SECOND DIVISION

G.R. No. 167139 : February 25, 2010

SUSIE CHAN-TAN, Petitioner, vs. JESSE C. TAN, Respondent. 

 

D E C I S I O N

CARPIO, J.:

 

The Case

This is a petition for review[1] cralaw of (i) the 17 May 2004 Resolution[2] cralaw amending the 30 March 2004 Decision[3] cralaw and (ii) the 15 February 2005 Resolution[4] cralaw of the RegionalTrial Court of Quezon City, Branch 107, in Civil Case No. Q-01-45743. In its 30 March 2004 Decision, the trial court declared the marriage between petitioner Susie Chan-Tan and respondent Jesse Tan void under Article 36 of the Family Code. Incorporated as part of the decision was the 31 July 2003 Partial Judgment[5] cralaw approving the Compromise Agreement[6] cralaw of the parties. In its 17 May 2004 Resolution, the trial court granted to respondent custody of the children, ordered petitioner to turn over to respondent documents and titles in the latters name, and allowed respondent to stay in the family dwelling. In its 15 February 2005 Resolution, the trial court denied petitioners motion for reconsideration of the 28 December 2004 Resolution[7] cralaw denying petitioners motion to dismiss and motion for reconsideration of the 12 October 2004 Resolution,[8] cralaw which in turn denied for late filing petitioner's motion for reconsideration of the 17 May 2004 resolution.

The Facts

Petitioner and respondent were married in June of 1989 at Manila Cathedral in Intramuros, Manila.[9] cralaw They were blessed with two sons: Justin, who was born in Canada in 1990 and Russel, who was born in the Philippines in 1993.[10] cralaw

In 2001, twelve years into the marriage, petitioner filed a case for the annulment of the marriage under Article 36 of the Family Code. The parties submitted to the court a compromise agreement, which we quote in full:

1.      The herein parties mutually agreed that the two (2) lots located at Corinthian Hills, Quezon City and more particularly described in the Contract to Sell, marked in open court as Exhibits H to H-3 shall be considered as part of the presumptive legitimes of their two (2) minor children namely, Justin Tan born on October 12, 1990 and Russel Tan born on November 28, 1993. Copies of the Contract to Sell are hereto attached as Annexes A and B and made integral parts hereof.

2.      Susie Tan hereby voluntarily agrees to exclusively shoulder and pay out of her own funds/assets whatever is the remaining balance or unpaid amounts on said lots mentioned in paragraph 1 hereof directly with Megaworld Properties, Inc., until the whole purchase or contract amounts are fully paid.

Susie Tan is hereby authorized and empowered to directly negotiate, transact, pay and deal with the seller/developer Megaworld Properties, Inc., in connection with the Contract to Sell marked as Annexes A and B hereof.

The property coveredby CCT No. 3754 of the Registry of Deeds of Quezon City and located at Unit O, Richmore Town Homes 12-B Mariposa St., Quezon City shall be placed in co-ownership under the name of Susie Tan (1/3), Justin Tan (1/3) and Russel Tan (1/3) to the exclusion of Jesse Tan.

The property covered by TCT No. 48137 of the Registry of Deeds of Quezon City and located at View Master Town Homes, 1387 Quezon Avenue, Quezon City shall be exclusively owned by Jesse Tan to the exclusion of Susie Tan.

The undivided interest in the Condominium Unit in Cityland Shaw. Jesse Tan shall exclusively own blvd. to the exclusion of Susie Tan.

The shares of stocks, bank accounts and other properties presently under the respective names of Jesse Tan and Susie Tan shall be exclusively owned by the spouse whose name appears as the registered/account owner or holder in the corporate records/stock transfer books, passbooks and/or the one in possession thereof, including the dividends/fruits thereof, to the exclusion of the other spouse.

Otherwise stated, all shares, bank accounts and properties registered and under the name and/or in the possession of Jesse Tan shall be exclusively owned by him only and all shares, accounts and properties registered and/or in the possession and under the name of Susie Tan shall be exclusively owned by her only.

However, as to the family corporations of Susie Tan, Jesse Tan shall execute any and all documents transferring the shares of stocks registered in his name in favor of Susie Tan, or Justin Tan/Russel Tan. A copy of the list of the corporation owned by the family of Susie Tan is hereto attached as Annex C and made an integral part hereof.

The parties shall voluntarily and without need of demand turn over to the other spouse any and all original documents, papers, titles, contracts registered in the name of the other spouse that are in their respective possessions and/or safekeeping.

3.      Thereafter and upon approval of this Compromise Agreement by the Honorable Court, the existing property regime of the spouses shall be dissolved and shall now be governed by Complete Separation of Property. Parties expressly represent that there are no known creditors that will be prejudiced by the present compromise agreement.

The parties shall have joint custody of their minor children. However, the two (2) minor children shall stay with their mother, Susie Tan at 12-B Mariposa St., Quezon City.

The husband, Jesse Tan, shall have the right to bring out the two (2) children every Sunday of each month from 8:00 AM to 9:00 PM. The minor children shall be returned to 12-B Mariposa Street, Quezon City on or before 9:00 PM of every Sunday of each month.

The husband shall also have the right to pick up the two (2) minor children in school/or in the house every Thursday of each month. The husband shall ensure that the children be home by 8:00 PM of said Thursdays.

During the summer vacation/semestral break or Christmas vacation of the children, the parties shall discuss the proper arrangement to be made regarding the stay of the children with Jesse Tan.

Neither party shall put any obstacle in the way of the maintenance of the love and affection between the children and the other party, or in the way of a reasonable and proper companionship between them, either by influencing the children against the other, or otherwise; nor shall they do anything to estrange any of them from the other.

The parties agreed to observe civility, courteousness and politeness in dealing with each other and shall not insult, malign or commit discourteous acts against each other and shall endeavor to cause their other relatives to act similarly.

4.      Likewise, the husband shall have the right to bring out and see the children on the following additional dates, provided that the same will not impede or disrupt their academic schedule in Xavier School, the dates are as follows:

a. Birthday of Jesse Tan

b. Birthday of Grandfather and Grandmother, first cousins and uncles and aunties

c. Father's Day

d. Death Anniversaries of immediate members of the family of Jesse Tan

e. During the Christmas seasons/vacation the herein parties will agree on such dates as when the children can stay with their father. Provided that if the children stay with their father on Christmas Day from December 24thto December 25thuntil 1:00 PM the children will stay with their mother on December 31 until January 1, 1:00 PM, or vice versa.

The husband shall always be notified of all school activities of the children and shall see to it that he will exert his best effort to attend the same.

5.      During the birthdays of the two (2) minor children, the parties shallas far as practicable have one celebration.

Provided that if the same is not possible, the Husband (Jesse Tan) shall have the right to see and bring out the children for at least four (4) hours during the day or the day immediately following/or after the birthday, if said visit or birthday coincides with the school day.

6.      The existing Educational Plans of the two children shall be used and utilized for their High School and College education, in the event that the Educational Plans are insufficient to cover their tuition, the Husband shall shoulder the tuition and other miscellaneous fees, costs of books and educational materials, uniform, school bags, shoes and similar expenses like summer workshops which are taken in Xavier School, which will be paid directly by Jesse Tan to the children's school when the same fall due. Jesse Tan, if necessary, shall pay tutorial expenses, directly to the tutor concerned.

The husband further undertake to pay P10,000.00/monthly support pendente lite to be deposited in the ATM Account of SUSIE CHAN with account no. 3-189-53867-8 Boni Serrano Branch effective on the 15thof each month. In addition Jesse Tan undertakes to give directly to his two (2) sons every Sunday, the amount needed and necessary for the purpose of the daily meals of the two (2) children in school.

7.      This Compromise Agreement is not against the law, customs, public policy,public order and good morals. Parties hereby voluntarily agree and bind themselves to execute and sign any and all documents to give effect to this Compromise Agreement.[11] cralaw

On 31 July 2003, the trial court issued a partial judgment[12] cralaw approving the compromise agreement. On 30 March 2004, the trial court rendered a decision declaring the marriage void under Article 36 of the Family Code on the ground of mutual psychological incapacity of the parties. The trial court incorporated in its decision the compromise agreement of the parties on the issues of support, custody, visitation of the children, and property relations.

Meanwhile, petitioner cancelled the offer to purchase the Corinthian Hills Subdivision Lot No. 12, Block 2. She authorized Megaworld Corp. to allocate the amount of P11,992,968.32 so far paid on the said lot in the following manner:

(a) P3,656,250.04 shall be transferred to fully pay the other lot in Corinthian Hills on Lot 11, Block 2;

(b) P7,783,297.56 shall be transferred to fully pay the contract price in Unit 9H of the 8 Wack Wack Road Condominium project; and

(c) P533,420.72 shall be forfeited in favor of Megaworld Corp. to cover the marketing and administrative costs of Corinthian Hills Subdivision Lot 12, Block 2.[13] cralaw

Petitioner authorized Megaworld Corp. to offer Lot 12, Block 2 of Corinthian Hills to other interested buyers. It also appears from the records that petitioner left the country bringing the children with her.

Respondent filed an omnibus motion seeking in the main custody of the children. The evidence presented by respondent established that petitioner brought the children out of the country without his knowledge and without prior authority of the trial court; petitioner failed to pay the P8,000,000 remaining balance for the Megaworld property which, if forfeited would prejudice the interest of the children; and petitioner failed to turn over to respondent documents and titles in the latters name.

Thus, the trial court, in its 17 May 2004 resolution, awarded to respondent custody of the children, ordered petitioner to turn over to respondent documents and titles in the latters name, and allowed respondent to stay in the family dwelling in Mariposa, Quezon City.

Petitioner filed on 28 June 2004 a motion for reconsideration[14] cralaw alleging denial of due process on account of accident, mistake, or excusable negligence. She alleged she was not able to present evidence because of the negligence of her counsel and her own fear for her life and the future of the children. She claimed she was forced to leave the country, together with her children, due to the alleged beating she received from respondent and the pernicious effects of the latters supposed gambling and womanizing ways. She prayed for an increase in respondents monthly support obligation in the amount of P150,000.

Unconvinced, the trial court, in its 12 October 2004 Resolution,[15] cralaw denied petitioners motion for reconsideration, which was filed beyond the 15-day reglementary period. It also declared petitioner in contempt of court for non-compliance with the partial judgment and the 17 May 2004 resolution. The trial court also denied petitioners prayer for increase in monthly support. The trial court reasoned that since petitioner took it upon herself to enroll the children in another school without respondents knowledge, she should therefore defray the resulting increase in their expenses.

On 4 November 2004, petitioner filed a motion to dismiss[16] cralaw and a motion for reconsideration[17] cralaw of the 12 October 2004 Resolution. She claimed she was no longer interested in the suit. Petitioner stated that the circumstances in her life had led her to the conclusion that withdrawing the petition was for the best interest of the children. She prayed that an order be issued vacating all prior orders and leaving the parties at the status quo ante the filing of the suit.

In its 28 December 2004 Resolution,[18] cralaw the trial court denied both the motion to dismiss and the motion for reconsideration filed by petitioner. It held that the 30 March 2004 decision and the 17 May 2004 resolution had become final and executory upon the lapse of the 15-day reglementary period without any timely appeal having been filed by either party.

Undeterred, petitioner filed a motion for reconsideration of the 28 December 2004 resolution, which the trial court denied in its 15 February 2005 resolution.[19] cralaw The trial court then issued a Certificate of Finality[20] cralaw of the 30 March 2004 decision and the 17 May 2004 resolution.

The Trial Courts Rulings

The 30 March 2004 Decision[21] cralaw declared the marriage between the parties void under Article 36 of the Family Code on the ground of mutual psychological incapacity. It incorporated the 31 July 2003 Partial Judgment[22] cralaw approving the Compromise Agreement[23] cralaw between the parties. The 17 May 2004 Resolution[24] cralaw amended the earlier partial judgment in granting to respondent custody of the children, ordering petitioner to turn over to respondent documents and titles in the latters name, and allowing respondent to stay in the family dwelling in Mariposa, Quezon City. The15 February 2005 Resolution[25] cralaw denied petitioners motion for reconsideration of the 28 December 2004 Resolution[26] cralaw denying petitioners motion to dismiss and motion for reconsideration of the 12 October 2004 Resolution,[27] cralaw which in turn denied for late filing petitioners motion for reconsideration of the 17 May 2004 resolution.

The Issue

Petitioner raises the question of whether the 30 March 2004 decision and the 17 May 2004

resolution of the trial court have attained finality despite the alleged denial of due process.

The Courts Ruling

The petition has no merit.

Petitioner contends she was denied due process when her counsel failed to file pleadings and appear at the hearings for respondents omnibus motion to amend the partial judgment as regards the custody of the children and the properties inher possession. Petitioner claims the trial court issued the 17 May 2004 resolution relying solely on the testimony of respondent. Petitioner further claims the trial court erred in applying to her motion to dismissSection 7 of the Rule on the Declaration of Absolute Nullity of Void Marriages and Annulment of Voidable Marriages. Petitioner argues that if indeed the provision is applicable, the same is unconstitutional for setting an obstacle to the preservation of the family.

Respondent maintains that the 30 March 2004 decision and the 17 May 2004 resolution of the trial court are now final and executory and could no longer be reviewed, modified, or vacated. Respondent alleges petitioner is making a mockery of our justice system in disregarding our lawful processes. Respondent stresses neither petitioner nor her counsel appeared in court at the hearings on respondent's omnibus motion or on petitioners motion to dismiss.

The issue raised in this petition has been settled in the case of Tuason v. Court of Appeals. [28]

cralaw In Tuason , private respondent therein filed a petition for the annulment of her marriage on the ground of her husbandspsychological incapacity. There, the trial court rendered judgment declaring the nullity of the marriage and awarding custody of the children to private respondent therein. No timely appeal was taken from the trial courts judgment.

We held that the decision annulling the marriage had already become final and executory when the husband failed to appeal during the reglementary period. The husband claimed that the decision of the trial court was null and void for violation of his right to due process. He argued he was denied due process when, after failing to appear on two scheduled hearings, the trial court deemed him to have waived his right to present evidence and rendered judgment based solely on the evidence presented by private respondent. Weupheld the judgment of nullity of the marriage even if it was based solely on evidence presented by therein private respondent.

We also ruled in Tuason that notice sent to the counsel of record is binding upon the client and the neglect or failure of the counsel to inform the client of an adverse judgment resulting in the loss of the latters right to appeal is not a ground for setting aside a judgment valid and regular on its face.[29] cralaw

In the present case, the 30 March 2004 decision and the 17 May 2004 resolution of the trial court had become final and executory upon the lapse of the reglementary period to appeal.[30]

cralaw Petitioners motion for reconsideration of the 17 May 2004 resolution, which the trial court received on 28 June 2004, was clearly filed out of time. Applying the doctrine laid down in Tuason , the alleged negligence of counsel resulting in petitioners loss of the right to appeal is not a ground for vacating the trial courts judgments.

Further, petitioner cannot claim that she was denied due process. While she may have lost her right to present evidence due to the supposed negligence of her counsel,she cannot say she was denied her day in court. Records show petitioner, through counsel, actively participated in the proceedings below, filing motion after motion.Contrary to petitioners allegation of negligence of her counsel, we have reason to believe the negligence in pursuing the case was on petitioners end, as may be gleaned from her counsels manifestation dated 3 May 2004:

Undersigned Counsel, who appeared for petitioner, in the nullity proceedings, respectfully informs the Honorable Court that she has not heard from petitioner since Holy Week. Attempts to call petitioner have failed.

Undersigned counsel regrets therefore that she is unable to respond in an intelligent manner to the Motion (Omnibus Motion) filed by respondent.[31] cralaw

Clearly, despite her counsels efforts to reach her, petitioner showed utter disinterest in the hearings on respondents omnibus motion seeking, among others, custody of the children. The trial judge was left with no other recourse but to proceed with the hearings and rule on the motion based on the evidence presented by respondent. Petitioner cannot now come to this Court crying denial of due process.

As for the applicability to petitioners motion to dismiss of Section 7 of the Rule on the Declaration of Absolute Nullity of Void Marriages and Annulment of Voidable Marriages, petitioner is correct. Section 7 of theRule on the Declaration of Absolute Nullity of Void Marriages and Annulment of Voidable Marriages provides:

SEC. 7. Motion to dismiss. No motion to dismiss the petition shall be allowed except on the ground of lack of jurisdiction over the subject matter or over the parties; provided, however, that any other ground that might warrant a dismissal of the case may be raised as anaffirmative defense in an answer. (Emphasis supplied)

The clear intent of the provision is to allow the respondent to ventilate all possible defenses in an answer, instead of a mere motion to dismiss, so that judgment may be made on the merits. In construing a statute, the purpose or object of the law is an important factor to be considered.[32] cralaw Further, the letter of the law admits of no other interpretation but that the provision applies only to a respondent, not a petitioner. Only a respondent in a petition forthe declaration of absolute nullity of void marriage or the annulment of voidable marriage files an answer where any ground that may warrant a dismissal may be raised as an affirmative defense pursuant to the provision. The only logical conclusion is that Section 7 of the Rule does not apply to a motion to dismiss filed by the party who initiated the petition for the declaration of absolute nullity of void marriage or the annulment of voidable marriage.

Since petitioner is not the respondent in the petition for the annulment of the marriage, Section 7 of the Rule does not apply to the motion to dismiss filed by her. Section 7 of the Rule not being applicable, petitioners claim that it is unconstitutional for allegedly setting an obstacle to the preservation of the family is without basis.

Section 1 of the Rule states that the Rules of Court applies suppletorily to a petition for the declaration of absolute nullity of void marriage or the annulment of voidable marriage. In this connection, Rule 17 of the Rules of Court allows dismissal of the action upon notice or upon motion of the plaintiff, to wit:

Section 1. Dismissal upon notice by plaintiff . A complaint may be dismissed by the plaintiff by filing a notice of dismissal at any time before service of the answer or of a motion for summary judgment. Upon such notice being filed, the court shall issue an order confirming the dismissal. x x x

Section 2. Dismissal upon motion of plaintiff . Except as provided in the preceding section, a complaint shall not be dismissed at the plaintiffs instance save upon approval of the court and upon such terms and conditions as the court deems proper.x x x (Emphasis supplied)

However, when petitioner filed the motion to dismiss on 4 November 2004, the 30 March 2004 decision and the 17 May 2004 resolution of the trial court had long become final and executory upon the lapse of the 15-day reglementary period without any timely appeal having been filed by either party. The 30 March 2004 decision and the 17 May 2004 resolution may no longer be disturbed on account of the belated motion to dismiss filed by petitioner. The trial court was correct in denying petitioners motion to dismiss.Nothing is more settled in law than that when a judgment becomes final and executory, it becomes immutable and unalterable. The same may no longer be modified in any respect, even if the modification is meant to correct what is perceived to be an erroneous conclusion of fact or law.[33] cralaw The reason is grounded on the fundamental considerations of public policy and sound practice that, at the risk of occasional error, the judgments or orders of courts must be final at some definite date fixed by law. Once a judgment has become final and executory, the issues there should be laid to rest.[34] cralaw

WHEREFORE, we DENY the petition for review.We AFFIRMthe (i) 17 May 2004 Resolution amending the 30 March 2004 Decision and(ii) the 15 February 2005 Resolution of theRegional Trial Court of Quezon City, Branch 107, in Civil Case No. Q-01-45743.

Costs against petitioner.

SO ORDERED.

SECOND DIVISION

G.R. No. L-53703 August 19, 1986

LILIA OLIVA WIEGEL, petitioner, vs.THE HONORABLE ALICIA V. SEMPIO-DIY (as presiding judge of the Juvenile and Domestic Relations Court of Caloocan City) and KARL HEINZ WIEGEL, respondents.

Dapucanta, Dulay & Associates for petitioner.

Siguion Reyna, Montecillo and Ongsiako Law Office for private respondent.

 

PARAS, J.:

In an action (Family Case No. 483) filed before the erstwhile Juvenile and Domestic Relations Court of Caloocan City, herein respondent Karl Heinz Wiegel (plaintiff therein) asked for the declaration of Nullity of his marriage (celebrated on July, 1978 at the Holy Catholic Apostolic Christian Church Branch in Makati, Metro Manila) with herein petitioner Lilia Oliva Wiegel (Lilia, for short, and defendant therein) on the ground of Lilia's previous existing marriage to one Eduardo A. Maxion, the ceremony having been performed on June 25, 1972 at our Lady of Lourdes Church in Quezon City. Lilia, while admitting the existence of said prior subsisting marriage claimed that said marriage was null and void, she and the first husband Eduardo A. Maxion having been allegedly forced to enter said marital union. In the pre-trial that ensued, the issue agreed upon by both parties was the status of the first marriage (assuming the presence of force exerted against both parties): was said prior marriage void or was it merely voidable? Contesting the validity of the pre-trial order, Lilia asked the respondent court for an opportunity to present evidence-

(1) that the first marriage was vitiated by force exercised upon both her and the first husband; and

(2) that the first husband was at the time of the marriage in 1972 already married to someone else.

Respondent judge ruled against the presentation of evidence because the existence of force exerted on both parties of the first marriage had already been agreed upon. Hence, the present petition for certiorari assailing the following Orders of therespondent Judge-

(1) the Order dated March 17, 1980 in which the parties were compelled to submit the case for resolution based on "agreed facts;" and

(2) the Order dated April 14, 1980, denying petitioner's motion to allow her to present evidence in her favor.

We find the petition devoid of merit.

There is no need for petitioner to prove that her first marriage was vitiated by force committed against both parties because assuming this to be so, the marriage will not be void but merely viodable (Art. 85, Civil Code), and therefore valid until annulled. Since no annulment has yet been made, it is clear that when she married respondent she was still validly married to her first husband, consequently, her marriage to respondent is VOID (Art. 80, Civil Code).

There is likewise no need of introducing evidence about the existing prior marriage of her first husband at the time they married each other, for then such a marriage though void still needs according to this Court a judicial declaration 1 of such fact and for all legal intents and purposes she would still be regarded as a married woman at the time she contracted her marriage with respondent Karl Heinz Wiegel); accordingly, the marriage of petitioner and respondent would be regarded VOID under the law.

WHEREFORE, this petition is hereby DISMISSED, for lack of merit, and the Orders complained of are hereby AFFIRMED. Costs against petitioner.

SO ORDERED.

EN BANC

 

A.M. No. 2349 July 3, 1992

DOROTHY B. TERRE, complainant, vs.ATTY. JORDAN TERRE, respondent.

 

PER CURIAM:

In a sworn complaint filed with this Court on 24 December 1981, complainant Dorothy B. Terre charged respondent Jordan Terre, a member of the Philippine Bar with "grossly immoral conduct," consisting of contracting a second marriage and living with another woman other than complainant, while his prior marriage with complainant remained subsisting.

The Court resolved to require respondent to answer the complaint. 1 Respondent successfully evaded five (5) attempts to serve a copy of the Court's Resolution and of the complaint by moving from one place to another, such that he could not be found nor reached in his alleged place of employment or residence. 2 On 24 April 1985, that is after three (3) years and a half, with still no answer from the respondent, the Court noted respondent's success in evading service of the complaint and the Court's Resolution and thereupon resolved to "suspend respondent Atty. Jordan Terre from the practice of law until after he appears and/or files his answer to the complaint against him" in the instantcase. 3

On 28 September 1985, respondent finally filed an Answer with a Motion to Set Aside and/or Lift Suspension Order. In his Answer, Atty. Terre averred that he had contracted marriage with complainant Dorothy Terre on 14 June 1977 upon her representation that she was single; that he subsequently learned that Dorothy was married to a certain Merlito A. Bercenilla sometime in 1968; that when he confronted Dorothy about her prior marriage, Dorothy drove him out of their conjugal residence; that Dorothy had mockingly told him of her private meetings with Merlito A. Bercenilla and that the child she was then carrying (i.e., Jason Terre) was the son of Bercenilla; that believing in good faith that his marriage to complainant was null and void ab initio, he contracted marriage with Helina Malicdem at Dasol, Pangasinan. 4

In her Reply, complainant Dorothy denied that Jason Terre was the child of Merlito A. Bercenilla and insisted that Jason was the child of respondent Jordan Terre, as evidenced by Jason's Birth Certificate and physical resemblance to respondent. Dorothy further explained that while she had given birth to Jason Terre at the PAFGH registered as a dependent of Merlito Bercenilla, she had done so out of extreme necessity and to avoid risk of death or injury to the fetus which happened to be in a difficult breech position. According to Dorothy, she had then already been abandoned by respondent Jordan Terre, leaving her penniless and without means to pay for the medical and hospital bills arising by reason of her pregnancy.

The Court denied respondent's Motion to Set Aside or Lift the Suspension Order and instead referred; by a Resolution dated 6 January 1986, the complaint to the Office of the Solicitor General for investigation, report and recommendation. 5

Then Solicitor Pio C. Guerrero was appointed investigator by the Office of the Solicitor General. He set the case for hearing on 7 July 1986 with notice to both parties. On 7 July 1986, complainant Dorothy appeared and presented her evidence ex parte, since respondent did not so appear. 6 The Investigating Solicitor scheduled and held another hearing on 19 August 1986, where he put clarificatory questions to the complainant; respondent once again did not appear despite notice to do so. Complainant finally offered her evidence and rested her case. The Solicitor set still another hearing for 2 October 1986, notifying respondent to present his evidence with a warning that should he fail once more to appear, the case would be deemed submitted for resolution. Respondent did not appear on 2 October 1986. The Investigating

Solicitor accordingly considered respondent to have waived his right to present evidence and declared the case submitted for resolution. The parties were given time to submit their respective memoranda. Complainant Dorothy did so on 8 December 1986. Respondent Terre did not file his memorandum.

On 26 February 1990, the Office of the Solicitor General submitted its "Report and Recommendation" to this Court. The Report summarized the testimony of the complainant in the following manner:

Complainant Dorothy Terre took the witness stand and testified substantially as follows: she and respondent met for the first time in 1979 as fourth year high school classmates in Cadiz City High School (tsn, July 7, 1986, p. 9); she was then married to Merlito Bercenilla, while respondent was single (id.); respondent was aware of her marital status (ibid, p. 14); it was then that respondent started courting her but nothing happened of the courtship (ibid, p. 10); they [complainant and respondent] moved to Manila were they respectively pursued their education, respondent as a law student at the Lyceum University (tsn, July 7, 1986, p. 12, 15-16); respondent continued courting her, this time with more persistence (ibid, p. 11); she decided nothing would come of it since she was married but he [respondent] explained to her that their marriage was void ab initio since she and her first husband were first cousins (ibid, p. 12); convinced by his explanation and having secured favorable advice from her mother andex-in-laws, she agreed to marry him [respondent] (ibid, 12-13, 16); in their marriage license, despite her [complainant's] objection, he [respondent] wrote "single" as her status explaining that since her marriage was void ab initio, there was no need to go to court to declare it as such (ibid, 14-15); they were married before Judge Priscilla Mijares of the City Court of Manila on June 14, 1977 (Exhibit A; tsn, July 7, 1986, pp. 16-17); Jason Terre was born of their union on June 25, 1981 (Exhibit B, tsn, July 7, 1986, p. 18); all through their married state up to the time he [respondent] disappeared in 1981, complainant supported respondent, in addition to the allowance the latter was getting from his parents (ibid, pp. 19-20); she was unaware of the reason for his disappearance until she found out later that respondent married a certain Vilma [sic] Malicdem (Exhibit C, tsn, July 7, 1986, pp. 21-22); she then filed a case for abandonment of minor with the City Fiscal of Pasay City (ibid, p. 23) which was subsequently filed before Branch II of the City Court of Pasay City as Criminal Case No. 816159 (Exhibit D; tsn, July 7, 1986, p. 24); she likewise filed a case for bigamy against respondent and Helina Malicdem with the office of the Provincial Fiscal of Pangasinan, where a prima facie case was found to exist (Exhibit E; tsn, July 7, pp. 25-26); additionally, complainant filed an administrative case against respondent with the Commission on Audit where he was employed, which case however was considered closed for being moot and academic when respondent was considered automatically separated from the service for having gone on absence without official leave (Exhibit F; tsn, July 7, 1986, pp. 28-29). 7

There is no dispute over the fact that complainant Dorothy Terre and respondent Jordan Terre contracted marriage on 14 July 1977 before Judge Priscilla Mijares. There is further no dispute over the fact that on 3 May 1981, respondent Jordan Terre married Helina Malicdem in Dasol, Pangasinan. When the second marriage was entered into, respondent's prior marriage with complainant was subsisting, no judicial action having been initiated or any judicial declaration obtained as to the nullity of such prior marriage of respondent with complainant.

Respondent Jordan Terre sought to defend himself by claiming that he had believed in good faith that his prior marriage with complainant Dorothy Terre was null and void ab initio and that no action for a judicial declaration of nullity was necessary.

The Court considers this claim on the part of respondent Jordan Terre as a spurious defense. In the first place, respondent has not rebutted complainant's evidence as to the basic facts which underscores the bad faith of respondent Terre. In the second place, that pretended defense is the same argument by which he had inveigled complainant into believing that her prior marriage to Merlito A. Bercenilla being incestuous and void ab initio (Dorothy and Merlito being allegedly first cousins to each other), she was free to contract a second marriage with the respondent.

Respondent Jordan Terre, being a lawyer, knew or should have known that such an argument ran counter to the prevailing case law of this Court which holds that for purposes of determining whether a person is legally free to contract a second marriage, a judicial declaration that the first marriage was null and void ab initio is essential. 8 Even if we were to assume, arguendo merely, that Jordan Terre held that mistaken belief in good faith, the same result will follow. For if we are to hold Jordan Terre to his own argument, his first marriage to complainant Dorothy Terre must be deemed valid, with the result that his second marriage to Helina Malicdem must be regarded as bigamous and criminal in character.

That the moral character of respondent Jordan Terre was deeply flawed is shown by other circumstances. As noted, he convinced the complainant that her prior marriage to Bercenilla was null and void ab initio, that she was still legally single and free to marry him. When complainant and respondent had contracted their marriage, respondent went through law school while being supported by complainant, with some assistance from respondent's parents. After respondent had finished his law course and gotten complainant pregnant, respondent abandoned the complainant without support and without the wherewithal for delivering his own child safely in a hospital.

Thus, we agree with the Solicitor General that respondent Jordan Terre, by his actions, "eloquently displayed, not only his unfitness to remain as a member of the Bar, but likewise his inadequacy to uphold the purpose and responsibility of his gender" because marriage is a basic social institution. 9

In Pomperada v. Jochico, 10 the Court, in rejecting a petition to be allowed to take the oath as a member of the Bar and to sign the Roll of Attorneys, said through Mme. Justice Melencio-Herrera:

It is evident that respondent fails to meet the standard of moral fitness for membership in the legal profession. Whether the marriage was a joke as respondent claims, or a trick played on her as claimed by complainant, it does not speak well of respondent's moral values. Respondent had made a mockery of marriage, a basic social institution which public policy cherishes and protects (Article 216, Civil Code). 11

In Bolivar v. Simbol, 12 the Court found the respondent there guilty of "grossly immoral conduct" because he made a dupe of complainant, living on her bounty and allowing her to spend for his schooling and other personal necessities while dangling before her the mirage of a marriage, marrying another girl as soon as he had finished his studies, keeping his marriage a secret while continuing to demand money from complainant. . . . ." The Court held such acts "indicative of a character not worthy of a member of the Bar." 13

We believe and so hold that the conduct of respondent Jordan Terre in inveigling complainant Dorothy Terre to contract a second marriage with him; in abandoning complainant Dorothy Terre after she had cared for him and supported him through law school, leaving her without means for the safe delivery of his own child; in contracting a second marriage with Helina Malicdem while his first marriage with complainant Dorothy Terre was subsisting, constituted "grossly immoral conduct" under Section 27 of Rule 138 of the Rules of Court, affording more than sufficient basis for disbarment of respondent Jordan Terre. He was unworthy of admission to the Bar in the first place. The Court will correct this error forthwith.

