FAMILY CODE CASES nullity of a marriage, which is without basis, for even petitioner

asserted that "the respondent has acquiesced to the dismissal of his

1. G.R. No. L-30977 January 31, 1972 counterclaim" (Petitioner's Brief, page 22). Not only this. The
CARMEN LAPUZ SY, represented by her substitute MACARIO petition for legal separation and the counterclaim to declare the
LAPUZ, petitioner-appellant, nullity of the self same marriage can stand independent and
vs. separate adjudication. They are not inseparable nor was the
EUFEMIO S. EUFEMIO alias EUFEMIO SY UY, respondent- action for legal separation converted into one for a declaration of
appellee. nullity by the counterclaim, for legal separation pre-supposes a
Jose W. Diokno for petitioner-appellant. valid marriage, while the petition for nullity has a voidable
D. G. Eufemio for respondent-appellee. marriage as a pre-condition. Page
The first real issue in this case is: Does the death of the plaintiff
REYES J.B.L., J.:p before final decree, in an action for legal separation, abate the |1
action? If it does, will abatement also apply if the action involves
Petition, filed after the effectivity of Republic Act 5440, for review
property rights? .
by certiorari of an order, dated 29 July 1969, of the Juvenile and
An action for legal separation which involves nothing more than
Domestic Relations Court of Manila, in its Civil Case No. 20387,
the bed-and-board separation of the spouses (there being no
dismissing said case for legal separation on the ground that the
absolute divorce in this jurisdiction) is purely personal. The Civil
death of the therein plaintiff, Carmen O. Lapuz Sy, which occurred
Code of the Philippines recognizes this in its Article 100, by
during the pendency of the case, abated the cause of action as
allowing only the innocent spouse (and no one else) to claim legal
well as the action itself. The dismissal order was issued over the
separation; and in its Article 108, by providing that the spouses
objection of Macario Lapuz, the heir of the deceased plaintiff (and
can, by their reconciliation, stop or abate the proceedings and
petitioner herein) who sought to substitute the deceased and to
even rescind a decree of legal separation already rendered. Being
have the case prosecuted to final judgment.
personal in character, it follows that the death of one party to the
On 18 August 1953, Carmen O. Lapuz Sy filed a petition for legal
action causes the death of the action itself — actio personalis
separation against Eufemio S. Eufemio, alleging, in the main, that
moritur cum persona.
they were married civilly on 21 September 1934 and canonically on
... When one of the spouses is dead, there is no
30 September 1934; that they had lived together as husband and
need for divorce, because the marriage is
wife continuously until 1943 when her husband abandoned her;
dissolved. The heirs cannot even continue the
that they had no child; that they acquired properties during their
suit, if the death of the spouse takes place
marriage; and that she discovered her husband cohabiting with a
during the course of the suit (Article 244,
Chinese woman named Go Hiok at 1319 Sisa Street, Manila, on or
Section 3). The action is absolutely dead (Cass.,
about March 1949. She prayed for the issuance of a decree of legal
July 27, 1871, D. 71. 1. 81; Cass. req., May 8, 1933,
separation, which, among others, would order that the defendant
D. H. 1933, 332.") 4 .
Eufemio S. Eufemio should be deprived of his share of the conjugal
partnership profits. Marriage is a personal relation or status,
In his second amended answer to the petition, herein respondent created under the sanction of law, and an
Eufemio S. Eufemio alleged affirmative and special defenses, and, action for divorce is a proceeding brought for
along with several other claims involving money and other the purpose of effecting a dissolution of that
properties, counter-claimed for the declaration of nullity ab relation. The action is one of a personal nature.
initio of his marriage with Carmen O. Lapuz Sy, on the ground of In the absence of a statute to the contrary, the
his prior and subsisting marriage, celebrated according to Chinese death of one of the parties to such action
law and customs, with one Go Hiok, alias Ngo Hiok. abates the action, for the reason that death
Issues having been joined, trial proceeded and the parties has settled the question of separation beyond
adduced their respective evidence. But before the trial could be all controversy and deprived the court of
completed (the respondent was already scheduled to present jurisdiction, both over the persons of the parties
surrebuttal evidence on 9 and 18 June 1969), petitioner Carmen O. to the action and of the subject-matter of the
Lapuz Sy died in a vehicular accident on 31 May 1969. Counsel for action itself. For this reason the courts are
petitioner duly notified the court of her death. almost unanimous in holding that the death of
On 9 June 1969, respondent Eufemio moved to dismiss the either party to a divorce proceeding, before
"petition for legal separation" 1 on two (2) grounds, namely: that final decree, abates the action. 1 Corpus Juris,
208; Wren v. Moss, 2 Gilman, 72; Danforth v.
the petition for legal separation was filed beyond the one-year
Danforth, 111 Ill. 236; Matter of Grandall, 196
period provided for in Article 102 of the Civil Code; and that the
N.Y. 127, 89 N.E. 578; 134 Am St. Rep. 830; 17
death of Carmen abated the action for legal separation.
Ann. Cas. 874; Wilcon v. Wilson, 73 Mich, 620, 41
On 26 June 1969, counsel for deceased petitioner moved to
N.W. 817; Strickland v. Strickland, 80 Ark. 452,
substitute the deceased Carmen by her father, Macario Lapuz.
97 S. W. 659; McCurley v. McCurley, 60 Md. 185,
Counsel for Eufemio opposed the motion.
45 Am. Rep. 717; Begbie v. Begbie, 128 Cal. 155,
On 29 July 1969, the court issued the order under review, dismissing
60 Pac. 667, 49 L.R.A. 141. 5
the case. 2 In the body of the order, the court stated that the
The same rule is true of causes of action and suits for separation
motion to dismiss and the motion for substitution had to be
and maintenance (Johnson vs. Bates, Ark. 101 SW 412; 1 Corpus Juris
resolved on the question of whether or not the plaintiff's cause of
208).
action has survived, which the court resolved in the negative.
A review of the resulting changes in property relations between
Petitioner's moved to reconsider but the motion was denied on 15
spouses shows that they are solely the effect of the decree of legal
September 1969.
separation; hence, they can not survive the death of the plaintiff if
After first securing an extension of time to file a petition for review
it occurs prior to the decree. On the point, Article 106 of the Civil
of the order of dismissal issued by the juvenile and domestic
Code provides: .
relations court, the petitioner filed the present petition on 14
Art. 106. The decree of legal separation shall
October 1969. The same was given due course and answer thereto
have the following effects:
was filed by respondent, who prayed for the affirmance of the said
(1) The spouses shall be entitled to live
order. 3
separately from each other, but the marriage
Although the defendant below, the herein respondent Eufemio S. bonds shall not be severed; .
Eufemio, filed counterclaims, he did not pursue them after the (2) The conjugal partnership of gains or the
court below dismissed the case. He acquiesced in the dismissal of absolute conjugal community of property shall
said counterclaims by praying for the affirmance of the order that be dissolved and liquidated, but the offending
dismissed not only the petition for legal separation but also his spouse shall have no right to any share of the
counterclaim to declare the Eufemio-Lapuz marriage to be null profits earned by the partnership or
and void ab initio. community, without prejudice to the provisions
But petitioner Carmen O. Lapuz Sy (through her self-assumed of article 176;
substitute — for the lower court did not act on the motion for (3) The custody of the minor children shall be
substitution) stated the principal issue to be as follows: awarded to the innocent spouse, unless
When an action for legal separation is otherwise directed by the court in the interest
converted by the counterclaim into one for a of said minors, for whom said court may
declaration of nullity of a marriage, does the appoint a guardian;
death of a party abate the proceedings? (4) The offending spouse shall be disqualified
The issue as framed by petitioner injects into it a supposed from inheriting from the innocent spouse by
conversion of a legal separation suit to one for declaration of
 intestate succession. Moreover, provisions in September 21, 1934 and canonically after nine days. They had
favor of the offending spouse made in the will lived together as husband and wife continuously without any
of the innocent one shall be revoked by children until 1943 when her husband abandoned her. They
operation of law. acquired properties during their marriage. Petitioner then
From this article it is apparent that the right to the dissolution of discovered that her husband cohabited with a Chinese woman
the conjugal partnership of gains (or of the absolute community of named Go Hiok on or about 1949. She prayed for the issuance of
property), the loss of right by the offending spouse to any share of a decree of legal separation, which among others, would order
the profits earned by the partnership or community, or his that the defendant Eufemio should be deprived of his share of the
disqualification to inherit by intestacy from the innocent spouse as conjugal partnership profits.
well as the revocation of testamentary provisions in favor of the Page
offending spouse made by the innocent one, are all rights and Eufemio counterclaimed for the declaration of nullity of his
disabilities that, by the very terms of the Civil Code article, are marriage with Lapuz-Sy on the ground of his prior and subsisting |2
vested exclusively in the persons of the spouses; and by their marriage with Go Hiok. Trial proceeded and the parties adduced
nature and intent, such claims and disabilities are difficult to their respective evidence. However, before the trial could be
conceive as assignable or transmissible. Hence, a claim to said completed, respondent already scheduled to present surrebuttal
rights is not a claim that "is not thereby extinguished" after a party evidence, petitioner died in a vehicular accident on May 1969. Her
dies, under Section 17, Rule 3, of the Rules of Court, to warrant counsel duly notified the court of her death. Eufemio moved to
continuation of the action through a substitute of the deceased dismiss the petition for legal separation on June 1969 on the
party. grounds that the said petition was filed beyond the one-year
Sec. 17. Death of party. After a party dies and period provided in Article 102 of the Civil Code and that the death
the claim is not thereby extinguished, the court of Carmen abated the action for legal separation. Petitioner’s
shall order, upon proper notice, the legal counsel moved to substitute the deceased Carmen by her father,
representative of the deceased to appear and Macario Lapuz.
to be substituted for the deceased, within a
period of thirty (30) days, or within such time ISSUE: Whether the death of the plaintiff, before final decree in
as may be granted... an action for legal separation, abate the action and will it also
The same result flows from a consideration of the enumeration of apply if the action involved property rights.
the actions that survive for or against administrators in Section 1,
Rule 87, of the Revised Rules of Court: HELD:
SECTION 1. Actions which may and which may
not be brought against executor or An action for legal separation is abated by the death of the
administrator. No action upon a claim for the plaintiff, even if property rights are involved. These rights are mere
recovery of money or debt or interest thereon effects of decree of separation, their source being the decree itself;
shall be commenced against the executor or without the decree such rights do not come into existence, so that
administrator; but actions to recover real or before the finality of a decree, these claims are merely rights in
personal property, or an interest therein, from expectation. If death supervenes during the pendency of the
the estate, or to enforce a lien thereon, and action, no decree can be forthcoming, death producing a more
actions to recover damages for an injury to radical and definitive separation; and the expected consequential
person or property, real or personal, may be rights and claims would necessarily remain unborn.
commenced against him. The petition of Eufemio for declaration of nullity is moot and
Neither actions for legal separation or for annulment of marriage academic and there could be no further interest in continuing the
can be deemed fairly included in the enumeration.. same after her demise, that automatically dissolved the
A further reason why an action for legal separation is abated by questioned union. Any property rights acquired by either party as
the death of the plaintiff, even if property rights are involved, is a result of Article 144 of the Civil Code of the Philippines 6 could be
that these rights are mere effects of decree of separation, their resolved and determined in a proper action for partition by either
source being the decree itself; without the decree such rights do the appellee or by the heirs of the appellant.
not come into existence, so that before the finality of a decree,
these claims are merely rights in expectation. If death supervenes 2. G.R. No. L-18008 October 30, 1962
during the pendency of the action, no decree can be forthcoming,
death producing a more radical and definitive separation; and the ELISEA LAPERAL, petitioner,
expected consequential rights and claims would necessarily remain vs.
unborn. REPUBLIC OF THE PHILIPPINES, oppositor.
As to the petition of respondent-appellee Eufemio for a Martin B. Laurea and Associates for petitioner.
declaration of nullity ab initio of his marriage to Carmen Lapuz, it Office of the Solicitor General for oppositor.
is apparent that such action became moot and academic upon
the death of the latter, and there could be no further interest in BARRERA, J.:
continuing the same after her demise, that automatically dissolved On May 10, 1960, Elisea Laperal filed in the Court of First Instance
the questioned union. Any property rights acquired by either of Baguio (Sp Proc. No. 433) a petition which reads:
party as a result of Article 144 of the Civil Code of the Philippines 6 1. That petitioner has been a bona fide resident of the City of
could be resolved and determined in a proper action for partition Baguio for the last three years prior to the date of the filing of this
by either the appellee or by the heirs of the appellant. petition;
In fact, even if the bigamous marriage had not been void ab 2. That petitioner's maiden name is ELISEA LAPERAL; that on
initio but only voidable under Article 83, paragraph 2, of the Civil March 24, 1939, she married Mr. Enrique R. Santamaria; that in a
Code, because the second marriage had been contracted with the partial decision entered on this Honorable Court on January 18,
first wife having been an absentee for seven consecutive years, or 1958, in Civil Case No. 356 of this Court, entitled 'Enrique R.
when she had been generally believed dead, still the action for Santamaria vs. Elisea L. Santamaria' Mr. Enrique Santamaria was
annulment became extinguished as soon as one of the three given a decree of legal separation from her; that the said partial
persons involved had died, as provided in Article 87, paragraph 2, decision is now final;
of the Code, requiring that the action for annulment should be 3. That during her marriage to Enrique R. Santamaria, she
brought during the lifetime of any one of the parties involved. naturally used, instead of her maiden name, that of Elisea L.
And furthermore, the liquidation of any conjugal partnership that Santamaria; that aside from her legal separation from Enrique R.
might have resulted from such voidable marriage must be carried Santamaria, she has also ceased to live with him for many years
out "in the testate or intestate proceedings of the deceased now;
spouse", as expressly provided in Section 2 of the Revised Rule 73, 4. That in view of the fact that she has been legally separated
and not in the annulment proceeding. from Mr. Enrique R. Santamaria and has likewise ceased to live
ACCORDINGLY, the appealed judgment of the Manila Court of with him for many years, it is desirable that she be allowed to
Juvenile and Domestic Relations is hereby affirmed. No special change her name and/or be permitted to resume using her
pronouncement as to costs. maiden name, to wit: ELISEA LAPERAL.
WHEREFORE, petitioner respectfully prayed that after the
CASE DIGEST 1: necessary proceedings are had, she be allowed to resume using her
maiden name of Elisea Laperal.
FACTS: The petition was opposed by the City Attorney of Baguio on the
ground that the same violates the provisions of Article 370 (should
Carmen Lapuz-Sy filed a petition for legal separation against
be 372) of the Civil Code, and that it is not sanctioned by the Rules
Eufemio Eufemio on August 1953. They were married civilly on
of Court.
In its decision of October 31, 1960, the court denied the petition for HELD:
the reason that Article 372 of the Civil Code requires the wife, even
after she is decreed legally separated from her husband, to In legal separation, the married status is unaffected by the
continue using the name and surname she employed before the separation, there being no severance of the vinculum. The finding
legal separation. Upon petitioner's motion, however, the court, that petitioner’s continued use of her husband surname may cause
treating the petition as one for change of name, reconsidered its undue confusion in her finances was without basis. It must be
decision and granted the petition on the ground that to allow considered that the issuance of the decree of legal separation in
petitioner, who is a businesswoman decreed legally separated 1958, necessitate that the conjugal partnership between her and
from her husband, to continue using her married name would give Enrique had automatically been dissolved and liquidated. Hence,
rise to confusion in her finances and the eventual liquidation of the there could be no more occasion for an eventual liquidation of the Page
conjugal assets. Hence, this appeal by the State. conjugal assets.
The contention of the Republic finds support in the provisions of |3
Article 372 of the New Civil Code which reads: Furthermore, applying Rule 103 is not a sufficient ground to justify
ART. 372. When legal separation has been granted, the wife shall a change of the name of Elisea for to hold otherwise would be to
continue using her name and surname employed before the legal provide for an easy circumvention of the mandatory provision of
separation. (Emphasis supplied) Art. 372.
Note that the language of the statute is mandatory that the wife,
even after the legal separation has been decreed, shall continue Petition was dismissed.
using her name and surname employed before the legal
separation. This is so because her married status is unaffected by
the separation, there being no severance of the vinculum. It seems 3. G.R. No. 169202 March 05, 2010
to be the policy of the law that the wife should continue to use the
name indicative of her unchanged status for the benefit of all
concerned. REMO VS SECRETARY OF FOREIGN AFFAIRS
The appellee contends, however, that the petition is substantially
for change of her name from Elisea L. Santamaria, the one she has
been using, since her marriage, to Elisea Laperal, her maiden The Case
name, giving as reason or cause therefor her being legally
separated from the husband Enrique R. Santamaria, and the fact Before the Court is a petition for review of the 27 May 2005
that they have ceased to live together for many years. Decision and 2 August 2005 Resolution of the Court of Appeals in
There seems to be no dispute that in the institution of these CA-G.R. SP No. 87710. The Court of Appeals affirmed the decision
proceedings, the procedure prescribed in Rule 103 of the Rules of of the Office of the President, which in turn affirmed the decision
Court for change of name has been observed. But from the of the Secretary of Foreign Affairs denying petitioner’s request to
petition quoted in full at the beginning of these opinion, the only revert to the use of her maiden name in her replacement passport.
reason relied upon for the change of name is the fact that
petitioner is legally separated from her husband and has, in fact,
ceased to live with him for many years. It is doubtful, to say the The Facts
least, whether Rule 103 which refers to change of name in general,
may prevail over the specific provisions of Article 372 of the New Petitioner Maria Virginia V. Remo is a married Filipino
Civil Code with regards to married women legally separated from citizen whose Philippine passport was then expiring on 27 October
their husbands. Even, however, applying Rule 103 to this case, the 2000. Petitioner being married to Francisco R. Rallonza, the
fact of legal separation alone — which is the only basis for the following entries appear in her passport: ―Rallonza‖ as her
petition at bar — is, in our opinion, not a sufficient ground to surname, ―Maria Virginia‖ as her given name, and ―Remo‖ as her
justify a change of the name of herein petitioner, for to hold middle name. Prior to the expiry of the validity of her passport,
otherwise would be to provide an easy circumvention of the petitioner, whose marriage still subsists, applied for the renewal of
mandatory provisions of Article 372. her passport with the Department of Foreign Affairs (DFA) office
It is true that in the second decision which reconsidered the first it is in Chicago, Illinois, U.S.A., with a request to revert to her maiden
stated that as the petitioner owns extensive business interests, the name and surname in the replacement passport.
continued used of her husband surname may cause undue
confusion in her finances and the eventual liquidation of the Petitioner’s request having been denied, Atty. Manuel Joseph
conjugal assets. This finding is however without basis. In the first R. Bretana III, representing petitioner, wrote then Secretary of
place, these were not the causes upon which the petition was Foreign Affairs Domingo Siason expressing a similar request.
based; hence, obviously no evidence to this effect had been
adduced. Secondly, with the issuance of the decree of legal On 28 August 2000, the DFA, through Assistant Secretary
separation in 1958, the conjugal partnership between petitioner Belen F. Anota, denied the request, stating thus:
and her husband had automatically been dissolved and
liquidated. (Art. 106[2], Civil Cod). Consequently, there could be This has reference to your letter dated 17 August 2000
no more occasion for an eventual liquidation of the conjugal regarding one Ms. Maria Virginia V. Remo who is applying for
assets. renewal of her passport using her maiden name.
WHEREFORE, the order of the lower court of December 1, 1960,
granting the petition, is hereby set aside and the petition This Office is cognizant of the provision in the law that it is
dismissed. Without costs. So ordered. not obligatory for a married woman to use her husband’s
name. Use of maiden name is allowed in passport
CASE DIGEST 2: application only if the married name has not been used
in previous application. The Implementing Rules and
FACTS: Regulations for Philippine Passport Act of 1996 clearly defines the
conditions when a woman applicant may revert to her maiden
The petitioner, a bona fide resident of Baguio City, was married name, that is, only in cases of annulment of marriage, divorce and
with Mr. Enrique R. Santamaria on March 1939. However, a death of the husband. Ms. Remo’s case does not meet any of these
decree of legal separation was later on issued to the spouses. conditions. (Emphasis supplied)
Aside from that, she ceased to live with Enrique. During their
marriage, she naturally uses Elisea L. Santamaria. She filed this
petition to be permitted to resume in using her maiden name Petitioner’s motion for reconsideration of the above-letter
Elisea Laperal. This was opposed by the City Attorney of Baguio resolution was denied in a letter dated 13 October 2000.
on the ground that it violates Art. 372 of the Civil Code. She was On 15 November 2000, petitioner filed an appeal with the
claiming that continuing to use her married name would give rise Office of the President.
to confusion in her finances and the eventual liquidation of the
conjugal assets. On 27 July 2004, the Office of the President dismissed the
appeal[6] and ruled that Section 5(d) of Republic Act No. 8239
ISSUE: Whether Rule 103 which refers to change of name in (RA 8239) or the Philippine Passport Act of 1996 ―offers no leeway
general will prevail over the specific provision of Art. 372 of the for any other interpretation than that only in case of divorce,
Civil Code with regard to married woman legally separated from annulment, or declaration [of nullity] of marriage may a married
his husband. woman revert to her maiden name for passport purposes.‖ The
Office of the President further held that in case of conflict between
a general and special law, the latter will control the former the dissolution of her marriage by divorce under the Code of
regardless of the respective dates of passage. Since the Civil Code is Muslim Personal Laws of the Philippines, and after marriage of
a general law, it should yield to RA 8239. her former husband to another woman. In ruling in favor of
petitioner therein, the Court explained that:
On 28 October 2004, the Office of the President denied the
motion for reconsideration.[7] When a woman marries a man, she need not apply
and/or seek judicial authority to use her husband’s name
Petitioner filed with the Court of Appeals a petition for by prefixing the word “Mrs.” before her husband’s full
review under Rule 43 of the Rules of Civil Procedure. name or by adding her husband’s surname to her maiden
first name. The law grants her such right (Art. 370, Civil Page
In its Decision of 27 May 2005, the Court of Appeals denied
the petition and affirmed the ruling of the Office of the Code). Similarly, when the marriage ties or vinculum no |4
President. The dispositive portion of the Court of Appeals’ decision longer exists as in the case of death of the husband or
reads: divorce as authorized by the Muslim Code, the widow or
divorcee need not seek judicial confirmation of the
WHEREFORE, premises considered, the petition is DENIED, change in her civil status in order to revert to her maiden
and the resolution dated July 27, 2004, and the order dated name as use of her former husband’s is optional and not
October 28, 2004 of the Office of the President in O.P. Case No. obligatory for her (Tolentino, Civil Code, p. 725, 1983 ed.;
001-A-9344 are hereby AFFIRMED.
Art. 373, Civil Code). When petitioner married her
SO ORDERED. husband, she did not change her but only her civil status.
Neither was she required to secure judicial authority to
use the surname of her husband after the marriage as no
Petitioner moved for reconsideration which the Court of law requires it. (Emphasis supplied)
Appeals denied in its Resolution dated 2 August 2005.

Hence, this petition.

Clearly, a married woman has an option, but not a duty, to
use the surname of the husband in any of the ways provided by
The Court of Appeals’ Ruling Article 370 of the Civil Code. She is therefore allowed to use not
only any of the three names provided in Article 370, but also her
maiden name upon marriage. She is not prohibited from
The Court of Appeals found no conflict between Article 370 continuously using her maiden name once she is married because
of the Civil Code and Section 5(d) of RA 8239. The Court of when a woman marries, she does not change her name but only
Appeals held that for passport application and issuance purposes, her civil status. Further, this interpretation is in consonance with
RA 8239 limits the instances when a married woman applicant the principle that surnames indicate descent.
may exercise the option to revert to the use of her maiden name
such as in a case of a divorce decree, annulment or declaration of In the present case, petitioner, whose marriage is still
nullity of marriage. Since there was no showing that petitioner's subsisting and who opted to use her husband’s surname in her old
marriage to Francisco Rallonza has been annulled, declared void passport, requested to resume her maiden name in the
or a divorce decree has been granted to them, petitioner cannot replacement passport arguing that no law prohibits her from using
simply revert to her maiden name in the replacement passport her maiden name. Petitioner cites Yasin as the applicable
after she had adopted her husband’s surname in her old precedent. However, Yasin is not squarely in point with this
passport. Hence, according to the Court of Appeals, respondent case. Unlike in Yasin, which involved a Muslim divorcee whose
was justified in refusing the request of petitioner to revert to her former husband is already married to another woman,
maiden name in the replacement passport. petitioner’s marriage remains subsisting. Another point, Yasin did
not involve a request to resume one’s maiden name in a
replacement passport, but a petition to resume one’s maiden
The Issue name in view of the dissolution of one’s marriage.

