G.R. No.

167109

February 6, 2007

FELICITAS AMOR-CATALAN, Petitioner,

vs.
COURT OF APPEALS, MANILA, ORLANDO B. CATALAN and MEROPE E.
BRAGANZA, Respondents.

2) The defendants are ordered jointly and severally to pay plaintiff by way of moral
damages the amount of P300,000.00, exemplary damages in the amount of
P200,000.00 and attorneys fees in the amount of P50,000.00, including costs of this
suit; and
3) The donation in consideration of marriage is ordered revoked and the property
donated is ordered awarded to the heirs of Juliana Braganza.

DECISION
Furnish copies of this Decision to Atty. Napoleon B. Arenas, Jr. and Atty. Nolan Evangelista.
YNARES-SANTIAGO, J.:
SO ORDERED.10
This petition for review assails the Decision1 of the Court of Appeals in CA-G.R. CV No.
69875 dated August 6, 2004, which reversed the Decision 2 of the Regional Trial Court (RTC)
of Dagupan City, Branch 44, in Civil Case No. D-10636, declaring the marriage between
respondents Orlando B. Catalan and Merope E. Braganza void on the ground of bigamy, as
well as the Resolution3 dated January 27, 2005, which denied the motion for reconsideration.
Petitioner Felicitas Amor-Catalan married respondent Orlando on June 4, 1950 in Mabini,
Pangasinan.4Thereafter, they migrated to the United States of America and allegedly became
naturalized citizens thereof. After 38 years of marriage, Felicitas and Orlando divorced in April
1988.5
Two months after the divorce, or on June 16, 1988, Orlando married respondent Merope in
Calasiao, Pangasinan.6 Contending that said marriage was bigamous since Merope had a
prior subsisting marriage with Eusebio Bristol, petitioner filed a petition for declaration of
nullity of marriage with damages in the RTC of Dagupan City7 against Orlando and Merope.
Respondents filed a motion to dismiss8 on the ground of lack of cause of action as petitioner
was allegedly not a real party-in-interest, but it was denied. 9 Trial on the merits ensued.

Respondents appealed the decision to the Court of Appeals, which reversed the decision of
the RTC, thus:
WHEREFORE, premises considered, we hereby GRANT the appeal and consequently
REVERSE and SET ASIDE the appealed decision. We likewise DISMISS Civil Case No. D10636, RTC, Branch 44, Dagupan City. No costs.
SO ORDERED.11
After the motion for reconsideration was denied, petitioner filed the instant petition for review
raising the following issues:
I.
WHETHER PETITIONER HAS THE REQUIRED STANDING IN COURT TO QUESTION THE
NULLITY OF THE MARRIAGE BETWEEN RESPONDENTS;
II.

On October 10, 2000, the RTC rendered judgment in favor of the petitioner, the dispositive
portion of which reads:
WHEREFORE, judgment is declared in favor of plaintiff Felicitas Amor Catalan and against
defendants Orlando B. Catalan and Merope E. Braganza, as follows:
1) The subsequent marriage of Merope Braganza with Orlando B. Catalan is
declared null and void ab initio;

WHETHER THE FAILURE OF THE COURT OF APPEALS TO DECLARE THE

QUESTIONED MARRIAGE VOID CONSTITUTES REVERSIBLE ERROR. 12
Petitioner contends that the bigamous marriage of the respondents, which brought
embarrassment to her and her children, confers upon her an interest to seek judicial remedy
to address her grievances and to protect her family from further embarrassment and
humiliation. She claims that the Court of Appeals committed reversible error in not declaring
the marriage void despite overwhelming evidence and the state policy discouraging illegal
and immoral marriages.13

The main issue to be resolved is whether petitioner has the personality to file a petition for the
declaration of nullity of marriage of the respondents on the ground of bigamy. However, this
issue may not be resolved without first determining the corollary factual issues of whether the
petitioner and respondent Orlando had indeed become naturalized American citizens and
whether they had actually been judicially granted a divorce decree.

an alien may be recognized in our jurisdiction, provided such decree is valid according to the
national law of the foreigner.21 However, before it can be recognized by our courts, the party
pleading it must prove the divorce as a fact and demonstrate its conformity to the foreign law
allowing it, which must be proved considering that our courts cannot take judicial notice of
foreign laws.22

While it is a settled rule that the Court is not a trier of facts and does not normally undertake
the re-examination of the evidence presented by the contending parties during the trial of the
case,14 there are, however, exceptions to this rule, like when the findings of facts of the RTC
and the Court of Appeals are conflicting, or when the findings are conclusions without citation
of specific evidence on which they are based.15

Without the divorce decree and foreign law as part of the evidence, we cannot rule on the
issue of whether petitioner has the personality to file the petition for declaration of nullity of
marriage. After all, she may have the personality to file the petition if the divorce decree
obtained was a limited divorce or a mensa et thoro; or the foreign law may restrict remarriage
even after the divorce decree becomes absolute.23 In such case, the RTC would be correct to
declare the marriage of the respondents void for being bigamous, there being already in
evidence two existing marriage certificates, which were both obtained in the Philippines, one
in Mabini, Pangasinan dated December 21, 1959 between Eusebio Bristol and respondent
Merope,24 and the other, in Calasiao, Pangasinan dated June 16, 1988 between the
respondents.25

Both the RTC and the Court of Appeals found that petitioner and respondent Orlando were
naturalized American citizens and that they obtained a divorce decree in April 1988. However,
after a careful review of the records, we note that other than the allegations in the complaint
and the testimony during the trial, the records are bereft of competent evidence to prove their
naturalization and divorce.
The Court of Appeals therefore had no basis when it held:

However, if there was indeed a divorce decree obtained and which, following the national law
of Orlando, does not restrict remarriage, the Court of Appeals would be correct in ruling that
petitioner has no legal personality to file a petition to declare the nullity of marriage, thus:

In light of the allegations of Felicitas complaint and the documentary and testimonial
evidence she presented, we deem it undisputed that Orlando and Felicitas are American
citizens and had this citizenship status when they secured their divorce decree in April 1988.
We are not therefore dealing in this case with Filipino citizens whose marital status is
governed by the Family Code and our Civil Code, but with American citizens who secured
their divorce in the U.S. and who are considered by their national law to be free to contract
another marriage. x x x16

Freed from their existing marital bond, each of the former spouses no longer has any interest
nor should each have the personality to inquire into the marriage that the other might
subsequently contract. x x x Viewed from another perspective, Felicitas has no existing
interest in Orlandos subsequent marriage since the validity, as well as any defect or infirmity,
of this subsequent marriage will not affect the divorced status of Orlando and Felicitas. x x x 26

Further, the Court of Appeals mistakenly considered the failure of the petitioner to refute or
contest the allegation in respondents brief, that she and respondent Orlando were American
citizens at the time they secured their divorce in April 1988, as sufficient to establish the fact
of naturalization and divorce.17 We note that it was the petitioner who alleged in her complaint
that they acquired American citizenship and that respondent Orlando obtained a judicial
divorce decree.18 It is settled rule that one who alleges a fact has the burden of proving it and
mere allegation is not evidence.19
Divorce means the legal dissolution of a lawful union for a cause arising after marriage. But
divorces are of different types. The two basic ones are (1) absolute divorce or a vinculo
matrimonii and (2) limited divorce or a mensa et thoro. The first kind terminates the marriage,
while the second suspends it and leaves the bond in full force. 20 A divorce obtained abroad by

True, under the New Civil Code which is the law in force at the time the respondents were
married, or even in the Family Code, there is no specific provision as to who can file a petition
to declare the nullity of marriage; however, only a party who can demonstrate "proper
interest" can file the same. A petition to declare the nullity of marriage, like any other
actions, must be prosecuted or defended in the name of the real party in interest 27 and must
be based on a cause of action.28 Thus, in Nial v. Bayadog,29 the Court held that the children
have the personality to file the petition to declare the nullity of the marriage of their deceased
father to their stepmother as it affects their successional rights.1awphi1.net
Significantly, Section 2(a) of The Rule on Declaration of Absolute Nullity of Void Marriages
and Annulment of Voidable Marriages, which took effect on March 15, 2003, now specifically
provides:

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.
xxxx
In fine, petitioners personality to file the petition to declare the nullity of marriage cannot be
ascertained because of the absence of the divorce decree and the foreign law allowing it.
Hence, a remand of the case to the trial court for reception of additional evidence is
necessary to determine whether respondent Orlando was granted a divorce decree and
whether the foreign law which granted the same allows or restricts remarriage. If it is proved
that a valid divorce decree was obtained and the same did not allow respondent Orlandos
remarriage, then the trial court should declare respondents marriage as bigamous and void
ab initio but reduce the amount of moral damages from P300,000.00 to P50,000.00 and
exemplary damages from P200,000.00 to P25,000.00. On the contrary, if it is proved that a
valid divorce decree was obtained which allowed Orlando to remarry, then the trial court must
dismiss the instant petition to declare nullity of marriage on the ground that petitioner Felicitas
Amor-Catalan lacks legal personality to file the same.
WHEREFORE, in view of the foregoing, let this case be REMANDED to the trial court for its
proper disposition. No costs.
SO ORDERED.

G.R. No. 94053 March 17, 1993

REPUBLIC OF THE PHILIPPINES, petitioner,
vs.
GREGORIO NOLASCO, respondent.
The Solicitor General for plaintiff-appellee.
Warloo G. Cardenal for respondent.