WHEREFORE, the Court Resolved to DISBAR respondent Jordan Terre and to STRIKE OUT his name from the Roll of Attorneys. A copy of this decision shall be spread on the personal record of respondent Jordan Terre in the Bar Confidant's Office. A copy of this resolution shall also be furnished to the Integrated Bar of the Philippines and shall be circularized to all the courts of the land.

SO ORDERED.

THIRD DIVISION

 

G.R. No. 104818 September 17, 1993

ROBERTO DOMINGO, petitioner, vs.COURT OF APPEALS and DELIA SOLEDAD AVERA represented by her Attorney-in-Fact MOISES R. AVERA, respondents.

Jose P.O. Aliling IV for petitioner.

De Guzman, Meneses & Associates for private respondent.

 

ROMERO, J.:

The instant petition seeks the reversal of respondent court's ruling finding no grave abuse of discretion in the lower court's order denying petitioner's motion to dismiss the petition for declaration of nullity of marriage and separation of property.

On May 29, 1991, private respondent Delia Soledad A. Domingo filed a petition before the Regional Trial Court of Pasig entitled "Declaration of Nullity of Marriage and Separation of Property" against petitioner Roberto Domingo. The petition which was docketed as Special Proceedings No. 1989-J alleged among others that: they were married on November 29, 1976 at the YMCA Youth Center Bldg., as evidenced by a Marriage Contract Registry No. 1277K-76 with Marriage License No. 4999036 issued at Carmona, Cavite; unknown to her, he had a previous marriage with one Emerlina dela Paz on April 25, 1969 which marriage is valid and still existing; she came to know of the prior marriage only sometime in 1983 when Emerlina dela Paz sued them for bigamy; from January 23 1979 up to the present, she has been working in Saudi Arabia and she used to come to the Philippines only when she would avail of the one-month annual vacation leave granted by her foreign employer since 1983 up to the present, he has been unemployed and completely dependent upon her for support and subsistence; out of her personal earnings, she purchased real and personal properties with a total amount of approximately P350,000.00, which are under the possession and administration of Roberto; sometime in June 1989, while on her one-month vacation, she discovered that he was cohabiting with another woman; she further discovered that he had been disposing of some of her properties without her knowledge or consent; she confronted him about this and thereafter appointed her brother Moises R. Avera as her attorney-in-fact to take care of her properties; he failed and refused to turn over the possession and administration of said properties to her brother/attorney-in-fact; and he is not authorized to administer and possess the same on account of the nullity of their marriage. The petition prayed that a temporary restraining order or a writ of preliminary injunction be issued enjoining Roberto from exercising any act of administration and ownership over said properties; their marriage be declared null and void and of no force and effect; and Delia Soledad be declared the sole and exclusive owner of all properties acquired at the time of their void marriage and such properties be placed under the proper management and administration of the attorney-in-fact.

Petitioner filed a Motion to Dismiss on the ground that the petition stated no cause of action. The marriage being void ab initio, the petition for the declaration of its nullity is, therefore, superfluous and unnecessary. It added that private respondent has no property which is in his possession.

On August 20, 1991, Judge Maria Alicia M. Austria issued an Order denying the motion to dismiss for lack of merit. She explained:

Movant argues that a second marriage contracted after a first marriage by a man with another woman is illegal and void (citing the case of Yap v. Court of Appeals, 145 SCRA 229) and no judicial decree is necessary to establish the

invalidity of a void marriage (citing the cases of People v. Aragon, 100 Phil. 1033; People v. Mendoza, 95 Phil. 845). Indeed, under the Yap case there is no dispute that the second marriage contracted by respondent with herein petitioner after a first marriage with another woman is illegal and void. However, as to whether or not the second marriage should first be judicially declared a nullity is not an issue in said case. In the case of Vda. de Consuegra v. GSIS, the Supreme Court ruled in explicit terms, thus:

And with respect to the right of the second wife, this Court observed that although the second marriage can be presumed to be void ab initio as it was celebrated while the first marriage was still subsisting, still there is need for judicial declaration of its nullity. (37 SCRA 316, 326)

The above ruling which is of later vintage deviated from the previous rulings of the Supreme Court in the aforecited cases of Aragon and Mendoza.

Finally, the contention of respondent movant that petitioner has no property in his possession is an issue that may be determined only after trial on the merits. 1

A motion for reconsideration was filed stressing the erroneous application of Vda. de Consuegra v. GSIS 2 and the absence of justiciable controversy as to the nullity of the marriage. On September 11, 1991, Judge Austria denied the motion for reconsideration and gave petitioner fifteen (15) days from receipt within which to file his answer.

Instead of filing the required answer, petitioner filed a special civil action of certiorari and mandamus on the ground that the lower court acted with grave abuse of discretion amounting to lack of jurisdiction in denying the motion to dismiss.

On February 7, 1992, the Court of Appeals 3 dismissed the petition. It explained that the case of Yap v. CA 4 cited by petitioner and that of Consuegra v. GSIS relied upon by the lower court do not have relevance in the case at bar, there being no identity of facts because these cases dealt with the successional rights of the second wife while the instant case prays for separation of property corollary with the declaration of nullity of marriage. It observed that the separation and subsequent distribution of the properties acquired during the union can be had only upon proper determination of the status of the marital relationship between said parties, whether or not the validity of the first marriage is denied by petitioner. Furthermore, in order to avoid duplication and multiplicity of suits, the declaration of nullity of marriage may be invoked in this proceeding together with the partition and distribution of the properties involved. Citing Articles 48, 50 and 52 of the Family Code, it held that private respondent's prayer for declaration of absolute nullity of their marriage may be raised together with other incidents of their marriage such as the separation of their properties. Lastly, it noted that since the Court has jurisdiction, the alleged error in refusing to grant the motion to dismiss is merely one of law for which the remedy ordinarily would have been to file an answer, proceed with the trial and in case of an adverse decision, reiterate the issue on appeal. The motion for reconsideration was subsequently denied for lack of merit. 5

Hence, this petition.

The two basic issues confronting the Court in the instant case are the following.

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

Second, whether or not SP No. 1989-J is the proper remedy of private respondent to recover certain real and personal properties allegedly belonging to her exclusively.

Petitioner, invoking the ruling in People v. Aragon 6 and People v. Mendoza, 7 contends that SP. No. 1989-J for Declaration of Nullity of Marriage and Separation of Property filed by private

respondent must be dismissed for being unnecessary and superfluous. Furthermore, under his own interpretation of Article 40 of the Family Code, he submits that a petition for declaration of absolute nullity of marriage is required only for purposes of remarriage. Since the petition in SP No. 1989-J contains no allegation of private respondent's intention to remarry, said petition should therefore, be dismissed.

On the other hand, private respondent insists on the necessity of a judicial declaration of the nullity of their marriage, not for purposes of remarriage, but in order to provide a basis for the separation and distribution of the properties acquired during coverture.

There is no question that the marriage of petitioner and private respondent celebrated while the former's previous marriage with one Emerlina de la Paz was still subsisting, is bigamous. As such, it is from the beginning. 8 Petitioner himself does not dispute the absolute nullity of their marriage. 9

The cases of People v. Aragon and People v. Mendoza relied upon by petitioner are cases where the Court had earlier ruled that no judicial decree is necessary to establish the invalidity of a void, bigamous marriage. It is noteworthy to observe that Justice Alex Reyes, however, dissented on these occasions stating that:

Though the logician may say that where the former marriage was void there would be nothing to dissolve, still it is not for the spouses to judge whether that marriage was void or not. That judgment is reserved to the courts. . . . 10

This dissenting opinion was adopted as the majority position in subsequent cases involving the same issue. Thus, in Gomez v. Lipana, 11 the Court abandoned its earlier ruling in the Aragon and Mendoza cases. In reversing the lower court's order forfeiting the husband's share of the disputed property acquired during the second marriage, the Court stated that "if the nullity, or annulment of the marriage is the basis for the application of Article 1417, there is need for a judicial declaration thereof, which of course contemplates an action for that purpose."

Citing Gomez v. Lipana, the Court subsequently held in Vda. de Consuegra v. Government Service Insurance System, that "although the second marriage can be presumed to be void ab initio as it was celebrated while the first marriage was still subsisting, still there is need for judicial declaration of such nullity."

In Tolentino v. Paras, 12 however, the Court turned around and applied the Aragon and Mendoza ruling once again. In granting the prayer of the first wife asking for a declaration as the lawful surviving spouse and the correction of the death certificate of her deceased husband, it explained that "(t)he second marriage that he contracted with private respondent during the lifetime of his first spouse is null and void from the beginning and of no force and effect. No judicial decree is necessary to establish the invalidity of a void marriage."

However, in the more recent case of Wiegel v. Sempio-Diy 13 the Court reverted to the Consuegra case and held that there was "no need of introducing evidence about the existing prior marriage of her first husband at the time they married each other, for then such a marriage though void still needs according to this Court a judicial declaration of such fact and for all legal intents and purposes she would still be regarded as a married woman at the time she contracted her marriage with respondent Karl Heinz Wiegel."

Came the Family Code which settled once and for all the conflicting jurisprudence on the matter. A declaration of the absolute nullity of a marriage is now explicitly required either as a cause of action or a ground for defense. 14 Where the absolute nullity of a previous marriage is sought to be invoked for purposes of contracting a second marriage, the sole basis acceptable in law for said projected marriage be free from legal infirmity is a final judgment declaring the previous marriage void. 15

The Family Law Revision Committee and the Civil Code Revision Committee 16 which drafted what is now the Family Code of the Philippines took the position that parties to a marriage should not be allowed to assume that their marriage is void even if such be the fact but must first secure a judicial declaration of the nullity of their marriage before they can be allowed to

marry again. This is borne out by the following minutes of the 152nd Joint Meeting of the Civil Code and Family Law Committees where the present Article 40, then Art. 39, was discussed.

B. Article 39. —

The absolute nullity of a marriage may be invoked only on the basis of a final judgment declaring the marriage void, except as provided in Article 41.

Justice Caguioa remarked that the above provision should include not only void but also voidable marriages. He then suggested that the above provision be modified as follows:

The validity of a marriage may be invoked only . . .

Justice Reyes (J.B.L. Reyes), however, proposed that they say:

The validity or invalidity of a marriage may be invoked only . . .

On the other hand, Justice Puno suggested that they say:

The invalidity of a marriage may be invoked only . . .

Justice Caguioa explained that his idea is that one cannot determine for himself whether or not his marriage is valid and that a court action is needed. Justice Puno accordingly proposed that the provision be modified to read:

The invalidity of a marriage may be invoked only on the basis of a final judgment annulling the marriage or declaring the marriage void, except as provided in Article 41.

Justice Caguioa remarked that in annulment, there is no question. Justice Puno, however, pointed out that, even if it is a judgment of annulment, they still have to produce the judgment.

Justice Caguioa suggested that they say:

The invalidity of a marriage may be invoked only on the basis of a final judgment declaring the marriage invalid, except as provided in Article 41.

Justice Puno raised the question: When a marriage is declared invalid, does it include the annulment of a marriage and the declaration that the marriage is void? Justice Caguioa replied in the affirmative. Dean Gupit added that in some judgments, even if the marriage is annulled, it is declared void. Justice Puno suggested that this matter be made clear in the provision.

Prof. Baviera remarked that the original idea in the provision is to require first a judicial declaration of a void marriage and not annullable marriages, with which the other members concurred. Judge Diy added that annullable marriages are presumed valid until a direct action is filed to annul it, which the other members affirmed. Justice Puno remarked that if this is so, then the phrase "absolute nullity" can stand since it might result in confusion if they change the phrase to "invalidity" if what they are referring to in the provision is the declaration that the marriage is void.

Prof. Bautista commented that they will be doing away with collateral defense as well as collateral attack. Justice Caguioa explained that the idea in the provision is that there should be a final judgment declaring the marriage void and a party

should not declare for himself whether or not the marriage is void, while the other members affirmed. Justice Caguioa added that they are, therefore, trying to avoid a collateral attack on that point. Prof. Bautista stated that there are actions which are brought on the assumption that the marriage is valid. He then asked: Are they depriving one of the right to raise the defense that he has no liability because the basis of the liability is void? Prof. Bautista added that they cannot say that there will be no judgment on the validity or invalidity of the marriage because it will be taken up in the same proceeding. It will not be a unilateral declaration that, it is a void marriage. Justice Caguioa saw the point of Prof. Bautista and suggested that they limit the provision to remarriage. He then proposed that Article 39 be reworded as follows:

The absolute nullity of a marriage for purposes of remarriage may be invoked only on the basis of final judgment . . .

Justice Puno suggested that the above be modified as follows:

The absolute nullity of a previous marriage may be invoked for purposes of establishing the validity of a subsequent marriage only on the basis of a final judgment declaring such previous marriage void, except as provided in Article 41.

Justice Puno later modified the above as follows:

For the purpose of establishing the validity of a subsequent marriage, the absolute nullity of a previous marriage may only be invoked on the basis of a final judgment declaring such nullity, except as provided in Article 41.

Justice Caguioa commented that the above provision is too broad and will not solve the objection of Prof. Bautista. He proposed that they say:

For the purpose of entering into a subsequent marriage, the absolute nullity of a previous marriage may only be invoked on the basis of a final judgment declaring such nullity, except as provided in Article 41.

Justice Caguioa explained that the idea in the above provision is that if one enters into a subsequent marriage without obtaining a final judgment declaring the nullity of a previous marriage, said subsequent marriage is void ab initio.

After further deliberation, Justice Puno suggested that they go back to the original wording of the provision as follows:

The absolute nullity of a previous marriage may be invoked for purposes of remarriage only on the basis of a final judgment declaring such previous marriage void, except as provided in Article 41. 17

In fact, the requirement for a declaration of absolute nullity of a marriage is also for the protection of the spouse who, believing that his or her marriage is illegal and void, marries again. With the judicial declaration of the nullity of his or her first marriage, the person who marries again cannot be charged with bigamy. 18

Just over a year ago, the Court made the pronouncement that there is a necessity for a declaration of absolute nullity of a prior subsisting marriage before contracting another in the recent case of Terre v. Terre. 19 The Court, in turning down the defense of respondent Terre who was charged with grossly immoral conduct consisting of contracting a second marriage and living with another woman other than complainant while his prior marriage with the latter remained subsisting, said that "for purposes of determining whether a person is legally free to

contract a second marriage, a judicial declaration that the first marriage was null and void ab initio is essential."

As regards the necessity for a judicial declaration of absolute nullity of marriage, petitioner submits that the same can be maintained only if it is for the purpose of remarriage. Failure to allege this purpose, according to petitioner's theory, will warrant dismissal of the same.

Article 40 of the Family Code provides:

Art. 40. The absolute nullity of a previous marriage may be invoked for purposes of remarriage on the basis solely of a final judgment declaring such previous marriage void. (n)

Crucial to the proper interpretation of Article 40 is the position in the provision of the word "solely." As it is placed, the same shows that it is meant to qualify "final judgment declaring such previous marriage void." Realizing the need for careful craftsmanship in conveying the precise intent of the Committee members, the provision in question, as it finally emerged, did not state "The absolute nullity of a previous marriage may be invoked solely for purposes of remarriage . . .," in which case "solely" would clearly qualify the phrase "for purposes of remarriage." Had the phraseology been such, the interpretation of petitioner would have been correct and, that is, that the absolute nullity of a previous marriage may be invoked solely for purposes of remarriage, thus rendering irrelevant the clause "on the basis solely of a final judgment declaring such previous marriage void."

That Article 40 as finally formulated included the significant clause denotes that such final judgment declaring the previous marriage void need not be obtained only for purposes of remarriage. Undoubtedly, one can conceive of other instances where a party might well invoke the absolute nullity of a previous marriage for purposes other than remarriage, such as in case of an action for liquidation, partition, distribution and separation of property between the erstwhile spouses, as well as an action for the custody and support of their common children and the delivery of the latters' presumptive legitimes. In such cases, evidence needs must be adduced, testimonial or documentary, to prove the existence of grounds rendering such a previous marriage an absolute nullity. These need not be limited solely to an earlier final judgment of a court declaring such previous marriage void. Hence, in the instance where a party who has previously contracted a marriage which remains subsisting desires to enter into another marriage which is legally unassailable, he is required by law to prove that the previous one was an absolute nullity. But this he may do on the basis solely of a final judgment declaring such previous marriage void.

This leads us to the question: Why the distinction? In other words, for purposes of remarriage, why should the only legally acceptable basis for declaring a previous marriage an absolute nullity be a final judgment declaring such previous marriage void? Whereas, for purposes other than remarriage, other evidence is acceptable?

Marriage, a sacrosanct institution, declared by the Constitution as an "inviolable social institution, is the foundation of the family;" as such, it "shall be protected by the State." 20 In more explicit terms, the Family Code characterizes it as "a special contract of permanent union between a man and a woman entered into in accordance with law for the establishment of conjugal, and family life." 21 So crucial are marriage and the family to the stability and peace of the nation that their "nature, consequences, and incidents are governed by law and not subject to stipulation . . ." 22 As a matter of policy, therefore, the nullification of a marriage for the purpose of contracting another cannot be accomplished merely on the basis of the perception of both parties or of one that their union is so defective with respect to the essential requisites of a contract of marriage as to render it void ipso jure and with no legal effect — and nothing more. Were this so, this inviolable social institution would be reduced to a mockery and would rest on very shaky foundations indeed. And the grounds for nullifying marriage would be as diverse and far-ranging as human ingenuity and fancy could conceive. For such a social significant institution, an official state pronouncement through the courts, and nothing less, will satisfy the exacting norms of society. Not only would such an open and public declaration by the courts definitively confirm the nullity of the contract of marriage, but the same would be easily verifiable through records accessible to everyone.

That the law seeks to ensure that a prior marriage is no impediment to a second sought to be contracted by one of the parties may be gleaned from new information required in the Family Code to be included in the application for a marriage license, viz, "If previously married, how, when and where the previous marriage was dissolved and annulled." 23

Reverting to the case before us, petitioner's interpretation of Art. 40 of the Family Code is, undoubtedly, quite restrictive. Thus, his position that private respondent's failure to state in the petition that the same is filed to enable her to remarry will result in the dismissal of SP No. 1989-J is untenable. His misconstruction of Art. 40 resulting from the misplaced emphasis on the term "solely" was in fact anticipated by the members of the Committee.

Dean Gupit commented the word "only" may be misconstrued to refer to "for purposes of remarriage." Judge Diy stated that "only" refers to "final judgment." Justice Puno suggested that they say "on the basis only of a final judgment." Prof. Baviera suggested that they use the legal term "solely" instead of "only," which the Committee approved. 24 (Emphasis supplied)

Pursuing his previous argument that the declaration for absolute nullity of marriage is unnecessary, petitioner suggests that private respondent should have filed an ordinary civil action for the recovery of the properties alleged to have been acquired during their union. In such an eventuality, the lower court would not be acting as a mere special court but would be clothed with jurisdiction to rule on the issues of possession and ownership. In addition, he pointed out that there is actually nothing to separate or partition as the petition admits that all the properties were acquired with private respondent's money.

The Court of Appeals disregarded this argument and concluded that "the prayer for declaration of absolute nullity of marriage may be raised together with the other incident of their marriage such as the separation of their properties."

When a marriage is declared void ab initio, the law states that the final judgment therein shall provide for "the liquidation, partition and distribution of the properties of the spouses, the custody and support of the common children, and the delivery of their presumptive legitimes, unless such matters had been adjudicated in previous judicial proceedings." 25 Other specific effects flowing therefrom, in proper cases, are the following:

Art. 43. xxx xxx xxx

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

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

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

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

Art. 44. If both spouses of the subsequent marriage acted in bad faith, said marriage shall be void ab initio and all donations by reason of marriage and testamentary disposition made by one in favor of the other are revoked by operation of law. (n) 26

Based on the foregoing provisions, private respondent's ultimate prayer for separation of property will simply be one of the necessary consequences of the judicial declaration of absolute nullity of their marriage. Thus, petitioner's suggestion that in order for their properties to be separated, an ordinary civil action has to be instituted for that purpose is baseless. The Family Code has clearly provided the effects of the declaration of nullity of marriage, one of which is the separation of property according to the regime of property relations governing them. It stands to reason that the lower court before whom the issue of nullity of a first marriage is brought is likewise clothed with jurisdiction to decide the incidental questions regarding the couple's properties. Accordingly, the respondent court committed no reversible error in finding that the lower court committed no grave abuse of discretion in denying petitioner's motion to dismiss SP No. 1989-J.

WHEREFORE, the instant petition is hereby DENIED. The decision of respondent Court dated February 7, 1992 and the Resolution dated March 20, 1992 are AFFIRMED.

SO ORDERED.

FIRST DIVISION

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

SUSAN NICDAO CARIÑO, petitioner, vs.SUSAN YEE CARIÑO, respondent.

D E C I S I O N

YNARES-SANTIAGO, J.:

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

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

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

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

On December 14, 1993, respondent Susan Yee filed the instant case for collection of sum of money against petitioner Susan Nicdao praying, inter alia, that petitioner be ordered to return to her at least one-half of the one hundred forty-six thousand pesos (P146,000.00) collectively denominated as “death benefits” which she (petitioner) received from “MBAI, PCCUI, Commutation, NAPOLCOM, [and] Pag-ibig.” Despite service of summons, petitioner failed to file her answer, prompting the trial court to declare her in default.

Respondent Susan Yee admitted that her marriage to the deceased took place during the subsistence of, and without first obtaining a judicial declaration of nullity of, the marriage between petitioner and the deceased. She, however, claimed that she had no knowledge of the previous marriage and that she became aware of it only at the funeral of the deceased, where she met petitioner who introduced herself as the wife of the deceased. To bolster her action for collection of sum of money, respondent contended that the marriage of petitioner and the deceased is void ab initio because the same was solemnized without the required marriage license. In support thereof, respondent presented: 1) the marriage certificate of the deceased and the petitioner which bears no marriage license number; 5 and 2) a certification dated March 9, 1994, from the Local Civil Registrar of San Juan, Metro Manila, which reads –

This is to certify that this Office has no record of marriage license of the spouses SANTIAGO CARINO (sic) and SUSAN NICDAO, who are married in this municipality on June 20, 1969. Hence, we cannot issue as requested a true copy or transcription of Marriage License number from the records of this archives.

This certification is issued upon the request of Mrs. Susan Yee Cariño for whatever legal purpose it may serve. 6

On August 28, 1995, the trial court ruled in favor of respondent, Susan Yee, holding as follows:

WHEREFORE, the defendant is hereby ordered to pay the plaintiff the sum of P73,000.00, half of the amount which was paid to her in the form of death benefits arising from the death of SPO4 Santiago S. Cariño, plus attorney’s fees in the amount of P5,000.00, and costs of suit.

IT IS SO ORDERED. 7

On appeal by petitioner to the Court of Appeals, the latter affirmed in toto the decision of the trial court. Hence, the instant petition, contending that:

I.

THE HONORABLE COURT OF APPEALS GRAVELY ERRED IN AFFIRMING THE FINDINGS OF THE LOWER COURT THAT VDA. DE CONSUEGRA VS. GSIS IS APPLICABLE TO THE CASE AT BAR.

II.

THE HONORABLE COURT OF APPEALS GRAVELY ERRED IN APPLYING EQUITY IN THE INSTANT CASE INSTEAD OF THE CLEAR AND UNEQUIVOCAL MANDATE OF THE FAMILY CODE.

III.

THE HONORABLE COURT OF APPEALS GRAVELY ERRED IN NOT FINDING THE CASE OF VDA. DE CONSUEGRA VS GSIS TO HAVE BEEN MODIFIED, AMENDED AND EVEN ABANDONED BY THE ENACTMENT OF THE FAMILY CODE. 8

Under Article 40 of the Family Code, the absolute nullity of a previous marriage may be invoked for purposes of remarriage on the basis solely of a final judgment declaring such previous marriage void. Meaning, where the absolute nullity of a previous marriage is sought to be invoked for purposes of contracting a second marriage, the sole basis acceptable in law, for said projected marriage to be free from legal infirmity, is a final judgment declaring the previous marriage void. 9 However, for purposes other than remarriage, no judicial action is necessary to declare a marriage an absolute nullity. For other purposes, such as but not limited to the determination of heirship, legitimacy or illegitimacy of a child, settlement of estate, dissolution of property regime, or a criminal case for that matter, the court may pass upon the validity of marriage even after the death of the parties thereto, and even in a suit not directly instituted to question the validity of said marriage, so long as it is essential to the determination of the case. 10 In such instances, evidence must be adduced, testimonial or documentary, to prove the existence of grounds rendering such a previous marriage an absolute nullity. These need not be limited solely to an earlier final judgment of a court declaring such previous marriage void. 11

It is clear therefore that the Court is clothed with sufficient authority to pass upon the validity of the two marriages in this case, as the same is essential to the determination of who is rightfully entitled to the subject “death benefits” of the deceased.

Under the Civil Code, which was the law in force when the marriage of petitioner Susan Nicdao and the deceased was solemnized in 1969, a valid marriage license is a requisite of marriage, 12 and the absence thereof, subject to certain exceptions, 13 renders the marriage void ab initio. 14

In the case at bar, there is no question that the marriage of petitioner and the deceased does not fall within the marriages exempt from the license requirement. A marriage license, therefore, was indispensable to the validity of their marriage. This notwithstanding, the records reveal that the marriage contract of petitioner and the deceased bears no marriage license number and, as certified by the Local Civil Registrar of San Juan, Metro Manila, their office has no record of such marriage license. In Republic v. Court of Appeals, 15 the Court held that such a certification is adequate to prove the non-issuance of a marriage license. Absent any circumstance of suspicion, as in the present case, the certification issued by the local civil registrar enjoys probative value, he being the officer charged under the law to keep a record of all data relative to the issuance of a marriage license.

Such being the case, the presumed validity of the marriage of petitioner and the deceased has been sufficiently overcome. It then became the burden of petitioner to prove that their marriage is valid and

that they secured the required marriage license. Although she was declared in default before the trial court, petitioner could have squarely met the issue and explained the absence of a marriage license in her pleadings before the Court of Appeals and this Court. But petitioner conveniently avoided the issue and chose to refrain from pursuing an argument that will put her case in jeopardy. Hence, the presumed validity of their marriage cannot stand.

It is beyond cavil, therefore, that the marriage between petitioner Susan Nicdao and the deceased, having been solemnized without the necessary marriage license, and not being one of the marriages exempt from the marriage license requirement, is undoubtedly void ab initio.

It does not follow from the foregoing disquisition, however, that since the marriage of petitioner and the deceased is declared void ab initio, the “death benefits” under scrutiny would now be awarded to respondent Susan Yee. To reiterate, under Article 40 of the Family Code, for purposes of remarriage, there must first be a prior judicial declaration of the nullity of a previous marriage, though void, before a party can enter into a second marriage, otherwise, the second marriage would also be void.

Accordingly, the declaration in the instant case of nullity of the previous marriage of the deceased and petitioner Susan Nicdao does not validate the second marriage of the deceased with respondent Susan Yee. The fact remains that their marriage was solemnized without first obtaining a judicial decree declaring the marriage of petitioner Susan Nicdao and the deceased void. Hence, the marriage of respondent Susan Yee and the deceased is, likewise, void ab initio.

One of the effects of the declaration of nullity of marriage is the separation of the property of the spouses according to the applicable property regime. 16 Considering that the two marriages are void ab initio, the applicable property regime would not be absolute community or conjugal partnership of property, but rather, be governed by the provisions of Articles 147 and 148 of the Family Code on “Property Regime of Unions Without Marriage.”

Under Article 148 of the Family Code, which refers to the property regime of bigamous marriages, adulterous relationships, relationships in a state of concubine, relationships where both man and woman are married to other persons, multiple alliances of the same married man, 17 -

“... [O]nly the properties acquired by both of the parties through their actual joint contribution of money, property, or industry shall be owned by them in common in proportion to their respective contributions ...”

In this property regime, the properties acquired by the parties through their actual joint contribution shall belong to the co-ownership. Wages and salaries earned by each party belong to him or her exclusively. Then too, contributions in the form of care of the home, children and household, or spiritual or moral inspiration, are excluded in this regime. 18

Considering that the marriage of respondent Susan Yee and the deceased is a bigamous marriage, having been solemnized during the subsistence of a previous marriage then presumed to be valid (between petitioner and the deceased), the application of Article 148 is therefore in order.

The disputed P146,000.00 from MBAI [AFP Mutual Benefit Association, Inc.], NAPOLCOM, Commutation, Pag-ibig, and PCCUI, are clearly remunerations, incentives and benefits from governmental agencies earned by the deceased as a police officer. Unless respondent Susan Yee presents proof to the contrary, it could not be said that she contributed money, property or industry in the acquisition of these monetary benefits. Hence, they are not owned in common by respondent and the deceased, but belong to the deceased alone and respondent has no right whatsoever to claim the same. By intestate succession, the said “death benefits” of the deceased shall pass to his legal heirs. And, respondent, not being the legal wife of the deceased is not one of them.

As to the property regime of petitioner Susan Nicdao and the deceased, Article 147 of the Family Code governs. This article applies to unions of parties who are legally capacitated and not barred by any impediment to contract marriage, but whose marriage is nonetheless void for other reasons, like the absence of a marriage license. Article 147 of the Family Code reads -

Art. 147. When a man and a woman who are capacitated to marry each other, live exclusively with each other as husband and wife without the benefit of marriage or under a void marriage, their wages and

salaries shall be owned by them in equal shares and the property acquired by both of them through their work or industry shall be governed by the rules on co-ownership.

In the absence of proof to the contrary, properties acquired while they lived together shall be presumed to have been obtained by their joint efforts, work or industry, and shall be owned by them in equal shares. For purposes of this Article, a party who did not participate in the acquisition by the other party of any property shall be deemed to have contributed jointly in the acquisition thereof if the former’s efforts consisted in the care and maintenance of the family and of the household.

x x x

When only one of the parties to a void marriage is in good faith, the share of the party in bad faith in the co-ownership shall be forfeited in favor of their common children. In case of default of or waiver by any or all of the common children or their descendants, each vacant share shall belong to the respective surviving descendants. In the absence of descendants, such share shall belong to the innocent party. In all cases, the forfeiture shall take place upon termination of the cohabitation.

In contrast to Article 148, under the foregoing article, wages and salaries earned by either party during the cohabitation shall be owned by the parties in equal shares and will be divided equally between them, even if only one party earned the wages and the other did not contribute thereto. 19 Conformably, even if the disputed “death benefits” were earned by the deceased alone as a government employee, Article 147 creates a co-ownership in respect thereto, entitling the petitioner to share one-half thereof. As there is no allegation of bad faith in the present case, both parties of the first marriage are presumed to be in good faith. Thus, one-half of the subject “death benefits” under scrutiny shall go to the petitioner as her share in the property regime, and the other half pertaining to the deceased shall pass by, intestate succession, to his legal heirs, namely, his children with Susan Nicdao.