The law governing passport issuance is RA 8239 and the

applicable provision in this case is Section 5(d), which states:
The sole issue in this case is whether petitioner, who originally
used her husband’s surname in her expired passport, can revert to
Sec. 5. Requirements for the Issuance of Passport. — No
the use of her maiden name in the replacement passport, despite
passport shall be issued to an applicant unless the Secretary or his
the subsistence of her marriage.
duly authorized representative is satisfied that the applicant is a
Filipino citizen who has complied with the following requirements:
The Ruling of the Court xxx

(D) IN CASE OF A WOMAN WHO IS MARRIED, SEPARATED,

The petition lacks merit. DIVORCED OR WIDOWED OR WHOSE MARRIAGE HAS BEEN
ANNULLED OR DECLARED BY COURT AS VOID, A COPY OF
Title XIII of the Civil Code governs the use of THE CERTIFICATE OF MARRIAGE, COURT DECREE OF
surnames. In the case of a married woman, Article 370 of SEPARATION, DIVORCE OR ANNULMENT OR CERTIFICATE OF
the Civil Code provides: DEATH OF THE DECEASED SPOUSE DULY ISSUED AND
AUTHENTICATED BY THE OFFICE OF THE CIVIL REGISTRAR
GENERAL: PROVIDED, THAT IN CASE OF A DIVORCE DECREE,
ART. 370. A married woman may use:
ANNULMENT OR DECLARATION OF MARRIAGE AS VOID, THE
WOMAN APPLICANT MAY REVERT TO THE USE OF HER
(1) HER MAIDEN FIRST NAME AND SURNAME AND ADD MAIDEN NAME: PROVIDED, FURTHER, THAT SUCH DIVORCE IS
HER HUSBAND’S SURNAME, OR RECOGNIZED UNDER EXISTING LAWS OF THE PHILIPPINES; X X
(2) HER MAIDEN FIRST NAME AND HER HUSBAND'S X (EMPHASIS SUPPLIED)
SURNAME, OR
(3) HER HUSBAND’S FULL NAME, BUT PREFIXING A WORD
INDICATING THAT SHE IS HIS WIFE, SUCH AS ―MRS.‖ The Office of the Solicitor General (OSG), on behalf of the
Secretary of Foreign Affairs, argues that the highlighted proviso in
Section 5(d) of RA 8239 ―limits the instances when a married
We agree with petitioner that the use of the word ―may‖ in woman may be allowed to revert to the use of her maiden name
the above provision indicates that the use of the husband’s in her passport.‖ These instances are death of husband, divorce
surname by the wife is permissive rather than obligatory. This has decree, annulment or nullity of marriage. Significantly, Section 1,
been settled in the case of Yasin v. Honorable Judge Shari’a Article 12 of the Implementing Rules and Regulations of RA 8239
District Court. provides:
In Yasin, petitioner therein filed with the Shari’a District The passport can be amended only in the following cases:
Court a ―Petition to resume the use of maiden name‖ in view of
 for passport issuance purposes, a married woman, such as
A) AMENDMENT OF WOMAN’S NAME DUE TO MARRIAGE; petitioner, whose marriage subsists, may not change her family
B) AMENDMENT OF WOMAN’S NAME DUE TO DEATH OF name at will.
SPOUSE, ANNULMENT OF MARRIAGE OR DIVORCE INITIATED
BY A FOREIGN SPOUSE; OR THE ACQUISITION OF A PHILIPPINE PASSPORT IS A
C) CHANGE OF SURNAME OF A CHILD WHO IS LEGITIMATED PRIVILEGE. THE LAW RECOGNIZES THE PASSPORT
BY VIRTUE OF A SUBSEQUENT MARRIAGE OF HIS PARENTS. APPLICANT’S CONSTITUTIONAL RIGHT TO TRAVEL. HOWEVER,
THE STATE IS ALSO MANDATED TO PROTECT AND MAINTAIN
THE INTEGRITY AND CREDIBILITY OF THE PASSPORT AND
Since petitioner’s marriage to her husband subsists, placing TRAVEL DOCUMENTS PROCEEDING FROM Page
her case outside of the purview of Section 5(d) of RA 8239 (as to IT AS A PHILIPPINE PASSPORT REMAINS AT ALL TIMES
the instances when a married woman may revert to the use of her THE PROPERTY OF THE GOVERNMENT. THE HOLDER IS |5
maiden name), she may not resume her maiden name in the MERELY A POSSESSOR OF THE PASSPORT AS LONG AS IT IS
replacement passport. This prohibition, according to petitioner, VALID AND THE SAME MAY NOT BE SURRENDERED TO ANY
conflicts with and, thus, operates as an implied repeal of Article PERSON OR ENTITY OTHER THAN THE GOVERNMENT OR ITS
370 of the Civil Code. REPRESENTATIVE.
PETITIONER IS MISTAKEN. THE CONFLICT BETWEEN As the OSG correctly pointed out:
ARTICLE 370 OF THE CIVIL CODE AND SECTION 5(D) OF RA
8239 IS MORE IMAGINED THAN REAL. RA 8239, INCLUDING ITS [T]he issuance of passports is impressed with public interest. A
IMPLEMENTING RULES AND REGULATIONS, DOES NOT passport is an official document of identity and nationality issued
PROHIBIT A MARRIED WOMAN FROM USING HER MAIDEN to a person intending to travel or sojourn in foreign countries. It is
NAME IN HER PASSPORT. IN FACT, IN RECOGNITION OF THIS issued by the Philippine government to its citizens requesting other
RIGHT, THE DFA ALLOWS A MARRIED WOMAN WHO APPLIES governments to allow its holder to pass safely and freely, and in
FOR A PASSPORT FOR THE FIRST TIME TO USE HER MAIDEN case of need, to give him/her aid and protection. x x x
NAME. SUCH AN APPLICANT IS NOT REQUIRED TO ADOPT
HER HUSBAND'S SURNAME. Viewed in the light of the foregoing, it is within
respondent’s competence to regulate any amendments intended
In the case of renewal of passport, a married woman may to be made therein, including the denial of unreasonable and
either adopt her husband’s surname or continuously use her whimsical requests for amendments such as in the instant case.
maiden name. If she chooses to adopt her husband’s surname in
her new passport, the DFA additionally requires the submission of
an authenticated copy of the marriage certificate. Otherwise, WHEREFORE, we DENY the petition. We AFFIRM the 27
if she prefers to continue using her maiden name, she may still do May 2005 Decision and 2 August 2005 Resolution of the Court of
so. The DFA will not prohibit her from continuously using her Appeals in CA-G.R. SP No. 87710.
maiden name.

HOWEVER, ONCE A MARRIED WOMAN OPTED TO ADOPT CASE DIGEST 3:

