Nor has the
under a void marriage, their wages and salaries shall be owned by them in equal first wife lost or relinquished her status as putative heir of her husband under the
shares and the property acquired by both of them through their work or industry new Civil Code, entitled to share in his estate upon his death should she survive
shall be governed by the rules on co-ownership. him. Consequently, whether as conjugal partner in a still subsisting marriage or as
such putative heir she has an interest in the husband’s share in the property here
In the absence of proof to the contrary, properties acquired while they lived in dispute....” And with respect to the right of the second wife, this Court observed
together shall be presumed to have been obtained by their joint efforts, work or that although the second marriage can be presumed to be void ab initio as it was
industry, and shall be owned by them in equal shares. For purposes of this Article, celebrated while the first marriage was still subsisting, still there is need for
a party who did not participate in the acquisition by the other party of any judicial declaration of such nullity. And inasmuch as the conjugal partnership
property shall be deemed to have contributed jointly in the acquisition thereof if formed by the second marriage was dissolved before judicial declaration of its
the former’s efforts consisted in the care and maintenance of the family and of the nullity, “[t]he only just and equitable solution in this case would be to recognize
household. the right of the second wife to her share of one-half in the property acquired by
her and her husband, and consider the other half as pertaining to the conjugal
partnership of the first marriage.” 21
xxx
It should be stressed, however, that the aforecited decision is premised on the rule
When only one of the parties to a void marriage is in good faith, the share of the which requires a prior and separate judicial declaration of nullity of marriage. This
party in bad faith in the co-ownership shall be forfeited in favor of their common is the reason why in the said case, the Court determined the rights of the parties in
children. In case of default of or waiver by any or all of the common children or accordance with their existing property regime.
their descendants, each vacant share shall belong to the respective surviving
descendants. In the absence of descendants, such share shall belong to the
innocent party. In all cases, the forfeiture shall take place upon termination of the In Domingo v. Court of Appeals, 22 however, the Court, construing Article 40 of the
cohabitation. Family Code, clarified that a prior and separate declaration of nullity of a marriage
is an all important condition precedent only for purposes of remarriage. That is, if a
party who is previously married wishes to contract a second marriage, he or she
In contrast to Article 148, under the foregoing article, wages and salaries earned has to obtain first a judicial decree declaring the first marriage void, before he or
by either party during the cohabitation shall be owned by the parties in equal she could contract said second marriage, otherwise the second marriage would be
shares and will be divided equally between them, even if only one party earned the void. The same rule applies even if the first marriage is patently void because the
wages and the other did not contribute thereto. 19 Conformably, even if the parties are not free to determine for themselves the validity or invalidity or their
disputed “death benefits” were earned by the deceased alone as a government marriage. However, for purposes other than to remarry, like for filing a case for
employee, Article 147 creates a co-ownership in respect thereto, entitling the collection of sum of money anchored on a marriage claimed to be valid, no prior
petitioner to share one-half thereof. As there is no allegation of bad faith in the and separate judicial declaration of nullity is necessary. All that a party has to do is
present case, both parties of the first marriage are presumed to be in good faith. to present evidence, testimonial or documentary, that would prove that the
Thus, one-half of the subject “death benefits” under scrutiny shall go to the marriage from which his or her rights flow is in fact valid. Thereupon, the court, if
material to the determination of the issues before it, will rule on the status of the
marriage involved and proceed to determine the rights of the parties in
accordance with the applicable laws and jurisprudence. Thus, in Niñal v.
Bayadog, 23 the Court explained:

[T]he court may pass upon the validity of marriage even in a suit not directly
instituted to question the same so long as it is essential to the determination of
the case. This is without prejudice to any issue that may arise in the case. When
such need arises, a final judgment of declaration of nullity is necessary even if the
purpose is other than to remarry. The clause “on the basis of a final judgment
declaring such previous marriage void” in Article 40 of the Family Code connoted
that such final judgment need not be obtained only for purpose of remarriage.

WHEREFORE, the petition is GRANTED, and the decision of the Court of Appeals in
CA-G.R. CV No. 51263 which affirmed the decision of the Regional Trial Court of
Quezon City ordering petitioner to pay respondent the sum of P73,000.00 plus
attorney’s fees in the amount of P5,000.00, is REVERSED and SET ASIDE. The
complaint in Civil Case No. Q-93-18632, is hereby DISMISSED. No pronouncement
as to costs.1âwphi1.

THIRD DIVISION

[G.R. No. 163604. May 6, 2005]


REPUBLIC OF THE PHILIPPINES, petitioner, vs. THE HON. COURT OF APPEALS amounting to lack of jurisdiction, yet, not even a copy could be found in the
(Twentieth Division), HON. PRESIDING JUDGE FORTUNITO L. MADRONA, records. On this score alone, the petition should have been dismissed outright in
RTC-BR. 35 and APOLINARIA MALINAO JOMOC, respondents. accordance with Sec. 3, Rule 46 of the Rules of Court.

DECISION However, despite the procedural lapses, the Court resolves to delve deeper into
the substantive issue of the validity/nullity of the assailed order.
CARPIO-MORALES, J.:
The principal issue in this case is whether a petition for declaration of the
In “In the Matter of Declaration of Presumptive Death of Absentee Spouse presumptive death of a person is in the nature of a special proceeding. If
Clemente P. Jomoc, Apolinaria Malinao Jomoc, petitioner,” the Ormoc City, Regional it is, the period to appeal is 30 days and the party appealing must, in addition to a
Trial Court, Branch 35, byOrder of September 29, 1999,[1] granted the petition on notice of appeal, file with the trial court a record on appeal to perfect its appeal.
the basis of the Commissioner’s Report[2] and accordingly declared the absentee Otherwise, if the petition is an ordinary action, the period to appeal is 15 days from
spouse, who had left his petitioner-wife nine years earlier, presumptively dead. notice or decision or final order appealed from and the appeal is perfected by filing
a notice of appeal (Section 3, Rule 41, Rules of Court).
In granting the petition, the trial judge, Judge Fortunito L. Madrona, cited
Article 41, par. 2 of the Family Code. Said article provides that for the purpose of
contracting a valid subsequent marriage during the subsistence of a previous As defined in Section 3(a), Rule 1 of the Rules of Court, “a civil action is one by
marriage where the prior spouse had been absent for four consecutive years, the which a party sues another for the enforcement or protection of a right, or the
spouse present must institute summary proceedings for the declaration of prevention of redress of a wrong” while a special proceeding under Section 3(c) of
presumptive death of the absentee spouse, without prejudice to the effect of the the same rule is defined as “a remedy by which a party seeks to establish a status,
reappearance of the absent spouse. a right or a particular fact (Heirs of Yaptinchay, et al. v. Del Rosario, et al., G.R. No.
124320, March 2, 1999).
The Republic, through the Office of the Solicitor General, sought to appeal the
trial court’s order by filing a Notice of Appeal.[3]
Considering the aforementioned distinction, this Court finds that the instant
By Order of November 22, 1999s,[4] the trial court, noting that no record of petition is in the nature of a special proceeding and not an ordinary
appeal was filed and served “as required by and pursuant to Sec. 2(a), Rule 41 of action. The petition merely seeks for a declaration by the trial court of the
the 1997 Rules of Civil Procedure, the present case being a special proceeding,” presumptive death of absentee spouse Clemente Jomoc. It does not seek the
disapproved the Notice of Appeal. enforcement or protection of a right or the prevention or redress of a wrong.
Neither does it involve a demand of right or a cause of action that can be enforced
The Republic’s Motion for Reconsideration of the trial court’s order of against any person.
disapproval having been denied by Order of January 13, 2000,[5] it filed a Petition
for Certiorari[6] before the Court of Appeals, it contending that the declaration of
On the basis of the foregoing discussion, the subject Order dated January 13, 2000
presumptive death of a person under Article 41 of the Family Code is not a special
denying OSG’s Motion for Reconsideration of the Order dated November 22, 1999
proceeding or a case of multiple or separate appeals requiring a record on appeal.
disapproving its Notice of Appeal was correctly issued. The instant petition,
By Decision of May 5, 2004,[7] the Court of Appeals denied the Republic’s being in the nature of a special proceeding, OSG should have filed, in
petition on procedural and substantive grounds in this wise: addition to its Notice of Appeal, a record on appeal in accordance with
Section 19 of the Interim Rules and Guidelines to Implement BP Blg. 129 and
Section 2(a), Rule 41 of the Rules of Court . . . (Emphasis and underscoring
At the outset, it must be stressed that the petition is not sufficient in form. It failed
supplied)
to attach to its petition a certified true copy of the assailed Order dated January 13,
2000 [denying its Motion for Reconsideration of the November 22, 1999 Order
disapproving its Notice of Appeal]. Moreover, the petition questioned the [trial The Republic (petitioner) insists that the declaration of presumptive death
court’s] Order dated August 15, 1999, which declared Clemente Jomoc under Article 41 of the Family Code is not a special proceeding involving multiple
presumptively dead, likewise for having been issued with grave abuse of discretion
or separate appeals where a record on appeal shall be filed and served in like The pertinent provision of the Civil Code on presumption of death provides:
manner.
Petitioner cites Rule 109 of the Revised Rules of Court which enumerates the Art. 390. After an absence of seven years, it being unknown whether or not the
cases wherein multiple appeals are allowed and a record on appeal is required for absentee still lives, he shall be presumed dead for all purposes, except for those
an appeal to be perfected. The petition for the declaration of presumptive death of of succession.
an absent spouse not being included in the enumeration, petitioner contends that
a mere notice of appeal suffices. x x x (Emphasis and underscoring supplied)
By Resolution of December 15, 2004, [8] this Court, noting that copy of the
September 27, 2004 Resolution[9] requiring respondent to file her comment on the Upon the other hand, Article 41 of the Family Code, upon which the trial court
petition was returned unserved with postmaster’s notation “Party refused,” anchored its grant of the petition for the declaration of presumptive death of the
Resolved to consider that copy deemed served upon her. absent spouse, provides:

The pertinent provisions on the General Provisions on Special Art. 41. A marriage contracted by any person during the subsistence of a previous
Proceedings, Part II of the Revised Rules of Court entitled SPECIAL PROCEEDINGS, marriage shall be null and void, unless before the celebration of the subsequent
read: marriage, the prior spouses had been absent for four consecutive years and the
spouse present had a well-founded belief that the absent spouses was already
RULE 72 dead. In case of disappearance where there is danger of death under the
SUBJECT MATTER AND APPLICABILITY circumstances set forth in the provisions of Article 391 of the Civil Code, an
OF GENERAL RULES absence of only two years shall be sufficient.

Section 1. Subject matter of special proceedings. – Rules of special proceedings For the purpose pf contracting the subsequent marriage under the preceding
are provided for in the following: paragraph, the spouses present must institute a summary proceeding as
provided in this Code for the declaration of presumptive death of the absentee,
(a) Settlement of estate of deceased persons; without prejudice to the effect of a reappearance of the absent spouse. (Emphasis
(b) Escheat; and underscoring supplied)
(c) Guardianship and custody of children;
(d) Trustees; Rule 41, Section 2 of the Revised Rules of Court, on Modes of Appeal, invoked
(e) Adoption; by the trial court in disapproving petitioner’s Notice of Appeal, provides:
(f) Rescission and revocation of adoption;
(g) Hospitalization of insane persons; Sec. 2. Modes of appeal. -
(h) Habeas corpus;
(i) Change of name;
(j) Voluntary dissolution of corporations; (a) Ordinary appeal. - The appeal to the Court of Appeals in cases decided by the
(k) Judicial approval of voluntary recognition of minor natural children; Regional Trial Court in the exercise of its original jurisdiction shall be taken by filing
(l) Constitution of family home; a notice of appeal with the court which rendered the judgment or final order
(m) Declaration of absence and death; appealed from and serving a copy thereof upon the adverse party. No record on
(n) Cancellation or correction of entries in the civil registry. appeal shall be required except in special proceedings and other cases of
multiple or separate appeals where the law or these Rules so require. In
such cases, the record on appeal shall be filed and served in like manner.
Sec. 2. Applicability of rules of civil actions. – In the absence of special provisions, (Emphasis and underscoring supplied)
the rules provided for in ordinary actions shall be, as far as practicable, applicable
in special proceedings. (Underscoring supplied)
xxx
By the trial court’s citation of Article 41 of the Family Code, it is gathered that As for petitioner’s failure to submit copy of the trial court’s order granting the
the petition of Apolinaria Jomoc to have her absent spouse declared presumptively petition for declaration of presumptive death, contrary to the appellate court’s
dead had for its purpose her desire to contract a valid subsequent marriage. Ergo, observation that petitioner was also assailing it, petitioner’s 8-page petition[10] filed
the petition for that purpose is a “summary proceeding,” following above-quoted in said court does not so reflect, it merely having assailed the order disapproving
Art. 41, paragraph 2 of the Family Code. the Notice of Appeal.
Since Title XI of the Family Code, entitled SUMMARY JUDICIAL PROCEEDING IN WHEREFORE, the assailed May 5, 2004 Decision of the Court of Appeals is
THE FAMILY LAW, contains the following provision, inter alia: hereby REVERSED and SET ASIDE. Let the case be REMANDED to it for appropriate
action in light of the foregoing discussion.
xxx SO ORDERED.

Art. 238. Unless modified by the Supreme Court, the procedural rules in this Title
shall apply in all cases provided for in this Codes requiring summary court
proceedings. Such cases shall be decided in an expeditious manner
without regard to technical rules. (Emphasis and underscoring supplied)

x x x,

there is no doubt that the petition of Apolinaria Jomoc required, and is, therefore, a
summary proceeding under the Family Code, not a special proceeding under the
Revised Rules of Court appeal for which calls for the filing of a Record on Appeal. It
being a summary ordinary proceeding, the filing of a Notice of Appeal from the trial
court’s order sufficed.
That the Family Code provision on repeal, Art. 254, provides as follows:

Art. 254. Titles III, IV, V, VI, VII, VIII, IX, XI and XV of Book I of Republic Act No. 386,
otherwise known as the Civil Code of the Philippines, as amended, and Articles 17,
18, 19, 27, 28, 29, 30, 31, 39, 40, 41 and 42 of Presidential Decree No. 603,
otherwise known as the Child and Youth Welfare Code, as amended, and all laws,
decrees, executive orders, proclamations rules and regulations, or parts
thereof, inconsistent therewith are hereby repealed, (Emphasis and
underscoring supplied),

seals the case in petitioner’s favor.


Finally, on the alleged procedural flaw in petitioner’s petition before the
appellate court. Petitioner’s failure to attach to his petition before the appellate
court a copy of the trial court’s order denying its motion for reconsideration of the
disapproval of its Notice of Appeal is not necessarily fatal, for the rules of
procedure are not to be applied in a technical sense. Given the issue raised before
it by petitioner, what the appellate court should have done was to direct petitioner
to comply with the rule.
Eduardo was charged with bigamy in an Information filed on November 7, 2001,

the accusatory portion of which reads:

SECOND DIVISION

EDUARDO P. MANUEL, G.R. No. 165842


Petitioner,
Present:

PUNO, J., Chairman,


AUSTRIA-MARTINEZ, - versus -
CALLEJO, SR.,
TINGA, and
CHICO-NAZARIO,* JJ.

Promulgated:
PEOPLE OF THE PHILIPPINES,
Respondent. November 29, 2005

x-----------------------------------------------------------------------------------------x

DECISION

CALLEJO, SR., J.:

Before us is a petition for review on certiorari of the Decision[1] of the Court of

Appeals (CA) in CA-G.R. CR No. 26877, affirming the Decision[2] of the Regional Trial

Court (RTC) of Baguio City, Branch 3, convicting Eduardo P. Manuel of bigamy in

Criminal Case No. 19562-R.


That on or about the 22nd day of April, 1996, in the City of Baguio,
Philippines, and within the jurisdiction of this Honorable Court, the above-
named accused EDUARDO P. MANUEL, being then previously and legally
married to RUBYLUS [GAÑA] and without the said marriage having been
legally dissolved, did then and there willfully, unlawfully and feloniously
contract a second marriage with TINA GANDALERA-MANUEL, herein
complainant, who does not know the existence of the first marriage of said
EDUARDO P. MANUEL to Rubylus [Gaña].
[3]
CONTRARY TO LAW.

The prosecution adduced evidence that on July 28, 1975, Eduardo was married to

Rubylus Gaña before Msgr. Feliciano Santos in Makati, which was then still a

municipality of the Province of Rizal.[4] He met the private complainant Tina B.

Gandalera in Dagupan City sometime in January 1996. She stayed in Bonuan,

Dagupan City for two days looking for a friend. Tina was then 21 years old, a

Computer Secretarial student, while Eduardo was 39. Afterwards, Eduardo went to

Baguio City to visit her. Eventually, as one thing led to another, they went to a

motel where, despite Tina’s resistance, Eduardo succeeded in having his way with

her. Eduardo proposed marriage on several occasions, assuring her that he was

single. Eduardo even brought his parents to Baguio City to meet Tina’s parents,

and was assured by them that their son was still single.

Tina finally agreed to marry Eduardo sometime in the first week of March

1996. They were married on April 22, 1996 before Judge Antonio C. Reyes, the

Presiding Judge of the RTC of Baguio City, Branch 61.[5] It appeared in their

marriage contract that Eduardo was “single.”


