ROMMEL JACINTO DANTES SILVERIO v. REPUBLIC, GR NO.

174689, 2007-10-19
Facts:
petitioner Rommel Jacinto Dantes Silverio filed a petition for the change of his first name and sex in
his birth certificate in the Regional Trial Court of Manila
He further alleged that he is a male transsexual, that is, "anatomically male but feels, thinks and acts as
a female" and that he had always identified himself with girls since childhood.
Feeling trapped in a man's body, he consulted several doctors in... the United States. He underwent
psychological examination, hormone treatment and breast augmentation. His attempts to transform
himself to a "woman" culminated on January 27, 2001 when he underwent sex reassignment surgery[2]
in Bangkok, Thailand.
He then sought to have his name in his birth certificate changed from "Rommel Jacinto" to "Mely," and
his sex from "male" to "female."
The [c]ourt rules in the affirmative.
the Republic of the Philippines (Republic), thru the OSG, filed a petition for certiorari in the Court of
Appeals.[6] It alleged that there is no law allowing the change of entries in the birth certificate by
reason of sex... alteration.
the Court of Appeals[7] rendered a decision[8] in favor of the Republic.
Issues:
The sole issue here is whether or not petitioner is entitled to the relief asked for.
Ruling:
Petitioner's basis in praying for the change of his first name was his sex reassignment. He intended to
make his first name compatible with the sex he thought he transformed himself into through surgery.
RA 9048 does not sanction a change of first name on the ground of sex reassignment.
Before a person can legally change his given name, he must present proper or reasonable cause or any
compelling reason justifying such change.[19] In addition, he must show that he will be prejudiced by
the use of his true and official name.[20] In this case, he failed to show, or even allege, any prejudice
that he might suffer as a result of using his true and official name.
In sum, the petition in the trial court in so far as it prayed for the change of petitioner's first name was
not within that court's primary jurisdiction as the petition should have been filed with the local civil
registrar concerned, assuming it could be legally done. It was an... improper remedy because the proper
remedy was administrative, that is, that provided under RA 9048. It was also filed in the wrong venue
as the proper venue was in the Office of the Civil Registrar of Manila where his birth certificate is kept.
More importantly, it had no merit... since the use of his true and official name does not prejudice him at
all. For all these reasons, the Court of Appeals correctly dismissed petitioner's petition in so far as the
change of his first name was concerned.
The birth certificate of petitioner... contained no error. All entries therein, including those
corresponding to his first name and sex, were all correct. No correction is necessary.
Article 407 of the Civil Code authorizes the entry in the civil registry of certain acts... and judicial
decrees
These acts, events and judicial decrees produce... legal consequences that touch upon the legal capacity,
status and nationality of a person. Their effects are expressly sanctioned by the laws. In contrast, sex
reassignment is not among those acts or events mentioned in Article 407. Neither is it recognized nor
even mentioned by... any law, expressly or impliedly.
Under the Civil Register Law, a birth certificate is a historical record of the facts as they existed at the
time of birth.[29] Thus, the sex of a person is determined at birth, visually done by the birth attendant
(the physician or midwife) by... examining the genitals of the infant. Considering that there is no law
legally recognizing sex reassignment, the determination of a person's sex made at the time of his or her
birth, if not attended by error,[30] is immutable.
For these reasons, while petitioner may have succeeded in altering his body and appearance through the
intervention of modern surgery, no law authorizes the change of entry as to sex in the civil registry for
that reason. Thus, there is no legal basis for his petition for the... correction or change of the entries in
his birth certificate.
Principles:
The State has an interest in the names borne by individuals and entities for purposes of identification.
[11] A change of name is a privilege, not a right.[12] Petitions for change of name are controlled by
statutes.[13] In this connection, Article 376 of the Civil Code provides:
ART. 376. No person can change his name or surname without judicial authority.
This Civil Code provision was amended by RA 9048 (Clerical Error Law). In particular, Section 1 of
RA 9048 provides:
SECTION 1. Authority to Correct Clerical or Typographical Error and Change of First Name or
Nickname. No entry in a civil register shall be changed or corrected without a judicial order, except for
clerical or typographical errors and change of first name or... nickname which can be corrected or
changed by the concerned city or municipal civil registrar or consul general in accordance with the
provisions of this Act and its implementing rules and regulations.
RA 9048 now governs the change of first name.[14] It vests the power and authority to entertain
petitions for change of first name to the city or municipal civil registrar or consul general concerned.
Under the law, therefore, jurisdiction over applications... for change of first name is now primarily
lodged with the aforementioned administrative officers. The intent and effect of the law is to exclude
the change of first name from the coverage of Rules 103... and 108... f the Rules of Court, until and
unless an administrative petition for change of name is first filed and subsequently denied.
RA 9048 likewise provides the grounds for which change of first name may be allowed:
SECTION 4. Grounds for Change of First Name or Nickname. The petition for change of first name or
nickname may be allowed in any of the following cases:
(1)
The petitioner finds the first name or nickname to be ridiculous, tainted with dishonor or extremely
difficult to write or pronounce;
(2)
The new first name or nickname has been habitually and continuously used by the petitioner and he has
been publicly known by that first name or nickname in the community; or
(3)
The change will avoid confusion.
Under RA 9048, a correction in the civil registry involving the change of sex is not a mere clerical or
typographical error. It is a substantial change for which the applicable procedure is Rule 108 of the
Rules of Court.
The entries envisaged in Article 412 of the Civil Code and correctable under Rule 108 of the Rules of
Court are those provided in Articles 407 and 408 of the Civil Code:[24]
ART. 407. Acts, events and judicial decrees concerning the civil status of persons shall be recorded in
the civil register.
ART. 408. The following shall be entered in the civil register:
(1) Births; (2) marriages; (3) deaths; (4) legal separations; (5) annulments of marriage; (6) judgments
declaring marriages void from the beginning; (7) legitimations; (8) adoptions; (9) acknowledgments of
natural children; (10) naturalization; (11) loss, or (12) recovery of... citizenship; (13) civil interdiction;
(14) judicial determination of filiation; (15) voluntary emancipation of a minor; and (16) changes of
name.
The acts, events or factual errors contemplated under Article 407 of the Civil Code include even those
that occur after birth.[25] However, no reasonable interpretation of the provision can justify the
conclusion that it covers the correction on the ground... of sex reassignment.
"Status" refers to the circumstances affecting the legal situation (that is, the sum total of capacities and
incapacities) of a person in view of his age, nationality and his family membership.
The status of a person in law includes all his personal qualities and relations, more or less permanent in
nature, not ordinarily terminable at his own will, such as his being legitimate or illegitimate, or his
being married or not. The comprehensive term... status… include such matters as the beginning and
end of legal personality, capacity to have rights in general, family relations, and its various aspects,
such as birth, legitimation, adoption, emancipation, marriage, divorce, and sometimes even succession.
[28] (emphasis supplied)
A person's sex is an essential factor in marriage and family relations. It is a part of a person's legal
capacity and civil status. In this connection, Article 413 of the Civil Code provides:
ART. 413. All other matters pertaining to the registration of civil status shall be governed by special
laws.
Moreover, Section 5 of Act 3753 (the Civil Register Law) provides:
SEC. 5. Registration and certification of births. The declaration of the physician or midwife in
attendance at the birth or, in default thereof, the declaration of either parent of the newborn child, shall
be sufficient for the registration of a birth in the... civil register. Such declaration shall be exempt from
documentary stamp tax and shall be sent to the local civil registrar not later than thirty days after the
birth, by the physician or midwife in attendance at the birth or by either parent of the newborn child.
Under the Civil Register Law, a birth certificate is a historical record of the facts as they existed at the
time of birth.[29] Thus, the sex of a person is determined at birth, visually done by the birth attendant
(the physician or midwife) by... examining the genitals of the infant. Considering that there is no law
legally recognizing sex reassignment, the determination of a person's sex made at the time of his or her
birth, if not attended by error,[30] is immutable.
THIRD DIVISION

[ G.R. No. 191936, June 01, 2016 ]

VIRGINIA D. CALIMAG, PETITIONER, VS. HEIRS OF SILVESTRA N. MACAPAZ,

REPRESENTED BY ANASTACIO P. MACAPAZ, JR., RESPONDENTS.