HER HUSBAND’S SURNAME IN HER PASSPORT, SHE MAY NOT
REVERT TO THE USE OF HER MAIDEN NAME, EXCEPT IN THE Remo vs. Secretary of Foreign Affairs
CASES ENUMERATED IN SECTION 5(D) OF RA 8239. THESE G.R. 169202; 5 March 2010
INSTANCES ARE: (1) DEATH OF HUSBAND, (2) DIVORCE, (3)
ANNULMENT, OR (4) NULLITY OF MARRIAGE. SINCE Facts: Maria Virginia V. Remo (Remo) is a Filipino citizen, married
PETITIONER’S MARRIAGE TO HER HUSBAND SUBSISTS, SHE to Francisco R. Rallonza. Her Philippine passport, which was to
MAY NOT RESUME HER MAIDEN NAME IN THE REPLACEMENT expire on 27 October 2000, showed ―Rallonza‖ as her surname,
PASSPORT. OTHERWISE STATED, A MARRIED WOMAN'S ―Maria Virginia‖ as her given name, and ―Remo‖ as her middle
REVERSION TO THE USE OF HER MAIDEN NAME MUST BE name. While her marriage was still subsisting, she applied for the
BASED ONLY ON THE SEVERANCE OF THE MARRIAGE. renewal of her passport with the Department of Foreign Affairs
office in Chicago, Illinois, U.S.A., with a request to revert to her
EVEN ASSUMING RA 8239 CONFLICTS WITH THE CIVIL maiden name and surname in the replacement passport. When
CODE, THE PROVISIONS OF RA 8239 WHICH IS A SPECIAL LAW her request was denied, she made a similar request to the
SPECIFICALLY DEALING WITH PASSPORT ISSUANCE MUST Secretary of Foreign Affairs. The Secretary of Foreign Affairs
PREVAIL OVER THE PROVISIONS OF TITLE XIII OF THE CIVIL denied the request, holding that while it is not obligatory for a
CODE WHICH IS THE GENERAL LAW ON THE USE OF married woman to use her husband’s name, she could use her
SURNAMES. A BASIC TENET INSTATUTORY CONSTRUCTION IS maiden name in her passport application only if she had not used
THAT A SPECIAL LAW PREVAILS OVER A GENERAL LAW, THUS: her married name in her previous application. The Secretary
explained that under the implementing rules of Republic Act No.
[I]t is a familiar rule of statutory construction that to the extent of 8239 or the Philippine Passport Act of 1996, a woman applicant
any necessary repugnancy between a general and a special law may revert to her maiden name only in cases of annulment of
or provision, the latter will control the former without regard to marriage, divorce, and death of the husband. Remo brought the
the respective dates of passage. case to the Office of the President which affirmed the Secretary’s
ruling. Remo filed a petition for review before the Court of
Appeals which denied the petition. When her motion for
Moreover, petitioner’s theory of implied repeal must reconsideration was denied, Remo filed a petition for review
fail. Well-entrenched is the rule that an implied repeal is before the Supreme Court. Remo argued that RA 8239 conflicted
disfavored. T he apparently conflicting provisions of a law or two with and was an implied repeal of Article 370 of the Civil Code
laws should be harmonized as much as possible, so that each shall which allows the wife to continue using her maiden name upon
be effective. For a law to operate to repeal another law, the two marriage, as settled in the case of Yasin vs. Honorable Judge
laws must actually be inconsistent. The former must be so Shari’a District Court Phil. 696, 707 (1995)].
repugnant as to be irreconcilable with the latter act. This
petitioner failed to establish. Issue: Whether or not Remo, who originally used her husband’s
surname in her expired passport, can revert to the use of her
The Court notes that petitioner would not have encountered maiden name in the replacement passport, despite the subsistence
any problems in the replacement passport had she opted to of her marriage.
continuously and consistently use her maiden name from the
moment she was married and from the time she first applied for a Ruling: The petition was denied. Remo cannot use her maiden
Philippine passport. However, petitioner consciously chose to use name in the replacement passport while her marriage subsists.
her husband’s surname before, in her previous passport
application, and now desires to resume her maiden name. If we No conflict between Civil Code and RA 8239.
allow petitioner’s present request, definitely nothing prevents her
in the future from requesting to revert to the use of her husband’s Indeed, under Article 370 of the Civil Code and as settled in the
surname. Such unjustified changes in one's name and identity in case of Yasin vs. Honorable Judge Shari’a District Court (supra), a
a passport, which is considered superior to all other official married woman has an option, but not an obligation, to use her
documents, cannot be countenanced. Otherwise, undue confusion husband’s surname upon marriage. She is not prohibited from
and inconsistency in the records of passport holders will arise. Thus, continuously using her maiden name because when a woman
marries, she does not change her name but only her civil status. RA Appeals, but said Tribunal certified the case to the Court on the
8239 does not conflict with this principle. ground that there is absolutely no question of fact involved, the
RA 8239, including its implementing rules and regulations, does motion being predicated on the assumption as true of the very
not prohibit a married woman from using her maiden name in facts testified to by plaintiff-husband.
her passport. In fact, in recognition of this right, the Department of The facts of the case abridgedly stated are as follows: Benjamin
Foreign Affairs (DFA) allows a married woman who applies for a Bugayong, a serviceman in the United States Navy, was married
passport for the first time to use her maiden name. Such an to defendant Leonila Ginez on August 27, 1949, at Asingan,
applicant is not required to adopt her husband’s surname. In the Pangasinan, while on furlough leave. Immediately after their
case of renewal of passport, a married woman may either adopt marriage, the couple lived with their sisters who later moved to
her husband’s surname or continuously use her maiden name. If Sampaloc, Manila. After some time, or about July, 1951, Leonila Page
she chooses to adopt her husband’s surname in her new passport, Ginez left the dwelling of her sister-in-law and informed her
the DFA additionally requires the submission of an authenticated husband by letter that she had gone to reside with her mother in |6
copy of the marriage certificate. Otherwise, if she prefers to Asingan, Pangasinan, from which place she later moved to
continue using her maiden name, she may still do so. The DFA will Dagupan City to study in a local college there.
not prohibit her from continuously using her maiden As early as July, 1951, Benjamin Bugayong began receiving letters
name.However, once a married woman opted to adopt her from Valeriana Polangco (plaintiff's sister-in-law) and some from
husband’s surname in her passport, she may not revert to the use anonymous writers(which were not produced at the hearing)
of her maiden name, except in the following cases enumerated in informing him of alleged acts of infidelity of his wife which he did
Section 5(d) of RA 8239: (1) death of husband, (2) divorce, (3) not even care to mention. On cross-examination, plaintiff
annulment, or (4) nullity of marriage. Since Remo’s marriage to admitted that his wife also informed him by letter, which she
her husband subsists, she may not resume her maiden name in the claims to have destroyed, that a certain "Eliong" kissed her. All
replacement passport. Otherwise stated, a married woman’s these communications prompted him in October, 1951 to seek the
reversion to the use of her maiden name must be based only on advice of the Navy Chaplain as to the propriety of a legal
the severance of the marriage. Yasin case not in point Yasin is not separation between him and his wife on account of the latter's
squarely in point with this case. Unlike in Yasin, which involved a alleged acts of infidelity, and he was directed to consult instead
Muslim divorcee whose former husband is already married to the navy legal department.
another woman, Remo’s marriage remains subsisting. Also, Yasin In August, 1952, plaintiff went to Asingan, Pangasinan, and sought
did not involve a request to resume one’s maiden name in a for his wife whom he met in the house of one Mrs. Malalang,
replacement passport, but a petition to resume one’s maiden defendant's godmother. She came along with him and both
name in view of the dissolution of one’s marriage. proceeded to the house of Pedro Bugayong, a cousin of the
plaintiff-husband, where they stayed and lived for 2 nights and 1
Special law prevails over general law day as husband and wife. Then they repaired to the plaintiff's
house and again passed the night therein as husband and wife. On
Even assuming RA 8239 conflicts with the Civil Code, the provisions the second day, Benjamin Bugayong tried to verify from his wife
of RA 8239 which is a special law specifically dealing with passport the truth of the information he received that she had committed
issuance must prevail over the provisions of Title XIII of the Civil adultery but Leonila, instead of answering his query, merely
Code which is the general law on the use of surnames. A basic packed up and left, which he took as a confirmation of the acts of
tenet in statutory construction is that a special law prevails over a infidelity imputed on her. After that and despite such belief,
general law. plaintiff exerted efforts to locate her and failing to find her, he
went to Bacarra, Ilocos Norte, "to soothe his wounded feelings".
Implied repeals are disfavored On November 18, 1952, Benjamin Bugayong filed in the Court of
First Instance of Pangasinan a complaint for legal separation
Remo’s theory of implied repeal must fail. Well-entrenched is the against his wife, Leonila Ginez, who timely filed an answer
rule that an implied repeal is disfavored. The apparently vehemently denying the averments of the complaint and setting
conflicting provisions of a law or two laws should be harmonized up affirmative defenses. After the issues were joined and
as much as possible, so that each shall be effective. For a law to convinced that a reconciliation was not possible, the court set the
operate to repeal another law, the two laws must actually be case for hearing on June 9, 1953. Plaintiff's counsel announced that
inconsistent. The former must be so repugnant as to be he was to present 6 witnesses but after plaintiff-husband finished
irreconcilable with the latter act. This, Remo failed to establish. testifying in his favor, counsel for the defendant orally moved for
the dismissal of the complaint, but the Court ordered him to file a
State is mandated to protect integrity of passport written motion to that effect and gave plaintiff 10 days to answer
the same.
Remo consciously chose to use her husband’s surname in her The motion to dismiss was predicted on the following grounds: (1)
previous passport application. If her present request would be Assuming arguendo the truth of the allegations of the commission
allowed, nothing prevents her in the future from requesting to of "acts of rank infidelity amounting to adultery", the cause of
revert to the use of her husband’s surname. Such unjustified action, if any, is barred by the statute of limitations; (2) That
changes in one's name and identity in a passport, which is under the same assumption, the act charged have been
considered superior to all other official documents, cannot be condoned by the plaintiff-husband; and (3) That the complaint
countenanced. Otherwise, undue confusion and inconsistency in failed to state a cause of action sufficient for this court to render a
the records of passport holders will arise. valid judgment.
The motion to dismiss was answered by plaintiff and the Court,
The acquisition of a Philippine passport is a privilege. considering only the second ground of the motion to dismiss i.
e., condonation, ordered the dismissal of the action. After the
The law recognizes the passport applicant’s constitutional right to motion for reconsideration filed by plaintiff was denied, the case
travel. However, the State is also mandated to protect and was taken up for review to the Court of Appeals, appellant's
maintain the integrity and credibility of the passport and travel counsel maintaining that the lower court erred:
documents proceeding from it as a Philippine passport remains at (a) In so prematurely dismissing the case;
all times the property of the Government. The holder is merely a (b) In finding that there were condonation on the part of plaintiff-
possessor of the passport as long as it is valid. appellant; and
(c) In entertaining condonation as a ground for dismissal inasmuch
Ponente: J. Antonio T. Carpio as same was not raised in the answer or in a motion to dismiss.
As the questions raised in the brief were merely questions of law,
4. G.R. No. L-10033 December 28, 1956 the Court of Appeals certified the case to Superiority.
BENJAMIN BUGAYONG, plaintiff-appellant, The Civil Code provides:
vs. ART. 97. A petition for legal separation may be filed:
LEONILA GINEZ, defendant-appellee. (1) For adultery on the part of the wife and for concubinage for
the part of the husband as defined on the Penal Code; or
Florencio Dumapias for appellant. (2) An attempt by one spouse against the life of the other.
ART. 100. The legal separation may be claimed only by the
Numeriano Tanopo, Jr. for appellee. innocent spouse, provided there has been no condonation of or
consent to the adultery or concubinage. Where both spouses are
FELIX, J.: offenders, a legal separation cannot by either of them. Collusion
This is a case for legal separation filed in the Court of First Instance between the parties to obtain legal separation shall cause the
of Pangasinan wherein on motion of the defendant, the case was dismissal of the petition.
dismissed. The order of dismissal was appealed to the Court of
ART. 102. An action for legal separation cannot be filed except knowledge of the husband's guilt, her consent should operate as a
within one year from and after the date on which the plaintiff pardon of his wrong."
became cognizant of the cause and within five years from and In Tiffany's Domestic and Family Relations, section 107 says:
after the date when such cause occurred. Condonation. Is the forgiveness of a marital offense constituting a
As the only reason of the lower Court for dismissing the action was ground for divorce and bars the right to a divorce. But it is on the
the alleged condonation of the charges of adultery that the condition, implied by the law when not express, that the
plaintiff-husband had preferred in the complaint against his wife, wrongdoer shall not again commit the offense; and also that he
We will disregard the other 2 grounds of the motion to dismiss, as shall thereafter treat the other spouse with conjugal kindness. A
anyway they have not been raised in appellant's assignment of breach of the condition will revive the original offense as a ground
errors. for divorce. Condonation may be express or implied. Page
Condonation is the forgiveness of a marital offense constituting a It has been held in a long line of decisions of the various supreme
ground for legal separation or, as stated in I Bouver's Law courts of the different states of the U. S. that 'a single voluntary act |7
Dictionary, p. 585, condonation is the "conditional forgiveness or of sexual intercourse by the innocent spouse after discovery of the
remission, by a husband or wife of a matrimonial offense which offense is ordinarily sufficient to constitute condonation, especially
the latter has committed". It is to be noted, however, that in as against the husband'. (27 Corpus Juris Secundum, section 61 and
defendant's answer she vehemently and vigorously denies having cases cited therein).
committed any act of infidelity against her husband, and even if In the lights of the facts testified to by the plaintiff-husband, of the
We were to give full weight to the testimony of the plaintiff, who legal provisions above quoted, and of the various decisions above-
was the only one that had the chance of testifying in Court and cited, the inevitable conclusion is that the present action is
link such evidence with the averments of the complaint, We would untenable.
have to conclude that the facts appearing on the record are far Although no acts of infidelity might have been committed by the
from sufficient to establish the charge of adultery, or, as the wife, We agree with the trial judge that the conduct of the
complaint states, of "acts of rank infidelity amounting to adultery" plaintiff-husband above narrated despite his belief that his wife
preferred against the defendant. Certainly, the letter that plaintiff was unfaithful, deprives him, as alleged the offended spouse, of
claims to have received from his sister-in-law Valeriana Polangco, any action for legal separation against the offending wife, because
which must have been too vague and indefinite as to defendant's his said conduct comes within the restriction of Article 100 of the
infidelity to deserve its production in evidence; nor the anonymous Civil Code.
letters which plaintiff also failed to present; nor the alleged letter The only general rule in American jurisprudence is that any
that, according to plaintiff, his wife addressed to cohabitation with the guilty party, after the commission of the
him admitting that she had been kissed by one Eliong, whose offense, and with the knowledge or belief on the part of the
identity was not established and which admission defendant had injured party of its commission, will amount to conclusive evidence
no opportunity to deny because the motion to dismiss was filed of condonation; but this presumption may be rebutted by
soon after plaintiff finished his testimony in Court, do not amount evidence (60 L. J. Prob. 73).
to anything that can be relied upon. If there had been cohabitation, to what extent must it be to
But this is not a question at issue. In this appeal, We have to constitute condonation?
consider plaintiff's line of conduct under the assumption that he Single voluntary act of marital intercourse between the parties
really believed his wife guilty of adultery. What did he do in such ordinarily is sufficient to constitute condonation, and where the
state of mind. In August, 1952, he went to Pangasinan and looked parties live in the same house, it is presumed that they live on
for his wife and after finding her they lived together as husband terms of matrimonial cohabitation (27 C. J. S., section 6-d).
and wife for 2 nights and 1 day, after which he says that he tried to A divorce suit will not be granted for adultery where the parties
verify from her the truth of the news he had about her infidelity, continue to live together after it was known (Land vs. Martin, 15
but failed to attain his purpose because his wife, instead of South 657; Day vs. Day, 80 Pac. 974) or there is sexual intercourse
answering his query on the matter, preferred to desert him, after knowledge of adultery (Rogers vs. Rogers, 67 N. J. Eq. 534)
probably enraged for being subjected to such humiliation. And yet or sleeping together for a single night (Toulson vs. Toulson, 50 Atl.
he tried to locate her, though in vain. Now, do the husband's 401, citing Phinizy vs. Phinizy, 114 S. E. 185, 154 Ga. 199;
attitude of sleeping with his wife for 2 nights despite his alleged Collins vs. Collins, 193 So. 702), and many others. The resumption of
belief that she was unfaithful to him, amount to a condonation of marital cohabitation as a basis of condonation will generally be
her previous and supposed adulterous acts? In the order appealed inferred, nothing appearing to the contrary, from the fact of the
from, the Court a quo had the following to say on this point: living together as husband and wife, especially as against the
husband (Marsh vs. Marsh, 14 N. J. Eq. 315).
The New Civil Code of the Philippines, in its Art. 97, says: There is no ruling on this matter in our jurisprudence but we have
A petition for legal separation may be filed: no reason to depart from the doctrines laid down in the decisions
(1) For adultery on the part of the wife and concubinage on the of the various supreme courts of the United States above quoted.
part of the husband as defined on the Penal Code. There is no merit in the contention of appellant that the lower
and in its Art. 100 it says: lawphil.net court erred in entertaining condonation as a ground for dismissal
The legal separation may be claimed only by the innocent spouse, inasmuch as same was not raised in the answer or in a motion to
provided there has been no condonation of or consent to the dismiss, because in the second ground of the motion to dismiss. It is
adultery or concubinage. Where both spouses are offenders, legal true that it was filed after the answer and after the hearing had
separation cannot be claimed by either of them. Collusion been commenced, yet that motion serves to supplement the
between the parties to obtain legal separation shall cause the averments of defendant's answer and to adjust the issues to the
dismissal of the petition. testimony of plaintiff himself (section 4, Rule 17 of the Rules of
A detailed examination of the testimony of the plaintiff-husband, Court).
especially those portions quoted above, clearly shows that there Wherefore, and on the strength of the foregoing, the order
was a condonation on the part of the husband for the supposed appealed from is hereby affirmed, with costs against appellant. It
"acts of rank infidelity amounting to adultery" committed by is so ordered.
defendant-wife. Admitting for the sake of argument that the
infidelities amounting to adultery were committed by the
defendant, a reconciliation was effected between her and the CASE DIGEST 4:
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 Bugayong vs. Ginez
be brought to the house of his cousin Pedro Bugayong and GR No. 10033, December 28, 1956
together they slept there as husband and wife for one day and
one night, and the further fact that in the second night they again FACTS:
slept together in their house likewise as husband and wife — all
these facts have no other meaning in the opinion of this court than Benjamin Bugayong, a serviceman in the US Navy was married
that a reconciliation between them was effected and that there with Leonila Ginez on August 1949 at Pangasinan while on
was a condonation of the wife by the husband. The reconciliation furlough leave. Immediately after the marriage, they lived with
occurred almost ten months after he came to know of the acts of the sisters of Bugayong in said municipality before he went back
infidelity amounting to adultery. to duty. The couple came to an agreement that Ginez would stay
In Shackleton vs. Shackleton, 48 N. J. Eq. 364; 21 Atl. 935, it has with his sisters who later moved in Manila. On or about July 1951,
been held that "condonation is implied from sexual intercourse she left the dwelling of the sisters-in-law and informed her
after knowledge of the other infidelity. such acts necessary implied husband by letter that she had gone to Pangasinan to reside with
forgiveness. It is entirely consonant with reason and justice that if her mother and later on moved to Dagupan to study in a local
the wife freely consents to sexual intercourse after she has full college.
Petitioner then began receiving letters from Valeriana Polangco, executed a document (Annex A ) liquidating their conjugal
(plaintiff’s sister-in-law) and some from anonymous writers, which partnership and assigning certain properties to the erring wife as
were not produced at the hearing, informing him of alleged acts her share. The complaint prayed for confirmation of the
of infidelity of his wife. He admitted that his wife informed him by liquidation agreement; for custody of the children issued of the
letter that a certain Eliong kissed her. All these communications, marriage; that the defendant be declared disqualified to succeed
prompted him in October 1951 to seek the advice of the Navy the plaintiff; and for their remedy as might be just and equitable.
Chaplain who asked him to consult with the navy legal Upon petition of the plaintiff, the court subsequently declared the
department. wife in default, for failure to answer in due time, despite service of
summons; and directed the City Fiscal or his representatives to—
In August 1952, Bugayong went to Pangasinan and looked for his investigate, in accordance with Article 101 of the Civil Code, Page
wife. They met in the house of the defendant’s godmother. They whether or not a collusion exists between the parties and to report
proceeded to the house of Pedro, cousin of the plaintiff where they to this Court the result of his investigation within fifteen (15) days |8
stayed for 1 day and 1 night as husband and wife. The next day, from receipt of copy of this order. The City Fiscal or his
they slept together in their own house. He tried to verify with representative is also directed to intervene in the case in behalf of
Leonila the truth on the information he received but instead of the State. (Rec. App. p. 9).
answering, she merely packed up and left which he took as a As ordered, Assistant City Fiscal Rafael Jose appeared at the trial,
confirmation of the acts of infidelity. He then filed a complaint for and cross-examined plaintiff Brown. His questions (strenuously
legal separation. objected to by Brown's counsel) elicited the fact that after
liberation, Brown had lived maritally with another woman and
ISSUE: Whether there was condonation between Bugayong and had begotten children by her. Thereafter, the court rendered
Ginez that may serve as a ground for dismissal of the action. judgment denying the legal separation asked, on the ground that,
while the wife's adultery was established, Brown had incurred in a
HELD: misconduct of similar nature that barred his right of action under
Article 100 of the new Civil Code, providing:
Condonation is the forgiveness of a marital offense constituting a ART. 100. The legal separation may be claimed only by the
ground for legal separation. A single voluntary act of marital innocent spouse, provided there has been no condonation or of
intercourse between the parties ordinarily is sufficient to constitute consent to the adultery or concubinage. Where both spouses are
condonation and where the parties live in the same house, it is offenders, a legal separation cannot be claimed by either of them.
presumed that they live on terms of matrimonial cohabitation. Collusion between the parties to obtain legal separation shall
cause the dismissal of the petition.
Furthermore, Art. 100 of the Civil Code states that the legal that there had been consent and connivance, and because
separation may be claimed only by the innocent spouse, provided Brown's action had prescribed under Article 102 of the same Code:
there has been no condonation of or consent to the adultery or ART. 102 An action for legal separation cannot be filed except
concubinage. within one year from and after the date on which the plaintiff
became cognizant of the cause and within five years from and
CASE DIGEST 5: after date when such cause occurred.
since the evidence showed that the learned of his wife's infidelity in
People v. Sensano and Ramos 1945 but only filed action in 1945.
Brown appeared to this Court, assigning the following errors:
The court erred in permitting the Assistant Fiscal Rafel Jose of
Facts: Manila to act as counsel for the defendant, who defaulted.
Ursula Sensano and Mariano Ventura were married on April 29, The court erred in declaring that there was condonation of or
1919. After the birth of their only child, the husband left his wife consent to the adultery.
and was gone for three years without writing to her or sending her The court erred in dismissing the plaintiff's complaint.
support. While the husband was away, the wife began to live with Appellant Brown argues that in cross-examining him with regard
Marcelo Ramos. When husband returned, he filed a charge of to his marital relation with Lilia Deito, who was not his wife, the
adultery which resulted in a conviction and a sentencing. When Assistant Fiscal acted as consel for the defaulting wife, "when the
the sentence was completed, wife begged the husband to take her power of the prosecuting officer is limited to finding out whether
back but he refused. Abandoned a second time, the wife fled or not there is collusion, and if there is no collusion, which is the fact
back to Ramos. Husband, knowing that his wife reverted to her in the case at bar, to intervene for the state which is not the fact in
lover, did not do anything to assert his rights and left for the states. the instant case, the truth of the matter being that he intervened
He returned to the Philippines seven years later and presented a for Juanita Yambao, the defendant-appellee, who is private
second charge of adultery. citizen and who is far from being the state.".
The argument is untenable. Collusion in matrimonial cases being
Issue: "the act of married persons in procuring a divorce by mutual
WON the second charge of adultery can be a ground for legal consent, whether by preconcerted commission by one of a
separation. matrimonial offense, or by failure, in pursuance of agreement to
defend divorce proceedings" (Cyclopedia Law Dictionary; Nelson,
Held/Ratio: Divorce and Separation, Section 500), it was legitimate for the
No. The husband was only assuming a mere pose of an ―offended Fiscal to bring to light any circumstances that could give rise to the
spouse‖. He consented to the adulterous relations of his wife and inference that the wife's default was calculated, or agreed upon,
Ramos and is thus, therefore barred from instituting any criminal to enable appellant to obtain the decree of legal separation that
proceeding. Even if he was still in a foreign country, he would have he sought without regard to the legal merits of his case. One such
still been able to take action against the accused but since he circumstance is obviously the fact of Brown's cohabitation with a
didn’t take this option, it showed a considerable lack of genuine woman other than his wife, since it bars him from claiming legal
interest as the offended party. separation by express provision of Article 100 of the new Civil
Code. Wherefore, such evidence of such misconduct, were proper
6. G.R. No. L-10699 October 18, 1957 subject of inquiry as they may justifiably be considered
WILLIAM H. BROWN, plaintiff-appellant, circumstantial evidence of collusion between the spouses.
vs. The policy of Article 101 of the new Civil Code, calling for the
JUANITA YAMBAO, defendant-appellee. intervention of the state attorneys in case of uncontested
proceedings for legal separation (and of annulment of marriages,
Jimenez B. Buendia for appellant. 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
Assistant City Fiscal Rafel A. Jose for appellee. vitally interested, so that its continuation or interruption cannot be
made depend upon the parties themselves (Civil Code, Article 52;
REYES, J.B.L., J.:
Adong vs, Cheong Gee, 43 Phil, 43; Ramirez vs. Gmur 42 Phil. 855;
On July 14, 1955, William H. Brown filed suit in the Court of First Goitia vs. Campos, 35 Phil. 252). It is consonant with this policy
Instance of Manila to obtain legal separation from his lawful wife that the injury by the Fiscal should be allowed to focus upon any
Juanita Yambao. He alleged under oath that while interned by relevant matter that may indicate whether the proceedings for
the Japanese invaders, from 1942 to 1945, at the University of Sto. separation or annulment are fully justified or not.
Tomas internment camp, his wife engaged in adulterous relations The court below also found, and correctly held that the appellant's
with one Carlos Field of whom she begot a baby girl that Brown action was already barred, because Brown did not petition for
learned of his wifes misconduct only in 1945, upon his release from legal separation proceedings until ten years after he learned of his
internment; that thereafter the spouse lived separately and later wife's adultery, which was upon his release from internment in
1945. Under Article 102 of the new Civil Code, action for legal until the present. On April 3, 1948, plaintiff and defendant entered
separation can not be filed except within one (1) year from and into an agreement (Exhibit B), the significant portions of which are
after the plaintiff became cognizant of the cause and within five hereunder reproduced..
years from and after the date when such cause occurred. . . . (a) That both of us relinquish our right over the other as legal
Appellant's brief does not even contest the correctness of such husband and wife.
findings and conclusion. (b) That both without any interference by any of us, nor either of
It is true that the wife has not interposed prescription as a defense. us can prosecute the other for adultery or concubinage or any
Nevertheless, the courts can take cognizance thereof, because other crime or suit arising from our separation.
actions seeking a decree of legal separation, or annulment of (c) That I, the, wife, is no longer entitled for any support from my
marriage, involve public interest and it is the policy of our law that husband or any benefits he may received thereafter, nor I the Page
no such decree be issued if any legal obstacles thereto appear husband is not entitled for anything from my wife.
upon the record. (d) That neither of us can claim anything from the other from the |9
Hence, there being at least two well established statutory grounds time we verbally separated, that is from May 30, 1944 to the
for denying the remedy sought (commission of similar offense by present when we made our verbal separation into writing.
petitioner and prescription of the action), it becomes unnecesary In January, 1955, defendant began cohabiting with one Asuncion
to delve further into the case and ascertain if Brown's inaction for Rebulado and on September 1, 1955, said Asuncion gave birth to a
ten years also evidences condonation or connivance on his part. child who was recorded as the child of said defendant (Exh. C.).It
Even if it did not, his situation would not be improved. It is thus was shown also that defendant and Asuncion deported themselves
needless to discuss the second assignment of error. as husband and wife and were generally reputed as such in the
The third assignment of error being a mere consequence of the community.
others must necessarily fail with them. After the trial, without the defendant adducing any evidence, the
The decision appealed from is affirmed, with costs against court a quo rendered judgment holding that the acts of defendant
appellant. So ordered. constituted concubinage, a ground for legal separation. It
however, dismissed the complaint by stating:
CASE DIGEST 6: While this legal ground exist, the suit must be dismissed for two
reasons, viz:
Brown v. Yambao Under Art. 102 of the new Civil Code, an action for legal
Oct. 18, 1957, Reyes, JBL, J. separation cannot be filed except within one year from and after
the date on which the plaintiff became cognizant of the cause and
Facts: within five years from and after the date when the cause
Brown alleges that while he was interned by the Japanese from occurred. The plaintiff became aware of the illegal cohabitation of
1942 to 1945, his wife had engaged in adulterous relationships from her husband with Asuncion Rebulado in January, 1955. The
which she begot a child. He learned of it after his release. From complaint was filed on April 24, 1956. The present action was,
then on they decided to live separately from each other and therefore, filed out of time and for that reason action is barred.
executed, to this effect, an agreement liquidating conjugal Article 100 of the new Civil Code provides that the legal
partnership, even giving the erring wife a share. On July, he filed a separation may be claimed only by the innocent spouse, provided
suit for legal separation praying for confirmation of said there has been no condonation of or consent to the adultery or
agreement, custodial rights and disqualification of wife from concubinage. As shown in Exhibit B, the plaintiff has consented to
succession of plaintiff. Her wife was declared in default for not the commission of concubinage by her husband. Her consent is
having answered on time. When cross-examined by the assistant clear from the following stipulations:
city fiscal, it was revealed however that Brown, after the liberation (b) That both of us is free to get any mate and live with as
from the internment, had also lived with another woman with husband and wife without any interference by any of us, nor
whom he has begotten children. The court refused to grant the either of us can prosecute the other for adultery or concubinage or
petition on the basis of prescription, commission of similar offense any other crime or suit arising from our separation. (Exh. B).
by petitioner, and involvement of consent and connivance. This stipulation is an unbridled license she gave her husband to
commit concubinage. Having consented to the concubinage, the
Issue: plaintiff cannot claim legal separation.
The above decision is now before us for review, plaintiff- appellant
WON proceedings for legal separation can still be instituted when claiming that it was error for the lower court to have considered
both spouses are offenders. that the period to bring the action has already elapsed and that
there was consent on the part of the plaintiff to the concubinage.
Held/Ratio: The proposition, therefore, calls for the interpretation of the
No. His petition cannot prosper for two reasons: (1) prescriptive provisions of the law upon which the lower court based its
period is over since he learned of his wife’s relations in 1945 and judgment of dismissal.
only filed a complaint after ten years; and (2) His cohabitation Article 102 of the new Civil Code provides:
with another woman bars him from claiming legal separation. An action for legal separation cannot be filed except within one
Failure of the wife to set up a defense may be considered year from and after the date on which the plaintiff became
circumstantial evidence of collusion between them. Consent and cognizant of the cause and within five years from after the date
connivance no longer need to be proven there being two when cause occurred.
established statutory grounds to grant the decree of legal The complaint was filed outside the periods provided for by the
separation. above Article. By the very admission of plaintiff, she came to know
the ground (concubinage) for the legal separation in January,
1955. She instituted the complaint only on April 24, 1956. It is to be
7. G.R. No. L-11766 October 25, 1960 noted that appellant did not even press this matter in her brief.
SOCORRO MATUBIS, plaintiff-appellant, The very wording of the agreement Exhibit B. gives no room for
vs. interpretation other than that given by the trial judge. Counsel in
ZOILO PRAXEDES, defendant-appellee. his brief submits that the agreement is divided in two parts. The
first part having to do with the act of living separately which he
Luis N. de Leon for appellant. claims to be legal, and the second part — that which becomes a
Lucio La. Margallo for appellee. license to commit the ground for legal separation which is
admittedly illegal. We do not share appellant's view. Condonation
PAREDES, J.:
and consent on the part of plaintiff are necessarily the import of
Alleging abandonment and concubinage, plaintiff Socorro paragraph 6(b) of the agreement. The condonation and consent
Matubis, filed with the Court of First Instance of Camarines Sur, on here are not only implied but expressed. The law (Art. 100 Civil
April 24, 1956, a complaint for legal Separation and changed of Code), specifically provides that legal separation may be claimed
surname against her husband defendant Zoilo Praxedes. only by the innocent spouse, provided there has been no
The allegations of the complaint were denied by defendant condonation of or consent to the adultery or concubinage. Having
spouse, who interposed the defense that it was plaintiff who left condoned and/or consented in writing, the plaintiff is now
the conjugal home. undeserving of the court's sympathy (People vs.
During the trial, wherein the plaintiff alone introduced oral as well Scheneckenburger, 73 Phil., 413). Plaintiff's counsel even agrees
as documentary evidence, the following facts were established:. that the complaint should be dismissed. He claims however, that
Plaintiff and defendant were legally married on January 10, 1943 the grounds for the dismissal should not be those stated in the
at Iriga, Camarines Sur. For failure to agree on how they should decision of the lower court, "but on the ground that plaintiff and
live as husband and wife, the couple, on May 30, 1944, agreed to defendant have already been legally separated from each other,
live separately from each other, which status remained unchanged but without the marital bond having been affected, long before
the effectivity of the new Civil Code" (appellants brief, pp. 7-8). door to married couples, who want to end their marriage to
Again, we cannot subscribed to counsel's contention, because it is collude or connive with each other by just alleging impotency of
contrary to the evidence. one of them. He prayed that the complaint be dismissed or that
Conformably with the foregoing, we find that the decision the wife be subjected to a physical examination. Pending
appealed from is in accordance with the evidence and the law on resolution of his motion, the city attorney timely appealed from
the matter. The same is hereby affirmed, with costs. the decree. On 13 May 1957 the motion for reconsideration was
denied.
CASE DIGEST 7: The question to determine is whether the marriage in question
may be annulled on the strength only of the lone testimony of the
Matubis v. Praxedes husband who claimed and testified that his wife was and is Page
Oct. 25, 1960, Paredes, J. impotent. The latter did not answer the complaint, was absent
during the hearing, and refused to submit to a medical | 10
Facts: examination.
Matubis and Praxedes got married on 1943. The couple agreed to Marriage in this country is an institution in which the community is
live separately on 1944. On April, 1948, the spouses entered into an deeply interested. The state has surrounded it with safeguards to
agreement stating that both relinquish their rights over each other maintain its purity, continuity and permanence. The security and
as husband and wife, that both are free to marry again, and that stability of the state are largely dependent upon it. It is the interest
wife is no longer entitled to support. In Jan. 1955, the husband of each and every member of the community to prevent the
cohabited with another woman and had a child with her. On April bringing about of a condition that would shake its foundation and
1956, wife alleged abandonment and concubinage subsequently ultimately lead to its destruction. The incidents of the status are
filing a petition for legal separation. RTC held that the acts governed by law, not by will of the parties. The law specifically
constituted concubinage but dismissed the complaint on the enumerates the legal grounds, that must be proved to exist by
ground of prescription. Plaintiff appealed. indubitable evidence, to annul a marriage. In the case at bar, the
annulment of the marriage in question was decreed upon the sole
Issue: testimony of the husband who was expected to give testimony
tending or aiming at securing the annulment of his marriage he
WON there was consent of the wife to her husband’s concubinage. sought and seeks. Whether the wife is really impotent cannot be
deemed to have been satisfactorily established, becase from the
Held/Ratio: commencement of the proceedings until the entry of the decree
Yes. As seen in the agreement, there was an express condonation she had abstained from taking part therein. Although her refusal
and consent granted to the husband. Having consented, the wife to be examined or failure to appear in court show indifference on
cannot claim legal separation and is undeserving of the court’s her part, yet from such attitude the presumption arising out of the
sympathy. The petition was also filed after the prescriptive period. suppression of evidence could not arise or be inferred because
She came to know the situation in Jan. 1955 but only instituted the women of this country are by nature coy, bashful and shy and
complaint on April. 1956 – more than a year later. would not submit to a physical examination unless compelled to
by competent authority. This the Court may do without doing
8. G.R. No. L-12790 August 31, 1960 violence to and infringing in this case is not self-incrimination. She
JOEL JIMENEZ, plaintiff-appellee, is not charged with any offense. She is not being compelled to be a
vs. witness against herself.1 "Impotency being an abnormal condition
REMEDIOS CAÑIZARES, defendant. should not be presumed. The presumption is in favor of
potency."2 The lone testimony of the husband that his wife is
Republic of the Philippines, intervenor-appellant. physically incapable of sexual intercourse is insufficient to tear
asunder the ties that have bound them together as husband and
Acting Solicitor General Guillermo E. Torres and Solicitor Pacifico wife.
P. de Castro for appellant. The decree appealed from is set aside and the case remanded to