Eduardo further claimed that he was only forced to marry his first wife
The couple was happy during the first three years of their married life.
because she threatened to commit suicide unless he did so. Rubylus was charged
Through their joint efforts, they were able to build their home in Cypress Point,
with estafa in 1975 and thereafter imprisoned. He visited her in jail after three
Irisan, Baguio City. However, starting 1999, Manuel started making himself scarce
months and never saw her again. He insisted that he married Tina believing that
and went to their house only twice or thrice a year. Tina was jobless, and
his first marriage was no longer valid because he had not heard from Rubylus for
whenever she asked money from Eduardo, he would slap her.[6] Sometime in
more than 20 years.
January 2001, Eduardo took all his clothes, left, and did not return. Worse, he

stopped giving financial support. After trial, the court rendered judgment on July 2, 2002 finding Eduardo guilty

beyond reasonable doubt of bigamy. He was sentenced to an indeterminate


Sometime in August 2001, Tina became curious and made inquiries from
penalty of from six (6) years and ten (10) months, as minimum, to ten (10) years,
the National Statistics Office (NSO) in Manila where she learned that Eduardo had
as maximum, and directed to indemnify the private complainant Tina Gandalera
been previously married. She secured an NSO-certified copy of the marriage
the amount of P200,000.00 by way of moral damages, plus costs of suit.[9]
[7]
contract. She was so embarrassed and humiliated when she learned that

Eduardo was in fact already married when they exchanged their own vows.[8] The trial court ruled that the prosecution was able to prove beyond reasonable

doubt all the elements of bigamy under Article 349 of the Revised Penal Code. It
For his part, Eduardo testified that he met Tina sometime in 1995 in a bar where
declared that Eduardo’s belief, that his first marriage had been dissolved because
she worked as a Guest Relations Officer (GRO). He fell in love with her and
of his first wife’s 20-year absence, even if true, did not exculpate him from liability
married her. He informed Tina of his previous marriage to Rubylus Gaña, but she
for bigamy. Citing the ruling of this Court in People v. Bitdu,[10] the trial court
nevertheless agreed to marry him. Their marital relationship was in order until this
further ruled that even if the private complainant had known that Eduardo had
one time when he noticed that she had a “love-bite” on her neck. He then
been previously married, the latter would still be criminally liable for bigamy.
abandoned her. Eduardo further testified that he declared he was “single” in his

marriage contract with Tina because he believed in good faith that his first Eduardo appealed the decision to the CA. He alleged that he was not

marriage was invalid. He did not know that he had to go to court to seek for the criminally liable for bigamy because when he married the private complainant, he

nullification of his first marriage before marrying Tina. did so in good faith and without any malicious intent. He maintained that at the

time that he married the private complainant, he was of the honest belief that his
first marriage no longer subsisted. He insisted that conformably to Article 3 of the

Revised Penal Code, there must be malice for one to be criminally liable for a

felony. He was not motivated by malice in marrying the private complainant

because he did so only out of his overwhelming desire to have a fruitful marriage.

He posited that the trial court should have taken into account Article 390 of the

New Civil Code. To support his view, the appellant cited the rulings of this Court

in United States v. Peñalosa[11] and Manahan, Jr. v. Court of Appeals.[12]

The Office of the Solicitor General (OSG) averred that Eduardo’s defense of

good faith and reliance on the Court’s ruling in United States v. Enriquez[13] were

misplaced; what is applicable is Article 41 of the Family Code, which amended

Article 390 of the Civil Code. Citing the ruling of this Court in Republic v. Nolasco,
[14]
the OSG further posited that as provided in Article 41 of the Family Code, there

is a need for a judicial declaration of presumptive death of the absent spouse to

enable the present spouse to marry. Even assuming that the first marriage was

void, the parties thereto should not be permitted to judge for themselves the

nullity of the marriage;


the matter should be submitted to the proper court for resolution.

Moreover, the OSG maintained, the private complainant’s knowledge of the first

marriage would not afford any relief since bigamy is an offense against the State

and not just against the private complainant.

However, the OSG agreed with the appellant that the penalty imposed by

the trial court was erroneous and sought the affirmance of the decision appealed

from with modification.

On June 18, 2004, the CA rendered judgment affirming the decision of the RTC with

modification as to the penalty of the accused. It ruled that the prosecution was

able to prove all the elements of bigamy. Contrary to the contention of the

appellant, Article 41 of the Family Code should apply. Before Manuel could lawfully

marry the private complainant, there should have been a judicial declaration of

Gaña’s presumptive death as the absent spouse. The appellate court cited the

rulings of this Court in Mercado v. Tan[15] and Domingo v. Court of Appeals[16] to

support its ruling. The dispositive portion of the decision reads:

WHEREFORE, in the light of the foregoing, the Decision


promulgated on July 31, 2002 is hereby MODIFIED to reflect, as it hereby
reflects, that accused-appellant is sentenced to an indeterminate penalty
of two (2) years, four (4) months and one (1) day of prision correccional, as
minimum, to ten (10) years of prision mayor as maximum. Said Decision
is AFFIRMED in all other respects.

SO ORDERED.[17]
Eduardo, now the petitioner, filed the instant petition for review on

certiorari, insisting that:

I
THE COURT OF APPEALS COMMITTED REVERSIBLE ERROR OF LAW WHEN IT
RULED THAT PETITIONER’S FIRST WIFE CANNOT BE LEGALLY PRESUMED
DEAD UNDER ARTICLE 390 OF THE CIVIL CODE AS THERE WAS NO JUDICIAL
DECLARATION OF PRESUMPTIVE DEATH AS PROVIDED FOR UNDER ARTICLE
41 OF THE FAMILY CODE.

II
THE COURT OF APPEALS COMMITTED REVERSIBLE ERROR OF LAW WHEN IT
AFFIRMED THE AWARD OF PHP200,000.00 AS MORAL DAMAGES AS
IT HAS NO BASIS INFACT AND IN LAW.[18]

The petitioner maintains that the prosecution failed to prove the second element of

the felony, i.e., that the marriage has not been legally dissolved or, in case his/her

spouse is absent, the absent spouse could not yet be presumed dead under the

Civil Code. He avers that when he married Gandalera in 1996, Gaña had been

“absent” for 21 years since 1975; under Article 390 of the Civil Code, she was

presumed dead as a matter of law. He points out that, under the first paragraph of

Article 390 of the Civil Code, one who has been absent for seven years, whether or

not he/she is still alive, shall be presumed dead for all purposes except for

succession, while the second paragraph refers to the rule on legal presumption of

death with respect to succession.

The petitioner asserts that the presumptive death of the absent spouse

arises by operation of law upon the satisfaction of two requirements: the


specified period and the present spouse’s reasonable belief that the In its comment on the petition, the OSG maintains that the decision of the CA

absentee is dead. He insists that he was able to prove that he had not heard from affirming the petitioner’s conviction is in accord with the law, jurisprudence and

his first wife since 1975 and that he had no knowledge of her whereabouts or the evidence on record. To bolster its claim, the OSG cited the ruling of this Court

whether she was still alive; hence, under Article 41 of the Family Code, the in Republic v. Nolasco.[19]

presumptive death of Gaña had arisen by operation of law, as the two


The petition is denied for lack of merit.
requirements of Article 390 of the Civil Code are present. The petitioner concludes

that he should thus be acquitted of the crime of bigamy. Article 349 of the Revised Penal Code, which defines and penalizes bigamy, reads:

Art. 349. Bigamy. – The penalty of prision mayor shall be imposed upon
The petitioner insists that except for the period of absences provided for in any person who shall contract a second or subsequent marriage before the
former marriage has been legally dissolved, or before the absent spouse
Article 390 of the Civil Code, the rule therein on legal presumptions remains valid has been declared presumptively dead by means of a judgment rendered
in the proper proceedings.
and effective. Nowhere under Article 390 of the Civil Code does it require that

there must first be a judicial declaration of death before the rule on presumptive

death would apply. He further asserts that contrary to the rulings of the trial and The provision was taken from Article 486 of the Spanish Penal Code, to wit:

appellate courts, the requirement of a judicial declaration of presumptive death El que contrajere Segundo o ulterior matrimonio sin hallarse legítimamente
disuelto el anterior, será castigado con la pena de prision mayor. xxx
under Article 41 of the Family Code is only a requirement for the validity of the

subsequent or second marriage.


The reason why bigamy is considered a felony is to preserve and ensure the

The petitioner, likewise, avers that the trial court and the CA erred in awarding juridical tie of marriage established by law.[20] The phrase “or before the absent

moral damages in favor of the private complainant. The private complainant was a spouse had been declared presumptively dead by means of a judgment rendered

“GRO” before he married her, and even knew that he was already married. He in the proper proceedings” was incorporated in the Revised Penal Code because

genuinely loved and took care of her and gave her financial support. He also the drafters of the law were of the impression that “in consonance with the civil

pointed out that she had an illicit relationship with a lover whom she brought to law which provides for the presumption of death after an absence of a number of

their house. years, the judicial declaration of presumed death like annulment of

marriage should be a justification for bigamy.”[21]


For the accused to be held guilty of bigamy, the prosecution is burdened to prove

the felony: (a) he/she has been legally married; and (b) he/she contracts a

subsequent marriage without the former marriage having been lawfully dissolved.

The felony is consummated on the celebration of the second marriage or

subsequent marriage.[22] It is essential in the prosecution for bigamy that the

alleged second marriage, having all the essential requirements, would be valid

were it not for the subsistence of the first marriage.[23] Viada avers that a third

element of the crime is that the second marriage must be entered into with

fraudulent intent (intencion fraudulente) which is an essential element of a felony

by dolo.[24] On the other hand, Cuello Calon is of the view that there are only two

elements of bigamy: (1) the existence of a marriage that has not been lawfully

dissolved; and (2) the celebration of a second marriage. It does not matter

whether the first marriage is void or voidable because such marriages have

juridical effects until lawfully dissolved by a court of competent jurisdiction. [25] As

the Court ruled in Domingo v. Court of Appeals[26] and Mercado v. Tan,[27] under the

Family Code of the Philippines, the judicial declaration of nullity of a previous

marriage is a defense.
In his commentary on the Revised Penal Code, Albert is of the same Indeed, it is a legal presumption of law that every man intends the natural or

view as Viada and declared that there are three (3) elements of bigamy: (1) an probable consequence of his voluntary act in the absence of proof to the contrary,

undissolved marriage; (2) a new marriage; and (3) fraudulent intention constituting and such presumption must prevail unless a reasonable doubt exists from a

the felony of the act.[28] He explained that: consideration of the whole evidence.[34]

… This last element is not stated in Article 349, because it is undoubtedly


incorporated in the principle antedating all codes, and, constituting one of For one to be criminally liable for a felony by dolo, there must be a confluence of
the landmarks of our Penal Code, that, where there is no willfulness there
is no crime. There is no willfulness if the subject both an evil act and an evil intent. Actus non facit reum, nisi mens sit rea.[35]
believes that the former marriage has been dissolved; and this must be
supported by very strong evidence, and if this be produced, the act shall
In the present case, the prosecution proved that the petitioner was married to
be deemed not to constitute a crime. Thus, a person who contracts a
second marriage in the reasonable and well-founded belief that his first Gaña in 1975, and such marriage was not judicially declared a nullity; hence, the
wife is dead, because of the many years that have elapsed since he has
had any news of her whereabouts, in spite of his endeavors to find her, marriage is presumed to subsist.[36] The prosecution also proved that the
cannot be deemed guilty of the crime of bigamy, because there is no
fraudulent intent which is one of the essential elements of the crime.[29] petitioner married the private complainant in 1996, long after the effectivity of the

Family Code.

As gleaned from the Information in the RTC, the petitioner is charged with bigamy,
The petitioner is presumed to have acted with malice or evil intent when
a felony by dolo (deceit). Article 3, paragraph 2 of the Revised Penal Code
he married the private complainant. As a general rule, mistake of fact or good
provides that there is deceit when the act is performed with deliberate intent.
faith of the accused is a valid defense in a prosecution for a felony by dolo; such
Indeed, a felony cannot exist without intent. Since a felony by dolo is classified as
defense negates malice or criminal intent. However, ignorance of the law is not an
an intentional felony, it is deemed voluntary.[30] Although the words “with malice”
excuse because everyone is presumed to know the law. Ignorantia legis neminem
do not appear in Article 3 of the Revised Penal Code, such phrase is included in the
excusat.
word “voluntary.”[31]

It was the burden of the petitioner to prove his defense that when he
Malice is a mental state or condition prompting the doing of an overt act
married the private complainant in 1996, he was of the well-grounded belief
without legal excuse or justification from which another suffers injury. [32] When the

act or omission defined by law as a felony is proved to have been done or

committed by the accused, the law presumes it to have been intentional. [33]
that his first wife was already dead, as he had not heard from her for more every safeguard and its severance only in the manner prescribed and the causes

than 20 years since 1975. He should have adduced in evidence a decision of a specified by law.[37] The laws regulating civil marriages are necessary to serve the

competent court declaring the presumptive death of his first wife as required by interest, safety, good order, comfort or general welfare of the community and the

Article 349 of the Revised Penal Code, in relation to Article 41 of the Family Code. parties can waive nothing essential to the validity of the proceedings. A civil

Such judicial declaration also constitutes proof that the petitioner acted in good marriage anchors an ordered society by encouraging stable relationships over

faith, and would negate criminal intent on his part when he transient ones; it enhances the welfare of the community.

married the private complainant and, as a consequence, he could not be held


In a real sense, there are three parties to every civil marriage; two willing
guilty of bigamy in such case. The petitioner, however, failed to discharge his
spouses and an approving State. On marriage, the parties assume new relations
burden.
to each other and the State touching nearly on every aspect of life and death. The

The phrase “or before the absent spouse has been declared presumptively consequences of an invalid marriage to the parties, to innocent parties and to

dead by means of a judgment rendered on the proceedings” in Article 349 of the society, are so serious that the law may well take means calculated to ensure the

Revised Penal Code was not an aggroupment of empty or useless words. The procurement of the most positive evidence of death of the first spouse or of the

requirement for a judgment of the presumptive death of the absent spouse is for presumptive death of the absent spouse[38] after the lapse of the period provided

the benefit of the spouse present, as protection from the pains and the for under the law. One such means is the requirement of the declaration by a

consequences of a second marriage, precisely because he/she could be charged competent court of the presumptive death of an absent spouse as proof that the

and convicted of bigamy if the defense of good faith based on mere testimony is present spouse contracts a subsequent marriage on a well-grounded belief of the

found incredible. death of the first spouse. Indeed, “men readily believe what they wish to be true,”

is a maxim of the old jurists. To sustain a second marriage and to vacate a first
The requirement of judicial declaration is also for the benefit of the State.
because one of the parties believed the other to be dead would make the
Under Article II, Section 12 of the Constitution, the “State shall protect and
existence of the marital relation determinable, not by certain extrinsic facts, easily
strengthen the family as a basic autonomous social institution.” Marriage is a
capable of forensic ascertainment and proof, but by the subjective condition of
social institution of the highest importance. Public policy, good morals and the
individuals.[39] Only with such proof can marriage be treated as so dissolved as to
interest of society require that the marital relation should be surrounded with
permit second marriages.[40] Thus, Article 349 of the Revised Penal Code has made
Art. 41. A marriage contracted by any person during the subsistence of a
the dissolution of marriage dependent not only upon the personal belief of parties, previous marriage shall be null and void, unless before the celebration of
the subsequent marriage, the prior spouse had been absent for four
but upon certain objective facts easily capable of accurate judicial cognizance, consecutive years and the spouse present had a well-founded belief that
[41] the absent spouse was already dead. In case of disappearance where
namely, a judgment of the presumptive death of the absent spouse. there is danger of death under the circumstances set forth in the
provisions of Article 391 of the Civil Code, an absence of only two years
shall be sufficient.
The petitioner’s sole reliance on Article 390 of the Civil Code as basis for

his acquittal for bigamy is misplaced. For the purpose of contracting the subsequent marriage under the
preceding paragraph, the spouse present must institute a summary
proceeding as provided in this Court for the declaration of presumptive
Articles 390 and 391 of the Civil Code provide – death of the absentee, without prejudice to the effect of reappearance of
the absent spouse.[43]
Art. 390. After an absence of seven years, it being unknown whether or
not, the absentee still lives, he shall be presumed dead for all purposes,
except for those of succession.
With the effectivity of the Family Code,[44] the period of seven years under
The absentee shall not be presumed dead for the purpose of opening his the first paragraph of Article 390 of the Civil Code was reduced to four consecutive
succession till after an absence of ten years. If he disappeared after the
age of seventy-five years, an absence of five years shall be sufficient in years. Thus, before the spouse present may contract a subsequent marriage, he
order that his succession may be opened.
or she must institute summary proceedings for the declaration of the presumptive
Art. 391. The following shall be presumed dead for all purposes, including
the division of the estate among the heirs: death of the absentee spouse,[45] without prejudice to the effect of the

(1) A person on board a vessel lost during a sea voyage, or an aeroplane reappearance of the absentee spouse. As explained by this Court in Armas v.
which is missing, who has not been heard of for four years since the loss of
the vessel or aeroplane; Calisterio:[46]
(2) A person in the armed forces who has taken part in war, and has been
missing for four years; In contrast, under the 1988 Family Code, in order that a
(3) A person who has been in danger of death under other circumstances subsequent bigamous marriage may exceptionally be considered valid, the
and his existence has not been known for four years. following conditions must concur, viz.: (a) The prior spouse of the
contracting party must have been absent for four consecutive years, or
two years where there is danger of death under the circumstances stated
in Article 391 of the Civil Code at the time of disappearance; (b) the spouse
The presumption of death of the spouse who had been absent for seven present has a well-founded belief that the absent spouse is already dead;
and (c) there is, unlike the old rule, a judicial declaration of presumptive
years, it being unknown whether or not the absentee still lives, is created by law death of the absentee for which purpose the spouse present can institute a
summary proceeding in court to ask for that declaration. The last
and arises without any necessity of judicial declaration. [42] However, Article 41 of condition is consistent and in consonance with the requirement of judicial
intervention in subsequent marriages as so provided in Article 41, in
the Family Code, which amended the foregoing rules on presumptive death, reads: relation to Article 40, of the Family Code.
presumed dead being unheard from in seven years, would have to be made in

The Court rejects petitioner’s contention that the requirement of instituting another proceeding to have such particular fact finally determined. The Court

a petition for declaration of presumptive death under Article 41 of the Family Code ruled that if a judicial decree declaring a person presumptively dead because he or

is designed merely to enable the spouse present to contract a valid second she had not been heard from in seven years cannot become final and executory

marriage and not for the acquittal of one charged with bigamy. Such provision was even after the lapse of the reglementary period within which an appeal may be

designed to harmonize civil law and Article 349 of the Revised Penal Code, and put taken, for such presumption is still disputable and remains subject to contrary

to rest the confusion spawned by the rulings of this Court and comments of proof, then a petition for such a declaration is useless, unnecessary, superfluous

eminent authorities on Criminal Law. and of no benefit to the petitioner. The Court stated that it should not waste its

valuable time and be made to perform a superfluous and meaningless act.[50] The
As early as March 6, 1937, this Court ruled in Jones v. Hortiguela[47] that, for
Court also took note that a petition for a declaration of the presumptive death of
purposes of the marriage law, it is not necessary to have the former spouse
an absent spouse may even be made in collusion with the other spouse.
judicially declared an absentee before the spouse present may contract a

subsequent marriage. It held that the declaration of absence made in accordance In Lukban v. Republic of the Philippines,[51] the Court declared that the

with the provisions of the Civil Code has for its sole purpose the taking of the words “proper proceedings” in Article 349 of the Revised Penal Code can only refer

necessary precautions for the administration of the estate of the absentee. For the to those authorized by law such as Articles 390 and 391 of the Civil Code which

celebration of civil marriage, however, the law only requires that the former refer to the administration or settlement of the estate of a deceased person.

spouse had been absent for seven consecutive years at the time of the second In Gue v. Republic of the Philippines,[52] the Court rejected the contention of the

marriage, that the spouse present does not know his or her former spouse to be petitioner therein that, under Article 390 of the Civil Code, the courts are

living, that such former spouse is generally reputed to be dead and the spouse authorized to declare the presumptive death of a person after an absence of seven

present so believes at the time of the celebration of the marriage. [48] In In Re years. The Court reiterated its rulings in Szatraw, Lukban and Jones.