In affirming the decision of the trial court, the Court of Appeals relied on the case of Vda. de Consuegra v. Government Service Insurance System, 20 where the Court awarded one-half of the retirement benefits of the deceased to the first wife and the other half, to the second wife, holding that:

“... [S]ince the defendant’s first marriage has not been dissolved or declared void the conjugal partnership established by that marriage has not ceased. Nor has the first wife lost or relinquished her status as putative heir of her husband under the new Civil Code, entitled to share in his estate upon his death should she survive him. Consequently, whether as conjugal partner in a still subsisting marriage or as such putative heir she has an interest in the husband’s share in the property here in dispute....” And with respect to the right of the second wife, this Court observed that although the second marriage can be presumed to be void ab initio as it was celebrated while the first marriage was still subsisting, still there is need for judicial declaration of such nullity. And inasmuch as the conjugal partnership formed by the second marriage was dissolved before judicial declaration of its nullity, “[t]he only just and equitable solution in this case would be to recognize the right of the second wife to her share of one-half in the property acquired by her and her husband, and consider the other half as pertaining to the conjugal partnership of the first marriage.” 21

It should be stressed, however, that the aforecited decision is premised on the rule which requires a prior and separate judicial declaration of nullity of marriage. This is the reason why in the said case, the Court determined the rights of the parties in accordance with their existing property regime.

In Domingo v. Court of Appeals, 22 however, the Court, construing Article 40 of the Family Code, clarified that a prior and separate declaration of nullity of a marriage is an all important condition precedent only for purposes of remarriage. That is, if a party who is previously married wishes to contract a second marriage, he or she has to obtain first a judicial decree declaring the first marriage void, before he or she could contract said second marriage, otherwise the second marriage would be void. The same rule applies even if the first marriage is patently void because the parties are not free to determine for themselves the validity or invalidity or their marriage. However, for purposes other than to remarry, like for filing a case for collection of sum of money anchored on a marriage claimed to be valid, no prior and separate judicial declaration of nullity is necessary. All that a party has to do is to present evidence, testimonial or documentary, that would prove that the marriage from which his or her rights flow is in fact valid. Thereupon, the court, if material to the determination of the issues before it, will rule on the status of the marriage involved and proceed to determine the rights of the parties in accordance with the applicable laws and jurisprudence. Thus, in Niñal v. Bayadog, 23 the Court explained:

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

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

SO ORDERED.

FIRST DIVISION

[G.R. No. 138509. July 31, 2000]

IMELDA MARBELLA-BOBIS, Petitioner, v. ISAGANI D. BOBIS, respondent.

D E C I S I O N

YNARES-SANTIAGO, J.:

On October 21, 1985, respondent contracted a first marriage with one Maria Dulce B. Javier. Without said marriage having been annulled, nullified or terminated, the same respondent contracted a second marriage with petitioner Imelda Marbella-Bobis on January 25, 1996 and allegedly a third marriage with a certain Julia Sally Hernandez. Based on petitioners complaint-affidavit, an information for bigamy was filed against respondent on February 25, 1998, which was docketed as Criminal Case No. Q98-75611 of the Regional Trial Court, Branch 226, Quezon City. Sometime thereafter, respondent initiated a civil action for the judicial declaration of absolute nullity of his first marriage on the ground that it was celebrated without a marriage license. Respondent then filed a motion to suspend the proceedings in the criminal case for bigamy invoking the pending civil case for nullity of the first marriage as a prejudicial question to the criminal case. The trial judge granted the motion to suspend the criminal case in an Order dated December 29, 1998.1 Petitioner filed a motion for reconsideration, but the same was denied.

Hence, this petition for review on certiorari. Petitioner argues that respondent should have first obtained a judicial declaration of nullity of his first marriage before entering into the second marriage, inasmuch as the alleged prejudicial question justifying suspension of the bigamy case is no longer a legal truism pursuant to Article 40 of the Family Code.2

The issue to be resolved in this petition is whether the subsequent filing of a civil action for declaration of nullity of a previous marriage constitutes a prejudicial question to a criminal case for bigamy.

A prejudicial question is one which arises in a case the resolution of which is a logical antecedent of the issue involved therein.3 It is a question based on a fact distinct and separate from the crime but so intimately connected with it that it determines the guilt or innocence of the accused.4 It must appear not only that the civil case involves facts upon which the criminal action is based, but also that the resolution of the issues raised in the civil action would necessarily be determinative of the criminal case.5 Consequently, the defense must involve an issue similar or intimately related to the same issue raised in the criminal action and its resolution determinative of whether or not the latter action may proceed.6 Its two essential elements are:7

(a) the civil action involves an issue similar or intimately related to the issue raised in the criminal action; and

(b) the resolution of such issue determines whether or not the criminal action may proceed.

A prejudicial question does not conclusively resolve the guilt or innocence of the accused but simply tests the sufficiency of the allegations in the information in order to sustain the further prosecution of the criminal case. A party who raises a prejudicial question is deemed to have hypothetically admitted that all the essential elements of a crime have been adequately alleged in the information, considering that the prosecution has not yet presented a single evidence on the indictment or may not yet have rested its case. A challenge of the allegations in the information on the ground of prejudicial question is in effect a question on the merits of the criminal charge through a non-criminal suit.

Article 40 of the Family Code, which was effective at the time of celebration of the second marriage, requires a prior judicial declaration of nullity of a previous marriage before a party may remarry. The clear implication of this is that it is not for the parties, particularly the accused, to determine the validity or invalidity of the marriage.8 Whether or not the first marriage was void for lack of a license is a matter of defense because there is still no judicial declaration of its nullity at the time the

second marriage was contracted. It should be remembered that bigamy can successfully be prosecuted provided all its elements concur two of which are a previous marriage and a subsequent marriage which would have been valid had it not been for the existence at the material time of the first marriage.9

In the case at bar, respondents clear intent is to obtain a judicial declaration of nullity of his first marriage and thereafter to invoke that very same judgment to prevent his prosecution for bigamy. He cannot have his cake and eat it too. Otherwise, all that an adventurous bigamist has to do is to disregard Article 40 of the Family Code, contract a subsequent marriage and escape a bigamy charge by simply claiming that the first marriage is void and that the subsequent marriage is equally void for lack of a prior judicial declaration of nullity of the first. A party may even enter into a marriage aware of the absence of a requisite - usually the marriage license - and thereafter contract a subsequent marriage without obtaining a declaration of nullity of the first on the assumption that the first marriage is void. Such scenario would render nugatory the provisions on bigamy. As succinctly held in Landicho v. Relova:10

(P)arties to a marriage should not be permitted to judge for themselves its nullity, only competent courts having such authority. Prior to such declaration of nullity, the validity of the first marriage is beyond question. A party who contracts a second marriage then assumes the risk of being prosecuted for bigamy.

Respondent alleges that the first marriage in the case before us was void for lack of a marriage license. Petitioner, on the other hand, argues that her marriage to respondent was exempt from the requirement of a marriage license. More specifically, petitioner claims that prior to their marriage, they had already attained the age of majority and had been living together as husband and wife for at least five years.11 The issue in this case is limited to the existence of a prejudicial question, and we are not called upon to resolve the validity of the first marriage. Be that as it may, suffice it to state that the Civil Code, under which the first marriage was celebrated, provides that "every intendment of law or fact leans toward the validity of marriage, the indissolubility of the marriage bonds."12 Hence, parties should not be permitted to judge for themselves the nullity of their marriage, for the same must be submitted to the determination of competent courts. Only when the nullity of the marriage is so declared can it be held as void, and so long as there is no such declaration the presumption is that the marriage exists.13 No matter how obvious, manifest or patent the absence of an element is, the intervention of the courts must always be resorted to. That is why Article 40 of the Family Code requires a "final judgment," which only the courts can render. Thus, as ruled in Landicho v. Relova,14 he who contracts a second marriage before the judicial declaration of nullity of the first marriage assumes the risk of being prosecuted for bigamy, and in such a case the criminal case may not be suspended on the ground of the pendency of a civil case for declaration of nullity. In a recent case for concubinage, we held that the pendency of a civil case for declaration of nullity of marriage is not a prejudicial question.15 This ruling applies here by analogy since both crimes presuppose the subsistence of a marriage.

Ignorance of the existence of Article 40 of the Family Code cannot even be successfully invoked as an excuse.16 The contracting of a marriage knowing that the requirements of the law have not been complied with or that the marriage is in disregard of a legal impediment is an act penalized by the Revised Penal Code.17 The legality of a marriage is a matter of law and every person is presumed to know the law. As respondent did not obtain the judicial declaration of nullity when he entered into the second marriage, why should he be allowed to belatedly obtain that judicial declaration in order to delay his criminal prosecution and subsequently defeat it by his own disobedience of the law? If he wants to raise the nullity of the previous marriage, he can do it as a matter of defense when he presents his evidence during the trial proper in the criminal case.

The burden of proof to show the dissolution of the first marriage before the second marriage was contracted rests upon the defense,18 but that is a matter that can be raised in the trial of the bigamy case. In the meantime, it should be stressed that not every defense raised in the civil action may be used as a prejudicial question to obtain the suspension of the criminal action. The lower court, therefore, erred in suspending the criminal case for bigamy. Moreover, when respondent was indicted for bigamy, the fact that he entered into two marriage ceremonies appeared indubitable. It was only after he was sued by petitioner for bigamy that he thought of seeking a judicial declaration of nullity of his first marriage. The obvious intent, therefore, is that respondent merely resorted to the civil action as a potential prejudicial question for the purpose of frustrating or delaying his criminal prosecution. As has been discussed above, this cannot be done.

In the light of Article 40 of the Family Code, respondent, without first having obtained the judicial declaration of nullity of the first marriage, can not be said to have validly entered into the second marriage. Per current jurisprudence, a marriage though void still needs a judicial declaration of such fact before any party can marry again; otherwise the second marriage will also be void.19 The reason is that, without a judicial declaration of its nullity, the first marriage is presumed to be subsisting. In the case at bar, respondent was for all legal intents and purposes regarded as a married man at the time he contracted his second marriage with petitioner.20 Against this legal backdrop, any decision in the civil action for nullity would not erase the fact that respondent entered into a second marriage during the subsistence of a first marriage. Thus, a decision in the civil case is not essential to the determination of the criminal charge. It is, therefore, not a prejudicial question. As stated above, respondent cannot be permitted to use his own malfeasance to defeat the criminal action against him.21

WHEREFORE, the petition is GRANTED. The order dated December 29, 1998 of the Regional Trial Court, Branch 226 of Quezon City is REVERSEDand SETASIDE and the trial court is ordered to IMMEDIATELYproceed with Criminal Case No. Q98-75611.

SO ORDERED.

THIRD DIVISION

[G.R. No. 137110. August 1, 2000]

VINCENT PAUL G. MERCADO a.k.a. VINCENT G. MERCADO,, Petitioner, v. CONSUELO TAN, Respondent.

D E C I S I O N

PANGANIBAN, J.:

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 statute as void.

The Case

Before us is a Petition for Review on Certiorari assailing the July 14, 1998 Decision of the Court of Appeals (CA)[1 in CA-GR CR No. 19830 and its January 4, 1999 Resolution denying reconsideration. The assailed Decision affirmed the ruling of the Regional Trial Court (RTC) of Bacolod City in Criminal Case No. 13848, which convicted herein petitioner of bigamy as follows:

WHEREFORE, finding the guilt of accused Dr. Vincent Paul G. Mercado a.k.a. Dr. Vincent G. Mercado of the crime of Bigamy punishable under Article 349 of the Revised Penal Code to have been proven beyond reasonable doubt, [the court hereby renders] judgment imposing upon him a prison term of three (3) years, four (4) months and fifteen (15) days of prision correccional, as minimum of his indeterminate sentence, to eight (8) years and twenty-one (21) days of prision mayor, as maximum, plus accessory penalties provided by law.

Costs against accused.[2

The Facts

The facts are quoted by Court of Appeals (CA) from the trial courts judgment, as follows: From the evidence adduced by the parties, there is no dispute that accused Dr. Vincent Mercado and complainant Ma. Consuelo Tan got married on June 27, 1991 before MTCC-Bacolod City Br. 7 Judge Gorgonio J. Ibaez [by reason of] which a Marriage Contract was duly executed and signed by the parties. As entered in said document, the status of accused was single. There is no dispute either that at the time of the celebration of the wedding with complainant, accused was actually a married man, having been in lawful wedlock with Ma. Thelma Oliva in a marriage ceremony solemnized on April 10, 1976 by Judge Leonardo B. Caares, CFI-Br. XIV, Cebu City per Marriage Certificate issued in connection therewith, which matrimony was further blessed by Rev. Father Arthur Baur on October 10, 1976 in religious rites at the Sacred Heart Church, Cebu City. In the same manner, the civil marriage between accused and complainant was confirmed in a church ceremony on June 29, 1991 officiated by Msgr. Victorino A. Rivas, Judicial Vicar, Diocese of Bacolod City. Both marriages were consummated when out of the first consortium, Ma. Thelma Oliva bore accused two children, while a child, Vincent Paul, Jr. was sired by accused with complainant Ma. Consuelo Tan.

On October 5, 1992, a letter-complaint for bigamy was filed by complainant through counsel with the City Prosecutor of Bacolod City, which eventually resulted [in] the institution of the present case before this Court against said accused, Dr. Vincent G. Mercado, on March 1, 1993 in an Information dated January 22, 1993.

On November 13, 1992, or more than a month after the bigamy case was lodged in the Prosecutors Office, accused filed an action for Declaration of Nullity of Marriage against Ma. Thelma V. Oliva in

RTC-Br. 22, Cebu City, and in a Decision dated May 6, 1993 the marriage between Vincent G. Mercado and Ma. Thelma V. Oliva was declared null and void.

Accused is charged [with] bigamy under Article 349 of the Revised Penal Code for having contracted a second marriage with herein complainant Ma. Consuelo Tan on June 27, 1991 when at that time he was previously united in lawful marriage with Ma. Thelma V. Oliva on April 10, 1976 at Cebu City, without said first marriage having been legally dissolved. As shown by the evidence and admitted by accused, all the essential elements of the crime are present, namely: (a) that the offender has been previously legally married; (2) that the first marriage has not been legally dissolved or in case the spouse is absent, the absent spouse could not yet be presumed dead according to the Civil Code; (3) that he contract[ed] a second or subsequent marriage; and (4) that the second or subsequent marriage ha[d] all the essential requisites for validity. x x x

While acknowledging the existence of the two marriage[s], accused posited the defense that his previous marriage ha[d] been judicially declared null and void and that the private complainant had knowledge of the first marriage of accused.

It is an admitted fact that when the second marriage was entered into with Ma. Consuelo Tan on June 27, 1991, accuseds prior marriage with Ma. Thelma V. Oliva was subsisting, no judicial action having yet been initiated or any judicial declaration obtained as to the nullity of such prior marriage with Ma. Thelma V. Oliva. Since no declaration of the nullity of his first marriage ha[d] yet been made at the time of his second marriage, it is clear that accused was a married man when he contracted such second marriage with complainant on June 27, 1991. He was still at the time validly married to his first wife.[3

Ruling of the Court of Appeals

Agreeing with the lower court, the Court of Appeals stated:

Under Article 40 of the Family Code, the absolute nullity of a previous marriage may be invoked for purposes of remarriage on the basis solely of a final judgment declaring such previous marriage void. But here, the final judgment declaring null and void accuseds previous marriage came not before the celebration of the second marriage, but after, when the case for bigamy against accused was already tried in court. And what constitutes the crime of bigamy is the act of any person who shall contract a second subsequent marriage before the former marriage has been legally dissolved.[4

Hence, this Petition.[5

The Issues

In his Memorandum, petitioner raises the following issues:

A

Whether or not the element of previous legal marriage is present in order to convict petitioner.

B

Whether or not a liberal interpretation in favor of petitioner of Article 349 of the Revised Penal Code punishing bigamy, in relation to Articles 36 and 40 of the Family Code, negates the guilt of petitioner.

C

Whether or not petitioner is entitled to an acquittal on the basis of reasonable doubt.[6

The Courts Ruling

The Petition is not meritorious.

Main Issue:Effect of Nullity of Previous Marriage

Petitioner was convicted of bigamy under Article 349 of the Revised Penal Code, which provides:

The penalty of prision mayor shall be imposed upon any person who shall contract a second or subsequent marriage before the former marriage has been legally dissolved, or before the absent spouse has been declared presumptively dead by means of a judgment rendered in the proper proceedings.

The elements of this crime are as follows:

1. That the offender has been legally married;

2. That the marriage has not been legally dissolved or, in case his or her spouse is absent, the absent spouse could not yet be presumed dead according to the Civil Code;

3. That he contracts a second or subsequent marriage;

4. That the second or subsequent marriage has all the essential requisites for validity.[7

When the Information was filed on January 22, 1993, all the elements of bigamy were present. It is undisputed that petitioner married Thelma G. Oliva on April 10, 1976 in Cebu City. While that marriage was still subsisting, he contracted a second marriage, this time with Respondent Ma. Consuelo Tan who subsequently filed the Complaint for bigamy.

Petitioner contends, however, that he obtained a judicial declaration of nullity of his first marriage under Article 36 of the Family Code, thereby rendering it void ab initio. Unlike voidable marriages which are considered valid until set aside by a competent court, he argues that a void marriage is deemed never to have taken place at all.[8 Thus, he concludes that there is no first marriage to speak of. Petitioner also quotes the commentaries[9 of former Justice Luis Reyes that it is now settled that if the first marriage is void from the beginning, it is a defense in a bigamy charge. But if the first marriage is voidable, it is not a defense.

Respondent, on the other hand, admits that the first marriage was declared null and void under Article 36 of the Family Code, but she points out that that declaration came only after the Information had been filed. Hence, by then, the crime had already been consummated. She argues that a judicial declaration of nullity of a void previous marriage must be obtained before a person can marry for a subsequent time.

We agree with the respondent.

To be sure, jurisprudence regarding the need for a judicial declaration of nullity of the previous marriage has been characterized as conflicting.[10 In People v. Mendoza,[11 a bigamy case involving an accused who married three times, the Court ruled that there was no need for such declaration. In that case, the accused contracted a second marriage during the subsistence of the first. When the first wife died, he married for the third time. The second wife then charged him with bigamy. Acquitting him, the Court held that the second marriage was void ab initio because it had been contracted while the first marriage was still in effect. Since the second marriage was obviously void and illegal, the Court ruled that there was no need for a judicial declaration of its nullity. Hence, the accused did not commit bigamy when he married for the third time. This ruling was affirmed by the Court in People v. Aragon,[12 which involved substantially the same facts.

But in subsequent cases, the Court impressed the need for a judicial declaration of nullity. In Vda de Consuegra v. GSIS,[13 Jose Consuegra married for the second time while the first marriage was still subsisting. Upon his death, the Court awarded one half of the proceeds of his retirement benefits to the first wife and the other half to the second wife and her children, notwithstanding the manifest nullity of the second

marriage. It held: And with respect to the right of the second wife, this Court observes that although the second marriage can be presumed to be void ab initio as it was celebrated while the first marriage was still subsisting, still there is need for judicial declaration of such nullity.

In Tolentino v. Paras,[14 however, the Court again held that judicial declaration of nullity of a void marriage was not necessary. In that case, a man married twice. In his Death Certificate, his second wife was named as his surviving spouse. The first wife then filed a Petition to correct the said entry in the Death Certificate. The Court ruled in favor of the first wife, holding that the second marriage that he contracted with private respondent during the lifetime of the first spouse is null and void from the beginning and of no force and effect. No judicial decree is necessary to establish the invalidity of a void marriage.

In Wiegel v. Sempio-Diy,[15 the Court stressed the need for such declaration. In that case, Karl Heinz Wiegel filed an action for the declaration of nullity of his marriage to Lilia Olivia Wiegel on the ground that the latter had a prior existing marriage. After pretrial, Lilia asked that she be allowed to present evidence to prove, among others, that her first husband had previously been married to another woman. In holding that there was no need for such evidence, the Court ruled: x x x There is likewise no need of introducing evidence about the existing prior marriage of her first husband at the time they married each other, for then such a marriage though void still needs, according to this Court, a judicial declaration of such fact and for all legal intents and purposes she would still be regarded as a married woman at the time she contracted her marriage with respondent Karl Heinz Wiegel; x x x.

Subsequently, in Yap v. CA,[16 the Court reverted to the ruling in People v. Mendoza, holding that there was no need for such declaration of nullity.

In Domingo v. CA,[17 the issue raised was whether a judicial declaration of nullity was still necessary for the recovery and the separation of properties of erstwhile spouses. Ruling in the affirmative, the Court declared: The Family Code has settled once and for all the conflicting jurisprudence on the matter. A declaration of the absolute nullity of a marriage is now explicitly required either as a cause of action or a ground for defense; in fact, the requirement for a declaration of absolute nullity of a marriage is also for the protection of the spouse who, believing that his or her marriage is illegal and void, marries again. With the judicial declaration of the nullity of his or her first marriage, the person who marries again cannot be charged with bigamy.[18

Unlike Mendoza and Aragon, Domingo as well as the other cases herein cited was not a criminal prosecution for bigamy. Nonetheless, Domingo underscored the need for a judicial declaration of nullity of a void marriage on the basis of a new provision of the Family Code, which came into effect several years after the promulgation of Mendoza and Aragon.

In Mendoza and Aragon, the Court relied on Section 29 of Act No. 3613 (Marriage Law), which provided:

Illegal marriages. Any marriage subsequently contracted by any person during the lifetime of the first spouse shall be illegal and void from its performance, unless:

(a) The first marriage was annulled or dissolved;

(b) The first spouse had been absent for seven consecutive years at the time of the second marriage without the spouse present having news of the absentee being alive, or the absentee being generally considered as dead and believed to be so by the spouse present at the time of contracting such subsequent marriage, the marriage as contracted being valid in either case until declared null and void by a competent court."

The Court held in those two cases that the said provision plainly makes a subsequent marriage contracted by any person during the lifetime of his first spouse illegal and void from its performance, and no judicial decree is necessary to establish its invalidity, as distinguished from mere annulable marriages.[19

The provision appeared in substantially the same form under Article 83 of the 1950 Civil Code and Article 41 of the Family Code. However, Article 40 of the Family Code, a new provision, expressly requires a judicial declaration of nullity of the previous marriage, as follows:

ART. 40. The absolute nullity of a previous marriage may be invoked for purposes of remarriage on the basis solely of a final judgment declaring such marriage void.

In view of this provision, Domingo stressed that a final judgment declaring such marriage void was necessary. Verily, the Family Code and Domingo affirm the earlier ruling in Wiegel. Thus, a Civil Law authority and member of the Civil Code Revision Commitee has observed:

[Article 40] is also in line with the recent decisions of the Supreme Court that the marriage of a person may be null and void but there is need of a judicial declaration of such fact before that person can marry again; otherwise, the second marriage will also be void (Wiegel v. Sempio-Diy, Aug. 19/86, 143 SCRA 499, Vda. De Consuegra v. GSIS, 37 SCRA 315). This provision changes the old rule that where a marriage is illegal and void from its performance, no judicial decree is necessary to establish its validity (People v. Mendoza, 95 Phil. 843; People v. Aragon, 100 Phil. 1033).[20

In this light, the statutory mooring of the ruling in Mendoza and Aragon that there is no need for a judicial declaration of nullity of a void marriage -- has been cast aside by Article 40 of the Family Code. Such declaration is now necessary before one can contract a second marriage. Absent that declaration, we hold that one may be charged with and convicted of bigamy.

The present ruling is consistent with our pronouncement in Terre v. Terre,[21 which involved an administrative Complaint against a lawyer for marrying twice. In rejecting the lawyers argument that he was free to enter into a second marriage because the first one was void ab initio, the Court ruled: for purposes of determining whether a person is legally free to contract a second marriage, a judicial declaration that the first marriage was null and void ab initio is essential. The Court further noted that the said rule was cast into statutory form by Article 40 of the Family Code. Significantly, it observed that the second marriage, contracted without a judicial declaration that the first marriage was void, was bigamous and criminal in character.

Moreover, Justice Reyes, an authority in Criminal Law whose earlier work was cited by petitioner, changed his view on the subject in view of Article 40 of the Family Code and wrote in 1993 that a person must first obtain a judicial declaration of the nullity of a void marriage before contracting a subsequent marriage:[22

It is now settled that the fact that the first marriage is void from the beginning is not a defense in a bigamy charge. As with a voidable marriage, there must be a judicial declaration of the nullity of a marriage before contracting the second marriage. Article 40 of the Family Code states that x x x. The Code Commission believes that the parties to a marriage should not be allowed to assume that their marriage is void, even if such is the fact, but must first secure a judicial declaration of nullity of their marriage before they should be allowed to marry again. x x x.

In the instant case, petitioner contracted a second marriage although there was yet no judicial declaration of nullity of his first marriage. In fact, he instituted the Petition to have the first marriage declared void only after complainant had filed a letter-complaint charging him with bigamy. By contracting a second marriage while the first was still subsisting, he committed the acts punishable under Article 349 of the Revised Penal Code.

That he subsequently obtained a judicial declaration of the nullity of the first marriage was immaterial. To repeat, the crime had already been consummated by then. Moreover, his view effectively encourages delay in the prosecution of bigamy cases; an accused could simply file a petition to declare his previous marriage void and invoke the pendency of that action as a prejudicial question in the criminal case. We cannot allow that.

Under the circumstances of the present case, he is guilty of the charge against him.

Damages

In her Memorandum, respondent prays that the Court set aside the ruling of the Court of Appeals insofar as it denied her claim of damages and attorneys fees.[23

Her prayer has no merit. She did not appeal the ruling of the CA against her; hence, she cannot obtain affirmative relief from this Court.[24 In any event, we find no reason to reverse or set aside the pertinent ruling of the CA on this point, which we quote hereunder:

We are convinced from the totality of the evidence presented in this case that Consuelo Tan is not the innocent victim that she claims to be; she was well aware of the existence of the previous marriage when she contracted matrimony with Dr. Mercado. The testimonies of the defense witnesses prove this, and we find no reason to doubt said testimonies.

x x x

Indeed, the claim of Consuelo Tan that she was not aware of his previous marriage does not inspire belief, especially as she had seen that Dr. Mercado had two (2) children with him. We are convinced that she took the plunge anyway, relying on the fact that the first wife would no longer return to Dr. Mercado, she being by then already living with another man.

Consuelo Tan can therefore not claim damages in this case where she was fully conscious of the consequences of her act. She should have known that she would suffer humiliation in the event the truth [would] come out, as it did in this case, ironically because of her personal instigation. If there are indeed damages caused to her reputation, they are of her own willful making.[25

WHEREFORE, the Petition is DENIED and the assailed Decision AFFIRMED. Costs against petitioner.

SO ORDERED.

SECOND DIVISION

[G.R. No. 127406.  November 27, 2000]

OFELIA P. TY, petitioner, vs. THE COURT OF APPEALS, and EDGARDO M. REYES, respondents.

D E C I S I O N

QUISUMBING, J.:

This appeal seeks the reversal of the decision dated July 24, 1996, of the Court of Appeals in C.A. – G.R. CV 37897, which affirmed the decision of the Regional Trial Court of Pasig, Branch 160, declaring the marriage contract between private respondent Edgardo M. Reyes and petitioner Ofelia P. Ty null and void ab initio.  It also ordered private respondent to pay P15,000.00 as monthly support for their children Faye Eloise Reyes and Rachel Anne Reyes.

As shown in the records of the case, private respondent married Anna Maria Regina Villanueva in a civil ceremony on March 29, 1977, in Manila.  Then they had a church wedding on August 27, 1977.  However, on August 4, 1980, the Juvenile and Domestic Relations Court of Quezon City declared their marriage null and void ab initio for lack of a valid marriage license .  The church wedding on August 27, 1977, was also declared null and void ab initio for lack of consent of the parties.

Even before the decree was issued nullifying his marriage to Anna Maria, private respondent wed Ofelia P. Ty, herein petitioner, on April 4, 1979, in ceremonies officiated by the judge of the City Court of Pasay.  On April 4, 1982, they also had a church wedding in Makati, Metro Manila.

On January 3, 1991, private respondent filed a Civil Case 1853-J with the RTC of Pasig, Branch 160, praying that his marriage to petitioner be declared null and void .  He alleged that they had no marriage license when they got married.  He also averred that at the time he married petitioner, he was still married to Anna Maria.  He stated that at the time he married petitioner the decree of nullity of his marriage to Anna Maria had not been issued.  The decree of nullity of his marriage to Anna Maria was rendered only on August 4, 1980, while his civil marriage to petitioner took place on April 4, 1979.

Petitioner, in defending her marriage to private respondent, pointed out that his claim that their marriage was contracted without a valid license is untrue.  She submitted their Marriage License No. 5739990 issued at Rosario, Cavite on April 3, 1979, as Exh. 11, 12 and 12-A. He did not question this document when it was submitted in evidence.  Petitioner also submitted the decision of the Juvenile and Domestic Relations Court of Quezon City dated August 4, 1980, which declared null and void his civil marriage to Anna Maria Regina Villanueva celebrated on March 29, 1977, and his church marriage to said Anna Maria on August 27, 1977.  These documents were submitted as evidence during trial and, according to petitioner, are therefore deemed sufficient proof of the facts therein.  The fact that the civil marriage of private respondent and petitioner took place on April 4, 1979, before the judgment declaring his prior marriage as null and void is undisputed.  It also appears indisputable that private respondent and petitioner had a church wedding ceremony on April 4, 1982.

The Pasig RTC sustained private respondent’s civil suit and declared his marriage to herein petitioner null and void ab initio in its decision dated November 4, 1991.  Both parties appealed to respondent Court of Appeals.  On July 24, 1996, the appellate court affirmed the trial court’s decision.  It ruled that a judicial declaration of nullity of the first marriage (to Anna Maria) must first be secured before a subsequent marriage could be validly contracted.  Said the appellate court:

We can accept, without difficulty, the doctrine cited by defendant’s counsel that ‘no judicial decree is necessary to establish the invalidity of void marriages.’ It does not say, however, that a second marriage may proceed even without a judicial decree.  While it is true that if a marriage is null and void, ab initio, there is in fact no subsisting marriage, we are unwilling to rule that the matter of whether a marriage is valid or not is for each married spouse to determine for himself – for this would be the consequence of allowing a spouse to proceed to a second marriage even before a competent court issues a judicial decree of nullity of his first marriage.  The results would be disquieting, to say the least, and could not have been the intendment of even the now-repealed provisions of the Civil Code on marriage.

x x x

WHEREFORE, upon the foregoing ratiocination, We modify the appealed Decision in this wise:

1.  The marriage contracted by plaintiff-appellant [herein private respondent] Eduardo M. Reyes and defendant-appellant [herein petitioner] Ofelia P. Ty is declared null and void ab initio;

2.  Plaintiff-appellant Eduardo M. Reyes is ordered to give monthly support in the amount of P15,000.00 to his children Faye Eloise Reyes and Rachel Anne Reyes from November 4, 1991; and

3.  Cost against plaintiff-appellant Eduardo M. Reyes.

SO ORDERED.

Petitioner’s motion for reconsideration was denied.  Hence, this instant petition asserting that the Court of Appeals erred:

I.

BOTH IN THE DECISION AND THE RESOLUTION, IN REQUIRING FOR THE VALIDITY OF PETITIONER’S MARRIAGE TO RESPONDENT, A JUDICIAL DECREE NOT REQUIRED BY LAW.

II

IN THE RESOLUTION, IN APPLYING THE RULING IN DOMINGO VS. COURT OF APPEALS.

III

IN BOTH THE DECISION AND RESOLUTION IN NOT CONSIDERING THE CIVIL EFFECTS OF THE RELIGIOUS RATIFICATION WHICH USED THE SAME MARRIAGE LICENSE.

IV

IN THE DECISION NOT GRANTING MORAL AND EXEMPLARY DAMAGES TO THE DEFENDANT-APPELLANT.

The principal issue in this case is whether the decree of nullity of the first marriage is required before a subsequent marriage can be entered into validly?  To resolve this question, we shall go over applicable laws and pertinent cases to shed light on the assigned errors, particularly the first and the second which we shall discuss jointly.