Climaco, Ascarraga and Silang for appellee. the lower court for further proceedings in accordance with this
decision, without pronouncement as to costs.
PADILLA, J.:
In a complaint filed on 7 June 1955 in the Court of First Instance of
CASE DIGEST 8:
Zamboanga the plaintiff Joel Jimenez prays for a decree annulling
Jimenez vs. Canizares
his marriage to the defendant Remedios Cañizares contracted on
3 August 1950 before a judge of the municipal court of L-12790, August 31, 1960
Zamboanga City, upon the ground that the office of her genitals
or vagina was to small to allow the penetration of a male organ FACTS:
or penis for copulation; that the condition of her genitals as
described above existed at the time of marriage and continues to Joel Jimenez, the petitioner, filed a petition for the annulment of
exist; and that for that reason he left the conjugal home two his marriage with Remedios Canizares on the ground that the
nights and one day after they had been married. On 14 June 1955 orifice of her genitals or vagina was too small to allow the
the wife was summoned and served a copy of the complaint. She penetration of a male organ for copulation. It has existed at the
did not file an answer. On 29 September 1956, pursuant to the time of the marriage and continues to exist that led him to leave
provisions of article 88 of the Civil Code, the Court directed the city the conjugal home two nights and one day after the marriage.
attorney of Zamboanga to inquire whether there was a collusion, The court summoned and gave a copy to the wife but the latter
to intervene for the State to see that the evidence for the plaintiff did not file any answer. The wife was ordered to submit herself to
is not a frame-up, concocted or fabricated. On 17 December 1956 physical examination and to file a medical certificate within 10
the Court entered an order requiring the defendant to submit to a days. She was given another 5 days to comply or else it will be
physical examination by a competent lady physician to determine deemed lack of interest on her part and therefore rendering
her physical capacity for copulation and to submit, within ten days judgment in favor of the petitioner.
from receipt of the order, a medical certificate on the result
thereof. On 14 March 1957 the defendant was granted additional ISSUE: Whether or not the marriage can be annulled with only
five days from notice to comply with the order of 17 December the testimony of the husband.
1956 with warning that her failure to undergo medical
examination and submit the required doctor's certificate would be HELD:
deemed lack of interest on her part in the case and that judgment
upon the evidence presented by her husband would be rendered. The wife who was claimed to be impotent by her husband did not
After hearing, at which the defendant was not present, on 11 April avail of the opportunity to defend herself and as such, claim
1957 the Court entered a decree annulling the marriage between cannot be convincingly be concluded. It is a well-known fact that
the plaintiff and the defendant. On 26 April 1957 the city attorney women in this country are shy and bashful and would not readily
filed a motion for reconsideration of the decree thus entered, upon and unhesitatingly submit to a physical examination unless
the ground, among others, that the defendant's impotency has not compelled by competent authority. Such physical examination in
been satisfactorily established as required by law; that she had not this case is not self-incriminating. She is not charged with any
been physically examined because she had refused to be offense and likewise is not compelled to be a witness against
examined; that instead of annulling the marriage the Court should herself. Impotence being an abnormal condition should not be
have punished her for contempt of court and compelled her to presumed. The case was remanded to trial court.
undergo a physical examination and submit a medical certificate;
and that the decree sought to be reconsidered would open the
9. G.R. No. L-23482 August 30, 1968 in paragraph 4 above and embody the same in a judgment
ALFONSO LACSON, petitioner, immediately binding on the parties hereto to the end that any
vs. non-compliance or violation of its terms by one party shall entitle
CARMEN SAN JOSE-LACSON and THE COURT OF the other to enforcement by execution writ and contempt even
APPEALS, respondents. though the proceedings as to creditors have not been
----------------------------- terminated.".
G.R. No. L-23767 August 30, 1968 Finding the foregoing joint petition to be "conformable to law,"
CARMEN SAN JOSE-LACSON, plaintiff-appellant, the CFI (Judge Jose F. Fernandez, presiding) issued an order on
vs. April 27, 1963, rendering judgment (hereinafter referred to as the
ALFONSO LACSON, defendant-appellee. compromise judgment) approving and incorporating in toto their Page
----------------------------- compromise agreement. In compliance with paragraph 4 (e) of
G.R. No. L-24259 August 30, 1968 their mutual agreement (par. 3[e] of the compromise judgment), | 11
ALFONSO LACSON, petitioner-appellee, the petitioner spouse delivered all the four children to the
vs. respondent spouse and remitted money for their support.
CARMEN SAN JOSE-LACSON, petitioner-appellant. On May 7, 1963 the respondent spouse filed in the JDRC a motion
Paredes, Poblador, Cruz and Nazareno for respondent-appellant wherein she alleged that she "entered into and signed the ... Joint
Carmen San Jose-Lacson. Petition as the only means by which she could have immediate
Norberto Quisumbing for petitioner-appellee Alfonso Lacson. custody of the ... minor children who are all below the age of 7,"
and thereafter prayed that she "be considered relieved of the ...
CASTRO, J.: agreement pertaining to the custody and visitation of her minor
These three cases (G.R. L-23482, L-23767 and L-24259) involving children ... and that since all the children are now in her custody,
the same parties pose a common fundamental issue the resolution the said custody in her favor be confirmed pendente lite." On May
of which will necessarily and inescapably resolve all the other 24, 1963 the petitioner spouse opposed the said motion and moved
issues. Thus their joinder in this decision. to dismiss the complaint based, among other things, on the
The antecedent facts are not disputed. grounds of res judicata and lis pendens. The JDRC on May 28, 1963,
Alfonso Lacson (hereinafter referred to as the petitioner spouse) issued an order which sustained the petitioner spouse's plea of bar
and Carmen San Jose-Lacson (hereinafter referred to as the by prior judgment and lis pendens, and dismissed the case. After
respondent spouse) were married on February 14, 1953. To them the denial of her motion for reconsideration, the respondent
were born four children, all alive. spouse interposed an appeal to the Court of Appeals (CA-G.R. No.
On January 9, 1963 the respondent spouse left the conjugal home 32608-R) wherein she raised, among others, the issue of validity or
in Santa Clara Subdivision, Bacolod City, and commenced to legality of the compromise agreement in connection only with the
reside in Manila. She filed on March 12, 1963 a complaint docketed custody of their minor children. On October 14, 1964 the Court of
as civil case E-00030 in the Juvenile and Domestic Relations Court Appeals certified the said appeal to the Supreme Court (G.R. No.
of Manila (hereinafter referred to as the JDRC) for custody of all L-23767), since "no hearing on the facts was ever held in the court
their children as well as support for them and herself. below — no evidence, testimonial or documentary, presented —
However, the spouses, thru the assistance of their respective only a question of law pends resolution in the appeal." .
attorneys, succeeded in reaching an amicable settlement The respondent spouse likewise filed a motion dated May 15, 1963
respecting custody of the children, support, and separation of for reconsideration of the compromise judgment dated April 27,
property. On April 27, 1963 they filed a joint petition dated April 1963 rendered in special proceeding 6978 of the CFI, wherein she
21, 1963, docketed as special proceeding 6978 of the Court of First also alleged, among others, that she entered into the joint petition
Instance of Negros Occidental (hereinafter referred to as the CFI). as the only means by which she could have immediate custody of
The important and pertinent portions of the petition, embodying her minor children, and thereafter prayed the CFI to reconsider its
their amicable settlement, read as follows: judgment pertaining to the custody and visitation of her minor
3. Petitioners have separated last January 9, 1963 when petitioner children and to relieve her from the said agreement. The
Carmen San Jose-Lacson left their conjugal home at the Santa petitioner spouse opposed the said motion and, on June 1, 1963,
Clara Subdivision, Bacolod City, did not return, and decided to filed a motion for execution of the compromise judgment and a
reside in Manila. charge for contempt. The CFI (Judge Jose R. Querubin, presiding),
4. Petitioners have mutually agreed upon the dissolution of their in its order dated June 22, 1963, denied the respondent spouse's
conjugal partnership subject to judicial approval as required by motion for reconsideration, granted the petitioner spouse's motion
Article 191 of the Civil Code of the Philippines — the particular for execution, and ordered that upon "failure on the part of
terms and conditions of their mutual agreement being as follows: Carmen San Jose-Lacson to deliver the said children [i.e., to return
(a) There will be separation of property — petitioner Carmen San the two older children Enrique and Maria Teresa in accordance
Jose-Lacson hereby waiving any and all claims for a share in with her agreement with Alfonso Lacson] to the special sheriff on
property that may be held by petitioner Alfonso Lacson since they or before June 29, 1963, she may be held for contempt pursuant to
have acquired no property of any consequence. the provisions of Rule 39 sections 9 and 10, and Rule 64 section 7 of
(b) Hereafter, each of them shall own, dispose of, possess, the (old) Rules of Court." From the aforesaid compromise
administer and enjoy such separate estate as they may acquire judgment dated April 27, 1963 and execution order dated June 22,
without the consent of the other and all earnings from any 1963, the respondent spouse interposed an appeal to the Court of
profession, business or industry as may be derived by each Appeals (CA-G.R. No. 32798-R) wherein she likewise questioned
petitioner shall belong to that petitioner exclusively. the validity or legality of her agreement with the petitioner spouse
(c) The custody of the two elder children named Enrique and respecting custody of their children. On February 11, 1965 the Court
Maria Teresa shall be awarded to petitioner Alfonso Lacson and of Appeals also certified the said appeal to the Supreme Court
the custody of the younger children named Gerrard and Ramon (G.R. No. L-24259), since "no evidence of any kind was introduced
shall be awarded to petitioner Carmen San Jose-Lacson. before the trial court and ... appellant did not specifically ask to be
(d) Petitioner Alfonso Lacson shall pay petitioner Carmen San allowed to present evidence on her behalf." .
Jose-Lacson a monthly allowance of P300.00 for the support of The respondent spouse also instituted certiorari proceedings before
the children in her custody. the Court of Appeals (CA-G.R. No. 32384R), now the subject of an
(e) Each petitioner shall have reciprocal rights of visitation of the appeal by certiorari to this Court (G.R. No. L-23482). In her
children in the custody of the other at their respective residences petition for certiorari dated June 27, 1963, she averred that the CFI
and, during the summer months, the two children in the custody of (thru Judge Querubin) committed grave abuse of discretion and
each petitioner shall be given to the other except that, for this acted in excess of jurisdiction in ordering the immediate execution
year's summer months, all four children shall be delivered to and of the compromise judgment in its order of June 22, 1963, thus in
remain with petitioner Carmen San Jose-Lacson until June 15, 1963 effect depriving her of the right to appeal. She prayed for (1) the
— on which date, she shall return the two elder children Enrique issuance of a writ of preliminary injunction enjoining the
and Maria Teresa to petitioner Alfonso Lacson — this judgment of respondents therein and any person acting under them from
course being subject to enforcement by execution writ and enforcing, by contempt proceedings and other means, the writ of
contempt. execution issued pursuant to the order of the respondent Judge
5. Petitioners have no creditors. Querubin dated June 22, 1963 in special proceeding 6978 of the
WHEREFORE, they respectfully pray that notice of this petition be CFI, (2) the setting aside, after hearing, of the compromise
given to creditors and third parties pursuant to Article 191 of the judgment dated April 27, 1963 and the order dated June 22, 1963,
Civil Code of the Philippines and thereafter that the Court enter and (3) the awarding of the custody of Enrique and Maria Teresa
its judicial approval of the foregoing agreement for the dissolution to her, their mother. As prayed for, the Court of Appeals issued ex
of their conjugal partnership and for separation of property, parte a writ of preliminary injunction enjoining the enforcement of
except that the Court shall immediately approve the terms set out the order dated June 22, 1963 for execution of the compromise
judgment rendered in special proceeding 6978. The petitioner
spouse filed an urgent motion dated July 5, 1963 for the dissolution no better cause than their whims and caprices — to abandon each
of the writ of preliminary injunction ex parte which urgent motion other's company.
was denied by the Court of Appeals in its resolution dated July 9, '... For though in particular cases the repugnance of the law to
1963. The petitioner spouse likewise filed his answer. After hearing, dissolve the obligations of matrimonial cohabitation may operate
the Court of Appeals on May 11, 1964 promulgated in said with great severity upon individuals, yet it must be carefully
certiorari case (CA-G.R. No. 32384-R) its decision granting the remembered that the general happiness of the married life is
petition for certiorari and declaring null and void both (a) the secured by its indissolubility. When people understand that they
compromise judgment dated April 27, 1963 in so far as it relates to must live together, except for a very few reasons known to the
the custody and right of visitation over the two children, Enrique law, they learn to soften by mutual accommodation that yoke
and Teresa, and (b) the order dated June 22, 1963 for execution of which they know they cannot shake off; they become good Page
said judgment. The petitioner spouse moved to reconsider, but his husbands and good wives from the necessity of remaining
motion for reconsideration was denied by the Court of Appeals in husbands and wives; for necessity is a powerful master in teaching | 12
its resolution dated July 31, 1964. From the decision dated May 11, the duties which it imposes ..." (Evans vs. Evans, 1 Hag. Con., 35; 161
1964 and the resolution dated July 31, 1964, the petitioner spouse Eng. Reprint, 466, 467.) (Arroyo vs. Vasquez de Arroyo, Id., pp. 58-
interposed an appeal to this Court, as abovestated, and assigned 59).
the following errors: We now come to the question of the custody and support of the
(1) The Court of Appeals erred in annulling thru certiorari the children.
lower court's order of execution of the compromise judgment. It is not disputed that it was the JDRC which first acquired
(2) The Court of Appeals erred in resolving in the certiorari case jurisdiction over the matter of custody and support of the children.
the issue of the legality of the compromise judgment which is The complaint docketed as civil case E-00030 in the JDRC was
involved in two appeals, instead of the issue of grave abuse of filed by the respondent spouse on March 12, 1963, whereas the joint
discretion in ordering its execution. petition of the parties docketed as special proceeding 6978 in the
(3) The Court of Appeals erred in ruling that the compromise CFI was filed on April 27, 1963. However, when the respondent
agreement upon which the judgment is based violates article 363 spouse signed the joint petition on the same matter of custody and
of the Civil Code. 1äwphï1.ñët support of the children and filed the same with the CFI of Negros
As heretofore adverted, the aforecited three appeals converge on Occidental, she in effect abandoned her action in the JDRC. The
one focal issue: whether the compromise agreement entered into petitioner spouse — who could have raised the issue of lis
by the parties and the judgment of the CFI grounded on the said pendens in abatement of the case filed in the CFI, but did not do
agreement, are conformable to law. so - had the right, therefore, to cite the decision of the CFI and to
We hold that the compromise agreement and the judgment of ask for the dismissal of the action filed by the respondent spouse in
the CFI grounded on the said agreement are valid with respect to the JDRC, on the grounds of res judicata and lis pendens. And the
the separation of property of the spouses and the dissolution of the JDRC acted correctly and justifiably in dismissing the case for
conjugal partnership. custody and support of the children based on those grounds. For it
The law allows separation of property of the spouses and the is no defense against the dismissal of the action that the case
dissolution of their conjugal partnership provided judicial sanction before the CFI was filed later than the action before the JDRC,
is secured beforehand. Thus the new Civil Code provides: considering:.
In the absence of an express declaration in the marriage ... [T]hat the Rules do not require as a ground for dismissal of a
settlements, the separation of property between spouses during complaint that there is a prior pending action. They provide only
the marriage shall not take place save in virtue of a judicial order. that there is a pending action, not a pending prior action. 1
(Art. 190, emphasis supplied) We agree with the Court of Appeals, however, that the CFI erred
The husband and the wife may agree upon the dissolution of the in depriving the mother, the respondent spouse, of the custody of
conjugal partnership during the marriage, subject to judicial the two older children (both then below the age of 7).
approval. All the creditors of the husband and of the wife, as well The Civil Code specifically commands in the second sentence of its
as of the conjugal partnership, shall be notified of any petition for article 363 that "No mother shall be separated from her child
judicial approval of the voluntary dissolution of the conjugal under seven years of age, unless the court finds compelling reasons
partnership, so that any such creditors may appear at the hearing for such measure." The rationale of this new provision was
to safeguard his interests. Upon approval of the petition for explained by the Code Commission thus:
dissolution of the conjugal partnership, the court shall take such The general rule is recommended in order to avoid many a
measures as may protect the creditors and other third persons. tragedy where a mother has seen her baby torn away from her.
(Art. 191, par. 4, emphasis supplied). No man can sound the deep sorrows of a mother who is deprived
In the case at bar, the spouses obtained judicial imprimatur of of her child of tender age. The exception allowed by the rule has
their separation of property and the dissolution of their conjugal to be for "compelling reasons" for the good of the child: those cases
partnership. It does not appeal that they have creditors who will must indeed be rare, if the mother's heart is not to be unduly hurt.
be prejudiced by the said arrangements. If she has erred, as in cases of adultery, the penalty of
It is likewise undisputed that the couple have been separated in imprisonment and the (relative) divorce decree will ordinarily be
fact for at least five years - the wife's residence being in Manila, sufficient punishment for her. Moreover, her moral dereliction will
and the husband's in the conjugal home in Bacolod City. not have any effect upon the baby who is as yet unable to
Therefore, inasmuch as a lengthy separation has supervened understand the situation." (Report of the Code Commission, p. 12).
between them, the propriety of severing their financial and The use of the word shall2 in article 363 of the Civil Code, coupled
proprietary interests is manifest. with the observations made by the Code Commission in respect to
Besides, this Court cannot constrain the spouses to live together, as the said legal provision, underscores its mandatory character. It
[I]t is not within the province of the courts of this country to prohibits in no uncertain: terms the separation of a mother and
attempt to compel one of the spouses to cohabit with, and render her child below seven years, unless such separation is grounded
conjugal rights to, the other. .. At best such an order can be upon compelling reasons as determined by a court.
effective for no other purpose than to compel the spouse to live The order dated April 27, 1963 of the CFI, in so far as it awarded
under the same roof; and the experience of those countries where custody of the two older children who were 6 and 5 years old,
the courts of justice have assumed to compel the cohabitation of respectively, to the father, in effect sought to separate them from
married couple shows that the policy of the practice is extremely their mother. To that extent therefore, it was null and void
questionable. (Arroyo v. Vasquez de Arroyo, 42 Phil. 54, 60). because clearly violative of article 363 of the Civil Code.
However, in so approving the regime of separation of property of Neither does the said award of custody fall within the exception
the spouses and the dissolution of their conjugal partnership, this because the record is bereft of any compelling reason to support
Court does not thereby accord recognition to nor legalize the de the lower court's order depriving the wife of her minor children's
facto separation of the spouses, which again in the language company. True, the CFI stated in its order dated June 22, 1963,
of Arroyo v. Vasquez de Arroyo, supra — is a "state which is denying the respondent spouse's motion for reconsideration of its
abnormal and fraught with grave danger to all concerned." We order dated April 27, 1963, that .
would like to douse the momentary seething emotions of couples ... If the parties have agreed to file a joint petition, it was because
who, at the slightest ruffling of domestic tranquility — brought they wanted to avoid the exposure of the bitter truths which serve
about by "mere austerity of temper, petulance of manners, as succulent morsel for scandal mongers and idle gossipers and to
rudeness of language, a want of civil attention and save their children from embarrassment and inferiority complex
accommodation, even occasional sallies of passion" without more which may inevitably stain their lives. ..
— would be minded to separate from each other. In this If the parties agreed to submit the matter of custody of the minor
jurisdiction, the husband and the wife are obliged to live together, children to the Court for incorporation in the final judgment, they
observe mutual respect and fidelity, and render mutual help and purposely suppressed the "compelling reasons for such measure"
support (art. 109, new Civil Code). There is, therefore, virtue in from appearing in the public records. This is for the sake and for
making it as difficult as possible for married couples — impelled by the welfare of the minor children.".
But the foregoing statement is at best a mere hint that there were LacsonBackground:Alfonso and Carmen were married on
compelling reasons. The lower court's order is eloquently silent on February 14, 1953. They had four children. On January 9,1963
what these compelling reasons are. Needless to state, courts Carmen left the conjugal home in Bacolod and resided in Manila.
cannot proceed on mere insinuations; they must be confronted On March 12, 1963 she filed acomplaint in the Juvenile and
with facts before they can properly adjudicate. Domestic Relations Court (JDRC) for custody of all their children as
It might be argued — and correctly — that since five years have wellas support for them and herself. However, through the
elapsed since the filing of these cases in 1963, the ages of the four assistance of their respective lawyers, the spousesreached an
children should now be as follows: Enrique — 11, Maria Teresa — 10, amicable settlement as to custody of the kids, support, and
Gerrard — 9, and Ramon — 5. Therefore, the issue regarding the separation of property. On April27, 1963, they filed a joint petition
award of the custody of Enrique and Maria Teresa to the with the CFI of Negros Occidental, submitting that they had Page
petitioner spouse has become moot and academic. The passage of mutuallyagreed upon the dissolution of their conjugal partnership.
time has removed the prop which supports the respondent The terms included a) separation of property, b)all earnings of | 13
spouse's position. each spouse shall belong to that spouse exclusively, c) the custody
Nonetheless, this Court is loath to uphold the couple's agreement of the two elder children shall be awarded to Alfonso and the two
regarding the custody of the children. 1äwphï1.ñët younger children to Carmen, d) Alfonso shall payCarmen a
Article 356 of the new Civil Code provides: monthly allowance of P200.00 for the support of the children,
Every child: and e) each petitioner shall havereciprocal rights of visitation and
(1) Is entitled to parental care; every summer the former spouses shall swap [my word] kids. For
(2) Shall receive at least elementary education; that particular year, however, Carmen was allowed custody of all
(3) Shall be given moral and civic training by the parents or four children until June of 1963, when shewas supposed to return
guardian; the two older children to Alfonso¶s custody.Finding the foregoing
(4) Has a right to live in an atmosphere conducive to his physical, joint petition as conformable to the law, the CFI issued an order
moral and intellectual development. approvingtheir compromise agreement on the very same day. On
It is clear that the abovequoted legal provision grants to every May 7, however, Carmen filed a motion with theJDRC alleging
child rights which are not and should not be dependent solely on that the compromise agreement was the only way she could get
the wishes, much less the whims and caprices, of his parents. His custody of all the childrenand praying that she be relieved of the
welfare should not be subject to the parents' say-so or mutual agreement pertaining to the custody and visitation of the
agreement alone. Where, as in this case, the parents are already childrenand that she now be awarded full custody [bitch].
separated in fact, the courts must step in to determine in whose Naturally, Alfonso opposed the motion and the JDRCruled in his
custody the child can better be assured the right granted to him favour. Carmen went to the Court of Appeals and the CA certified
by law. The need, therefore, to present evidence regarding this the case to the SupremeCourt. Carmen went to the CFI and filed a
matter, becomes imperative. A careful scrutiny of the records motion for reconsideration, basically claiming the same
reveals that no such evidence was introduced in the CFI. This latter thing.Alfonso opposed. The CFI favored Alfonso and ordered
court relied merely on the mutual agreement of the spouses- Carmen to return the two older children by June,on pain of
parents. To be sure, this was not a sufficient basis to determine the contempt. It is from this decision that the instant case springs.
fitness of each parent to be the custodian of the children. Carmen instituted certiorari proceedings with the CA against the
Besides, at least one of the children — Enrique, the eldest — is now CFI, saying the CFI committed grave abuse of discretion and
eleven years of age and should be given the choice of the parent actedin excess of jurisdiction in ordering the immediate execution
he wishes to live with. This is the clear mandate of sec. 6, Rule 99 of of the compromise agreement. The CAdeclared void the portion of
the Rules of Court which, states, inter alia: the agreement pertaining to the custody of
... When husband and wife are divorced or living separately and children.Issue/Held/Ratio:
apart from each other, and the question as to the care, custody, Was the assailed compromise agreement²and the judgment of the
and control of a child or children of their marriage is brought CFI grounded on said agreement² conformable to law?
before a Court of First Instance by petition or as an incident to any YES²but only as far as the separation of property of spouses and
other proceeding, the court, upon hearing testimony as may be the dissolution of the conjugal partnership, in accordance with
pertinent, shall award the care, custody and control of each such Article 191 of the Civil Code. The spouses did not appear tohave
child as will be for its best interestpermitting the child to choose any creditors who would have been prejudiced by their
which parent it prefers to live with if it be over ten years of age, arrangement. At the time of the decision thespouses had been
unless the parent so chosen be unfit to take charge of the child by separated five years and so the propriety of severing their
reason of moral depravity, habitual drunkenness, incapacity, or financial and proprietaryinterests was manifest. (However, the
poverty... (Emphasis supplied). Court maintained that approving the separation of property
One last point regarding the matter of support for the children — anddissolution of conjugal partnership did not amount to
assuming that the custody of any or more of the children will be recognition or legalization of
finally awarded to the mother. Although the spouses have agreed de facto
upon the monthly support of P150 to be given by the petitioner separation.)As to the custody of the children, they were all below 7
spouse for each child, still this Court must speak out its mind on the years of age at the time of the agreement and sothe CA was
insufficiency of this amount. We, take judicial notice of the correct in awarding the custody to the mother. The Court was also
devaluation of the peso in 1962 and the steady skyrocketing of ³loath to uphold thecouple¶s agreement regarding the custody of
prices of all commodities, goods, and services, not to mention the the children´, citing rights of the children to proper care not
fact that all the children are already of school age. We believe, anchored on the solely on the whims of his or her parents. Courts
therefore, that the CFI may increase this amount of P150 must decide fitness of parents for custody.
according to the needs of each child.
With the view that we take of this case, we find it unnecessary to 10. G.R. No. L-48219 February 28, 1979
pass upon the other errors assigned in the three appeals.
MANUEL J. C. REYES, petitioner,
ACCORDINGLY, the decision dated May 11, 1964 and the resolution
vs.
dated July 31, 1964 of the Court of Appeals in CA-G.R. 32384-R
HON. LEONOR INES-LUCIANO, as Judge of the Juvenile &
(subject matter of G.R. L-23482), and the orders dated May 28,
Domestic Relations Court, Quezon City, COURT OF APPEALS and
1963 and June 24, 1963 of the Juvenile and Domestic Relations
CELIA ILUSTRE-REYES, respondents.
Court (subject matter of G.R. L-23767) are affirmed. G.R. L-24259
Eriberto D. Ignacio for petitioner.
is hereby remanded to the Court of First Instance of Negros
Gonzalo D. David for private respondent.
Occidental for further proceedings, in accordance with this
decision. No pronouncement as to costs.
FERNANDEZ, J.:
CASE DIGEST 9: This is a petition for certiorari to review the decision of the Court of
Appeals in CA-G.R. No. 06928-SP entitled "Manuel J. C. Reyes,
LACSON V. SAN JOSE-LACSON petitioner, versus, The Hon. Leonor Ines-Luciano as Judge of the
Juvenile & Domestic Relations Court (Quezon City) and Celia
Ilustre-Reyes, Respondents", dismissing the petition to annul the
August 30, 1968 order of the respondent Judge directing the petitioner to give
Under Article 136 (Voluntary Separation of Property)Digest by support pendente lite to his wife, Celia Ilustre-Reyes, private
Apesa Chungalao respondent herein, in the amount of P40,000.00 a month. 1
Three consolidated cases: The private petitioner, Celia Ilustre-Reyes, filed in the Juvenile and
Alfonso Lacson v. Carmen San-Jose Lacson and the Court of Domestic Relations Court of Quezon City a complaint dated June
Appeals (L-23482)Carmen San-Jose Lacson v. Alfonso Lacson (L- 3, 1976 against her husband, Manuel J. C. Reyes, for legal
23767)Alfonso Lacson v. Carmen San Jose-
separation on the ground that the defendant had attempted to allegation that his wife, private respondent Celia Ilustre-Reyes,
kill plaintiff. The pertinent allegations of the complaint are: had committed adultery with any person.
6.8 On March 10, 1976, defendant went to V. Ilustre and attacked The petitioner has still the opportunity to adduce evidence on the
plaintiff. He pummeled her with fist blows that floored her, then alleged adultery of his wife when the action for legal separation is
held her head and, with intent to kill, bumped it several times heard on the merits before the Juvenile and Domestic Relations
against the cement floor. When she ran upstairs to her father for Court of Quezon City. It is to be noted however, that as pointed
protection, he pushed her at the stairway of 13 flights and she fell out by the respondents in their comment, the "private respondent
sliding to the ground floor. Determined to finish her off, he again was not asking support to be taken from petitioner's personal
gave her a strong swing at her abdomen which floored her half funds or wherewithal, but from the conjugal property—which, was
unconscious. Were it not for plaintiff's father, he would have her documentary evidence ...". 8 It is, therefore, doubtful whether Page
succeeded killing her; adultery will affect her right to alimony pendente lite. In Quintana
6.9. On May 26, 1976, although on May 11 previous she ceased vs. Lerma, 9 the action for support was based on the obligation of | 14
holding office with defendant at Bel-Air Apartments elsewhere the husband to support his wife.
adverted to, she went thereto to get her overnight bag. Upon The contention of the petitioner that the order of the respondent
seeing her, defendant yelled at her to get out of the office. When Judge granting the private respondent support pendente lite in
he did not mind him, he suddenly doused her with a glass of grape the amount of P4,000.00 a month is not supported by the
juice, kicked her several times that landed at her back and nape, allegations of the complaint for legal separation and by
and was going to hit her with a steel tray as her driver, Ricardo competent evidence has no merit.
Mancera, came due to her screams for help. For fear of further The complaint or legal separation contains allegations showing
injury and for life, she rushed to Precinct 5 at united Nations that on at least two occasions the defendant, petitioner herein,
Avenue, Manila Metropolitan Police, for assistance and had made attempts to kill the private respondent. Thus it is
protection; 2 alleged that on March 10, 1976, the defendant attacked plaintiff,
The plaintiff asked for support pendente lite for her and her three pummeled her with fist blows that floored her, held her head and
children. The defendant, petitioner herein, opposed the with intent to kill, bumped it several times against the cement
application for support pendente lite on the ground that his wife floor and when she ran upstairs to her father for protection, the
had committed adultery with her physician. petitioner pushed her at the stairway of thirteen (13) flights and
The application for support pendente lite was set for hearing and she fell sliding to the ground floor and defendant gave her a
submitted for resolution on the basis of the pleadings and the strong swing at her abdomen which floored her half unconscious
documents attached thereto by the parties. and were it not for plaintiff's father, defendant would have
The respondent Judge issued an order dated March 15, 1977 succeeded in killing her. 10 It is also alleged that on May 26, 1976,
granting plaintiff's prayer for alimony pendente litein the amount the defendant doused Celia Ilustre-Reyes with a glass of grape
of P5,000.00 a month commencing from June 1976. 3 juice, kicked her several times at her back and nape and was
The petitioner filed a motion for reconsideration reiterating that going to hit her with a steel tray if it were not for her driver who
his wife is not entitled to support during the pendency of the case, came due to her creams for help." 11
and, alleging that even if she entitled, the amount awarded was In fixing the amount of monthly support pendente lite of
excessive. The respondent Judge reduced the amount from P4,000,00, the respondent judge did not act capriciously and
P5,000.00 to P44,00.00 a month in an order dated June 17, whimsically. When she originally fixed the amount of P5,000.00 a
1977. 4 month, the respondent Judge considered the following:
Manuel J. C. Reyes filed a petition for certiorari in the Court of On record for plaintiff's cause are the following: that she and
Appeals dated July 25, 1977 asking that the order granting defendant were married on January 18, 1958; that she is presently
support pendente lite to private respondent. Celia Ilustre-Reyes, unemployed and without funds, thus, she is being supported by
be annulled on the ground that the respondent Judge, Leonor her father with whom she resides: that defendant had been
Ines-Luciano, had committed a grave abuse of discretion or that maltreating her and Cried to kill her; that all their conjugal
said order be modified inasmuch as the amount awarded as properties are in the possession of defendant who is also president,
support pendente lite is excessive. Manager and Treasurer of their corporation namely:
The Court of Appeals dismissed the petition because: 1. Standard Mineral Products, which was incorporated on
Considering the plight of the wife during the pendency of the case February 9, 1959: presently with paid-in capital of P295,670.00;
for legal separation and that the husband appears to be assets and liabilities of P757,108.52; Retained Earnings of
financially capable of giving the support, We believe that the P85,654.61: and majority stockholder is defendant;
petitioner has not presented a clear case of grave abuse of 2. Development and Technology Consultant Inc. incorporated on
discretion on the part of the respondent in issuing the questioned July 12, 1971, with paid-in capital of P200,000.00; Assets and
orders. We see no compelling reason to give it due course. 5 liabilities of P831,669.34; defendant owns 99% of the stocks; and
The petitioner contends that the Court of Appeal committed the last Retained Earnings is P98,879.84.
following error: 3. The Contra-Prop Marine Philippines, Inc. which was
THE HON. COURT OF APPEALS GRIEVOUSLY ERRED IN A incorporated on October 3, 1975, with paid-in capital of P100,000
MANNER AMOUNTING IT CAN ERROR OF LAW AND A defendant owns 99% of the stocks.
DEPARTURE FROM THE ACCEPTED NORMS LAID DOWN BY To secure some of the of said Agreement of Counter-Guaranty
THIS HON. COURT IN THE CASES WE SHALL LATER ON Mortgage with Real Estate, and Real Estate Mortgage were
DISCUSS, IN REFUSING TO GIVE DUE COURSE TO THE undertaken by plaintiff of their properties outside of other
ORIGINAL PETITION FOR certiorari HEREIN AGAINST accommodations; and that she needs of P5,000.00 a month for
RESPONDENTS-APPELLEES, AND IN AFFIRMING THE ORDERS her support in accordance with their station in life. 12
FOR SUPPORT PENDENTE LITE ANNEXES "F" AND "H" OF THIS The amount of support pendente lite was reduced to P4,000.00
PETITION WHEN HELD THAT RESPONDENT-APPELLEE JUDGE inasmuch as the children are in the custody of the petitioner and
DID NOT COMMIT ANY ABUSE OF DISCRETION IN ISSUING SAID are being supported by him.
ORDERS, FOR THE REASONS THAT: It is thus seen that the respondent judge acted with due
A. IN ACTIONS FOR LEGAL SEPARATION THE WIFE IS ENTITLED deliberation before fixing the amount of support pendente lite in
TO SUPPORT FROM THE HUSBAND DESPITE THE FACT THAT A the amount of P4,000.00 a month.
CASE FOR ADULTERY HAD BEEN FILED BY THE HUSBAND In determining the amount to be awarded as support pendente
AGAINST HER; AND lite it is not necessary to go fully into the merits of the case, it being
B. IN DETERMINING THE AMOUNT OF SUPPORT PENDENTE sufficient that the court ascertain the kind and amount of
LITE, IT IS ENOUGH THAT THE COURT ASCERTAIN THE KIND evidence which it may deem sufficient to enable it to justly resolve
AND AMOUNT OF EVIDENCE EVEN BY AFFIDAVITS ONLY OR the application, one way or the other, in view of the merely
OTHER DOCUMENTARY EVIDENCE APPEARING IN THE provisional character of the resolution to be entered. Mere
RECORDS. 6 affidavits may satisfy the court to pass upon the application for
It is true that the adultery of the wife is a defense in an action for support pendente lite. 13 It is enough the the facts be established
support however, the alleged adultery of wife must be established by affidavits or other documentary evidence appearing in the
by competent evidence. The allegation that the wife has record. 14
committed adultery will not bar her from the right receive The private respondent has submitted documents showing that
support pendente lite. Adultery is a good defense and if properly the corporations controlled by the petitioner have entered into
proved and sustained wig defeat the action. 7 multi-million contracts in projects of the Ministry of Public
In the instant case, at the hearing of the application for Highways.
support pendente lite before the Juvenile and Domestic Relations Considering the high cost of living due to inflation and the
Court presided by the respondent Judge, Hon. Leonor Ines-Luciano financial ability of the petitioner as shown by the documents of
the petitioner did not present any evidence to prove the record, We find that the amount of P4,000.00 a month granted
by the respondent Judge as alimonypendente lite to the private
respondent is not excessive. There is no showing that the The Case
respondent Judge has committed a grave abuse of discretion in This case comes before us via Petition for Review
granting said support. on Certiorari[1] under Rule 45 of the Rules of Court. The petitioner
In a resolution dated July 31, 1978, this Court issued a temporary seeks that we vacate and set aside the Order[2] dated January 8,
restraining order effective immediately against the enforcement of 2007 of the Regional Trial Court (RTC), Branch 1, Butuan City. In
the lower court's order giving support pendente lite to private lieu of the said order, we are asked to issue a Resolution defining
respondent in the sum of P4,000.00 monthly commencing June the net profits subject of the forfeiture as a result of the decree of
1976 and in lieu thereof to allow such support only to the extent of legal separation in accordance with the provision of Article 102(4)
P1,000.00 a month. 15 of the Family Code, or alternatively, in accordance with the Page
Later the petitioner was required to pay the support at the rate of provisions of Article 176 of the Civil Code.
P1,000.00 a month which had accumulated since June 1976 within | 15
ten (10) days from notice of the resolution: 16 Antecedent Facts
The private respondent acknowledged on November 20, 1978 On October 26, 2000, herein respondent Rita C. Quiao (Rita)
having received from the petitioner, through his counsel a check in filed a complaint for legal separation against herein petitioner
the amount of P30,000.00 as payment of support for the period Brigido B. Quiao (Brigido).[3] Subsequently, the RTC rendered a
from June 1976 to November 1978 or thirty (30) months at Decision[4] dated October 10, 2005, the dispositive portion of which
P1,000.00 a month in compliance with the resolution of this Court provides:
dated October 9, 1978.
In view of the foregoing, the support of P4,000.00 should be WHEREFORE, viewed from the foregoing considerations,
made to commence or, March 1, 1979. judgment is hereby rendered declaring the legal separation of
WHEREFORE, the petition for certiorari is hereby denied and the plaintiff Rita C. Quiao and defendant-respondent Brigido B.
decision of the Council of Appeals sought to be reviewed is Quiao pursuant to Article 55.
affirmed with the modification that the support pendente lite at
the rate of Four Thousand Pesos (P4.000.00) a month should As such, the herein parties shall be entitled to live separately from
commence from March 1, 1979 without pronouncement as to costs. each other, but the marriage bond shall not be severed.