Szatraw,[49] the Court declared that a judicial declaration that a person is


Former Chief Justice Ramon C. Aquino was of the view that “the provision
presumptively dead, because he or she had been unheard from in seven years,
of Article 349 or “before the absent spouse has been declared presumptively dead
being a presumption juris tantum only, subject to contrary proof, cannot reach the
by means of a judgment reached in the proper proceedings” is erroneous and
stage of finality or become final; and that proof of actual death of the person
should be considered as not written. He opined that such provision presupposes charged with bigamy if the absentee spouse reappears, he cannot be convicted of

that, if the prior marriage has not been legally dissolved and the absent first the crime. As explained by former Justice Alicia Sempio-Diy:

spouse has not been declared presumptively dead in a proper court proceedings, … Such rulings, however, conflict with Art. 349 of the Revised Penal Code
providing that the present spouse must first ask for a declaration of
the subsequent marriage is bigamous. He maintains that the supposition is not presumptive death of the absent spouse in order not to be guilty of bigamy
in case he or she marries again.
true.[53] A second marriage is bigamous only when the circumstances in
The above Article of the Family Code now clearly provides that for
paragraphs 1 and 2 of Article 83 of the Civil Code are not present. [54] Former
the purpose of the present spouse contracting a second marriage, he or
Senator Ambrosio Padilla was, likewise, of the view that Article 349 seems to she must file a summary proceeding as provided in the Code for the
declaration of the presumptive death of the absentee, without prejudice to
require judicial decree of dissolution or judicial declaration of absence but even the latter’s reappearance. This provision is intended to protect the present
spouse from a criminal prosecution for bigamy under Art. 349 of the
with such decree, a second marriage in good faith will not constitute bigamy. He Revised Penal Code because with the judicial declaration that the missing
spouses presumptively dead, the good faith of the present spouse in
posits that a second marriage, if not illegal, even if it be annullable, should not give contracting a second marriage is already established.[58]

rise to bigamy.[55] Former Justice Luis B. Reyes, on the other hand, was of the view

that in the case of an absent spouse who could not yet be presumed dead Of the same view is former Dean Ernesto L. Pineda (now Undersecretary of
according to the Civil Code, the spouse present cannot be charged and convicted Justice) who wrote that things are now clarified. He says judicial declaration of
[56]
of bigamy in case he/she contracts a second marriage. presumptive death is now authorized for purposes of

The Committee tasked to prepare the Family Code proposed the

amendments of Articles 390 and 391 of the Civil Code to conform to Article 349 of

the Revised Penal Code, in that, in a case where a spouse is absent for the

requisite period, the present spouse may contract a subsequent marriage only

after securing a judgment declaring the presumptive death of the absent spouse to

avoid being charged and convicted of bigamy; the present spouse will have to

adduce evidence that he had a well-founded belief that the absent spouse was

already dead.[57] Such judgment is proof of the good faith of the present spouse

who contracted a subsequent marriage; thus, even if the present spouse is later
remarriage. The present spouse must institute a summary proceeding for Under Article 238 of the Family Code, a petition for a declaration of the

declaration of presumptive death of the absentee, where the ordinary rules of presumptive death of an absent spouse under Article 41 of the Family Code may

procedure in trial will not be followed. Affidavits will suffice, with possible be filed under Articles 239 to 247 of the same Code.[62]

clarificatory examinations of affiants if the Judge finds it necessary for a full grasp
On the second issue, the petitioner, likewise, faults the trial court and the CA for
of the facts. The judgment declaring an absentee as presumptively dead is
awarding moral damages in favor of the private complainant. The petitioner
without prejudice to the effect of reappearance of the said absentee.
maintains that moral damages may be awarded only in any of the cases provided

Dean Pineda further states that before, the weight of authority is that the in Article 2219 of the Civil Code, and bigamy is not one of them. The petitioner

clause “before the absent spouse has been declared presumptively dead x x x” asserts that the appellate court failed to apply its ruling in People v. Bondoc,
[63]
should be disregarded because of Article 83, paragraph 3 of the Civil Code. With where an award of moral damages for bigamy was disallowed. In any case, the

the new law, there is a need to institute a summary proceeding for the declaration petitioner maintains, the private complainant failed to adduce evidence to prove

of the presumptive death of the absentee, otherwise, there is bigamy.[59] moral damages.

According to Retired Supreme Court Justice Florenz D. Regalado, an eminent The appellate court awarded moral damages to the private complainant on

authority on Criminal Law, in some cases where an absentee spouse is believed to its finding that she adduced evidence to prove the same. The appellate court ruled

be dead, there must be a judicial declaration of presumptive death, which could that while bigamy is not included in those cases enumerated in Article 2219 of the

then be made only in the proceedings for the settlement of his estate.[60] Before Civil Code, it is not proscribed from awarding moral damages against the

such declaration, it was held that the remarriage of the other spouse is bigamous petitioner. The appellate court ruled that it is not bound by the following ruling

even if done in good faith.[61] Justice Regalado opined that there were contrary in People v. Bondoc:

views because of the ruling in Jones and the provisions of Article 83(2) of the Civil ... Pero si en dichos asuntos se adjudicaron daños, ello se debió
indedublamente porque el articulo 2219 del Código Civil de Filipinas
Code, which, however, appears to have been set to rest by Article 41 of the Family autoriza la adjudicación de daños morales en los delitos de estupro, rapto,
violación, adulterio o concubinato, y otros actos lascivos, sin incluir en esta
Code, “which requires a summary hearing for the declaration of presumptive death enumeración el delito de bigamia. No existe, por consiguiente, base legal
para adjudicar aquí los daños de P5,000.00 arriba mencionados.[64]
of the absent spouse before the other spouse can remarry.”
(6) Illegal search;
The OSG posits that the findings and ruling of the CA are based on the (7) Libel, slander or any other form of defamation;
(8) Malicious prosecution;
evidence and the law. The OSG, likewise, avers that the CA was not bound by its (9) Acts mentioned in article 309;
(10) Acts and actions referred to in articles 21, 26, 27, 28, 29, 30, 32, 34
ruling in People v. Rodeo. and 35.

The parents of the female seduced, abducted, raped, or abused,


The Court rules against the petitioner.
referred to in No. 3 of this article, may also recover moral damages.

Moral damages include physical suffering, mental anguish, fright, serious The spouse, descendants, ascendants, and brothers and sisters
may bring the action mentioned in No. 9 of this article in the order named.
anxiety, besmirched reputation, wounded feelings, moral shock, social humiliation,

and similar injury. Though incapable of pecuniary computation, moral damages


Thus, the law does not intend that moral damages should be awarded in all cases
may be recovered if they are the proximate result of the defendant’s wrongful act
where the aggrieved party has suffered mental anguish, fright, moral anxieties,
or omission.[65] An award for moral damages requires the confluence of the
besmirched reputation, wounded feelings, moral shock, social humiliation and
following conditions: first, there must be an injury, whether physical, mental or
similar injury arising out of an act or omission of another, otherwise, there would
psychological, clearly sustained by the claimant;second, there must be culpable
not have been any reason for the inclusion of specific acts in Article 2219[67] and
act or omission factually established; third, the wrongful act or omission of the
analogous cases (which refer to those cases bearing analogy or resemblance,
defendant is the proximate cause of the injury sustained by the claimant;
corresponds to some others or resembling, in other respects, as in form,
and fourth, the award of damages is predicated on any of the cases stated in
proportion, relation, etc.)[68]
Article 2219 or Article 2220 of the Civil Code.[66]

Indeed, bigamy is not one of those specifically mentioned in Article 2219 of


Moral damages may be awarded in favor of the offended party only in
the Civil Code in which the offender may be ordered to pay moral damages to the
criminal cases enumerated in Article 2219, paragraphs 1, 3, 4, 5 and 7 of the Civil
private complainant/offended party. Nevertheless, the petitioner is liable to the
Code and analogous cases, viz.:
Art. 2219. Moral damages may be recovered in the following and private complainant for moral damages under Article 2219 in relation to Articles
analogous cases.
19, 20 and 21 of the Civil Code.
(1) A criminal offense resulting in physical injuries;
(2) Quasi-delicts causing physical injuries;
According to Article 19, “every person must, in the exercise of his rights
(3) Seduction, abduction, rape, or other lascivious acts;
(4) Adultery or concubinage; and in the performance of his act with justice, give everyone his due, and observe
(5) Illegal or arbitrary detention or arrest;
honesty and good faith.” This provision contains what is commonly referred to as

the principle of abuse of rights, and sets certain standards which must be observed

not only in the exercise of one’s rights but also in the performance of one’s duties.

The standards are the following: act with justice; give everyone his due; and

observe honesty and good faith. The elements for abuse of rights are: (a) there is

a legal right or duty; (b) exercised in bad faith; and (c) for the sole intent of

prejudicing or injuring another.[69]

Article 20 speaks of the general sanctions of all other provisions of law

which do not especially provide for its own sanction. When a right is exercised in a

manner which does not conform to the standards set forth in the said provision

and results in damage to another, a legal wrong is thereby committed for which

the wrongdoer must be responsible. [70] If the provision does not provide a remedy

for its violation, an action for damages under either Article 20 or Article 21 of the

Civil Code would be proper. Article 20 provides that “every person who, contrary

to law, willfully or negligently causes damage to another shall indemnify the latter

for the same.” On the other hand, Article 21 provides that “any person who

willfully causes loss or injury to another in a manner that is contrary to morals,

good customs or public policy shall compensate the latter for damages.” The

latter provision
is adopted to remedy “the countless gaps in the statutes which leave so

many victims of moral wrongs helpless, even though they have actually suffered

material and moral injury should vouchsafe adequate legal remedy for that untold

number of moral wrongs which it is impossible for human foresight to prove for

specifically in the statutes.” Whether or not the principle of abuse of rights has

been violated resulting in damages under Article 20 or Article 21 of the Civil Code

or other applicable provisions of law depends upon the circumstances of each

case.[71]

In the present case, the petitioner courted the private complainant and proposed

to marry her. He assured her that he was single. He even brought his parents to

the house of the private complainant where he and his parents made the same

assurance – that he was single. Thus, the private complainant agreed to marry the

petitioner, who even stated in the certificate of marriage that he was single. She

lived with the petitioner and dutifully performed her duties as his wife, believing all

the while that he was her lawful husband. For two years or so until the petitioner

heartlessly abandoned her, the private complainant had no inkling that he was

already married to another before they were married.

Thus, the private complainant was an innocent victim of the petitioner’s

chicanery and heartless deception, the fraud consisting not of a single act alone,

but a continuous series of acts. Day by day, he maintained the appearance of

being a lawful husband to the private complainant, who


changed her status from a single woman to a married woman, lost the The Court thus declares that the petitioner’s acts are against public policy as they

consortium, attributes and support of a single man she could have married lawfully undermine and subvert the family as a social institution, good morals and the

and endured mental pain and humiliation, being bound to a man who it turned out interest and general welfare of society.

was not her lawful husband.[72]


Because the private complainant was an innocent victim of the petitioner’s

The Court rules that the petitioner’s collective acts of fraud and deceit perfidy, she is not barred from claiming moral damages. Besides, even

before, during and after his marriage with the private complainant were willful, considerations of public policy would not prevent her from recovery. As held

deliberate and with malice and caused injury to the latter. That she did not sustain in Jekshewitz v. Groswald:[75]

any physical injuries is not a bar to an award for moral damages. Indeed, in Morris Where a person is induced by the fraudulent representation of another to
do an act which, in consequence of such misrepresentation, he believes to
v. Macnab,[73] the New Jersey Supreme Court ruled: be neither illegal nor immoral, but which is in fact a criminal offense, he
has a right of action against the person so inducing him for damages
xxx The defendant cites authorities which indicate that, absent sustained by him in consequence of his having done such act. Burrows v.
physical injuries, damages for shame, humiliation, and mental anguish are Rhodes, [1899] 1 Q.B. 816. In Cooper v. Cooper, 147 Mass. 370, 17 N.E.
not recoverable where the actor is simply negligent. See Prosser, supra, at 892, 9 Am. St. Rep. 721, the court said that a false representation by the
p. 180; 2 Harper & James, Torts, 1031 (1956). But the authorities all defendant that he was divorced from his former wife, whereby the plaintiff
recognize that where the wrong is willful rather than negligent, recovery was induced to marry him, gave her a remedy in tort for deceit. It seems
may be had for the ordinary, natural, and proximate consequences though to have been assumed that the fact that she had unintentionally violated
they consist of shame, humiliation, and mental anguish. See Spiegel v. the law or innocently committed a crime by cohabiting with him would be
Evergreen Cemetery Co., 117 NJL 90, 94, 186 A 585 (Sup. Ct. 1936); no bar to the action, but rather that it might be a ground for enhancing her
Kuzma v. Millinery Workers, etc., Local 24, 27 N.J. Super, 579, 591, 99 A.2d damages. The injury to the plaintiff was said to be in her being led by the
833 (App. Div. 1953); Prosser, supra, at p. 38. Here the defendant’s promise to give the fellowship and assistance of a wife to one who was not
conduct was not merely negligent, but was willfully and maliciously her husband and to assume and act in a relation and condition that proved
wrongful. It was bound to result in shame, humiliation, and mental anguish to be false and ignominious. Damages for such an injury were held to be
for the plaintiff, and when such result did ensue the plaintiff became recoverable in Sherman v. Rawson, 102 Mass. 395 and Kelley v. Riley, 106
entitled not only to compensatory but also to punitive damages. See Mass. 339, 343, 8 Am. Rep. 336.
Spiegel v. Evergreen Cemetery Co., supra; Kuzma v Millinery Workers, etc.,
Local 24, supra. CF. Note, “Exemplary Damages in the Law of Torts,” 70 Furthermore, in the case at bar the plaintiff does not base her cause of
Harv. L. Rev. 517 (1957). The plaintiff testified that because of the action upon any transgression of the law by herself but upon the
defendant’s bigamous marriage to her and the attendant publicity she not defendant’s misrepresentation. The criminal relations which followed,
only was embarrassed and “ashamed to go out” but “couldn’t sleep” but innocently on her part, were but one of the incidental results of the
“couldn’t eat,” had terrific headaches” and “lost quite a lot of weight.” No defendant’s fraud for which damages may be assessed.
just basis appears for judicial interference with the jury’s reasonable
allowance of $1,000 punitive damages on the first count. See Cabakov v. [7] Actions for deceit for fraudulently inducing a woman to enter
Thatcher, 37 N.J. Super 249, 117 A.2d 298 (App. Div.[74] 1955). into the marriage relation have been maintained in other jurisdictions.
Sears v. Wegner, 150 Mich. 388, 114 N.W. 224, 17 L.R. A. (N.S.) 819;
Larson v. McMillan, 99 Wash. 626, 170 P. 324; Blossom v. Barrett, 37 N.Y.
434, 97 Am. Dec. 747; Morril v. Palmer, 68 Vt. 1, 33 A. 829, 33 L.R.A. 411.
Considerations of public policy would not prevent recovery where the
circumstances are such that the plaintiff was conscious of no moral
turpitude, that her illegal action was induced solely by the defendant’s
misrepresentation, and that she does not base her cause of action upon
any transgression of the law by herself. Such considerations
distinguish this case from cases in which the court has refused to
lend its aid to the enforcement of a contract illegal on its face or to one
who has consciously and voluntarily become a party to an illegal act upon
which the cause of action is founded. Szadiwicz v. Cantor, 257 Mass. 518,
520, 154 N.E. 251, 49 A. L. R. 958.[76]

Considering the attendant circumstances of the case, the Court finds the award

of P200,000.00 for moral damages to be just and reasonable.

IN LIGHT OF ALL THE FOREGOING, the petition is DENIED. The

assailed decision of the Court of Appeals is AFFIRMED. Costs against the

petitioner.

SO ORDERED.