RESOLUTION

FELICIANO, J.:
On 5 August 1988, respondent Gregorio Nolasco filed before the Regional Trial Court of
Antique, Branch 10, a petition for the declaration of presumptive death of his wife Janet
Monica Parker, invoking Article 41 of the Family Code. The petition prayed that respondent's
wife be declared presumptively dead or, in the alternative, that the marriage be declared null
and void. 1

The Republic of the Philippines opposed the petition through the Provincial Prosecutor of
Antique who had been deputized to assist the Solicitor-General in the instant case. The
Republic argued, first, that Nolasco did not possess a "well-founded belief that the absent
spouse was already dead," 2 and second, Nolasco's attempt to have his marriage annulled in
the same proceeding was a "cunning attempt" to circumvent the law on marriage. 3
During trial, respondent Nolasco testified that he was a seaman and that he had first met
Janet Monica Parker, a British subject, in a bar in England during one of his ship's port calls.
From that chance meeting onwards, Janet Monica Parker lived with respondent Nolasco on
his ship for six (6) months until they returned to respondent's hometown of San Jose, Antique
on 19 November 1980 after his seaman's contract expired. On 15 January 1982, respondent
married Janet Monica Parker in San Jose, Antique, in Catholic rites officiated by Fr. Henry
van Tilborg in the Cathedral of San Jose.
Respondent Nolasco further testified that after the marriage celebration, he obtained another
employment contract as a seaman and left his wife with his parents in San Jose, Antique.
Sometime in January 1983, while working overseas, respondent received a letter from his
mother informing him that Janet Monica had given birth to his son. The same letter informed
him that Janet Monica had left Antique. Respondent claimed he then immediately asked
permission to leave his ship to return home. He arrived in Antique in November 1983.
Respondent further testified that his efforts to look for her himself whenever his ship docked
in England proved fruitless. He also stated that all the letters he had sent to his missing
spouse at No. 38 Ravena Road, Allerton, Liverpool, England, the address of the bar where he
and Janet Monica first met, were all returned to him. He also claimed that he inquired from
among friends but they too had no news of Janet Monica.
On cross-examination, respondent stated that he had lived with and later married Janet
Monica Parker despite his lack of knowledge as to her family background. He insisted that his
wife continued to refuse to give him such information even after they were married. He also
testified that he did not report the matter of Janet Monica's disappearance to the Philippine
government authorities.
Respondent Nolasco presented his mother, Alicia Nolasco, as his witness. She testified that
her daughter-in-law Janet Monica had expressed a desire to return to England even before
she had given birth to Gerry Nolasco on 7 December 1982. When asked why her daughter-inlaw might have wished to leave Antique, respondent's mother replied that Janet Monica never
got used to the rural way of life in San Jose, Antique. Alicia Nolasco also said that she had
tried to dissuade Janet Monica from leaving as she had given birth to her son just fifteen days
before, but when she (Alicia) failed to do so, she gave Janet Monica P22,000.00 for her

expenses before she left on 22 December 1982 for England. She further claimed that she
had no information as to the missing person's present whereabouts.
The trial court granted Nolasco's petition in a Judgment dated 12 October 1988 the
dispositive portion of which reads:
Wherefore, under Article 41, paragraph 2 of the Family Code of the
Philippines (Executive Order No. 209, July 6, 1987, as amended by
Executive Order No. 227, July 17, 1987) this Court hereby declares as
presumptively dead Janet Monica Parker Nolasco, without prejudice to her
reappearance. 4
The Republic appealed to the Court of Appeals contending that the trial court erred in
declaring Janet Monica Parker presumptively dead because respondent Nolasco had failed to
show that there existed a well founded belief for such declaration.
The Court of Appeals affirmed the trial court's decision, holding that respondent had
sufficiently established a basis to form a belief that his absent spouse had already died.
The Republic, through the Solicitor-General, is now before this Court on a Petition for Review
where the following allegations are made:
1. The Court of Appeals erred in affirming the trial court's finding that there
existed a well-founded belief on the part of Nolasco that Janet Monica Parker
was already dead; and
2. The Court of Appeals erred in affirming the trial Court's declaration that the
petition was a proper case of the declaration of presumptive death under
Article 41, Family Code. 5
The issue before this Court, as formulated by petitioner is "[w]hether or not Nolasco has a
well-founded belief that his wife is already dead." 6
The present case was filed before the trial court pursuant to Article 41 of the Family Code
which provides that:
Art. 41. A marriage contracted by any person during the subsistence of a
previous marriage shall be null and void, unless before the celebration of the
subsequent marriage, the prior spouse had been absent for four consecutive
years and the spouse present had a well-founded belief that the absent

spouse was already dead. In case of disappearance where there is danger of

death under the circumstances set forth in the provision of Article 391 of the
Civil Code, an absence of only two years shall be sufficient.

Petitioner's argument, upon the other hand, boils down to this: that respondent failed to prove
that he had complied with the third requirement, i.e., the existence of a "well-founded belief"
that the absent spouse is already dead.

For the purpose of contracting the subsequent marriage under the preceding
paragraph, the spouse present must institute a summary proceeding as
provided in this Code for the declaration of presumptive death of the
absentee, without prejudice to the effect of reappearance of the absent
spouse. (Emphasis supplied).

The Court believes that respondent Nolasco failed to conduct a search for his missing wife
with such diligence as to give rise to a "well-founded belief" that she is dead.

When Article 41 is compared with the old provision of the Civil Code, which it
superseded, 7 the following crucial differences emerge. Under Article 41, the time required for
the presumption to arise has been shortened to four (4) years; however, there is need for a
judicial declaration of presumptive death to enable the spouse present to remarry. 8 Also,
Article 41 of the Family Code imposes a stricter standard than the Civil Code: Article 83 of the
Civil Code merely requires either that there be no news that such absentee is still alive; or the
absentee is generally considered to be dead andbelieved to be so by the spouse present, or
is presumed dead under Article 390 and 391 of the Civil Code. 9 The Family Code, upon the
other hand, prescribes as "well founded belief" that the absentee is already dead before a
petition for declaration of presumptive death can be granted.
As pointed out by the Solicitor-General, there are four (4) requisites for the declaration of
presumptive death under Article 41 of the Family Code:
1. That the absent spouse has been missing for four consecutive years, or
two consecutive years if the disappearance occurred where there is danger
of death under the circumstances laid down in Article 391, Civil Code;
2. That the present spouse wishes to remarry;
3. That the present spouse has a well-founded belief that the absentee is
dead; and
4. That the present spouse files a summary proceeding for the declaration of
presumptive death of the absentee. 10

United States v. Biasbas, 12 is instructive as to degree of diligence required in searching for a

missing spouse. In that case, defendant Macario Biasbas was charged with the crime of
bigamy. He set-up the defense of a good faith belief that his first wife had already died. The
Court held that defendant had not exercised due diligence to ascertain the whereabouts of his
first wife, noting that:
While the defendant testified that he had made inquiries concerning the
whereabouts of his wife, he fails to state of whom he made such inquiries. He
did not even write to the parents of his first wife, who lived in the Province of
Pampanga, for the purpose of securing information concerning her
whereabouts. He admits that he had a suspicion only that his first wife was
dead. He admits that the only basis of his suspicion was the fact that she had
been absent. . . . 13
In the case at bar, the Court considers that the investigation allegedly conducted by
respondent in his attempt to ascertain Janet Monica Parker's whereabouts is too sketchy to
form the basis of a reasonable or well-founded belief that she was already dead. When he
arrived in San Jose, Antique after learning of Janet Monica's departure, instead of seeking
the help of local authorities or of the British Embassy, 14 he secured another seaman's
contract and went to London, a vast city of many millions of inhabitants, to look for her there.
Q After arriving here in San Jose, Antique, did you exert
efforts to inquire the whereabouts of your wife?
A Yes, Sir.
Court:
How did you do that?

Respondent naturally asserts that he had complied with all these requirements. 11
A I secured another contract with the ship and we had a trip
to London and I went to London to look for her I could not
find her (sic). 15 (Emphasis supplied)

Respondent's testimony, however, showed that he confused London for Liverpool and this
casts doubt on his supposed efforts to locate his wife in England. The Court of Appeal's
justification of the mistake, to wit:
. . . Well, while the cognoscente (sic) would readily know the geographical
difference between London and Liverpool, for a humble seaman like
Gregorio the two places could mean one place in England, the port where
his ship docked and where he found Janet. Our own provincial folks, every
time they leave home to visit relatives in Pasay City, Kalookan City, or
Paraaque, would announce to friends and relatives, "We're going to
Manila." This apparent error in naming of places of destination does not
appear to be fatal. 16
is not well taken. There is no analogy between Manila and its neighboring cities, on one hand,
and London and Liverpool, on the other, which, as pointed out by the Solicitor-General, are
around three hundred fifty (350) kilometers apart. We do not consider that walking into a
major city like Liverpool or London with a simple hope of somehow bumping into one
particular person there which is in effect what Nolasco says he did can be regarded as
a reasonably diligent search.

their place of residence. 19 Also, respondent failed to explain why he did not even try to get
the help of the police or other authorities in London and Liverpool in his effort to find his wife.
The circumstances of Janet Monica's departure and respondent's subsequent behavior make
it very difficult to regard the claimed belief that Janet Monica was dead a well-founded one.
In Goitia v. Campos-Rueda, 20 the Court stressed that:
. . . Marriage is an institution, the maintenance of which in its purity the public
is deeply interested. It is a relationship for life and the parties cannot
terminate it at any shorter period by virtue of any contract they
make. . . . . 21 (Emphasis supplied)
By the same token, the spouses should not be allowed, by the simple expedient of agreeing
that one of them leave the conjugal abode and never to return again, to circumvent the policy
of the laws on marriage. The Court notes that respondent even tried to have his marriage
annulled before the trial court in the same proceeding.
In In Re Szatraw, 22 the Court warned against such collusion between the parties when they
find it impossible to dissolve the marital bonds through existing legal means.