In sustaining the trial court, the Court of Appeals declared the marriage of petitioner to private respondent null and void for lack of a prior judicial decree of nullity of the marriage between private respondent and Villanueva.  The appellate court rejected petitioner’s claim that People v. Mendoza and People v. Aragon are applicable in this case.  For these cases held that where a marriage is void from its performance, no judicial decree is necessary to establish its invalidity.  But the appellate court said these cases, decided before the enactment of the Family Code (E.O. No. 209 as amended by E.O No. 227), no longer control.  A binding decree is now needed and must be read into the provisions of law previously obtaining.

In refusing to consider petitioner’s appeal favorably, the appellate court also said:

Terre v. Attorney Terre, Adm. Case No. 2349, 3 July 1992 is mandatory precedent for this case. Although decided by the High Court in 1992, the facts situate it within the regime of the now-repealed provisions of the Civil Code, as in the instant case.

x x x

For purposes of determining whether a person is legally free to contract a second marriage, a judicial declaration that the first marriage was null and void ab initio is essential. . . .

At the outset, we must note that private respondent’s first and second marriages contracted in 1977 and 1979, respectively, are governed by the provisions of the Civil Code.  The present case differs significantly from the recent cases of Bobis v. Bobis and Mercado v. Tan, both involving a criminal case for bigamy where the bigamous marriage was contracted during the effectivity of the Family Code, under which a judicial declaration of nullity of marriage is clearly required.

Pertinent to the present controversy, Article 83 of the Civil Code provides that:

Art. 83.  Any marriage subsequently contracted by any person during the lifetime of the first spouse of such person with any person other than such first spouse shall be illegal and void from its performance, unless:

(1)  The first marriage was annulled or dissolved; or

(2) The first spouse had been absent for seven consecutive years at the time of the second marriage without the spouse present having news of the absentee being alive, or if the absentee, though he has been absent for less than seven years, is generally considered as dead and before any person believed to be so by the spouse present at the time of contracting such subsequent marriage, or if the absentee is presumed dead according to articles 390 and 391.  The marriage so contracted shall be valid in any of the three cases until declared null and void by a competent court.

As to whether a judicial declaration of nullity of a void marriage is necessary, the Civil Code contains no express provision to that effect.  Jurisprudence on the matter, however, appears to be conflicting.

Originally, in People v. Mendoza, and People v. Aragon, this Court held that no judicial decree is necessary to establish the nullity of a void marriage.  Both cases involved the same factual milieu.  Accused contracted a second marriage during the subsistence of his first marriage.  After the death of his first wife, accused contracted a third marriage during the subsistence of the second marriage.  The second wife initiated a complaint for bigamy.  The Court acquitted accused on the ground that the second marriage is void, having been contracted during the existence of the first marriage.  There is no need for a judicial declaration that said second marriage is void.  Since the second marriage is void, and the first one terminated by the death of his wife, there are no two subsisting valid marriages.  Hence, there can be no bigamy.  Justice Alex Reyes dissented in both cases, saying that it is not for the spouses but the court to judge whether a marriage is void or not.

In Gomez v. Lipana, and Consuegra v. Consuegra, however, we recognized the right of the second wife who entered into the marriage in good faith, to share in their acquired estate and in proceeds of the retirement insurance of the husband.  The Court observed that although the second marriage can be presumed to be void ab initio as it was celebrated while the first marriage was still subsisting, still there was a need for judicial declaration of such nullity (of the second marriage).  And since the death of the husband supervened before such declaration, we upheld the right of the second wife to share in the estate they acquired, on grounds of justice and equity.

But in Odayat v. Amante (1977), the Court adverted to Aragon and Mendoza as precedents.  We exonerated a clerk of court of the charge of immorality on the ground that his marriage to Filomena Abella in October of 1948 was void, since she was already previously married to one Eliseo Portales in February of the same year.  The Court held that no judicial decree is necessary to establish the invalidity of void marriages.  This ruling was affirmed in Tolentino v. Paras.

Yet again in Wiegel v. Sempio-Diy (1986), the Court held that there is a need for a judicial declaration of nullity of a void marriage.  In Wiegel, Lilia married Maxion in 1972.  In 1978, she married another man, Wiegel.  Wiegel filed a petition with the Juvenile Domestic Relations Court to declare his marriage to Lilia as void on the ground of her previous valid marriage.  The Court, expressly relying on Consuegra, concluded that:

There is likewise no need of introducing evidence about the existing prior marriage of her first husband at the time they married each other, for then such a marriage though void still needs according to this Court a judicial declaration (citing Consuegra) of such fact and for all legal intents and purposes she would still be regarded as a married woman at the time she contracted her marriage with respondent Karl Heinz Wiegel; accordingly, the marriage of petitioner and respondent would be regarded VOID under the law.  (Emphasis supplied).

In Yap v. Court of Appeals, however, the Court found the second marriage void without need of judicial declaration, thus reverting to the Odayat, Mendoza and Aragon rulings.

At any rate, the confusion under the Civil Code was put to rest under the Family Code.  Our rulings in Gomez, Consuegra, and Wiegel were eventually embodied in Article 40 of the Family Code. Article 40 of said Code expressly required a judicial declaration of nullity of marriage –

Art. 40.  The absolute nullity of a previous marriage may be invoked for purposes of remarriage on the basis solely of a final judgment declaring such previous marriage void.

In Terre v. Terre (1992) the Court, applying Gomez, Consuegra and Wiegel, categorically stated that a judicial declaration of nullity of a void marriage is necessary.  Thus, we disbarred a lawyer for contracting a bigamous marriage during the subsistence of his first marriage.  He claimed that his first marriage in 1977 was void since his first wife was already married in 1968.  We held that Atty. Terre should have known that the prevailing case law is that “for purposes of determining whether a person is legally free to contract a second marriage, a judicial declaration that the first marriage was null and void ab initio is essential.”

The Court applied this ruling in subsequent cases.  In Domingo v. Court of Appeals (1993), the Court held:

Came the Family Code which settled once and for all the conflicting jurisprudence on the matter.  A declaration of absolute nullity of marriage is now explicitly required either as a cause of action or a ground for defense.  (Art. 39 of the Family Code).  Where the absolute nullity of a previous marriage is sought to be invoked for purposes of contracting a second marriage, the sole basis acceptable in law for said projected marriage to be free from legal infirmity is a final judgment declaring the previous marriage void.  (Family Code, Art. 40; See also arts. 11, 13, 42, 44, 48, 50, 52, 54, 86, 99, 147, 148).

However, a recent case applied the old rule because of the peculiar circumstances of the case.   In Apiag v. Cantero , (1997) the first wife charged a municipal trial judge of immorality for entering into a second marriage.   The judge claimed that his first marriage was void since he was merely forced into marrying his first wife whom he got pregnant.   On the issue of nullity of the first marriage, we applied Odayat , Mendoza and Aragon .   We held that since the second marriage took place and all the children thereunder were born before the promulgation of Wiegel and the effectivity of the Family Code, there is no need for a judicial declaration of nullity of the first marriage pursuant to prevailing jurisprudence at that time.

Similarly, in the present case, the second marriage of private respondent was entered into in 1979, before Wiegel.  At that time, the prevailing rule was found in Odayat, Mendoza and Aragon.  The first marriage of private respondent being void for lack of license and consent, there was no need for judicial declaration of its nullity before he could contract a second marriage.  In this case, therefore, we conclude that private respondent’s second marriage to petitioner is valid .

Moreover, we find that the provisions of the Family Code cannot be retroactively applied to the present case, for to do so would prejudice the vested rights of petitioner and of her children.  As held in Jison v. Court of Appeals, the Family Code has retroactive effect unless there be impairment of vested rights.  In the present case, that impairment of vested rights of petitioner and the children is patent.  Additionally, we are not quite prepared to give assent to the appellate court’s finding that despite private respondent’s “deceit and perfidy” in contracting marriage with petitioner, he could benefit from her silence on the issue.  Thus, coming now to the civil effects of the church ceremony wherein petitioner married private respondent using the marriage license used three years earlier in the civil ceremony, we find that petitioner now has

raised this matter properly.  Earlier petitioner claimed as untruthful private respondent’s allegation that he wed petitioner but they lacked a marriage license.  Indeed we find there was a marriage license, though it was the same license issued on April 3, 1979 and used in both the civil and the church rites.  Obviously, the church ceremony was confirmatory of their civil marriage.  As petitioner contends, the appellate court erred when it refused to recognize the validity and salutary effects of said canonical marriage on a technicality, i.e. that petitioner had failed to raise this matter as affirmative defense during trial.  She argues that such failure does not prevent the appellate court from  giving  her  defense  due  consideration and weight.  She adds that the interest of the State in protecting the inviolability of marriage, as a legal and social institution, outweighs such technicality.  In our view, petitioner and private respondent had complied with all the essential and formal requisites for a valid marriage, including the requirement of a valid license in the first of the two ceremonies.  That this license was used legally in the celebration of the civil ceremony does not detract from the ceremonial use thereof in the church wedding of the same parties to the marriage, for we hold that the latter rites served not only to ratify but also to fortify the first.  The appellate court might have its reasons for brushing aside this possible defense of the defendant below which undoubtedly could have tendered a valid issue, but which was not timely interposed by her before the trial court.  But we are now persuaded we cannot play blind to the absurdity, if not inequity, of letting the wrongdoer profit from what the CA calls “his own deceit and perfidy.”

On the matter of petitioner’s counterclaim for damages and attorney’s fees.  Although the appellate court admitted that they found private respondent acted “duplicitously and craftily” in marrying petitioner, it did not award moral damages because the latter did not adduce evidence to support her claim.

Like the lower courts, we are also of the view that no damages should be awarded in the present case, but for another reason.  Petitioner wants her marriage to private respondent held valid and subsisting.  She is suing to maintain her status as legitimate wife.   In the same breath, she asks for damages from her husband for filing a baseless complaint for annulment of their marriage which caused her mental anguish, anxiety, besmirched reputation, social humiliation and alienation from her parents.   Should we grant her prayer, we would have a situation where the husband pays the wife damages from conjugal or common funds.  To do so, would make the application of the law absurd.  Logic, if not common sense, militates against such incongruity.  Moreover, our laws do not comprehend an action for damages between husband and wife merely because of breach of a marital obligation. There are other remedies.

WHEREFORE, the petition is GRANTED.  The assailed Decision of the Court of Appeals dated July 24, 1996 and its Resolution dated November 7, 1996, are reversed partially, so that the marriage of petitioner Ofelia P. Ty and private respondent Edgardo M. Reyes is hereby DECLARED VALID AND SUBSISTING; and the award of the amount of P15,000.00 is RATIFIED and MAINTAINED as monthly support to their two children, Faye Eloise Reyes and Rachel Anne Reyes, for as long as they are of minor age or otherwise legally entitled thereto. Costs against private respondent.

SO ORDERED.

SECOND DIVISION

G.R. No. 145226. February 06, 2004

LUCIO MORIGO y CACHO,, Petitioner, v. PEOPLE OF THE PHILIPPINES, Respondent.

D E C I S I O N

QUISUMBING, J.:

This petition for review on certiorari seeks to reverse the decision1 dated October 21, 1999 of the Court of Appeals in CA-G.R. CR No. 20700, which affirmed the judgment2 dated August 5, 1996 of the Regional Trial Court (RTC) of Bohol, Branch 4, in Criminal Case No. 8688. The trial court found herein petitioner Lucio Morigo y Cacho guilty beyond reasonable doubt of bigamy and sentenced him to a prison term of seven (7) months of prision correccional as minimum to six (6) years and one (1) day of prision mayor as maximum. Also assailed in this petition is the resolution3 of the appellate court, dated September 25, 2000, denying Morigos motion for reconsideration.

The facts of this case, as found by the court a quo, are as follows:

Appellant Lucio Morigo and Lucia Barrete were boardmates at the house of Catalina Tortor at Tagbilaran City, Province of Bohol, for a period of four (4) years (from 1974-1978).

After school year 1977-78, Lucio Morigo and Lucia Barrete lost contact with each other.

In 1984, Lucio Morigo was surprised to receive a card from Lucia Barrete from Singapore. The former replied and after an exchange of letters, they became sweethearts.

In 1986, Lucia returned to the Philippines but left again for Canada to work there. While in Canada, they maintained constant communication.

In 1990, Lucia came back to the Philippines and proposed to petition appellant to join her in Canada. Both agreed to get married, thus they were married on August 30, 1990 at the Iglesia de Filipina Nacional at Catagdaan, Pilar, Bohol.

On September 8, 1990, Lucia reported back to her work in Canada leaving appellant Lucio behind.

On August 19, 1991, Lucia filed with the Ontario Court (General Division) a petition for divorce against appellant which was granted by the court on January 17, 1992 and to take effect on February 17, 1992.

On October 4, 1992, appellant Lucio Morigo married Maria Jececha Lumbago 4 at the Virgen sa Barangay Parish , Tagbilaran City, Bohol.

On September 21, 1993, accused filed a complaint for judicial declaration of nullity of marriage in the Regional Trial Court of Bohol, docketed as Civil Case No. 6020. The complaint seek (sic) among others, the declaration of nullity of accuseds marriage with Lucia, on the ground that no marriage ceremony actually took place.

On October 19, 1993, appellant was charged with Bigamy in an Information 5 filed by the City Prosecutor of Tagbilaran [City], with the Regional Trial Court of Bohol. 6

The petitioner moved for suspension of the arraignment on the ground that the civil case for judicial nullification of his marriage with Lucia posed a prejudicial question in the bigamy case. His motion was granted, but subsequently denied upon motion for reconsideration by the prosecution. When arraigned in the bigamy case, which was docketed as Criminal Case No. 8688, herein petitioner pleaded not guilty to the charge. Trial thereafter ensued.

On August 5, 1996, the RTC of Bohol handed down its judgment in Criminal Case No. 8688, as follows:

WHEREFORE, foregoing premises considered, the Court finds accused Lucio Morigo y Cacho guilty beyond reasonable doubt of the crime of Bigamy and sentences him to suffer the penalty of imprisonment ranging from Seven (7) Months of Prision Correccional as minimum to Six (6) Years and One (1) Day of Prision Mayor as maximum.

SO ORDERED.7

In convicting herein petitioner, the trial court discounted petitioners claim that his first marriage to Lucia was null and void ab initio. Following Domingo v. Court of Appeals,8 the trial court ruled that want of a valid marriage ceremony is not a defense in a charge of bigamy. The parties to a marriage should not be

allowed to assume that their marriage is void even if such be the fact but must first secure a judicial declaration of the nullity of their marriage before they can be allowed to marry again.

Anent the Canadian divorce obtained by Lucia, the trial court cited Ramirez v. Gmur,9 which held that the court of a country in which neither of the spouses is domiciled and in which one or both spouses may resort merely for the purpose of obtaining a divorce, has no jurisdiction to determine the matrimonial status of the parties. As such, a divorce granted by said court is not entitled to recognition anywhere. Debunking Lucios defense of good faith in contracting the second marriage, the trial court stressed that following People v. Bitdu,10 everyone is presumed to know the law, and the fact that one does not know that his act constitutes a violation of the law does not exempt him from the consequences thereof.

Seasonably, petitioner filed an appeal with the Court of Appeals, docketed as CA-G.R. CR No. 20700.

Meanwhile, on October 23, 1997, or while CA-G.R. CR No. 20700 was pending before the appellate court, the trial court rendered a decision in Civil Case No. 6020 declaring the marriage between Lucio and Lucia void ab initio since no marriage ceremony actually took place. No appeal was taken from this decision, which then became final and executory.

On October 21, 1999, the appellate court decided CA-G.R. CR No. 20700 as follows:

WHEREFORE, finding no error in the appealed decision, the same is hereby AFFIRMED in toto.

SO ORDERED.11

In affirming the assailed judgment of conviction, the appellate court stressed that the subsequent declaration of nullity of Lucios marriage to Lucia in Civil Case No. 6020 could not acquit Lucio. The reason is that what is sought to be punished by Article 34912 of the Revised Penal Code is the act of contracting a second marriage before the first marriage had been dissolved. Hence, the CA held, the fact that the first marriage was void from the beginning is not a valid defense in a bigamy case.

The Court of Appeals also pointed out that the divorce decree obtained by Lucia from the Canadian court could not be accorded validity in the Philippines, pursuant to Article 1513 of the Civil Code and given the fact that it is contrary to public policy in this jurisdiction. Under Article 1714 of the Civil Code, a declaration of public policy cannot be rendered ineffectual by a judgment promulgated in a foreign jurisdiction.

Petitioner moved for reconsideration of the appellate courts decision, contending that the doctrine in Mendiola v. People,15 allows mistake upon a difficult question of law (such as the effect of a foreign divorce decree) to be a basis for good faith.

On September 25, 2000, the appellate court denied the motion for lack of merit.16 However, the denial was by a split vote. The ponente of the appellate courts original decision in CA-G.R. CR No. 20700, Justice Eugenio S. Labitoria, joined in the opinion prepared by Justice Bernardo P. Abesamis. The dissent observed that as the first marriage was validly declared void ab initio, then there was no first marriage to speak of. Since the date of the nullity retroacts to the date of the first marriage and since herein petitioner was, in the eyes of the law, never married, he cannot be convicted beyond reasonable doubt of bigamy.

The present petition raises the following issues for our resolution:

A.

WHETHER OR NOT THE COURT OF APPEALS ERRED IN FAILING TO APPLY THE RULE THAT IN CRIMES PENALIZED UNDER THE REVISED PENAL CODE, CRIMINAL INTENT IS AN INDISPENSABLE REQUISITE. COROLLARILY, WHETHER OR NOT THE COURT OF APPEALS ERRED IN FAILING TO APPRECIATE [THE] PETITIONERS LACK OF CRIMINAL INTENT WHEN HE CONTRACTED THE SECOND MARRIAGE.

B.

WHETHER OR NOT THE COURT OF APPEALS ERRED IN HOLDING THAT THE RULING IN PEOPLE VS. BITDU (58 PHIL. 817) IS APPLICABLE TO THE CASE AT BAR.

C.

WHETHER OR NOT THE COURT OF APPEALS ERRED IN FAILING TO APPLY THE RULE THAT EACH AND EVERY CIRCUMSTANCE FAVORING THE INNOCENCE OF THE ACCUSED MUST BE TAKEN INTO ACCOUNT.17

To our mind, the primordial issue should be whether or not petitioner committed bigamy and if so, whether his defense of good faith is valid.

The petitioner submits that he should not be faulted for relying in good faith upon the divorce decree of the Ontario court. He highlights the fact that he contracted the second marriage openly and publicly, which a person intent upon bigamy would not be doing. The petitioner further argues that his lack of criminal intent is material to a conviction or acquittal in the instant case. The crime of bigamy, just like other felonies punished under the Revised Penal Code, is mala in se, and hence, good faith and lack of criminal intent are allowed as a complete defense. He stresses that there is a difference between the intent to commit the crime and the intent to perpetrate the act. Hence, it does not necessarily follow that his intention to contract a second marriage is tantamount to an intent to commit bigamy.

For the respondent, the Office of the Solicitor General (OSG) submits that good faith in the instant case is a convenient but flimsy excuse. The Solicitor General relies upon our ruling in Marbella-Bobis v. Bobis,18

which held that bigamy can be successfully prosecuted provided all the elements concur, stressing that under Article 4019 of the Family Code, a judicial declaration of nullity is a must before a party may re-marry. Whether or not the petitioner was aware of said Article 40 is of no account as everyone is presumed to know the law. The OSG counters that petitioners contention that he was in good faith because he relied on the divorce decree of the Ontario court is negated by his act of filing Civil Case No. 6020, seeking a judicial declaration of nullity of his marriage to Lucia.

Before we delve into petitioners defense of good faith and lack of criminal intent, we must first determine whether all the elements of bigamy are present in this case. In Marbella-Bobis v. Bobis,20 we laid down the elements of bigamy thus:

(1) the offender has been legally married;

(2) the first marriage has not been legally dissolved, or in case his or her spouse is absent, the absent spouse has not been judicially declared presumptively dead;

(3) he contracts a subsequent marriage; and

(4) the subsequent marriage would have been valid had it not been for the existence of the first.

Applying the foregoing test to the instant case, we note that during the pendency of CA-G.R. CR No. 20700, the RTC of Bohol Branch 1, handed down the following decision in Civil Case No. 6020, to wit:

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 Pilar, Bohol and further directing the Local Civil Registrar of Pilar, Bohol to effect the cancellation of the marriage contract.

SO ORDERED.21

The trial court found that there was no actual marriage ceremony performed between Lucio and Lucia by a solemnizing officer. Instead, what transpired was a mere signing of the marriage contract by the two, without the presence of a solemnizing officer. The trial court thus held that the marriage is void ab initio, in accordance with Articles 322 and 423 of the Family Code. As the dissenting opinion in CA-G.R. CR No. 20700, correctly puts it, This simply means that there was no marriage to begin with; and that such declaration of nullity retroacts to the date of the first marriage. In other words, for all intents and purposes, reckoned from the date of the declaration of the first marriage as void ab initio to the date of the celebration of the first marriage, the accused was, under the eyes of the law, never married.24 The records show that no appeal was taken from the decision of the trial court in Civil Case No. 6020, hence, the decision had long become final and executory.

The first element of bigamy as a crime requires that the accused must have been legally married. But in this case, legally speaking, the petitioner was never married to Lucia Barrete. Thus, there is no first marriage to speak of. Under the principle of retroactivity of a marriage being declared void ab initio, the two were never married from the beginning. The contract of marriage is null; it bears no legal effect. Taking this argument to its logical 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-G.R. CR No. 20700, as well as the resolution of the appellate court dated September 25, 2000, denying herein petitioners motion for reconsideration, is REVERSED and SET ASIDE. The petitioner Lucio Morigo y Cacho is ACQUITTED from the charge of BIGAMY on the ground that his guilt has not been proven with moral certainty.

SO ORDERED.

FIRST DIVISION

G.R. No. 159218             March 30, 2004

SALVADOR S. ABUNADO and ZENAIDA BIÑAS ABUNADO, Petitioners, vs.PEOPLE OF THE PHILIPPINES, Responden

D E C I S I O N

YNARES-SANTIAGO, J.:

This petition for review on certiorari seeks to reverse and set aside the decision1 of the Court of Appeals in CA-G.R. No. 26135 which affirmed with modification the decision of the Regional Trial Court, Branch 77, San Mateo, Rizal in Criminal Case No. 2803 convicting petitioner Salvador S. Abunado of bigamy.

The records show that on September 18, 1967, Salvador married Narcisa Arceño at the Manila City Hall before Rev. Pedro Tiangco.2 In 1988 Narcisa left for Japan to work but returned to the Philippines in 1992, when she learned that her husband was having an extra-marital affair and has left their conjugal home.

After earnest efforts, Narcisa found Salvador in Quezon City cohabiting with Fe Corazon Plato. She also discovered that on January 10, 1989, Salvador contracted a second marriage with a certain Zenaida Biñas before Judge Lilian Dinulos Panontongan in San Mateo, Rizal.3

On January 19, 1995, an annulment case was filed by Salvador against Narcisa.4 On May 18, 1995, a case for bigamy was filed by Narcisa against Salvador and Zenaida.5

Salvador admitted that he first married Zenaida on December 24, 1955 before a municipal trial court judge in Concepcion, Iloilo and has four children with her prior to their separation in 1966. It appeared however that there was no evidence of their 1955 marriage so he and Zenaida remarried on January 10, 1989, upon the request of their son for the purpose of complying with the requirements for his commission in the military.

On May 18, 2001, the trial court convicted petitioner Salvador Abunado of bigamy and sentenced him to suffer imprisonment of six (6) years and one (1) day, as minimum, to eight (8) years and one (1) day, as maximum. Petitioner Zenaida Biñas was acquitted for insufficiency of evidence.6

On appeal, the Court of Appeals affirmed with modification the decision of the trial court, as follows:

WHEREFORE, the Decision appealed from is hereby MODIFIED as to the penalty imposed but AFFIRMED in all other respects. Appreciating the mitigating circumstance that accused is 76 years of age and applying the provisions of the Indeterminate Sentence Law, the appellant is hereby sentenced to suffer an indeterminate prison term of two (2) years, four (4) months and one (1) day of prision correccional as Minimum to six (6) years and one (1) day of prision mayor as Maximum. No costs.

SO ORDERED.7

Petitioner is now before us on petition for review.

First, he argues that the Information was defective as it stated that the bigamous marriage was contracted in 1995 when in fact it should have been 1989.

Indeed, an accused has the right to be informed of the nature and cause of the accusation against him.8 It is required that the acts and omissions complained of as constituting the offense must be alleged in the Information.9

The real nature of the crime charged is determined by the facts alleged in the Information and not by the title or designation of the offense contained in the caption of the Information. It is fundamental that every element of which the offense is comprised must be alleged in the Information. What facts and circumstances are necessary to be alleged in the Information must be determined by reference to the definition and essential elements of the specific crimes.10

The question, therefore, is whether petitioner has been sufficiently informed of the nature and cause of the accusation against him, namely, that he contracted a subsequent marriage with another woman while his first marriage was subsisting.

The information against petitioner alleges:

That in or about and sometime in the month of January, 1995 at the Municipality of San Mateo, Rizal place (sic) within the jurisdiction of this Honorable Court, the above-named accused, having been legally married to complainant Narcisa Abunado on September 16, 1967 which has not been legally dissolved, did then and there willfully, unlawfully and feloniously contract a subsequent marriage to Zenaida Biñas Abunado on January 10, 1989 which has all the essential requisites of a valid marriage.

CONTRARY TO LAW.11

The statement in the information that the crime was committed "in or about and sometime in the month of January, 1995," was an obvious typographical error, for the same information clearly states that petitioner contracted a subsequent marriage to Zenaida Biñas Abunado on January 10, 1989. Petitioner’s submission, therefore, that the information was defective is untenable.

The general rule is that a defective information cannot support a judgment of conviction unless the defect was cured by evidence during the trial and no objection appears to have been raised.12 It should be remembered that bigamy can be successfully prosecuted provided all its elements concur – two of which are a previous marriage and a subsequent marriage which possesses all the requisites for validity.13 All of these have been sufficiently established by the prosecution during the trial. Notably, petitioner failed to object to the alleged defect in the Information during the trial and only raised the same for the first time on appeal before the Court of Appeals.

Second, petitioner argues that Narcisa consented to his marriage to Zenaida, which had the effect of absolving him of criminal liability.

In this regard, we agree with the Court of Appeals when it ruled, thus:

x x x, while he claims that there was condonation on the part of complainant when he entered into a bigamous marriage, the same was likewise not established by clear and convincing evidence. But then, a pardon by the offended party does not extinguish criminal action considering that a crime is committed against the State and the crime of Bigamy is a public offense which can be denounced not only by the person affected thereby but even by a civic-spirited citizen who may come to know the same.14

Third, petitioner claims that his petition for annulment/declaration of nullity of marriage was a prejudicial question, hence, the proceedings in the bigamy case should have been suspended during the pendency of the annulment case. Petitioner, in fact, eventually obtained a judicial declaration of nullity of his marriage to Narcisa on October 29, 1999.15

A prejudicial question has been defined as one based on a fact distinct and separate from the crime but so intimately connected with it that it determines the guilt or innocence of the accused, and for it to suspend the criminal action, it must appear not only that said case involves facts intimately related to those upon which the criminal prosecution would be based but also that in the resolution of the issue or issues raised in the civil case, the guilt or innocence of the accused would necessarily be determined. The rationale behind the principle of suspending a criminal case in view of a prejudicial question is to avoid two conflicting decisions.16

The subsequent judicial declaration of the nullity of the first marriage was immaterial because prior to the declaration of nullity, the crime had already been consummated. Moreover, petitioner’s assertion would only delay the prosecution of bigamy cases considering that an accused could simply file a petition to declare his previous marriage void and invoke the pendency of that action as a prejudicial question in the criminal case. We cannot allow that.17

The outcome of the civil case for annulment of petitioner’s marriage to Narcisa had no bearing upon the determination of petitioner’s innocence or guilt in the criminal case for bigamy, because all that is required for the charge of bigamy to prosper is that the first marriage be subsisting at the time the second marriage is contracted.18

Thus, under the law, a marriage, even one which is void or voidable, shall be deemed valid until declared otherwise in a judicial proceeding.19 In this case, even if petitioner eventually obtained a declaration that his first marriage was void ab initio, the point is, both the first and the second marriage were subsisting before the first marriage was annulled.

Finally, petitioner claims that the penalty imposed on him was improper.

Article 349 of the Revised Penal Code imposes the penalty of prision mayor for bigamy. Under the Indeterminate Sentence Law, the court shall sentence the accused to an indeterminate penalty, the maximum term of which shall be that which, in view of the attending circumstances, could be properly imposed under the Revised Penal Code, and the minimum term of which shall be within the range of the penalty next lower to that prescribed by the Code for the offense. The penalty next lower would be based on the penalty prescribed by the Code for the offense, without first considering any modifying circumstance attendant to the commission of the crime. The determination of the minimum penalty is left by law to the sound discretion of the court and it can be anywhere within the range of the penalty next lower without any reference to the periods into which it might be subdivided. The modifying circumstances are considered only in the imposition of the maximum term of the indeterminate sentence.20

In light of the fact that petitioner is more than 70 years of age,21 which is a mitigating circumstance under Article 13, paragraph 2 of the Revised Penal Code, the maximum term of the indeterminate sentence should be taken from prision mayor in its minimum period which ranges from six (6) years and one (1) day to eight (8) years, while the minimum term should be taken from prision correccional in any of its periods which ranges from six (6) months and one (1) day to six (6) years.

Therefore, the penalty imposed by the Court of Appeals, i.e., two (2) years, four (4) months and one (1) day of prision correccional, as minimum, to six (6) years and one (1) day of prision mayor, as maximum, is proper.

WHEREFORE, in view of the foregoing, the decision of the Court of Appeals in CA-G.R. CR No. 26135, finding petitioner Salvador S. Abunado guilty beyond reasonable doubt of the crime of bigamy, and sentencing him to suffer an indeterminate penalty of two (2) years, four (4) months and one (1) day of prision correccional, as minimum, to six (6) years and one (1) day of prision mayor, as maximum, is AFFIRMED.

Costs de oficio.

SO ORDERED.

THIRD DIVISION

G.R. No. 164435               September 29, 2009

VICTORIA S. JARILLO, Petitioner, vs.PEOPLE OF THE PHILIPPINES, Respondent.

D E C I S I O N

DEL CASTILLO, J.:

This resolves the Petition for Review on Certiorari under Rule 45 of the Rules of Court, praying that the Decision1 of the Court of Appeals (CA), dated July 21, 2003, and its Resolution2 dated July 8, 2004, be reversed and set aside.

On May 31, 2000, petitioner was charged with Bigamy before the Regional Trial Court (RTC) of Pasay City, Branch 117 under the following Information in Criminal Case No. 00-08-11:

INFORMATION

The undersigned Assistant City Prosecutor accuses VICTORIA S. JARILLO of the crime of BIGAMY, committed as follows:

That on or about the 26th day of November 1979, in Pasay City, Metro Manila, Philippines and within the jurisdiction of this Honorable Court, the above-named accused, Victoria S. Jarillo, being previously united in lawful marriage with Rafael M. Alocillo, and without the said marriage having been legally dissolved, did then and there willfully, unlawfully and feloniously contract a second marriage with Emmanuel Ebora Santos Uy which marriage was only discovered on January 12, 1999.

Contrary to law.

On July 14, 2000, petitioner pleaded not guilty during arraignment and, thereafter, trial proceeded.