SECOND DIVISION
REPUBLIC OF THE PHILIPPINES, G.R. No. 159614
Petitioner,
Present:

- versus - PUNO, J., Chairman,


AUSTRIA-MARTINEZ,
CALLEJO, SR.,
THE HONORABLE COURT OF TINGA, and
APPEALS (TENTH DIVISION) CHICO-NAZARIO, JJ.
and ALAN B. ALEGRO,
Respondents.
Promulgated:

December 9, 2005
x--------------------------------------------------x

DECISION

CALLEJO, SR., J.:

On March 29, 2001, Alan B. Alegro filed a petition in the Regional Trial Court (RTC)

of Catbalogan, Samar, Branch 27, for the declaration of presumptive death of his

wife, Rosalia (Lea) A. Julaton.

In an Order[1] dated April 16, 2001, the court set the petition for hearing on

May 30, 2001 at 8:30 a.m. and directed that a copy of the said order be published

once a week for three (3) consecutive weeks in the Samar Reporter, a newspaper

of general circulation in the Province of Samar, and


that a copy be posted in the court’s bulletin board for at least three weeks at Barangay Canlapwas, but he was informed by Janette’s brother-in-law, Nelson

before the next scheduled hearing. The court also directed that copies of the order Abaenza, that Janeth had left for Manila.[9] When Alan went back to the house of his

be served on the Solicitor General, the Provincial Prosecutor of Samar, and Alan, parents-in-law, he learned from his father-in-law that Lea had been to their house

through counsel, and that copies be sent to Lea by registered mail. Alan complied but that she left without notice.[10] Alan sought the help of Barangay Captain Juan

with all the foregoing jurisdictional requirements.[2] Magat, who promised to help him locate his wife. He also inquired from his friends

of Lea’s whereabouts but to no avail.[11]


On May 28, 2001, the Republic of the Philippines, through the Office of the

Solicitor General (OSG), filed a Motion to Dismiss[3] the petition, which was, Sometime in June 1995, he decided to go to Manila to look for Lea, but his

however, denied by the court for failure to comply with Rule 15 of the Rules of mother asked him to leave after the town fiesta of Catbalogan, hoping that Lea

Court.[4] may come home for the fiesta. Alan agreed.[12] However, Lea did not show up.

Alan then left for Manila on August 27, 1995. He went to a house in Navotas where
At the hearing, Alan adduced evidence that he and Lea were married on
Janeth, Lea’s friend, was staying. When asked where Lea was, Janeth told him that
January 20, 1995 in Catbalogan, Samar.[5] He testified that, on February 6, 1995,
she had not seen her.[13] He failed to find out Lea’s whereabouts despite his
Lea arrived home late in the evening and he berated her for being always out of
repeated talks with Janeth. Alan decided to work as a part-time taxi driver. On his
their house. He told her that if she enjoyed the life of a single person, it would be
free time, he would look for Lea in the malls but still to no avail. He returned to
better for her to go back to her parents. [6] Lea did not reply. Alan narrated that,
Catbalogan in 1997 and again looked for his wife but failed.[14]
when he reported for work the following day, Lea was still in the house, but when

he arrived home later in the day, Lea was nowhere to be found.[7] Alan thought On June 20, 2001, Alan reported Lea’s disappearance to the local police

that Lea merely went to her parents’ house in Bliss, Sto. Niño, Catbalogan, Samar. station.[15] The police authorities issued an Alarm Notice on July 4, 2001. [16] Alan
[8]
However, Lea did not return to their house anymore. also reported Lea’s disappearance to the National Bureau of Investigation (NBI) on

July 9, 2001.[17]

Alan further testified that, on February 14, 1995, after his work, he went to
Barangay Captain Juan Magat corroborated the testimony of Alan. He
the house of Lea’s parents to see if she was there, but he was told that she was
declared that on February 14, 1995, at 2:00 p.m., Alan inquired from him if Lea
not there. He also went to the house of Lea’s friend, Janeth Bautista,
passed by his house and he told Alan that she did not. Alan also told him that Lea
had disappeared. He had not seen Lea in the barangay ever since.[18] Lea’s father, filed a motion to dismiss the petition. The petitioner avers that, as gleaned from

who was his compadre and the owner of Radio DYMS, told him that he did not the evidence, the respondent did not really want to find and locate Lea. Finally,

know where Lea was.[19] the petitioner averred:


In view of the summary nature of proceedings under Article 41 of
the Family Code for the declaration of presumptive death of one’s spouse,
After Alan rested his case, neither the Office of the Provincial Prosecutor the degree of due diligence set by this Honorable Court in the above-
mentioned cases in locating the whereabouts of a missing spouse must be
nor the Solicitor General adduced evidence in opposition to the petition. strictly complied with. There have been times when Article 41 of the
Family Code had been resorted to by parties wishing to remarry knowing
fully well that their alleged missing spouses are alive and well. It is even
On January 8, 2002, the court rendered judgment granting the petition. possible that those who cannot have their marriages x x x
declared null and void under Article 36 of the Family Code resort to Article
The fallo of the decision reads:
41 of the Family Code for relief because of the x x x summary nature of its
proceedings.
WHEREFORE, and in view of all the foregoing, petitioner’s absent
spouse ROSALIA JULATON is hereby declared PRESUMPTIVELY DEAD for the
It is the policy of the State to protect and strengthen the family as
purpose of the petitioner’s subsequent marriage under Article 41 of the
a basic social institution. Marriage is the foundation of the family. Since
Family Code of the Philippines, without prejudice to the effect of
marriage is an inviolable social institution that the 1987 Constitution seeks
reappearance of the said absent spouse.
to protect from dissolution at the whim of the parties. For respondent’s
failure to prove that he had a well-founded belief that his wife is already
SO ORDERED.[20]

The OSG appealed the decision to the Court of Appeals (CA) which rendered

judgment on August 4, 2003, affirming the decision of the RTC. [21] The CA cited the

ruling of this Court in Republic v. Nolasco.[22]

The OSG filed a petition for review on certiorari of the CA’s decision alleging that

respondent Alan B. Alegro failed to prove that he had a well-founded belief that

Lea was already dead.[23] It averred that the respondent failed to exercise

reasonable and diligent efforts to locate his wife. The respondent even admitted

that Lea’s father told him on February 14, 1995 that Lea had been to their house

but left without notice. The OSG pointed out that the respondent reported his

wife’s disappearance to the local police and also to the NBI only after the petitioner
dead and that he exerted the required amount of diligence in
searching for his missing wife, the petition for declaration of presumptive the conduct of men, and are the motives of their actions, was, so far as it tends to
death should have been denied by the trial court and the Honorable Court
of Appeals.[24] explain or characterize their disappearance or throw light on their intentions,
[27]
competence evidence on the ultimate question of his death.
The petition is meritorious.

The belief of the present spouse must be the result of proper and honest to
Article 41 of the Family Code of the Philippines reads:
Art. 41. A marriage contracted by any person during the subsistence of a goodness inquiries and efforts to ascertain the whereabouts of the absent spouse
previous marriage shall be null and void, unless before the celebration of
the subsequent marriage, the prior spouse had been absent for four and whether the absent spouse is still alive or is already dead. Whether or not the
consecutive years and the spouse present had a well-founded belief that
the absent spouse was already dead. In case of disappearance where spouse present acted on a well-founded belief of death of the absent spouse
there is danger under the circumstances set forth in the provisions of
Article 391 of the Civil Code, an absence of only two years shall be depends upon the inquiries to be drawn from a great many circumstances
sufficient.
occurring before and after the disappearance of the absent spouse and the nature
For the purpose of contracting the subsequent marriage under the
preceding paragraph, the spouse present must institute a summary and extent of the inquiries made by present spouse.[28]
proceeding as provided in this Code for the declaration of presumptive
death of the absentee, without prejudice to the effect of reappearance of
Although testimonial evidence may suffice to prove the well-founded belief of the
the absent spouse.[25]
present spouse that the absent spouse is already dead, in Republic v. Nolasco,
[29]
the Court warned against collusion between the parties when they find it
The spouse present is, thus, burdened to prove that his spouse has been absent
impossible to dissolve the marital bonds through existing legal means. It is also
and that he has a well-founded belief that the absent spouse is already dead
the maxim that “men readily believe what they wish to be true.”
before the present spouse may contract a subsequent marriage. The law does not

define what is meant by a well-grounded belief. Cuello Callon writes that “es In this case, the respondent failed to present a witness other
[26]
menester que su creencia sea firme se funde en motivos racionales.” than Barangay Captain Juan Magat. The respondent even failed to present Janeth

Bautista or Nelson Abaenza or any other person from whom he allegedly made
Belief is a state of the mind or condition prompting the doing of an overt
inquiries about Lea to corroborate his testimony. On the other hand, the
act. It may be proved by direct evidence or circumstantial evidence which may
respondent admitted that when he returned to the house of his parents-in-law on
tend, even in a slight degree, to elucidate the inquiry or assist to a determination
February 14, 1995, his father-in-law told him that Lea had just been there but that
probably founded in truth. Any fact or circumstance relating to the character,
she left without notice.
habits, conditions, attachments, prosperity and objects of life which usually control
The respondent declared that Lea left their abode on February 7, 1995 after he

chided her for coming home late and for being always out of their house, and told

her that it would be better for her to go home to her parents if she enjoyed the life

of a single person. Lea, thus, left their conjugal abode and never returned. Neither

did she communicate with the respondent after leaving the conjugal abode

because of her resentment to the chastisement she received from him barely a

month after their marriage. What is so worrisome is that, the respondent failed to

make inquiries from his parents-in-law regarding Lea’s whereabouts before filing

his petition in the RTC. It could have enhanced the credibility of the respondent

had he made inquiries from his parents-in-law about Lea’s whereabouts

considering that Lea’s father was the owner of Radio DYMS.

The respondent did report and seek the help of the local police authorities and the

NBI to locate Lea, but it was only an afterthought. He did so only after the OSG

filed its notice to dismiss his petition in the RTC.

In sum, the Court finds and so holds that the respondent failed to prove

that he had a well-founded belief, before he filed his petition in the RTC, that his

spouse Rosalia (Lea) Julaton was already dead.

IN LIGHT OF ALL THE FOREGOING, the petition is GRANTED. The Decision of

the Court of Appeals in CA-G.R. CV No. 73749 is REVERSED and SET

ASIDE. Consequently, the Regional Trial Court of Catbalogan, Samar, Branch 27,

is ORDERED to DISMISS the respondent’s petition.

SO ORDERED.
The two cases were consolidated and tried jointly. On November 29, 1983, Judge
German G. Lee, Jr. rendered an extensive decision, the dispositive portion of which
read:

WHEREFORE, in view of all the foregoing arguments and considerations, this court
hereby holds that the plaintiff Prima Partosa was legally married to Jose Jo alias Ho
Hang, alias Consing, and, therefore, is entitled to support as the lawfully wedded
wife and the defendant is hereby ordered to give a monthly support of P500.00 to
the plaintiff Prima Partosa, to be paid on or before the 5th day of every month, and
to give to the plaintiff the amount of P40,000.00 for the construction of the house
in Zamboanguita, Negros Oriental where she may live separately from the
defendant being entitled under the law to separate maintenance being the
innocent spouse and to pay the amount of P19,200.00 to the plaintiff by way of
support in arrears and to pay the plaintiff the amount of P3,000.00 in the concept
of attorney's fees.
Republic of the Philippines
SUPREME COURT
Manila As will be noticed, there was a definite disposition of the complaint for support but
none of the complaint for judicial separation of conjugal property.

FIRST DIVISION
Jo elevated the decision to the Court of Appeals, which affirmed the ruling of the
trial court in the complaint for support. 1 The complaint for judicial separation of
G.R. No. 82606 December 18, 1992 conjugal property was dismissed for lack of a cause of action and on the ground
that separation by agreement was not covered by Article 178 of the Civil Code.
PRIMA PARTOSA-JO, petitioner,
vs. When their motions for reconsideration were denied, both parties came to this
THE HONORABLE COURT OF APPEALS and HO HANG (with aliases JOSE JO Court for relief. The private respondent's petition for review on certiorari was
and CONSING), respondents. dismissed for tardiness in our resolution dated February 17, 1988, where we also
affirmed the legality of the marriage between Jose and Prima and the obligation of
the former to support her and her daughter.

CRUZ, J.: This petition deals only with the complaint for judicial separation of conjugal
property.
The herein private respondent, Jose Jo, admits to having cohabited with three
women and fathered fifteen children. The first of these women, the herein It is here submitted that the Court of Appeals erred in holding that: a) the judicial
petitioner, claims to be his legal wife whom he begot a daughter, Monina Jo. The separation of conjugal property sought was not allowed under Articles 175, 178
other women and their respective offspring are not parties of these case. and 191 of the Civil Code; and b) no such separation was decreed by the trial court
in the dispositive portion of its decision.
In 1980, the petitioner filed a complaint against Jo for judicial separation of
conjugal property, docketed as Civil Case No. 51, in addition to an earlier action for The private respondent contends that the decision of the trial court can longer be
support, also against him and docketed as Civil Case No. 36, in the Regional Trial reviewed at this time because it has a long since become final and executory. As
Court of Negros Oriental, Branch 35. the decretal portion clearly made no disposition of Civil Case No. 51, that case
should be considered impliedly dismissed. The petitioner should have called the
attention of the trial court to the omission so that the proper rectification could be The trial court made definite findings on the complaint for judicial separation of
made on time. Not having done so, she is now concluded by the said decision, conjugal property, holding that the petitioner and the private respondent were
which can no longer be corrected at this late hour. legally married and that the properties mentioned by the petitioner were acquired
by Jo during their marriage although they were registered in the name of the
We deal first with the second ground. apparent dummy.

While admitting that no mention was made of Civil Case No. 51 in the dispositive There is no question therefore that the penultimate paragraph of the decision of
portion of the decision of the trial court, the petitioner argues that a disposition of the trial court was a ruling based upon such findings and so should have been
the case was nonetheless made in the penultimate paragraph of the decision embodied in the dispositive portion. The respondent court should have made the
reading as follows: necessary modification instead of dismissing Civil Case No. 51 and thus upholding
mere form over substance.
It is, therefore, hereby ordered that all properties in question are considered
properties of Jose Jo, the defendant in this case, subject to separation of property In the interest of substantive justice, and to expedite these proceedings, we
under Article 178, third paragraph of the Civil Code, which is subject of separate hereby make such modification.
proceedings as enunciated herein.
And now to the merits of Civil Case No. 51.
The petitioner says she believed this to be disposition enough and so did not feel it
was necessary for her to appeal, particularly since the order embodied in that The Court of Appeals dismissed the complaint on the ground that the separation of
paragraph was in her favor. It was only when the respondent court observed that the parties was due to their agreement and not because of abondonment. The
there was no dispositive portion regarding that case and so ordered its dismissal respondent court relied mainly on the testimony of the petitioner, who declared
that she found it necessary to come to this Court for relief. under oath that she left Dumaguete City, where she and Jo were living together
"because that was our agreement." It held that a agreement to live separately
The petitioner has a point. without just cause was void under Article 221 of the Civil Code and could not
sustain any claim of abandonment by the aggrieved spouse. Its conclusion was
that the only remedy availabe to the petitioner was legal separation under Article
The dispositive portion of the decision in question was incomplete insofar as it 175 of the Civil Code, 4 by virtue of which the conjugal partnership of property
carried no ruling on the complaint for judicial separation of conjugal property would be terminated.
although it was extensively discussed in the body of the decision. The drafting of
the decision was indeed not exactly careful. The petitioner's counsel, noting this,
should have taken immediate steps for the rectification for the omission so that The petitioner contends that the respondent court has misinterpreted Articles 175,
the ruling expressed in the text of the decision could have been embodied in the 178 and 191 of the Civil Code. She submits that the agreement between her and
decretal portion. Such alertness could have avoided this litigation on a purely the private respondent was for her to temporarily live with her parents during the
technical issue. initial period of her pregnancy and for him to visit and support her. They never
agreed to separate permanently. And even if they did, this arrangement was
repudiated and ended in 1942, when she returned to him at Dumaguete City and
Nevertheless, the technicality invoked in this case should not be allowed to prevail he refused to accept her.
over considerations of substantive justive. After all, the technical defect is not
insuperable. We have said time and again that where there is an ambiguity caused
by an omission or a mistake in the dispositive portion of the decision, this Court The petitioner invokes Article 178 (3) of the Civil Code, which reads:
may clarify such an ambiguity by an amendment even after the judgment have
become final. 2 In doing so, the Court may resort to the pleading filed by the Art. 178. The separation in fact between husband and wife without judicial
parties and the findings of fact and the conclusions of law expressed in the text or approval, shall not affect the conjugal partnership, except that:
body of the decision. 3
xxx xxx xxx The record shows that as early as 1942, the private respondent had already
rejected the petitioner, whom he denied admission to their conjugal home in
(3) If the husband has abandoned the wife without just cause for at least one year, Dumaguete City when she returned from Zamboanguita. The fact that she was not
she may petition the court for a receivership, or administration by her of the accepted by Jo demonstrates all too clearly that he had no intention of resuming
conjugal partnership property or separation of property. their conjugal relationship. Moreover, beginning 1968 until the determination by
this Court of the action for support in 1988, the private respondent refused to give
financial support to the petitioner. The physical separation of the parties, coupled
The above-quoted provision has been superseded by Article 128 of the Family with the refusal by the private respondent to give support to the petitioner,
Code, which states: sufficed to constitute abandonment as a ground for the judicial separation of their
conjugal property.
Art. 128. If a spouse without just cause abandons the other or fails to comply with
his or her obligations to the family, the aggrieved spouse may petition the court for In addition, the petitioner may also invoke the second ground allowed by Article
receivership, for judicial separation of property, of for authority to be the sole 128, for the fact is that he has failed without just cause to comply with his
administrator of the conjugal partnership property, subject to such precautionary obligations to the family as husband or parent. Apart form refusing to admit his
conditions as the court may impose. lawful wife to their conjugal home in Dumaguete City, Jo has freely admitted to
cohabiting with other women and siring many children by them. It was his refusal
The obligations to the family mentioned in the preceding paragraph refer to to provide for the petitioner and their daughter that prompted her to file the
martial, parental or property relations. actions against him for support and later for separation of the conjugal property, in
which actions, significantly, he even denied being married to her. The private
A spouse is deemed to have abondoned the other when he or she has left the respondent has not established any just cause for his refusal to comply with his
conjugal dwelling without any intention of returning. The spouse who has left the obligations to his wife as dutiful husband.
conjugal dwelling for a period of three months or has failed within the same period
to give any information as to his or her whereabouts shall be prima facie presumed Their separation thus falls also squarely under Article 135 of the Family Code,
to have no intention of returning to the conjugal dwelling. providing as follows:

Under the this provision, the aggrieved spouse may petition for judicial separation Art. 135. Any of the following shall be considered sufficient cause for judicial
on either of these grounds: separation of property:

1. Abondonment by a spouse of the other without just cause; and xxx xxx xxx

2. Failure of one spouse to comply with his or her obligations to the family without (6) That at the time of the petition, the spouse have been separated in fact for at
just cause, even if she said spouse does not leave the other spouse. least one year and reconciliation is highly improbable.