The Court also views respondent's claim that Janet Monica declined to give any information
as to her personal background even after she had married respondent 17 too convenient an
excuse to justify his failure to locate her. The same can be said of the loss of the alleged
letters respondent had sent to his wife which respondent claims were all returned to him.
Respondent said he had lost these returned letters, under unspecified circumstances.

While the Court understands the need of respondent's young son, Gerry Nolasco, for
maternal care, still the requirements of the law must prevail. Since respondent failed to satisfy
the clear requirements of the law, his petition for a judicial declaration of presumptive death
must be denied. The law does not view marriage like an ordinary contract. Article 1 of the
Family Code emphasizes that.

Neither can this Court give much credence to respondent's bare assertion that he had
inquired from their friends of her whereabouts, considering that respondent did not identify
those friends in his testimony. The Court of Appeals ruled that since the prosecutor failed to
rebut this evidence during trial, it is good evidence. But this kind of evidence cannot, by its
nature, be rebutted. In any case, admissibility is not synonymous with credibility. 18 As noted
before, there are serious doubts to respondent's credibility. Moreover, even if admitted as
evidence, said testimony merely tended to show that the missing spouse had chosen not to
communicate with their common acquaintances, and not that she was dead.

. . . Marriage is 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. It is the foundation of the familyand an inviolable social
institution whose nature, consequences, and incidents are governed by law
and not subject to stipulation, except that marriage settlements may fix the
property relations during the marriage within the limits provided by this Code.
(Emphasis supplied)
In Arroyo, Jr. v. Court of Appeals, 23 the Court stressed strongly the need to protect.

Respondent testified that immediately after receiving his mother's letter sometime in January
1983, he cut short his employment contract to return to San Jose, Antique. However, he did
not explain the delay of nine (9) months from January 1983, when he allegedly asked leave
from his captain, to November 1983 when be finally reached San Jose. Respondent,
moreover, claimed he married Janet Monica Parker without inquiring about her parents and

. . . the basic social institutions of marriage and the family in the preservation
of which the State bas the strongest interest; the public policy here involved
is of the most fundamental kind. In Article II, Section 12 of the Constitution
there is set forth the following basic state policy:

The State recognizes the sanctity of family life and shall

protect and strengthen the family as a basic autonomous
social institution. . . .
The same sentiment bas been expressed in the Family Code of the
Philippines in Article 149:
The family, being the foundation of the nation, is a basic
social institution which public policy cherishes and protects.
Consequently, family relations are governed by law and no
custom, practice or agreement destructive of the family shall
be recognized or given effect. 24
In fine, respondent failed to establish that he had the well-founded belief required by law that
his absent wife was already dead that would sustain the issuance of a court order declaring
Janet Monica Parker presumptively dead.
WHEREFORE, the Decision of the Court of Appeals dated 23 February 1990, affirming the
trial court's decision declaring Janet Monica Parker presumptively dead is hereby
REVERSED and both Decisions are hereby NULLIFIED and SET ASIDE. Costs against
respondent.

G.R. No. L-43905 May 30, 1983

SERAFIA G. TOLENTINO, petitioner,
vs.
HON. EDGARDO L. PARAS, MARIA CLEMENTE and THE LOCAL CIVIL REGISTRAR OF
PAOMBONG, BULACAN, respondents.
MELENCIO-HERRERA, J.:
The reversal of respondent Court's Order, dismissing petitioner's suit for her "declaration ...
as the lawful surviving spouse of deceased Amado Tolentino and the correction of the death
certificate of the same", is sought in this Petition for Review on Certiorari.
The records disclose that Amado Tolentino had contracted a second marriage with private
respondent herein, Maria Clemente, at Paombong, Bulacan, on November 1, 1948 (Annex
"C", Petition), while his marriage with petitioner, Serafia G. Tolentino, celebrated on July 31,
1943, was still subsisting (Annex "A", Petition).
Petitioner charged Amado with Bigamy in Criminal Case No. 2768 of the Court of First
Instance of Bulacan, Branch II, which Court, upon Amado's plea of guilty, sentenced him to
suffer the corresponding penalty. After Amado had served the prison sentence imposed on
him, he continued to live with private respondent until his death on July 25, 1974. His death
certificate carried the entry "Name of Surviving Spouse Maria Clemente."
In Special Proceedings No. 1587-M for Correction of Entry, petitioner sought to correct the
name of the surviving spouse in the death certificate from "Maria Clemente" to "Serafia G.
Tolentino", her name. The lower Court dismissed the petition "for lack of the proper requisites
under the law" and indicated the need for a more detailed proceeding,
Conformably thereto, petitioner filed the case below against private respondent and the Local
Civil Registrar of Paombong, Bulacan, for her declaration as the lawful surviving spouse, and

the correction of the death certificate of Amado. In an Order, dated October 21, 1976,
respondent Court, upon private respondent's instance, dismissed the case, stating:
The Motion to Dismiss filed by the defendants in this case, thru counsel Atty.
Hernan E. Arceo, for the reasons therein mentioned, is hereby GRANTED.
Further: (1) the correction of the entry in the Office of the Local Civil Registrar
is not the proper remedy because the issue involved is marital relationship;
(2) the Court has not acquired proper jurisdiction because as prescribed
under Art. 108, read together with Art. 412 of the Civil Code publication is
needed in a case like this, and up to now, there has been no such
publication; and (3) in a sense, the subject matter of this case has been aptly
discussed in Special Proceeding No. 1587-M, which this Court has already
dismissed, for lack of the proper requisites under the law.
In view of the above dismissal, all other motions in this case are hereby
considered MOOT and ACADEMIC.
SO ORDERED. 1
Thus, petitioner's present recourse mainly challenging the grounds relied upon by respondent
Court in ordering dismissal.
We rule for petitioner.
First, for the remedy. Although petitioner's ultimate objective is the correction of entry
contemplated in Article 412 of the Civil Code and Rule 108 of the Rules of Court, she initially
seeks a judicial declaration that she is the lawful surviving spouse of the deceased, Amado, in
order to lay the basis for the correction of the entry in the death certificate of said deceased.
The suit below is a proper remedy. It is of an adversary character as contrasted to a mere
summary proceeding. A claim of right is asserted against one who has an interest in
contesting it. Private respondent, as the individual most affected; is a party defendant, and
has appeared to contest the petition and defend her interests. The Local Civil Registrar is
also a party defendant. The publication required by the Court below pursuant to Rule 108 of
the Rules of Court is not absolutely necessary for no other parties are involved. After all,
publication is required to bar indifferently all who might be minded to make an objection of
any sort against the right sought to be established. 2 Besides, even assuming that this is a
proceeding under Rule 108, it was the Court that was caned upon to order the
publication, 3 but it did not. in the ultimate analysis, Courts are not concerned so much with
the form of actions as with their substance. 4

Second, for the merits. Considering that Amado, upon his own plea, was convicted for
Bigamy, that sentence furnishes the necessary proof of the marital status of petitioner and the
deceased. There is no better proof of marriage than the admission by the accused of the
existence of such marriage. 5 The 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. 6 No judicial decree is necessary to establish the invalidity of a void
marriage. 7 It can be safely concluded, then, without need of further proof nor remand to the
Court below, that private respondent is not the surviving spouse of the deceased Amado, but
petitioner. Rectification of the erroneous entry in the records of the Local Civil Registrar may,
therefore, be validly made.
Having arrived at the foregoing conclusion, the other issues raised need no longer be
discussed.
In fine, since there is no question regarding the invalidity of Amado's second marriage with
private respondent and that the entry made in the corresponding local register is thereby
rendered false, it may be corrected. 8 While document such as death and birth certificates,
are public and entries therein are presumed to be correct, such presumption is merely
disputable and will have to yield to more positive evidence establishing their inaccuracy. 9
WHEREFORE, the Order, dated October 21, 1975, of respondent Court is hereby set aside
and petitioner, Serafia G. Tolentino, hereby declared the surviving spouse of the deceased
Amado Tolentino. Let the corresponding correction be made in the latter's death certificate in
the records of the Local Civil Registrar of Paombong, Bulacan.
No costs.
SOORDERED.

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

We find the petition devoid of merit.

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.

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).