The undisputed facts, as accurately summarized by the CA, are as follows.

On May 24, 1974, Victoria Jarillo and Rafael Alocillo were married in a civil wedding ceremony solemnized by Hon. Monico C. Tanyag, then Municipal Mayor of Taguig, Rizal (Exhs. A, A-1, H, H-1, H-2, O, O-1, pp. 20-21, TSN dated November 17, 2000).

On May 4, 1975, Victoria Jarillo and Rafael Alocillo again celebrated marriage in a church wedding ceremony before Rev. Angel Resultay in San Carlos City, Pangasinan (pp. 25-26, TSN dated November 17, 2000). Out of the marital union, appellant begot a daughter, Rachelle J. Alocillo on October 29, 1975 (Exhs. F, R, R-1).

Appellant Victoria Jarillo thereafter contracted a subsequent marriage with Emmanuel Ebora Santos Uy, at the City Court of Pasay City, Branch 1, before then Hon. Judge Nicanor Cruz on November 26, 1979 (Exhs. D, J, J-1, Q, Q-1, pp. 15-18, TSN dated November 22, 2000).

On April 16, 1995, appellant and Emmanuel Uy exchanged marital vows anew in a church wedding in Manila (Exh. E).

In 1999, Emmanuel Uy filed against the appellant Civil Case No. 99-93582 for annulment of marriage before the Regional Trial Court of Manila.

Thereafter, appellant Jarillo was charged with bigamy before the Regional Trial Court of Pasay City x x x.

x x x x

Parenthetically, accused-appellant filed against Alocillo, on October 5, 2000, before the Regional Trial Court of Makati, Civil Case No. 00-1217, for declaration of nullity of their marriage.

On July 9, 2001, the court a quo promulgated the assailed decision, the dispositive portion of which states:

WHEREFORE, upon the foregoing premises, this court hereby finds accused Victoria Soriano Jarillo GUILTY beyond reasonable doubt of the crime of BIGAMY.

Accordingly, said accused is hereby sentenced to suffer an indeterminate penalty of SIX (6) YEARS of prision correccional, as minimum, to TEN (10) YEARS of prision mayor, as maximum.

This court makes no pronouncement on the civil aspect of this case, such as the nullity of accused’s bigamous marriage to Uy and its effect on their children and their property. This aspect is being determined by the Regional Trial Court of Manila in Civil Case No. 99-93582.

Costs against the accused.

The motion for reconsideration was likewise denied by the same court in that assailed Order dated 2 August 2001.3

For her defense, petitioner insisted that (1) her 1974 and 1975 marriages to Alocillo were null and void because Alocillo was allegedly still married to a certain Loretta Tillman at the time of the celebration of their marriage; (2) her marriages to both Alocillo and Uy were null and void for lack of a valid marriage license; and (3) the action had prescribed, since Uy knew about her marriage to Alocillo as far back as 1978.

On appeal to the CA, petitioner’s conviction was affirmed in toto. In its Decision dated July 21, 2003, the CA held that petitioner committed bigamy when she contracted marriage with Emmanuel Santos Uy because, at that time, her marriage to Rafael Alocillo had not yet been declared null and void by the court. This being so, the presumption is, her previous marriage to Alocillo was still existing at the time of her marriage to Uy. The CA also struck down, for lack of sufficient evidence, petitioner’s contentions that her marriages were celebrated without a marriage license, and that Uy had notice of her previous marriage as far back as 1978.

In the meantime, the RTC of Makati City, Branch 140, rendered a Decision dated March 28, 2003, declaring petitioner’s 1974 and 1975 marriages to Alocillo null and void ab initio on the ground of Alocillo’s psychological incapacity. Said decision became final and executory on July 9, 2003. In her motion for reconsideration, petitioner invoked said declaration of nullity as a ground for the reversal of her conviction. However, in its Resolution dated July 8, 2004, the CA, citing Tenebro v. Court of Appeals,4 denied reconsideration and ruled that "[t]he subsequent declaration of nullity of her first marriage on the ground of psychological incapacity, while it retroacts to the date of the celebration of the marriage insofar as the vinculum between the spouses is concerned, the said marriage is not without legal consequences, among which is incurring criminal liability for bigamy."5

Hence, the present petition for review on certiorari under Rule 45 of the Rules of Court where petitioner alleges that:

V.1. THE COURT OF APPEALS COMMITTED REVERSIBLE ERROR IN PROCEEDING WITH THE CASE DESPITE THE PENDENCY OF A CASE WHICH IS PREJUDICIAL TO THE OUTCOME OF THIS CASE.

V.2. THE COURT OF APPEALS COMMITTED REVERSIBLE ERROR IN AFFIRMING THE CONVICTION OF PETITIONER FOR THE CRIME OF BIGAMY DESPITE THE SUPERVENING PROOF THAT THE FIRST TWO MARRIAGES OF PETITIONER TO ALOCILLO HAD BEEN DECLARED BY FINAL JUDGMENT NULL AND VOID AB INITIO.

V.3. THE COURT OF APPEALS COMMITTED REVERSIBLE ERROR IN NOT CONSIDERING THAT THERE IS A PENDING ANNULMENT OF MARRIAGE AT THE REGIONAL TRIAL COURT BRANCH 38 BETWEEN EMMANUEL SANTOS AND VICTORIA S. JARILLO.

V.4. THE COURT OF APPEALS COMMITTED REVERSIBLE ERROR IN NOT CONSIDERING THAT THE INSTANT CASE OF BIGAMY HAD ALREADY PRESCRIBED.

V.5. THE COURT OF APPEALS COMMITTED REVERSIBLE ERROR IN NOT CONSIDERING THAT THE MARRIAGE OF VICTORIA JARILLO AND EMMANUEL SANTOS UY HAS NO VALID MARRIAGE LICENSE.

V.6. THE COURT OF APPEALS COMMITTED REVERSIBLE ERROR IN NOT ACQUITTING THE PETITIONER BUT IMPOSED AN ERRONEOUS PENALTY UNDER THE REVISED PENAL CODE AND THE INDETERMINATE SENTENCE LAW.

The first, second, third and fifth issues, being closely related, shall be discussed jointly. It is true that right after the presentation of the prosecution evidence, petitioner moved for suspension of the proceedings on the ground of the pendency of the petition for declaration of nullity of petitioner’s marriages to Alocillo, which, petitioner claimed involved a prejudicial question. In her appeal, she also asserted that the petition for declaration of nullity of her marriage to Uy, initiated by the latter, was a ground for suspension of the proceedings. The RTC denied her motion for suspension, while the CA struck down her arguments. In Marbella-Bobis v. Bobis,6 the Court categorically stated that:

x x x as ruled in Landicho v. Relova, he who contracts a second marriage before the judicial declaration of nullity of the first marriage assumes the risk of being prosecuted for bigamy, and in such a case the criminal case may not be suspended on the ground of the pendency of a civil case for declaration of nullity. x x x

x x x x

x x x The reason is that, without a judicial declaration of its nullity, the first marriage is presumed to be subsisting. In the case at bar, respondent was for all legal intents and purposes regarded as a married man at the time he contracted his second marriage with petitioner. Against this legal backdrop, any decision in the civil action for nullity would not erase the fact that respondent entered into a second marriage during the subsistence of a first marriage. Thus, a decision in the civil case is not essential to the determination of the criminal charge. It is, therefore, not a prejudicial question. x x x7

The foregoing ruling had been reiterated in Abunado v. People,8 where it was held thus:

The subsequent judicial declaration of the nullity of the first marriage was immaterial because prior to the declaration of nullity, the crime had already been consummated. Moreover, petitioner’s assertion would only delay the prosecution of bigamy cases considering that an accused could simply file a petition to declare his previous marriage void and invoke the pendency of that action as a prejudicial question in the criminal case. We cannot allow that.

The outcome of the civil case for annulment of petitioner’s marriage to [private complainant] had no bearing upon the determination of petitioner’s innocence or guilt in the criminal case for bigamy, because all that is required for the charge of bigamy to prosper is that the first marriage be subsisting at the time the second marriage is contracted.

Thus, under the law, a marriage, even one which is void or voidable, shall be deemed valid until declared otherwise in a judicial proceeding. In this case, even if petitioner eventually obtained a declaration that his first marriage was void ab initio, the point is, both the first and the second marriage were subsisting before the first marriage was annulled.9

For the very same reasons elucidated in the above-quoted cases, petitioner’s conviction of the crime of bigamy must be affirmed. The subsequent judicial declaration of nullity of petitioner’s two marriages to Alocillo cannot be considered a valid defense in the crime of bigamy. The moment petitioner contracted a second marriage without the previous one having been judicially declared null and void, the crime of bigamy was already consummated because at the time of the celebration of the second marriage, petitioner’s marriage to Alocillo, which had not yet been declared null and void by a court of competent jurisdiction, was deemed valid and subsisting. Neither would a judicial declaration of the nullity of petitioner’s marriage to Uy make any difference.10 As held in Tenebro, "[s]ince a marriage contracted during the subsistence of a valid marriage is automatically void, the nullity of this second marriage is not per se an argument for the avoidance of criminal liability for bigamy. x x x A plain reading of [Article 349 of the Revised Penal Code], therefore, would indicate that the provision penalizes the mere act of contracting a second or subsequent marriage during the subsistence of a valid marriage."11

Petitioner’s defense of prescription is likewise doomed to fail.

Under Article 349 of the Revised Penal Code, bigamy is punishable by prision mayor, which is classified under Article 25 of said Code as an afflictive penalty. Article 90 thereof provides that "[c]rimes punishable by other afflictive penalties shall prescribe in fifteen years," while Article 91 states that "[t]he period of prescription shall commence to run from the day on which the crime is discovered by the offended party, the authorities, or their agents x x x ."

Petitioner asserts that Uy had known of her previous marriage as far back as 1978; hence, prescription began to run from that time. Note that the party who raises a fact as a matter of defense has the burden of proving it. The defendant or accused is obliged to produce evidence in support of its defense; otherwise, failing to establish the same, it remains self-serving.12 Thus, for petitioner’s defense of prescription to prosper, it was incumbent upon her to adduce evidence that as early as the year 1978, Uy already obtained knowledge of her previous marriage.

A close examination of the records of the case reveals that petitioner utterly failed to present sufficient evidence to support her allegation. Petitioner’s testimony that her own mother told Uy in 1978 that she (petitioner) is already married to Alocillo does not inspire belief, as it is totally unsupported by any corroborating evidence. The trial court correctly observed that:

x x x She did not call to the witness stand her mother – the person who allegedly actually told Uy about her previous marriage to Alocillo. It must be obvious that without the confirmatory testimony of her mother, the attribution of the latter of any act which she allegedly did is hearsay.13

As ruled in Sermonia v. Court of Appeals,14 "the prescriptive period for the crime of bigamy should be counted only from the day on which the said crime was discovered by the offended party, the authorities or their [agents]," as opposed to being counted from the date of registration of the bigamous marriage.15 Since petitioner failed to prove with certainty that the period of prescription began to run as of 1978, her defense is, therefore, ineffectual.1avvphi1

Finally, petitioner avers that the RTC and the CA imposed an erroneous penalty under the Revised Penal Code. Again, petitioner is mistaken.

The Indeterminate Sentence Law provides that the accused shall be sentenced to an indeterminate penalty, the maximum term of which shall be that which, in view of the attending circumstances, could be properly imposed under the Revised Penal Code, and the minimum of which shall be within the range of the penalty next lower than that prescribed by the Code for the offense, without first considering any modifying circumstance attendant to the commission of the crime. The Indeterminate Sentence Law leaves it entirely within the sound discretion of the court to determine the minimum penalty, as long as it is anywhere within the range of the penalty next lower without any reference to the periods into which it might be subdivided. The modifying circumstances are considered only in the imposition of the maximum term of the indeterminate sentence.16

Applying the foregoing rule, it is clear that the penalty imposed on petitioner is proper. Under Article 349 of the Revised Penal Code, the imposable penalty for bigamy is prision mayor. The penalty next lower is prision correccional, which ranges from 6 months and 1 day to 6 years. The minimum penalty of six years imposed by the trial court is, therefore, correct as it is still within the duration of prision correccional. There being no mitigating or aggravating circumstances proven in this case, the prescribed penalty of prision mayor should be imposed in its medium period, which is from 8 years and 1 day to 10 years. Again, the trial court correctly imposed a maximum penalty of 10 years.

However, for humanitarian purposes, and considering that petitioner’s marriage to Alocillo has after all been declared by final judgment17 to be void ab initio on account of the latter’s psychological incapacity, by reason of which, petitioner was subjected to manipulative abuse, the Court deems it proper to reduce the penalty imposed by the lower courts. Thus, petitioner should be sentenced to suffer an indeterminate penalty of imprisonment from Two (2) years, Four (4) months and One (1) day of prision correccional, as minimum, to 8 years and 1 day of prision mayor, as maximum.

IN VIEW OF THE FOREGOING, the petition is PARTLY GRANTED. The Decision of the Court of Appeals dated July 21, 2003, and its Resolution dated July 8, 2004 are hereby MODIFIED as to the penalty imposed, but AFFIRMED in all other respects. Petitioner is sentenced to suffer an indeterminate penalty of imprisonment from Two (2) years, Four (4) months and One (1) day of prision correccional, as minimum, to Eight (8) years and One (1) day of prision mayor, as maximum.

SO ORDERED.

FIRST DIVISION

[ G.R. No. 122749. July 31, 1996

ANTONIO A. S. VALDES,Petitioner, vs. REGIONAL TRIAL COURT, BRANCH 102, QUEZON CITY, and CONSUELO M. GOMEZ-VALDES, Respondents.

D E C I S I O N

VITUG, J.:

The petition for review bewails, purely on a question of law, an alleged error committed by the Regional Trial Court in Civil Case No. Q-92-12539. Petitioner avers that the court a quo has failed to apply the correct law that should govern the disposition of a family dwelling in a situation where a marriage is declared void ab initio because of psychological incapacity on the part of either or both of the parties to the contract.

The pertinent facts giving rise to this incident are, by and large, not in dispute.

Antonio Valdes and Consuelo Gomez were married on 05 January 1971. Begotten during the marriage were five children. In a petition, dated 22 June 1992, Valdes sought the declaration of nullity of the marriage pursuant to Article 36 of the Family Code (docketed Civil Case No. Q-92-12539, Regional Trial Court of Quezon City, Branch 102). After hearing the parties following the joinder of issues, the trial court, 1 in its decision of 29 July 1994, granted the petition; viz:

"WHEREFORE, judgment is hereby rendered as follows:

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

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

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

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

"(3) The petitioner and respondent are directed to start proceedings on the liquidation of their common properties as defined by Article 147 of the Family Code, and to comply with the provisions of Articles 50, 51 and 52 of the same code, within thirty (30) days from notice of this decision.

"Let a copy of this decision be furnished the Local Civil Registrar of Mandaluyong, Metro Manila, for proper recording in the registry of marriages." 2 (Italics ours)

Consuelo Gomez sought a clarification of that portion of the decision directing compliance with Articles 50, 51 and 52 of the Family Code. She asserted that the Family Code contained no provisions on the procedure for the liquidation of common property in "unions without marriage." Parenthetically, during the hearing on the motion, the children filed a joint affidavit expressing their desire to remain with their father, Antonio Valdes, herein petitioner.

In an Order, dated 05 May 1995, the trial court made the following clarification:

"Consequently, considering that Article 147 of the Family Code explicitly provides that the property acquired by both parties during their union, in the absence of proof to the contrary, are presumed to have been obtained through the joint efforts of the parties and will be owned by them in equal shares, plaintiff and defendant will own their 'family home' and all their other properties for that matter in equal shares.

"In the liquidation and partition of the properties owned in common by the plaintiff and defendant, the provisions on co-ownership found in the Civil Code shall apply." 3 (Italics supplied)

In addressing specifically the issue regarding the disposition of the family dwelling, the trial court said:

"Considering that this Court has already declared the marriage between petitioner and respondent as null and void ab initio, pursuant to Art. 147, the property regime of petitioner and respondent shall be governed by the rules on co-ownership.

"The provisions of Articles 102 and 129 of the Family Code finds no application since Article 102 refers to the procedure for the liquidation of the conjugal partnership property and Article 129 refers to the procedure for the liquidation of the absolute community of property." 4

Petitioner moved for a reconsideration of the order. The motion was denied on 30 October 1995.

In his recourse to this Court, petitioner submits that Articles 50, 51 and 52 of the Family Code should be held controlling; he argues that:

"I

"Article 147 of the Family Code does not apply to cases where the parties are psychological incapacitated.

"II

"Articles 50, 51 and 52 in relation to Articles 102 and 129 of the Family Code govern the disposition of the family dwelling in cases where a marriage is declared void ab initio, including a marriage declared void by reason of the psychological incapacity of the spouses.

"III

"Assuming arguendo that Article 147 applies to marriages declared void ab initio on the ground of the psychological incapacity of a spouse, the same may be read consistently with Article 129.

"IV

"It is necessary to determine the parent with whom majority of the children wish to stay." 5

The trial court correctly applied the law. In a void marriage, regardless of the cause thereof, the property relations of the parties during the period of cohabitation is governed by the provisions of Article 147 or Article 148, such as the case may be, of the Family Code. Article 147 is a remake of Article 144 of the Civil Code as interpreted and so applied in previous cases; 6 it provides:

"ART. 147. When a man and a woman who are capacitated to marry each other, live exclusively with each other as husband and wife without the benefit of marriage or under a void marriage, their wages and salaries shall be owned by them in equal shares and the property acquired by both of them through their work or industry shall be governed by the rules on co-ownership.

"In the absence of proof to the contrary, properties acquired while they lived together shall be presumed to have been obtained by their joint efforts, work or industry, and shall be owned by them in equal shares. For purposes of this Article, a party who did not participate in the acquisition by the other party of any property shall be deemed to have contributed jointly in the acquisition thereof if the former's efforts consisted in the care and maintenance of the family and of the household.

"Neither party can encumber or dispose by acts inter vivos of his or her share in the property acquired during cohabitation and owned in common, without the consent of the other, until after the termination of their cohabitation.

"When only one of the parties to a void marriage is in good faith, the share of the party in bad faith in the co-ownership shall be forfeited in favor of their common children. In case of default of or waiver by any or all of the common children or their descendants, each vacant share shall belong to the respective surviving descendants. In the absence of descendants, such share shall belong to the innocent party. In all cases, the forfeiture shall take place upon termination of the cohabitation."

This peculiar kind of co-ownership applies when a man and a woman, suffering no legal impediment to marry each other, so exclusively live together as husband and wife under a void marriage or without the benefit of marriage. The term "capacitated" in the provision (in the first paragraph of the law) refers to the legal capacity of a party to contract marriage, i.e., any "male or female of the age of eighteen years or upwards not under any of the impediments mentioned in Articles 37 and 38" 7 of the Code.

Under this property regime, property acquired by both spouses through their work and industry shall be governed by the rules on equal co-ownership. Any property acquired during the union is prima facie presumed to have been obtained through their joint efforts. A party who did not participate in the acquisition of the property shall still be considered as having contributed thereto jointly if said party's "efforts consisted in the care and maintenance of the family household." 8 Unlike the conjugal partnership of gains, the fruits of the couple's separate property are not included in the co-ownership.

Article 147 of the Family Code, in substance and to the above extent, has clarified Article 144 of the Civil Code; in addition, the law now expressly provides that

(a) Neither party can dispose or encumber by act inter vivos his or her share in co-ownership property, without the consent of the other, during the period of cohabitation; and

(b) In the case of a void marriage, any party in bad faith shall forfeit his or her share in the co-ownership in favor of their common children; in default thereof or waiver by any or all of the common children, each vacant share shall belong to the respective surviving descendants, or still in default thereof, to the innocent party. The forfeiture shall take place upon the termination of the cohabitation 9 or declaration of nullity of the marriage. 10

When the common-law spouses suffer from a legal impediment to marry or when they do not live exclusively with each other (as husband and wife ),only the property acquired by both of them through their actual joint contribution of money, property or industry shall be owned in common and in proportion to their respective contributions. Such contributions and corresponding shares, however, are prima facie presumed to be equal. The share of any party who is married to another shall accrue to the absolute community or conjugal partnership, as the case may be, if so existing under a valid marriage. If the party who has acted in bad faith is not validly married to another, his or her share shall be forfeited in the manner already heretofore expressed. 11

In deciding to take further cognizance of the issue on the settlement of the parties' common property, the trial court acted neither imprudently nor precipitately; a court which has jurisdiction to declare the marriage a nullity must be deemed likewise clothed with authority to resolve incidental and consequential matters. Nor did it commit a reversible error in ruling that petitioner and private respondent own the "family home" and all their common property in equal shares, as well as in concluding that, in the liquidation and partition of the property owned in common by them, the provisions on co-ownership under the Civil Code, not Articles 50, 51 and 52, in relation to Articles 102 and 129, 12 of the Family Code, should aptly prevail. The rules set up to govern the liquidation of either the absolute community or the conjugal partnership of gains, the property regimes recognized for valid and voidable marriages (in the latter case until the contract is annulled ),are irrelevant to the liquidation of the co-ownership that exists between common-law spouses. The first paragraph of Article 50 of the Family Code, applying paragraphs (2 ),(3 ),(4) and (5) of Article 43, 13 relates only, by its explicit terms, to voidable marriages and, exceptionally, to void marriages under Article 40 14 of the Code, i.e., the declaration of nullity of a subsequent marriage contracted by a spouse of a prior void marriage before the latter is judicially declared void. The latter is a special rule that somehow recognizes the philosophy and an old doctrine that void marriages are inexistent from the very beginning and no judicial decree is necessary to establish their nullity. In now requiring for purposes of remarriage, the declaration of nullity by final judgment of the previously contracted void marriage, the present law aims to do away with any continuing uncertainty on the status of the second marriage. It is not then illogical for the provisions of Article 43, in relation to Articles 41 15 and 42, 16 of the Family Code, on the effects of the termination of a subsequent marriage contracted during the subsistence of a previous marriage to be made applicable pro hac vice. In all other cases, it is not to be assumed that the law has also meant to have coincident property relations, on the one hand, between spouses in valid and voidable marriages (before annulment) and, on the other, between common-law spouses or spouses of void marriages, leaving to ordain, in the latter case, the ordinary rules on co-ownership subject to the provision of Article 147 and Article 148 of the Family Code. It must be stressed, nevertheless, even as it may merely state the obvious, that the provisions of the Family Code on the "family home," i.e., the provisions found in Title V, Chapter 2, of the Family Code, remain in force and effect regardless of the property regime of the spouses.

WHEREFORE, the questioned orders, dated 05 May 1995 and 30 October 1995, of the trial court are AFFIRMED. No costs.

SO ORDERED.

SECOND DIVISION

G.R. No. 174803               July 13, 2009

MARYWIN ALBANO-SALES, Petitioner, vs.MAYOR REYNOLAN T. SALES and COURT OF APPEALS, Respondents.

D E C I S I O N

QUISUMBING, J.:

The instant petition for review assails the Decision1 dated July 26, 2006, of the Court of Appeals in CA-G.R. CV No. 82869. The Court of Appeals had set aside the Orders dated November 28, 20032 and April 12, 20043 of the Regional Trial Court (RTC) of Quezon City, Branch 102 in Civil Case Nos. Q-94-19236 and Q-97-32303, and remanded the case to the RTC for further hearing in accordance with the RTC Order4 dated September 3, 2003.

The present controversy stemmed from Civil Case No. Q-94-19236 filed by Marywin Albano Sales against her husband, Mayor Reynolan T. Sales, for the dissolution of the conjugal partnership and separation of properties, and Civil Case No. Q-97-32303 filed by Mayor Reynolan T. Sales for the declaration of nullity of their marriage. The two cases were consolidated and tried jointly.

On January 4, 2000, the RTC rendered judgment5 declaring the marriage of Marywin and Reynolan void on the ground of mutual psychological incapacity. It also ordered the dissolution of their conjugal partnership. The fallo of the decision reads:

WHEREFORE, judgment is hereby rendered as follows:

1) The marriage between plaintiff/defendant Reynolan Sales and defendant/plaintiff Marywin Albano Sales is hereby declared void ab initio on the ground of mutual psychological incapacity of the parties pursuant to Article 36 of the Family Code;

2) The parties Reynolan Sales and Marywin Albano Sales are hereby directed to liquidate, partition and distribute their common property as defined in Article 147 of the Family Code within sixty (60) days from receipt of this decision, and to comply with the provisions of Articles 50, 51 and 52 of the Family Code insofar as they may be applicable;

3) Reynolan Sales and Marywin Sales shall share in the expenses for the support and education of their only child Maindryann Sales in proportion with their respective resources.

x x x x

SO ORDERED.6

On June 16, 2003, after the decision became final, Marywin filed a motion for execution and a manifestation listing her assets with Reynolan for the purpose of having them partitioned. Reynolan opposed the motion arguing that the RTC Decision had ordered the distribution of their common properties without specifying what they were. He also claimed that Marywin has no share in the properties she specified because said properties were the fruits solely of his industry. He added that their property relations should not be governed by the rules of co-ownership because they did not live together as husband and wife. He also alleged that Marywin appropriated the rentals of his properties and even disposed one of them without his consent, in violation of Article 1477 of the Family Code. Accordingly, he prayed for the deferral of the resolution of the motion for execution, maintaining that no partition of properties can be had until after all the matters he raised are resolved after due notice and hearing.

In an Order dated September 3, 2003, the RTC set the case for hearing on September 25, 2003 and ordered the reception of evidence on the parties’ respective claims. The hearing was reset twice to November 13, 2003 and January 22, 2004. The November 13, 2003 hearing was cancelled due to the absence of the presiding judge who was on a seminar at Tagaytay during that time. But the minutes of the session that day shows that the counsels for both parties signed for the next hearing on January 22, 2004.

On November 24, 2003, Marywin filed a reiterative motion for execution to implement the decision and to order partition of their common properties.8 She brought to the attention of the court the 12 units of townhouses at Xavierville Subdivision, Quezon City, four units of which were sold, leaving eight units for disposition between her and Reynolan. She proposed to give out two units to their son Maindryann and equally divide the remaining six units between her and Reynolan. She also alleged that she tried to obtain Reynolan’s approval on the proposed partition of properties, but to no avail.

The reiterative motion was set for hearing on November 28, 2003 with the words at the foot of the last page "copy furnished Atty. Oscar G. Raro", Reynolan’s counsel and a rubber stamped imprint showing

receipt. Said stamp imprint reads, "Raro Palomique Pagunuran Acosta and Villanueva, RECEIVED, date: 24 Nov. 2003, Time: 11:45 am, By: Amy."9

On November 28, 2003, the reiterative motion was heard in the absence of Reynolan and his counsel. On the same date, the RTC issued an order approving the proposed project of partition since the proposal appears to be reasonable and there has been no opposition or appearance from Reynolan despite several resetting of hearings. Consequently, the branch clerk of court was ordered to execute the necessary deeds of conveyance to distribute the eight townhouse units in accordance with the motion.

On December 16, 2003, Reynolan moved to reconsider the RTC’s Order dated November 28, 2003, prayed for its reversal and the reinstatement of the RTC’s previous Order dated September 25, 2003, which ordered the reception of evidence before resolving the proper partition of their properties. In his motion, he alleged that the sudden grant of Marywin’s reiterative motion preempted the issues he previously raised, i.e., the alleged fraudulent sale and non-accounting of rentals of the townhouses, and whether their property relations is governed by the rules on co-ownership.

Marywin opposed Reynolan’s motion and argued that the issues of alleged fraudulent sale and non-accounting of rentals were already waived by Reynolan when he failed to set them up as compulsory counterclaims in the case. She also contends that the court has ordered the liquidation and distribution of their common property; thus, the question on their property relations was already a resolved issue. Reynolan replied that the reiterative motion was itself superfluous because the RTC had ordered the reception of evidence in its September 3, 2003 Order.

On April 12, 2004, the RTC denied Reynolan’s motion for reconsideration. It ruled that reception of evidence is no longer necessary because the parties were legally married prior to its nullification and the fact that they begot a son whom they raised together proved that their connubial relations were more than merely transient.

Aggrieved, Reynolan appealed to the Court of Appeals claiming that the RTC hastily and improvidently granted the reiterative motion without regard to its previous order calling for the reception of evidence before ordering the partition of their properties. He averred that there is a genuine need for a hearing to adjudicate the matters he raised because it is decisive of the proper liquidation and partition of their properties. He also alleged that there was no proof of notice to him of the reiterative motion.

In a Decision dated July 26, 2006, the Court of Appeals ruled in favor of Reynolan. The appellate court set aside the RTC Orders dated November 28, 2003 and April 12, 2004 and remanded the case to the lower court for reception of evidence in accordance with the RTC’s Order dated September 3, 2003. The Court of Appeals held that the RTC’s recall of its previous order for further reception of evidence deprives and violates Reynolan’s constitutional right to property. While the RTC is not prohibited from setting aside an interlocutory order, the Court of Appeals said that due process must still be observed.

The Court of Appeals further held that the reiterative motion was an ingenious strategy to circumvent the September 3, 2003 Order of the RTC. It stated that there was nothing in the reiterative motion that calls for the review of the previous RTC order calling for further reception of evidence. Thus, when the RTC treated the reiterative motion as a motion for reconsideration when it was not such a motion, it had unwittingly denied Reynolan of his right to be heard which emanated from the RTC’s September 3, 2003 Order. Accordingly, the Court of Appeals disposed of the case as follows:

IN VIEW OF THE FOREGOING, the orders of November 28, 2003 and April 12, 2004 are SET ASIDE, and the case is remanded to the lower court for a hearing in accordance with its order of September 3, 2003.

SO ORDERED.10

Hence, the instant petition, assigning the following as errors:

I.

THE HONORABLE COURT OF APPEALS COMMITTED GRAVE ABUSE OF DISCRETION AMOUNTING TO LACK OF JURISDICTION WHEN IT ENTERTAINED THE APPEAL FROM AN ORDER WHICH IS IN THE NATURE OF A WRIT OF EXECUTION.

II.

THE [HONORABLE] COURT OF APPEALS ABUSED ITS DISCRETION IN RENDERING JUDGMENT BASED ON MISAPPREHENSION OF FACTS, SPECULATIONS, SURMISES, CONJECTURES THAT ARE MANIFESTLY MISTAKEN AND ABSURD.

III.

THE HONORABLE COURT OF APPEALS GRAVELY ERRED IN HOLDING THAT PETITIONER MANIPULATED THE ISSUANCE OF THE ORDER DATED 28 NOVEMBER 2003.11

Stated simply, the issue is: did the Court of Appeals err when it entertained respondent’s appeal from an order granting the issuance of a writ of execution?

Petitioner contends that the Court of Appeals exceeded its jurisdiction when it decided respondent’s appeal because under Section 1,12 Rule 41 of the Rules of Court, no appeal can be taken from an order of execution. She further contends that respondent was not deprived of his right to due process when the RTC approved the project of partition of their common properties without prior hearing because the right to be heard does not only refer to the right to present verbal arguments in court, but also includes the right to be heard through one’s pleadings. Respondent’s right to due process was not violated as he was given sufficient opportunity to submit his written opposition but failed to do so.

Respondent counters that the RTC should not have granted the reiterative motion to implement the decision and order the partition of their common properties without prior hearing because its previous order calling for the reception of evidence had long become final and executory. He also posits that no partition can be had without proper accounting and determination of the extent of their common properties. He alleges that: (1) for 10 long years, petitioner had been collecting all the rentals from their townhouse units; (2) she had sold some units without his consent; and (3) she misappropriated the proceeds thereof.1avvphi1

After carefully considering the parties’ contentions and submissions, we reject petitioner’s claim that the Court of Appeals erred when it entertained respondent’s appeal assailing the RTC Orders dated November 28, 2003 and April 12, 2004, which had reversed its previous Order dated September 3, 2003 and dispensed with the need for the reception of evidence before ordering the partition and liquidation of the parties’ common properties.