DECISION
REYES, J.:
This is a petition for review on certiorari[1] assailing the Decision[2] of the Court of Appeals (CA)
promulgated on October 20, 2009 in CA-G.R. CV No. 90907 which affirmed with modification the
Decision[3] dated September 28, 2007 of the Regional Trial Court (RTC) of Makati City, Branch 147,
in Civil Case No. 06-173, an action for annulment of deed of sale and cancellation of title with
damages. The CA Resolution[4] dated April 5, 2010 denied the motion for reconsideration thereof.
The Facts

Virginia D. Calimag (petitioner) co-owned the property, the subject matter of this case, with Silvestra
N. Macapaz (Silvestra).

On the other hand, Anastacio P. Macapaz, Jr. (Anastacio, Jr.) and Alicia Macapaz-Ritua (Alicia)
(respondents) are the children of Silvestra's brother, Anastacio Macapaz, Sr. (Anastacio, Sr.) and Fidela
O. Poblete Vda. de Macapaz (Fidela).

The subject property, with a total area of 299 square meters, is located at No. 1273 Bo. Visaya Street,
Barangay Guadalupe Nuevo, Makati City, and was duly registered in the names of the petitioner
(married to Demetrio Calimag) and Silvestra under Transfer Certificate of Title (TCT) No. 183088.[5]
In said certificate of title, appearing as Entry No. 02671 is an annotation of an Adverse Claim of Fidela
asserting rights and interests over a portion of the said property measuring 49.5 sq m.[6]

On November 11, 2002, Silvestra died without issue. On July 7, 2005, TCT No. 183088 was cancelled
and a new certificate of title, TCT No. 221466,[7] was issued in the name of the petitioner by virtue of
a Deed of Sale[8] dated January 18, 2005 whereby Silvestra allegedly sold her 99-sq-m portion to the
petitioner for P300,000.00. Included among the documents submitted for the purpose of cancelling
TCT No. 183088 was an Affidavit[9] dated July 12, 2005 purportedly executed by both the petitioner
and Silvestra. It was stated therein that the affidavit of adverse claim filed by Fidela was not signed by
the Deputy Register of Deeds of Makati City, making the same legally ineffective. On September 16,
2005, Fidela passed away.[10]

On December 15, 2005, Anastacio, Jr. filed a criminal complaint for two counts of falsification of
public documents under Articles 171 and 172 of the Revised Penal Code against the petitioner.[11]
However, said criminal charges were eventually dismissed.

On March 2, 2006, the respondents, asserting that they are the heirs of Silvestra, instituted the action
for Annulment of Deed of Sale and Cancellation of TCT No. 221466 with Damages against the
petitioner and the Register of Deeds of Makati City.[12]

In her Answer with Compulsory Counterclaim,[13] the petitioner averred that the respondents have no
legal capacity to institute said civil action on the ground that they are illegitimate children of Anastacio,
Sr. As such, they have no right over Silvestra's estate pursuant to Article 992 of the Civil Code which
prohibits illegitimate children from inheriting intestate from the legitimate children and relatives of
their father and mother.

After trial, the RTC found for the respondents and rendered its Decision on September 28, 2007.[14]
The fallo of the RTC decision reads:
WHEREFORE, premises considered, judgment is rendered as follows:

1. Declaring the Deed of Sale purportedly executed by [Silvestra] in favor of [the

petitioner] on January 18, 2005 over a parcel of land covered by TCT No. 183088 of
the Registry of Deeds of Makati City, as Null and Void;

2. Ordering the Registrar of Deeds of Makati City to cancel TCT No. 221466 issued in
the name of [the petitioner], the same having been issued on the basis of a
fraudulent/falsified Deed of Sale, and thereafter to reinstate TCT No. 183088 issued
in the name of [the petitioner] and [Silvestra] with all the liens and encumbrances
annotated thereon, including the adverse claim of [Fidela]; [and]

3. Ordering [the petitioner] to pay the [respondents] the sum of PI00,000.00 as moral
damages and another P100,000.00 as exemplary damages, P50,000.00 as and by
way of attorney's fees, plus costs of suit.

[The petitioner's] counter-claim is dismissed for lack of merit.

SO ORDERED.[15]

The RTC found that the Deed of Sale dated January 18, 2005 presented for the cancellation of TCT No.
183088 was a forgery considering that Silvestra, who purportedly executed said deed of sale died on
November 11, 2002, about three years before the execution of the said Deed of Sale.[16] Respecting
the respondents' legal capacity to sue, the RTC favorably ruled in this wise:
Demetrio Calimag, Jr. sought, but failed, to impugn the personality of the [respondents] to
initiate this action as the alleged heirs of [Silvestra]. The marriage between [Anastacio
Sr.J and [FidclaJ is evidenced by the Certificate of (canonical) Marriage (Exh. "M").
The name 'Fidela Obera Poblete' is indicated in [the respondents'] respective birth
certificates as the mother's maiden name but Fidela signed the same as the informant
as "Fidela P. Macapaz". In both birth certificates, "Anastacio Nator Macapaz" is
indicated as the name of the father.[17] (Emphasis ours)

Ruling of the CA

Aggrieved, the petitioner elevated her case to the CA resting on the argument that the respondents are
without legal personality to institute the civil action for cancellation of deed of sale and title on the
basis of their claimed status as legitimate children of Anastacio, Sr., the brother and sole heir of the
deceased, Silvestra.[18]
On October 20, 2009, the CA rendered its Decision affirming the RTC decision with modification as to
the amount of damages. The fallo of the assailed decision reads:
WHEREFORE, premises considered, the present appeal is hereby DISMISSED, for lack of
merit. The Decision dated September 28, 2007 of the [RTC] of Makati City, Branch 147 in
Civil Case No. 06-173 is hereby AFFIRMED with MODIFICATION in that the award of
moral and exemplary damages is hereby reduced from PI00,000.00 to P50,000.00,
respectively.

With costs against the [petitioner].

SO ORDERED.[19]

The CA sustained the RTC ruling that the cancellation of TCT No. 183088 and the issuance of TCT No.
221466 in the name of the petitioner were obtained through forgery. As to the question of whether the
respondents are legal heirs of Silvestra and thus have the legal capacity to institute the action, the CA
ruled in this wise:
Reviewing the evidence on record, we concur with the trial court in sustaining the
appellees' legitimate filiation to Silvestra's brother [Anastacio, Sr.] The trial court found
unsuccessful the attempt of Atty. Demetrio Calimag, Jr. to assail the validity of marriage
between [Anastacio, Sr.] and [Fidela] with a certification from the NSO that their office has
no record of the certificate of marriage of [Anastacio, Sr.] and [Fidela], and further
claiming the absence of a marriage license.

The best proof of marriage between man and wife is a marriage contract. A certificate of
marriage issued by the Most Holy Trinity Parish, Alang[-]alang, Leyte (Exh. "M") as well
as a copy of the marriage contract were duly submitted in evidence by the [respondents].

x x x x

The Marriage Contract (Exh. "U") in this case clearly reflects a marriage license number
and in the absence of a certification from the local civil registrar that no such marriage
license was issued, the marriage between [Anastacio, Sr.] and [Fidela] may not be
invalidated on that ground.

x x x.

x x x x

Every intendment of the law leans toward legalizing matrimony. Persons dwelling together
in apparent matrimony are presumed, in the absence of any counterpresumption or evidence
special to the case, to be in fact married. This jurisprudential attitude towards marriage is
based on the prima facie presumption that a man and a woman deporting themselves as
husband and wife have entered into a lawful contract of marriage. The Courts look upon
this presumption with great favor. It is not to be lightly repelled; on the contrary, the
presumption is of great weight.