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

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.

latter constitutes a prejudicial question. The respondent judge ruled in the negative. We
sustain him.
The pertinent facts as set forth in the records follow. On January 23, 1979, the City Fiscal of
Manila acting thru Assistant City Fiscal Amado N. Cantor filed an information for bigamy
against herein petitioner, Leonilo C. Donato with the Court of First Instance of Manila,
docketed as Criminal Case No. 43554 and assigned to Branch XXXII of said court. The
information was filed based on the complaint of private respondent Paz B. Abayan.
On September 28, 1979, before the petitioner's arraignment, private respondent filed with the
Juvenile and Domestic Relations Court of Manila a civil action for declaration of nullity of her
marriage with petitioner contracted on September 26, 1978, which action was docketed as
Civil Case No. E-02627. Said civil case was based on the ground that private respondent
consented to entering into the marriage, which was petitioner Donato's second one, since she
had no previous knowledge that petitioner was already married to a certain Rosalinda R.
Maluping on June 30, 1978. Petitioner Donato's answer in the civil case for nullity interposed
the defense that his second marriage was void since it was solemnized without a marriage
license and that force, violence, intimidation and undue influence were employed by private
respondent to obtain petitioner's consent to the marriage. Prior to the solemnization of the
subsequent or second marriage, petitioner and private respondent had lived together and
deported themselves as husband and wife without the benefit of wedlock for a period of at
least five years as evidenced by a joint affidavit executed by them on September 26, 1978,
for which reason, the requisite marriage license was dispensed with pursuant to Article 76 of
the New Civil Code pertaining to marriages of exceptional character.

G.R. No. L-53642 April 15, 1988

LEONILO C. DONATO, petitioners,
vs.
HON. ARTEMON D. LUNA, PRESIDING JUDGE, COURT OF FIRST INSTANCE OF
MANIIA, BRANCH XXXII HON. JOSE FLAMINIANO, CITY FISCAL OF MANILA; PAZ B.
ABAYAN, respondents.
GANCAYCO, J.:
In this petition for certiorari and prohibition with preliminary injunction, the question for the
resolution of the Court is whether or not a criminal case for bigamy pending before the Court
of First Itance of Manila should be suspended in view of a civil case for annulment of
marriage pending before the Juvenile and Domestic Relations Court on the ground that the

Prior to the date set for the trial on the merits of Criminal Case No. 43554, petitioner filed a
motion to suspend the proceedings of said case contending that Civil Case No. E-02627
seeking the annulment of his second marriage filed by private respondent raises a prejudicial
question which must first be determined or decided before the criminal case can proceed.
In an order dated April 7, 1980. Hon. Artemon D. Luna denied the motion to suspend the
proceedings in Criminal Case No. 43554 for bigamy. Respondent judge's basis for denial is
the ruling laid down in the case of Landicho vs. Relova. 1 The order further directed that the
proceedings in the criminal case can proceed as scheduled.
A motion for reconsideration was flied by herein petitioner thru counsel citing as one of his
grounds for suspension of proceedings the ruling laid down by this Court in the case of De la
Cruz vs. Ejercito 2 which was a much later case than that cited by respondent judge in his
order of denial.

The motion for reconsideration of the said order was likewise denied in an order dated April
14, 1980, for lack of merit. Hence, the present petition for certiorari and prohibition with
preliminary injunction.
A prejudicial question has been defined to be one which arises in a case, the resolution of
which question is a logical antecedent of the issue involved in said case, and the cognizance
of which pertains to another tribunal. 3 It is 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. 4 A prejudicial question usually
comes into play in a situation where a civil action and a criminal action may proceed, because
howsoever the issue raised in the civil action is resolved would be determinative juris et de
jure of the guilt or innocence of the accused in a criminal case. 5
The requisites of a prejudicial question do not obtain in the case at bar. It must be noted that
the issue before the Juvenile and Domestic Relations Court touching upon the nullity of the
second marriage is not determinative of petitioner Donato's guilt or innocence in the crime of
bigamy. Furthermore, it was petitioner's second wife, the herein private respondent Paz B.
Abayan who filed the complaint for annulment of the second marriage on the ground that her
consent was obtained through deceit.
Petitioner Donato raised the argument that the second marriage should have been declared
null and void on the ground of force, threats and intimidation allegedly employed against him
by private respondent only sometime later when he was required to answer the civil action for
anulment of the second marriage. The doctrine elucidated upon by the case of Landicho vs.
Relova 6 may be applied to the present case. Said case states that:
The mere fact that there are actions to annul the marriages entered into by
the accused in a bigamy case does not mean that "prejudicial questions" are
automatically raised in civil actions as to warrant the suspension of the case.
In order that the case of annulment of marriage be considered a prejudicial
question to the bigamy case against the accused, it must be shown that the
petitioner's consent to such marriage must be the one that was obtained by
means of duress, force and intimidation to show that his act in the second
marriage must be involuntary and cannot be the basis of his conviction for
the crime of bigamy. The situation in the present case is markedly different.
At the time the petitioner was indicted for bigamy on February 27, 1963, the
fact that two marriage ceremonies had been contracted appeared to be

indisputable. And it was the second spouse, not the petitioner who filed the
action for nullity on the ground of force, threats and intimidation. And it was
only on June 15, 1963, that petitioner, as defendant in the civil action, filed a
third-party complaint against the first spouse alleging that his marriage with
her should be declared null and void on the ground of force, threats and
intimidation. Assuming that the first marriage was null and void on the ground
alleged by petitioner, the fact would not be material to the outcome of the
case. Parties to the marriage should not be permitted to judge for themselves
its nullity, for the same must be submitted to the judgment of the competent
courts and 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. Therefore, he who contracts a second marriage before
the judicial declaration of nullity of the first marriage assumes the risk of
being prosecuted for bigamy. The lower court therefore, has not abused
much less gravely abused, its discretion in failing to suspend the hearing as
sought by petitioner.
In the case at bar, petitioner has not even sufficiently shown that his consent to the second
marriage has been obtained by the use of threats, force and intimidation.
Petitioner calls the attention of this Court to the fact that the case of De la Cruz vs. Ejercito is
a later case and as such it should be the one applied to the case at bar. We cannot agree.
The situation in the case at bar is markedly different. In the aforecited case it was accused
Milagros dela Cruz who was charged with bigamy for having contracted a second marriage
while a previous one existed. Likewise, Milagros dela Cruz was also the one who filed an
action for annulment on the ground of duress, as contra-distinguished from the present case
wherein it was private respondent Paz B. Abayan, petitioner's second wife, who filed a
complaint for annulment of the second marriage on the ground that her consent was obtained
through deceit since she was not aware that petitioner's marriage was still subsisting.
Moreover, in De la Cruz, a judgment was already rendered in the civil case that the second
marriage of De la Cruz was null and void, thus determinative of the guilt or innocence of the
accused in the criminal case. In the present case, there is as yet no such judgment in the civil
case.
Pursuant to the doctrine discussed in Landicho vs. Relova, petitioner Donato cannot apply
the rule on prejudicial questions since a case for annulment of marriage can be considered as
a prejudicial question to the bigamy case against the accused only if it is proved that the
petitioner's consent to such marriage was obtained by means of duress, violence and
intimidation in order to establish that his act in the subsequent marriage was an involuntary

one and as such the same cannot be the basis for conviction. The preceding elements do not
exist in the case at bar.
Obviously, petitioner merely raised the issue of prejudicial question to evade the prosecution
of the criminal case. The records reveal that prior to petitioner's second marriage on
September 26, 1978, he had been living with private respondent Paz B. Abayan as husband
and wife for more than five years without the benefit of marriage. Thus, petitioner's averments
that his consent was obtained by private respondent through force, violence, intimidation and
undue influence in entering a subsequent marriage is belled by the fact that both petitioner
and private respondent executed an affidavit which stated that they had lived together as
husband and wife without benefit of marriage for five years, one month and one day until their
marital union was formally ratified by the second marriage and that it was private respondent
who eventually filed the civil action for nullity.
Another event which militates against petitioner's contentions is the fact hat it was only when
Civil Case No. E-02627 was filed on September 28, 1979, or more than the lapse of one year
from the solemnization of the second marriage that petitioner came up with the story that his
consent to the marriage was secured through the use of force, violence, intimidation and
undue influence. Petitioner also continued to live with private respondent until November
1978, when the latter left their abode upon learning that Leonilo Donato was already
previously married.
In the light of the preceding factual circumstances, it can be seen that the respondent Judge
did not err in his earlier order. There is no pivotal issue that must be pre-emptively resolved in
Civil Case No. E-02627 before proceedings in the criminal action for bigamy can be
undertaken.
Accordingly, there being no prejudicial question shown to exit the order of denial issued by
the respondent judge dated April 14, 1980 should be sustained.
WHEREFORE, in view of the foregoing, the instant petition is hereby DISMISSED for lack of
merit. We make no pronouncement as to costs.
SO ORDERED.