Abandonment implies a departure by one spouse with the avowed intent never to The amendments introduced in the Family Code are applicable to the case before
return, followed by prolonged absence without just cause, and without in the us although they became effective only on August 3, 1988. As we held in Ramirez
meantime providing in the least for one's family although able to do so. 5 There v. Court of Appeals: 7
must be absolute cessation of marital relations, duties and rights, with the
intention of perpetual separation. 6 This idea is clearly expressed in the above- The greater weight of authority is inclined to the view that an appellate court, in
quoted provision, which states that "a spouse is deemed to have abandoned the reviewing a judgment on appeal, will dispose of a question according to the law
other when he or she has left the conjugal dwelling without any intention of prevailing at the term of such disposition, and not according to the law prevailing
returning." at the time of rendition of the appealed judgement. The court will therefore
reverse a judgement which was correct at the time it was originally rendered
where, by statute, there has been an intermediate change in the law which renders EN BANC
such judgement erroneous at the time the case was finally disposed of on appeal.
G.R. No. L-48183 November 10, 1941
The order of judicial separation of the properties in question is based on the finding
of both the trial and respondent courts that the private respondent is indeed their THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
real owner. It is these properties that should now be divided between him and the vs.
petitioner, on the assumption that they were acquired during coverture and so RODOLFO A. SCHNECKENBURGER, ET AL., defendants-appellants.
belong to the spouses half and half. As the private respondent is a Chinese citizen,
the division must include such properties properly belonging to the conjugal
partnership as may have been registered in the name of other persons in violation Cardenas & Casal for appellants.
of the Anti-Dummy Law. Office of the Solicitor-General Ozaeta and Acting Solicitor Luciano for appellee.

The past has caught up with the private respondent. After his extramarital flings MORAN, J.:
and a succession of illegitimate children, he must now make an accounting to his
lawful wife of the properties he denied her despite his promise to their of his On March 16, 1926, the accused Rodolfo A. Schneckenburger married the
eternal love and care. compliant Elena Ramirez Cartagena and after seven years of martial life, they
agreed, for reason of alleged incompatibility of character, to live separately each
WHEREFORE, the petition is GRANTED and the assailed decision of the respondent other and on May 25, 1935 they executed a document which in part recites as
court is MODIFIED. Civil Case No. 51 is hereby decided in favor the plaintiff, the follows:
petitioner herein, and the conjugal property of the petitioner and the private
respondent is hereby ordered divided between them, share and share alike. This Que ambos comparecientes convienen en vivir separados el uno del otro por el
division shall be implemented by the trial court after determination of all the resto de su vida y se comprometen, y obligan reciprocamente a no molastarse ni
properties pertaining to the said conjugal partnership, including those that may intervenir ni mezclarse bajo ningun concepto en la vida publica o privada de los
have been illegally registered in the name of the persons. mismos, entre si, quendado cada uno de los otorgantes en completa libertad de
accion en calquier acto y todos concepto.
SO ORDERED.
On June 15, 1935, the accused Schneckenburger, without leaving the Philippines,
Padilla, Griño-Aquino and Bellosillo, JJ., concur. secured a decree of divorce from the civil court of Juarez, Bravos District, State of
Chihuahua, Mexico. On May 11, 1936, he contracted another marriage with his co-
accused, Julia Medel, in the justice of the peace court of Malabon, Rizal, and since
then they lived together as husband and wife in the city of Manila. Because of the
nullity of the divorce decreed by the Mexico Court, complaint herein instituted two
actions against the accused, one for bigamy in the Court of First Instance of Rizal
and the other concubinage in the court of First Instance of Manila. The first
culminated in the conviction of the accused for which he was sentenced to penalty
of two months and one day of arresto mayor. On the trial for the offense of
concubinage accused interposed the plea of double jeopardy, and the case was
dismissed; but, upon appeal by the fiscal, this Court held the dismissal before the
trial to be premature this was under the former procedure and without deciding
Republic of the Philippines the question of double jeopardy, remanded the case to the trial court for trial on
SUPREME COURT the merits. Accused was convicted of concubinage through reckless imprudence
Manila and sentenced to a penalty of two months and one day of arresto mayor. Hence
this appeal.
As to appellant's plea of double jeopardy, it need only be observed that the office says or does nothing. We, therefore, hold that the prior consent is as effective as
of bigamy for which he was convicted and that of concubinage for which he stood subsequent consent to bar the offended party from prosecuting the offense.
trial in the court below are two distinct offenses in law and in fact as well as in the
mode of their prosecution. The celebration of the second marriage, with the first In this arriving at this conclusion we do not with to be misconstrued as legalizing
still existing, characterizes the crime of bigamy; on the other hand, in the present an agreement to do an illicit act, in violation of law. Our view must be taken only to
case, mere cohabitation by the husband with a woman who is not his wife mean that an agreement of the tenor entered into between the parties herein,
characterizes the crime of concubinage. The first in an offense against civil status operates, within the plain language and manifest policy of the law, to bar the
which may be prosecuted at the instance of the state; the second, an offense offended party from prosecuting the offense. If there is anything morally
against chastity and may be prosecuted only at the instance of the offended party. condemnatory in a situation of his character, the remedy lies not with us but with
And no rule is more settled in law than that, on the matter of double jeopardy, the the legislative department of the government. What the law is, not what it should
test is not whether the defendant has already been tried for the same act, but be, defines the limits of our authority.
whether he has been put in jeopardy for the same offense. (Diaz v. U. S., 223 U. S.,
422; People v. Cabrera, 43 Phil., 82)
Judgment is reversed and the accused is hereby acquitted, without costs.
Upon the other hand, we believe and so hold that the accused should be acquitted
of the crime of concubinage. The document executed by and between the accused Avanceña, C.J., Abad Santos, Diaz and Horilleno, JJ., concur.
and the complaint in which they agreed to be "en completa libertad de accion en
cualquier acto y en todos conceptos," while illegal for the purpose for which it was
executed, constitutes nevertheless a valid consent to the act of concubinage within
the meaning of section 344 of the Revised Penal Code. There can be no doubt that
by such agreement, each party clearly intended to forego to illicit acts of the other.

We said before (People vs. Guinucod, 58 Phil., 621) that the consent which bars the
offended party from instituting a criminal prosecution in cases of adultery,
concubinage, seduction, abduction, rape and acts of lasciviousness is that which
has been given expressly or impliedly after the crime has been committed. We are
now convinced that this is a narrow view in way warranted by the language, as
well as the manifest policy, of the law. The second paragraph of article 344 of the
Revised Penal Code provides:

The offended party cannot institute criminal prosecution without including both the
guilty parties, if they are both alive, nor, in any case, if he shall
have consented or pardoned the offenders. (Emphasis ours.)

As the term "pardon" unquestionably refers to the offense after its commission,
"consent" must have been intended agreeably with its ordinary usage, to refer to
the offense prior to its commission. No logical difference can indeed be perceived
between prior and subsequent consent, for in both instances as the offended party
has chosen to compromise with his/her dishonor, he/she becomes unworthy to
come to court and invoke its aid in the vindication of the wrong. For instance, a
husband who believers his wife another man for adultery, is as unworthy, if not
more, as where, upon acquiring knowledge of the adultery after its commission, he
Republic of the Philippines
SUPREME COURT
Manila

EN BANC

G.R. No. L-10033 December 28, 1956

BENJAMIN BUGAYONG, plaintiff-appellant,


vs.
LEONILA GINEZ, defendant-appellee.

Florencio Dumapias for appellant.


Numeriano Tanopo, Jr. for appellee.

FELIX, J.:

This is a case for legal separation filed in the Court of First Instance of Pangasinan
wherein on motion of the defendant, the case was dismissed. The order of
dismissal was appealed to the Court of Appeals, but said Tribunal certified the case
to the Court on the ground that there is absolutely no question of fact involved, the
motion being predicated on the assumption as true of the very facts testified to by
plaintiff-husband.

The facts of the case abridgedly stated are as follows: Benjamin Bugayong, a
serviceman in the United States Navy, was married to defendant Leonila Ginez on
August 27, 1949, at Asingan, Pangasinan, while on furlough leave. Immediately
after their marriage, the couple lived with their sisters who later moved to
Sampaloc, Manila. After some time, or about July, 1951, Leonila Ginez left the
dwelling of her sister-in-law and informed her husband by letter that she had gone
to reside with her mother in Asingan, Pangasinan, from which place she later
moved to Dagupan City to study in a local college there.
As early as July, 1951, Benjamin Bugayong began receiving letters from Valeriana denied, the case was taken up for review to the Court of Appeals, appellant's
Polangco (plaintiff's sister-in-law) and some from anonymous writers(which were counsel maintaining that the lower court erred:
not produced at the hearing) informing him of alleged acts of infidelity of his wife
which he did not even care to mention. On cross-examination, plaintiff admitted (a) In so prematurely dismissing the case;
that his wife also informed him by letter, which she claims to have destroyed, that
a certain "Eliong" kissed her. All these communications prompted him in October,
1951 to seek the advice of the Navy Chaplain as to the propriety of a legal (b) In finding that there were condonation on the part of plaintiff-appellant; and
separation between him and his wife on account of the latter's alleged acts of
infidelity, and he was directed to consult instead the navy legal department. (c) In entertaining condonation as a ground for dismissal inasmuch as same was
not raised in the answer or in a motion to dismiss.
In August, 1952, plaintiff went to Asingan, Pangasinan, and sought for his wife
whom he met in the house of one Mrs. Malalang, defendant's godmother. She As the questions raised in the brief were merely questions of law, the Court of
came along with him and both proceeded to the house of Pedro Bugayong, a Appeals certified the case to Superiority.
cousin of the plaintiff-husband, where they stayed and lived for 2 nights and 1 day
as husband and wife. Then they repaired to the plaintiff's house and again passed The Civil Code provides:
the night therein as husband and wife. On the second day, Benjamin Bugayong
tried to verify from his wife the truth of the information he received that she had
committed adultery but Leonila, instead of answering his query, merely packed up ART. 97. A petition for legal separation may be filed:
and left, which he took as a confirmation of the acts of infidelity imputed on her.
After that and despite such belief, plaintiff exerted efforts to locate her and failing (1) For adultery on the part of the wife and for concubinage for the part of the
to find her, he went to Bacarra, Ilocos Norte, "to soothe his wounded feelings". husband as defined on the Penal Code; or

On November 18, 1952, Benjamin Bugayong filed in the Court of First Instance of (2) An attempt by one spouse against the life of the other.
Pangasinan a complaint for legal separation against his wife, Leonila Ginez, who
timely filed an answer vehemently denying the averments of the complaint and ART. 100. The legal separation may be claimed only by the innocent
setting up affirmative defenses. After the issues were joined and convinced that a spouse, provided there has been no condonation of or consent to the adultery or
reconciliation was not possible, the court set the case for hearing on June 9, 1953. concubinage. Where both spouses are offenders, a legal separation cannot by
Plaintiff's counsel announced that he was to present 6 witnesses but after plaintiff- either of them. Collusion between the parties to obtain legal separation shall cause
husband finished testifying in his favor, counsel for the defendant orally moved for the dismissal of the petition.
the dismissal of the complaint, but the Court ordered him to file a written motion to
that effect and gave plaintiff 10 days to answer the same.
ART. 102. An action for legal separation cannot be filed except within one year
from and after the date on which the plaintiff became cognizant of the cause and
The motion to dismiss was predicted on the following grounds: (1) within five years from and after the date when such cause occurred.
Assuming arguendo the truth of the allegations of the commission of "acts of rank
infidelity amounting to adultery", the cause of action, if any, is barred by the
statute of limitations; (2) That under the same assumption, the act charged have As the only reason of the lower Court for dismissing the action was the alleged
been condoned by the plaintiff-husband; and (3) That the complaint failed to state condonation of the charges of adultery that the plaintiff-husband had preferred in
a cause of action sufficient for this court to render a valid judgment. the complaint against his wife, We will disregard the other 2 grounds of the motion
to dismiss, as anyway they have not been raised in appellant's assignment of
errors.
The motion to dismiss was answered by plaintiff and the Court, considering only
the second ground of the motion to dismiss i. e., condonation, ordered the
dismissal of the action. After the motion for reconsideration filed by plaintiff was Condonation is the forgiveness of a marital offense constituting a ground for legal
separation or, as stated in I Bouver's Law Dictionary, p. 585, condonation is the
"conditional forgiveness or remission, by a husband or wife of a matrimonial Q. What happened next? — A. I persuaded her to come along with me. She
offense which the latter has committed". It is to be noted, however, that in consented but I did not bring her home but brought her to the house of my cousin
defendant's answer she vehemently and vigorously denies having committed any Pedro Bugayong. (p. 12, t.s.n.)
act of infidelity against her husband, and even if We were to give full weight to the
testimony of the plaintiff, who was the only one that had the chance of testifying in Q. How long did you remain in the house of your cousin Pedro Bugayong? — A. One
Court and link such evidence with the averments of the complaint, We would have day and one night. (p. 12. t.s.n.)
to conclude that the facts appearing on the record are far from sufficient to
establish the charge of adultery, or, as the complaint states, of "acts of rank
infidelity amounting to adultery" preferred against the defendant. Certainly, the Q. That night when you stayed in the house of your cousin Pedro Bugayong as
letter that plaintiff claims to have received from his sister-in-law Valeriana husband and wife, did you slept together? — A. Yes, sir. (p. 19, t.s.n.)
Polangco, which must have been too vague and indefinite as to defendant's
infidelity to deserve its production in evidence; nor the anonymous letters which Q. On the next night, when you slept in your own house, did you sleep together
plaintiff also failed to present; nor the alleged letter that, according to plaintiff, his also as husband and wife? — A. Yes, sir. (p. 19. t.s.n.)
wife addressed to him admitting that she had been kissed by one Eliong, whose
identity was not established and which admission defendant had no opportunity to Q. When was that? — A. That was in August, 1952. (p. 19 t.s.n.)
deny because the motion to dismiss was filed soon after plaintiff finished his
testimony in Court, do not amount to anything that can be relied upon.
Q. How many nights did you sleep together as husband and wife? — A. Only two
nights. (p. 19, t.s.n.)
But this is not a question at issue. In this appeal, We have to consider plaintiff's
line of conduct under the assumption that he really believed his wife guilty of
adultery. What did he do in such state of mind. In August, 1952, he went to The New Civil Code of the Philippines, in its Art. 97, says:
Pangasinan and looked for his wife and after finding her they lived together as
husband and wife for 2 nights and 1 day, after which he says that he tried to verify A petition for legal separation may be filed:
from her the truth of the news he had about her infidelity, but failed to attain his
purpose because his wife, instead of answering his query on the matter, preferred (1) For adultery on the part of the wife and concubinage on the part of the husband
to desert him, probably enraged for being subjected to such humiliation. And yet as defined on the Penal Code.
he tried to locate her, though in vain. Now, do the husband's attitude of sleeping
with his wife for 2 nights despite his alleged belief that she was unfaithful to him,
amount to a condonation of her previous and supposed adulterous acts? In the and in its Art. 100 it says:lawphil.net
order appealed from, the Court a quo had the following to say on this point:
The legal separation may be claimed only by the innocent spouse, provided there
In the hearing of the case, the plaintiff further testified as follows: has been no condonation of or consent to the adultery or concubinage. Where both
spouses are offenders, legal separation cannot be claimed by either of them.
Collusion between the parties to obtain legal separation shall cause the dismissal
Q. Now Mr. Bugayong, you have filed this action for legal separation from your of the petition.
wife. Please tell this Hon. Court why you want to separate from your wife? — A. I
came to know that my wife is committing adultery, I consulted the chaplain and he
told me to consult the legal adviser. (p. 11, t.s.n.) A detailed examination of the testimony of the plaintiff-husband, especially those
portions quoted above, clearly shows that there was a condonation on the part of
the husband for the supposed "acts of rank infidelity amounting to adultery"
Q. Did you finally locate her?--A. Four days later or on the fifth day since my arrival committed by defendant-wife. Admitting for the sake of argument that the
she went to the house of our god-mother, and as a husband I went to her to come infidelities amounting to adultery were committed by the defendant, a
along with me in our house but she refused. (p. 12, t.s.n.)lawphil.net reconciliation was effected between her and the plaintiff. The act of the latter in
persuading her to come along with him, and the fact that she went with him and
consented to be brought to the house of his cousin Pedro Bugayong and together The only general rule in American jurisprudence is that any cohabitation with the
they slept there as husband and wife for one day and one night, and the further guilty party, after the commission of the offense, and with the knowledge or belief
fact that in the second night they again slept together in their house likewise as on the part of the injured party of its commission, will amount to conclusive
husband and wife — all these facts have no other meaning in the opinion of this evidence of condonation; but this presumption may be rebutted by evidence (60 L.
court than that a reconciliation between them was effected and that there was a J. Prob. 73).
condonation of the wife by the husband. The reconciliation occurred almost ten
months after he came to know of the acts of infidelity amounting to adultery. If there had been cohabitation, to what extent must it be to constitute
condonation?
In Shackleton vs. Shackleton, 48 N. J. Eq. 364; 21 Atl. 935, it has been held that
"condonation is implied from sexual intercourse after knowledge of the other Single voluntary act of marital intercourse between the parties ordinarily is
infidelity. such acts necessary implied forgiveness. It is entirely consonant with sufficient to constitute condonation, and where the parties live in the same house,
reason and justice that if the wife freely consents to sexual intercourse after she it is presumed that they live on terms of matrimonial cohabitation (27 C. J. S.,
has full knowledge of the husband's guilt, her consent should operate as a pardon section 6-d).
of his wrong."
A divorce suit will not be granted for adultery where the parties continue to live
In Tiffany's Domestic and Family Relations, section 107 says: together after it was known (Land vs. Martin, 15 South 657; Day vs. Day, 80 Pac.
974) or there is sexual intercourse after knowledge of adultery (Rogers vs. Rogers,
Condonation. Is the forgiveness of a marital offense constituting a ground for 67 N. J. Eq. 534) or sleeping together for a single night (Toulson vs. Toulson, 50 Atl.
divorce and bars the right to a divorce. But it is on the condition, implied by the 401, citing Phinizy vs. Phinizy, 114 S. E. 185, 154 Ga. 199; Collins vs. Collins, 193
law when not express, that the wrongdoer shall not again commit the offense; and So. 702), and many others. The resumption of marital cohabitation as a basis of
also that he shall thereafter treat the other spouse with conjugal kindness. A condonation will generally be inferred, nothing appearing to the contrary, from the
breach of the condition will revive the original offense as a ground for divorce. fact of the living together as husband and wife, especially as against the husband
Condonation may be express or implied. (Marsh vs. Marsh, 14 N. J. Eq. 315).