CASE DIGEST 10: Except for Letecia C. Quiao who is of legal age, the three minor
children, namely, Kitchie, Lotis and Petchie, all surnamed Quiao
Reyes v. Ines-Luciano shall remain under the custody of the plaintiff who is the innocent
February 28, 1979, Fernandez, J. spouse.

Facts: Further, except for the personal and real properties already
Manuel Reyes attacked his wife twice with the intent to kill. A foreclosed by the RCBC, all the remaining properties, namely:
complaint was filed on June 3, 1976: the first attempt on March
was prevented by her father and the second attempt, wherein she 1. coffee mill in Balongagan, Las Nieves, Agusan del Norte;
was already living separately from her husband, was stopped only 2. coffee mill in Durian, Las Nieves, Agusan del Norte;
because of her driver’s intervention. She filed for legal separation 3. corn mill in Casiklan, Las Nieves, Agusan del Norte;
on that ground and prayed for support pendente lite for herself 4. coffee mill in Esperanza, Agusan del Sur;
and her three children. The husband opposed the application for 5. a parcel of land with an area of 1,200 square meters located
support on the ground that the wife committed adultery with her in Tungao, Butuan City;
physician. The respondent Judge Ines-Luciano of the lower court 6. a parcel of agricultural land with an area of 5 hectares
granted the wife pendente lite. The husband filed a motion for located in Manila de Bugabos, Butuan City;
reconsideration reiterating that his wife is not entitled to receive 7. a parcel of land with an area of 84 square meters located in
such support during the pendency of the case, and that even if she Tungao, Butuan City;
is entitled to it, the amount awarded was excessive. The judge 8. Bashier Bon Factory located in Tungao, Butuan City;
reduced the amount from P5000 to P4000 monthly. Husband
filed a petition for certiorari in the CA to annul the order granting shall be divided equally between herein [respondents] and
alimony. CA dismissed the petition which made the husband [petitioner] subject to the respective legitimes of the children and
appeal to the SC. the payment of the unpaid conjugal liabilities of [P]45,740.00.

