ROBERTO DOMINGO, petitioner, vs.

COURT OF APPEALS and DELIA SOLEDAD AVERA represented by her

FACTS:

 On May 29, 1991, private respondent Delia Soledad A. Domingo filed a petition before the Regional Trial Court of
Pasig entitled "Declaration of Nullity of Marriage and Separation of Property" against petitioner Roberto Domingo.
 Unknown to her, he had a previous marriage with one Emerlina dela Paz on April 25, 1969 which marriage is valid
and still existing; she came to know of the prior marriage only sometime in 1983 when Emerlina dela Paz sued
them for bigamy;
 January 23, 1979 up to the present, she has been working in Saudi Arabia and she used to come to the Philippines
only when she would avail of the one-month annual vacation leave granted by her foreign employer; sometime in
June 1989, while on her one-month vacation, she discovered that he was cohabiting with another woman. She
further discovered that he had been disposing of some of her properties without her knowledge or consent; she
confronted him about this and thereafter appointed her brother Moises R. Avera as her attorney-in-fact to take care
of her properties; he failed and refused to turn over the possession and administration of said properties to her
brother/attorney-in-fact; and he is not authorized to administer and possess the same on account of the nullity of
their marriage.
 The petition prayed that a temporary restraining order or a writ of preliminary injunction be issued enjoining
Roberto from exercising any act of administration and ownership over said properties; their marriage be declared
null and void and of no force and effect; and Delia Soledad be declared the sole and exclusive owner of all properties
acquired at the time of their void marriage and such properties be placed under the proper management and
administration of the attorney-in-fact.
 On August 20, 1991, RTC issued an Order denying the motion to dismiss for lack of merit. She explained:

"Movant argues that a second marriage contracted after a first marriage by a man with another woman is
illegal and void (citing the case of Yap v. Court of Appeals, 145 SCRA 229) and no judicial decree is necessary to
establish the invalidity of a void marriage (citing the cases of People v. Aragon, 100 Phil. 1033; People v. Mendoza,
95 Phil. 845). Indeed, under the Yap case there is no dispute that the second marriage contracted by respondent with
herein petitioner after a first marriage with another woman is illegal and void. However, as to whether or not the
second marriage should first be judicially declared a nullity is not an issue in said case. In the case of Vda. de
Consuegra v. GSIS, the Supreme Court ruled in explicit terms, thus:
And with respect to the right of the second wife, this Court observed that although the second marriage can be
presumed to be void ab initio as it was celebrated while the first marriage was still subsisting, still there is need for
judicial declaration of its nullity. (37 SCRA 316, 326).
 A motion for reconsideration was filed stressing the erroneous application of Vda. de Consuegra v. GSIS 2 and the
absence of justiciable controversy as to the nullity of the marriage. On September 11, 1991, Judge Austria denied
the motion for reconsideration and gave petitioner fifteen (15) days from receipt within which to file his
answer. Instead of filing the required answer, petitioner filed a special civil action of certiorari and mandamus on
the ground that the lower court acted with grave abuse of discretion amounting to lack of jurisdiction in denying
the motion to dismiss.
 On February 7, 1992, the Court of Appeals 3 dismissed the petition. It explained that the case of Yap v. CA 4 cited
by petitioner and that of Consuegra v. GSIS relied upon by the lower court do not have relevance in the case at bar,
there being no identity of facts because these cases dealt with the successional rights of the second wife while the
instant case prays for separation of property corollary with the declaration of nullity of marriage. It observed that
the separation and subsequent distribution of the properties acquired during the union can be had only upon proper
determination of the status of the marital relationship between said parties, whether or not the validity of the first
marriage is denied by petitioner. Furthermore, in order to avoid duplication and multiplicity of suits, the declaration
of nullity of marriage may be invoked in this proceeding together with the partition and distribution of the properties
involved. Citing Articles 48, 50 and 52 of the Family Code, it held that private respondent's prayer for declaration
of absolute nullity of their marriage may be raised together with other incidents of their marriage such as the
 separation of their properties. Lastly, it noted that since the Court has jurisdiction, the alleged error in refusing to
grant the motion to dismiss is merely one of law for which the remedy ordinarily would have been to file an answer,
proceed with the trial and in case of an adverse decision, reiterate the issue on appeal. The motion for reconsideration
was subsequently denied for lack of merit.

ISSUE:
1. Whether or not a petition for judicial declaration of a void marriage is necessary. If in the affirmative, whether the
same should be filed only for purposes of remarriage.

HELD:
Judicial Declaration of Nullity Still Required

Though the logician may say that where the former marriage was void there would be nothing to dissolve, still it is not for
the spouses to judge whether that marriage was void or not. That judgment is reserved to the courts. (Dissenting Opinion,
People vs. Aragon). A declaration of the absolute nullity of a marriage is now explicitly required either as a cause of action
or a ground for defense. Where the absolute nullity of a previous marriage is sought to be invoked for purposes of
contracting a second marriage, the sole basis acceptable in law for said projected marriage to be free from legal
infirmity is a final judgment declaring the previous marriage void. (Family Code of the Philippines). The parties to a
marriage should not be allowed to assume that their marriage is void even if such be the fact but must first secure a judicial
declaration of the nullity of their marriage before they can be allowed to marry again.

The requirement for a declaration of absolute nullity of a marriage is also for the protection of the spouse who, believing
that his or her marriage is illegal and void, marries again. With the judicial declaration of the nullity of his or her first
marriage, the person who marries again cannot be charged with bigamy. The absolute nullity of a previous marriage may
be invoked for purposes of remarriage on the basis solely of a final judgment declaring such previous marriage void.

When a marriage is declared void ab initio, law states that final judgment shall provide for the liquidation, partition and
distribution of the properties of the spouses, the custody and support of the common children and the delivery of their
presumptive legitimes, unless such matters had been adjudicated in previous judicial proceedings. Other specific effects
flowing therefrom, in proper cases, are the following:

Art. 43.

(2) The absolute community of property or the conjugal partnership, as the case may be, shall be dissolved and liquidated,
but if either spouse contracted said marriage in bad faith, his or her share of the net profits of the community property or
conjugal partnership property shall be forfeited in favor of the common children or, if there are none, the children of the
guilty spouse by a previous marriage or, in default of children, the innocent spouse;

(3) Donations by reason of marriage shall remain valid, except that if the donee contracted the marriage in bad faith, such
donations made to said donee are revoked by operation of law;

(4) The innocent spouse may revoke the designation of the other spouse who acted in bad faith as a beneficiary in any
insurance policy, even if such designation be stipulated as irrevocable; and

(5) The spouse who contracted the subsequent marriage in bad faith shall be disqualified to inherit from the innocent spouse
by testate and intestate succession.

Art. 44. If both spouses of the subsequent marriage acted in bad faith, said marriage shall be void ab initio and all donations
by reason of marriage and testamentary disposition made by one in favor of the other are revoked by operation of law.

Soledad’s prayer for separation of property will simply be the necessary consequence of the judicial declaration of absolute
nullity of their marriage. Hence, the petitioner’s suggestion that for their properties be separated, an ordinary civil action
has to be instituted for that purpose is baseless. The Family Code has clearly provided the effects of the declaration of nullity
of marriage, one of which is the separation of property according to the regime of property relations governing them.