It has been held in a long line of decisions of the various supreme courts of the There is no ruling on this matter in our jurisprudence but we have no reason to
different states of the U. S. that 'a single voluntary act of sexual intercourse by the depart from the doctrines laid down in the decisions of the various supreme courts
innocent spouse after discovery of the offense is ordinarily sufficient to constitute of the United States above quoted.
condonation, especially as against the husband'. (27 Corpus Juris Secundum,
section 61 and cases cited therein). There is no merit in the contention of appellant that the lower court erred in
entertaining condonation as a ground for dismissal inasmuch as same was not
In the lights of the facts testified to by the plaintiff-husband, of the legal provisions raised in the answer or in a motion to dismiss, because in the second ground of the
above quoted, and of the various decisions above-cited, the inevitable conclusion motion to dismiss. It is true that it was filed after the answer and after the hearing
is that the present action is untenable. had been commenced, yet that motion serves to supplement the averments of
defendant's answer and to adjust the issues to the testimony of plaintiff himself
Although no acts of infidelity might have been committed by the wife, We agree (section 4, Rule 17 of the Rules of Court).
with the trial judge that the conduct of the plaintiff-husband above narrated
despite his belief that his wife was unfaithful, deprives him, as alleged the Wherefore, and on the strength of the foregoing, the order appealed from is
offended spouse, of any action for legal separation against the offending wife, hereby affirmed, with costs against appellant. It is so ordered.
because his said conduct comes within the restriction of Article 100 of the Civil
Code. Paras, C.J., Bengzon, Padilla, Bautista Angelo, Labrador, Concepcion, Reyes, J.B.L.
and Endencia, JJ., concur.
Republic of the Philippines
SUPREME COURT
Manila

EN BANC

G.R. No. L-37720 March 27, 1933


THE PEOPLE OF THE PHILIPPINE ISLANDS, plaintiff-appellee, she remained for seven years completely abandoning his said wife and child. On
vs. his return to these Islands, he presented the second charge of adultery here
URSULA SENSANO and MARCELO RAMOS, defendants-appellants. involved with the sole purpose, as he declared, of being able to obtain a divorce
under the provisions of Act No. 2710.
Emilio L. Medina for appellants.
Attorney-General Jaranilla for appellee. Article 344 of the Revised Penal Code, paragraphs 1 and 2, are as follows:

BUTTE, J.: Prosecution of the crimes of adultery, concubinage, seduction, abduction, rape and
acts of lasciviousness. — The crimes of adultery and concubinage shall not be
The appellants were sentenced by the Court of First Instance of Ilocos Norte for the prosecuted except upon a complaint filed by the offended spouse.
crime of adultery to three years, six months and twenty-one days of prision
correccional and appealed to this court, assigning the following error: "The court The offended party cannot institute criminal prosecution without including both the
below erred in not holding that the offended husband contested to the adultery guilty parties, if they are both alive, nor, in any case, if he shall have consented or
committed by his wife Ursula Sensano in that he refused to live with her after she pardoned the offenders.
extinguished her previous sentence for the same offense, and by telling her then
that she could go where she wanted to and do what she pleased, and by his Apart from the fact that the husband in this case was assuming a mere pose when
silence for seven years notwithstanding that he was informed of said adultery." he signed the complaint as the "offended" spouse, we have come to the conclusion
that the evidence in this case and his conduct warrant the inference that he
The facts briefly stated as follows: consented to the adulterous relations existing between the accused and therefore
he is not authorized by law to institute this criminal proceeding.
Ursula Sensano and Mariano Ventura were married on April 29, 1919. They had
one child. Shortly after the birth of his child, the husband left his wife to go to the We cannot accept the argument of the Attorney-General that the seven years of
Province of Cagayan where he remained for three years without writing to his wife acquiescence on his part in the adultery of his wife is explained by his absence
or sending her anything for the support of herself and their son. Poor and illiterate, from the Philippine Islands during which period it was impossible for him to take
without relatives upon whom she could call, she struggled for an existence for any action against the accused. There is no merit in the argument that it was
herself and her son until a fatal day when she met the accused Marcelo Ramos impossible for the husband to take any action against the accused during the said
who took her and the child to live with him. On the return of the husband (in 1924), seven years.
he filed a charge against his wife and Marcelo Ramos for adultery and both were
sentenced to four months and one day of arresto mayor. The court, in its decision, The judgment below is reversed with costs de oficio.
stated the following: "In the opinion of the court, the husband of the accused has
been somewhat cruel in his treatment of his wife having abandoned her as he did."
After completing her sentence, the accused left her paramour. She thereupon Street and Ostrand, JJ., concur.
appealed to this municipal president and the justice of the peace to send for her
husband so that she might ask his pardon and beg him to take her back. At the
house of the president she begged his pardon and promised to be a faithful wife it
he would take care her back. He refused to pardon her to live with her and said she
could go where she wished, that he would have nothing more to do with her, and
she could do as she pleased. Abandoned for the second time, she and her child
went back to her coaccused Marcelo Ramos (this was in the year 1924) and they
have lived with him ever since. The husband, knowing that she resumed living with
her codefendant in 1924, did nothing to interfere with their relations or to assert
his rights as husband. Shortly thereafter he left for the Territory of Hawaii where
Republic of the Philippines The essential facts of the case, as found by the trial court and the Court of
SUPREME COURT Appeals, are as follows:
Manila
... On November 2, 1982, accused, Mrs. Ruby Vera Neri in the company of Mrs.
FIRST DIVISION Linda Sare and witness Jabunan, took the morning plane to Baguio. Arriving at
around 11:00 a.m., they dropped first at the house of Mrs. Vera, mother of Ruby
G.R. No. 96602 November 19, 1991 Vera at Crystal Cave, Baguio City then proceeded to the Mines View Park
Condominium of the Neri spouses. At around 7:00 o' clock in the evening, accused
Eduardo Arroyo arrived at the Neris' condominium. Witness opened the door for
EDUARDO ARROYO, JR., petitioner, Arroyo who entered, he went down to and knocked at the master's bedroom where
vs. accused Ruby Vera Neri and her companion Linda Sare were. On accused Ruby
COURT OF APPEALS and THE PEOPLE OF THE PHILIPPINES, respondents. Vera Neri's request, Linda Sare left the master's bedroom and went upstairs to the
sala leaving the two accused. About forty-five minutes later, Arroyo Jr. came up
G.R. No. 96715 November 19, 1991 and told Linda Sare that she could already come down. Three of them, thereafter,
went up to the sala then left the condominium. (Court of Appeals Decision, p. 4) 1
RUBY VERA-NERI, petitioner,
vs. Petitioner Arroyo filed a Motion for Reconsideration of the Court of Appeals'
THE PEOPLE OF THE PHILIPPINES and THE HONORABLE COURT OF Decision. Petitioner Ruby Vera Neri also moved for reconsideration or a new trial,
APPEALS, respondents. contending that a pardon had been extended by her husband, private complain ant
Dr. Jorge B. Neri, and that her husband had later con traded marriage with another
Efren C. Carag for Eduardo C. Arroyo, Jr. woman with whom he is presently co-habiting. Both motions were denied by the
Court of Appeals.
Singson, Valdes & Associates for Ruby Vera Neri.
Petitioner Arroyo filed a Petition for Review (G.R. No. 96602) dated 8 February
1991 which this court denied in a Resolution dated 24 April 1991.
RESOLUTION
In the meantime, petitioner Neri filed a separate Petition for Review (G.R. No.
96715) dated 19 February 1991.

FELICIANO, J.:p Petitioner Arroyo filed a motion for reconsideration dated 1 May 1991 and a motion
dated 23 May 1991 for consolidation o G.R. No. 96602 with G.R. No. 96715.
In G.R. No. 96602, the Court summarized the facts of the case in this manner:
On 3 June 1991, G.R. No. 96715 was consolidated with G.R No. 96602 in the Third
Dr. Jorge B. Neri filed a criminal complaint for adultery before the Regional Trial Division in accordance with long-stand ing practice of the Court.
Court (RTC), Branch 4, of Benguet against his wife, Ruby Vera Neri, and Eduardo
Arroyo committed on 2 November 1982 in the City of Baguio. On 29 July 1991, the Third Division deliberated upon the case which was then
assigned to the ponente for the writing of the Court's Resolution. 2
Both defendants pleaded not guilty and after trial, the RTC convicted petitioner
and Mrs. Ruby Vera Neri of adultery as defined under Article 333 of the Revised On 26 August 1991, Dr. Neri filed a manifestation, dated 14 May 1991, 3 praying
Penal Code. that the case against petitioners be dismissed as he had "tacitly consented" to his
wife's infidelity. 4
Petitioners then filed their respective motions praying for the dismissal or for the The issues in the consolidated cases may be summarized as follows:
granting of new trial of the case claiming a basis for their motions Dr. Neri's
manifestation. The Solicitor General was then asked to comment on the 1. Whether or not Dr. Neri's affidavit of desistance is sufficient to cast reasonable
manifestation; hi comment was filed with this Court on 18 October 1991. 5 doubts on his credibility;

In October 1991, the consolidated cases were, again in accordance with long- 2. Whether or not Mrs. Neri's constitutional right against self-incrimination had
standing practice of the Court, assigned to the First Division upon the assignment been violated;
of the ponente to that division. On 4 November 1991, the consolidated cases were
re deliberated upon by the members of the First Division who reached the same
conclusion as the members of the Third Division of the Court. 3. Whether or not Dr. Neri's alleged extra-marital affair precludes him from filing
the criminal complaint on the ground of pari delicto; and
In his Motion for Reconsideration in G.R. No. 96602, petitioner Arroyo made the
following contentions: 4. Whether or not Dr. Neri's manifestation is sufficient basis for the granting of a
new trial.
1. Dr. Neri's affidavit of desistance which states that the case was filed out of "pure
misunderstanding' raises questions as to the truth of the alleged admission made Deliberating on the:
by Mrs. Neri;
1. Motion for Reconsideration in G.R. No. 96602, the Court believes that petitioner
2. The other prosecution witnesses' corroborative testimonies merely proved the Arroyo has failed to show any ground that would warrant the Court reversing its
existence of an illicit affair but not that adultery was committed on the date and Resolution dated 24 April 1991; and on the
place in question;
2. Petition for Review docketed as G.R. No. 96715, the Court considers that
3. Mrs. Neri's separate petition for review raised the issue of Dr. Neri's alleged petitioner Ruby Vera Neri has failed to show reversible error on the part of the
subsequent marriage to another woman which, if proven would preclude either of Court of Appeals in issuing its Decision dated 21 May 1990 and its Resolution,
the spouses from filing charges of adultery or concubinage against each other. dated 18 December 1990.

In G.R. No. 96715, petitioner Neri imputes the following errors to the Court of Petitioner Arroyo did not convince this Court in G.R. No. 96602 to dismiss the
Appeals: criminal case on the basis of Dr. Neri's pardon. He, together with petitioner Neri,
now cites the same affidavit in the effort to cast doubts on the credibility of Dr.
Neri's testimony given before the trial court. However, in the Court's Resolution,
1. The Honorable Court of Appeals gravely erred in not granting the motion for dated 24 April 1991, dismissing the Petition for certiorari in G.R. No. 96602, the
reconsideration and/or new trial of the petitioner; Court held that:

2. The Honorable Court of Appeals gravely erred by violating the constitutional It has been our constant holding that:
rights of petitioner against self-incrimination;
In certiorari proceedings under Rule 45, the findings of fact of the lower court as
3. The Honorable Court of Appeals erred in failing to take into consideration the well itsconclusions on credibility of witnesses are generally not disturbed, the
material inconsistencies of the testimony of the complaining witness; and question before the court being limited to questions of law (Rule 45, Sec. 2).
Specifically, the conclusions of the trial court on the credibility of witnesses are
4. The Honorable Court of Appeals gravely erred in discarding medical testimony given considerable weight, since said court is in the best position to observe the
as to the physical impossibility of the petitioner to have committed the crime demeanor, conduct and attitude of witnesses at the trial. (Aguirre v. People, 155
charged. 6 SCRA 337 [1987]; emphasis supplied)
Thus, the claim that Dr. Neri's testimony is incredible is unavailing at this and understood all of it. An oral confession need not be repeated verbatim, but in
stage. Besides, the Court does not believe that such an admission by an unfaithful such case it must be given in its substance.
wife was inherently improbable or impossible. 7 (Emphasis supplied)
Compliance with the constitutional procedures on custodial investigation is not
The Court, in the said Resolution of 24 April 1991, had likewise ruled on the claim applicable to a spontaneous statement, not elicited through questioning, but given
that Mrs. Neri's constitutional right against self-incrimination had been disregarded in an ordinary manner, whereby the accused orally admitted having slain the
when her admission to her husband in the privacy of their conjugal home that she victim.
had indeed lain with petitioner Arroyo was taken into account by the trial court, to
wit: We also note that the husband is not precluded under the Rules of Court from
testifying against his wife in criminal cases for a crime committed by one against
Dr. Jorge Neri was also presented as a witness and he testified that sometime in the other (Section 22, Rule 129, Revised Rules of Court).
December of 1982, he surprised his wife while she was looking at some
photographs in their bedroom in their house in Dasmariñas Village, Makati. In short, the trial court and the Court of Appeals did not err in admitting Dr. Neri's
Accused Ruby Vera Neri then turned pale and started for the door. Struck by this testimony as he was a competent witness. Neither was said testimony rendered
unusual behavior, Dr. Neri started looking around the dressing room and he came inadmissible by the constitutional provision on the right to remain silent and the
upon a Kodak envelope with film negatives inside. He took the negatives for right to counsel of a "person under investigation for the commission of an offense."
printing and a few days later, armed with the photographs which showed his wife
in intimate bedroom poses with another man, confronted Ruby Vera Neri. It was at
this point that Ruby Vera Neri admitted to her husband that Eduardo Arroyo was Petitioner next claims that the trial court erred in convicting him on the basis of the
her lover and that they went to bed in Baguio on 2 and 3 November 1982. failure of Ruby Vera Neri to take the witness stand. In People v. Gargoles (83 SCRA
282 [1978]), it was held that:
xxx xxx xxx
We have held that an accused has the right to decline to testify at the trial without
having any inference of guilt drawn from his failure to go on the witness stand.
As to the constitutional issue, we held in Gamboa v. Cruz (162 SCRA 642 [1988]) Thus, a verdict of conviction on the basis, solely or mainly, of the failure or refusal
that: of the accused to take the witness stand to deny the charges against him is a
judicial heresy which cannot be countenanced. Invariably, any such verdict
The right to counsel attaches upon the start of an investigation, i.e., when deserves to be reserved.
theinvestigating officer starts to ask questions to elicit information and/or
confession or admissions from respondent-accused.(emphasis supplied) Such situation does not obtain, however, in the case at bar. For while the trial
court took note of the failure of defendant to take the witness stand to deny the
In the present case, Dr. Neri was not a peace officer nor an investigating officer charge against him,the same was not the main reason, much less the sole basis, of
conducting a custodial interrogation, hence, petitioner cannot now claim that Mrs. the trial court in holding, as credible the testimony of complainant, and in
Neri's admission should have been rejected. ultimately concluding that the crime of rape had been committed by the accused-
appellant. (Emphasis supplied)
In the case of Aballe v. People (183 SCRA 196 [1990]), the Court held:
Examination of the trial court decision here shows that said failure to testify was
The declaration of an accused expressly acknowledging his guilt of the offense not the sole nor the main basis of the conviction. Aside from accused's failure to
may be given in evidence against him. deny Dr. Neri's testimony, the trial court also considered the testimonies of Dr.
Neri and other prosecution witnesses and the photographs of the two accused in
intimate poses (and three of which showed them half naked in bed). 8 (Emphasis
The rule is that any person, otherwise competent as witness, who heard the supplied)
confession, is competent to testify as to substance of what he heard if he heard
We turn to the contention that pari-delicto "is a valid defense to a prosecution for the testimony of the witnesses submitted on the motion for the new trial.
adultery and concubinage and that in such a case "it would be only a hypocritical Moreover,recanting testimony is exceedingly unreliable, and it is the duty of the
pretense for such spouse to appear in court as the offended spouse." 9 court to deny a new trial where it is not satisfied that such testimony is
true. ... 15 (Emphasis supplied)
In the first place, the case cited does not support petitioner Neri's position. In
the Guinucud case, the Court found that the complaining husband, by entering into Succinctly put, the Court doubts the truthfulness and reliability of Dr. Neri's belated
an agreement with his wife that each of them were to live separately and could recantation. Dr. Neri had two (2) previous occasions to make the claim contained
marry other persons and by filing complaint only about a year after discovering his in his manifestation: first, in the compromise agreement 16dated 16 February
wife's infidelity, had "consented to, and acquiesced in, the adulterous relations 1989 submitted before the Regional Trial Court of Makati, Branch 149 in relation to
existing between the accused, and he is, therefore, not authorized by law to Civil Case No. M-001; and second, his affidavit 17 dated 23 November 1988
institute the criminal proceedings." In fine, the Guinucud case refers not to the submitted to the Court of Appeals. Instead, however, these two (2) documents
notion of pari delicto but to consent as a bar to the institution of the criminal merely stated that Dr. Neri had pardoned petitioners 18 and the complaint was
proceedings. In the present case, no such acquiescence can be implied: the filed out of "pure misunderstanding" 19 without hinting that Dr. Neri knew of the
accused did not enter into any agreement with Dr. Neri allowing each other to adulterous relations. It appears to the Court that Dr. Neri's manifestation was so
marry or cohabit with other persons; and Dr. Neri promptly filed his complaint after worded as to attempt to cure the deficiency noted by the Court in the two (2)
discovering the illicit affair. previous documents in the disposition of the petition in G.R. No. 96602:

Moreover, the concept of pari delicto is not found in the Revised Penal Code, but Petitioner will find no solace in the cases he cites, in support of his prayer to
only in Article 1411 of the Civil Code. The Court notes that Article 1411 of the Civil dismiss the case based on Dr. Neri's pardon. People v. Camara (100 Phil. 1098
Code relates only to contracts with illegal consideration.10 The case at bar does (1957) is inapplicable as the affidavit there expressly stated that the wife had
not involve any illegal contract which either of the contracting parties is now consented to the illicit relationship. In Gomez v. Intermediate Appellate Court (135
seeking to enforce. SCRA 620 [1985]) a case involving estafa, the criminal case was dismissed as the
affidavit of desistance specifically stated that the accused had nothing to do
Petitioners also contend that Dr. Neri's manifestation which reads: whatsoever with the crime charged. In the present case, the pardon did not state
that Dr. Neri had consented to the illicit relationship petitioner and Mrs. Neri.
Neither did it state that the case was filed against the wrong parties. 20
2. Even before I filed the complaint in court and before the pardon that I had
extended to my wife and her co-accused, I was in reality aware of what was going
on between and therefore, tacitly consented to my wife's infidelity, ... Moreover, while the manifestation is dated 14 May 1991, which incidentally is also
the date of petitioner Arroyo's motion for reconsideration, it was subscribed to only
on 23 August 1991.
should result in the dismissal of the case or, at the very least, in the remand of the
case for new trial claiming that in People v. Camara 11 it was held that "the
consent of the spouse is valid defense to a prosecution for adultery and/or Petitioner Neri also contends that Dr. Neri's affidavit of desistance and the
concubinage." 12 compromise agreement operate as a pardon meriting a new trial. The Court notes
that the cases of People v. Camara (supra) and Gomez v. Intermediate Appellate
Court (supra) were the very same cases which petitioner Arroyo cited in G.R. No.
Dr. Neri's manifestation amounts in effect to an attempted recantation of 96602 which the Court has already held to be inapplicable in the present case.
testimony given by him before the trial court. It is settled that not all recantations
by witnesses should result in the granting of a new trial. 13 In People v. Follantes
and Jacinto, 14 it was held that: The rule on pardon is found in Article 344 of the Revised Penal Code which
provides:
... [R]ecantation by witnesses called on behalf of the prosecution does not
necessarily entitle defendant to a new trial. The question whether a new trial shall ART. 344. ... — The crime of adultery and concubinage shall not be prosecuted
be granted on this ground depends on all the circumstances of the case, including except upon a complaint filed by the offended spouse.
The offended party cannot institute criminal prosecution without including both ... The husband being the head of the family and the only person who could
parties, if they are both alive, nor in any case, if he shall have consented institute the prosecution and control its effects, it is quite clear that the principal
or pardoned the offenders. object in penalizing the offense by the state was to protect the purity of the family
and the honor of the husband, but now the conduct of the prosecution, after it is
xxx xxx xxx once commenced by the husband, and the enforcement of the penalties imposed
is also a matter of public policy in which the Government is vitally interested to the
extent of preserving the public peace and providing for thegeneral welfare of the
While there is a conceptual difference between consent and pardon in the sense community. ... 25 (Emphasis supplied)
that consent is granted prior to the adulterous act while pardon is given after the
illicit affair, 21 nevertheless, for either consent or pardon to benefit the accused, it
must be given prior to the filing of a criminal complaint. 22 In the present case, the As to the claim that it was impossible for petitioner Neri to engage in sexual
affidavit of desistance was executed only on 23 November 1988 while the intercourse a month after her ceasarian operation, the Court agrees with the
compromise agreement was executed only on 16 February 1989, after the trial Solicitor General that this is a question of fact which cannot be raised at this stage.
court had already rendered its decision dated 17 December 1987 finding In any case, we find no reason to overturn the Court of Appeals' finding that "a
petitioners guilty beyond reasonable doubt. Dr. Neri's manifestation is both dated woman who has the staying power to volley tennis bags for fifteen minutes at the
and signed after issuance of our Resolution in G.R. No. 96602 on 24 April 1991. [John Hay] tennis court would not be incapable of doing the sexual act" which ball
play was followed, as noted by the Court of Appeals "by a picture taking of both
accused in different intimate poses." 26
It should also be noted that while Article 344 of the Revise Penal Code provides
that the crime of adultery cannot be prosecuted without the offended spouse's
complaint, once the complaint has been filed, the control of the case passes to the ACCORDINGLY, the Motion for Reconsideration in G.R. No. 96602 is hereby DENIED
public prosecutor. 23 Enforcement of our law on adultery is not exclusively, nor for lack of merit and this denial is FINAL. The Petition for Review in G.R. No. 96715
even principally, a matter of vindication of the private honor of the offended is hereby similarly DENIED for lack of merit. Costs against petitioners.
spouse; much less is it a matter merely of personal or social hypocrisy. Such
enforcement relates, more importantly, to protection of the basic social institutions Let a copy of this Resolution and of Dr. Neri's Manifestation and Motion subscribed
of marriage and the family in the preservation of which the State has the strongest on 23 August 1991 be forwarded to the Department of Justice for inquiry into the
interest; the public policy here involved is of the most fundamental kind. In Article possible liability of Dr. Neri for perjury.
II, Section 12 of the Constitution there is set forth the following basic state policy:
Narvasa (Chairman), Cruz, Griño-Aquino and Medialdea, JJ., concur.
The State recognizes the sanctity of family life and shall protect find strengthen
the family as a basic autonomous social institution ...

The same sentiment has been expressed in the Family Code o the Philippines in
Article 149:

The family, being the foundation of the ration, is a basic social institution which
public policy cherishes and protects. Consequently, family relations are governed
by law and no custom, practice or agreement destructive of the family shall be
recognized or given effect.

In U.S. v. Topiño, 24 the Court held that:


G.R. No. L-10699 October 18, 1957

WILLIAM H. BROWN, plaintiff-appellant,


vs.
JUANITA YAMBAO, defendant-appellee.

Jimenez B. Buendia for appellant.


Assistant City Fiscal Rafel A. Jose for appellee.

REYES, J.B.L., J.:

On July 14, 1955, William H. Brown filed suit in the Court of First Instance of Manila
to obtain legal separation from his lawful wife Juanita Yambao. He alleged under
oath that while interned by the Japanese invaders, from 1942 to 1945, at the
University of Sto. Tomas internment camp, his wife engaged in adulterous relations
with one Carlos Field of whom she begot a baby girl that Brown learned of his wifes
misconduct only in 1945, upon his release from internment; that thereafter the
spouse lived separately and later executed a document (Annex A ) liquidating their
conjugal partnership and assigning certain properties to the erring wife as her
share. The complaint prayed for confirmation of the liquidation agreement; for
custody of the children issued of the marriage; that the defendant be declared
disqualified to succeed the plaintiff; and for their remedy as might be just and
equitable.

Upon petition of the plaintiff, the court subsequently declared the wife in default,
for failure to answer in due time, despite service of summons; and directed the
City Fiscal or his representatives to—

investigate, in accordance with Article 101 of the Civil Code, whether or not a
collusion exists between the parties and to report to this Court the result of his
investigation within fifteen (15) days from receipt of copy of this order. The City
Fiscal or his representative is also directed to intervene in the case in behalf of the
State. (Rec. App. p. 9).

As ordered, Assistant City Fiscal Rafael Jose appeared at the trial, and cross-
Republic of the Philippines examined plaintiff Brown. His questions (strenuously objected to by Brown's
SUPREME COURT counsel) elicited the fact that after liberation, Brown had lived maritally with
Manila another woman and had begotten children by her. Thereafter, the court rendered
judgment denying the legal separation asked, on the ground that, while the wife's
EN BANC adultery was established, Brown had incurred in a misconduct of similar nature
that barred his right of action under Article 100 of the new Civil Code, providing:
ART. 100. The legal separation may be claimed only by the innocent spouse, the wife's default was calculated, or agreed upon, to enable appellant to obtain the
provided there has been no condonation or of consent to the adultery or decree of legal separation that he sought without regard to the legal merits of his
concubinage. Where both spouses are offenders, a legal separation cannot be case. One such circumstance is obviously the fact of Brown's cohabitation with a
claimed by either of them. Collusion between the parties to obtain legal separation woman other than his wife, since it bars him from claiming legal separation by
shall cause the dismissal of the petition. express provision of Article 100 of the new Civil Code. Wherefore, such evidence of
such misconduct, were proper subject of inquiry as they may justifiably be
that there had been consent and connivance, and because Brown's action had considered circumstantial evidence of collusion between the spouses.
prescribed under Article 102 of the same Code:
The policy of Article 101 of the new Civil Code, calling for the intervention of the
ART. 102 An action for legal separation cannot be filed except within one year from state attorneys in case of uncontested proceedings for legal separation (and of
and after the date on which the plaintiff became cognizant of the cause and within annulment of marriages, under Article 88), is to emphasize that marriage is more
five years from and after date when such cause occurred. than a mere contract; that it is a social institution in which the state is vitally
interested, so that its continuation or interruption cannot be made depend upon
the parties themselves (Civil Code, Article 52; Adong vs, Cheong Gee, 43 Phil, 43;
since the evidence showed that the learned of his wife's infidelity in 1945 but only Ramirez vs. Gmur 42 Phil. 855; Goitia vs. Campos, 35 Phil. 252). It is consonant
filed action in 1945. with this policy that the injury by the Fiscal should be allowed to focus upon any
relevant matter that may indicate whether the proceedings for separation or
Brown appeared to this Court, assigning the following errors: annulment are fully justified or not.

The court erred in permitting the Assistant Fiscal Rafel Jose of Manila to act as The court below also found, and correctly held that the appellant's action was
counsel for the defendant, who defaulted. already barred, because Brown did not petition for legal separation proceedings
until ten years after he learned of his wife's adultery, which was upon his release
The court erred in declaring that there was condonation of or consent to the from internment in 1945. Under Article 102 of the new Civil Code, action for legal
adultery. separation can not be filed except within one (1) year from and after the plaintiff
became cognizant of the cause and within five years from and after the date when
such cause occurred. Appellant's brief does not even contest the correctness of
The court erred in dismissing the plaintiff's complaint. such findings and conclusion.

Appellant Brown argues that in cross-examining him with regard to his marital It is true that the wife has not interposed prescription as a defense. Nevertheless,
relation with Lilia Deito, who was not his wife, the Assistant Fiscal acted as consel the courts can take cognizance thereof, because actions seeking a decree of legal
for the defaulting wife, "when the power of the prosecuting officer is limited to separation, or annulment of marriage, involve public interest and it is the policy of
finding out whether or not there is collusion, and if there is no collusion, which is our law that no such decree be issued if any legal obstacles thereto appear upon
the fact in the case at bar, to intervene for the state which is not the fact in the the record.
instant case, the truth of the matter being that he intervened for Juanita Yambao,
the defendant-appellee, who is private citizen and who is far from being the
state.". Hence, there being at least two well established statutory grounds for denying the
remedy sought (commission of similar offense by petitioner and prescription of the
action), it becomes unnecesary to delve further into the case and ascertain if
The argument is untenable. Collusion in matrimonial cases being "the act of Brown's inaction for ten years also evidences condonation or connivance on his
married persons in procuring a divorce by mutual consent, whether by part. Even if it did not, his situation would not be improved. It is thus needless to
preconcerted commission by one of a matrimonial offense, or by failure, in discuss the second assignment of error.
pursuance of agreement to defend divorce proceedings" (Cyclopedia Law
Dictionary; Nelson, Divorce and Separation, Section 500), it was legitimate for the
Fiscal to bring to light any circumstances that could give rise to the inference that
The third assignment of error being a mere consequence of the others must
necessarily fail with them.

The decision appealed from is affirmed, with costs against appellant. So ordered.

Bengzon, Paras, C.J., Padilla, Montemayor, Reyes, A., Bautista Angelo, Labrador,
Concepcion, Endencia and Felix, JJ., concur. Republic of the Philippines
SUPREME COURT
Manila

THIRD DIVISION

G.R. No. L-53880 March 17, 1994

ENRICO L. PACETE, CLARITA DE LA CONCEPCION, EMELDA C. PACETE,


EVELINA C. PACETE and EDUARDO C. PACETE, petitioners,
vs.
HON. GLICERIO V. CARRIAGA, JR. and CONCEPCION (CONCHITA) ALANIS
PACETE, respondents.

Juan G. Sibug and Rodolfo B. Quiachon for petitioners.

Julio F. Andres, Jr. for private respondent.

VITUG, J.:

The issue in this petition for certiorari is whether or not the Court of First Instance
(now Regional Trial Court) of Cotabato, Branch I, in Cotabato City, gravely abused
its discretion in denying petitioners' motion for extension of time to file their
answer in Civil Case No. 2518, in declaring petitioners in default and
in rendering its decision of 17 March 1980 which, among other things, decreed the
legal separation of petitioner Enrico L. Pacete and private respondent Concepcion
Alanis and held to be null and void ab initio the marriage of Enrico L. Pacete to
Clarita de la Concepcion.
On 29 October 1979, Concepcion Alanis filed with the court below a complaint for 1. The issuance of a Decree of Legal Separation of the marriage between, the
the declaration of nullity of the marriage between her erstwhile husband Enrico L. plaintiff, Concepcion (Conchita) Alanis Pacete and the herein defendants, Enrico L.
Pacete and one Clarita de la Concepcion, as well as for legal separation (between Pacete, in accordance with the Philippine laws and with consequences, as provided
Alanis and Pacete), accounting and separation of property. In her complaint, she for by our laws;
averred that she was married to Pacete on 30 April 1938 before the Justice of the
Peace of Cotabato, Cotabato; that they had a child named Consuelo who was born 2. That the following properties are hereby declared as the conjugal properties of
on 11 March 1943; that Pacete subsequently contracted (in 1948) a second the partnership of the plaintiff, Concepcion (Conchita) Alanis Pacete and the
marriage with Clarita de la Concepcion in Kidapawan, North Cotabato; that she defendant, Enrico L. Pacete, half and half, to wit:
learned of such marriage only on 01 August 1979; that during her marriage to
Pacete, the latter acquired vast property consisting of large tracts of land,
fishponds and several motor vehicles; that he fraudulently placed the several 1. The parcel of land covered by TCT No. V-815 which is a parcel of land situated in
pieces of property either in his name and Clarita or in the names of his children the barrio of Langcong, Municipality of Matanog (previously of Parang), province of
with Clarita and other "dummies;" that Pacete ignored overtures for an amicable Maguindanao (previously of Cotabato province) with an area of 45,265 square
settlement; and that reconciliation between her and Pacete was impossible since meters registered in the name of Enrico Pacete, Filipino, of legal age, married to
he evidently preferred to continue living with Clarita. Conchita Alanis as shown in Exhibits "B" and "B-1" for the plaintiff.

The defendants were each served with summons on 15 November 1979. They filed 2. A parcel of land covered by Transfer Certificate of Title No. T-20442, with an
a motion for an extension of twenty (20) days from 30 November 1979 within area of 538 square meters and covered by Tax Declaration No. 2650 (74) in the
which to file an answer. The court granted the motion. On 18 December 1979, name of Enrico Pacete, situated in the Poblacion of Kidapawan, North Cotabato,
appearing through a new counsel, the defendants filed a second motion for an together with all its improvements, which parcel of land, as shown by Exhibits "K-
extension of another thirty (30) days from 20 December 1979. On 07 January 1" was acquired by way of absolute deed of sale executed by Amrosio Mondog on
1980, the lower court granted the motion but only for twenty (20) days to be January 14, 1965.
counted from 20 December 1979 or until 09 January 1980. The Order of the court
was mailed to defendants' counsel on 11 January 1980. Likely still unaware of the 3. A parcel of land covered by Transfer Certificate of Title No. T-20424 and covered
court order, the defendants, on 05 February 1980, again filed another motion by Tax Declaration No. 803 (74), with an area of 5.1670 hectares, more or less, as
(dated 18 January 1980) for an extension of "fifteen (15) days counted from the shown by Exhibit "R", the same was registered in the name of Enrico Pacete and
expiration of the 30-day period previously sought" within which to file an answer. the same was acquired by Enrico Pacete last February 17, 1967 from Ambag
The following day, or on 06 February 1980, the court denied this last motion on the Ampoy, as shown by Exhibit "R-1", situated at Musan, Kidapawan, North Cotabato.
ground that it was "filed after the original period given . . . as first extension had
expired." 1 4. A parcel of land situated at Lanao, Kidapawan, North Cotabato, with an area of
5.0567 hectares, covered by Tax Declaration No. 4332 (74), as shown by Exhibit
The plaintiff thereupon filed a motion to declare the defendants in default, which "S", and registered in the name of Enrico Pacete.
the court forthwith granted. The plaintiff was then directed to present her
evidence. 2 The court received plaintiff's evidence during the hearings held on 15, 5. A parcel of land covered by Transfer Certificate of Title No. T-9750, situated at
20, 21 and 22 February 1980. Lika, Mlang, North Cotabato, with an area of 4.9841 hectares and the same is
covered by Tax Declaration No. 803 (74) and registered in the name of Enrico
On 17 March 1980, the court 3 promulgated the herein questioned decision, Pacete and which land was acquired by Enrico Pacete from Salvador Pacete on
disposing of the case, thus — September 24, 1962, as shown by Exhibit "Q-1".