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 instant
case. 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 and
ex-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. 2122); 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 MelencioHerrera:

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.
G.R. No. 109454 June 14, 1994
JOSE C. SERMONIA, petitioner,
vs.
HON. COURT OF APPEALS, Eleventh Division, HON. DEOGRACIAS FELIZARDO,
Presiding Judge, Regional Trial Court of Pasig, Br. 151, and JOSEPH
SINSAY, respondents.
BELLOSILLO, J.:

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

Bigamy is an illegal marriage committed by contracting a second or subsequent marriage

before the first 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. 1 Bigamy carries with it the imposable penalty of prision mayor. Being
punishable by an afflictive penalty, this crime prescribes in fifteen (15) years. 2 The fifteenyear prescriptive period commences to run from the day on which the crime is discovered by
the offended party, the authorities, or their agents . . . 3
That petitioner contracted a bigamous marriage seems impliedly admitted. 4 At least, it is not
expressly denied. Thus the only issue for resolution is whether his prosecution for bigamy is
already time-barred, which hinges on whether its discovery is deemed to have taken place
from the time the offended party actually knew of the second marriage or from the time the
document evidencing the subsequent marriage was registered with the Civil Registry
consistent with the rule on constructive notice.
The antecedents: In an information filed on 26 May 1992, petitioner Jose C. Sermonia was
charged with bigamy before the Regional Trial Court of Pasig, Br. 151, for contracting
marriage with Ma. Lourdes Unson on 15 February 1975 while his prior marriage to Virginia C.
Nievera remained valid and subsisting. 5
Petitioner moved to quash the information on the ground that his criminal liability for bigamy
has been extinguished by prescription.
In the order of 1 October 1992, respondent judge denied the motion to quash. On 27 October
1992, he likewise denied the motion to reconsider his order of denial.
Petitioner challenged the above orders before the Court of Appeals through a petition
for certiorari and prohibition. In the assailed decision of
21 January 1993, his petition was dismissed for lack of merit. 6
In this recourse, petitioner contends that his criminal liability for bigamy has been obliterated
by prescription. He avers that since the second marriage contract was duly registered with
the Office of the Civil Registrar in 1975, 7such fact of registration makes it a matter of public
record and thus constitutes notice to the whole world. The offended party therefore is
considered to have had constructive notice of the subsequent marriage as of 1975; hence,
prescription commenced to run on the day the marriage contract was registered. For this
reason, the corresponding information for bigamy should have been filed on or before 1990
and not only in 1992.
Petitioner likewise takes issue with the "alleged concealment of the bigamous marriage" as
declared by the appellate court, insisting that the second marriage was publicly held at Our
Lady of Nativity Church in Marikina on

15 February 1975, and adding for good measure that from the moment of registration the
marriage contract was open to inspection by any interested person.
On the other hand, the prosecution maintains that the prescriptive period does not begin from
the commission of the crime but from the time of discovery by complainant which was in July
1991.
While we concede the point that the rule on constructive notice in civil cases may be applied
in criminal actions if the factual and legal circumstances so warrant, 8 we agree with the view
expounded by the Court of Appeals that it cannot apply in the crime of bigamy
notwithstanding the possibility of its being more favorable to the accused. The appellate court
succinctly explains
Argued by the petitioner is that the principle of constructive notice should be
applied in the case at bar, principally citing in support of his stand, the cases
of People v. Reyes (175 SCRA 597); andPeople v. Dinsay (40 SCRA 50).
This Court is of the view that the principle of constructive notice should not
be applied in regard to the crime of bigamy as judicial notice may be taken of
the fact that a bigamous marriage is generally entered into by the offender in
secrecy from the spouse of the previous subsisting marriage. Also, a
bigamous marriage is generally entered into in a place where the offender is
not known to be still a married person, in order to conceal his legal
impediment to contract another marriage.
In the case of real property, the registration of any transaction involving any
right or interest therein is made in the Register of Deeds of the place where
the said property is located. Verification in the office of the Register of Deeds
concerned of the transactions involving the said property can easily be made
by any interested party. In the case of a bigamous marriage, verification by
the offended person or the authorities of the same would indeed be quite
difficult as such a marriage may be entered into in a place where the offender
is not known to be still a married person.
Be it noted that in the criminal cases cited by the petitioner wherein
constructive notice was applied, involved therein were land or property
disputes and certainly, marriage is not property.
The non-application to the crime of bigamy of the principle of constructive
notice is not contrary to the well entrenched policy that penal laws should be

construed liberally in favor of the accused. To compute the prescriptive

period for the offense of bigamy from registration thereof would amount to
almost absolving the offenders thereof for liability therefor. While the
celebration of the bigamous marriage may be said to be open and made of
public record by its registration, the offender however is not truthful as he
conceals from the officiating authority and those concerned the existence of
his previous subsisting marriage. He does not reveal to them that he is still a
married person. He likewise conceals from his legitimate spouse his
bigamous marriage. And for these, he contracts the bigamous marriage in a
place where he is not known to be still a married person. And such a place
may be anywhere, under which circumstance, the discovery of the bigamous
marriage is rendered quite difficult and would take time. It is therefore
reasonable that 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 agency (sic).
Considering such concealment of the bigamous marriage by the offender, if
the prescriptive period for the offense of bigamy were to be counted from the
date of registration thereof, the prosecution of the violators of the said
offense would almost be impossible. The interpretation urged by the
petitioner would encourage fearless violations of a social institution cherished
and protected by law. 9
To this we may also add that the rule on constructive notice will make
de rigueur the routinary inspection or verification of the marriages listed in the National
Census Office and in various local civil registries all over the country to make certain that no
second or even third marriage has been contracted without the knowledge of the legitimate
spouse. This is too formidable a task to even contemplate.
More importantly, while Sec. 52 of P.D. 1529 (Property Registration Decree) provides for
constructive notice to all persons of every conveyance, mortgage, lease, lien, attachment,
order, judgment, instrument or entry affecting registered land filed or entered in the office of
the Register of Deeds for the province or city where the land to which it relates lies from the
time of such registering, filing or entering, there is no counterpart provision either in Act
No. 3753 (Act to Establish a Civil Register) or in Arts. 407 to 413 of the Civil Code, which
leads us to the conclusion that there is no legal basis for applying the constructive notice rule
to the documents registered in the Civil Register.
Finally, petitioner would want us to believe that there was no concealment at all because his
marriage contract with Ms. Unson was recorded in the Civil Registry which is open to all and

sundry for inspection. We cannot go along with his argument because why did he indicate in
the marriage contract that he was "single" thus obviously hiding his true status as a married
man? Or for that matter, why did he not simply tell his first wife about the subsequent
marriage in Marikina so that everything would be out in the open. The answer is obvious: He
knew that no priest or minister would knowingly perform or authorize a bigamous marriage as
this would subject him to punishment under the Marriage Law. 10 Obviously, petitioner had no
intention of revealing his duplicity to his first spouse and gambled instead on the probability
that she or any third party would ever go to the local civil registrar to inquire. In the meantime,
through the simple expedience of having the second marriage recorded in the local civil
registry, he has set into motion the running of the fifteen-year prescriptive period against the
unwary and the unsuspecting victim of his philandering.
Were we to put our imprimatur to the theory advanced by petitioner, in all likelihood we would
be playing right into the hands of philanderers. For we would be equating the contract of
marriage with ordinary deeds of conveyance and other similar documents without due regard
for the stability of marriage as an inviolable social institution, the preservation of which is a
primary concern of our society.
WHEREFORE, finding no reversible error in the questioned decision of the Court of Appeals,
the same is AFFIRMED.
SO ORDERED.

G.R. No. 145226

February 06, 2004

LUCIO MORIGO y CACHO, petitioner,

vs.
PEOPLE OF THE PHILIPPINES, respondent.
DECISION

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 judgment 2 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 ofprision 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.

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.

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

On August 5, 1996, the RTC of Bohol handed down its judgment in Criminal Case No. 8688,
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 19741978).
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

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 ofPrision 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

C.

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 349 12 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 15 13 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 CAG.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.

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.

against respondent, which was docketed as Criminal Case No. 41972. Attached to the
complaint was an Affidavit8 (Malayang Sinumpaang Salaysay) dated August 23, 2004, thumbmarked and signed by Silverio,9 which alleged, among others, that respondent failed to reveal
to Silverio that she was still married to Socrates. On November 17, 2004, an Information 10 for
Bigamy was filed against respondent with the RTC of San Pedro, Laguna, Branch 31. The
case was docketed as Criminal Case No. 4990-SPL. The Information reads:

G.R. No. 181089

October 22, 2012

MERLINDA CIPRIANO MONTAES, Complainant,

vs.
LOURDES TAJOLOSA CIPRIANO, Respondent.

DECISION
PERALTA, J.:
For our resolution is a petition for review on certiorari which seeks to annul the Order 1 dated
September 24, 2007 of the Regional Trial Court (RTC) of San Pedro, Laguna, Branch 31,
issued in Criminal Case No. 4990-SPL which dismissed the lnformation for Bigamy filed
against respondent Lourdes Tajolosa Cipriano. Also assailed is the RTC Resolution 2 dated
January 2, 2008 denying the motion for reconsideration.
On April 8, 1976, respondent married Socrates Flores (Socrates) in Lezo, Aklan. 3 On January
24, 1983, during the subsistence of the said marriage, respondent married Silverio V.
Cipriano (Silverio) in San Pedro, Laguna.4 In 2001, respondent filed with the RTC of
Muntinlupa, Branch
256, a Petition for the Annulment of her marriage with Socrates on the ground of the latters
psychological incapacity as defined under Article 36 of the Family Code, which was docketed
as Civil Case No. 01-204. On July 18, 2003, the RTC of Muntinlupa, Branch 256, rendered an
Amended Decision5 declaring the marriage of respondent with Socrates null and void. Said
decision became final and executory on October 13, 2003. 6
On May 14, 2004, petitioner Merlinda Cipriano Montaez, Silverios daughter from the first
marriage, filed with the Municipal Trial Court of San Pedro, Laguna, a Complaint 7 for Bigamy