Here, the fact of marriage between [Anastacio, Sr.] and [Fidela] was established by
 competent and substantial proof. [The respondents] who were conceived and born during
the subsistence of said marriage are therefore presumed to be legitimate children of
[Anastacio, Sr.], in the absence of any contradicting evidence.[20] (Citations omitted)

The petitioner sought reconsideration,[21] but her motion was denied in the Resolution[22] dated April
5, 2010.

Hence, this petition.

Notably, even before the CA, the petitioner never assailed the factual finding that forgery was indeed
committed to effect the cancellation of TCT No. 183088 and the consequent transfer of title of the
property in her name. Verily, in this petition, the petitioner continues to assail the legal capacity of the
respondents to institute the present action. Invoking the provisions of Article 992 of the Civil Code,[23]
the petitioner insists that the respondents have no legal right over the estate left by Silvestra for being
illegitimate children of Anastacio, Sr.

While the petitioner does not question that Anastacio, Sr. is the legal heir of Silvestra, she, however,
claims that the respondents failed to establish their legitimate filiation to Anastacio, Sr. considering that
the marriage between Anastacio, Sr. and Fidela was not sufficiently proven. According to the petitioner,
the marriage contract[24] presented by the respondents is not admissible under the Best Evidence Rule
for being a mere fax copy or photocopy of an alleged marriage contract, and which is not even
authenticated by the concerned Local Civil Registrar. In addition, there is no mark or stamp showing
that said document was ever received by said office. Further, while the respondents also presented a
Certificate of (Canonical) Marriage,[25] the petitioner asserts that the same is not the marriage license
required under Articles 3 and 4 of the Family Code;[26] that said Certificate of (Canonical) Marriage
only proves that a marriage ceremony actually transpired between Anastacio, Sr. and Fidela.[27]

Moreover, the petitioner contends that the certificates of live birth of the respondents do not
conclusively prove that they are legitimate children of Anastacio, Sr.

In their Comment,[28] the respondents reiterate the finding and ruling of the CA that the petitioner's
argument has no leg to stand on considering that one's legitimacy can only be questioned in a direct
action seasonably filed by a party who is related to the former either by consanguinity or affinity.[29]

Thereupon, the resolution of this case rests upon this fundamental issue: whether or not the respondents
are legal heirs of Silvestra.
Ruling of the Court

The petition is bereft of merit.

While it is true that a person's legitimacy can only be questioned in a direct action seasonably filed by
the proper party, as held in Spouses Fidel v. Hon. CA, et al.,[30] this Court however deems it necessary
to pass upon the respondents' relationship to Silvestra so as to determine their legal rights to the subject
property. Besides, the question of whether the respondents have the legal capacity to sue as alleged
heirs of Silvestra was among the issues agreed upon by the parties in the pre-trial.

At first blush, the documents presented as proof of marriage between Anastacio, Sr. and Fidela, viz: (1)
fax or photo copy of the marriage contract, and (2) the canonical certificate of marriage, cannot be used
as legal basis to establish the fact of marriage without running afoul with the Rules on Evidence of the
Revised Rules of Court. Rule 130, Section 3 of the Rules on Evidence provides that: "When the subject
of the inquiry is the contents of a document, no evidence shall be admissible other than the original
document itself, x x x." Nevertheless, a reproduction of the original document can still be admitted as
secondary evidence subject to certain requirements specified by law. In Dantis v. Maghinang, Jr.,[31] it
was held that:
A secondary evidence is admissible only upon compliance with Rule 130, Section 5, which
states that: when the original has been lost or destroyed, or cannot be produced in court, the
offeror, upon proof of its execution or existence and the cause of its unavailability without
bad faith on his part, may prove its contents by a copy, or by a recital of its contents in
some authentic document, or by the testimony of witnesses in the order stated. Accordingly,
the offeror of the secondary evidence is burdened to satisfactorily prove the predicates
thereof, namely: (1) the execution or existence of the original; (2) the loss and destruction
of the original or its non-production in court; and (3) the unavailability of the original is not
due to bad faith on the part of the proponent/offeror. Proof of the due execution of the
document and its subsequent loss would constitute the basis for the introduction of
secondary evidence, x x x.[32] (Citation omitted)

On the other hand, a canonical certificate of marriage is not a public document. As early as in the case
of United States v. Evangelista,33 it has been settled that church registries of births, marriages, and
deaths made subsequent to the promulgation of General Orders No. 68 and the passage of Act No. 190
are no longer public writings, nor are they kept by duly authorized public officials.[34] They are private
writings and their authenticity must therefore be proved as are all other private writings in accordance
with the rules of evidence.[35] Accordingly, since there is no showing that the authenticity and due
execution of the canonical certificate of marriage of Anastacio, Sr. and Fidela was duly proven, it
cannot be admitted in evidence.

Notwithstanding, it is well settled that other proofs can be offered to establish the fact of a solemnized
marriage.[36] Jurisprudence teaches that the fact of marriage may be proven by relevant evidence other
than the marriage certificate. Hence, even a person's birth certificate may be recognized as competent
evidence of the marriage between his parents.[37]

Thus, in order to prove their legitimate filiation, the respondents presented their respective Certificates
of Live Birth issued by the National Statistics Office[38] where Fidela signed as the Informant in item
no. 17 of both documents.

A perusal of said documents shows that the respondents were apparently born to the same parents —
their father's name is Anastacio Nator Macapaz, while their mother's maiden name is Fidela Overa
Poblete. In item no. 24 thereof where it asks: "24. DATE AND PLACE OF MARRIAGE OF PARENTS
(For legitimate birth)" it was stated therein that respondents' parents were married on "May 25, 1955 in
Alang-alang, Leyte."[39]

The petitioner asserts that said documents do not conclusively prove the respondents' legitimate
filiation, albeit, without offering any evidence to the contrary. The certificates of live birth contain no
entry stating whether the respondents are of legitimate or illegitimate filiation, making said documents
unreliable and unworthy of weight and value in the determination of the issue at hand.
Moreover, the petitioner states that in the respondents' certificates of live birth, only the signature of
Fidela appears, and that they were not signed by Anastacio, Sr. She argues that the birth certificate must
be signed by the father in order to be competent evidence to establish filiation, whether legitimate or
illegitimate, invoking Roces v. Local Civil Registrar of Manila[40] where it was held that a birth
certificate not signed by the alleged father is not competent evidence of paternity.[41]

The petitioner's contentions are untenable.

"A certificate of live birth is a public document that consists of entries (regarding the facts of birth) in
public records (Civil Registry) made in the performance of a duty by a public officer (Civil
Registrar)."[42] Thus, being public documents, the respondents' certificates of live birth are presumed
valid, and are prima facie evidence of the truth of the facts stated in them.[43]

"Prima facie evidence is defined as evidence good and sufficient on its face. Such evidence as, in the
judgment of the law, is sufficient to establish a given fact, or the group or chain of facts constituting the
party's claim or defense and which if not rebutted or contradicted, will remain sufficient."[44]

The petitioner's assertion that the birth certificate must be signed by the father in order to be a
competent evidence of legitimate filiation does not find support in law and jurisprudence. In fact, the
petitioner's reliance on Roces[45] is misplaced considering that what was sought to be proved is the
fact of paternity of an illegitimate child, and not legitimate filiation.

Verily, under Section 5 of Act No. 3753,[46] the declaration of either parent of the new-born legitimate
child shall be sufficient for the registration of his birth in the civil register, and only in the registration
of birth of an illegitimate child does the law require that the birth certificate be signed and sworn to
jointly by the parents of the infant, or only by the mother if the father refuses to acknowledge the child.

The pertinent portion of Section 5 of Act No. 3753 reads:

Sec. 5. Registration and Certification of Birth. - The declaration of the physician or
midwife in attendance at the birth or, in default thereof, the declaration of cither parent of
the newborn child, shall be sufficient for the registration of a birth in the civil register.
Such declaration shall be exempt from the documentary stamp tax and shall be sent to the
local civil registrar not later than thirty days after the birth, by the physician, or midwife in
attendance at the birth or by either parent of the newly born child.