WHEREFORE, order is hereby issued ordering: 6. A parcel of land covered by Transfer Certificate of Title No. T-9944, with an area
of 9.9566 and also covered by Tax Declaration No. 8608 (74) and registered in the
name of the defendant Enrico L. Pacete which Enrico L. Pacete acquired from
Sancho Balingcos last October 22, 1962, as shown by Exhibit "L-1" and which 5. Ordering likewise the cancellation of Original Certificate of Title No. P-29890,
parcel of land is situated at (Kialab), Kiab, Matalam, North Cotabato. covering Lot 1068, situated at Kiab, Matalam, North Cotabato, with an area of
12.1031 hectares, in the name of Emelda C. Pacete and the issuance of a new
7. A parcel of land covered by Transfer Certificate of Title No. T-9227, situated at Transfer Certificate of Title in the joint name (half and half) of Concepcion
Kiab, Matalam, North Cotabato, with an area of 12.04339 hectares, more or less, (Conchita) Alanis Pacete and Enrico L. Pacete; and declaring that the fishpond
and also covered by Tax Declaration No. 8607 (74) both in the name of the situated at Barrio Tumanan, Bislig, Surigao Del Sur, with an area of 48 hectares
defendant Enrico L. Pacete which he acquired last October 15, 1962 from Minda and covered by Fishpond Lease Agreement of Emelda C. Pacete, dated July 29,
Bernardino, as shown by Exhibit "M-1". 1977 be cancelled and in lieu thereof, the joint name of Concepcion (Conchita)
Alanis Pacete and her husband, Enrico L. Pacete, be registered as their joint
property, including the 50 hectares fishpond situated in the same place, Barrio
8. A parcel of land covered by Transfer Certificate of Title No. T-9228, situated at Timanan, Bislig, Surigao del Sur.
Kiab, Matalam, North Cotabato, with an area of 10.8908 hectares, registered in the
name of Enrico Pacete and also covered by Tax Declaration No. 5781 (74) in the
name of Enrico Pacete and which parcel of land he acquired last September 25, 6. Ordering the following motor vehicles to be the joint properties of the conjugal
1962 from Conchita dela Torre, as shown by Exhibit "P-1". partnership of Concepcion (Conchita) Alanis Pacete and Enrico L. Pacete, viz:

9. A parcel of land covered by Transfer Certificate of Title No. T-10301, situated at a. Motor vehicle with Plate No. T-RG-783; Make, Dodge; Motor No. T137-20561;
Linao, Matalam, North Cotabato, with an area of 7.2547 hectares, registered in the Chassis No. 83920393, and Type, Mcarrier;
name of Enrico Pacete and also covered by Tax Declaration No. 8716 (74) also in
the name of Enrico Pacete which Enrico Pacete acquired from Agustin Bijo last July b. Motor vehicle with Plate No. T-RG-784; Make, Dodge; Motor No. T214-229547;
16, 1963, as shown by Exhibit "N-1". Chassis No. 10D-1302-C; and Type, Mcarrier;

10. A parcel of land covered by Transfer Certificate of Title No. 12728 in the name c. Motor vehicle with Plate No. J-PR-818; Make, Ford; Motor No. GRW-116188;
of the defendant, Enrico L. Pacete, with an area of 10.9006 hectares, situated at Chassis No. HOCC-GPW-1161-88-C; Type, Jeep;
Linao, Matalam, North Cotabato and is also covered by Tax Declaration No. 5745
(74) in the name of Enrico Pacete, as shown on Exhibit "O" and which Enrico d. Motor vehicle with Plate No. TH-5J-583; Make, Ford: Motor No. F70MU5-11111;
Pacete acquired last December 31, 1963 from Eliseo Pugni, as shown on Exhibit "0- Chassis No. HOCC-GPW-1161188-G; Type, Stake;
1".
e. Motor vehicle with Plate No. TH-5J-584; Make, Hino; Motor No. ED300-45758;
3. Ordering the Cancellation of Original Certificate of Title No. P-34243 covering Lot Chassis No. KB222-22044; Type, Stake; and
No. 1066, issued in the name of Evelina Pacete, situated at Kiab, Matalam, North
Cotabato, and ordering the registration of the same in the joint name of
Concepcion (Conchita) Alanis Pacete and Enrico L. Pacete as their conjugal f. Motor vehicle with Plate No. TH-5J-585; Make, Ford: Motor No. LTC-780-Dv;
property, with address on the part of Concepcion (Conchita) Alanis Pacete at Chassis No. 10F-13582-K; Type, Stake.
Parang, Maguindanao and on the part of Enrico L. Pacete at Kidapawan, North
Cotabato. 7. Ordering the defendant Enrico L. Pacete to pay the plaintiff the sum of
P46,950.00 which is the share of the plaintiff in the unaccounted income of the
4. Ordering likewise the cancellation of Original Certificate of Title No. V-20101, ricemill and corn sheller for three years from 1971 to 1973.
covering Lot No. 77, in the name of Eduardo C. Pacete, situated at New Lawaan,
Mlang, North Cotabato, and the issuance of a new Transfer Certificate of Title in 8. Ordering the defendant, Enrico L. Pacete, to reimburse the plaintiff the monetary
the joint name of (half and half) Concepcion (Conchita) Alanis Pacete and Enrico L. equipment of 30% of whether the plaintiff has recovered as attorney's fees;
Pacete.
9. Declaring the subsequent marriage between defendant Enrico L. Pacete and Article 103 of the Civil Code, now Article 58 of the Family Code, further mandates
Clarita de la Concepcion to be void ab initio; and that an action for legal separation must "in no case be tried before six months shall
have elapsed since the filing of the petition," obviously in order to provide the
10. Ordering the defendants to pay the costs of this suit. 4 parties a "cooling-off" period. In this interim, the court should take steps toward
getting the parties to reconcile.
Hence, the instant special civil action of certiorari.
The significance of the above substantive provisions of the law is further
underscored by the inclusion of the following provision in Rule 18 of the Rules of
Under ordinary circumstances, the petition would have outrightly been dismissed, Court:
for, as also pointed out by private respondents, the proper remedy of petitioners
should have instead been either to appeal from the judgment by default or to file a
petition for relief from judgment. 5 This rule, however, is not inflexible; a petition Sec. 6. No defaults in actions for annulments of marriage or for legal separation. —
forcertiorari is allowed when the default order is improperly declared, or even If the defendant in an action for annulment of marriage or for legal separation fails
when it is properly declared, where grave abuse of discretion attended such to answer, the court shall order the prosecuting attorney to investigate whether or
declaration. 6 In these exceptional instances, the special civil action ofcertiorari to not a collusion between the parties exists, and if there is no collusion, to intervene
declare the nullity of a judgment by default is available. 7 In the case at bench, the for the State in order to see to it that the evidence submitted is not fabricated.
default order unquestionably is not legally sanctioned. The Civil Code provides:
The special prescriptions on actions that can put the integrity of marriage to
Art. 101. No decree of legal separation shall be promulgated upon a stipulation of possible jeopardy are impelled by no less than the State's interest in the marriage
facts or by confession of judgment. relation and its avowed intention not to leave the matter within the exclusive
domain and the vagaries of the parties to alone dictate.
In case of non-appearance of the defendant, the court shall order the prosecuting
attorney to inquire whether or not a collusion between the parties exists. If there is It is clear that the petitioner did, in fact, specifically pray for legal
no collusion, the prosecuting attorney shall intervene for the State in order to take separation. 11 That other remedies, whether principal or incidental, have likewise
care that the evidence for the plaintiff is not fabricated. been sought in the same action cannot dispense, nor excuse compliance, with any
of the statutory requirements aforequoted.
The provision has been taken from Article 30 of the California Civil Code, 8 and it is,
in substance, reproduced in Article 60 of the Family Code. 9 WHEREFORE, the petition for certiorari is hereby GRANTED and the proceedings
below, including the Decision of 17 March 1980 appealed from, are NULLIFIED and
SET ASIDE. No costs.
Article 101 reflects the public policy on marriages, and it should easily explain the
mandatory tenor of the law. InBrown v. Yambao, 10 the Court has observed:
SO ORDERED.
The policy of Article 101 of the new Civil Code, calling for the intervention of the
state attorneys in case of uncontested proceedings for legal separation (and of Feliciano, Bidin, Romero and Melo, JJ., concur.
annulment of marriages, under Article 88), is to emphasize that marriage is more
than a mere contract; that it is a social institution in which the state is vitally
interested, so that its continuation or interruption can not be made to depend upon
the parties themselves (Civil Code, Article 52; Adong vs. Cheong Gee, 43 Phil. 43; Republic of the Philippines
Ramirez v. Gmur, 42 Phil. 855; Goitia v. Campos, 35 Phil. 252). It is consonant with SUPREME COURT
this policy that the inquiry by the Fiscal should be allowed to focus upon any Manila
relevant matter that may indicate whether the proceedings for separation or
annulment are fully justified or not.
FIRST DIVISION
G.R. No. 106169 February 14, 1994 In her prayer, she asked the court to grant the decree of legal separation and order
the liquidation of their conjugal properties, with forfeiture of her husband's share
SAMSON T. SABALONES, petitioner, therein because of his adultery. She also prayed that it enjoin the petitioner and
vs. his agents from a) disturbing the occupants of the Forbes Park property and b)
THE COURT OF APPEALS and REMEDIOS GAVIOLA- disposing of or encumbering any of the conjugal properties.
SABALONES, respondents.
After trial, Judge Mariano M. Umali, found that the petitioner had indeed contracted
Leven S. Puno for petitioner. a bigamous marriage on October 5, 1981, with Thelma Cumareng, to whom he had
returned upon his retirement in 1985 at a separate residence. The court thus
decreed the legal separation of the spouses and the forfeiture of the petitioner's
Benigno M. Puno for private respondent. share in the conjugal properties, declaring as well that he was not entitled to
support from his respondent wife. 1

This decision was appealed to the respondent court. Pendente lite, the respondent
CRUZ, J.: wife filed a motion for the issuance of a writ of preliminary injunction to enjoin the
petitioner from interfering with the administration of their properties in Greenhills
The subject of this petition is the preliminary injunction issued by the respondent and Forbes Park. She alleged inter alia that he had harassed the tenant of the
court pending resolution of a case on appeal. We deal only with this matter and not Forbes Park property by informing him that his lease would not be renewed. She
the merits of the case. also complained that the petitioner had disposed of one of their valuable conjugal
properties in the United States in favor of his paramour, to the prejudice of his
legitimate wife and children.
As a member of our diplomatic service assigned to different countries during his
successive tours of duties, petitioner Samson T. Sabalones left to his wife, herein
respondent Remedios Gaviola-Sabalones, the administration of some of their The petitioner opposed this motion and filed his own motion to prevent his wife
conjugal, properties for fifteen years. from entering into a new contract of lease over the Forbes Park property with its
present tenant, or with future tenants, without his consent.
Sabalones retired as ambassador in 1985 and came back to the Philippines but not
to his wife and their children. Four years later, he filed an action for judicial After hearing, the Court of Appeals, in an order dated April 7, 1992, granted the
authorization to sell a building and lot located at preliminary injunction prayed for by his wife. 2
#17 Eisenhower St., Greenhills, San Juan, Metro Manila, belonging to the conjugal
partnership. He claimed that he was sixty-eight years old, very sick and living The petitioner now assails this order, arguing that since the law provides for a joint
alone without any income, and that his share of the proceeds of the sale to defray administration of the conjugal properties by the husband and wife, no injunctive
the prohibitive cost of his hospitalization and medical treatment. relief can be issued against one or the other because no right will be violated. In
support of this contention, he cites Art. 124 of the Family Code, reading as follows:
In her answer, the private respondent opposed the authorization and filed a
counterclaim for legal separation. She alleged that the house in Greenhills was Art. 124. The administration and enjoyment of the conjugal partnership property
being occupied by her and their six children and that they were depending for their shall belong to both spouses jointly. In case of disagreement, the husband's
support on the rentals from another conjugal property, a building and lot in Forbes decision shall prevail, subject to recourse to the court by the wife for proper
Park which was on lease to Nobumichi Izumi. She also informed the court that remedy, which must be availed of within five years from the date of the contract
despite her husband's retirement, he had not returned to his legitimate family and implementing such decision.
was instead maintaining a separate residence in Don Antonio Heights, Fairview,
Quezon City, with Thelma Cumareng and their three children. In the event that one spouse is incapacitated or otherwise unable to participate in
the administration of the conjugal properties, the other spouse may assume sole
powers of the administration. These powers do not include disposition or The primary purpose of the provisional remedy of injunction is to preserve
encumbrance without authority of the court or the written consent of the other the status quo of the things subject of the action or the relations between the
spouse. In the absence of such authority or consent, the disposition or parties and thus protect the rights of the plaintiff respecting these matters during
encumbrance shall be void. However, the transaction shall be construed and the the pendency of the suit. Otherwise, the defendant may, before final judgment, do
third person, and may be perfected as a binding contract upon the acceptance by or continue doing the act which the plaintiff asks the court to restrain and thus
the other spouse or the authorization by the court before the offer is withdrawn by make ineffectual the final judgment that may be rendered afterwards in favor of
either or both offerors. the plaintiff. 3

He further notes that the respondent court failed to appoint an administrator of the As observed by Francisco, "Injunction is primarily a preventive remedy. Its province
conjugal assets as mandated by Art. 61 of the Code, thus: is to afford relief against future acts which are against equity and good conscience
and to keep and preserve the thing in the status quo, rather than to remedy what
Art. 61 After the filing of the petition for legal separation, the spouses shall be is past or to punish for wrongful acts already committed. It may issue to prevent
entitled to live separately from each other. future wrongs although no right has yet been violated." 4

The court, in the absence of a written agreement between the spouses, shall The Court notes that the wife has been administering the subject properties for
designate either of them or a third person to administer the absolute community or almost nineteen years now, apparently without complaint on the part of the
conjugal partnership property. The administrator appointed by the court shall have petitioner. He has not alleged, much less shown, that her administration has
the same powers and duties as those of a guardian under the Rules of Court. caused prejudice to the conjugal partnership. What he merely suggests is that the
lease of the Forbes Park property could be renewed on better terms, or he should
at least be given his share of the rentals.
The Court has carefully considered the issues and the arguments of the parties and
finds that the petition has no merit.
In her motion for the issuance of a preliminary injunction, the respondent wife
alleged that the petitioner's harassment of their tenant at Forbes Park
We agree with the respondent court that pending the appointment of an would jeopardize the lease and deprive her and her children of the income
administrator over the whole mass of conjugal assets, the respondent court was therefrom on which they depend for their subsistence. She also testified the
justified in allowing the wife to continue with her administration. It was also numerous . . . including various dollar accounts, two houses in Quezon City and
correct, taking into account the evidence adduced at the hearing, in enjoining the Cebu City, and a Mercedes Benz. The private respondent also complained that on
petitioner from interfering with his wife's administration pending resolution of the June 10, 1991, the petitioner executed a quitclaim over their conjugal property in
appeal. Apple Valley, San Bernardino, California, U.S.A., in favor of Thelma Cumareng, to
improve his paramour's luxurious lifestyle to the prejudice of his legitimate family.
The law does indeed grant to the spouses joint administration over the conjugal
properties as clearly provided in the above-cited Article 124 of the Family Code. These allegations, none of which was refuted by the husband, show that the
However, Article 61, also above quoted, states that after a petition for legal injunction is necessary to protect the interests of the private respondent and her
separation has been filed, the trial court shall, in the absence of a written children and prevent the dissipation of the conjugal assets.
agreement between the couple, appoint either one of the spouses or a third person
to act as the administrator.
The twin requirements of a valid injunction are the existence of a right and its
actual or threatened violation. 5Regardless of the outcome of the appeal, it cannot
While it is true that no formal designation of the administrator has been made, be denied that as the petitioner's legitimate wife (and the complainant and injured
such designation was implicit in the decision of the trial court denying the spouse in the action for legal separation), the private respondent has a right to a
petitioner any share in the conjugal properties (and thus also disqualifying him as share (if not the whole) of the conjugal estate. There is also, in our view, enough
administrator thereof). That designation was in effect approved by the Court of evidence to raise the apprehension that entrusting said estate to the petitioner
Appeals when it issued in favor of the respondent wife the preliminary injunction may result in its improvident disposition to the detriment of his wife and children.
now under challenge.
We agree that inasmuch as the trial court had earlier declared the forfeiture of the
petitioner's share in the conjugal properties, it would be prudent not to allow him
in the meantime to participate in its management.

Let it be stressed that the injunction has not permanently installed the respondent
wife as the administrator of the whole mass of conjugal assets. It has merely
allowed her to continue administering the properties in the meantime without
interference from the petitioner, pending the express designation of the
administrator in accordance with Article 61 of the Family Code.

WHEREFORE, the petition is DENIED for lack of merit. It is so ordered.

Davide, Jr., Bellosillo, Quiason and Kapunan, JJ, concur.

Vous aimerez peut-être aussi