That on or about January 24, 1983, in the Municipality of San Pedro, Province of Laguna,
Philippines, and within the jurisdiction of this Honorable Court, the said accused did then and
there willfully, unlawfully and feloniously contract a second or subsequent marriage with one
SILVERIO CIPRIANO VINALON while her first marriage with SOCRATES FLORES has not
been judicially dissolved by proper judicial authorities. 11
On July 24, 2007 and before her arraignment, respondent, through counsel, filed a Motion to
Quash Information (and Dismissal of the Criminal Complaint)12 alleging that her marriage with
Socrates had already been declared void ab initio in 2003, thus, there was no more marriage
to speak of prior to her marriage to Silverio on January 24, 1983; that the basic element of the
crime of bigamy, i.e., two valid marriages, is therefore wanting. She also claimed that since
the second marriage was held in 1983, the crime of bigamy had already prescribed. The
prosecution filed its Comment13 arguing that the crime of bigamy had already been
consummated when respondent filed her petition for declaration of nullity; that the law
punishes the act of contracting a second marriage which appears to be valid, while the first
marriage is still subsisting and has not yet been annulled or declared void by the court.
In its Order14 dated August 3, 2007, the RTC denied the motion. It found respondent's
argument that with the declaration of nullity of her first marriage, there was no more first
marriage to speak of and thus the element of two valid marriages in bigamy was absent, to
have been laid to rest by our ruling in Mercado v. Tan 15 where we held:
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. For contracting a second marriage while the first is 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. x x x 16
As to respondent's claim that the action had already prescribed, the RTC found that while the
second marriage indeed took place in 1983, or more than the 15-year prescriptive period for

the crime of bigamy, the commission of the crime was only discovered on November 17,
2004, which should be the reckoning period, hence, prescription has not yet set in.
Respondent filed a Motion for Reconsideration17 claiming that the Mercado ruling was not
applicable, since respondent contracted her first marriage in 1976, i.e., before the Family
Code; that the petition for annulment was granted and became final before the criminal
complaint for bigamy was filed; and, that Article 40 of the Family Code cannot be given any
retroactive effect because this will impair her right to remarry without need of securing a
declaration of nullity of a completely void prior marriage.
On September 24, 2007, the RTC issued its assailed Order,18 the dispositive portion of which
reads:
Wherefore, the Order of August 3, 2007 is reconsidered and set aside. Let a new one be
entered quashing the information. Accordingly, let the instant case be DISMISSED.
SO ORDERED.
In so ruling, the RTC said that at the time the accused had contracted a second marriage on
January 24, 1983, i.e., before the effectivity of the Family Code, the existing law did not
require a judicial declaration of absolute nullity as a condition precedent to contracting a
subsequent marriage; that jurisprudence before the Family Code was ambivalent on the issue
of the need of prior judicial declaration of absolute nullity of the first marriage. The RTC found
that both marriages of respondent took place before the effectivity of the Family Code, thus,
considering the unsettled state of jurisprudence on the need for a prior declaration of absolute
nullity of marriage before commencing a second marriage and the principle that laws should
be interpreted liberally in favor of the accused, it declared that the absence of a judicial
declaration of nullity should not prejudice the accused whose second marriage was declared
once and for all valid with the annulment of her first marriage by the RTC of Muntinlupa City
in 2003.
Dissatisfied, a Motion for Reconsideration was filed by the prosecution, but opposed by
respondent. In a Resolution dated January 2, 2008, the RTC denied the same ruling, among
others, that the judicial declaration of nullity of respondent's marriage is tantamount to a mere
declaration or confirmation that said marriage never existed at all, and for this reason, her act
in contracting a second marriage cannot be considered criminal.
Aggrieved, petitioner directly filed the present petition with us raising the following issues:

I. Whether the judicial nullity of a first marriage prior to the enactment of the Family Code and
the pronouncement in Wiegel vs. Sempio-Diy on the ground of psychological incapacity is a
valid defense for a charge of bigamy for entering into a second marriage prior to the
enactment of the Family Code and the pronouncement in Wiegel vs. Sempio-Diy?
II. Whether the trial court erred in stating that the jurisprudence prior to the enactment of the
Family Code and the pronouncement in Wiegel vs. Sempio-Diy regarding the necessity of
securing a declaration of nullity of the first marriage before entering a second marriage
ambivalent, such that a person was allowed to enter a subsequent marriage without the
annulment of the first without incurring criminal liability.19
Preliminarily, we note that the instant petition assailing the RTC's dismissal of the Information
for bigamy was filed by private complainant and not by the Office of the Solicitor General
(OSG) which should represent the government in all judicial proceedings filed before us. 20
Notwithstanding, we will give due course to this petition as we had done in the past. In Antone
v. Beronilla,21 the offended party (private complainant) questioned before the Court of Appeals
(CA) the RTC's dismissal of the Information for bigamy filed against her husband, and the CA
dismissed the petition on the ground, among others, that the petition should have been filed
in behalf of the People of the Philippines by the OSG, being its statutory counsel in all
appealed criminal cases. In a petition filed with us, we said that we had given due course to a
number of actions even when the respective interests of the government were not properly
represented by the OSG and said:
In Labaro v. Panay, this Court dealt with a similar defect in the following manner:
It must, however, be stressed that if the public prosecution is aggrieved by any order ruling of
the trial judge in a criminal case, the OSG, and not the prosecutor, must be the one to
question the order or ruling before us. x x x
Nevertheless, since the challenged order affects the interest of the State or the plaintiff
People of the Philippines, we opted not to dismiss the petition on this technical ground.
Instead, we required the OSG to comment on the petition, as we had done before in some
cases. In light of its Comment, we rule that the OSG has ratified and adopted as its own the
instant petition for the People of the Philippines. (Emphasis supplied) 22
Considering that we also required the OSG to file a Comment on the petition, which it did,
praying that the petition be granted in effect, such Comment had ratified the petition filed with
us.

As to the merit of the petition, the issue for resolution is whether or not the RTC erred in
quashing the Information for bigamy filed against respondent.
Article 349 of the Revised Penal Code defines and penalizes bigamy as follow:
Art. 349. Bigamy. 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 the crime of bigamy are: (a) the offender has been legally married; (b) 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; (c) that he contracts a
second or subsequent marriage; and (d) the second or subsequent marriage has all the
essential requisites for validity. The felony is consummated on the celebration of the second
marriage or subsequent marriage.23 It is essential in the prosecution for bigamy that the
alleged second marriage, having all the essential requirements, would be valid were it not for
the subsistence of the first marriage.24
In this case, it appears that when respondent contracted a second marriage with Silverio in
1983, her first marriage with Socrates celebrated in 1976 was still subsisting as the same had
not yet been annulled or declared void by a competent authority. Thus, all the elements of
bigamy were alleged in the Information. In her Motion to Quash the Information, she alleged,
among others, that:
xxxx
2. The records of this case would bear out that accused's marriage with said
Socrates Flores was declared void ab initio on 14 April 2003 by Branch 256 of the
Regional Trial Court of Muntinlupa City. The said decision was never appealed, and
became final and executory shortly thereafter.
3. In other words, before the filing of the Information in this case, her marriage with
Mr. Flores had already been declared void from the beginning.
4. There was therefore no marriage prior to 24 January 1983 to speak of. In other
words, there was only one marriage.
5. The basic element of the crime of bigamy, that is, two valid marriages, is therefore
wanting.25

Clearly, the annulment of respondent's first marriage on the ground of psychological

incapacity was declared only in 2003. The question now is whether the declaration of nullity
of respondent's first marriage justifies the dismissal of the Information for bigamy filed against
her.
We rule in the negative.
In Mercado v. Tan,26 we ruled that the subsequent judicial declaration of the nullity of the first
marriage was immaterial, because prior to the declaration of nullity, the crime of bigamy had
already been consummated. And by contracting a second marriage while the first was still
subsisting, the accused committed the acts punishable under Article 349 of the Revised
Penal Code.
In Abunado v. People,27 we held that what is required for the charge of bigamy to prosper is
that the first marriage be subsisting at the time the second marriage is contracted. 28 Even if
the accused 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.29
In Tenebro v. CA,30 we declared that although the judicial declaration of the nullity of a
marriage on the ground of psychological incapacity retroacts to the date of the celebration of
the marriage insofar as the vinculum between the spouses is concerned, it is significant to
note that said marriage is not without legal effects. Among these effects is that children
conceived or born before the judgment of absolute nullity of the marriage shall be considered
legitimate. There is, therefore, a recognition written into the law itself that such a marriage,
although void ab initio, may still produce legal consequences. Among these legal
consequences is incurring criminal liability for bigamy. To hold otherwise would render the
States penal laws on bigamy completely nugatory, and allow individuals to deliberately
ensure that each marital contract be flawed in some manner, and to thus escape the
consequences of contracting multiple marriages, while beguiling throngs of hapless women
with the promise of futurity and commitment.31
And in Jarillo v. People,32 applying the foregoing jurisprudence, we affirmed the accused's
conviction for bigamy, ruling that the moment the accused 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, the
accuseds first marriage which had not yet been declared null and void by a court of
competent jurisdiction was deemed valid and subsisting.