In such declaration, the persons above mentioned shall certify to the following facts: (a)
date and hour of birth; (b) sex and nationality of infant; (c) names, citizenship, and religion
of parents or, in case the father is not known, of the mother alone; (d) civil status of parents;
(e) place where the infant was born; if) and such other data as may be required in the
regulations to be issued.

x x x x

In case of an illegitimate child, the birth certificate shall be signed and sworn to
jointly by the parents of the infant or only the mother if the father refuses. In the latter
case, it shall not be permissible to state or reveal in the document the name of the father
who refuses to acknowledge the child, or to give therein any information by which such
 father could be identified, x x x (Emphasis Ours)

Forsooth, the Court finds that the respondents' certificates of live birth were duly executed consistent
with the provision of the law respecting the registration of birth of legitimate children. The fact that
only the signatures of Fidela appear on said documents is of no moment because Fidela only signed as
the declarant or informant of the respondents' fact of birth as legitimate children.

Nonetheless, the respondents' certificates of live birth also intimate that Anastacio, Sr. and Fidela had
openly cohabited as husband and wife for a number of years, as a result of which they had two children
—the second child, Anastacio, Jr. being born more than three years after their first child, Alicia. Verily,
such fact is admissible proof to establish the validity of marriage. Court Resolution dated February 13,
2013 in GR. No. 183262 entitled Social Security System (SSS) v. Lourdes S. Enobiso[47] had the
occasion to state:
Sarmiento v. CA is instructive anent the question of what other proofs can be offered to
establish the fact of a solemnized marriage, viz:

In Trinidad vs. Court of Appeals, et al., this Court ruled that as proof of
marriage may be presented: a) testimony of a witness to the matrimony; b)
the couple's public and open cohabitation as husband and wife after the
alleged wedlock; c) the birth and baptismal certificate of children born during
such union; and d) the mention of such nuptial in subsequent documents.[48]
(Citations omitted and emphasis ours)

Moreover, in a catena of cases,[49] it has been held that, "[p]ersons dwelling together in apparent
matrimony are presumed, in the absence of any counter presumption or evidence special to the case, to
be in fact married. The reason is that such is the common order of society, and if the parties were not
what they thus hold themselves out as being, they would be living in the constant violation of decency
and of law. A presumption established by our Code of Civil Procedure is 'that a man and a woman
deporting themselves as husband and wife have entered into a lawful contract of marriage.' Semper
praesumitur pro matrimonio — Always presume marriage."[50]

Furthermore, as the established period of cohabitation of Anastacio, Sr. and Fidela transpired way
before the effectivity of the Family Code, the strong presumption accorded by then Article 220 of the
Civil Code in favor of the validity of marriage cannot be disregarded. Thus:
Art. 220. In case of doubt, all presumptions favor the solidarity of the family. Thus, every
intendment of law or facts leans toward the validity of marriage, the indissolubility of the
marriage bonds, the legitimacy of children, the community of property during marriage, the
authority of parents over their children, and the validity of defense for any member of the
family in case of unlawful aggression.

WHEREFORE, premises considered, the petition is hereby DENIED. The Decision dated October 20,
2009 and Resolution dated April 5, 2010 of the Court of Appeals in CA-G.R. CV No. 90907 are
AFFIRMED.

SO ORDERED.
ENGRACE NIÑAL FOR HERSELF v. NORMA BAYADOG, GR No. 133778, 2000-03-14
Facts:
Pepito Niñal was married to Teodulfa Bellones on September 26, 1974. Out of their marriage were born
herein petitioners. Teodulfa was shot by Pepito resulting in her death
One year and 8 months thereafter or on December 11, 1986, Pepito and respondent Norma
Badayog got married without any marriage license. In lieu thereof, Pepito and Norma executed an
affidavit dated December 11, 1986 stating that they had lived together as husband and wife for at least
five years and were thus exempt from securing a marriage license.
Pepito died in a car accident. After their father's death, petitioners filed a petition for declaration of
nullity of the marriage of Pepito to Norma alleging that the said marriage was void for lack of a
marriage license.
the Regional Trial Court... dismissed the petition
Issues:
May the heirs of a deceased person file a petition for the declaration of nullity of his marriage after his
death?
Ruling:
The two marriages involved herein having been solemnized prior to the effectivity of the Family Code
(FC), the applicable law to determine their validity is the Civil Code which was the law in effect at the
time of their celebration.[5] A valid marriage... license is a requisite of marriage under Article 53 of the
Civil Code,[6] the absence of which renders the marriage void ab initio
The requirement... and issuance of marriage license is the State's demonstration of its involvement and
participation in every marriage, in the maintenance of which the general public is interested
However, there are several instances recognized by the Civil Code wherein a marriage license is
dispensed with, one of which is that provided in Article 76,[14] referring to the marriage of a man and a
woman who have lived together and exclusively with each... other as husband and wife for a
continuous and unbroken period of at least five years before the marriage.
Consequently, void marriages can be questioned even after the death of either party but voidable
marriages can be assailed only during the lifetime of the parties and not after death of either, in which
case the parties and... their offspring will be left as if the marriage had been perfectly valid.
Contrary to the trial court's ruling, the death of petitioner's father extinguished the alleged marital bond
between him and respondent. The conclusion is erroneous and proceeds from a wrong premise that
there was a marriage bond that was dissolved between the two. It should be... noted that their marriage
was void hence it is deemed as if it never existed at all and the death of either extinguished nothing.
However, other than for purposes of remarriage, no judicial action is necessary to declare a marriage an
absolute nullity. For other purposes, such as but not limited to determination of heirship, legitimacy or
illegitimacy of a child, settlement of estate, dissolution of... property regime, or a criminal case for that
matter, the court may pass upon the validity of marriage even in a suit not directly instituted to question
the same so long as it is essential to the determination of the case.
WHEREFORE, the petition is GRANTED
 RODOLFO G. NAVARRO, complainant, v. JUDGE HERNANDO DOMAGTOY, respondent.
A.M. No. MTJ-96-1088. July 19, 1996.
Facts:
On September 27, 1994, respondent judge solemnized the marriage between Gaspar A. Tagadan and
Arlyn F. Borga despite the knowledge that the groom is merely separated from his first wife. It is also
alleged that he performed a marriage ceremony between Floriano Dador Sumaylo and Gemma D. del
Rosario outside his courts jurisdiction on October 27, 1994. in relation to the charges against him,
respondent judge seeks exculpation from his act of having solemnized the marriage between Gaspar
Tagadan, a married man separated from his wife , and Arlyn F. Borga by stating that he merely relied in
the affidavit issued by the Municipal trial Judge of Basey, Samar, confirming the fact that Mr. Tagadan
and his wife have not seen each other for almost seven years. With respect to the second charge, he
maintains that in solemnizing the marriage between Sumaylo and del Rosario, he did not violate
Article 7, paragraph I of the Family code which states that: “Marriage may be solemnized by: (1) Any
incumbent member of the judiciary within the court’s jurisdiction”; and that Article 8 thereof applies to
the case in question.

Issue:
Whether or not the acts of Judge Domagtoy exhibits gross misconduct, inefficiency in office
and ignorance of the law.

Held:
In the first allegation, Gaspar Tagdan did not institute a summary proceeding for the declaration of his
first wife’s presumptive death. Absent this judicial declaration, he remains married to Ida Penaranda.
Whether wittingly, or unwittingly, it was manifest error on the part of respondent judge to have
accepted the joint affidavit submitted by the groom. Such neglect or ignorance of the law has resulted
in a bigamous, and therefore void, marriage.