To emphasize, what is being questioned by respondent was not really the January 4, 2000 Decision of the RTC declaring their marriage void ab initio on the ground of mutual psychological incapacity, but the Orders of the trial court dividing their common properties in accordance with the proposed project of partition without the benefit of a hearing. The issue on the validity of their marriage has long been settled in the main decision and may no longer be the subject of review.

Incidentally, however, there were matters of genuine concern that had to be addressed prior to the dissolution of the property relations of the parties as a result of the declaration of nullity of their marriage. Allegations regarding the collection of rentals without proper accounting, sale of common properties without the husband’s consent and misappropriation of the proceeds thereof, are factual issues which have to be addressed in order to determine with certainty the fair and reasonable division and distribution of properties due to each party.

The extent of properties due to respondent is not yet discernible without further presentation of evidence on the incidental matters he had previously raised before the RTC. Since the RTC resolved these matters in its Orders dated November 28, 2003 and April 12, 2004, disregarding its previous order calling for the reception of evidence, said orders became final orders as it finally disposes of the issues concerning the partition of the parties’ common properties. As such, it may be appealed by the aggrieved party to the Court of Appeals via ordinary appeal.13

WHEREFORE, the Decision dated July 26, 2006 of the Court of Appeals in CA-G.R. CV No. 82869 is hereby AFFIRMED. The instant case is remanded to the lower court for further reception of evidence in accordance with the RTC’s Order dated September 3, 2003. No pronouncement as to costs.

SO ORDERED.

FIRST DIVISION

G.R. No. 127358             March 31, 2005

NOEL BUENAVENTURA, petitioner, vs.COURT OF APPEALS and ISABEL LUCIA SINGH BUENAVENTURA, respondents.

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

G.R. No. 127449             March 31, 2005

NOEL BUENAVENTURA, petitioner, vs.COURT OF APPEALS and ISABEL LUCIA SINGH BUENAVENTURA, respondents.

D E C I S I O N

AZCUNA, J.:

These cases involve a petition for the declaration of nullity of marriage, which was filed by petitioner Noel Buenaventura on July 12, 1992, on the ground of the alleged psychological incapacity of his wife, Isabel Singh Buenaventura, herein respondent. After respondent filed her answer, petitioner, with leave of court, amended his petition by stating that both he and his wife were psychologically incapacitated to comply with the essential obligations of marriage. In response, respondent filed an amended answer denying the allegation that she was psychologically incapacitated.1

On July 31, 1995, the Regional Trial Court promulgated a Decision, the dispositive portion of which reads:

WHEREFORE, judgment is hereby rendered as follows:

1) Declaring and decreeing the marriage entered into between plaintiff Noel A. Buenaventura and defendant Isabel Lucia Singh Buenaventura on July 4, 1979, null and void ab initio;

2) Ordering the plaintiff to pay defendant moral damages in the amount of 2.5 million pesos and exemplary damages of 1 million pesos with 6% interest from the date of this decision plus attorney’s fees of P100,000.00;

3) Ordering the plaintiff to pay the defendant expenses of litigation of P50,000.00, plus costs;

4) Ordering the liquidation of the assets of the conjugal partnership property[,] particularly the plaintiff’s separation/retirement benefits received from the Far East Bank [and] Trust Company[,] by ceding, giving and paying to her fifty percent (50%) of the net amount of P3,675,335.79 or P1,837,667.89 together with 12% interest per annum from the date of this decision and one-half (1/2) of his outstanding shares of stock with Manila Memorial Park and Provident Group of Companies;

5) Ordering him to give a regular support in favor of his son Javy Singh Buenaventura in the amount of P15,000.00 monthly, subject to modification as the necessity arises;

6) Awarding the care and custody of the minor Javy Singh Buenaventura to his mother, the herein defendant; and

7) Hereby authorizing the defendant to revert back to the use of her maiden family name Singh.

Let copies of this decision be furnished the appropriate civil registry and registries of properties.

SO ORDERED.2

Petitioner appealed the above decision to the Court of Appeals. While the case was pending in the appellate court, respondent filed a motion to increase the P15,000 monthly support pendente lite of their son Javy Singh Buenaventura. Petitioner filed an opposition thereto, praying that it be denied or that such incident be set for oral argument.3

On September 2, 1996, the Court of Appeals issued a Resolution increasing the support pendente lite to P20,000.4 Petitioner filed a motion for reconsideration questioning the said Resolution.5

On October 8, 1996, the appellate court promulgated a Decision dismissing petitioner’s appeal for lack of merit and affirming in toto the trial court’s decision.6 Petitioner filed a motion for reconsideration which was denied. From the abovementioned Decision, petitioner filed the instant Petition for Review on Certiorari.

On November 13, 1996, through another Resolution, the Court of Appeals denied petitioner’s motion for reconsideration of the September 2, 1996 Resolution, which increased the monthly support for the son.7 Petitioner filed a Petition for Certiorari to question these two Resolutions.

On July 9, 1997, the Petition for Review on Certiorari8 and the Petition for Certiorari9 were ordered consolidated by this Court.10

In the Petition for Review on Certiorari petitioner claims that the Court of Appeals decided the case not in accord with law and jurisprudence, thus:

1. WHEN IT AWARDED DEFENDANT-APPELLEE MORAL DAMAGES IN THE AMOUNT OF P2.5 MILLION AND EXEMPLARY DAMAGES OF P1 MILLION, WITH 6% INTEREST FROM THE DATE OF ITS DECISION, WITHOUT ANY LEGAL AND MORAL BASIS;

2. WHEN IT AWARDED P100,000.00 ATTORNEY’S FEES AND P50,000.00 EXPENSES OF LITIGATION, PLUS COSTS, TO DEFENDANT-APPELLEE, WITHOUT FACTUAL AND LEGAL BASIS;

3. WHEN IT ORDERED PLAINTIFF-APPELLANT NOEL TO PAY DEFENDANT-APPELLEE ONE-HALF OR P1,837,667.89 OUT OF HIS RETIREMENT BENEFITS RECEIVED FROM THE FAR EAST BANK AND TRUST CO., WITH 12% INTEREST THEREON FROM THE DATE OF ITS DECISION, NOTWITHSTANDING THAT SAID RETIREMENT BENEFITS ARE GRATUITOUS AND EXCLUSIVE PROPERTY OF NOEL, AND ALSO TO DELIVER TO DEFENDANT-APPELLEE ONE-HALF OF HIS SHARES OF STOCK WITH THE MANILA MEMORIAL PARK AND THE PROVIDENT GROUP OF COMPANIES, ALTHOUGH SAID SHARES OF STOCK WERE ACQUIRED BY NOEL BEFORE HIS MARRIAGE TO RESPONDENT ISABEL AND ARE, THEREFORE, AGAIN HIS EXCLUSIVE PROPERTIES; AND

4. WHEN IT AWARDED EXCLUSIVE CARE AND CUSTODY OVER THE PARTIES’ MINOR CHILD TO DEFENDANT-APPELLEE WITHOUT ASKING THE CHILD (WHO WAS ALREADY 13 YEARS OLD AT THAT TIME) HIS CHOICE AS TO WHOM, BETWEEN HIS TWO PARENTS, HE WOULD LIKE TO HAVE CUSTODY OVER HIS PERSON.11

In the Petition for Certiorari, petitioner advances the following contentions:

THE COURT OF APPEALS GRAVELY ABUSED ITS DISCRETION WHEN IT REFUSED TO SET RESPONDENT’S MOTION FOR INCREASED SUPPORT FOR THE PARTIES’ SON FOR HEARING.12

THERE WAS NO NEED FOR THE COURT OF APPEALS TO INCREASE JAVY’S MONTHLY SUPPORT OF P15,000.00 BEING GIVEN BY PETITIONER EVEN AT PRESENT PRICES.13

IN RESOLVING RESPONDENT’S MOTION FOR THE INCREASE OF JAVY’S SUPPORT, THE COURT OF APPEALS SHOULD HAVE EXAMINED THE LIST OF EXPENSES SUBMITTED BY RESPONDENT IN THE LIGHT OF PETITIONER’S OBJECTIONS THERETO, INSTEAD OF MERELY ASSUMING THAT JAVY IS ENTITLED TO A P5,000 INCREASE IN SUPPORT AS SAID AMOUNT IS "TOO MINIMAL."14

LIKEWISE, THE COURT OF APPEALS SHOULD HAVE GIVEN PETITIONER AN OPPORTUNITY TO PROVE HIS PRESENT INCOME TO SHOW THAT HE CANNOT AFFORD TO INCREASE JAVY’S SUPPORT.15

With regard to the first issue in the main case, the Court of Appeals articulated:

On Assignment of Error C, the trial court, after findings of fact ascertained from the testimonies not only of the parties particularly the defendant-appellee but likewise, those of the two psychologists, awarded damages on the basis of Articles 21, 2217 and 2229 of the Civil Code of the Philippines.

Thus, the lower court found that plaintiff-appellant deceived the defendant-appellee into marrying him by professing true love instead of revealing to her that he was under heavy parental pressure to marry and that because of pride he married defendant-appellee; that he was not ready to enter into marriage as in fact his career was and always would be his first priority; that he was unable to relate not only to defendant-appellee as a husband but also to his son, Javy, as a father; that he had no inclination to make the marriage work such that in times of trouble, he chose the easiest way out, that of leaving defendant–appellee and their son; that he had no desire to keep defendant-appellee and their son as proved by his reluctance and later, refusal to reconcile after their separation; that the aforementioned caused defendant-appellee to suffer mental anguish, anxiety, besmirched reputation, sleepless nights not only in those years the parties were together but also after and throughout their separation.

Plaintiff-appellant assails the trial court’s decision on the ground that unlike those arising from a breach in ordinary contracts, damages arising as a consequence of marriage may not be awarded. While it is correct that there is, as yet, no decided case by the Supreme Court where damages by reason of the performance or non-performance of marital obligations were awarded, it does not follow that no such award for damages may be made.

Defendant-appellee, in her amended answer, specifically prayed for moral and exemplary damages in the total amount of 7 million pesos. The lower court, in the exercise of its discretion, found full justification of awarding at least half of what was originally prayed for. We find no reason to disturb the ruling of the trial court.16

The award by the trial court of moral damages is based on Articles 2217 and 21 of the Civil Code, which read as follows:

ART. 2217. Moral damages include physical suffering, mental anguish, fright, serious anxiety, besmirched reputation, wounded feelings, moral shock, social humiliation, and similar injury. Though incapable of pecuniary computation, moral damages may be recovered if they are the proximate result of the defendant’s wrongful act or omission.

ART. 21. Any person who wilfully causes loss or injury to another in a manner that is contrary to morals, good customs or public policy shall compensate the latter for the damage.

The trial court referred to Article 21 because Article 221917 of the Civil Code enumerates the cases in which moral damages may be recovered and it mentions Article 21 as one of the instances. It must be noted that Article 21 states that the individual must willfully cause loss or injury to another. There is a need that the act is willful and hence done in complete freedom. In granting moral damages, therefore, the trial court and the Court of Appeals could not but have assumed that the acts on which the moral damages were based were done willfully and freely, otherwise the grant of moral damages would have no leg to stand on.

On the other hand, the trial court declared the marriage of the parties null and void based on Article 36 of the Family Code, due to psychological incapacity of the petitioner, Noel Buenaventura. Article 36 of the Family Code states:

A marriage contracted by any party who, at the time of the celebration, was psychologically incapacitated to comply with the essential marital obligations of marriage, shall likewise be void even if such incapacity becomes manifest only after its solemnization.

Psychological incapacity has been defined, thus:

. . . no less than a mental (not physical) incapacity that causes a party to be truly incognitive of the basic marital covenants that concomitantly must be assumed and discharged by the parties to the marriage which, as so expressed by Article 68 of the Family Code, include their mutual obligations to live together, observe love, respect and fidelity and render help and support. There is hardly any doubt that the intendment of the law has been to confine the meaning of "psychological incapacity" to the most serious cases of personality disorders clearly demonstrative of an utter insensitivity or inability to give meaning and significance to the marriage. . . .18

The Court of Appeals and the trial court considered the acts of the petitioner after the marriage as proof of his psychological incapacity, and therefore a product of his incapacity or inability to comply with the essential obligations of marriage. Nevertheless, said courts considered these acts as willful and hence as grounds for granting moral damages. It is contradictory to characterize acts as a product of psychological incapacity, and hence beyond the control of the party because of an innate inability, while at the same time considering the same set of acts as willful. By declaring the petitioner as psychologically incapacitated, the possibility of awarding moral damages on the same set of facts was negated. The award of moral damages should be predicated, not on the mere act of entering into the marriage, but on specific evidence that it was done deliberately and with malice by a party who had knowledge of his or her disability and yet willfully concealed the same. No such evidence appears to have been adduced in this case.

For the same reason, since psychological incapacity means that one is truly incognitive of the basic marital covenants that one must assume and discharge as a consequence of marriage, it removes the basis for the contention that the petitioner purposely deceived the private respondent. If the private respondent was deceived, it was not due to a willful act on the part of the petitioner. Therefore, the award of moral damages was without basis in law and in fact.

Since the grant of moral damages was not proper, it follows that the grant of exemplary damages cannot stand since the Civil Code provides that exemplary damages are imposed in addition to moral, temperate, liquidated or compensatory damages.19

With respect to the grant of attorney’s fees and expenses of litigation the trial court explained, thus:

Regarding Attorney’s fees, Art. 2208 of the Civil Code authorizes an award of attorney’s fees and expenses of litigation, other than judicial costs, when as in this case the plaintiff’s act or omission has compelled the defendant to litigate and to incur expenses of litigation to protect her interest (par. 2), and where the Court deems it just and equitable that attorney’s fees and expenses of litigation should be recovered. (par. 11)20

The Court of Appeals reasoned as follows:

On Assignment of Error D, as the award of moral and exemplary damages is fully justified, the award of attorney’s fees and costs of litigation by the trial court is likewise fully justified.21

The acts or omissions of petitioner which led the lower court to deduce his psychological incapacity, and his act in filing the complaint for the annulment of his marriage cannot be considered as unduly compelling the private respondent to litigate, since both are grounded on petitioner’s psychological incapacity, which as explained above is a mental incapacity causing an utter inability to comply with the obligations of marriage. Hence, neither can be a ground for attorney’s fees and litigation expenses. Furthermore, since the award of moral and exemplary damages is no longer justified, the award of attorney’s fees and expenses of litigation is left without basis.

Anent the retirement benefits received from the Far East Bank and Trust Co. and the shares of stock in the Manila Memorial Park and the Provident Group of Companies, the trial court said:

The third issue that must be resolved by the Court is what to do with the assets of the conjugal partnership in the event of declaration of annulment of the marriage. The Honorable Supreme Court has held that the declaration of nullity of marriage carries ipso facto a judgment for the liquidation of property (Domingo v. Court of Appeals, et al., G.R. No. 104818, Sept. 17, 1993, 226 SCRA, pp. 572 – 573, 586). Thus, speaking through Justice Flerida Ruth P. Romero, it was ruled in this case:

When a marriage is declared void ab initio, the law states that the final judgment therein shall provide for the liquidation, partition and distribution of the properties of the spouses, the custody and support of the common children and the delivery of their presumptive legitimes, unless such matters had been adjudicated in the previous proceedings.

The parties here were legally married on July 4, 1979, and therefore, all property acquired during the marriage, whether the acquisition appears to have been made, contracted or registered in the

name of one or both spouses, is presumed to be conjugal unless the contrary is proved (Art. 116, New Family Code; Art. 160, Civil Code). Art. 117 of the Family Code enumerates what are conjugal partnership properties. Among others they are the following:

1) Those acquired by onerous title during the marriage at the expense of the common fund, whether the acquisition be for the partnership, or for only one of the spouses;

2) Those obtained from the labor, industry, work or profession of either or both of the spouses;

3) The fruits, natural, industrial, or civil, due or received during the marriage from the common property, as well as the net fruits from the exclusive property of each spouse. . . .

Applying the foregoing legal provisions, and without prejudice to requiring an inventory of what are the parties’ conjugal properties and what are the exclusive properties of each spouse, it was disclosed during the proceedings in this case that the plaintiff who worked first as Branch Manager and later as Vice-President of Far East Bank & Trust Co. received separation/retirement package from the said bank in the amount of P3,701,500.00 which after certain deductions amounting to P26,164.21 gave him a net amount of P3,675,335.79 and actually paid to him on January 9, 1995 (Exhs. 6, 7, 8, 9, 10, 11). Not having shown debts or obligations other than those deducted from the said retirement/separation pay, under Art. 129 of the Family Code "The net remainder of the conjugal partnership properties shall constitute the profits, which shall be divided equally between husband and wife, unless a different proportion or division was agreed upon in the marriage settlement or unless there has been a voluntary waiver or forfeiture of such share as provided in this Code." In this particular case, however, there had been no marriage settlement between the parties, nor had there been any voluntary waiver or valid forfeiture of the defendant wife’s share in the conjugal partnership properties. The previous cession and transfer by the plaintiff of his one-half (1/2) share in their residential house and lot covered by T.C.T. No. S-35680 of the Registry of Deeds of Parañaque, Metro Manila, in favor of the defendant as stipulated in their Compromise Agreement dated July 12, 1993, and approved by the Court in its Partial Decision dated August 6, 1993, was actually intended to be in full settlement of any and all demands for past support. In reality, the defendant wife had allowed some concession in favor of the plaintiff husband, for were the law strictly to be followed, in the process of liquidation of the conjugal assets, the conjugal dwelling and the lot on which it is situated shall, unless otherwise agreed upon by the parties, be adjudicated to the spouse with whom their only child has chosen to remain (Art. 129, par. 9). Here, what was done was one-half (1/2) portion of the house was ceded to defendant so that she will not claim anymore for past unpaid support, while the other half was transferred to their only child as his presumptive legitime.

Consequently, nothing yet has been given to the defendant wife by way of her share in the conjugal properties, and it is but just, lawful and fair, that she be given one-half (1/2) share of the separation/retirement benefits received by the plaintiff the same being part of their conjugal partnership properties having been obtained or derived from the labor, industry, work or profession of said defendant husband in accordance with Art. 117, par. 2 of the Family Code. For the same reason, she is entitled to one-half (1/2) of the outstanding shares of stock of the plaintiff husband with the Manila Memorial Park and the Provident Group of Companies.22

The Court of Appeals articulated on this matter as follows:

On Assignment of Error E, plaintiff-appellant assails the order of the trial court for him to give one-half of his separation/retirement benefits from Far East Bank & Trust Company and half of his outstanding shares in Manila Memorial Park and Provident Group of Companies to the defendant-appellee as the latter’s share in the conjugal partnership.

On August 6, 1993, the trial court rendered a Partial Decision approving the Compromise Agreement entered into by the parties. In the same Compromise Agreement, the parties had agreed that henceforth, their conjugal partnership is dissolved. Thereafter, no steps were taken for the liquidation of the conjugal partnership.

Finding that defendant-appellee is entitled to at least half of the separation/retirement benefits which plaintiff-appellant received from Far East Bank & Trust Company upon his retirement as Vice-President of said company for the reason that the benefits accrued from plaintiff–appellant’s service for the bank for a number of years, most of which while he was married to defendant-appellee, the trial court adjudicated the same. The same is true with the outstanding shares of plaintiff-appellant in Manila Memorial Park and Provident Group of Companies. As these were acquired by the plaintiff-appellant at the time he was married to defendant-appellee, the latter is entitled to one-half thereof as her share in the conjugal partnership. We find no reason to disturb the ruling of the trial court.23

Since the present case does not involve the annulment of a bigamous marriage, the provisions of Article 50 in relation to Articles 41, 42 and 43 of the Family Code, providing for the dissolution of the absolute community or conjugal partnership of gains, as the case may be, do not apply. Rather, the general rule applies, which is that in case a marriage is declared void ab initio, the property regime applicable and to be liquidated, partitioned and distributed is that of equal co-ownership.

In Valdes v. Regional Trial Court, Branch 102, Quezon City,24 this Court expounded on the consequences of a void marriage on the property relations of the spouses and specified the applicable provisions of law:

The trial court correctly applied the law. In a void marriage, regardless of the cause thereof, the property relations of the parties during the period of cohabitation is governed by the provisions of Article 147 or Article 148, such as the case may be, of the Family Code. Article 147 is a remake of Article 144 of the Civil Code as interpreted and so applied in previous cases; it provides:

ART. 147. When a man and a woman who are capacitated to marry each other, live exclusively with each other as husband and wife without the benefit of marriage or under a void marriage, their wages and salaries shall be owned by them in equal shares and the property acquired by both of them through their work or industry shall be governed by the rules on co-ownership.

In the absence of proof to the contrary, properties acquired while they lived together shall be presumed to have been obtained by their joint efforts, work or industry, and shall be owned by them in equal shares. For purposes of this Article, a party who did not participate in the acquisition by the other party of any property shall be deemed to have contributed jointly in the acquisition thereof if the former's efforts consisted in the care and maintenance of the family and of the household.

Neither party can encumber or dispose by acts inter vivos of his or her share in the property acquired during cohabitation and owned in common, without the consent of the other, until after the termination of their cohabitation.

When only one of the parties to a void marriage is in good faith, the share of the party in bad faith in the co-ownership shall be forfeited in favor of their common children. In case of default of or waiver by any or all of the common children or their descendants, each vacant share shall belong to the respective surviving descendants. In the absence of descendants, such share shall belong to the innocent party. In all cases, the forfeiture shall take place upon termination of the cohabitation.

This peculiar kind of co-ownership applies when a man and a woman, suffering no legal impediment to marry each other, so exclusively live together as husband and wife under a void marriage or without the benefit of marriage. The term "capacitated" in the provision (in the first paragraph of the law) refers to the legal capacity of a party to contract marriage, i.e., any "male or female of the age of eighteen years or upwards not under any of the impediments mentioned in Articles 37 and 38" of the Code.

Under this property regime, property acquired by both spouses through their work and industry shall be governed by the rules on equal co-ownership. Any property acquired during the union is prima facie presumed to have been obtained through their joint efforts. A party who did not participate in the acquisition of the property shall still be considered as having contributed thereto jointly if said party's "efforts consisted in the care and maintenance of the family household."

Unlike the conjugal partnership of gains, the fruits of the couple's separate property are not included in the co-ownership.

Article 147 of the Family Code, in substance and to the above extent, has clarified Article 144 of the Civil Code; in addition, the law now expressly provides that —

(a) Neither party can dispose or encumber by act[s] inter vivos [of] his or her share in co-ownership property, without the consent of the other, during the period of cohabitation; and

(b) In the case of a void marriage, any party in bad faith shall forfeit his or her share in the co-ownership in favor of their common children; in default thereof or waiver by any or all of the common children, each vacant share shall belong to the respective surviving descendants, or still in default thereof, to the innocent party. The forfeiture shall take place upon the termination of the cohabitation or declaration of nullity of the marriage.

…

In deciding to take further cognizance of the issue on the settlement of the parties' common property, the trial court acted neither imprudently nor precipitately; a court which had jurisdiction to declare the marriage a nullity must be deemed likewise clothed with authority to resolve incidental and consequential matters. Nor did it commit a reversible error in ruling that petitioner and private respondent own the "family home" and all their common property in equal shares, as well as in concluding that, in the liquidation and partition of the property owned in common by them, the provisions on co-ownership under the Civil Code, not Articles 50, 51 and 52, in relation to Articles 102 and 129, of the Family Code, should aptly prevail. The rules set up to govern the liquidation of either the absolute community or the conjugal partnership of gains, the property regimes recognized for valid and voidable marriages (in the latter case until the contract is annulled), are irrelevant to the liquidation of the co-ownership that exists between common-law spouses. The first paragraph of Article 50 of the Family Code, applying paragraphs (2), (3), (4) and (5) of Article 43, relates only, by its explicit terms, to voidable marriages and, exceptionally, to void marriages under Article 40 of the Code, i.e., the declaration of nullity of a subsequent marriage contracted by a spouse of a prior void marriage before the latter is judicially declared void. The latter is a special rule that somehow recognizes the philosophy and an old doctrine that void marriages are inexistent from the very beginning and no judicial decree is necessary to establish their nullity. In now requiring for purposes of remarriage, the declaration of nullity by final judgment of the previously contracted void marriage, the present law aims to do away with any continuing uncertainty on the status of the second marriage. It is not then illogical for the provisions of Article 43, in relation to Articles 41 and 42, of the Family Code, on the effects of the termination of a subsequent marriage contracted during the subsistence of a previous marriage to be made applicable pro hac vice. In all other cases, it is not to be assumed that the law has also meant to have coincident property relations, on the one hand, between spouses in valid and voidable marriages (before annulment) and, on the other, between common-law spouses or spouses of void marriages, leaving to ordain, in the latter case, the ordinary rules on co-ownership subject to the provision of Article 147 and Article 148 of the Family Code. It must be stressed, nevertheless, even as it may merely state the obvious, that the provisions of the Family Code on the "family home," i.e., the provisions found in Title V, Chapter 2, of the Family Code, remain in force and effect regardless of the property regime of the spouses.25

Since the properties ordered to be distributed by the court a quo were found, both by the trial court and the Court of Appeals, to have been acquired during the union of the parties, the same would be covered by the co-ownership. No fruits of a separate property of one of the parties appear to have been included or involved in said distribution. The liquidation, partition and distribution of the properties owned in common by the parties herein as ordered by the court a quo should, therefore, be sustained, but on the basis of co-ownership and not of the regime of conjugal partnership of gains.

As to the issue on custody of the parties over their only child, Javy Singh Buenaventura, it is now moot since he is about to turn twenty-five years of age on May 27, 200526 and has, therefore, attained the age of majority.

With regard to the issues on support raised in the Petition for Certiorari, these would also now be moot, owing to the fact that the son, Javy Singh Buenaventura, as previously stated, has attained the age of majority.

WHEREFORE, the Decision of the Court of Appeals dated October 8, 1996 and its Resolution dated December 10, 1996 which are contested in the Petition for Review (G.R. No. 127449), are hereby MODIFIED, in that the award of moral and exemplary damages, attorney’s fees, expenses of litigation and costs are deleted. The order giving respondent one-half of the retirement benefits of petitioner from Far East Bank and Trust Co. and one-half of petitioner’s shares of stock in Manila Memorial Park and in the Provident Group of Companies is sustained but on the basis of the liquidation, partition and distribution of the co-ownership and not of the regime of conjugal partnership of gains. The rest of said Decision and Resolution are AFFIRMED.

The Petition for Review on Certiorari (G.R. No. 127358) contesting the Court of Appeals’ Resolutions of September 2, 1996 and November 13, 1996 which increased the support pendente lite in favor of the parties’ son, Javy Singh Buenaventura, is now MOOT and ACADEMIC and is, accordingly, DISMISSED.

No costs.

SO ORDERED.

EN BANC

A.M. No. 02-11-10-SC             March 4, 2003

RE: PROPOSED RULE ON DECLARATION OF ABSOLUTE NULLITY OF VOID MARRIAGES AND ANNULMENT OF VOIDABLE MARRIAGES

R E S O L U T I O N

          Acting on the letter of the Chairman of the Committee on Revision of the Rules of Court submitting for this Court's consideration and approval the Proposed Rule on Declaration of Absolute Nullity of Void Marriages and Annulment of Voidable Marriages, the Court Resolved to APPROVE the same.

          The Rule shall take effect on March 15, 2003 following its publication in a newspaper of general circulation not later than March 7, 2003

          March 4, 2003

Davide, C.J. Bellosillo, Puno, Vitug Mendoza, Panganiban, Quisumbing, Sandoval-Gutierrez, Carpio, Austria-Martinez, Carpio Morales, Callejo, Sr. and AzcunaYnares-Santiago, on leaveCorona, on official leave

RULE ON DECLARATION OF ABSOLUTE NULLITY OF VOID MARIAGES AND ANNULMENT OF VOIDABLE MARRIAGES

Section 1. Scope - This Rule shall govern petitions for declaration of absolute nullity of void marriages and annulment of voidable marriages under the Family Code of te Philippines.

          The Rules of Court shall apply suppletorily.

Section 2. Petition for declaration of absolute nullity of void marriages .

(a) Who may file. - A petition for declaration of absolute nullity of void marriage may be filed solely by the husband or the wife. (n)

(b) Where to file. - The petition shall be filed in the Family Court.

(c) Imprecriptibility ofaction or defense. - An Action or defense for the declaration of absolute nullity of void marriage shall not prescribe.

(d) What to allege. - A petition under Article 36 of Family Code shall specially allege te complete facts showing the either or both parties were psychologically incapacitated from complying with the essential marital obligations of marriages at the time of the celebration of marriage even if such incapacity becomes manifest only after its celebration.

          The complete facts should allege the physical manifestations, if any, as are indicative of psychological incapacity at the time of the celebration of the marriage but expert opinion need not be alleged.

Section 3. Petition for annulment of voidable marriages. -

(a) Who may file. - The following persons may file a petition for annulment of voidable marriage based on any of the grounds under article 45 of the Family Code and within the period herein indicated:

(1) The contracting party whose parent, or guardian, or person exercising substitute parental authority did not give his or her consent , within five years after attaining the age of twenty-one unless, after attaining the age of twenty-one, such party freely cohabitated with the other as husband or wife; or the parent, guardian or person having legal charge of the contracting party , at any time before such party has reached the age of twenty-one;

(2) The sane spouse who had no knowledge of the other's insanity; or by any relative, guardian, or person having legal charge of the insane, at any time before the death of either party; or by the insane spouse during the a lucid interval or after regaining sanity, provided that the petitioner , after coming to reason, has not freely cohabited with the other as husband or wife;

(3) The injured party whose consent was obtained by fraud, within five years after the discovery of the fraud, provided that said party, with full knowledge of the facts constituting the fraud, has not freely cohabited with the other as husband or wife;

(4) The injured party whose consent was obtained by force, intimidation, or undue influence, within five years from the time the force intimidation, or undue influence disappeared or ceased, provided that the force, intimidation, or undue influence having disappeared or ceased, said party has not thereafter freely cohabited with the other as husband or wife;

(5) The injured party where the other spouse is physically incapable of consummating the marriage with the other and such incapability continues and appears to be incurable, within five years after the celebration of marriage; and

(6) Te injured party where the other party was afflicted with a sexually-transmissible disease found to be serious and appears to be incurable, within five years after the celebration of marriage.

(b) Where to file. - The petition shall be filed in the Family Court.

Section 4. Venue. - The Petition shall be filed in the Family Court of the province or city where the petitioner or the respondent has been residing for at least six months prior to the date of filing. Or in the case of non-resident respondent, where he may be found in the Philippines, at the election of the petitioner.

Section 5. Contents and form of petition. - (1) The petition shall allege the complete facts constituting the cause of action.

(2) It shall state the names and ages of the common children of the parties and specify the regime governing their property relations, as well as the properties involved.

          If there is no adequate provision in a written agreement between the parties, the petitioner may apply for a provisional order for spousal support, the custody and support of common children, visitation rights, administration of community or conjugal property, and other matters similarly requiringurgent action.

(3) It must be verified and accompanied celebration of marriage. (b) Where to file.-The petition shall be filed in the Family Court.

Section 4. Venue. - The petition shall be filed in the Family Court of the province or city where the petitioner or the respondent has been residing for at least six months prior to the date of filing, or in the case of a non-resident respondent, where he may be found in the Philippines at the election of the petitioner.

Section 5. Contents and form of petition. - (1) The petition shall allege the complete facts constituting the cause of action.