Issue: [Petitioner’s] share, however, of the net profits earned by the

WON adultery of the wife was a defense in an action for support. conjugal partnership is forfeited in favor of the common children.
WON support can be administered during the pendency of an
action. He is further ordered to reimburse [respondents] the sum of
[P]19,000.00 as attorney's fees and litigation expenses of
Held/Ratio: [P]5,000.00[.]
Yes – provided that adultery is established by competent SO ORDERED.[5]
evidence. Mere allegations will not bar her right to receive support
pendente lite. Support can be administered during the pendency
of such cases. In determining the amount, it is not necessary to go Neither party filed a motion for reconsideration and appeal within
into the merits of the case. It is enough that the facts be the period provided for under Section 17(a) and (b) of the Rule on
established by affidavits or other documentary evidence Legal Separation.[6]
appearing in the record. [The SC on July, 1978 ordered the alimony
to be P1000/month from the period of June to February 1979, On December 12, 2005, the respondents filed a motion for
after the trial, it was reverted to P4000/month based on the execution[7] which the trial court granted in its Order dated
accepted findings of the trial court that the husband could afford December 16, 2005, the dispositive portion of which reads:
it because of his affluence and because it wasn’t excessive.]
―Wherefore, finding the motion to be well taken, the same is
11. QUIAO vs. QUIAO hereby granted. Let a writ of execution be issued for the
immediate enforcement of the Judgment.
REYES, J.:
SO ORDERED.‖[8]
The family is the basic and the most important institution of
society. It is in the family where children are born and molded
either to become useful citizens of the country or troublemakers in Subsequently, on February 10, 2006, the RTC issued a Writ of
the community. Thus, we are saddened when parents have to Execution[9] which reads as follows:
separate and fight over properties, without regard to the message
they send to their children. Notwithstanding this, we must not NOW THEREFORE, that of the goods and chattels of the
shirk from our obligation to rule on this case involving legal [petitioner] BRIGIDO B. QUIAO you cause to be made the sums
separation escalating to questions on dissolution and partition of stated in the afore-quoted DECISION [sic], together with your
properties. lawful fees in the service of this Writ, all in the Philippine Currency.
 IS THE DISSOLUTION AND THE CONSEQUENT LIQUIDATION OF
But if sufficient personal property cannot be found whereof to THE COMMON PROPERTIES OF THE HUSBAND AND WIFE BY
satisfy this execution and your lawful fees, then we command you VIRTUE OF THE DECREE OF LEGAL SEPARATION GOVERNED
that of the lands and buildings of the said [petitioner], you make BY ARTICLE 125 (SIC) OF THE FAMILY CODE?
the said sums in the manner required by law. You are enjoined to
strictly observed Section 9, Rule 39, Rule [sic] of the 1997 Rules of II
Civil Procedure.
WHAT IS THE MEANING OF THE NET PROFITS EARNED BY THE
You are hereby ordered to make a return of the said proceedings CONJUGAL PARTNERSHIP FOR PURPOSES OF EFFECTING THE
immediately after the judgment has been satisfied in part or in full FORFEITURE AUTHORIZED UNDER ARTICLE 63 OF THE FAMILY Page
in consonance with Section 14, Rule 39 of the 1997 Rules of Civil CODE?
Procedure, as amended.[10] | 16
III

On July 6, 2006, the writ was partially executed with the WHAT LAW GOVERNS THE PROPERTY RELATIONS BETWEEN
petitioner paying the respondents the amount of P46,870.00, THE HUSBAND AND WIFE WHO GOT MARRIED IN 1977? CAN
representing the following payments: THE FAMILY CODE OF THE PHILIPPINES BE GIVEN
RETROACTIVE EFFECT FOR PURPOSES OF DETERMINING THE
(a) P22,870.00 – as petitioner's share of the payment of the NET PROFITS SUBJECT OF FORFEITURE AS A RESULT OF THE
conjugal share; DECREE OF LEGAL SEPARATION WITHOUT IMPAIRING VESTED
(b) P19,000.00 – as attorney's fees; and RIGHTS ALREADY ACQUIRED UNDER THE CIVIL CODE?
(c) P5,000.00 – as litigation expenses.[11]
IV
On July 7, 2006, or after more than nine months from the
promulgation of the Decision, the petitioner filed before the RTC a WHAT PROPERTIES SHALL BE INCLUDED IN THE FORFEITURE
Motion for Clarification,[12] asking the RTC to define the term ―Net OF THE SHARE OF THE GUILTY SPOUSE IN THE NET
Profits Earned.‖ CONJUGAL PARTNERSHIP AS A RESULT OF THE ISSUANCE OF
THE DECREE OF LEGAL SEPARATION?[23]
To resolve the petitioner's Motion for Clarification, the RTC issued
an Order[13] dated August 31, 2006, which held that the phrase
―NET PROFIT EARNED‖ denotes ―the remainder of the properties Our Ruling
of the parties after deducting the separate properties of each [of
the] spouse and the debts.‖[14] The Order further held that after While the petitioner has raised a number of issues on the
determining the remainder of the properties, it shall be forfeited in applicability of certain laws, we are well-aware that the
favor of the common children because the offending spouse does respondents have called our attention to the fact that the Decision
not have any right to any share of the net profits earned, pursuant dated October 10, 2005 has attained finality when the Motion for
to Articles 63, No. (2) and 43, No. (2) of the Family Code.[15] The Clarification was filed.[24] Thus, we are constrained to resolve first
dispositive portion of the Order states: the issue of the finality of the Decision dated October 10, 2005 and
subsequently discuss the matters that we can clarify.
WHEREFORE, there is no blatant disparity when the sheriff intends
to forfeit all the remaining properties after deducting the The Decision dated October 10, 2005 has become final
payments of the debts for only separate properties of the and executory at the time the Motion for Clarification
defendant-respondent shall be delivered to him which he has
was filed on July 7, 2006.
none.

The Sheriff is herein directed to proceed with the execution of the

Decision. Section 3, Rule 41 of the Rules of Court provides:

IT IS SO ORDERED.[16] Section 3. Period of ordinary appeal. - The appeal shall be taken

within fifteen (15) days from notice of the judgment or final order
appealed from. Where a record on appeal is required, the
Not satisfied with the trial court's Order, the petitioner filed a appellant shall file a notice of appeal and a record on appeal
Motion for Reconsideration[17] on September 8, within thirty (30) days from notice of the judgment or final order.
2006. Consequently, the RTC issued another Order[18] dated
November 8, 2006, holding that although the Decision dated The period of appeal shall be interrupted by a timely
October 10, 2005 has become final and executory, it may still motion for new trial or reconsideration. No motion for extension
consider the Motion for Clarification because the petitioner simply of time to file a motion for new trial or reconsideration shall be
wanted to clarify the meaning of ―net profit allowed.
earned.‖[19] Furthermore, the same Order held:

ALL TOLD, the Court Order dated August 31, 2006 is hereby In Neypes v. Court of Appeals,[25] we clarified that to standardize
ordered set aside. NET PROFIT EARNED, which is subject of the appeal periods provided in the Rules and to afford litigants
forfeiture in favor of [the] parties' common children, is ordered to fair opportunity to appeal their cases, we held that ―it would be
be computed in accordance [with] par. 4 of Article 102 of the practical to allow a fresh period of 15 days within which to file the
Family Code.[20] notice of appeal in the RTC, counted from receipt of the order
dismissing a motion for a new trial or motion for
reconsideration.‖[26]
On November 21, 2006, the respondents filed a Motion for
Reconsideration,[21] praying for the correction and reversal of the In Neypes, we explained that the "fresh period rule" shall also
Order dated November 8, 2006. Thereafter, on January 8, apply to Rule 40 governing appeals from the Municipal Trial
2007,[22] the trial court had changed its ruling again and granted Courts to the RTCs; Rule 42 on petitions for review from the RTCs
the respondents' Motion for Reconsideration whereby the Order to the Court of Appeals (CA); Rule 43 on appeals from quasi-
dated November 8, 2006 was set aside to reinstate the Order judicial agencies to the CA and Rule 45 governing appeals
dated August 31, 2006. by certiorari to the Supreme Court. We also said, ―The new rule
aims to regiment or make the appeal period uniform, to be
Not satisfied with the trial court's Order, the petitioner filed on counted from receipt of the order denying the motion for new
February 27, 2007 this instant Petition for Review under Rule 45 trial, motion for reconsideration (whether full or partial) or any
of the Rules of Court, raising the following: final order or resolution.‖[27] In other words, a party litigant may
file his notice of appeal within a fresh 15-day period from his
Issues receipt of the trial court's decision or final order denying his motion
for new trial or motion for reconsideration. Failure to avail of the
fresh 15-day period from the denial of the motion for
I
reconsideration makes the decision or final order in question final
and executory.
In the case at bar, the trial court rendered its Decision on October
10, 2005. The petitioner neither filed a motion for reconsideration (b) The trial court's grant of the petition for legal separation of
nor a notice of appeal. On December 16, 2005, or after 67 days respondent Rita;[39]
had lapsed, the trial court issued an order granting the
respondent's motion for execution; and on February 10, 2006, or (c) The dissolution and liquidation of the conjugal partnership; [40]
after 123 days had lapsed, the trial court issued a writ of
execution. Finally, when the writ had already been partially (d) The forfeiture of the petitioner's right to any share of the net
executed, the petitioner, on July 7, 2006 or after 270 days had profits earned by the conjugal partnership; [41]
lapsed, filed his Motion for Clarification on the definition of the
―net profits earned.‖ From the foregoing, the petitioner had (e) The award to the innocent spouse of the minor children's Page
clearly slept on his right to question the RTC’s Decision dated custody;[42]
October 10, 2005. For 270 days, the petitioner never raised a | 17
single issue until the decision had already been partially (f) The disqualification of the offending spouse from inheriting
executed. Thus at the time the petitioner filed his motion for from the innocent spouse by intestate succession; [43]
clarification, the trial court’s decision has become final and
executory. A judgment becomes final and executory when the (g) The revocation of provisions in favor of the offending spouse
reglementary period to appeal lapses and no appeal is perfected made in the will of the innocent spouse;[44]
within such period. Consequently, no court, not even this Court,
can arrogate unto itself appellate jurisdiction to review a case or (h) The holding that the property relation of the parties is conjugal
modify a judgment that became final.[28] partnership of gains and pursuant to Article 116 of the Family
Code, all properties acquired during the marriage, whether
The petitioner argues that the decision he is questioning is a void acquired by one or both spouses, is presumed to be conjugal unless
judgment. Being such, the petitioner's thesis is that it can still be the contrary is proved;[45]
disturbed even after 270 days had lapsed from the issuance of the
decision to the filing of the motion for clarification. He said that ―a (i) The finding that the spouses acquired their real and personal
void judgment is no judgment at all. It never attains finality and properties while they were living together; [46]
cannot be a source of any right nor any obligation.‖[29] But what
precisely is a void judgment in our jurisdiction? When does a (j) The list of properties which Rizal Commercial Banking
judgment becomes void? Corporation (RCBC) foreclosed;[47]

―A judgment is null and void when the court which rendered it (k) The list of the remaining properties of the couple which must
had no power to grant the relief or no jurisdiction over the subject be dissolved and liquidated and the fact that respondent Rita was
matter or over the parties or both.‖[30] In other words, a court, the one who took charge of the administration of these
which does not have the power to decide a case or that has no properties;[48]
jurisdiction over the subject matter or the parties, will issue a void
judgment or a coram non judice.[31] (l) The holding that the conjugal partnership shall be liable to
matters included under Article 121 of the Family Code and the
The questioned judgment does not fall within the purview of a conjugal liabilities totaling P503,862.10 shall be charged to the
void judgment. For sure, the trial court has jurisdiction over a case income generated by these properties;[49]
involving legal separation. Republic Act (R.A.) No. 8369 confers
upon an RTC, designated as the Family Court of a city, the (m) The fact that the trial court had no way of knowing whether
exclusive original jurisdiction to hear and decide, among others, the petitioner had separate properties which can satisfy his share
complaints or petitions relating to marital status and property for the support of the family;[50]
relations of the husband and wife or those living together.[32] The
Rule on Legal Separation[33] provides that ―the petition [for legal (n) The holding that the applicable law in this case is Article
separation] shall be filed in the Family Court of the province or 129(7);[51]
city where the petitioner or the respondent has been residing for
at least six months prior to the date of filing or in the case of a (o) The ruling that the remaining properties not subject to any
non-resident respondent, where he may be found in the encumbrance shall therefore be divided equally between the
Philippines, at the election of the petitioner.‖[34] In the instant petitioner and the respondent without prejudice to the children's
case, herein respondent Rita is found to reside in legitime;[52]
Tungao, Butuan City for more than six months prior to the date of
filing of the petition; thus, the RTC, clearly has jurisdiction over the (p) The holding that the petitioner's share of the net profits earned
respondent's petition below. Furthermore, the RTC also acquired by the conjugal partnership is forfeited in favor of the common
jurisdiction over the persons of both parties, considering that children;[53] and
summons and a copy of the complaint with its annexes were
served upon the herein petitioner on December 14, 2000 and that (q) The order to the petitioner to reimburse the respondents the
the herein petitioner filed his Answer to the Complaint on January sum of P19,000.00 as attorney's fees and litigation expenses
9, 2001.[35] Thus, without doubt, the RTC, which has rendered the ofP5,000.00.[54]
questioned judgment, has jurisdiction over the complaint and the
persons of the parties. After discussing lengthily the immutability of the Decision dated
October 10, 2005, we will discuss the following issues for the
From the aforecited facts, the questioned October 10, 2005 enlightenment of the parties and the public at large.
judgment of the trial court is clearly not void ab initio, since it was
rendered within the ambit of the court's jurisdiction. Being such,
the same cannot anymore be disturbed, even if the modification is Article 129 of the Family Code applies to the present case
meant to correct what may be considered an erroneous conclusion since the parties' property relation is governed by
of fact or law.[36] In fact, we have ruled that for ―[as] long as the the system of relative community or conjugal partnership
public respondent acted with jurisdiction, any error committed by of gains.
him or it in the exercise thereof will amount to nothing more than
an error of judgment which may be reviewed or corrected only by
appeal.‖[37] Granting without admitting that the RTC's judgment
dated October 10, 2005 was erroneous, the petitioner's remedy The petitioner claims that the court a quo is wrong when it
should be an appeal filed within the reglementary applied Article 129 of the Family Code, instead of Article 102. He
period. Unfortunately, the petitioner failed to do this. He has confusingly argues that Article 102 applies because there is no
already lost the chance to question the trial court's decision, which other provision under the Family Code which defines net profits
has become immutable and unalterable. What we can only do is earned subject of forfeiture as a result of legal separation.
to clarify the very question raised below and nothing more.
Offhand, the trial court's Decision dated October 10, 2005 held
For our convenience, the following matters cannot anymore be that Article 129(7) of the Family Code applies in this case. We
disturbed since the October 10, 2005 judgment has already agree with the trial court's holding.
become immutable and unalterable, to wit:
First, let us determine what governs the couple's property
(a) The finding that the petitioner is the offending spouse since he relation. From the record, we can deduce that the petitioner and
cohabited with a woman who is not his wife; [38] the respondent tied the marital knot on January 6, 1977. Since at
the time of the exchange of marital vows, the operative law was In our en banc Resolution dated October 18, 2005 for ABAKADA
the Civil Code of the Philippines (R.A. No. 386) and since they did Guro Party List Officer Samson S. Alcantara, et al. v. The Hon.
not agree on a marriage settlement, the property relations Executive Secretary Eduardo R. Ermita,[63] we also explained:
between the petitioner and the respondent is the system of
relative community or conjugal partnership of gains.[55] Article 119 The concept of ―vested right‖ is a consequence of
of the Civil Code provides: the constitutional guaranty of due process that expresses a
present fixed interest which in right reason and natural justice is
Art. 119. The future spouses may in the marriage settlements agree protected against arbitrary state action; it includes not only legal
upon absolute or relative community of property, or upon or equitable title to the enforcement of a demand but also
complete separation of property, or upon any other regime. In exemptions from new obligations created after the right has Page
the absence of marriage settlements, or when the same are void, become vested. Rights are considered vested when the right to
the system of relative community or conjugal partnership of gains enjoyment is a present interest, absolute, unconditional, and | 18
as established in this Code, shall govern the property relations perfect or fixed and irrefutable.[64] (Emphasis and
between husband and wife. underscoring supplied)

Thus, from the foregoing facts and law, it is clear that what From the foregoing, it is clear that while one may not be deprived
governs the property relations of the petitioner and of the of his ―vested right,‖ he may lose the same if there is due process
respondent is conjugal partnership of gains. And under this and such deprivation is founded in law and jurisprudence.
property relation, ―the husband and the wife place in a common
fund the fruits of their separate property and the income from In the present case, the petitioner was accorded his right to due
their work or industry.‖[56] The husband and wife also own in process. First, he was well-aware that the respondent prayed in
common all the property of the conjugal partnership of gains.[57] her complaint that all of the conjugal properties be awarded to
her.[65] In fact, in his Answer, the petitioner prayed that the trial
Second, since at the time of the dissolution of the petitioner and court divide the community assets between the petitioner and the
the respondent's marriage the operative law is already the Family respondent as circumstances and evidence warrant after the
Code, the same applies in the instant case and the applicable law accounting and inventory of all the community properties of the
in so far as the liquidation of the conjugal partnership assets and parties.[66] Second, when the Decision dated October 10, 2005 was
liabilities is concerned is Article 129 of the Family Code in relation promulgated, the petitioner never questioned the trial court's
to Article 63(2) of the Family Code. The latter provision is ruling forfeiting what the trial court termed as ―net profits,‖
applicable because according to Article 256 of the Family Code pursuant to Article 129(7) of the Family Code.[67] Thus, the
―[t]his Code shall have retroactive effect insofar as it does not petitioner cannot claim being deprived of his right to due process.
prejudice or impair vested or acquired rights in accordance with
the Civil Code or other law.‖[58] Furthermore, we take note that the alleged deprivation of the
petitioner's ―vested right‖ is one founded, not only in the provisions
Now, the petitioner asks: Was his vested right over half of the of the Family Code, but in Article 176 of the Civil Code. This
common properties of the conjugal partnership violated when the provision is like Articles 63 and 129 of the Family Code on the
trial court forfeited them in favor of his children pursuant to forfeiture of the guilty spouse's share in the conjugal partnership
Articles 63(2) and 129 of the Family Code? profits. The said provision says:

We respond in the negative. Art. 176. In case of legal separation, the guilty spouse shall forfeit
his or her share of the conjugal partnership profits, which shall be
Indeed, the petitioner claims that his vested rights have been awarded to the children of both, and the children of the guilty
impaired, arguing: ―As earlier adverted to, the petitioner acquired spouse had by a prior marriage. However, if the conjugal
vested rights over half of the conjugal properties, the same being partnership property came mostly or entirely from the work or
owned in common by the spouses. If the provisions of the Family industry, or from the wages and salaries, or from the fruits of the
Code are to be given retroactive application to the point of separate property of the guilty spouse, this forfeiture shall not
authorizing the forfeiture of the petitioner's share in the net apply.
remainder of the conjugal partnership properties, the same
impairs his rights acquired prior to the effectivity of the Family In case there are no children, the innocent spouse shall be entitled
Code.‖[59] In other words, the petitioner is saying that since the to all the net profits.
property relations between the spouses is governed by the regime
of Conjugal Partnership of Gains under the Civil Code, the
petitioner acquired vested rights over half of the properties of the From the foregoing, the petitioner's claim of a vested right has no
Conjugal Partnership of Gains, pursuant to Article 143 of the Civil basis considering that even under Article 176 of the Civil Code, his
Code, which provides: ―All property of the conjugal partnership of share of the conjugal partnership profits may be forfeited if he is
gains is owned in common by the husband and wife.‖[60] Thus, the guilty party in a legal separation case. Thus, after trial and
since he is one of the owners of the properties covered by the after the petitioner was given the chance to present his evidence,
conjugal partnership of gains, he has a vested right over half of the the petitioner's vested right claim may in fact be set aside under
said properties, even after the promulgation of the Family Code; the Civil Code since the trial court found him the guilty party.
and he insisted that no provision under the Family Code may
deprive him of this vested right by virtue of Article 256 of the More, in Abalos v. Dr. Macatangay, Jr.,[68] we reiterated our long-
Family Code which prohibits retroactive application of the Family standing ruling that:
Code when it will prejudice a person's vested right.
[P]rior to the liquidation of the conjugal partnership, the interest
However, the petitioner's claim of vested right is not one which is of each spouse in the conjugal assets is inchoate, a mere
written on stone. In Go, Jr. v. Court of Appeals,[61] we define and expectancy, which constitutes neither a legal nor an equitable
explained ―vested right‖ in the following manner: estate, and does not ripen into title until it appears that there are
assets in the community as a result of the liquidation and
A vested right is one whose existence, effectivity and extent do not settlement. The interest of each spouse is limited to the net
depend upon events foreign to the will of the holder, or to the remainder or ―remanente liquido‖ (haber ganancial) resulting
exercise of which no obstacle exists, and which is immediate and from the liquidation of the affairs of the partnership after its
perfect in itself and not dependent upon a contingency. The term dissolution. Thus, the right of the husband or wife to one-half of
―vested right‖ expresses the concept of present fixed interest which, the conjugal assets does not vest until the
in right reason and natural justice, should be protected against dissolution and liquidation of the conjugal partnership, or after
arbitrary State action, or an innately just and imperative right dissolution of the marriage, when it is finally determined that,
which enlightened free society, sensitive to inherent and after settlement of conjugal obligations, there are net assets left
irrefragable individual rights, cannot deny. which can be divided between the spouses or their respective
heirs.[69] (Citations omitted)
To be vested, a right must have become a title—legal or
equitable—to the present or future enjoyment of
property.[62] (Citations omitted) Finally, as earlier discussed, the trial court has already decided in
its Decision dated October 10, 2005 that the applicable law in this
case is Article 129(7) of the Family Code.[70] The petitioner did not
file a motion for reconsideration nor a notice of appeal. Thus, the forfeiture, said profits shall be the increase in value between the
petitioner is now precluded from questioning the trial court's market value of the community property at the time of the
decision since it has become final and executory. The doctrine of celebration of the marriage and the market value at the time of
immutability and unalterability of a final judgment prevents us its dissolution.[74]
from disturbing the Decision dated October 10, 2005 because final
and executory decisions can no longer be reviewed nor reversed by Applying Article 102 of the Family Code, the ―net profits‖ requires
this Court.[71] that we first find the market value of the properties at the time of
the community's dissolution. From the totality of the market
From the above discussions, Article 129 of the Family Code clearly value of all the properties, we subtract the debts and obligations
applies to the present case since the parties' property relation is of the absolute community and this result to the net assets or net Page
governed by the system of relative community or conjugal remainder of the properties of the absolute community, from
partnership of gains and since the trial court's Decision has which we deduct the market value of the properties at the time of | 19
attained finality and immutability. marriage, which then results to the net profits.[75]