In as much as respondent judge’s jurisdiction covers the municipalities of Sta. Monica and Burgos, he
was also not clothed with authority to solemnize a marriage in Dapa, Surigao del Norte. By citing
Article 8 and the exceptions therein as grounds for the exercise of his misplaced authority, respondent
judge again demonstrated a lack of understanding of the basic principles of civil law
Because of the respondent’s failure to apply the legal principles applicable in these cases, the Court
finds respondent to have acted in gross ignorance of the law because of this he is suspended for a
period of six months.
Republic vs Dayot
Republic vs. Dayot
GR No. 175581, March 28, 2008

FACTS:

Jose and Felisa Dayot were married at the Pasay City Hall on November 24, 1986. In lieu of a
marriage license, they executed a sworn affidavit that they had lived together for at least 5years. On
August 1990, Jose contracted marriage with a certain Rufina Pascual. They were both employees of
the National Statistics and Coordinating Board. Felisa then filed on June 1993 an action for bigamy
against Jose and an administrative complaint with the Office of the Ombudsman. On the other hand,
Jose filed a complaint on July 1993 for annulment and/or declaration of nullity of marriage where he
contended that his marriage with Felisa was a sham and his consent was secured through fraud.

ISSUE: Whether or not Jose’s marriage with Felisa is valid considering that they executed a sworn
affidavit in lieu of the marriage license requirement.

HELD:

CA indubitably established that Jose and Felisa have not lived together for five years at the time they
executed their sworn affidavit and contracted marriage. Jose and Felisa started living together only in
June 1986, or barely five months before the celebration of their marriage on November 1986. Findings
of facts of the Court of Appeals are binding in the Supreme Court.

The solemnization of a marriage without prior license is a clear violation of the law and invalidates a
marriage. Furthermore, “the falsity of the allegation in the sworn affidavit relating to the period of Jose
and Felisa’s cohabitation, which would have qualified their marriage as an exception to the requirement
for a marriage license, cannot be a mere irregularity, for it refers to a quintessential fact that the law
precisely required to be deposed and attested to by the parties under oath”. Hence, Jose and Felisa’s
marriage is void ab initio. The court also ruled that an action for nullity of marriage is imprescriptible.
The right to impugn marriage does not prescribe and may be raised any time.

TERRE v. TERRE
July 3, 1992 (A.M. No. 2349)
PARTIES:
Complainant: DOROTHY B. TERRE
Respondent: ATTY. JORDAN TERRE
FACTS:
On December 24, 1981, complainant Dorothy B. Terre charged respondent Jordan Terre, a member of
the Philippine Bar with “grossly immoral conduct,” consisting of contracting a second marriage and
living with another woman other than complainant, while his prior marriage with complainant
remained subsisting No judicial action having been initiated or any judicial declaration obtained as to
the nullity of such prior marriage of respondent with complainant.
Respondent was charged with abandonment of minor and bigamy by complainant. Dorothy Terre was
then married to a certain Merlito Bercenillo her first cousin, with this fact, Atty. Jordan Terre
succesfully convinced complainant that her marriage was void ab initio and they are free to contract
marriage. In their marriage license, despite her objection, he wrote “single” as her status. After getting
the complainant pregnant, Atty. Terre abandoned them and subsequently contracted another marriage to
Helina Malicdem believing again that her previous marriage was also void ab initio.

ISSUE:
(1) WON a judicial declaration of nullity is needed to enter into a subsequent marriage
HELD:
Yes. The Court considers this claim on the part of respondent Jordan Terre as a spurious defense. In the
first place, respondent has not rebutted complainant’s evidence as to the basic fact which underscores
that bad faith of respondent Terre. In the second place, the pretended defense is the same argument by
which he inveigled complainant into believing that her prior marriage or Merlito A. Bercenilla being
incestuous and void ab initio (Dorothy and Merlito being allegedly first cousins to each other), she was
free to contract a second marriage with the respondent. Respondent Jordan Terre, being a lawyer, knew
or should have known that such an argument ran counter to the prevailing case law of the supreme
Court which holds that for purposes of determining whether a person is legally free to contract a second
marriage , a judicial declaration that the first marriage was null and void ab initio is essential.

Almelor v. RTC-Las Pinas, G.R. No. 179620, Aug. 26, 2008

FACTS: Petitioner Manuel G. Almelor (Manuel) and respondent Leonida Trinidad (Leonida) were
married on January 29, 1989 and had three children. Manuel and Leonida are both medical
practitioners, an anesthesiologist and a pediatrician, respectively. After eleven (11) years of marriage,
Leonida filed a petition with the RTC in Las Piñas City to annul their marriage on the ground that
Manuel was psychologically incapacitated to perform his marital obligations. Leonida that in the public
eye, Manuel was the picture of a perfect husband and father but this was not the case in his private life.
At home, Leonida described Manuel as a harsh disciplinarian, unreasonably meticulous, easily
angered. Manuel’s unreasonable way of imposing discipline on their children was the cause of their
frequent fights as a couple. Leonida complained that this was in stark contrast to the alleged lavish
affection Manuel has for his mother. She also alleged that her husband has concealed from her his
homosexuality. She caught him in an indiscreet telephone conversation manifesting his affection for a
male caller. She also found several pornographic homosexual materials in his possession. And she saw
Manuel kissed another man on the lips. The man was a certain Dr. Nogales. When she confronted
Manuel, he denied everything. At this point, Leonida took her children and left their conjugal abode.
Since then, Manuel stopped giving support to their children. Dr. Valentina del Fonso Garcia, a clinical
psychologist, was presented to prove Leonida’s claim. She testified that she conducted evaluative
interviews and a battery of psychiatric tests on Leonida. She also had a one-time interview with
Manuel and face-to-face. She concluded that Manuel is psychologically incapacitated and such
incapacity is marked by antecedence; it existed even before the marriage and appeared to be incurable.
Manuel countered that the true cause of Leonida’s hostility against him was their professional rivalry.
The trial court nullified the marriage, not on the ground of Article 36, but Article 45 of the Family
Code. CA denied the appeal.

ISSUE: Whether or not the marriage between the two can be declared as null and void due to fraud by
reason of Manuel’s concealment of his homosexuality.
HELD: Concealment of homosexuality is the proper ground to annul a marriage, not homosexuality per
se. Evidently, no sufficient proof was presented to substantiate the allegations that Manuel is a
homosexual and that he concealed this to Leonida at the time of their marriage. The lower court
considered the public perception of Manuel’s sexual preference without the corroboration of witnesses.
Also, it took cognizance of Manuel’s peculiarities and interpreted it against his sexuality. Even granting
that Manuel is indeed a homosexual, there was nothing in the complaint or anywhere in the case was it
alleged and proven that Manuel hid such sexuality from Leonida and that Leonida’s consent had been
vitiated by such.

De Ocampo vs Florenciano
De Ocampo vs. Florenciano
107 Phil 35

FACTS:

Jose de Ocampo and Serafina Florenciano were married in 1938. They begot several children who are
not living with plaintiff. In March 1951, latter discovered on several occasions that his wife was
betraying his trust by maintaining illicit relations with Jose Arcalas. Having found out, he sent the wife
to Manila in June 1951 to study beauty culture where she stayed for one year. Again plaintiff
discovered that the wife was going out with several other man other than Arcalas. In 1952, when the
wife finished her studies, she left plaintiff and since then they had lived separately. In June 1955,
plaintiff surprised his wife in the act of having illicit relations with Nelson Orzame. He signified his
intention of filing a petition for legal separation to which defendant manifested conformity provided
she is not charged with adultery in a criminal action. Accordingly, Ocampo filed a petition for legal
separation in 1955.

ISSUE: Whether the confession made by Florenciano constitutes the confession of judgment
disallowed by the Family Code.