(2) it shall state the names and ages of the common children of the parties and specify the regime governing their property relations, as well as the properties involved.

          If there is no adequate provision in a written agreement between the parties, the petitioner may apply for a provisional order for spousal support, custody and support of common children, visitation rights, administration of community or conjugal property, and other matters similarly requiring urgent action.

(3) it must be verified and accompanied by a certification against forum shopping. The verification and certification must be signed personally by me petitioner. No petition may be filed solely by counsel or through an attorney-in-fact.

          If the petitioner is in a foreign country, the verification and certification against forum shopping shall be authenticated by the duly authorized officer of the Philippine embassy or legation, consul general, consul or vice-consul or consular agent in said country.

(4) it shall be filed in six copies. The petitioner shall serve a copy of the petition on the Office of the Solicitor General and the Office of the City or Provincial Prosecutor, within five days from the date of its filing and submit to the court proof of such service within the same period.

          Failure to comply with any of the preceding requirements may be a ground for immediate dismissal of the petition.

Section 6. Summons. - The service of summons shall be governed by Rule 14 of the Rules of Court and by the following rules:

(1) Where the respondent cannot be located at his given address or his whereabouts are unknown and cannot be ascertained by diligent inquiry, service of summons may, by leave of court, be effected upon him by publication once a week for two consecutive weeks in a newspaper of general circulation in the Philippines and in such places as the court may order In addition, a copy of the summons shall be served on the respondent at his last known address by registered mail or any other means the court may deem sufficient.

(2) The summons to be published shall be contained in an order of the court with the following data: (a) title of the case; (b) docket number; (c) nature of the petition; (d) principal grounds of the petition and the reliefs prayed for; and (e) a directive for the respondent to answer within thirty days from the last issue of publication.

Section 7. Motion to dismiss. - No motion to dismiss the petition shall be allowed except on the ground of lack of jurisdiction over the subject matter or over the parties; provided, however, that any other ground that might warrant a dismissal of the case may be raised as an affirmative defense in an answer.

Section 8. Answer. - (1) The respondent shall file his answer within fifteen days from service of summons, or within thirty days from the last issue of publication in case of service of summons by publication. The answer must be verified by the respondent himself and not by counsel or attorney-in-fact.

(2) If the respondent fails to file an answer, the court shall not declare him or her in default.

(3) Where no answer is filed or if the answer does not tender an issue, the court shall order the public prosecutor to investigate whether collusion exists between the parties.

Section 9. Investigation report of public prosecutor. - (1) Within one month after receipt of the court order mentioned in paragraph (3) of Section 8 above, the public prosecutor shall submit a report to the court stating whether the parties are in collusion and serve copies thereof on the parties and their respective counsels, if any.

(2) If the public prosecutor finds that collusion exists, he shall state the on the finding of collusion within ten days from receipt of a copy of a report The court shall set the report for hearing and If convinced that the parties are in collusion, it shall dismiss the petition.

(3) If the public prosecutor reports that no collusion exists, the court shall set the case for pre-trial. It shall be the duty of the public prosecutor to appear for the State at the pre-trial.

Section 10. Social worker. - The court may require a social worker to conduct a case study and submit the corresponding report at least three days before the pre-trial. The court may also require a case study at any stage of the case whenever necessary.

Section 11. Pre-trial. -

(1) Pre-trial mandatory. - A pre-trial is mandatory. On motion or motu proprio, the court shall set the pre-trial after the last pleading has been served and filed, or upon receipt of the report of the public prosecutor that no collusion exists between the parties.

(2) Notice of pre-trial. - (a) The notice of pre-trial shall contain:

(1) the date of pre-trial conference; and

(2) an order directing the parties to file and serve their respective pre-trial briefs in such manner as shall ensure the receipt thereof by the adverse party at least three days before the date of pre-trial.

(b) The notice shall be served separately on the parties and their respective counsels as well as on the public prosecutor. It shall be their duty to appear personally at the pre-trial.

(c) Notice of pre-trial shall be sent to the respondent even if he fails to file an answer. In case of summons by publication and the respondent failed to file his answer, notice of pre-trial shall be sent to respondent at his last known address.

Section 12. Contents of pre-trial brief. - The pre-trial brief shall contain the following:

(a) A statement of the willingness of the parties to enter into agreements as may be allowed by law, indicating the desired terms thereof;

(b) A concise statement of their respective claims together with the applicable laws and authorities;

(c) Admitted facts and proposed stipulations of facts, as well as the disputed factual and legal issues;

(d) All the evidence to be presented, including expert opinion, if any, briefly stating or describing the nature and purpose thereof;

(e) The number and names of the witnesses and their respective affidavits; and

(f) Such other matters as the court may require.

          Failure to file the pre-trial brief or to comply with its required contents shall have the same effect as failure to appear at the pre-trial under the succeeding paragraphs.

Section 13. Effect of failure to appear at the pre-trial. - {a) If the petitioner fails to appear personally, the case shall be dismissed unless his counsel or a duly authorized representative appears in court and proves a valid excuse for the non-appearance of the petitioner.

(b) If the respondent has filed his answer but fails to appear, the court shall proceed with the pre-trial and require the public prosecutor to investigate the non-appearance of the respondent and submit within fifteen days thereafter a report to the court stating whether his non-appearance is due to any collusion between the parties. If there Is no collusion, the court shall require the public prosecutor to intervene for the State during the trial on the merits to prevent suppression or fabrication of evidence.

Section 14. Pre-trial conference. -At the pre-trial conference, the court:

(a) May refer the issues to a mediator who shall assist the parties in reaching an agreement on matters not prohibited by law.

          The mediator shall render a report within one month from referral which, for good reasons, the court may extend for a period not exceeding one month.

(b) In case mediation is not availed of or where it fails, the court shall proceed with the pre-trial conference, on which occasion it shall consider the advisability of receiving expert testimony and such other makers as may aid in the prompt disposition of the petition.

Section 15. Pre-trial order. - {a) The proceedings in the pre-trial shall be recorded. Upon termination of the pre-trial, the court shall Issue a pre-trial order which shall recite in detail the matters taken up In the conference, the action taken thereon, the amendments allowed on the pleadings, and except as to the ground of declaration of nullity or annulment, the agreements or admissions made by the parties on any of the matters considered, including any provisional order that may be necessary or agreed upon by the parties.

(b) Should the action proceed to trial, the order shall contain a recital of the following;

(1) Facts undisputed, admitted, and those which need not be proved subject to Section 16 of this Rule;

(2) Factual and legal issues to be litigated;

(3) Evidence, including objects and documents, that have been marked and will be presented;

(4) Names of witnesses who will be presented and their testimonies in the form of affidavits; and

(5) Schedule of the presentation of evidence.

(c) The pre-trial order shall also contain a directive to the public prosecutor to appear for the State and take steps to prevent collusion between the parties at any stage of the proceedings and fabrication or suppression of evidence during the trial on the merits.

(d) The parlies shall not be allowed to raise issues or present witnesses and evidence other than those stated in the pre-trial order.

The order shall control the trial of the case, unless modified by the court to prevent manifest injustice.

(e) The parties shall have five days from receipt of the pre-trial order to propose corrections or modifications.

Section 16. Prohibited compromise. - The court-shall not allow compromise on prohibited matters, such as the following:

(a) The civil status of persons;

(b) The validity of a marriage or of a legal separation;

(c) Any ground for legal separation;

(d) Future support;

(e) The jurisdiction of courts; and

(f) Future legitime.

Section 17. Trial. - (1) The presiding judge shall personally conduct the trial of the case. No delegation of the reception of evidence to a commissioner shall be allowed except as to matters involving property relations of the spouses.

(2) The grounds for declaration of absolute nullity or annulment of marriage must be proved. No judgment on the pleadings, summary judgment, or confession of judgment shall be allowed.

(3) The court may order the exclusion from the courtroom of all persons, including members of the press, who do not have a direct interest in the case. Such an order may be made if the court determines on the record that requiring a party to testify in open court would not enhance the

ascertainment of truth; would cause to the party psychological harm or inability to effectively communicate due to embarrassment, fear, or timidity; would violate the right of a party to privacy; or would be offensive to decency or public morals.

(4) No copy shall be taken nor any examination or perusal of the records of the case or parts thereof be made by any person other than a party or counsel of a party, except by order of the court.

Section 18. Memoranda. - The court may require the parties and the public prosecutor, in consultation with the Office of the Solicitor General, to file their respective memoranda support of their claims within fifteen days from the date the trial is terminated. It may require the Office of the Solicitor General to file its own memorandum if the case is of significant interest to the State. No other pleadings or papers may be submitted without leave of court. After the lapse of the period herein provided, the case will be considered submitted for decision, with or without the memoranda.

Section 19. Decision. - (1) If the court renders a decision granting the petition, it shall declare therein that the decree of absolute nullity or decree of annulment shall be issued by the court only after compliance with Article 50 and 51 of the Family Code as implemented under the Rule on Liquidation, Partition and Distribution of Properties.

(2) The parties, including the Solicitor General and the public prosecutor, shall be served with copies of the decision personally or by registered mail. If the respondent summoned by publication failed to appear in the action, the dispositive part of the decision shall be published once in a newspaper of general circulation.

(3) The decision becomes final upon the expiration of fifteen days from notice to the parties. Entry of judgment shall be made if no motion for reconsideration or new trial, or appeal Is filed by any of the parties the public prosecutor, or the Solicitor General.

(4) Upon the finality of the decision, the court shall forthwith issue the corresponding decree if the parties have no properties.

          If the parties have properties, the court shall observe the procedure prescribed in Section 21 of this Rule.

          The entry of judgment shall be registered in the Civil Registry where the marriage was recorded and In the Civil Registry where the Family Court'granting the petition for declaration of absolute nullity or annulment of marriage is located.

Section 20. Appeal. -

(1) Pre-condition. - No appeal from the decision shall be allowed unless the appellant has filed a motion for reconsideration or new trial within fifteen days from notice of judgment.

(2) Notice of appeal. - An aggrieved party or the Solicitor General may appeal from the decision by filing a Notice of Appeal within fifteen days from notice of denial of the motion for reconsideration or new trial. The appellant shall serve a copy of the notice of appeal on the adverse parties.

Section 21. Liquidation, partition and distribution, custody, support of common children and delivery of their presumptive iegltimes. - Upon entry of the judgment granting the petition, or, in case of appeal, upon receipt of the entry of judgment of the appellate court granting the petition, the Family Court, on motion of either party, shall proceed with the liquidation, partition and distribution of the properties of the spouses, including custody, support of common children and delivery of their presumptive legitimes pursuant to Articles 50 and 51 of the Family Code unless such matters had been adjudicated in previous judicial proceedings.

Section 22. Issuance of Decree of Declaration of Absolute Nullity or Annulment of Marriage." (a) The court shall issue the Decree after;

(1) Registration of the entry of judgment granting the petition for declaration of nullity or annulment of marriage in the Civil Registry where the marriage was celebrated and in the Civil Registry of the place where the Family Court is located;

(2) Registration of the approved partition and distribution of the properties of the spouses, in the proper Register of Deeds where the real properties are located; and

(3) The delivery of the children's presumptive legitimes in cash, property, or sound securities.

(b) The court shall quote in the Decree the dispositive portion of the judgment entered and attach to the Decree the approved deed of partition.

          Except in the case of children under Articles 36 and 53 of the Family Code, the court shall order the Local Civil Registrar to issue an amended birth certificate indicating the new civil status of the children affected.

Section 23. Registration and publication of the decree; decree as best evidence. - (a) The prevailing party shall cause the registration of the Decree in the Civil Registry where the marriage was registered, the Civil Registry of the place where the Family Court is situated, and in the National Census and Statistics Office. He shall report td the court compliance with this requirement within thirty days from receipt of the copy of the Decree.

(b) In case service of summons was made by publication, the parties shall cause the publication of the Decree once in a newspaper of general circulation.

(c) The registered Decree shall be the best evidence to prove the declaration of absolute nullity or annulment of marriage and shall serve as notice to third persons concerning the properties of petitioner and respondent as well as the properties or presumptive legitimes delivered to their common children.

Section 24. Effect of death of a party; duty of the Family Court or Appellate Court. - (a) In case a party dies at any stage of the proceedings before the entry of judgment, the court shall order the case closed and terminated, without prejudice to the settlement of the estate in proper proceedings in the regular courts.

(b) If the party dies after the entry of judgment of nullity or annulment, the judgment shall be binding upon the parties and their successors in interest in the settlement of the estate in the regular courts.

Section 25. Effectlvity. - This Rule shall take effect on March 15, 2003 following its publication in a newspaper of general circulation not later than March 7, 2003.

ECOND DIVISION

G.R. No. 168785               February 5, 2010

HERALD BLACK DACASIN, Petitioner, vs.SHARON DEL MUNDO DACASIN, Respondent.

D E C I S I O N

CARPIO, J.:

The Case

For review1 is a dismissal2 of a suit to enforce a post-foreign divorce child custody agreement for lack of jurisdiction.

The Facts

Petitioner Herald Dacasin (petitioner), American, and respondent Sharon Del Mundo Dacasin (respondent), Filipino, were married in Manila in April 1994. They have one daughter, Stephanie, born on 21 September 1995. In June 1999, respondent sought and obtained from the Circuit Court, 19th Judicial Circuit, Lake County, Illinois (Illinois court) a divorce decree against petitioner.3 In its ruling, the Illinois court dissolved the marriage of petitioner and respondent, awarded to respondent sole custody of Stephanie and retained jurisdiction over the case for enforcement purposes.

On 28 January 2002, petitioner and respondent executed in Manila a contract (Agreement4 ) for the joint custody of Stephanie. The parties chose Philippine courts as exclusive forum to adjudicate disputes arising from the Agreement. Respondent undertook to obtain from the Illinois court an order "relinquishing" jurisdiction to Philippine courts.

In 2004, petitioner sued respondent in the Regional Trial Court of Makati City, Branch 60 (trial court) to enforce the Agreement. Petitioner alleged that in violation of the Agreement, respondent exercised sole custody over Stephanie.

Respondent sought the dismissal of the complaint for, among others, lack of jurisdiction because of the Illinois court’s retention of jurisdiction to enforce the divorce decree.

The Ruling of the Trial Court

In its Order dated 1 March 2005, the trial court sustained respondent’s motion and dismissed the case for lack of jurisdiction. The trial court held that: (1) it is precluded from taking cognizance over the suit considering the Illinois court’s retention of jurisdiction to enforce its divorce decree, including its order awarding sole custody of Stephanie to respondent; (2) the divorce decree is binding on petitioner following the "nationality rule" prevailing in this jurisdiction;5 and (3) the Agreement is void for contravening Article 2035, paragraph 5 of the Civil Code6 prohibiting compromise agreements on jurisdiction.7

Petitioner sought reconsideration, raising the new argument that the divorce decree obtained by respondent is void. Thus, the divorce decree is no bar to the trial court’s exercise of jurisdiction over the case.

In its Order dated 23 June 2005, the trial court denied reconsideration, holding that unlike in the case of respondent, the divorce decree is binding on petitioner under the laws of his nationality.

Hence, this petition.

Petitioner submits the following alternative theories for the validity of the Agreement to justify its enforcement by the trial court: (1) the Agreement novated the valid divorce decree, modifying the terms of child custody from sole (maternal) to joint;8 or (2) the Agreement is independent of the divorce decree obtained by respondent.

The Issue

The question is whether the trial court has jurisdiction to take cognizance of petitioner’s suit and enforce the Agreement on the joint custody of the parties’ child.

The Ruling of the Court

The trial court has jurisdiction to entertain petitioner’s suit but not to enforce the Agreement which is void. However, factual and equity considerations militate against the dismissal of petitioner’s suit and call for the remand of the case to settle the question of Stephanie’s custody.

Regional Trial Courts Vested With Jurisdictionto Enforce Contracts

Subject matter jurisdiction is conferred by law. At the time petitioner filed his suit in the trial court, statutory law vests on Regional Trial Courts exclusive original jurisdiction over civil actions incapable of pecuniary estimation.9 An action for specific performance, such as petitioner’s suit to enforce the Agreement on joint child custody, belongs to this species of actions.10 Thus, jurisdiction-wise, petitioner went to the right court.

Indeed, the trial court’s refusal to entertain petitioner’s suit was grounded not on its lack of power to do so but on its thinking that the Illinois court’s divorce decree stripped it of jurisdiction. This conclusion is unfounded. What the Illinois court retained was "jurisdiction x x x for the purpose of enforcing all and sundry the various provisions of [its] Judgment for Dissolution."11 Petitioner’s suit seeks the enforcement not of the "various provisions" of the divorce decree but of the post-divorce Agreement on joint child custody. Thus, the action lies beyond the zone of the Illinois court’s so-called "retained jurisdiction."

Petitioner’s Suit Lacks Cause of Action

The foregoing notwithstanding, the trial court cannot enforce the Agreement which is contrary to law.

In this jurisdiction, parties to a contract are free to stipulate the terms of agreement subject to the minimum ban on stipulations contrary to law, morals, good customs, public order, or public policy.12 Otherwise, the contract is denied legal existence, deemed "inexistent and void from the beginning."13 For lack of relevant stipulation in the Agreement, these and other ancillary Philippine substantive law serve as default parameters to test the validity of the Agreement’s joint child custody stipulations.14

At the time the parties executed the Agreement on 28 January 2002, two facts are undisputed: (1) Stephanie was under seven years old (having been born on 21 September 1995); and (2) petitioner and respondent were no longer married under the laws of the United States because of the divorce decree. The relevant Philippine law on child custody for spouses separated in fact or in law15 (under the second paragraph of Article 213 of the Family Code) is also undisputed: "no child under seven years of age shall be separated from the mother x x x."16 (This statutory awarding of sole parental custody17 to the mother is mandatory,18 grounded on sound policy consideration,19 subject only to a narrow exception not alleged to obtain here.20 ) Clearly then, the Agreement’s object to establish a post-divorce joint custody regime between respondent and petitioner over their child under seven years old contravenes Philippine law.

The Agreement is not only void ab initio for being contrary to law, it has also been repudiated by the mother when she refused to allow joint custody by the father. The Agreement would be valid if the spouses have not divorced or separated because the law provides for joint parental authority when spouses live together.21 However, upon separation of the spouses, the mother takes sole custody under the law if the child is below seven years old and any agreement to the contrary is void. Thus, the law suspends the joint custody regime for (1) children under seven of (2) separated or divorced spouses. Simply put, for a child within this age bracket (and for commonsensical reasons), the law decides for the separated or divorced parents how best to take care of the child and that is to give custody to the separated mother. Indeed, the separated parents cannot contract away the provision in the Family Code on the maternal custody of children below seven years anymore than they can privately agree that a mother who is unemployed, immoral, habitually drunk, drug addict, insane or afflicted with a communicable disease will have sole custody of a child under seven as these are reasons deemed compelling to preclude the application of the exclusive maternal custody regime under the second paragraph of Article 213.22

It will not do to argue that the second paragraph of Article 213 of the Family Code applies only to judicial custodial agreements based on its text that "No child under seven years of age shall be separated from the mother, unless the court finds compelling reasons to order otherwise." To limit this provision’s enforceability to court sanctioned agreements while placing private agreements beyond its reach is to sanction a double standard in custody regulation of children under seven years old of separated parents. This effectively empowers separated parents, by the simple expedient of avoiding the courts, to subvert a legislative policy vesting to the separated mother sole custody of her children under seven years of age "to avoid a tragedy where a mother has seen her baby torn away from her."23 This ignores the legislative basis that "[n]o man can sound the deep sorrows of a mother who is deprived of her child of tender age."24

It could very well be that Article 213’s bias favoring one separated parent (mother) over the other (father) encourages paternal neglect, presumes incapacity for joint parental custody, robs the parents of custodial options, or hijacks decision-making between the separated parents.25 However, these are objections which question the law’s wisdom not its validity or uniform enforceability. The forum to air and remedy these grievances is the legislature, not this Court. At any rate, the rule’s seeming harshness or undesirability is tempered by ancillary agreements the separated parents may wish to enter such as granting the father visitation and other privileges. These arrangements are not inconsistent with the regime of sole maternal custody under the second paragraph of Article 213 which merely grants to the mother final authority on the care and custody of the minor under seven years of age, in case of disagreements.1avvphi1

Further, the imposed custodial regime under the second paragraph of Article 213 is limited in duration, lasting only until the child’s seventh year. From the eighth year until the child’s emancipation, the law gives the separated parents freedom, subject to the usual contractual limitations, to agree on custody regimes they see fit to adopt. Lastly, even supposing that petitioner and respondent are not barred from entering into the Agreement for the joint custody of Stephanie, respondent repudiated the Agreement by asserting sole custody over Stephanie. Respondent’s act effectively brought the parties back to ambit of the default custodial regime in the second paragraph of Article 213 of the Family Code vesting on respondent sole custody of Stephanie.

Nor can petitioner rely on the divorce decree’s alleged invalidity - not because the Illinois court lacked jurisdiction or that the divorce decree violated Illinois law, but because the divorce was obtained by his Filipino spouse26 - to support the Agreement’s enforceability. The argument that foreigners in this jurisdiction are not bound by foreign divorce decrees is hardly novel. Van Dorn v. Romillo27 settled the matter by holding that an alien spouse of a Filipino is bound by a divorce decree obtained abroad.28 There, we dismissed the alien divorcee’s Philippine suit for accounting of alleged post-divorce conjugal property and rejected his submission that the foreign divorce (obtained by the Filipino spouse) is not valid in this jurisdiction in this wise:

There can be no question as to the validity of that Nevada divorce in any of the States of the United States. The decree is binding on private respondent as an American citizen. For instance, private respondent cannot sue petitioner, as her husband, in any State of the Union. What he is contending in this case is that the divorce is not valid and binding in this jurisdiction, the same being contrary to local law and public policy.

It is true that owing to the nationality principle embodied in Article 15 of the Civil Code, only Philippine nationals are covered by the policy against absolute divorces the same being considered contrary to our concept of public policy and morality. However, aliens may obtain divorces abroad, which may be recognized in the Philippines, provided they are valid according to their national law. In this case, the divorce in Nevada released private respondent from the marriage from the standards of American law, under which divorce dissolves the marriage.

x x x x

Thus, pursuant to his national law, private respondent is no longer the husband of petitioner. He would have no standing to sue in the case below as petitioner’s husband entitled to exercise control over conjugal assets. As he is bound by the Decision of his own country’s Court, which validly exercised jurisdiction over him, and whose decision he does not repudiate, he is estopped by his own representation before said Court from asserting his right over the alleged conjugal property. (Emphasis supplied)

We reiterated Van Dorn in Pilapil v. Ibay-Somera29 to dismiss criminal complaints for adultery filed by the alien divorcee (who obtained the foreign divorce decree) against his former Filipino spouse because

he no longer qualified as "offended spouse" entitled to file the complaints under Philippine procedural rules. Thus, it should be clear by now that a foreign divorce decree carries as much validity against the alien divorcee in this jurisdiction as it does in the jurisdiction of the alien’s nationality, irrespective of who obtained the divorce.

The Facts of the Case and Nature of ProceedingJustify Remand

Instead of ordering the dismissal of petitioner’s suit, the logical end to its lack of cause of action, we remand the case for the trial court to settle the question of Stephanie’s custody. Stephanie is now nearly 15 years old, thus removing the case outside of the ambit of the mandatory maternal custody regime under Article 213 and bringing it within coverage of the default standard on child custody proceedings – the best interest of the child.30 As the question of custody is already before the trial court and the child’s parents, by executing the Agreement, initially showed inclination to share custody, it is in the interest of swift and efficient rendition of justice to allow the parties to take advantage of the court’s jurisdiction, submit evidence on the custodial arrangement best serving Stephanie’s interest, and let the trial court render judgment. This disposition is consistent with the settled doctrine that in child custody proceedings, equity may be invoked to serve the child’s best interest.31

WHEREFORE, we REVERSE the Orders dated 1 March 2005 and 23 June 2005 of the Regional Trial Court of Makati City, Branch 60. The case is REMANDED for further proceedings consistent with this ruling.

SO ORDERED.

SEPARATE OPINION

ABAD, J.:

I agree with the reasons that the majority of the Court gave in support of the decision, except one. I am uncomfortable with the proposition that an agreement between the mother and the father on a joint custody over a child below seven years of age is void for being contrary to law and public policy. True, the law provides in Article 363 of the Civil Code that "No mother shall be separated from her child under seven years of age, unless the court finds compelling reasons for such measure." The State can think up ways of protecting the child. But the 1987 Constitution acknowledges in Article II, Section 12, the natural and primary right and duty of parents to nurture their children and that the State must support them in this respect.1

I submit that, in the matter of child custody, the mutual will of the child’s parents takes precedence in the absence of circumstances that justify recourse to the law. The law becomes relevant, only as a default, if a separated couple cannot agree on the custody of their child. The law should not supplant parental discretion or unnecessarily infringe on parental authority.

Parents have a natural and fundamental right to autonomy in the care, custody, and upbringing of their children. The Family Code recognizes this in Article 209:

Art. 209. Pursuant to the natural right and duty of parents over the person and property of their unemancipated children, parental authority and responsibility shall include the caring for and rearing them for civic consciousness and efficiency and the development of their moral, mental and physical character and well - being. (n)

The State ought not to interfere with the right of parents to bring up their child unless its exercise causes potential harm to him. The State steps in, through the law, only if there are compelling reasons to do so. State intrusion is uncalled for where the welfare of a child is not jeopardized.

Regardless of marital circumstances, the mother and the father are presumed to be fit and competent to act in the best interest of their child. They can agree to share parental authority or, if you will, parental custody even as they decide to live under separate roofs. In a voluntary joint custody the mother might want to keep the child in her home during schooldays but allow the father to have him on weekends. And they could agree on some device for arriving at a consensus on where the child will study and how his spiritual needs are to be attended to.

The law does not take away from a separating couple the authority and competence to determine what is best for their child. If they resolve on their own that shared parental custody is in their child’s best interest, then the law and the courts have no business vetoing their decision. The parents enjoy a primary right to make such decision. I cannot concede that, where the child is below seven years of age, any agreement that diminishes the mother’s absolute custody over him is void.

The second paragraph of Article 213 of the Family Code should not be read as prohibiting separated couples from agreeing to a custody arrangement, other than sole maternal custody, for their child of tender age. The statutory preference for the mother’s custody comes into play only when courts are compelled to resolve custody fights between separated parents. Where the parents settle the matter out of court by mutual agreement, the statutory preference reserved to the mother should not apply.

A reading of the entire text of Article 213 shows that the second paragraph applies only to custody disputes that have reached the courtroom. Thus:

Article 213. In case of separation of the parents, parental authority shall be exercised by the parent designated by the Court. The Court shall take into account all relevant considerations, especially the choice of the child over seven years of age, unless the parent chosen is unfit.

No child under seven years of age shall be separated from the mother, unless the court finds compelling reasons to order otherwise.

It is unmistakable that the legislative policy is to vest the separated mother with physical custody of the child under seven years old, in cases where the courts are called upon to designate a parent for the exercise of parental authority. The second sentence of the first paragraph and the second paragraph itself merely qualify the general rule expressed in the first sentence that "parental authority shall be exercised by the parent designated by the Court," in case of parental separation.

In choosing the parent who will exercise parental authority, the court must take into account all relevant considerations. One of these is the child’s age, as the court is directed to give due regard to the child’s choice, if the child is more than seven years of age. If the child, however, is below seven years of age, the court cannot separate the child from the mother, except for compelling reasons. This is the import of the entire provision.

Thus, no legislative policy is violated if separated parents are allowed to voluntarily agree to a child custody arrangement other than sole maternal custody. It is not the policy of the state to prohibit separated parents from compromising on child custody even if the child is of tender age. On the contrary, voluntary custody agreements are generally favored as it can only work for the best interest of the child.

It is not logical to say that the Court would be subverting the legislative policy of avoiding "a tragedy where a mother has seen her baby torn away from her" if separated parents are allowed to enter into a joint custody agreement. It can hardly be said that a child is being "torn away" from the mother, if the mother sees the wisdom and benefit of sharing custody of the child with the father. The voluntary nature of the agreement negates any "deep sorrow" or sense of deprivation that the mother may experience on account of her separation from the child.

Consequently, if separated parents mutually stipulate to uphold some form of joint authority over their children of tender age, it cannot in any way be regarded as illegal or contrary to public policy. Joint parental authority and custody is the norm and should be viewed as the more desirable custody arrangement. It encourages continuing contact with and involvement of both parents in the lives of their children. It can only redound to the minor’s greater well-being and should thus be favored.

To declare that a joint custody agreement over minors of tender age contravenes Philippine laws will only discourage separating couples from sharing parental duties and responsibilities. It will render shared parenthood illegal and unduly promote paternal alienation. It also presumes that separated parents cannot cooperate and compromise for the welfare of their children. It constitutes undue interference in the parents’ intrinsic right to direct their relations with their child.

A joint custody agreement can of course never be regarded as permanent and unbending. The situations of the mother or the father and even of the child can change and render performance of such agreement no longer in the latter’s best interest. If the parents disagree on what they think is best for the child, recourse

to the Court may be inevitable. But I suggest that the parent who wants the joint custody agreement changed or set aside bears the burden of showing to the court the new situations of the parties and how such arrangement have become unfavorable or detrimental to the child under the circumstances. This is a consequence of the presumption that contracts that are valid remain valid unless shown otherwise.

Here, the agreement between petitioner Herald and his estranged wife providing for joint custody of their then six-year-old child is a valid exercise of parental discretion and authority. It is independent of the foreign divorce decree and may be enforced or repudiated in this jurisdiction, since its object is the custody of a Filipino-American minor residing in the Philippines. Although Herald’s complaint before the trial court appears to be one for specific performance, it is, at heart, an action for custody and enforcement of parental rights. Being so, the Regional Trial Courts have exclusive original jurisdiction over the action.

I concur in the decision subject to my above reservations.

EN BANC

 

G.R. No. 94986 February 23, 1995

HATIMA C. YASIN, represented by her Attorney-in-Fact, HADJI HASAN S. CENTI, petitioner, vs.THE HONORABLE JUDGE SHARI'A DISTRICT COURT THIRD SHARI'A JUDICIAL DISTRICT, Zamboanga City, respondent.

R E S O L U T I O N

 

BIDIN, J.:

On May 5, 1990, Hatima C. Yasin filed in the Shari'a District Court in Zamboanga City a "Petition to resume the use of maiden name" (Sp. Proc. No. 06-3). The petition reads:

1. That she is of legal age, a divorcee, a Muslin Filipino and a resident of Suterville, Zamboanga City, Philippines, and is duly represented in this act by her elder brother and attorney-in-fact, HADJI HASAN S. CENTI by virtue of an instrument of a Special Power of Attorney, original copy of which is hereto attached and marked as Annex "A" hereof;

2. That she was formerly married to a certain Hadji Idris Yasin, also a Muslim Filipino in accordance with Muslim rites and customs, and who is now residing at Barangay Recodo, Zamboanga City, but sometime on March 13, 1984, they were granted a decree of divorce by the Mindanao Islamic Center Foundation, Inc., in accordance with Islamic Law, the divorce rites was officiated by Ustadz Sharif Jain Jali as evidenced by his Certification, dated march 13, 1984, copy of which is hereto attached as Annex "B" to form an integral part hereof;

3. That, thereafter the former husband Hadji Idris Yasin contracted another marriage to another woman;

WHEREFORE, invoking the provisions of Article 143, par. 1(c) of Presidential Decree No. 1083 in relation to Article 371 (2) of the New Civil Code, and after due notice and hearing, it is most respectfully prayed of this Honorable Court that petitioner be allowed to resume the use of her maiden name Hatima Centi y Saul.