The net profits of the conjugal partnership of gains are all Granting without admitting that Article 102 applies to the instant
the fruits of the separate properties of the spouses and case, let us see what will happen if we apply Article 102:
the products of their labor and industry.
(a) According to the trial court's finding of facts, both husband
and wife have no separate properties, thus, the remaining
properties in the list above are all part of the absolute
The petitioner inquires from us the meaning of ―net profits‖ earned community. And its market value at the time of the dissolution of
by the conjugal partnership for purposes of effecting the forfeiture the absolute community constitutes the ―market value at
authorized under Article 63 of the Family Code. He insists that dissolution.‖
since there is no other provision under the Family Code, which
defines ―net profits‖ earned subject of forfeiture as a result of legal (b) Thus, when the petitioner and the respondent finally were
separation, then Article 102 of the Family Code applies. legally separated, all the properties which remained will be liable
for the debts and obligations of the community. Such debts and
What does Article 102 of the Family Code say? Is the computation obligations will be subtracted from the ―market value at
of ―net profits‖ earned in the conjugal partnership of gains the dissolution.‖
same with the computation of ―net profits‖ earned in the absolute
community? (c) What remains after the debts and obligations have been paid
from the total assets of the absolute community constitutes the net
Now, we clarify. remainder or net asset. And from such net asset/remainder of the
petitioner and respondent's remaining properties, the market
First and foremost, we must distinguish between the applicable value at the time of marriage will be subtracted and the resulting
law as to the property relations between the parties and the totality constitutes the ―net profits.‖
applicable law as to the definition of ―net profits.‖ As earlier
discussed, Article 129 of the Family Code applies as to the property (d) Since both husband and wife have no separate
relations of the parties. In other words, the computation and the
properties, and nothing would be returned to each of them,
succession of events will follow the provisions under Article 129 of
the said Code. Moreover, as to the definition of ―net profits,‖ we what will be divided equally between them is simply the ―net
cannot but refer to Article 102(4) of the Family Code, since it profits.‖ However, in the Decision dated October 10, 2005, the
expressly provides that for purposes of computing the net profits trial court forfeited the half-share of the petitioner in favor of his
subject to forfeiture under Article 43, No. (2) and Article 63, No. children. Thus, if we use Article 102 in the instant case (which
(2), Article 102(4) applies. In this provision, net profits ―shall be the should not be the case), nothing is left to the petitioner since both
increase in value between the market value of the community parties entered into their marriage without bringing with them
property at the time of the celebration of the marriage and the any property.
market value at the time of its dissolution.‖[72] Thus, without any
iota of doubt, Article 102(4) applies to both the dissolution of the On Conjugal Partnership Regime:
absolute community regime under Article 102 of the Family Code,
and to the dissolution of the conjugal partnership regime under Before we go into our disquisition on the Conjugal Partnership
Article 129 of the Family Code. Where lies the difference? As earlier Regime, we make it clear that Article 102(4) of the Family Code
shown, the difference lies in the processes used under the applies in the instant case for purposes only of defining “net
dissolution of the absolute community regime under Article 102 of profit.‖ As earlier explained, the definition of ―net profits‖ in
the Family Code, and in the processes used under the dissolution of Article 102(4) of the Family Code applies to both the absolute
the conjugal partnership regime under Article 129 of the Family community regime and conjugal partnership regime as provided
Code. for under Article 63, No. (2) of the Family Code, relative to the
provisions on Legal Separation.
Let us now discuss the difference in the processes between the
absolute community regime and the conjugal partnership regime. Now, when a couple enters into a regime of conjugal
partnership of gains under Article 142 of the Civil Code, ―the
On Absolute Community Regime: husband and the wife place in common fund the fruits of their
separate property and income from their work or industry, and
When a couple enters into a regime of absolute community, divide equally, upon the dissolution of the marriage or of the
the husband and the wife becomes joint owners of all the partnership, the net gains or benefits obtained indiscriminately by
properties of the marriage. Whatever property each spouse brings either spouse during the marriage.‖[76] From the foregoing
into the marriage, and those acquired during the marriage provision, each of the couple has his and her own property and
(except those excluded under Article 92 of the Family Code) form debts. The law does not intend to effect a mixture or merger of
the common mass of the couple's properties. And when the those debts or properties between the spouses. Rather, it
couple's marriage or community is dissolved, that common mass is establishes a complete separation of capitals.[77]
divided between the spouses, or their respective heirs, equally or in
the proportion the parties have established, irrespective of the Considering that the couple's marriage has been dissolved under
value each one may have originally owned.[73] the Family Code, Article 129 of the same Code applies in the
liquidation of the couple's properties in the event that the conjugal
Under Article 102 of the Family Code, upon dissolution of partnership of gains is dissolved, to wit:
marriage, an inventory is prepared, listing separately all the
properties of the absolute community and the exclusive properties Art. 129. Upon the dissolution of the conjugal partnership regime,
of each; then the debts and obligations of the absolute community the following procedure shall apply:
are paid out of the absolute community's assets and if the
community's properties are insufficient, the separate properties of (1) An inventory shall be prepared, listing separately all the
each of the couple will be solidarily liable for the unpaid balance. properties of the conjugal partnership and the exclusive properties
Whatever is left of the separate properties will be delivered to of each spouse.
each of them. The net remainder of the absolute community is its
net assets, which shall be divided between the husband and the
wife; and for purposes of computing the net profits subject to
(2) Amounts advanced by the conjugal partnership in payment of all its debts and obligations, the spouses with their separate
personal debts and obligations of either spouse shall be credited to properties shall be solidarily liable.[83]
the conjugal partnership as an asset thereof.
(d) Now, what remains of the separate or exclusive properties of
(3) Each spouse shall be reimbursed for the use of his or her the husband and of the wife shall be returned to each of
exclusive funds in the acquisition of property or for the value of his them.[84] In the instant case, since it was already established
or her exclusive property, the ownership of which has been vested by the trial court that the spouses have no separate
by law in the conjugal partnership. properties,[85]there is nothing to return to any of
them. The listed properties above are considered part of the
(4) The debts and obligations of the conjugal partnership shall be Page
conjugal partnership. Thus, ordinarily, what remains in the above-
paid out of the conjugal assets. In case of insufficiency of said
listed properties should be divided equally between the spouses | 20
assets, the spouses shall be solidarily liable for the unpaid balance
and/or their respective heirs.[86] However, since the trial court
with their separate properties, in accordance with the provisions of
found the petitioner the guilty party, his share from the net profits
paragraph (2) of Article 121.
of the conjugal partnership is forfeited in favor of the common
(5) Whatever remains of the exclusive properties of the spouses
children, pursuant to Article 63(2) of the Family Code. Again, lest
shall thereafter be delivered to each of them.
we be confused, like in the absolute community regime, nothing
will be returned to the guilty party in the conjugal partnership
regime, because there is no separate property which may
(6) Unless the owner had been indemnified from whatever source,
the loss or deterioration of movables used for the benefit of the be accounted for in the guilty party's favor.
family, belonging to either spouse, even due to fortuitous event,
shall be paid to said spouse from the conjugal funds, if any. In the discussions above, we have seen that in both instances, the
petitioner is not entitled to any property at all. Thus, we cannot
(7) The net remainder of the conjugal partnership properties shall but uphold the Decision dated October 10, 2005 of the trial
constitute the profits, which shall be divided equally between court. However, we must clarify, as we already did above, the
husband and wife, unless a different proportion or division was Order dated January 8, 2007.
agreed upon in the marriage settlements or unless there has been
a voluntary waiver or forfeiture of such share as provided in this WHEREFORE, the Decision dated October 10, 2005 of the
Code. Regional Trial Court, Branch 1 of Butuan City
is AFFIRMED. Acting on the Motion for Clarification dated July 7,
(8) The presumptive legitimes of the common children shall be 2006 in the Regional Trial Court, the Order dated January 8, 2007
delivered upon the partition in accordance with Article 51. of the Regional Trial Court is hereby CLARIFIED in accordance
with the above discussions.
(9) In the partition of the properties, the conjugal dwelling and the
lot on which it is situated shall, unless otherwise agreed upon by CASE DIGEST 11:
the parties, be adjudicated to the spouse with whom the majority
of the common children choose to remain. Children below the age QUIAO V. QUIAO
of seven years are deemed to have chosen the mother, unless the
court has decided otherwise. In case there is no such majority, the G.R. No 176556, [July 04, 2012]
court shall decide, taking into consideration the best interests of
said children. FACTS:
Rita C. Quiao (Rita) filed a complaint for legal separationagainst
petitioner Brigido B. Quiao (Brigido). RTC rendered a decision
In the normal course of events, the following are the steps in the declaring the legal separation thereby awarding the custody of
liquidation of the properties of the spouses: their 3 minor children in favor of Rita and all remaining properties
shall be divided equally between the spouses subject to the
(a) An inventory of all the actual properties shall be made, respective legitimes of the children and the payment of the
separately listing the couple's conjugal properties and their unpaid conjugal liabilities.
separate properties.[78] In the instant case, the trial court found Brigido’s share, however, of the net profits earned by the conjugal
that the couple has no separate properties when they partnership is forfeited in favor of the common children because
married.[79] Rather, the trial court identified the following Brigido is the offending spouse.
conjugal properties, to wit: Neither party filed a motion for reconsideration and appeal within
the period 270 days later or after more than nine months from the
1. coffee mill in Balongagan, Las Nieves, Agusan del Norte; promulgation of the Decision, the petitioner filed before the RTC a
Motion for Clarification, asking the RTC to define the term ―Net
2. coffee mill in Durian, Las Nieves, Agusan del Norte; Profits Earned.‖
RTC held that the phrase ―NET PROFIT EARNED‖ denotes ―the
3. corn mill in Casiklan, Las Nieves, Agusan del Norte; remainder of the properties of the parties after deducting the
separate properties of each [of the] spouse and the debts.‖ It
4. coffee mill in Esperanza, Agusan del Sur; further held that after determining the remainder of the
properties, it shall be forfeited in favor of the common children
5. a parcel of land with an area of 1,200 square meters located in because the offending spouse does not have any right to any share
Tungao, Butuan City; of the net profits earned, pursuant to Articles 63, No. (2) and 43,
No. (2) of the Family Code.
6. a parcel of agricultural land with an area of 5 hectares located The petitioner claims that the court a quo is wrong when it
in Manila de Bugabos, Butuan City; applied Article 129 of the Family Code, instead of Article 102. He
confusingly argues that Article 102 applies because there is no
7. a parcel of land with an area of 84 square meters located in other provision under the Family Code which defines net profits
Tungao, Butuan City; earned subject of forfeiture as a result of legal separation.

8. Bashier Bon Factory located in Tungao, Butuan City.[80] ISSUES:

1. Whether Art 102 on dissolution of absolute community or Art
129 on dissolution of conjugal partnership of gains is applicable in
(b) Ordinarily, the benefit received by a spouse from the conjugal this case. – Art 129 will govern.
partnership during the marriage is returned in equal amount to 2. Whether the offending spouse acquired vested rights over½of
the assets of the conjugal partnership; [81] and if the community is the properties in the conjugal partnership– NO.
enriched at the expense of the separate properties of either 3. Is the computation of ―net profits‖ earned in the conjugal
spouse, a restitution of the value of such properties to their partnership of gains the same with thecomputation of ―net profits‖
respective owners shall be made.[82] earned in the absolute community? NO.