HELD:

Florenciano’s admission to the investigating fiscal that she committed adultery, in the existence of
evidence of adultery other than such confession, is not the confession of judgment disallowed by
Article 48 of the Family Code. What is prohibited is a confession of judgment, a confession done in
court or through a pleading. Where there is evidence of the adultery independent of the defendant’s
statement agreeing to the legal separation, the decree of separation should be granted since it would not
be based on the confession but upon the evidence presented by the plaintiff. What the law prohibits is a
judgment based exclusively on defendant’s confession. The petition should be granted based on the
second adultery, which has not yet prescribed.
Tenchavez v. Escano
G.R. No. L-19671, 29 November 1965
FACTS:
Vicenta Escaño, 27, exchanged marriage vows with Pastor Tenchavez, 32, on February 24, 1948,
before a Catholic chaplain. The marriage was duly registered with the local civil registrar. However, the
two were unable to live together after the marriage and as of June 1948, they were already estranged.
Vicenta left for the United Stated in 1950. On the same year she filed a verified complaint for divorce
against Tenchavez in the State of Nevada on the ground of “Extreme cruelty, entirely mental in
character.” A decree of divorce, “final and absolute” was issued in open court by the said tribunal. She
married an American, lived with him in California, had several children with him and, on 1958,
acquired American Citizenship.
On 30 July 1955, Tenchavez filed a complaint in the Court of First Instance of Cebu, and amended on
31 May 1956, against Vicenta F. Escaño, her parents, Mamerto and Mena Escaño whom he charged
with having dissuaded and discouraged Vicenta from joining her husband, and alienating her affections,
and against the Roman Catholic Church, for having, through its Diocesan Tribunal, decreed the
annulment of the marriage, and asked for legal separation and one million pesos in damages. Vicenta’s
parents denied that they had in any way influenced their daughter’s acts, and counterclaimed for moral
damages.
ISSUE:
1. Whether or not the divorce sought by Vicenta Escaño is valid and binding upon courts of the
Philippines.
2. Whether or not the parents of Vicenta alienated the affections of their daughter and influenced her
conduct toward her husband.
RULING:
1. No. Vicenta Escaño and Pastor Tenchavez’ marriage remain existent and undissolved under the
Philippine Law.
Pursuant to Article 15 of the Civil Code, laws relating to family rights and duties, or to the status,
condition and legal capacity of persons are binding upon citizens of the Philippines, even though living
abroad.
Escaño’s divorce and second marriage cannot be deemed valid under the Philippine Law to which
Escaño was bound since in the time the divorce decree was issued, Escaño, like her husband, was still a
Filipino citizen. The acts of the wife in not complying with her wifely duties, deserting her husband
without any justifiable cause, leaving for the United States in order to secure a decree of absolute
divorce, and finally getting married again are acts which constitute a willful infliction of injury upon
the husband’s feelings in a manner contrary to morals, good customs or public policy, thus entitling
Tenchavez to a decree of legal separation under our law on the basis of adultery.
2. No. There is no evidence that the parents of Vicenta, out of improper motives, aided and abetted her
original suit for annulment, or her subsequent divorce.
A portion of Section 529 reads: The law distinguishes between the right of a parent to interest himself
in the marital affairs of his child and the absence of rights in a tranger to intermeddle in such affairs. …
A parent is liable for alienation of affections resulting from his own malicious conduct, as where he
wrongfully entices his son or daughter to leave his or her spouse, but he is not liable unless he acts
maliciously, without justification and from unworthy motives.
Therefore, her parents, in respecting Vicenta’s independent decisions, certainly cannot be charged with
alienation of affections in the absence of malice or unworthy motives.

CORNELIA MATABUENA v. PETRONILA CERVANTES, GR No. L-28771, 1971-03-31

Facts:
The plaintiff, now appellant Cornelia Matabuena, a sister of the deceased Felix Matabuena, maintains
that a donation made while he was living maritally without benefit of marriage to defendant, now
appellee
Petronila Cervantes, was void. Defendant would uphold its validity. The lower court, after noting that
it was made at a time before defendant was married to the donor, sustained the latter's stand. Hence...
this appeal. The question, as noted, is novel in character, this Court not having had as yet the
opportunity of ruling on it. A 1954 decision of the Court of Appeals, Buenaventura v. Bautista,[2] by
the then Justice J. B. L. Reyes, who was appointed to this Court later that year, is indicative of the
appropriate response that should be given. The conclusion reached therein is that a donation between
common-law spouses falls... within the prohibition and is "null and void as contrary to public
policy."[3] Such a view merits fully the acceptance of this Court. The decision must be reversed.
Issues:
whether the ban on a donation between the spouses during a marriage applies to a common-law
relationship.
Ruling:
The lack of validity of the donation made by the deceased to defendant Petronila Cervantes does not
necessarily result in plaintiff having exclusive right to the disputed property. Prior to the death of Felix
Matabuena, the relationship between him and the defendant was legitimated by their marriage on
March 28, 1962. She is therefore his widow. As provided for in the Civil Code, she is entitled to one-
half of the inheritance and the... plaintiff, as the surviving sister, to the other half
WHEREFORE, the lower court decision of November 23, 1965 dismissing the complaint with costs is
reversed. The questioned donation is declared void, with the rights of plaintiff and defendant as pro
indiviso heirs to the... property in question recognized. The case is remanded to the lower court for its
appropriate disposition in accordance with the above opinion. Without pronouncement as to costs.
Principles:
A donation under the terms of Article 133 of the Civil Code is void if made between the spouses during
the marriage.
When the donation was made by Felix Matabuena in favor of the defendant on February 20, 1956,
Petronila Cervantes and Felix Matabuena were not yet married. At that time they were not spouses.
They... became spouses only when they married on March 28, 1962, six years after the deed of
donation had been executed
While Art. 133 of the Civil Code considers as void a "donation between the spouses during the
marriage", policy considerations of the most exigent character as well as the dictates of morality
require that the... same prohibition should apply to a common-law relationship.
Nobleza v. Nuega
Josefina Nobleza v. Shirley Nuega
G.R. No. 193038, March 11, 2015
Villarama, Jr., J.

FACTS:
Respondent Shirley B. Nuega (Shirley) was married to Rogelio A. Nuega (Rogelio) on September 1,
1990. Upon the request of Rogelio, Shirley sent him money for the purchase of a residential lot in
Marikina where they had planned to eventually build their home. The following year, or on September
13, 1989, Rogelio purchased the subject house and lot for One Hundred Two Thousand Pesos
(P102,000.00) from Rodeanna Realty Corporation. Shirley claims that upon her arrival in the
Philippines sometime in 1989, she settled the balance for the equity over the subject property with the
developer through SSS8 financing. She likewise paid for the succeeding monthly amortizations.
On September 1, 1990, Shirley and Rogelio got married and lived in the subject property. The
following year, Shirley returned to Israel for work. While overseas, she received information that
Rogelio had brought home another woman, Monica Escobar, into the family home. She also learned
and was able to confirm upon her return to the Philippines in May 1992, that Rogelio had been
introducing Escobar as his wife.
In June 1992, Shirley filed two cases against Rogelio: one for Concubinage before the Provincial
Prosecution Office of Rizal, and another for Legal Separation and Liquidation of Property before the
RTC of Pasig City. In between the filing of these cases, Shirley learned that Rogelio had the intention
of selling the subject property. Shirley then advised the interested buyers one of whom was their
neighbor and petitioner Josefina V. Nobleza (petitioner) – of the existence of the cases that she had
filed against Rogelio and cautioned them against buying the subject property until the cases are closed
and terminated. Nonetheless, under a Deed of Absolute Sale dated December 29, 1992, Rogelio sold
the subject property to petitioner without Shirley’s consent in the amount of Three Hundred Eighty
Thousand Pesos (P380,000.00), including petitioner’s undertaking to assume the existing mortgage on
the property with the National Home Mortgage Finance Corporation and to pay the real property taxes
due thereon.

ISSUE:
Is the Deed of Sale null and void for lack of the consent of the wife?