Here, at the time respondent contracted the second marriage, the first marriage was still
subsisting as it had not yet been legally dissolved. As ruled in the above-mentioned
jurisprudence, the subsequent judicial declaration of nullity of the first marriage would not
change the fact that she contracted the second marriage during the subsistence of the first
marriage. Thus, respondent was properly charged of the crime of bigamy, since the essential
elements of the offense charged were sufficiently alleged.

is not violative of any right of a person who may feel that he is adversely affected. The reason
is that as a general rule, no vested right may attach to, nor arise from, procedural
laws.1wphi1

Respondent claims that Tenebro v. CA33 is not applicable, since the declaration of nullity of
the previous marriage came after the filing of the Information, unlike in this case where the
declaration was rendered before the information was filed. We do not agree. What makes a
person criminally liable for bigamy is when he contracts a second or subsequent marriage
during the subsistence of a valid marriage.

In the case at bar, respondents clear intent is to obtain a judicial declaration 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 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 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 provision on bigamy.38

Parties to the marriage should not be permitted to judge for themselves its nullity, for the
same must be submitted to the judgment of competent courts and 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.34 Therefore, he who contracts a second marriage
before the judicial declaration of nullity of the first marriage assumes the risk of being
prosecuted for bigamy.35
Anent respondent's contention in her Comment that since her two marriages were contracted
prior to the effectivity of the Family Code, Article 40 of the Family Code cannot be given
retroactive effect because this will impair her right to remarry without need of securing a
judicial declaration of nullity of a completely void marriage.
We are not persuaded.
In Jarillo v. People,36 where the accused, in her motion for reconsideration, argued that since
her marriages were entered into before the effectivity of the Family Code, then the applicable
law is Section 29 of the Marriage Law (Act 3613),37 instead of Article 40 of the Family Code,
which requires a final judgment declaring the previous marriage void before a person may
contract a subsequent marriage. We did not find the argument meritorious and said:
As far back as 1995, in Atienza v. Brillantes, Jr., the Court already made the declaration that
Article 40, which is a rule of procedure, should be applied retroactively because Article 256 of
the Family Code itself provides that said "Code shall have retroactive effect insofar as it does
not prejudice or impair vested or acquired rights." The Court went on to explain, thus:
The fact that procedural statutes may somehow affect the litigants' rights may not preclude
their retroactive application to pending actions. The retroactive application of procedural laws

In Marbella-Bobis v. Bobis, the Court pointed out the danger of not enforcing the provisions of
Article 40 of the Family Code, to wit:

WHEREFORE, considering the foregoing, the petition is GRANTED. The Order dated
September 24, 2007 and the Resolution dated January 2, 2008 of the Regional Trial Court of
San Pedro, Laguna, Branch 31, issued in Criminal Case No. 4990-SPL, are hereby SET
ASIDE. Criminal Case No. 4990-SPL is ordered REMANDED to the trial court for further
proceedings.
SO ORDERED.

G.R. No. 136467

April 6, 2000

ANTONIA ARMAS Y CALISTERIO, petitioner,

vs.
MARIETTA CALISTERIO, respondent.

VITUG, J.:

On 17 January 1996, the lower court handed down its decision in favor of petitioner Antonia; it
adjudged:
WHEREFORE, judgment is hereby rendered finding for the petitioner and against the
oppositor whereby herein petitioner, Antonia Armas y Calisterio, is declared as the
sole heir of the estate of Teodorico Calisterio y Cacabelos. 1
Respondent Marietta appealed the decision of the trial court to the Court of Appeals,
formulating that

On 24 April 1992, Teodorico Calisterio died intestate, leaving several parcels of land with an
estimated value of P604,750.00. Teodorico was survived by his wife, herein respondent
Marietta Calisterio.

1. The trial court erred in applying the provisions of the Family Code in the instant
case despite the fact that the controversy arose when the New Civil Code was the
law in force.

Teodorico was the second husband of Marietta who had previously been married to James
William Bounds on 13 January 1946 at Caloocan City. James Bounds disappeared without a
trace on 11 February 1947. Teodorico and Marietta were married eleven years later, or on 08
May 1958, without Marietta having priorly secured a court declaration that James was
presumptively dead.

2. The trial court erred in holding that the marriage between oppositor-appellant and
the deceased Teodorico Calisterio is bigamous for failure of the former to secure a
decree of the presumptive death of her first spouse.

On 09 October 1992, herein petitioner Antonia Armas y Calisterio, a surviving sister of

Teodorico, filed with the Regional Trial Court ("RTC") of Quezon City, Branch 104, a petition
entitled, "In the Matter of Intestate Estate of the Deceased Teodorico Calisterio y Cacabelos,
Antonia Armas, Petitioner," claiming to be inter alia, the sole surviving heir of Teodorico
Calisterio, the marriage between the latter and respondent Marietta Espinosa Calisterio being
allegedly bigamous and thereby null and void. She prayed that her son Sinfroniano C. Armas,
Jr., be appointed administrator, without bond, of the estate of the deceased and that the
inheritance be adjudicated to her after all the obligations of the estate would have been
settled.
Respondent Marietta opposed the petition. Marietta stated that her first marriage with James
Bounds had been dissolved due to the latter's absence, his whereabouts being unknown, for
more than eleven years before she contracted her second marriage with Teodorico.
Contending to be the surviving spouse of Teodorico, she sought priority in the administration
of the estate of the decedent.
On 05 February 1993, the trial court issued an order appointing jointly Sinfroniano C. Armas,
Jr., and respondent Marietta administrator and administratrix, respectively, of the intestate
estate of Teodorico.

3. The trial court erred in not holding that the property situated at No. 32 Batangas
Street, San Francisco del Monte, Quezon City, is the conjugal property of the
oppositor-appellant and the deceased Teodorico Calisterio.
4. The trial court erred in holding that oppositor-appellant is not a legal heir of
deceased Teodorico Calisterio.
5. The trial court erred in not holding that letters of administration should be granted
solely in favor of oppositor-appellant. 2
On 31 August 1998, the appellate court, through Mr. Justice Conrado M. Vasquez, Jr.,
promulgated its now assailed decision, thus:
IN VIEW OF ALL THE FOREGOING, the Decision appealed from is REVERSED
AND SET ASIDE, and a new one entered declaring as follows:
(a) Marietta Calisterio's marriage to Teodorico remains valid;
(b) The house and lot situated at #32 Batangas Street, San Francisco del
Monte, Quezon City, belong to the conjugal partnership property with the
concomitant obligation of the partnership to pay the value of the land to
Teodorico's estate as of the time of the taking;

(c) Marietta Calisterio, being Teodorico's compulsory heir, is entitled to one

half of her husband's estate, and Teodorico's sister, herein petitioner Antonia
Armas and her children, to the other half;
(d) The trial court is ordered to determine the competence of Marietta E.
Calisterio to act as administrator of Teodorico's estate, and if so found
competent and willing, that she be appointed as such; otherwise, to
determine who among the deceased's next of kin is competent and willing to
become the administrator of the estate. 3
On 23 November 1998, the Court of Appeals denied petitioner's motion for
reconsideration, prompting her to interpose the present appeal. Petitioner
asseverates:
It is respectfully submitted that the decision of the Court of Appeals reversing and
setting aside the decision of the trial court is not in accord with the law or with the
applicable decisions of this Honorable Court. 4
It is evident that the basic issue focuses on the validity of the marriage between the deceased
Teodorico and respondent Marietta, that, in turn, would be determinative of her right as a
surviving spouse.
The marriage between the deceased Teodorico and respondent Marietta was solemnized on
08 May 1958. The law in force at that time was the Civil Code, not the Family Code which
took effect only on 03 August 1988. Article 256 of the Family Code 5 itself limited its
retroactive governance only to cases where it thereby would not prejudice or impair vested or
acquired rights in accordance with the Civil Code or other laws.
Verily, the applicable specific provision in the instant controversy is Article 83 of the New Civil
Code which provides:
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 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.
Under the foregoing provisions, a subsequent marriage contracted during the lifetime of the
first spouse is illegal and void ab initio unless the prior marriage is first annulled or dissolved.
Paragraph (2) of the law gives exceptions from the above rule. For the subsequent marriage
referred to in the three exceptional cases therein provided, to be held valid, the spouse
present (not the absentee spouse) so contracting the later marriage must have done so in
good faith. 6 Bad faith imports a dishonest purpose or some moral obliquity and conscious
doing of wrong it partakes of the nature of fraud, a breach of a known duty through some
motive of interest or ill will. 7 The Court does not find these circumstances to be here extant.
A judicial declaration of absence of the absentee spouse is not necessary8 as long as the
prescribed period of absence is met. It is equally noteworthy that the marriage in these
exceptional cases are, by the explicit mandate of Article 83, to be deemed valid "until
declared null and void by a competent court." It follows that the burden of proof would be, in
these cases, on the party assailing the second marriage.
In contrast, under the 1988 Family Code, in order that a subsequent bigamous marriage may
exceptionally be considered valid, the following conditions must concur; viz.: (a) The prior
spouse of the contracting party must have been absent for four consecutive years, or two
years where there is danger of death under the circumstances stated in Article 391 of the Civil
Code at the time of disappearance; (b) the spouse present has a well-founded belief that the
absent spouse is already dead; and (c) there is, unlike the old rule, a judicial declaration of
presumptive death of the absentee for which purpose the spouse present can institute a
summary proceeding in court to ask for that declaration. The last condition is consistent and
in consonance with the requirement of judicial intervention in subsequent marriages as so
provided in Article 41 9 , in relation to Article 40, 10 of the Family Code.
In the case at bar, it remained undisputed that respondent Marietta's first husband, James
William Bounds, had been absent or had disappeared for more than eleven years before she
entered into a second marriage in 1958 with the deceased Teodorico Calisterio. This second
marriage, having been contracted during the regime of the Civil Code, should thus be
deemed valid notwithstanding the absence of a judicial declaration of presumptive death of
James Bounds.
The conjugal property of Teodorico and Marietta, no evidence having been adduced to
indicate another property regime between the spouses, pertains to them in common. Upon its