On July 4, 1990, the respondent court issued an order which reads as follows:

It patently appearing that the petition filed is not sufficient in form and substance in accordance with Section 2(a) and 3, Rule 103, Rules of Court, regarding the residence of petitioner and the name sought to be adopted is not properly indicated in the title thereof which should include all the names by which the petitioner has been known (Ng Yao Siong v. Republic of the Philippines, L-20306, March 31, 1966, 16 SCRA [483]; Go v. Republic of the Philippines, L-31760, May 25, 1977; Pabellar v. Republic, L-27298, march 4, 1976), the pleading must be rectified accordingly.

WHEREFORE, petitioner is hereby ordered to effect the necessary amendment of the petition within one (1) week from receipt hereof so as to reflect the formal requirements adverted to. (Rollo, p. 9)

Hatima filed a motion for reconsideration of the aforesaid order alleging that the petition filed is not covered by Rule 103 of the Rules of Court but is merely a petition to resume the use of her maiden name and surname after the dissolution of her marriage by divorce under the Code of Muslim Personal Laws of the Philippines (P.D. No. 1083), and after marriage of her former husband to another woman.

The motion was denied by the respondent court in an order dated August 10, 1990, on the ground that the petition is substantially for change of name and that compliance with the

provisions of Rule 103, Rules of Court on change of name is necessary if the petition is to be granted as it would result in the resumption of the use of petitioner's maiden name and surname.

Hence, this petition alleging that respondent court erred in applying Rule 103 of the Rules of Court to the instant case.

In his Comment dated June 14, 1991, the respondent court, among others, contends:

5. . . . (R)espondent court is of the honest opinion that the said petition is substantially one for change of name, particularly of surname — Hatima C. Yasin to Hatima Centi y Saul, the latter being her maiden name and surname. Her reasons: The (1) dissolution of her marriage, and (2) her legal right to resume the use of her maiden name and surname. In effect, if petition is granted, it will result in the resumption of the use of her surname.

Moreover, the use of surnames is governed by law (Arts. 364-380, Title XIII, New Civil Code). This is the substantive requirements. And as to procedural requirements, no person can change his name or surname without judicial authority (Art. 376, Civil Code of the Philippines) (Emphasis supplied). Change of name under judicial authorization is governed by Rule 103 of the Revised Rules of Court. Under Sec. 1 of said rule: "a person desiring to change his name shall present the petition to the Court of First Instance of the province (now RTC) in which he resides, or in the City of Manila, to the Juvenile and Domestic Relations Court." The State has an interest in the names borne by individual and entities for purposes of identification. A change of name is a privilege and not a matter of right. Therefore, before a person can be authorized to change his name (given him either in his birth certificate or civil registry), he must show proper or compelling reason, which may justify such change. Otherwise, the request should be denied (Ong Peng Oan v. Republic, 102 Phil. 468) (See: Paras, Civil Code of the Philippines Annotated, Vol. I, 8th Ed., 1978, pp. 739-740). (Rollo, pp. 46-47)

The basic issue to be resolved is: whether or not in the case of annulment of marriage, or divorce under the Code of Muslim Personal Laws of the Philippines, and the husband is married again to another woman and the former desires to resume her maiden name or surname, is she required to file a petition for change of name and comply with the formal requirements of Rule 103 of the Rules of Court.

Stated otherwise, the issue is: whether or not a petition for resumption of maiden name and surname is also a petition for change of name.

The Court rules in the negative.

The true and real name of a person is that given to him and entered in the civil register (Chomi v. Local Civil Register of Manila, 99 Phil. 1004 [1956]; Ng Yao Siong v. Republic, 16 SCRA 483 [1966]; Rendora v. Republic, 35 SCRA 262 [1970]; Pabellar v. Republic, 70 SCRA 16 [1976]).

While it is true that under Article 376 of the Civil Code, no person can change his name or surname without judicial authority, nonetheless, the only name that may be changed is the true and official name recorded in the Civil Register. Thus, this Court in Ng Yao Siong v. Republic (16 SCRA 483 [1966]), held:

In a proceeding for a change of name the following question may crop up: What is the name to be changed? By Article 408 of the Civil Code a person's birth must be entered in the civil register. So it is, that the civil register records his name. That name in the civil register, for legal purposes, is his real name. And correctly so, because the civil register is an official record of the civil status of persons. A name given to a person in the church record or elsewhere or by which he is

known in the community — when at variance with that entered in the civil register — is unofficial and cannot be recognized as his real name.

We therefore rule that for the purposes of an application for change of name under Article 376 of the Civil Code, the only name that may be changed is the true or official name recorded in the civil register.

Petitioner's registered name is Hatima Centi Y. Saul. In the instant petition, petitioner does not seek to change her registered maiden name but, instead, prays that she be allowed to resume the use of her maiden name in view of the dissolution of her marriage to Hadji Idris Yasin, by virtue of a decree of divorce granted in accordance with Muslim law.

Divorce (talaq) is defined in PD 1086, the Code of Muslim Personal Laws of the Philippines, as follows:

Art. 45. Definition and forms. — Divorce is the formal dissolution of the marriage bond in accordance with this Code to be granted only after exhaustion of all possible means of reconciliation between the spouses. It may be effected by:

(a) Repudiation of the wife by the husband (talaq);

xxx xxx xxx

(c) Judicial decree ( faskh).

Divorce (talaq or faskh) severs the marriage bond. Thus, Article 54 of PD 1086 provides:

Art. 54. Effects of irrevocable talaq or faskh. — A talaq or faskh, as soon as it become irrevocable, shall have the following effects:

(a) The marriage bond shall be severed and the spouses may contract another marriage in accordance with this Code;

The divorce becomes irrevocable after observance of a period of waiting called idda (Art. 56, PD 1086) the duration of which is 3 monthly courses after termination of the marriage by divorce (Art. 57[b], PD 1083). Under Article 187, PD 1083, the Civil Code of the Philippines, the Rules of Court and other existing laws, insofar as they are not inconsistent with the provisions of this Code (the Code of Muslim Personal Laws), shall be applied suppletorily.

Even under the Civil Code, the use of the husband's surname during the marriage (Art. 370, Civil Code), after annulment of the marriage (Art. 371, Civil Code) and after the death of the husband (Art. 373, Civil Code) is permissive and not obligatory except in case of legal separation (Art. 372, Civil Code). Thus, Articles 370 and 371 of the Civil Code provides:

Art. 370. A married woman may use:

(1) Her maiden first name and surname and add her husband's surname, or

(2) Her maiden first name and her husband's surname, or

(3) Her husband's full name, but prefixing a word indicating that she is his wife, such as "Mrs."

Art. 371. In case of annulment of marriage, and the wife is the guilty party, she shall resume her maiden name and surname. If she is the innocent spouse, she may resume her maiden name and surname. However, she may choose to continue employing her former husband's surname, unless:

(1) The court decrees otherwise, or

(2) She or the former husband is married again to another person.

According to Tolentino:

. . . Under the present article of our Code, however, the word "may" is used, indicating that the use of the husband's surname by the wife is permissive rather than obligatory. We have no law which provides that the wife shall change her name to that of the husband upon marriage. This is in consonance with the principle that surnames indicate descent. It seems, therefore, that a married woman may use only her maiden name and surname. She has an option, but not a duty, to use the surname of the husband in any of the ways provided by this Article. (Tolentino, Civil Code of the Philippines, Vol. I, p. 724, 1983 ed.)

When a woman marries a man, she need not apply and/or seek judicial authority to use her husband's name by prefixing the word "Mrs." before her husband's full name or by adding her husband's surname to her maiden first name. The law grants her such right (Art. 370, Civil Code). Similarly, when the marriage ties or vinculum no longer exists as in the case of death of the husband or divorce as authorized by the Muslim Code, the widow or divorcee need not seek judicial confirmation of the change in her civil status in order to revert to her maiden name as the use of her former husband's name is optional and not obligatory for her (Tolentino, Civil Code, p. 725, 1983 ed.; Art. 373, Civil Code). When petitioner married her husband, she did not change her name 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 law requires it.

In view of the foregoing considerations, We find the petition to resume the use of maiden name filed by petitioner before the respondent court a superfluity and unnecessary proceeding since the law requires her to do so as her former husband is already married to another woman after obtaining a decree of divorce from her in accordance with Muslim laws.

Although there is no legal prohibition against obtaining a judicial confirmation of a legal right, nevertheless, no law or rule provides for the procedure by which such confirmation may be obtained. In view of such circumstances, the onerous requirements of Rule 103 of the Rules of Court on change of name should not be applied to judicial confirmation of the right of a divorced woman to resume her maiden name and surname. In the absence of a specific rule or provision governing such a proceeding, where sufficient facts have been alleged supported by competent proof as annexes, which appear to be satisfactory to the court, such petition for confirmation of change of civil status and/or to resume the use of maiden name must be given due course and summarily granted as in fact it is a right conferred by law.

While the petition filed in the instant case leaves much to be desired in matters of form and averment of concise statements of ultimate facts constituting the petitioner's cause of action, nevertheless, giving it a most liberal construction, the petition suffices to convey the petitioner's desire and prayer to resume her maiden surname on grounds of her divorce from her former husband and subsequent marriage of the latter to another woman.

The remand of this case to the trial court would only delay the final disposition of this case and would not serve the public interest. We have consistently ruled that the remand of the case to a lower court for further reception of evidence is not necessary if this Court can already resolve the dispute on the basis of the records before it (Dimayuga v. PCIB, 200 SCRA 143 [1991]; Board of Liquidators v. Zulueta, 115 SCRA 548 [1982]: Quisumbing v. CA, 120 SCRA 703 [1983]).

WHEREFORE, the petition is GRANTED and the orders of respondent court dated July 4, 1990 and August 10, 1990 are hereby SET ASIDE. Petitioner is authorized to resume her maiden name and surname.

SO ORDERED.

SECOND DIVISION

G.R. No. 169202 : March 5, 2010

MARIA VIRGINIA V. REMO, Petitioner, vs. THE HONORABLE SECRETARY OF FOREIGN AFFAIRS, Respondent.

D E C I S I O N

CARPIO, J.:

The Case

Before the Court is a petition for review1 cЃacЃaląw of the 27 May 2005 Decision2 cЃacЃaląw and 2 August 2005 Resolution3 cЃacЃaląw of the Court of Appeals in CA-G.R. SP No. 87710. The Court of Appeals affirmed the decision of the Office of the President, which in turn affirmed the decision of the Secretary of Foreign Affairs denying petitioners request to revert to the use of her maiden name in her replacement passport.

The Facts

Petitioner Maria Virginia V. Remo is a married Filipino citizen whose Philippine passport was then expiring on 27 October 2000. Petitioner being married to Francisco R. Rallonza, the following entries appear in her passport: "Rallonza" as her surname, "Maria Virginia" as her given name, and "Remo" as her middle name. Prior to the expiry of the validity of her passport, petitioner, whose marriage still subsists, applied for the renewal of her passport with the Department of Foreign Affairs (DFA) office in Chicago, Illinois, U.S.A., with a request to revert to her maiden name and surname in the replacement passport. chanroblesvirtua|awlibary

Petitioners request having been denied, Atty. Manuel Joseph R. Bretana III, representing petitioner, wrote then Secretary of Foreign Affairs Domingo Siason expressing a similar request.

On 28 August 2000, the DFA, through Assistant Secretary Belen F. Anota, denied the request, stating thus:

This has reference to your letter dated 17 August 2000 regarding one Ms. Maria Virginia V. Remo who is applying for renewal of her passport using her maiden name. chanroblesvirtua|awlibary

This Office is cognizant of the provision in the law that it is not obligatory for a married woman to use her husbands name. Use of maiden name is allowed in passport application only if the married name has not been used in previous application. The Implementing Rules and Regulations for Philippine Passport Act of 1996 clearly defines the conditions when a woman applicant may revert to her maiden name, that is, only in cases of annulment of marriage, divorce and death of the husband. Ms. Remos case does not meet any of these conditions.4 cЃacЃaląw (Emphasis supplied)

Petitioners motion for reconsideration of the above-letter resolution was denied in a letter dated 13 October 2000.5 cЃacЃaląw

On 15 November 2000, petitioner filed an appeal with the Office of the President. chanroblesvirtua|awlibary

On 27 July 2004, the Office of the President dismissed the appeal6 cЃacЃaląw and ruled that Section 5(d) of Republic Act No. 8239 (RA 8239) or the Philippine Passport Act of 1996 "offers no leeway for any other interpretation than that only in case of divorce, annulment, or declaration [of nullity] of marriage may a married 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 regardless of the respective dates of passage. Since the Civil Code is a general law, it should yield to RA 8239. chanroblesvirtua|awlibary

On 28 October 2004, the Office of the President denied the motion for reconsideration.7 cЃacЃaląw

Petitioner filed with the Court of Appeals a petition for review under Rule 43 of the Rules of Civil Procedure. chanroblesvirtua|awlibary

In its Decision of 27 May 2005, the Court of Appeals denied the petition and affirmed the ruling of the Office of the President. The dispositive portion of the Court of Appeals decision reads:

WHEREFORE, premises considered, the petition is DENIED, and the resolution dated July 27, 2004, and the order dated October 28, 2004 of the Office of the President in O.P. Case No. 001-A-9344 are hereby AFFIRMED.

SO ORDERED.8 cЃacЃaląw

Petitioner moved for reconsideration which the Court of Appeals denied in its Resolution dated 2 August 2005. chanroblesvirtua|awlibary

Hence, this petition.

The Court of Appeals Ruling

The Court of Appeals found no conflict between Article 370 of the Civil Code9 cЃacЃaląw and Section 5(d) of RA 8239.10 cЃacЃaląw The Court of Appeals held that for passport application and issuance purposes, RA 8239 limits the instances when a married woman applicant 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 nullity of marriage. Since there was no showing that petitioner's marriage to Francisco Rallonza has been annulled, declared void or a divorce decree has been granted to them, petitioner cannot simply revert to her maiden name in the replacement passport after she had adopted her husbands surname in her old passport. Hence, according to the Court of Appeals, respondent was justified in refusing the request of petitioner to revert to her maiden name in the replacement passport.

The Issue

The sole issue in this case is whether petitioner, who originally used her husbands surname in her expired passport, can revert to the use of her maiden name in the replacement passport, despite the subsistence of her marriage.

The Ruling of the Court

The petition lacks merit. chanroblesvirtua|awlibary

Title XIII of the Civil Code governs the use of surnames. In the case of a married woman, Article 370 of the Civil Code provides:

ART. 370. A married woman may use:

(1) Her maiden first name and surname and add her husbands surname, or

(2) Her maiden first name and her husband's surname, or

(3) Her husbands full name, but prefixing a word indicating that she is his wife, such as "Mrs."

We agree with petitioner that the use of the word "may" in the above provision indicates that the use of the husbands surname by the wife is permissive rather than obligatory. This has been settled in the case of Yasin v. Honorable Judge Sharia District Court.11 cЃacЃaląw

In Yasin,12 cЃacЃaląw petitioner therein filed with the Sharia District Court a "Petition to resume the use of maiden name" in view of the dissolution of her marriage by divorce under the Code of Muslim Personal Laws of the Philippines, and after marriage of her former husband to another woman. In ruling in favor of petitioner therein, the Court explained that:

When a woman marries a man, she need not apply and/or seek judicial authority to use her husbands name by prefixing the word "Mrs." before her husbands full name or by adding her husbands surname to her maiden first name. The law grants her such right (Art. 370, Civil Code). Similarly, when the marriage ties or vinculum no longer exists as in the case of death of the husband or divorce as authorized by the Muslim Code, the widow or divorcee need not seek judicial confirmation of the change in her civil status in order to revert to her maiden name as use of her former husbands is optional and not obligatory for her (Tolentino, Civil Code, p. 725, 1983 ed.; Art. 373, Civil Code). When petitioner married her 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 law requires it. (Emphasis supplied)

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 Article 370 of the Civil Code.13 cЃacЃaląw 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 continuously using her maiden name once she is married because when a woman marries, she does not change her name but only her civil status. Further, this interpretation is in consonance with the principle that surnames indicate descent.14 cЃacЃaląw

In the present case, petitioner, whose marriage is still subsisting and who opted to use her husbands surname in her old passport, requested to resume her maiden name in the replacement passport arguing that no law prohibits her from using her maiden name. Petitioner cites Yasin as the applicable precedent. However, Yasin is not squarely in point with this case. Unlike in Yasin, which involved a Muslim divorcee whose former husband is already married to another woman, petitioners marriage remains subsisting. Another point, Yasin did not involve a request to resume ones maiden name in a replacement passport, but a petition to resume ones maiden name in view of the dissolution of ones marriage. chanroblesvirtua|awlibary

The law governing passport issuance is RA 8239 and the applicable provision in this case is Section 5(d), which states:

Sec. 5. Requirements for the Issuance of Passport. No passport shall be issued to an applicant unless the Secretary or his duly authorized representative is satisfied that the applicant is a Filipino citizen who has complied with the following requirements: x x x

(d) In case of a woman who is married, separated, divorced or widowed or whose marriage has been annulled or declared by court as void, a copy of the certificate of marriage, court decree of separation, divorce or annulment or certificate of 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, annulment or declaration of marriage as void, the woman applicant may revert to the use of her maiden name: Provided, further, That such divorce is recognized under existing laws of the Philippines; x x x (Emphasis supplied)

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 woman may be allowed to revert to the use of her maiden name in her passport." These instances are death of husband, divorce decree, annulment or nullity of marriage. Significantly, Section 1, Article 12 of the Implementing Rules and Regulations of RA 8239 provides:

The passport can be amended only in the following cases:

a) Amendment of womans name due to marriage;

b) Amendment of womans name due to death of spouse, annulment of marriage or divorce initiated by a foreign spouse; or

c) Change of surname of a child who is legitimated by virtue of a subsequent marriage of his parents.

Since petitioners marriage to her husband subsists, placing her case outside of the purview of Section 5(d) of RA 8239 (as to the instances when a married woman may revert to the use of her maiden name), she may not resume her maiden name in the replacement passport.15 cЃacЃaląw This prohibition, according to petitioner, conflicts with and, thus, operates as an implied repeal of Article 370 of the Civil Code. chanroblesvirtua|awlibary

Petitioner is mistaken. The conflict between Article 370 of the Civil Code and Section 5(d) of RA 8239 is more imagined than real. RA 8239, including its implementing rules and regulations, does not prohibit a married woman from using her maiden name in her passport. In fact, in recognition of this right, the DFA allows a married woman who applies for a passport for the first time to use her maiden name. Such an applicant is not required to adopt her husband's surname.16 cЃacЃaląw

In the case of renewal of passport, a married woman may either adopt her husbands surname or continuously use her maiden name. If she chooses to adopt her husbands surname in her new passport, the DFA additionally requires the submission of an authenticated copy of the marriage certificate. Otherwise, if she prefers to continue using her maiden name, she may still do so. The DFA will not prohibit her from continuously using her maiden name.17 cЃacЃaląw

However, once a married woman opted to adopt her husbands surname in her passport, she may not revert to the use of her maiden name, except in the cases enumerated in Section 5(d) of RA 8239. These instances are: (1) death of husband, (2) divorce, (3) annulment, or (4) nullity of marriage. Since petitioners marriage to her husband subsists, she may not resume her maiden name in the replacement passport. Otherwise stated, a married woman's reversion to the use of her maiden name must be based only on the severance of the marriage. chanroblesvirtua|awlibary

Even assuming RA 8239 conflicts with the Civil Code, the provisions of RA 8239 which is a special law specifically dealing with passport issuance must prevail over the provisions of Title XIII of the Civil Code which is the general law on the use of surnames. A basic tenet in statutory construction is that a special law prevails over a general law,18 cЃacЃaląw thus:

I]t is a familiar rule of statutory construction that to the extent of any necessary repugnancy between a general and a special law or provision, the latter will control the former without regard to the respective dates of passage.19 cЃacЃaląw

Moreover, petitioners theory of implied repeal must fail. Well-entrenched is the rule that an implied repeal is disfavored. T he apparently conflicting provisions of a law or two laws should be harmonized as much as possible, so that each shall be effective.20 cЃacЃaląw For a law to operate to repeal another law, the two laws must actually be inconsistent. The former must be so repugnant as to be irreconcilable with the latter act.21 cЃacЃaląw This petitioner failed to establish. chanroblesvirtua|awlibary

The Court notes that petitioner would not have encountered any problems in the replacement passport had she opted to continuously and consistently use her maiden name from the moment she was married and from the time she first applied for a Philippine passport. However, petitioner consciously chose to use her husbands surname before, in her previous passport application, and now desires to resume her maiden name. If we allow petitioners present request, definitely nothing prevents her in the future from requesting to revert to the use of her husbands surname. Such unjustified changes in one's name and identity in a passport, which is considered superior to all other official documents,22 cЃacЃaląw cannot be countenanced. Otherwise, undue confusion and inconsistency in the records of passport holders will arise. Thus, for passport issuance purposes, a married woman, such as petitioner, whose marriage subsists, may not change her family name at will. chanroblesvirtua|awlibary

The acquisition of a Philippine passport is a privilege. The law recognizes the passport applicants constitutional right to travel. However, the State is also mandated to protect and maintain the integrity and credibility of the passport and travel documents proceeding from it23 cЃacЃaląw as a Philippine passport remains at all times the property of the Government. The holder is merely a possessor of the passport as long as it is valid and the same may not be surrendered to any person or entity other than the government or its representative.24 cЃacЃaląw

As the OSG correctly pointed out:

T]he issuance of passports is impressed with public interest. A passport is an official document of identity and nationality issued to a person intending to travel or sojourn in foreign countries. It is issued by the Philippine government to its citizens requesting other governments to allow its holder to pass safely and freely, and in case of need, to give him/her aid and protection. x x x

Viewed in the light of the foregoing, it is within respondents competence to regulate any amendments intended to be made therein, including the denial of unreasonable and whimsical requests for amendments such as in the instant case.25 cЃacЃaląw

WHEREFORE, we DENY the petition. We AFFIRM the 27 May 2005 Decision and 2 August 2005 Resolution of the Court of Appeals in CA-G.R. SP No. 87710.

SO ORDERED.

FIRST DIVISION

ISABELITA SEVILLA CASTRO, G.R. No. 140484

Petitioner,

Present:

- versus - PUNO, C.J., Chairperson,

SANDOVAL-GUTIERREZ,

CORONA,

AZCUNA, and

LEONARDO-DE CASTRO, JJ.

LAMBERTO RAMOS CASTRO;

RTC of Valenzuela, Branch 75

JUDGE JAIME F. BAUTISTA,

Respondents.

Promulgated:

January 28, 2007

X -------------------------------------------------------------------------------------- X

DECISION

AZCUNA, J.:

This is a petition for certiorari[1] seeking the nullification of the Decision of the Regional Trial Court

(RTC) of Valenzuela, Metro Manila, Branch 75, on August 19, 1998, and its Orders issued respectively

on May 5, 1999, July 1, 1999 and September 20, 1999, in Civil Case No. 180-V-98 entitled “Lamberto R.

Castro v. Isabelita S. Castro.”

The facts are as follows:[2]

A petition for annulment of marriage on the ground of psychological incapacity under Article 36 of the

Family Code was filed by private respondent Lamberto R. Castro against petitioner Isabelita S. Castro on

July 1, 1998.

Summons, along with a copy of the petition for annulment, was allegedly received by petitioner’s nephew

on her behalf at her residence.

For failure of petitioner to file an answer, the RTC ordered the state prosecutor to conduct an

investigation and to submit to the court a report thereon.

The state prosecutor submitted a report stating that no collusion existed between the parties in the filing of

the petition. The petition was set for hearing on August 18, 1998 at 8:30 a.m. For failure of petitioner to

appear and to file any responsive pleading to contest the petition, the trial court allowed private

respondent to present his evidence ex parte in the presence of the state prosecutor.

At the ex-parte hearing, private respondent stated that he married petitioner in 1958. They have four

children but they have been living apart for a number of years prior to the filing of the petition. Private

respondent alleged that their relationship did not last because petitioner was irresponsible, violent, and

had failed to show love and affection towards him and their children, and had an illicit affair with the

family driver which prompted him (private respondent) to file an adultery case against her. He added that

petitioner had neurotic and psychotic tendencies, and was always mad at him for no apparent reason.

To support private respondent’s petition, Regine Marmee C. Cosico, a clinical psychologist, was

presented to testify on petitioner’s psychological incapacity based on the psychological tests that she

conducted on both parties. According to her, the tests revealed that petitioner is psychologically

incapacitated, hence, unable to perform her marital obligations.

On August 19, 1998, public respondent Judge Jaime F. Bautista granted the petition. The dispositive

portion of the decision reads:

WHEREFORE, premises considered, judgment is hereby rendered in favor of the petitioner and the marriage of petitioner and respondent on January 30, 1958 is hereby declared ANNULLED. SO ORDERED.[3]  

On September 8, 1998, petitioner filed a Motion to Set Aside/Declare Judgment Null and Void[4] on the

ground that the trial court did not acquire jurisdiction over her person for failure to serve summons and a

copy of the petition. She averred that the sheriff’s return was invalid because she had no nephew residing

with her, and no earnest effort was shown by the sheriff to serve the summons and a copy of the petition

before resorting to substituted service. Petitioner also claimed that the allegations made by private

respondent were false, and that the real reason for filing the petition for annulment was so that he can

marry his concubine.

Private respondent filed an Opposition to Respondent’s Motion to Set Aside Judgment asserting that

summons was properly served on petitioner. After petitioner had filed her Reply, the trial court issued an

Order on March 2, 1999 declaring that:

Before this court is respondent’s … Motion for Reconsideration, whereupon the petitioner, through counsel, filed [his] Opposition. Finding the Opposition to be with merit, insofar as the absence of contrary evidence from the respondent, the Motion for Reconsideration is hereby GRANTED PARTIALLY, hence, the decision or judgment of this court is hereby tentatively set aside and the respondent is hereby allowed to present contrary evidence which is hereby set for March 29, 1999 at 10:00 o’clock in the morning.

. . .SO ORDERED.[5] 

 

Petitioner’s counsel filed a motion for postponement which was granted by the trial court. The hearing

was reset to May 5, 1999 at 8:30 a.m.

On April 21, 1999, however, petitioner’s counsel again moved for the postponement of the May 5, 1999

hearing to June 16, 1999.[6]

Notwithstanding petitioner’s motion for postponement, the trial court, on May 5, 1999, issued an Order

affirming the Decision dated August 19, 1998, thus:

When this case was called for hearing today, only Atty. Froilan Zapanta was present in court. Although absent, respondent’s counsel, Teresita Marbibi, had earlier filed a “Motion for Postponement.” Upon manifestation of Atty. Zapanta, considering that the respondent’s counsel, time and again, has been filing motions to postpone, the respondent is hereby deemed to have waived her right to present countervailing evidence and the Decision dated August 19, 1998 is hereby ordered MAINTAINED. SO ORDERED.[7]  

Petitioner received a copy of the Order on May 7, 1999. She filed a motion for reconsideration[8] on May

19, 1999, asserting that private respondent neither opposed the motion for postponement nor did she

receive any order from the court denying the same. She likewise pointed out that public respondent

should have allowed her the chance to present contrary evidence in court.

After private respondent filed his Opposition to the Motion for Reconsideration, the case was deemed

submitted for resolution. On July 1, 1999, the trial court issued an Order denying petitioner’s motion for

reconsideration.[9]

Petitioner received the Order on July 16, 1999, and on July 19, 1999, she filed a Notice of Appeal with

the trial court[10] against which a Motion to Dismiss Appeal was filed by private respondent.[11]

On September 20, 1999, the trial court issued an Order maintaining its Decision dated August 19, 1998,

thus:

Before this Court are several contrasting pleadings propounded by the contending parties through their respective counsels. It appears, however, that the petitioner’s “Motion to Dismiss Appeal” vis-à-vis the Opposition thereto as well as the related pleadings, is with MERIT. In other words, the arguments or reasons propounded therein by the movant appear to be INDUBITABLE, hence, the Opposition thereto is accordingly DENIED, and consequently, the said Motion to Dismiss Appeal is hereby GRANTED. The Decision of this court dated August 19, 1998 is hereby ordered MAINTAINED. SO ORDERED. [12]

  

The decision having become final and executory on October 11, 1999, the trial court issued an entry of

judgment on October 29, 1999.[13]

Hence, this petition.

Petitioner contends that:

One, the trial court did not acquire jurisdiction over her (petitioner);

Two, the trial court acted with grave abuse of discretion which is tantamount to lack of jurisdiction when

it issued the Decision dated August 19, 1998; and

Lastly, the trial court acted with grave abuse of discretion when it denied her appeal, and maintained the

assailed decision.

Petitioner argues as follows:

First, there was no valid service of summons; hence, the trial court had no right or power to render

judgment against her. The sheriff’s return stated that summons was served through petitioner’s nephew

without an explanation why a substituted service was resorted to. Also, petitioner does not have any

nephew living at her residence;

Second, the finding of the trial court that petitioner is suffering from psychological incapacity is devoid of

merit. The allegations of private respondent merely showed that they could not get along with each other.

There had been no showing of any psychological defect on the part of petitioner or the gravity of the

problem, neither its juridical antecedence nor its incurability;

Third, the trial court erred in not setting the case for pre-trial and trial which is a mandatory requirement

under Section 2, Rule 18 of the Rules of Court. It rendered a decision without any evidence presented by

petitioner. The court merely relied on the fabricated report of the public prosecutor as the latter did not

actually interview her or conduct any investigation on the matter; and

Lastly, the notice of appeal filed by petitioner on July 19, 1999 was an appeal from the Order dated July

1, 1999, which was an interlocutory order. This was, however, dismissed by public respondent. Petitioner,

therefore, has no other recourse but to file the present petition for certiorari.

The petition fails.

This Court finds no reason to set aside the findings of the trial court. The records show that petitioner was

personally informed of the petition for annulment, and as stated by the trial court, petitioner received the

summons and the petition on July 15, 1998. She “acknowledged receipt thereof by affixing her signature

on the original copy of said summons dated July 13, 1998.”[14] Petitioner neither denied nor refuted this.

Petitioner’s claim that she was never informed of the proceedings is unbelievable because she even

submitted herself to a series of psychological examination performed by public respondent’s expert

witness, Regine Marmee C. Cosico, a clinical psychologist.

Petitioner was afforded due process and the trial court acquired jurisdiction over her person. Even

assuming that petitioner did not receive the summons, she was deemed to have submitted herself to the

jurisdiction of the trial court when she filed a motion to set aside/declare judgment null and void.[15]

After the trial court had granted her motion and she was given the opportunity to present contrary

evidence, she and her counsel failed to appear on the scheduled hearings for this purpose.

Finally, the trial court’s decision had already become final and executory, and judgment was entered on

October 29, 1999. For this reason and on account of private respondent’s death on January 14, 2004,[16]

the judgment is binding on both parties. Section 24 of the Rule on Declaration of Absolute Nullity of

Void Marriages and Annulment of Voidable Marriages[17] provides:

Sec. 24. Effect of death of a party; duty of the Family Court or Appellate Court. – …(b) If the party dies after the entry of judgment of nullity or annulment, the judgment shall be binding upon the parties and their successors in interest in the settlement of the estate in the regular courts.

WHEREFORE, the petition is DISMISSED. The Decision of the Regional Trial Court of Valenzuela,

Metro Manila, Branch 75, on August 19, 1998, and its Orders issued respectively on May 5, 1999, July 1,

1999 and September 20, 1999, in Civil Case No. 180-V-98, are AFFIRMED.

No costs.

LIM V. CA (SEE HANDWRITTEN DIGEST)