HELD:
Yes. The petitioner is not a buyer in good faith. A buyer cannot claim to be an innocent purchaser for
value by merely relying on the TCT of the seller while ignoring all the other surrounding circumstances
relevant to the sale.
The nullity of the sale made by Rogelio is not premised on proof of respondent’s financial contribution
in the purchase of the subject property. Actual contribution is not relevant in determining whether a
piece of property is community property for the law itself defines what constitutes community property.
Article 91 of the Family Code thus provides:
Art. 91. Unless otherwise provided in this Chapter or in the marriage settlements, the community
property shall consist of all the property owned by the spouses at the time of the celebration of the
marriage or acquired thereafter.
The only exceptions from the above rule are: (1) those excluded from the absolute community by the
Family Code; and (2) those excluded by the marriage settlement.
Under the first exception are properties enumerated in Article 92 of the Family Code, which states:
Art. 92. The following shall be excluded from the community property:
(1) Property acquired during the marriage by gratuitous title by either spouse and the fruits as well as
the income thereof, if any, unless it is expressly provided by the donor, testator or grantor that they
shall form part of the community property;
(2) Property for personal and exclusive use of either spouse; however, jewelry shall form part of the
community property;
(3) Property acquired before the marriage by either spouse who has legitimate descendants by a former
marriage, and the fruits as well as the income, if any, of such property.
Since the subject property does not fall under any of the exclusions provided in Article 92, it, therefore,
forms part of the absolute community property of Shirley and Rogelio. Regardless of their respective
contribution to its acquisition before their marriage, and despite the fact that only Rogelio’s name
appears in the TCT as owner, the property is owned jointly by the spouses Shirley and Rogelio.

HOMEOWNERS SAVINGS & LOAN BANK vs. MIGUELA C. DAILO

November 11, 2010 ~ vbdiaz
HOMEOWNERS SAVINGS & LOAN BANK vs. MIGUELA C. DAILO,
G.R. No. 153802
March 11, 2005
FACTS: Miguela Dailo and Marcelino Dailo, Jr were married on August 8, 1967. During their
marriage the spouses purchased a house and lot situated at San Pablo City from a certain Dalida. The
subject property was declared for tax assessment purposes The Deed of Absolute Sale, however, was
executed only in favor of the late Marcelino Dailo, Jr. as vendee thereof to the exclusion of his wife.
Marcelino Dailo, Jr. executed a Special Power of Attorney (SPA) in favor of one Gesmundo,
authorizing the latter to obtain a loan from petitioner Homeowners Savings and Loan Bank to be
secured by the spouses Dailo’s house and lot in San Pablo City. Pursuant to the SPA, Gesmundo
obtained a loan from petitioner. As security therefor, Gesmundo executed on the same day a Real Estate
Mortgage constituted on the subject property in favor of petitioner. The abovementioned transactions,
including the execution of the SPA in favor of Gesmundo, took place without the knowledge and
consent of respondent.[
Upon maturity, the loan remained outstanding. As a result, petitioner instituted extrajudicial foreclosure
proceedings on the mortgaged property. After the extrajudicial sale thereof, a Certificate of Sale was
issued in favor of petitioner as the highest bidder. After the lapse of one year without the property being
redeemed, petitioner consolidated the ownership thereof by executing an Affidavit of Consolidation of
Ownership and a Deed of Absolute Sale.
In the meantime, Marcelino Dailo, Jr. died. In one of her visits to the subject property, Miguela learned
that petitioner had already employed a certain Brion to clean its premises and that her car, a Ford sedan,
was razed because Brion allowed a boy to play with fire within the premises.
Claiming that she had no knowledge of the mortgage constituted on the subject property, which was
conjugal in nature, respondent instituted with the RTC San Pablo City a Civil Case for Nullity of Real
Estate Mortgage and Certificate of Sale, Affidavit of Consolidation of Ownership, Deed of Sale,
Reconveyance with Prayer for Preliminary Injunction and Damages against petitioner. In the latter’s
Answer with Counterclaim, petitioner prayed for the dismissal of the complaint on the ground that the
property in question was the exclusive property of the late Marcelino Dailo, Jr.
After trial on the merits, the trial court rendered a Decision declaring the said documents null and void
and further ordered the defendant is ordered to reconvey the property subject of this complaint to the
plaintiff, to pay the plaintiff the sum representing the value of the car which was burned, the attorney’s
fees, moral and exemplary damages.
The appellate court affirmed the trial court’s Decision, but deleted the award for damages and
attorney’s fees for lack of basis. Hence, this petition

ISSUE:
1. WON THE MORTGAGE CONSTITUTED BY THE LATE MARCELINO DAILO, JR. ON THE
SUBJECT PROPERTY AS CO-OWNER THEREOF IS VALID AS TO HIS UNDIVIDED SHARE.
2. WON THE CONJUGAL PARTNERSHIP IS LIABLE FOR THE PAYMENT OF THE LOAN
OBTAINED BY THE LATE MARCELINO DAILO, JR. THE SAME HAVING REDOUNDED TO
THE BENEFIT OF THE FAMILY.
HELD: the petition is denied.
1. NO. Article 124 of the Family Code provides in part:
ART. 124. The administration and enjoyment of the conjugal partnership property shall belong to both
spouses jointly. . . .
In the event that one spouse is incapacitated or otherwise unable to participate in the administration of
the conjugal properties, the other spouse may assume sole powers of administration. These powers do
not include the powers of disposition or encumbrance which must have the authority of the court or the
written consent of the other spouse. In the absence of such authority or consent, the disposition or
encumbrance shall be void. . . .
In applying Article 124 of the Family Code, this Court declared that the absence of the consent of one
renders the entire sale null and void, including the portion of the conjugal property pertaining to the
husband who contracted the sale.
Respondent and the late Marcelino. were married on August 8, 1967. In the absence of a marriage
settlement, the system of relative community or conjugal partnership of gains governed the
property relations between respondent and her late husband. With the effectivity of the Family Code
on August 3, 1988, Chapter 4 on Conjugal Partnership of Gains in the Family Code was made
applicable to conjugal partnership of gains already established before its effectivity unless vested
rights have already been acquired under the Civil Code or other laws.
The rules on co-ownership do not even apply to the property relations of respondent and the late
Marcelino even in a suppletory manner. The regime of conjugal partnership of gains is a special
type of partnership, where the husband and wife place in a common fund the proceeds, products,
fruits and income from their separate properties and those acquired by either or both spouses through
their efforts or by chance. Unlike the absolute community of property wherein the rules on co-
ownership apply in a suppletory manner, the conjugal partnership shall be governed by the rules on
contract of partnership in all that is not in conflict with what is expressly determined in the chapter (on
conjugal partnership of gains) or by the spouses in their marriage settlements. Thus, the property
relations of respondent and her late husband shall be governed, foremost, by Chapter 4 on Conjugal
Partnership of Gains of the Family Code and, suppletorily, by the rules on partnership under the Civil
Code. In case of conflict, the former prevails because the Civil Code provisions on partnership apply
only when the Family Code is silent on the matter.
The basic and established fact is that during his lifetime, without the knowledge and consent of his
wife, Marcelino constituted a real estate mortgage on the subject property, which formed part of their
conjugal partnership. By express provision of Article 124 of the Family Code, in the absence of (court)
authority or written consent of the other spouse, any disposition or encumbrance of the conjugal
property shall be void.
The aforequoted provision does not qualify with respect to the share of the spouse who makes the
disposition or encumbrance in the same manner that the rule on co-ownership under Article 493 of the
Civil Code does. Where the law does not distinguish, courts should not distinguish. Thus, both the trial
court and the appellate court are correct in declaring the nullity of the real estate mortgage on the
subject property for lack of respondent’s consent.
2. NO. Under Article 121 of the Family Code, “[T]he conjugal partnership shall be liable for: . . .
(1) Debts and obligations contracted by either spouse without the consent of the other to the extent
that the family may have been benefited; . . . .”
Certainly, to make a conjugal partnership respond for a liability that should appertain to the husband
alone is to defeat and frustrate the avowed objective of the new Civil Code to show the utmost concern
for the solidarity and well-being of the family as a unit.[
The burden of proof that the debt was contracted for the benefit of the conjugal partnership of gains lies
with the creditor-party litigant claiming as such. Ei incumbit probatio qui dicit, non qui negat (he who
asserts, not he who denies, must prove). Petitioner’s sweeping conclusion that the loan obtained by the
late Marcelino to finance the construction of housing units without a doubt redounded to the benefit of
his family, without adducing adequate proof, does not persuade this Court. Consequently, the conjugal
partnership cannot be held liable for the payment of the principal obligation.
NOTES:
In addition, a perusal of the records of the case reveals that during the trial, petitioner vigorously
asserted that the subject property was the exclusive property of the late Marcelino Dailo, Jr. Nowhere in
the answer filed with the trial court was it alleged that the proceeds of the loan redounded to the benefit
of the family. Even on appeal, petitioner never claimed that the family benefited from the proceeds of
the loan. When a party adopts a certain theory in the court below, he will not be permitted to change his
theory on appeal, for to permit him to do so would not only be unfair to the other party but it would
also be offensive to the basic rules of fair play, justice and due process. A party may change his legal
theory on appeal only when the factual bases thereof would not require presentation of any further
evidence by the adverse party in order to enable it to properly meet the issue raised in the new theory.