(c) Subsequently, the couple's conjugal partnership shall pay the RATIO:
debts of the conjugal partnership; while the debts and obligation 1. First, since the spouses were married prior to the promulgation of
of each of the spouses shall be paid from their respective separate the current family code, the default rule is that In the absence of
properties. But if the conjugal partnership is not sufficient to pay marriage settlements, or when the same are void, the system of
relative community or conjugal partnership of gains as established dismissing her complaint upon the ground that the same was filed
in this Code, shall govern the property relations between husband more than one year from and after the date on which she had
and wife. become cognizant of the cause for legal separation.
Second, since at the time of the dissolution of the spouses’ The following, facts found by the trial court are not in dispute:
marriage the operative law is already the Family Code, the same Plaintiff and defendant were married on March 16, 1952 in the
applies in the instant case and the applicable law in so far as Catholic Church of Quiapo, Manila. Out of their Marriage, three
the liquidation of the conjugal partnershipassets and liabilities is children were born: Eusebio C. Macaraig, on January 11, 1953;
concerned is Article 129 of the Family Code in relation to Article Victoria C. Macaraig, on March 26, 1956; and Alexander C.
63(2) of the Family Code. Macaraig, on August 4, 1958. All the children are in the care of
2. The petitioner is saying that since the propertyrelations plaintiff wife. Page
between the spouses is governed by the regime of Conjugal Sometime in 1958, the couple acquired rights, as lessee and
Partnership of Gains under the Civil Code, the petitioner acquired purchaser under a conditional sale agreement, to own a house | 21
vested rights over half of the properties of the Conjugal and lot, known as Lot 4, Block 8 of the Philamlife Homes in
Partnership of Gains, pursuant to Article 143 of the Civil Code, Quezon City which they transferred in favor of their three children
which provides: ―All property of the conjugal partnership of gains is on October 29, 1958 (Exh. F). Installment payments are being
owned in common by the husband and wife.‖ made by plaintiff's father. The spouses own no other conjugal
While one may not be deprived of his ―vested right,‖ he may lose property.
the same if there is due process and such deprivation is founded in Immediately before the election of 1961, defendant was employed
law and jurisprudence. as manager of the printing establishment owned by plaintiff's
In the present case, the petitioner was accorded his right to due father known as the MICO Offset. In that capacity, defendant met
process. First, he was well-aware that the respondent prayed in and came to know Lily Ann Alcala, who place orders with MICO
her complaint that all of the conjugal properties be awarded to Offset for propaganda materials for Mr. Sergio Osmeña, who was
her. In fact, in his Answer, the petitioner prayed that the trial court then a Vice-Presidential candidate. After the elections of 1961,
divide the community assets between the petitioner and the defendant resigned from MICO Offset to be a special agent at
respondent as circumstances and evidence warrant afterthe Malacañang. He began to be away so often and to come home
accounting and inventory of all the community properties of the very late. Upon plaintiff's inquiry, defendant explained that he
parties. Second, when the decision forlegal separation was was out on a series of confidential missions.
promulgated, the petitioner never questioned the trial court’s In September, 1962, Avelino Lubos, driver of the family car, told
ruling forfeiting what the trial court termed as ―net profits,‖ plaintiff that defendant was living in Singalong with Lily Ann
pursuant to Article 129(7) of the Family Code. Thus, the petitioner Alcala. When defendant, the following October, returned to the
cannot claim being deprived of his right to due process. conjugal home, plaintiff refrained from verifying Lubos' report
3. When a couple enters into a regime of absolutecommunity, from defendant in her desire not to anger nor drive defendant
the husband and the wife become joint owners of all the away. Although plaintiff, in April 1963, also received rumors that
properties of the marriage. Whatever property each spouse brings defendant was seen with a woman who was on the family way on
into the marriage, and those acquired during the marriage Dasmariñas St., she was so happy that defendant again return to
(except those excluded under Article 92 of the Family Code) form the family home in May, 1963 that she once more desisted from
the common mass of the couple’s properties. And when the discussing the matter with him because she did not wish to
couple’s marriage or community is dissolved, that common mass is precipitate a quarrel and drive him away. All this while,
divided between the spouses, or their respective heirs, equally or in defendant, if and whenever he returned to the family fold, would
the proportion the parties have established, irrespective of the only stay for two or three days but would be gone for a period of
value each one may have originally owned. about a month.
In this case, assuming arguendo that Art 102 is applicable, since it After plaintiff received reports that Lily Ann Alcala had given
has been established that the spouses have no separate properties, birth to a baby, she sent Mrs. Felicisima Antioquia, her father's
what will be divided equally between them is simply the ―net employee, to verify the reports. The latter was driven by Lubos to
profits.‖ And since the legal separation½share decision of Brigido the house in Singalong and between 5:00 and 6:00 o'clock that
states that the in the net profits shall be awarded to the children, afternoon, she saw defendant was carrying a baby in his arms.
Brigido will still be left with nothing. Mrs. Antioquia then went to the parish priest of Singalong where
On the other hand, when a couple enters into a regime of she inquired about the child of Cesar Macaraig and Lily Ann
conjugal partnership of gains under Article142 of the Civil Alcala and she was given a copy of the baptismal certificate of
Code, ―the husband and the wife place in common fund the fruits Maria Vivien Mageline Macaraig (Exh. G) which she gave to
of their separate property and income from their work or industry, plaintiff sometime in October, 1963.
and divide equally, upon thedissolution of the marriage or of the Plaintiff then entreated her father-in-law, Lucilo Macaraig, to
partnership, the net gains or benefits obtained indiscriminately by intercede with defendant and to convince him to return to his
either spouse during the marriage.‖ From the foregoing provision, family. Mr. Macaraig, after talking to his son and seeking him with
each of the couple has his and her own property and debts. The the latter's child told plaintiff that he could not do anything.
law does not intend to effect a mixture or merger of those debts or In November, 1963, plaintiff requested the cooperation of
properties between the spouses. Rather, it establishes a defendant's older sister, Mrs. Enriqueta Majul, and the latter
complete separation of capitals. obliged and arranged a meeting at her home in Buendia between
In the instant case, since it was already established by the trial plaintiff and Lily Ann Alcala. Lily Ann said she was willing to give
court that the spouses have no separate properties, there is up defendant as she had no desire to be accused criminally but it
nothing to return to any of them. The listed properties above are was defendant who refused to break relationship with her.
considered part of the conjugal partnership. Thus, ordinarily, what In the early part of December, 1963, plaintiff, accompanied by her
remains in the above-listed properties should be divided equally two children, Victoria and Alexander, and by Mrs. Leticia Lagronio
between the spouses and/or their respective heirs. However, since went to talk to defendant at his place of work on España
the trial court found the petitioner the guilty party, his share from Extension in front of Quezon Institute. They repaired to Victoria
the net profits of the conjugal partnership is forfeited in favor of Peak, a nearby restaurant, where plaintiff pleaded with
the common children, pursuant to Article 63(2) of the Family defendant to give up Lily Ann Alcala and to return to the
Code. Again, lest we be confused, like in the absolute community conjugal home, assuring him that she was willing to forgive him.
regime, nothing will be returned to the guilty party in the conjugal Defendant informed plaintiff that he could no longer leave Lily
partnership regime, because there is no separate property which Ann and refused to return to his legitimate family.
may be accounted for in the guilty party’s favor. On December 14, 1963, plaintiff instituted the present action for
legal separation. When defendant did not interpose any answer
after he was served summons, the case was referred to the Office
12. G.R. No. L-29138 May 29, 1970 of the City Fiscal of Manila pursuant to the provisions of Article 101
of the Civil Code. After a report was received from Asst. Fiscal
ELENA CONTRERAS, plaintiff-appellant, Primitivo M. Peñaranda that he believed that there was no
vs. collusion present, plaintiff was allowed to present her evidence.
CESAR J. MACARAIG, defendant-appellee. Defendant has never appeared in this case.
Jose T. Nery for plaintiff-appellee. The reasons relied upon by the trial court in dismissing the
The City fiscal for defendant-appellant. complaint are set forth in the appealed decision as follows:
Cesar J. Macaraig in his own behalf. Under the facts established by plaintiff's evidence, although the
infidelity of the husband is apparent, yet the case will have to be
DIZON, J.: dismissed. Article 102 provides that, an action for legal separation
Appeal taken by Elena Contreras from a decision of the Juvenile cannot be instituted except within one year after plaintiff
and Domestic Relations Court of Manila in Civil Case No. 00138 "became cognizant of the cause." In the absence of a clear-cut
decision of the Supreme Court as to the exact import of the term attempts to persuade her husband to come back home. In the
"cognizant," the practical application of said Article can be words of the lower court, she "entreated her father-in-law, Lucilo
attended with difficulty. For one thing; that rules might be Macaraig, to intercede with defendant and to convince him to
different in case of adultery, which is an act, and for concubinage, return to his family" and also "requested the cooperation of
which may be a situation or a relationship. defendant's older sister, Mrs. Enriqueta Majul" for the same
In respect of concubinage, the word 'cognizant' may not connote purpose, but all that was of no avail. Her husband remained
the date when proof thereof sufficient to establish the cause before obdurate.
a court of law is possessed. Otherwise, the one year period would After a careful review of the record, We are persuaded that, in the
be meaningless for practical purposes because all a wife would eyes of the law, the only time when appellant really became
have to do would be to claim that the necessary proof was cognizant of the infidelity of her husband was in the early part of Page
secured only within one year before the filing of the complaint. On December 1963 when, quoting from the appealed decision, the
the other hand, it should be hard to concede that what the law following happened — | 22
envisages (and, in a way, encourages) is the filing of a complaint In the early part of December, 1963, plaintiff, accompanied by her
within one year after the innocent spouses has received two children, Victoria and Alexander, and by Mrs. Leticia Lagronio
information of the other's infidelity, howsoever baseless the report went to talk to defendant at his place of work on España
might be. Extension in front of Quezon Institute. They repaired to Victoria
The Court believes that the correct rule lies between the two Peak, a nearby restaurant, where plaintiff pleaded with
extremes. At the time a wife acquired information, which can be defendant to give up Lily Ann Alcala and to return to the
reasonably relied upon as true, that her husband is living in conjugal home, assuring him that she was willing to forgive him.
concubinage with another woman, the one-year period should be Defendant informed plaintiff that he could no longer leave Lily
deemed to have started even if the wife shall not then be in Ann and refused to return to his legitimate family.
possession of proof sufficient to establish the concubinage before a From all the foregoing We conclude that it was only on the
court of law. The one-year period may be viewed, inter alia, as an occasion mentioned in the preceding paragraph when her
alloted time within which proof should be secured. It is in the light husband admitted to her that he was living with and would no
of this rule that the Court will determine whether or not plaintiff's longer leave Lily Ann to return to his legitimate family that
action for legal separation has prescribed. appellant must be deemed to be under obligation to decide
After her husband resigned from MICO Offset to be a special whether to sue or not to sue for legal separation, and it was only
agent in Malacañan, subsequent to the elections of 1961, he would then that the legal period of one year must be deemed to have
seldom come home. He allayed plaintiff's suspicions with the commenced.
explanation that he had been away on 'confidential missions.' WHEREFORE, the decision appealed from is set aside and another
However, in September, 1962, Avelino Lubos, plaintiff's driver, is hereby rendered holding that appellant is entitled to legal
reported to plaintiff that defendant was living in Singalong with separation as prayed for in her complaint; and the case is hereby
Lily Ann Alcala. As a matter of fact, it was also Lubos who brought remanded to the lower court for appropriate proceedings in
Mrs. F. Antioquia (when plaintiff had asked to verify the reports) accordance with law.
to the house in Singalong where she saw defendant, Lily Ann and
the baby. CASE DIGEST 12:
The requirement of the law that a complaint for legal separation
be filed within one year after the date plaintiff become cognizant Contreras v. Macaraig
of the cause is not of prescriptive nature, but is of the essence of May 29, 1970, Dizon, J.
the cause of action. It is consonant with the philosophy that
marriage is an inviolable social institution so that the law provides Facts:
strict requirements before it will allow a disruption of its status. In Sept. 1962, family driver told Elena Contreras that her husband
In the instant action, the Court has to find that plaintiff became Macaraig was living with another woman. She failed to verify the
cognizant of defendant's infidelity in September, 1962. Plaintiff rumor from her husband. In April 1963, she heard rumors that her
made successive attempts to induce the husband to amend his husband was seen with another woman who was pregnant. In
erring ways but failed. Her desire to bring defendant back to the May of the same year she once more failed to ascertain the
connubial fold and to preserve family solidarity deterred her from veracity of the allegations because she was afraid that it would
taking timely legal action. precipitate a quarrel and drive him away. However she finally
The only question to be resolved is whether the period of one year found out about her husband’s mistress and the birth of the
provided for in Article 102 of the Civil Code should be counted, as latter’s child. In December 1963, wife finally met with her husband
far as the instant case is concerned from September 1962 or from and pleaded him to give up his mistress and return to the conjugal
December 1963. Computing the period of one year from the home, assuring him that all would be forgiven. He declined. In the
former date, it is clear that plaintiff's complaint filed on December same month, she filed suit for legal separation but the case was
14, 1963 came a little too late, while the reverse would be true if dismissed because prescription had, according to the court, already
said period is deemed to have commenced only in the month of taken place from Sept. 1962 when she had found out about her
December 1963. husband’s illicit relationship from the family driver. The CA
The period of "five years from after the date when such cause dismissed the complaint because of prescription.
occurred" is not here involved.
Upon the undisputed facts it seems clear that, in the month of Issue:
September 1962, whatever knowledge appellant had acquired
regarding the infidelity of her husband, that is, of the fact that he WON the period of prescription is counted from Sept. 1962 or from
was then living in Singalong with Lily Ann Alcala, was only December 1963.
through the information given to her by Avelino Lubos, driver of
the family car. Much as such hearsay information had pained and Held/Ratio:
anguished her, she apparently thought it best — and no December 1963. This was the only time when she became truly
reasonable person may justifiably blame her for it — not to go cognizant of her husband’s infidelity. Hearsay information would
deeper into the matter herself because in all probability even up not have been legally sufficient as a basis for legal separation.
to that time, notwithstanding her husband's obvious neglect of his
entire family, appellant still cherished the hope — however forlorn 13. G.R. No. L-13553 February 23, 1960
— of his coming back home to them. Indeed, when her husband
returned to the conjugal home the following October, she JOSE DE OCAMPO, petitioner,
purposely refrained from bringing up the matter of his marital vs.
infidelity "in her desire not to anger nor drive defendant away" — SERAFINA FLORENCIANO, respondent.
quoting the very words of the trial court. True, appellant likewise Joselito J. Coloma for petitioner.
heard in April 1963 rumors that her husband was seen with a
woman on the family way on Dasmariñas Street, but failed again BENGZON, J.:
to either bring up the matter with her husband or make attempts Action for legal separation by Jose de Ocampo against his wife
to verify the truth of said rumors, but this was due, as the lower Serafina, on the ground of adultery. The court of first instance of
court itself believed, because "she was so happy that defendant Nueva Ecija dismissed it. The Court of Appeals affirmed, holding
again returned to the family home in May 1963 that she once there was confession of judgment, plus condonation or consent to
more desisted from discussing the matter with him because she did the adultery and prescription.
not wish to precipitate a quarrel and drive him away." As a We granted certiorari to consider the application of articles 100
matter of fact, notwithstanding all these painful informations and 101 of the New Civil Code, which for convenience are quoted
which would not have been legally sufficient to make a case for herewith:
legal separation — appellant still made brave if desperate
ART. 100.—The legal separation may be claimed only by the which implies more than consent or lack of opposition to the
innocent spouse, provided there has been no condonation of or agreement.
consent to the adultery or concubinage. Where both spouses are Needless to say, when the court is informed that defendant
offenders, a legal separation cannot be claimed by either of them. equally desires the separation and admitted the commission of the
Collusion between the parties to obtain legal separation shall offense, it should be doubly careful lest a collusion exists. (The
cause the dismissal of the petition. Court of Appeals did not find collusion.)
ART. 101.—No decree of legal separation shall be promulgated Collusion in divorce or legal separation means the agreement.
upon a stipulation of facts or by confession of judgment. . . . between husband and wife for one of them to commit, or to
In case of non-appearance of the defendant, the court shall order appear to commit, or to be represented in court as having
the prosecuting attorney to inquire whether or not a collusion committed, a matrimonial offense, or to suppress evidence of a Page
between the parties exists. If there is no collusion, the prosecuting valid defense, for the purpose of enabling the other to obtain a
attorney shall intervene for the State in order to take care that divorce. This agreement, if not express, may be implied from the | 23
the evidence for the plaintiff is not fabricated. acts of the parties. It is a ground for denying the divorce. (Griffiths
The record shows that on July 5, 1955, the complaint for legal vs. Griffiths, 69 N. J. Eq. 689 60 Atl. 1099; Sandoz vs. Sandoz, 107
separation was filed. As amended, it described their marriage Ore. 282, 214 Pas. 590.).
performed in 1938, and the commission of adultery by Serafina, in In this case, there would be collusion if the parties had arranged to
March 1951 with Jose Arcalas, and in June 1955 with Nelson make it appear that a matrimonial offense had been
Orzame. committed although it was not, or if the parties had connived to
Because the defendant made no answer, the court defaulted her, bring about a legal separation even in the absence of grounds
and pursuant to Art. 101 above, directed the provincial fiscal to therefor.
investigate whether or not collusion existed between the parties. Here, the offense of adultery had really taking place, according to
The fiscal examined the defendant under oath, and then reported the evidence. The defendant could not havefalsely told the
to the Court that there was no collusion. The plaintiff presented his adulterous acts to the Fiscal, because her story might send her to
evidence consisting of the testimony of Vicente Medina, Ernesto de jail the moment her husband requests the Fiscal to prosecute. She
Ocampo, Cesar Enriquez, Mateo Damo, Jose de Ocampo and could not have practiced deception at such a personal risk.
Capt. Serafin Gubat. In this connection, it has been held that collusion may not be
According to the Court of Appeals, the evidence thus presented inferred from the mere fact that the guilty party confesses to the
shows that "plaintiff and defendant were married in April 5, 1938 offense and thus enables the other party to procure evidence
by a religious ceremony in Guimba, Nueva Ecija, and had lived necessary to prove it. (Williams vs. Williams, [N. Y.] 40 N. E. (2d)
thereafter as husband and wife. They begot several children who 1017; Rosenweig vs. Rosenweig, 246 N. Y. Suppl. 231; Conyers, vs.
are now living with plaintiff. In March, 1951, plaintiff discovered on Conyers, 224 S. W. [2d] 688.).
several occasions that his wife was betraying his trust by And proof that the defendant desires the divorce and makes no
maintaining illicit relations with one Jose Arcalas. Having found defense, is not by itself collusion. (Pohlman vs. Pohlman, [N. J.] 46
the defendant carrying marital relations with another man Atl. Rep. 658.).
plaintiff sent her to Manila in June 1951 to study beauty culture, We do not think plaintiff's failure actively to search for defendant
where she stayed for one year. Again, plaintiff discovered that and take her home (after the latter had left him in 1952)
while in the said city defendant was going out with several other constituted condonation or consent to her adulterous relations
men, aside from Jose Arcalas. Towards the end of June, 1952, when with Orzame. It will be remembered that she "left" him after
defendant had finished studying her course, she left plaintiff and having sinned with Arcalas and after he had discovered her dates
since then they had lived separately. with other men. Consequently, it was not his duty to search for
"On June 18, 1955, plaintiff surprised his wife in the act of having her to bring her home. Hers was the obligation to return.
illicit relations with another man by the name of Nelson Orzame. Two decisions3 are cited wherein from apparently similar
Plaintiff signified his intention of filing a petition for legal circumstances, this Court inferred the husband's consent to or
separation, to which defendant manifested her conformity condonation of his wife's misconduct. However, upon careful
provided she is not charged with adultery in a criminal action. examination, a vital difference will be found: in both instances, the
Accordingly, plaintiff filed on July 5, 1955, a petition for legal husband had abandoned his wife; here it was the wife who "left"
separation." her husband.
The Court of Appeals held that the husband's right to legal Wherefore, finding no obstacles to the aggrieved husband's
separation on account of the defendant's adultery with Jose petition we hereby reverse the appealed decision and decree a
Arcalas had prescribed, because his action was not filed within one legal separation between these spouse, all the consequent effects.
year from March 1951 when plaintiff discovered her infidelity. (Art. Costs of all instances against Serafina Florenciano. So ordered.
102, New Civil Code) We must agree with the Court of Appeals on
this point.1 CASE DIGEST 13:
As to the adultery with Nelson Orzame, the appellate court found
that in the night of June 18, 1955, the husband upon discovering the De Ocampo vs. Florenciano
illicit connection, expressed his wish to file a petition for legal 107 Phil 35
separation and defendant readily agreed to such filing. And when
she was questioned by the Fiscal upon orders of the court, she FACTS:
reiterated her conformity to the legal separation even as she
admitted having had sexual relations with Nelson Orzame.
Interpreting these facts virtually to mean a confession of judgment Jose de Ocampo and Serafina Florenciano were married in 1938.
the Appellate Court declared that under Art. 101, legal separation They begot several children who are not living with plaintiff. In
could not be decreed. March 1951, latter discovered on several occasions that his wife was
As we understand the article, it does not exclude, as evidence, any betraying his trust by maintaining illicit relations with Jose Arcalas.
admission or confession made by the defendant outside of the Having found out, he sent the wife to Manila in June 1951 to study
court. It merely prohibits a decree of separation upon a confession beauty culture where she stayed for one year. Again plaintiff
of judgment. Confession of judgment usually happens when the discovered that the wife was going out with several other man
defendant appears in court and confesses the right of plaintiff to other than Arcalas. In 1952, when the wife finished her studies, she
judgment or files a pleading expressly agreeing to the plaintiff's left plaintiff and since then they had lived separately. In June
demand.2 This is not occur. 1955, plaintiff surprised his wife in the act of having illicit relations
Yet, even supposing that the above statement of defendant with Nelson Orzame. He signified his intention of filing a petition
constituted practically a confession of judgment, inasmuch as there for legal separation to which defendant manifested conformity
is evidence of the adultery independently of such statement, the provided she is not charged with adultery in a criminal action.
decree may and should be granted, since it would not be based on Accordingly, Ocampo filed a petition for legal separation in 1955.
her confession, but upon evidence presented by the plaintiff. What
the law prohibits is a judgment based exclusively or mainly on ISSUE: Whether the confession made by Florenciano constitutes
defendant's confession. If a confession defeats the actionipso facto, the confession of judgment disallowed by the Family Code.
any defendant who opposes the separation will immediately
confess judgment, purposely to prevent it. HELD:
The mere circumstance that defendants told the Fiscal that she
"like also" to be legally separated from her husband, is no obstacle Florenciano’s admission to the investigating fiscal that she
to the successful prosecution of the action. When she refused to committed adultery, in the existence of evidence of adultery other
answer the complaint, she indicated her willingness to be than such confession, is not the confession of judgment disallowed
separated. Yet, the law does not order the dismissal. Allowing the by Article 48 of the Family Code. What is prohibited is a
proceeding to continue, it takes precautions against collusion, confession of judgment, a confession done in court or through a
pleading. Where there is evidence of the adultery independent of subject of the recourse is one of jurisdiction, or the act complained
the defendant’s statement agreeing to the legal separation, the of was granted by a court with grave abuse of discretion
decree of separation should be granted since it would not be amounting to lack or excess of jurisdiction, as alleged in this case,
based on the confession but upon the evidence presented by the the proper remedy is a petition for certiorari under Rule 65 of the
plaintiff. What the law prohibits is a judgment based exclusively said Rules.11 This is based on the premise that in issuing the assailed
on defendant’s confession. The petition should be granted based decision and resolution, the Court of Appeals acted with grave
on the second adultery, which has not yet prescribed. abuse of discretion, amounting to excess of lack of jurisdiction and
there is no plain, speedy and adequate remedy in the ordinary
14. G.R. No. 162580 January 27, 2006 course of law. A remedy is considered plain, speedy, and adequate
if it will promptly relieve the petitioner from the injurious effect of Page
the judgment and the acts of the lower court.12
ELMAR O. PEREZ, Petitioner, It is therefore incumbent upon the petitioner to establish that the | 24
vs. Court of Appeals acted with grave abuse of discretion amounting
COURT OF APPEALS, Fifth Division, TRISTAN A. CATINDIG and to excess or lack of jurisdiction when it promulgated the assailed
LILY GOMEZ-CATINDIG, Respondents. decision and resolution.
We have previously ruled that grave abuse of discretion may arise
DECISION when a lower court or tribunal violates or contravenes the
YNARES-SANTIAGO, J.: Constitution, the law or existing jurisprudence. By grave abuse of
This petition for certiorari and prohibition under Rule 65 of the discretion is meant, such capricious and whimsical exercise of
Rules of Court assails the July 25, 2003 Decision1of the Court of judgment as is equivalent to lack of jurisdiction. The abuse of
Appeals in CA-G.R. SP No. 74456 which set aside and declared as discretion must be grave as where the power is exercised in an
null and void the September 30, 2002 Order2 of the Regional Trial arbitrary or despotic manner by reason of passion or personal
Court of Quezon City, Branch 84, granting petitioner’s motion for hostility and must be so patent and gross as to amount to an
leave to file intervention and admitting the Complaint-in- evasion of positive duty or to a virtual refusal to perform the duty
Intervention3 in Civil Case No. Q-01-44847; and its January 23, enjoined by or to act at all in contemplation of law.13 The word
2004 Resolution4 denying the motion for reconsideration. "capricious," usually used in tandem with the term "arbitrary,"
Private respondent Tristan A. Catindig married Lily Gomez conveys the notion of willful and unreasoning action. Thus, when
Catindig5 twice on May 16, 1968. The first marriage ceremony was seeking the corrective hand of certiorari, a clear showing of caprice
celebrated at the Central Methodist Church at T.M. Kalaw Street, and arbitrariness in the exercise of discretion is imperative.14
Ermita, Manila while the second took place at the Lourdes The Rules of Court laid down the parameters before a person, not
Catholic Church in La Loma, Quezon City. The marriage produced a party to a case can intervene, thus:
four children. Who may intervene. — A person who has a legal interest in the
Several years later, the couple encountered marital problems that matter in litigation, or in the success of either of the parties, or an
they decided to separate from each other. Upon advice of a interest against both, or is so situated as to be adversely affected
mutual friend, they decided to obtain a divorce from the by a distribution or other disposition of property in the custody of
Dominican Republic. Thus, on April 27, 1984, Tristan and Lily the court or of an officer thereof may, with leave of court, be
executed a Special Power of Attorney addressed to the Judge of allowed to intervene in the action. The court shall consider
the First Civil Court of San Cristobal, Dominican Republic, whether or not the intervention will unduly delay or prejudice the
appointing an attorney-in-fact to institute a divorce action under adjudication of the rights of the original parties, and whether or
its laws.6 not the intervenor’s rights may be fully protected in a separate
Thereafter, on April 30, 1984, the private respondents filed a joint proceeding.15
petition for dissolution of conjugal partnership with the Regional The requirements for intervention are: [a] legal interest in the
Trial Court of Makati. On June 12, 1984, the civil court in the matter in litigation; and [b] consideration must be given as to
Dominican Republic ratified the divorce by mutual consent of whether the adjudication of the original parties may be delayed
Tristan and Lily. Subsequently, on June 23, 1984, the Regional Trial or prejudiced, or whether the intervenor’s rights may be protected
Court of Makati City, Branch 133, ordered the complete separation in a separate proceeding or not.16
of properties between Tristan and Lily. Legal interest, which entitles a person to intervene, must be in the
On July 14, 1984, Tristan married petitioner Elmar O. Perez in the matter in litigation and of such direct and immediate character
State of Virginia in the United States7 and both lived as husband that the intervenor will either gain or lose by direct legal operation
and wife until October 2001. Their union produced one offspring.8 and effect of the judgment.17 Such interest must be actual, direct
During their cohabitation, petitioner learned that the divorce and material, and not simply contingent and expectant.18
decree issued by the court in the Dominican Republic which Petitioner claims that her status as the wife and companion of
"dissolved" the marriage between Tristan and Lily was not Tristan for 17 years vests her with the requisite legal interest
recognized in the Philippines and that her marriage to Tristan was required of a would-be intervenor under the Rules of Court.
deemed void under Philippine law. When she confronted Tristan Petitioner’s claim lacks merit. Under the law, petitioner was never
about this, the latter assured her that he would legalize their the legal wife of Tristan, hence her claim of legal interest has no
union after he obtains an annulment of his marriage with Lily. basis.
Tristan further promised the petitioner that he would adopt their When petitioner and Tristan married on July 14, 1984, Tristan was
son so that he would be entitled to an equal share in his estate as still lawfully married to Lily. The divorce decree that Tristan and
that of each of his children with Lily.9 Lily obtained from the Dominican Republic never dissolved the
On August 13, 2001, Tristan filed a petition for the declaration of marriage bond between them. It is basic that laws relating to
nullity of his marriage to Lily with the Regional Trial Court of family rights and duties, or to the status, condition and legal
Quezon City, docketed as Case No. Q-01-44847. capacity of persons are binding upon citizens of the Philippines,
Subsequently, petitioner filed a Motion for Leave to File even though living abroad.19 Regardless of where a citizen of the
Intervention10 claiming that she has a legal interest in the matter Philippines might be, he or she will be governed by Philippine laws
in litigation because she knows certain information which might with respect to his or her family rights and duties, or to his or her
aid the trial court at a truthful, fair and just adjudication of the status, condition and legal capacity. Hence, if a Filipino regardless
annulment case, which the trial court granted on September 30, of whether he or she was married here or abroad, initiates a
2002. Petitioner’s complaint-in-intervention was also ordered petition abroad to obtain an absolute divorce from spouse and
admitted. eventually becomes successful in getting an absolute divorce
Tristan filed a petition for certiorari and prohibition with the Court decree, the Philippines will not recognize such absolute divorce.20
of Appeals seeking to annul the order dated September 30, 2002 When Tristan and Lily married on May 18, 1968, their marriage was
of the trial court. The Court of Appeals granted the petition and governed by the provisions of the Civil Code21 which took effect on
declared as null and void the September 30, 2002 Order of the August 30, 1950. In the case of Tenchavez v. Escano22 we held:
trial court granting the motion for leave to file intervention and (1) That a foreign divorce between Filipino citizens, sought and
admitting the complaint-in-intervention. decreed after the effectivity of the present Civil Code (Rep. Act
Petitioner’s motion for reconsideration was denied, hence this No. 386), is not entitled to recognition as valid in this jurisdiction;
petition for certiorari and prohibition filed under Rule 65 of the and neither is the marriage contracted with another party by the
Rules of Court. Petitioner contends that the Court of Appeals divorced consort, subsequently to the foreign decree of divorce,
gravely abused its discretion in disregarding her legal interest in entitled to validity in the country. (Emphasis added)
the annulment case between Tristan and Lily. Thus, petitioner’s claim that she is the wife of Tristan even if their
The petition lacks merit. marriage was celebrated abroad lacks merit. Thus, petitioner
Ordinarily, the proper recourse of an aggrieved party from a never acquired the legal interest as a wife upon which her motion
decision of the Court of Appeals is a petition for review on for intervention is based.
certiorari under Rule 45 of the Rules of Court. However, if the error
Since petitioner’s motion for leave to file intervention was bereft of docketed as Civil Case No. SP 4341-95. After trial on the merits,
the indispensable requirement of legal interest, the issuance by the the RTC denied the petition in a decision2 dated November 11, 1997
trial court of the order granting the same and admitting the upon the finding that petitioner "failed to adduce preponderant
complaint-in-intervention was attended with grave abuse of evidence to warrant the grant of the relief he is seeking."3 The
discretion. Consequently, the Court of Appeals correctly set aside appeal filed with the Court of Appeals was likewise dismissed in a
and declared as null and void the said order. resolution4 dated June 11, 1998 for failure of petitioner to pay the
WHEREFORE, the petition is DISMISSED. The assailed Decision docket and other lawful fees within the reglementary period.
dated July 25, 2003 and Resolution dated January 23, 2004 of the After the decision in Civil Case No. SP 4341-95 attained finality,
Court of Appeals in CA-G.R. SP No. 74456 are AFFIRMED. petitioner filed on July 12, 1999 another petition5for declaration of
No pronouncement as to costs. nullity of marriage with the RTC of San Pablo City, this time Page
alleging that his marriage with respondent was null and void due
CASE DIGEST 14: to the fact that it was celebrated without a valid marriage license. | 25
For her part, respondent filed an answer with a motion to
FACTS: dismiss6 dated August 13, 1999, praying for the dismissal of the
petition on the ground of res judicata and forum shopping.
Private respondent Tristan A. Catindig married Lily Gomez In an order7 dated October 8, 1999, the RTC granted respondent’s
Catindig twice on May 16, 1968. The marriage produced four motion to dismiss, the dispositive portion of which reads:
children. Several years later, the couple encountered marital WHEREFORE, for Forum Shopping and Multiplicity of Suits, the
problems that they decided to obtain a divorce from the Motion to Dismiss is GRANTED. This case is DISMISSED.
Dominican Republic. Thus, on April 27, 1984, Tristan and Lily SO ORDERED.8
executed a Special Power of Attorney addressed to the Judge of Petitioner’s motion for reconsideration was also denied in an
the First Civil Court of San Cristobal, Dominican Republic, order9 dated January 21, 2000.
appointing an attorney-in-fact to institute a divorce action under Hence, this petition which alleges, as follows:
its laws. A. IN DISMISSING PETITIONER’S PETITION FOR THE
On July 14, 1984, Tristan married petitioner Elmar O. Perez in the DECLARATION OF HIS MARRIAGE AS NULL AND VOID AB
State of Virginia in the United States and both lived as husband INITIO FOR LACK OF THE REQUISITE MARRIAGE LICENSE
and wife until October 2001. Their union produced one offspring. BECAUSE OF (THE) DISMISSAL OF AN EARLIER PETITION FOR
During their cohabitation, petitioner learned that the divorce DECLARATION OF NULLITY OF THE SAME MARRIAGE ON THE
decree issued by the court in the Dominican Republic which GROUND OF HIS WIFE’S PSYCHOLOGICAL INCAPACITY UNDER
"dissolved" the marriage between Tristan and Lily was not ARTICLE 36 OF THE FAMILY CODE, THE TRIAL COURT HAD
recognized in the Philippines and that her marriage to Tristan was DECIDED A QUESTION OF SUBSTANCE WHICH HAS PROBABLY
deemed void under Philippine law. On August 13, 2001, Tristan NOT HERETOFORE BEEN DETERMINED SQUARELY AND
filed a petition for the declaration of nullity of his marriage to Lily DEFINITIVELY BY THIS COURT, OR HAD DECIDED IT IN A WAY
with the RTC of Quezon City. NOT IN ACCORD WITH LAW.
B. IN DISMISSING PETITIONER’S PETITION FOR THE
ISSUE: DECLARATION OF NULLITY OF HIS MARRIAGE FOR LACK OF
Whether or not Perez has a legal interest in the matter of THE REQUISITE MARRIAGE LICENSE, THE TRIAL COURT HAD
litigation required of a would-be intervenor in Tristan’s petition for CONFUSED, DISTORTED AND MISAPPLIED THE
declaration of nullity of his marriage with his wife? FUNDAMENTAL RULES AND CONCEPTS ON RES JUDICATA,
SPLITTING OF A CAUSE OF ACTION AND FORUM SHOPPING.10
RULING: Petitioner argues that while the relief prayed for in the two cases
No, Perez has no legal interest. When petitioner and Tristan was the same, that is, the declaration of nullity of his marriage to
married on July 14, 1984, Tristan was still lawfully married to Lily. respondent, the cause of action in the earlier case was distinct and
The divorce decree that Tristan and Lily obtained from the separate from the cause of action in the present case because the
Dominican Republic never dissolved the marriage bond between operative facts upon which they were based as well as the
them. It is basic that laws relating to family rights and duties, or to evidence required to sustain either were different. Because there is
the status, condition and legal capacity of persons are binding no identity as to the cause of action, petitioner claims that res
upon citizens of the Philippines, even though living abroad. judicata does not lie to bar the second petition. In this connection,
Regardless of where a citizen of the Philippines might be, he or she petitioner maintains that there was no violation of the rule on
will be governed by Philippine laws with respect to his or her forum shopping or of the rule which proscribes the splitting of a
family rights and duties, or to his or her status, condition and legal cause of action.
capacity. Hence, if a Filipino regardless of whether he or she was On the other hand, respondent, in her comment dated May 26,
married here or abroad initiates a petition abroad to obtain an 2000, counters that while the present suit is anchored on a
absolute divorce from spouse and eventually becomes successful in different ground, it still involves the same issue raised in Civil Case
getting an absolute divorce decree, the Philippines will not No. SP 4341-95, that is, the validity of petitioner and respondent’s
recognize such absolute divorce. Petitioner’s claim that she is the marriage, and prays for the same remedy, that is, the declaration
wife of Tristan even if their marriage was celebrated abroad lacks of nullity of their marriage. Respondent thus contends that
merit. Thus, petitioner never acquired the legal interest as a wife petitioner violated the rule on forum shopping. Moreover,
upon which her motion for intervention is based. respondent asserts that petitioner violated the rule on multiplicity
of suits as the ground he cites in this petition could have been
raised during the trial in Civil Case No. SP 4341-95.
15. G.R. No. 141528 October 31, 2006
The petition lacks merit.
The issue before this Court is one of first impression. Should the
OSCAR P. MALLION, petitioner, matter of the invalidity of a marriage due to the absence of an
vs. essential requisite prescribed by Article 4 of the Family Code be
EDITHA ALCANTARA, respondent. raised in the same proceeding where the marriage is being
impugned on the ground of a party’s psychological incapacity
under Article 36 of the Family Code?
DECISION Petitioner insists that because the action for declaration of nullity
of marriage on the ground of psychological incapacity and the
action for declaration of nullity of marriage on the ground of
AZCUNA, J.: absence of marriage license constitute separate causes of action,
This is a petition for review on certiorari under Rule 45 of the Rules the present case would not fall under the prohibition against
of Court raising a question of law: Does a previous final judgment splitting a single cause of action nor would it be barred by the
denying a petition for declaration of nullity on the ground of principle of res judicata.
psychological incapacity bar a subsequent petition for declaration The contention is untenable.
of nullity on the ground of lack of marriage license? Res judicata is defined as "a matter adjudged; a thing judicially
The facts are not disputed: acted upon or decided; a thing or matter settled by judgment. It
On October 24, 1995, petitioner Oscar P. Mallion filed a also refers to the rule that a final judgment or decree on the merits
petition1 with the Regional Trial Court (RTC), Branch 29, of San by a court of competent jurisdiction is conclusive of the rights of
Pablo City seeking a declaration of nullity of his marriage to the parties or their privies in all later suits on points and matters
respondent Editha Alcantara under Article 36 of Executive Order determined in the former suit."11
No. 209, as amended, otherwise known as the Family Code, citing This doctrine is a rule which pervades every well-regulated system
respondent’s alleged psychological incapacity. The case was of jurisprudence and is founded upon the following precepts of
common law, namely: (1) public policy and necessity, which makes
it to the interest of the State that there should be an end to the marriage had been solemnized and celebrated in accordance
litigation, and (2) the hardship on the individual that he should be with law. Petitioner is now bound by this admission. The alleged
vexed twice for the same cause. A contrary doctrine would subject absence of a marriage license which petitioner raises now could
the public peace and quiet to the will and neglect of individuals have been presented and heard in the earlier case. Suffice it to
and prefer the gratification of the litigious disposition on the part state that parties are bound not only as regards every matter
of suitors to the preservation of the public tranquility and offered and received to sustain or defeat their claims or demand
happiness.12 but as to any other admissible matter which might have been
In this jurisdiction, the concept of res judicata is embodied in offered for that purpose and of all other matters that could have
Section 47 (b) and (c) of Rule 39 of the Rules of Court, thus: been adjudged in that case.18
SEC. 47. Effect of judgments or final orders. — The effect of a It must be emphasized that a party cannot evade or avoid the Page
judgment or final order rendered by a court of the Philippines, application of res judicata by simply varying the form of his action
having jurisdiction to pronounce the judgment or final order, may or adopting a different method of presenting his case. 19 As this | 26
be as follows: Court stated in Perez v. Court of Appeals:20
(a) In case of a judgment or final order against a specific thing or x x x the statement of a different form of liability is not a different
in respect to the probate of a will, or the administration of the cause of action, provided it grows out of the same transaction or
estate of a deceased person, or in respect to the personal, political, act and seeks redress for the wrong. Two actions are not
or legal condition or status of a particular person or his relationship necessarily for different causes of action simply because the theory
to another, the judgment or final order is conclusive upon the title of the second would not have been open under the pleadings in
to the thing, the will or administration, or the condition, status or the first. A party cannot preserve the right to bring a second action
relationship of the person; however, the probate of a will or after the loss of the first merely by having circumscribed and
granting of letters of administration shall only be prima limited theories of recovery opened by the pleadings in the first.
facie evidence of the death of the testator or intestate; It bears stressing that a party cannot divide the grounds for
(b) In other cases, the judgment or final order is, with recovery. A plaintiff is mandated to place in issue in his
respect to the matter directly adjudged or as to any other pleading, all the issues existing when the suit began. A
matter that could have been raised in relation thereto, lawsuit cannot be tried piecemeal. The plaintiff is bound
conclusive between the parties and their successors in to set forth in his first action every ground for relief which
interest by title subsequent to the commencement of the he claims to exist and upon which he relied, and cannot
action or special proceeding, litigating for the same thing be permitted to rely upon them by piecemeal in
and under the same title and in the same capacity; and, successive action to recover for the same wrong or injury.
(c) In any other litigation between the same parties or A party seeking to enforce a claim, legal or equitable,
their successors in interest, that only is deemed to have must present to the court, either by the pleadings or
been adjudged in a former judgment or final order which proofs, or both, on the grounds upon which to expect a
appears upon its face to have been so adjudged, or which judgment in his favor. He is not at liberty to split up his
was actually and necessarily included therein or demands, and prosecute it by piecemeal or present only a
necessary thereto. portion of the grounds upon which a special relief is
The above provision outlines the dual aspect of res sought and leave the rest to the presentment in a second
judicata.13 Section 47 (b) pertains to it in its concept as "bar by suit if the first fails. There would be no end to litigation if
prior judgment" or "estoppel by verdict," which is the effect of a such piecemeal presentation is allowed. (Citations omitted.)
judgment as a bar to the prosecution of a second action upon the In sum, litigants are provided with the options on the course of
same claim, demand or cause of action. On the other hand, action to take in order to obtain judicial relief. Once an option has
Section 47 (c) pertains tores judicata in its concept as been taken and a case is filed in court, the parties must ventilate
"conclusiveness of judgment" or otherwise known as the rule all matters and relevant issues therein. The losing party who files
of auter action pendantwhich ordains that issues actually and another action regarding the same controversy will be needlessly
directly resolved in a former suit cannot again be raised in any squandering time, effort and financial resources because he is
future case between the same parties involving a different barred by law from litigating the same controversy all over
cause of action.14 Res judicata in its concept as a bar by prior again.21
judgment obtains in the present case. Therefore, having expressly and impliedly conceded the validity of
Res judicata in this sense requires the concurrence of the following their marriage celebration, petitioner is now deemed to have
requisites: (1) the former judgment is final; (2) it is rendered by a waived any defects therein. For this reason, the Court finds that
court having jurisdiction over the subject matter and the parties; the present action for declaration of nullity of marriage on the
(3) it is a judgment or an orderon the merits; and (4) there is -- ground of lack of marriage license is barred by the decision dated
between the first and the second actions -- identity of parties, of November 11, 1997 of the RTC, Branch 29, of San Pablo City, in
subject matter, and of causes of action.15 Civil Case No. SP 4341-95.
Petitioner does not dispute the existence of the first three WHEREFORE, the petition is DENIED for lack of merit. Costs
requisites. What is in issue is the presence of the fourth requisite. In against petitioner.
this regard, the test to determine whether the causes of action are
identical is to ascertain whether the same evidence will sustain CASE DIGEST 15:
both actions, or whether there is an identity in the facts essential to
the maintenance of the two actions. If the same facts or evidence Mallion v. Alcantara
would sustain both, the two actions are considered the same, and GR No. 141528October 31, 2006
a judgment in the first case is a bar to the subsequent action.16
Based on this test, petitioner would contend that the two petitions Facts:
brought by him seeking the declaration of nullity of his marriage
are anchored on separate causes of action for the evidence Oscar Mallion filed a petition with the Regional Trial Court seeking
necessary to sustain the first petition which was anchored on the adeclaration of nullity of his marriage with Editha Alcantara due
alleged psychological incapacity of respondent is different from topsychological incapacity. The RTC denied the petition.As the
the evidence necessary to sustain the present petition which is decision attained finality, Mallion filed another petition for
anchored on the purported absence of a marriage license. a declarationof nullity of marriage, this time alleging that his
Petitioner, however, forgets that he is simply invoking different marriage was null and voiddue to the fact that it was celebrated
grounds for the same cause of action. By definition, a cause of without a valid marriage license.
action is the act or omission by which a party violates the right of Issue:
another.17 In both petitions, petitioner has the same cause - the Does a previous final judgment denying a petition for declaration
declaration of nullity of his marriage to respondent. What differs is of nullity
the ground upon which the cause of action is predicated. These onthe ground of psychological incapacity bar a subsequent petitio
grounds cited by petitioner essentially split the various aspects of n fordeclaration of nullity on the ground of lack of marriage
the pivotal issue that holds the key to the resolution of this license?
controversy, that is, the actual status of petitioner and
respondent’s marriage. Held:
Furthermore, the instant case is premised on the claim that the
marriage is null and void because no valid celebration of the same Res judicata applies.
took place due to the alleged lack of a marriage license. In Civil Mallion is simply invoking different grounds for the same cause of
Case No. SP 4341-95, however, petitioner impliedly conceded that actionwhich is the nullity of marriage. When the second case was
filed based onanother ground, there is a splitting of a cause of Let copies of this Decision be furnished the parties, the Office of the
action which is prohibited. Heis estopped from asserting that the Solicitor General, Office of the City Prosecutor, Las Piñas City and
first marriage had no marriage licensebecause in the first case he the Office of the Local Civil Registrar of Las Piñas City, for their
impliedly admitted the same when he did notquestion the information and guidance.
absence of a marriage license. SO ORDERED.4
Petitioner filed a motion for partial reconsideration questioning
16. CASE 2011-0045: the dissolution of the absolute community of property and the
ruling that the decree of annulment shall only be issued upon
ALAIN M. DIÑO VS. MA. CARIDAD L. DIÑO compliance with Articles 50 and 51 of the Family Code.
In its 12 March 2007 Order, the trial court partially granted the Page
(G.R. NO. 178044, 19 JANUARY 2011, CARPIO, J.) SUBJECT: motion and modified its 18 October 2006 Decision as follows:
ANNULMENT OF MARRIAGE CAN BE DONE EVEN PRIOR TO WHEREFORE, in view of the foregoing, judgment is hereby | 27
DISSOLUTION OF CONJUGAL PROPERTIES. (BRIEF SUBJECT: rendered:
DINO VS. DINO). 1) Declaring the marriage between plaintiff ALAIN M. DIÑO and
defendant MA. CARIDAD L. DIÑO on January 14, 1998, and all its
DE C I S I O N effects under the law, as NULL and VOID from the beginning; and
2) Dissolving the regime of absolute community of property.
CARPIO, J.:
A DECREE OF ABSOLUTE NULLITY OF MARRIAGE shall be issued
The Case after liquidation, partition and distribution of the parties’
Before the Court is a petition for review1 assailing the 18 October properties under Article 147 of the Family Code.
2006 Decision2 and the 12 March 2007 Order3 of the Regional Trial Let copies of this Order be furnished the parties, the Office of the
Court of Las Piñas City, Branch 254 (trial court) in Civil Case No. Solicitor General, the Office of the City Prosecutor of Las Piñas City
LP-01-0149. and the Local Civil Registrar of Las Piñas City, for their
The Antecedent Facts information and guidance.5
Alain M. Diño (petitioner) and Ma. Caridad L. Diño (respondent) Hence, the petition before this Court.
were childhood friends and sweethearts. They started living The Issue
together in 1984 until they decided to separate in 1994. In 1996, The sole issue in this case is whether the trial court erred when it
petitioner and respondent decided to live together again. On 14 ordered that a decree of absolute nullity of marriage shall only be
January 1998, they were married before Mayor Vergel Aguilar of issued after liquidation, partition, and distribution of the parties’
Las Piñas City. properties under Article 147 of the Family Code.
On 30 May 2001, petitioner filed an action for Declaration of The Ruling of this Court
Nullity of Marriage against respondent, citing psychological The petition has merit.
incapacity under Article 36 of the Family Code. Petitioner alleged Petitioner assails the ruling of the trial court ordering that a decree
that respondent failed in her marital obligation to give love and of absolute nullity of marriage shall only be issued after
support to him, and had abandoned her responsibility to the liquidation, partition, and distribution of the parties’ properties
family, choosing instead to go on shopping sprees and gallivanting under Article 147 of the Family Code. Petitioner argues that
with her friends that depleted the family assets. Petitioner further Section 19(1) of the Rule on Declaration of Absolute Nullity of Null
alleged that respondent was not faithful, and would at times Marriages and Annulment of Voidable Marriages6 (the Rule) does
become violent and hurt him. not apply to Article 147 of the Family Code.
Extrajudicial service of summons was effected upon respondent We agree with petitioner.
who, at the time of the filing of the petition, was already living in The Court has ruled in Valdes v. RTC, Branch 102, Quezon
the United States of America. Despite receipt of the summons, City that in a void marriage, regardless of its cause, the property
respondent did not file an answer to the petition within the relations of the parties during the period of cohabitation is
reglementary period. Petitioner later learned that respondent governed either by Article 147 or Article 148 of the Family
filed a petition for divorce/dissolution of her marriage with Code.7 Article 147 of the Family Code applies to union of parties
petitioner, which was granted by the Superior Court of California who are legally capacitated and not barred by any impediment
on 25 May 2001. Petitioner also learned that on 5 October 2001, to contract marriage, but whose marriage is nonetheless
respondent married a certain Manuel V. Alcantara. void,8 such as petitioner and respondent in the case before the
On 30 April 2002, the Office of the Las Piñas prosecutor found Court.
that there were no indicative facts of collusion between the parties Article 147 of the Family Code provides:
and the case was set for trial on the merits. Article 147. When a man and a woman who are capacitated to
Dr. Nedy L. Tayag (Dr. Tayag), a clinical psychologist, submitted a marry each other, live exclusively with each other as husband and
psychological report establishing that respondent was suffering wife without the benefit of marriage or under a void marriage,
from Narcissistic Personality Disorder which was deeply ingrained their wages and salaries shall be owned by them in equal shares
in her system since her early formative years. Dr. Tayag found that and the property acquired by both of them through their work or
respondent’s disorder was long-lasting and by nature, incurable. industry shall be governed by the rules on co-ownership.
In its 18 October 2006 Decision, the trial court granted the petition In the absence of proof to the contrary, properties acquired while
on the ground that respondent was psychologically incapacited to they lived together shall be presumed to have been obtained by
comply with the essential marital obligations at the time of the their joint efforts, work or industry, and shall be owned by them in
celebration of the marriage. equal shares. For purposes of this Article, a party who did not
The Decision of the Trial Court participate in the acquisition by the other party of any property
The trial court ruled that based on the evidence presented, shall be deemed to have contributed jointly in the acquisition
petitioner was able to establish respondent’s psychological thereof if the former’s efforts consisted in the care and
incapacity. The trial court ruled that even without Dr. Tayag’s maintenance of the family and of the household.
psychological report, the allegations in the complaint, Neither party can encumber or dispose by acts inter vivos of his or
substantiated in the witness stand, clearly made out a case of her share in the property acquired during cohabitation and
psychological incapacity against respondent. The trial court found owned in common, without the consent of the other, until after
that respondent committed acts which hurt and embarrassed the termination of their cohabitation.
petitioner and the rest of the family, and that respondent failed to When only one of the parties to a void marriage is in good faith,
observe mutual love, respect and fidelity required of her under the share of the party in bad faith in the co-ownership shall be
Article 68 of the Family Code. The trial court also ruled that forfeited in favor of their common children. In case of default of or
respondent abandoned petitioner when she obtained a divorce waiver by any or all of the common children or their descendants,
abroad and married another man. each vacant share shall belong to the respective surviving
The dispositive portion of the trial court’s decision reads: descendants. In the absence of descendants, such share shall
WHEREFORE, in view of the foregoing, judgment is hereby belong to the innocent party. In all cases, the forfeiture shall take
rendered: place upon termination of the cohabitation.
1. Declaring the marriage between plaintiff ALAIN M. DIÑO For Article 147 of the Family Code to apply, the following elements
and defendant MA. CARIDAD L. DIÑO on January 14, 1998, and all must be present:
its effects under the law, as NULL and VOID from the beginning; 1. The man and the woman must be capacitated to marry each
and other;
2. Dissolving the regime of absolute community of property. 2. They live exclusively with each other as husband and wife;
A DECREE OF ABSOLUTE NULLITY OF MARRIAGE shall only be and
issued upon compliance with Article[s] 50 and 51 of the Family 3. Their union is without the benefit of marriage, or their
Code. marriage is void.9
All these elements are present in this case and there is no question governed either by Article 147 or Article 148 of the Family
that Article 147 of the Family Code applies to the property Code.16 The rules on co-ownership apply and the properties of the
relations between petitioner and respondent. spouses should be liquidated in accordance with the Civil Code
We agree with petitioner that the trial court erred in ordering that provisions on co-ownership. Under Article 496 of the Civil Code,
a decree of absolute nullity of marriage shall be issued only after ―[p]artition may be made by agreement between the parties or
liquidation, partition and distribution of the parties’ properties by judicial proceedings. x x x.‖ It is not necessary to liquidate the
under Article 147 of the Family Code. The ruling has no basis properties of the spouses in the same proceeding for declaration of
because Section 19(1) of the Rule does not apply to cases governed nullity of marriage.
under Articles 147 and 148 of the Family Code. Section 19(1) of the WHEREFORE, we AFFIRM the Decision of the trial court with
Rule provides: the MODIFICATION that the decree of absolute nullity of the Page
Sec. 19. Decision. – (1) If the court renders a decision granting the marriage shall be issued upon finality of the trial court’s decision
petition, it shall declare therein that the decree of absolute nullity without waiting for the liquidation, partition, and distribution of | 28
or decree of annulment shall be issued by the court only after the parties’ properties under Article 147 of the Family Code.
compliance with Articles 50 and 51 of the Family Code as
implemented under the Rule on Liquidation, Partition and CASE DIGEST 16:
Distribution of Properties. DINO vs. DINO
The pertinent provisions of the Family Code cited in Section 19(1) of
the Rule are: Facts:
Article 50. The effects provided for in paragraphs (2), (3), (4) and - On 14 January 1998, Alain M. Diño (petitioner) and Ma. Caridad
(5) of Article 43 and in Article 44 shall also apply in proper cases to L. Diño (respondent) got married.
marriages which are declared void ab initio or annulled by final - On 30 May 2001, petitioner filed an action for Declaration of
judgment under Articles 40 and 45.10 Nullity of Marriage against respondent,citing psychological
The final judgment in such cases shall provide for the liquidation, incapacity under Article 36 of the Family Code.
partition and distribution of the properties of the spouses, the - Petitioner alleged that respondent failed in her marital
custody and support of the common children, and the delivery of obligation to give love and support to him,and had abandoned
their presumptive legitimes, unless such matters had been her responsibility to the family, choosing instead to go on shopping
adjudicated in previous judicial proceedings. sprees andgallivanting with her friends that depleted the family
All creditors of the spouses as well as of the absolute community of asset
the conjugal partnership shall be notified of the proceedings for - Petitioner further alleged that respondent was not faithful, and
liquidation. would at times become violent andhurt him.
In the partition, the conjugal dwelling and the lot on which it is - The trial court ruled that petitioner was able to establish
situated, shall be adjudicated in accordance with the provisions of
respondent s psychological incapacity.
Articles 102 and 129.
Article 51. In said partition, the value of the presumptive legitimes In short, their marriage was declared void ab initio under Article
of all common children, computed as of the date of the final 36 of the Family Code.
judgment of the trial court, shall be delivered in cash, property or
sound securities, unless the parties, by mutual agreement judicially Issue:
approved, had already provided for such matters. Whether or not the property relations of the parties should fall
The children of their guardian, or the trustee of their property, under 147 of the Family Code.
may ask for the enforcement of the judgment.
The delivery of the presumptive legitimes herein prescribed shall in Held:
no way prejudice the ultimate successional rights of the children Yes.
accruing upon the death of either or both of the parents; but the The property relations of the parties during the period of
value of the properties already received under the decree of cohabitation is governed either byArticle 147 or Article 148 of the
annulment or absolute nullity shall be considered as advances on Family Code.
their legitime.
It is clear from Article 50 of the Family Code that Section 19(1) of Article 147 of the Family Code applies to union of parties who are
the Rule applies only to marriages which are declared legally capacitated and not barred by any impediment to
void ab initio or annulled by final judgment under Articles 40 contract marriage, butwhose marriage is nonetheless void, such as
petitioner and respondent in the case before the Court.
and 45 of the Family Code. In short, Article 50 of the Family
Code does not apply to marriages which are declared Article 147. When a man and a woman who are capacitated to
void ab initio under Article 36 of the Family Code, which should be marry each other, live exclusively with each other as husband and
declared void without waiting for the liquidation of the properties wife without the benefit of marriage or under a void
of the parties. marriage,their wages and salaries shall be owned by them in
Article 40 of the Family Code contemplates a situation where a equal shares and the property acquired by both of them through
second or bigamous marriage was contracted. Under Article 40, their work or industry shall be governed by the rules on co-
―[t]he absolute nullity of a previous marriage may be invoked for ownership.In the absence of proof to the contrary, properties
purposes of remarriage on the basis solely of a final judgment acquired while they lived together shall be presumed to have
declaring such previous marriage void.‖ Thus we ruled: been obtained by their joint efforts, work or industry, and shall be
x x x where the absolute nullity of a previous marriage is sought to owned by them in equal shares. For purposes of this Article, a
be invoked for purposes of contracting a second marriage, the sole party who did not participate in theacquisition by the other party
basis acceptable in law, for said projected marriage to be free of any property shall be deemed to have contributed jointly in
from legal infirmity, is a final judgment declaring a previous theacquisition thereof if the former s efforts consisted in the care
marriage void.11
Article 45 of the Family Code, on the other hand, refers to and maintenance of the family and of the household.Neither
party can encumber or dispose by acts inter vivos of his or her
voidable marriages, meaning, marriages which are valid until they
are set aside by final judgment of a competent court in an action share in the property acquired during cohabitation and owned in
common, without the consent of the other, until after the
for annulment.12 In both instances under Articles 40 and 45, the
marriages are governed either by absolute community of termination of their cohabitation.
property13 or conjugal partnership of gains14 unless the parties In this case, petitioner s marriage to respondent was declared
agree to a complete separation of property in a marriage void under Article 36 of the FamilyCode and not under Article 40
settlement entered into before the marriage. Since the property or 45.
relations of the parties is governed by absolute community of Thus, what governs the liquidation of properties owned incommon
property or conjugal partnership of gains, there is a need to by petitioner and respondent are the rules on co-ownership.
liquidate, partition and distribute the properties before a decree
of annulment could be issued. That is not the case for annulment 17. [G.R. No. 145226. February 06, 2004]
of marriage under Article 36 of the Family Code because the
marriage is governed by the ordinary rules on co-ownership. LUCIO MORIGO y CACHO, petitioner, vs. PEOPLE OF THE
In this case, petitioner’s marriage to respondent was declared void PHILIPPINES, respondent.
under Article 3615 of the Family Code and not under Article 40 or DECISION
45. Thus, what governs the liquidation of properties owned in QUISUMBING, J.:
common by petitioner and respondent are the rules on co- This petition for review on certiorari seeks to reverse the
ownership. In Valdes, the Court ruled that the property relations of decision[1] dated October 21, 1999 of the Court of Appeals in CA-
parties in a void marriage during the period of cohabitation is G.R. CR No. 20700, which affirmed the judgment[2] dated August
5, 1996 of the Regional Trial Court (RTC) of Bohol, Branch 4, in actually took place. No appeal was taken from this decision,
Criminal Case No. 8688. The trial court found herein petitioner which then became final and executory.
Lucio Morigo y Cacho guilty beyond reasonable doubt of bigamy On October 21, 1999, the appellate court decided CA-G.R. CR No.
and sentenced him to a prison term of seven (7) months of prision 20700 as follows:
correccional as minimum to six (6) years and one (1) day of prision WHEREFORE, finding no error in the appealed decision, the same
mayor as maximum. Also assailed in this petition is the is hereby AFFIRMED in toto.
resolution[3] of the appellate court, dated September 25, 2000, SO ORDERED.[11]
denying Morigo’s motion for reconsideration. In affirming the assailed judgment of conviction, the appellate
The facts of this case, as found by the court a quo, are as follows: court stressed that the subsequent declaration of nullity of Lucio’s
Appellant Lucio Morigo and Lucia Barrete were boardmates at marriage to Lucia in Civil Case No. 6020 could not acquit Lucio. Page
the house of Catalina Tortor at Tagbilaran City, Province of Bohol, The reason is that what is sought to be punished by Article
for a period of four (4) years (from 1974-1978). 349[12] of the Revised Penal Code is the act of contracting a second | 29
After school year 1977-78, Lucio Morigo and Lucia Barrete lost marriage before the first marriage had been dissolved. Hence, the
contact with each other. CA held, the fact that the first marriage was void from the
In 1984, Lucio Morigo was surprised to receive a card from Lucia beginning is not a valid defense in a bigamy case.
Barrete from Singapore. The former replied and after an The Court of Appeals also pointed out that the divorce decree
exchange of letters, they became sweethearts. obtained by Lucia from the Canadian court could not be
In 1986, Lucia returned to the Philippines but left again for accorded validity in the Philippines, pursuant to Article 15 [13] of the
Canada to work there. While in Canada, they maintained Civil Code and given the fact that it is contrary to public policy in
constant communication. this jurisdiction. Under Article 17[14] of the Civil Code, a declaration
In 1990, Lucia came back to the Philippines and proposed to of public policy cannot be rendered ineffectual by a judgment
petition appellant to join her in Canada. Both agreed to get promulgated in a foreign jurisdiction.
married, thus they were married on August 30, 1990 at the Iglesia Petitioner moved for reconsideration of the appellate court’s
de Filipina Nacional at Catagdaan, Pilar, Bohol. decision, contending that the doctrine in Mendiola v.
On September 8, 1990, Lucia reported back to her work in People,[15] allows mistake upon a difficult question of law (such as
Canada leaving appellant Lucio behind. the effect of a foreign divorce decree) to be a basis for good faith.
On August 19, 1991, Lucia filed with the Ontario Court (General On September 25, 2000, the appellate court denied the motion
Division) a petition for divorce against appellant which was for lack of merit.[16] However, the denial was by a split vote.
granted by the court on January 17, 1992 and to take effect on The ponente of the appellate court’s original decision in CA-G.R.
February 17, 1992. CR No. 20700, Justice Eugenio S. Labitoria, joined in the opinion
On October 4, 1992, appellant Lucio Morigo married Maria prepared by Justice Bernardo P. Abesamis. The dissent observed
Jececha Lumbago[4] at the Virgen sa Barangay Parish, Tagbilaran that as the first marriage was validly declared void ab initio, then
City, Bohol. there was no first marriage to speak of. Since the date of the
On September 21, 1993, accused filed a complaint for judicial nullity retroacts to the date of the first marriage and since herein
declaration of nullity of marriage in the Regional Trial Court of petitioner was, in the eyes of the law, never married, he cannot be
Bohol, docketed as Civil Case No. 6020. The complaint seek ( sic) convicted beyond reasonable doubt of bigamy.
among others, the declaration of nullity of accused’s marriage The present petition raises the following issues for our resolution:
with Lucia, on the ground that no marriage ceremony actually A.
took place. WHETHER OR NOT THE COURT OF APPEALS ERRED IN
On October 19, 1993, appellant was charged with Bigamy in an FAILING TO APPLY THE RULE THAT IN CRIMES PENALIZED
Information[5] filed by the City Prosecutor of Tagbilaran [City], UNDER THE REVISED PENAL CODE, CRIMINAL INTENT IS AN
with the Regional Trial Court of Bohol.[6] INDISPENSABLE REQUISITE. COROLLARILY, WHETHER OR NOT
The petitioner moved for suspension of the arraignment on the THE COURT OF APPEALS ERRED IN FAILING TO APPRECIATE
ground that the civil case for judicial nullification of his marriage [THE] PETITIONER’S LACK OF CRIMINAL INTENT WHEN HE
with Lucia posed a prejudicial question in the bigamy case. His CONTRACTED THE SECOND MARRIAGE.
motion was granted, but subsequently denied upon motion for B.
reconsideration by the prosecution. When arraigned in the bigamy WHETHER OR NOT THE COURT OF APPEALS ERRED IN
case, which was docketed as Criminal Case No. 8688, herein HOLDING THAT THE RULING IN PEOPLE VS. BITDU (58 PHIL.
petitioner pleaded not guilty to the charge. Trial thereafter 817) IS APPLICABLE TO THE CASE AT BAR.
ensued. C.
On August 5, 1996, the RTC of Bohol handed down its judgment in WHETHER OR NOT THE COURT OF APPEALS ERRED IN
Criminal Case No. 8688, as follows: FAILING TO APPLY THE RULE THAT EACH AND EVERY
WHEREFORE, foregoing premises considered, the Court finds CIRCUMSTANCE FAVORING THE INNOCENCE OF THE
accused Lucio Morigo y Cacho guilty beyond reasonable doubt of ACCUSED MUST BE TAKEN INTO ACCOUNT.[17]
the crime of Bigamy and sentences him to suffer the penalty of To our mind, the primordial issue should be whether or not
imprisonment ranging from Seven (7) Months of Prision petitioner committed bigamy and if so, whether his defense of
Correccional as minimum to Six (6) Years and One (1) Day good faith is valid.
ofPrision Mayor as maximum. The petitioner submits that he should not be faulted for relying in
SO ORDERED.[7] good faith upon the divorce decree of the Ontario court. He
In convicting herein petitioner, the trial court discounted highlights the fact that he contracted the second marriage openly
petitioner’s claim that his first marriage to Lucia was null and and publicly, which a person intent upon bigamy would not be
void ab initio. Following Domingo v. Court of Appeals,[8] the trial doing. The petitioner further argues that his lack of criminal intent
court ruled that want of a valid marriage ceremony is not a is material to a conviction or acquittal in the instant case. The
defense in a charge of bigamy. The parties to a marriage should crime of bigamy, just like other felonies punished under the
not be allowed to assume that their marriage is void even if such Revised Penal Code, is mala in se, and hence, good faith and lack
be the fact but must first secure a judicial declaration of the nullity of criminal intent are allowed as a complete defense. He stresses
of their marriage before they can be allowed to marry again. that there is a difference between the intent to commit the crime
Anent the Canadian divorce obtained by Lucia, the trial court and the intent to perpetrate the act. Hence, it does not necessarily
cited Ramirez v. Gmur,[9] which held that the court of a country in follow that his intention to contract a second marriage is
which neither of the spouses is domiciled and in which one or both tantamount to an intent to commit bigamy.
spouses may resort merely for the purpose of obtaining a divorce, For the respondent, the Office of the Solicitor General (OSG)
has no jurisdiction to determine the matrimonial status of the submits that good faith in the instant case is a convenient but
parties. As such, a divorce granted by said court is not entitled to flimsy excuse. The Solicitor General relies upon our ruling
recognition anywhere. Debunking Lucio’s defense of good faith in in Marbella-Bobis v. Bobis,[18] which held that bigamy can be
contracting the second marriage, the trial court stressed that successfully prosecuted provided all the elements concur, stressing
following People v. Bitdu,[10] everyone is presumed to know the that under Article 40[19] of the Family Code, a judicial declaration
law, and the fact that one does not know that his act constitutes a of nullity is a must before a party may re-marry. Whether or not
violation of the law does not exempt him from the consequences the petitioner was aware of said Article 40 is of no account as
thereof. everyone is presumed to know the law. The OSG counters that
Seasonably, petitioner filed an appeal with the Court of Appeals, petitioner’s contention that he was in good faith because he relied
docketed as CA-G.R. CR No. 20700. on the divorce decree of the Ontario court is negated by his act of
Meanwhile, on October 23, 1997, or while CA-G.R. CR No. 20700 filing Civil Case No. 6020, seeking a judicial declaration of nullity
was pending before the appellate court, the trial court rendered a of his marriage to Lucia.
decision in Civil Case No. 6020 declaring the marriage between Before we delve into petitioner’s defense of good faith and lack of
Lucio and Lucia void ab initio since no marriage ceremony criminal intent, we must first determine whether all the elements
of bigamy are present in this case. In Marbella-Bobis v. G.R. CR No. 20700, as well as the resolution of the appellate court
Bobis,[20] we laid down the elements of bigamy thus: dated September 25, 2000, denying herein petitioner’s motion for
(1) the offender has been legally married; reconsideration, is REVERSED and SET ASIDE. The petitioner
(2) the first marriage has not been legally dissolved, or in case his Lucio Morigo y Cacho is ACQUITTED from the charge of BIGAMY
or her spouse is absent, the absent spouse has not been judicially on the ground that his guilt has not been proven with moral
declared presumptively dead; certainty.
(3) he contracts a subsequent marriage; and
(4) the subsequent marriage would have been valid had it not CASE DIDEST 17:
been for the existence of the first.
Applying the foregoing test to the instant case, we note that Morigo vs. People Page
during the pendency of CA-G.R. CR No. 20700, the RTC of Bohol GR No. 145226, February 6, 2004
Branch 1, handed down the following decision in Civil Case No. | 30
6020, to wit: FACTS:
WHEREFORE, premises considered, judgment is hereby rendered
decreeing the annulment of the marriage entered into by
petitioner Lucio Morigo and Lucia Barrete on August 23, 1990 in Lucio Morigo and Lucia Barrete were boardmates in Bohol. They
Pilar, Bohol and further directing the Local Civil Registrar of Pilar, lost contacts for a while but after receiving a card from Barrete
Bohol to effect the cancellation of the marriage contract. and various exchanges of letters, they became sweethearts. They
SO ORDERED.[21] got married in 1990. Barrete went back to Canada for work and
The trial court found that there was no actual marriage ceremony in 1991 she filed petition for divorce in Ontario Canada, which was
performed between Lucio and Lucia by a solemnizing officer. granted. In 1992, Morigo married Lumbago. He subsequently
Instead, what transpired was a mere signing of the marriage filed a complaint for judicial declaration of nullity on the ground
contract by the two, without the presence of a solemnizing officer. that there was no marriage ceremony. Morigo was then charged
The trial court thus held that the marriage is void ab initio, in with bigamy and moved for a suspension of arraignment since the
accordance with Articles 3[22] and 4[23] of the Family Code. As the civil case pending posed a prejudicial question in the bigamy case.
dissenting opinion in CA-G.R. CR No. 20700, correctly puts it, ―This Morigo pleaded not guilty claiming that his marriage with Barrete
simply means that there was no marriage to begin with; and that was void ab initio. Petitioner contented he contracted second
such declaration of nullity retroacts to the date of the first marriage in good faith.
marriage. In other words, for all intents and purposes, reckoned
from the date of the declaration of the first marriage as void ab ISSUE: Whether Morigo must have filed declaration for the nullity
initio to the date of the celebration of the first marriage, the of his marriage with Barrete before his second marriage in order
accused was, under the eyes of the law, never married.‖[24] The to be free from the bigamy case.
records show that no appeal was taken from the decision of the
trial court in Civil Case No. 6020, hence, the decision had long HELD:
become final and executory.
The first element of bigamy as a crime requires that the accused Morigo’s marriage with Barrete is void ab initio considering that
must have been legally married. But in this case, legally speaking, there was no actual marriage ceremony performed between them
the petitioner was never married to Lucia Barrete. Thus, there is by a solemnizing officer instead they just merely signed a marriage
no first marriage to speak of. Under the principle of retroactivity contract. The petitioner does not need to file declaration of the
of a marriage being declared void ab initio, the two were never nullity of his marriage when he contracted his second marriage
married ―from the beginning.‖ The contract of marriage is null; it with Lumbago. Hence, he did not commit bigamy and is
bears no legal effect. Taking this argument to its logical acquitted in the case filed.
conclusion, for legal purposes, petitioner was not married to Lucia
at the time he contracted the marriage with Maria Jececha. The
existence and the validity of the first marriage being an essential
element of the crime of bigamy, it is but logical that a conviction
for said offense cannot be sustained where there is no first
marriage to speak of. The petitioner, must, perforce be acquitted
of the instant charge.
The present case is analogous to, but must be distinguished
from Mercado v. Tan.[25] In the latter case, the judicial declaration
of nullity of the first marriage was likewise obtained after the
second marriage was already celebrated. We held therein that:
A judicial declaration of nullity of a previous marriage is necessary
before a subsequent one can be legally contracted. One who
enters into a subsequent marriage without first obtaining such
judicial declaration is guilty of bigamy. This principle applies even
if the earlier union is characterized by statutes as ―void.‖[26]
It bears stressing though that in Mercado, the first marriage was
actually solemnized not just once, but twice: first before a judge
where a marriage certificate was duly issued and then again six
months later before a priest in religious rites. Ostensibly, at least,
the first marriage appeared to have transpired, although later
declared void ab initio.
In the instant case, however, no marriage ceremony at all was
performed by a duly authorized solemnizing officer. Petitioner
and Lucia Barrete merely signed a marriage contract on their
own. The mere private act of signing a marriage contract bears no
semblance to a valid marriage and thus, needs no judicial
declaration of nullity. Such act alone, without more, cannot be
deemed to constitute an ostensibly valid marriage for which
petitioner might be held liable for bigamy unless he first secures a
judicial declaration of nullity before he contracts a subsequent
marriage.
The law abhors an injustice and the Court is mandated to liberally
construe a penal statute in favor of an accused and weigh every
circumstance in favor of the presumption of innocence to ensure
that justice is done. Under the circumstances of the present case,
we held that petitioner has not committed bigamy. Further, we
also find that we need not tarry on the issue of the validity of his
defense of good faith or lack of criminal intent, which is now moot
and academic.
WHEREFORE, the instant petition is GRANTED. The assailed
decision, dated October 21, 1999 of the Court of Appeals in CA-