Abing v. Waeyan
G.R. No. 146294, 31 July 2006
FACTS:
In 1986, John Abing and Juliet Waeyan cohabited as husband and wife without the benefit of marriage.
Together, they bought a 2-storey residential house. In December 1991, Juliet left for Korea and worked
thereat, sending money to John which the latter deposited in their joint account. In 1992, their house
was renovated and to it was annex a structure which housed a sari-sari store. In 1994, Juliet returned.
In 1995, they decided to partition their properties as their relationship soured. They executed a
Memorandum of Agreement. Unfortunately, the document was left unsigned by the parties although
signed by the witnesses thereto. Under their unsigned agreement, John shall leave the dwelling with
Juliet paying him the amount of P428,870.00 representing John’s share in all their properties. Juliet
paid John the sum of P232,397.66 by way of partial payment of his share, with the balance of
P196,472.34 to be paid by Juliet in twelve monthly installment.
Juliet, however, failed to make good the balance. John demanded Juliet to vacate the annex structure.
Juliet refused, prompting John to file an ejectment suit against her. John alleged that he alone spent for
the construction of the annex structure with his own funds and thru the money he borrowed from his
relatives. He added that the tax declaration for the structure was under his name.
ISSUE:
Does John exclusively own the property subject of the suit?
RULING:
No. Other than John’s bare allegation that he alone, thru his own funds and money he borrowed from
his relatives, spent for the construction of the annex structure, evidence wants to support such naked
claim.
Art. 147. When a man and a woman who are capacitated to marry each other, live exclusively with
each other as husband and wife without the benefit of marriage or under a void marriage, their wages
and salaries shall be owned by them in equal shares and the property acquired by both of them through
their work or industry shall be governed by the rules on co-ownership.
In the absence of proof to the contrary, properties acquired while they lived together shall be presumed
to have been obtained by their joint efforts, work or industry, and shall be owned by them in equal
shares. For purposes of this Article, a party who did not participate in the acquisition by other party of
any property shall be deemed to have contributed jointly in the acquisition thereof if the former’s
efforts consisted in the care and maintenance of the family and of the household.
The law is clear. In the absence of proofs to the contrary, any property acquired by common-law
spouses during their period of cohabitation is presumed to have been obtained thru their joint efforts
and is owned by them in equal shares. Their property relationship is governed by the rules on co-
ownership. And under this regime, they owned their properties in common “in equal shares.”
Being herself a co-owner, Juliet may not be ejected from the structure in question. She is as much
entitled to enjoy its possession and ownership as John. Juliet’s failure to pay John the balance of the
latter’s share in their common properties could at best give rise to an action for a sum of money against
Juliet, or for rescission of the said agreement and not for ejectment.

GAUDENCIO GUERRERO vs. RTC OF ILOCOS NORTE, BR. XVI, JUDGE LUIS B. BELLO,
JR., PRESIDING, and PEDRO G. HERNANDO
October 25, 2012 § Leave a comment
FACTS:
Guerrero and Pedro are brothers in law , their respective wives being sisters. Filed by petitioner as an
accion publicana against private respondent, this case assumed another dimension when it was
dismissed by respondent Judge on the ground that the parties being brother-in-law the complaint should
have alleged that earnest efforts were first exerted towards a compromise.
ISSUE: WON brothers by affinity are considered members of the same family.
HELD:
Considering that Art. 151 herein-quoted starts with the negative word “No”, the requirement is
mandatory 4 that the complaint or petition, which must be verified, should allege that earnest efforts
towards a compromise have been made but that the same failed, so that “[i]f it is shown that no such
efforts were in fact made, the case must be dismissed.”
No. The court already ruled in Gayon v. Gayon 6 that the enumeration of “brothers and sisters” as
members of the same family does not comprehend “sisters-in-law”

G.R. No. 57227 May 14, 1992

AMELITA CONSTANTINO and MICHAEL CONSTANTINO, the latter represented herein by
the former, his mother and natural guardian, petitioners,
vs.
IVAN MENDEZ and the HONORABLE COURT OF APPEALS, respondents.
BIDIN, J.:
FACTS: This is a petition for review on certiorari questioning the decision of the Court of Appeals
which dismissed petitioner’s complaint and set aside the resolution of the then Court of First Instance
of Davao, ordering private respondent: (1) to acknowledge the minor Michael Constantino as his
illegitimate child; (2) to give a monthly support of P300.00 to the minor child; (3) to pay complainant
Amelita Constantino the sum of P8,200.00 as actual and moral damages; and (4) to pay attorney’s fees
in the sum of P5,000 plus costs.
Petitioner filed with the then CFI of Davao an action for acknowledgment, support and damages
against private respondent in June 1975. Petitioner alleges, that sometime in the month of August,
1974, she met respondent at Tony’s Restaurant, where she worked as a waitress; the following day
respondent invited petitioner to dine with him at Hotel Enrico where he was billeted; on the pretext of
getting something, respondent brought petitioner inside his hotel room and through a promise of
marriage succeeded in having sexual intercourse with the latter and repeated whenever respondent is in
Manila even after respondent confessed that he is a married man after their first sexual contact.
In respondent’s answer in August 1975, Ivan admitted that he met petitioner at Tony’s Cocktail Lounge
but denied having sexual knowledge or illicit relations with her. He prayed for the dismissal of the
complaint for lack of cause of action.
The trial court rendered a decision, in favor of petitioner. Respondent is to pay for actual and moral
damages, attorney’s fees and the costs of the suit. Both parties filed their separate motion for
reconsideration. Respondent anchored his motion on the ground that the award of damages was not
supported by evidence. Petitioner sought the recognition and support of her son Michael Constantino as
the illegitimate son of Ivan Mendez.
The trial court granted petitioner’s motion for reconsideration.
On appeal the amended decision was set aside and the complaint was dismissed. Hence, this petition
for review.
ISSUE: WHETHER OR NOT PETITIONER IS ENTITLED TO CLAIM FOR DAMAGES BASED
ON ARTICLES 19 & 21

HELD: NO, PETITIONER CANNOT CLAIM FOR DAMAGES BASED ON ARTICLES 19 & 21
According to ART. 19 Every person must, in the exercise of his rights and in the performance of his
duties, act with justice, give everyone his due, and observe honesty and good faith.
In the case at bar petitioner was already 28 years old and she admitted that she was attracted to
respondent. Petitioner’s attraction to respondent is the reason why she surrendered her womanhood.
Had petitioner been induced or deceived because of a promise of marriage, she could have immediately
ended her relation with respondent when she knew that respondent was a married man after their first
sexual contact. Her declaration that in the months of September, October and November, 1974, they
repeated their sexual intercourse only indicates that passion and not the alleged promise of marriage
was the moving force that made her submit herself to respondent. The Supreme Court said “Damages
could only be awarded if sexual intercourse is not a product of voluntariness and mutual desire”
therefore petitioner is not entitled to claim for damages based on articles 19 & 21
WHEREFORE, the instant petition is Dismissed for lack of merit.