dissolution with the death of Teodorico, the property should rightly be divided in two equal
portions one portion going to the surviving spouse and the other portion to the estate of the
deceased spouse. The successional right in intestacy of a surviving spouse over the net
estate 11 of the deceased, concurring with legitimate brothers and sisters or nephews and
nieces (the latter by right of representation), is one-half of the inheritance, the brothers and
sisters or nephews and nieces, being entitled to the other half. Nephews and nieces,
however, can only succeed by right of representation in the presence of uncles and aunts;
alone, upon the other hand, nephews and nieces can succeed in their own right which is to
say that brothers or sisters exclude nephews and nieces except only in representation by the
latter of their parents who predecease or are incapacitated to succeed. The appellate court
has thus erred in granting, in paragraph (c) of the dispositive portion of its judgment,
successional rights, to petitioner's children, along with their own mother Antonia who herself
is invoking successional rights over the estate of her deceased brother.1wphi1
WHEREFORE, the assailed judgment of the Court of Appeals in CA G.R. CV No. 51574 is
AFFIRMED except insofar only as it decreed in paragraph (c) of the dispositive portion
thereof that the children of petitioner are likewise entitled, along with her, to the other half of
the inheritance, in lieu of which, it is hereby DECLARED that said one-half share of the
decedent's estate pertains solely to petitioner to the exclusion of her own children. No costs.
SO ORDERED.1wphi1.nt
G.R. No. 94053 March 17, 1993
REPUBLIC OF THE PHILIPPINES, petitioner,
vs.
GREGORIO NOLASCO, respondent.
The Solicitor General for plaintiff-appellee.

Monica Parker, invoking Article 41 of the Family Code. The petition prayed that respondent's
wife be declared presumptively dead or, in the alternative, that the marriage be declared null
and void. 1
The Republic of the Philippines opposed the petition through the Provincial Prosecutor of
Antique who had been deputized to assist the Solicitor-General in the instant case. The
Republic argued, first, that Nolasco did not possess a "well-founded belief that the absent
spouse was already dead," 2 and second, Nolasco's attempt to have his marriage annulled in
the same proceeding was a "cunning attempt" to circumvent the law on marriage. 3
During trial, respondent Nolasco testified that he was a seaman and that he had first met
Janet Monica Parker, a British subject, in a bar in England during one of his ship's port calls.
From that chance meeting onwards, Janet Monica Parker lived with respondent Nolasco on
his ship for six (6) months until they returned to respondent's hometown of San Jose, Antique
on 19 November 1980 after his seaman's contract expired. On 15 January 1982, respondent
married Janet Monica Parker in San Jose, Antique, in Catholic rites officiated by Fr. Henry
van Tilborg in the Cathedral of San Jose.
Respondent Nolasco further testified that after the marriage celebration, he obtained another
employment contract as a seaman and left his wife with his parents in San Jose, Antique.
Sometime in January 1983, while working overseas, respondent received a letter from his
mother informing him that Janet Monica had given birth to his son. The same letter informed
him that Janet Monica had left Antique. Respondent claimed he then immediately asked
permission to leave his ship to return home. He arrived in Antique in November 1983.
Respondent further testified that his efforts to look for her himself whenever his ship docked
in England proved fruitless. He also stated that all the letters he had sent to his missing
spouse at No. 38 Ravena Road, Allerton, Liverpool, England, the address of the bar where he
and Janet Monica first met, were all returned to him. He also claimed that he inquired from
among friends but they too had no news of Janet Monica.

Warloo G. Cardenal for respondent.

RESOLUTION

FELICIANO, J.:
On 5 August 1988, respondent Gregorio Nolasco filed before the Regional Trial Court of
Antique, Branch 10, a petition for the declaration of presumptive death of his wife Janet

On cross-examination, respondent stated that he had lived with and later married Janet
Monica Parker despite his lack of knowledge as to her family background. He insisted that his
wife continued to refuse to give him such information even after they were married. He also
testified that he did not report the matter of Janet Monica's disappearance to the Philippine
government authorities.
Respondent Nolasco presented his mother, Alicia Nolasco, as his witness. She testified that
her daughter-in-law Janet Monica had expressed a desire to return to England even before
she had given birth to Gerry Nolasco on 7 December 1982. When asked why her daughter-in-

law might have wished to leave Antique, respondent's mother replied that Janet Monica never
got used to the rural way of life in San Jose, Antique. Alicia Nolasco also said that she had
tried to dissuade Janet Monica from leaving as she had given birth to her son just fifteen days
before, but when she (Alicia) failed to do so, she gave Janet Monica P22,000.00 for her
expenses before she left on 22 December 1982 for England. She further claimed that she
had no information as to the missing person's present whereabouts.
The trial court granted Nolasco's petition in a Judgment dated 12 October 1988 the
dispositive portion of which reads:
Wherefore, under Article 41, paragraph 2 of the Family Code of the
Philippines (Executive Order No. 209, July 6, 1987, as amended by
Executive Order No. 227, July 17, 1987) this Court hereby declares as
presumptively dead Janet Monica Parker Nolasco, without prejudice to her
reappearance. 4
The Republic appealed to the Court of Appeals contending that the trial court erred in
declaring Janet Monica Parker presumptively dead because respondent Nolasco had failed to
show that there existed a well founded belief for such declaration.
The Court of Appeals affirmed the trial court's decision, holding that respondent had
sufficiently established a basis to form a belief that his absent spouse had already died.
The Republic, through the Solicitor-General, is now before this Court on a Petition for Review
where the following allegations are made:
1. The Court of Appeals erred in affirming the trial court's finding that there
existed a well-founded belief on the part of Nolasco that Janet Monica Parker
was already dead; and
2. The Court of Appeals erred in affirming the trial Court's declaration that the
petition was a proper case of the declaration of presumptive death under
Article 41, Family Code. 5

Art. 41. A marriage contracted by any person during the subsistence of a

previous marriage shall be null and void, unless before the celebration of the
subsequent marriage, the prior spouse had been absent for four consecutive
years and the spouse present had a well-founded belief that the absent
spouse was already dead. In case of disappearance where there is danger of
death under the circumstances set forth in the provision of Article 391 of the
Civil Code, an absence of only two years shall be sufficient.
For the purpose of contracting the subsequent marriage under the preceding
paragraph, the spouse present must institute a summary proceeding as
provided in this Code for the declaration of presumptive death of the
absentee, without prejudice to the effect of reappearance of the absent
spouse. (Emphasis supplied).
When Article 41 is compared with the old provision of the Civil Code, which it
superseded, 7 the following crucial differences emerge. Under Article 41, the time required for
the presumption to arise has been shortened to four (4) years; however, there is need for a
judicial declaration of presumptive death to enable the spouse present to remarry. 8 Also,
Article 41 of the Family Code imposes a stricter standard than the Civil Code: Article 83 of the
Civil Code merely requires either that there be no news that such absentee is still alive; or the
absentee is generally considered to be dead andbelieved to be so by the spouse present, or
is presumed dead under Article 390 and 391 of the Civil Code. 9 The Family Code, upon the
other hand, prescribes as "well founded belief" that the absentee is already dead before a
petition for declaration of presumptive death can be granted.
As pointed out by the Solicitor-General, there are four (4) requisites for the declaration of
presumptive death under Article 41 of the Family Code:
1. That the absent spouse has been missing for four consecutive years, or
two consecutive years if the disappearance occurred where there is danger
of death under the circumstances laid down in Article 391, Civil Code;
2. That the present spouse wishes to remarry;

The issue before this Court, as formulated by petitioner is "[w]hether or not Nolasco has a
well-founded belief that his wife is already dead." 6

3. That the present spouse has a well-founded belief that the absentee is
dead; and

The present case was filed before the trial court pursuant to Article 41 of the Family Code
which provides that:

4. That the present spouse files a summary proceeding for the declaration of
presumptive death of the absentee. 10

Respondent naturally asserts that he had complied with all these requirements. 11
Petitioner's argument, upon the other hand, boils down to this: that respondent failed to prove
that he had complied with the third requirement, i.e., the existence of a "well-founded belief"
that the absent spouse is already dead.
The Court believes that respondent Nolasco failed to conduct a search for his missing wife
with such diligence as to give rise to a "well-founded belief" that she is dead.
United States v. Biasbas, 12 is instructive as to degree of diligence required in searching for a
missing spouse. In that case, defendant Macario Biasbas was charged with the crime of
bigamy. He set-up the defense of a good faith belief that his first wife had already died. The
Court held that defendant had not exercised due diligence to ascertain the whereabouts of his
first wife, noting that:
While the defendant testified that he had made inquiries concerning the
whereabouts of his wife, he fails to state of whom he made such inquiries. He
did not even write to the parents of his first wife, who lived in the Province of
Pampanga, for the purpose of securing information concerning her
whereabouts. He admits that he had a suspicion only that his first wife was
dead. He admits that the only basis of his suspicion was the fact that she had
been absent. . . . 13
In the case at bar, the Court considers that the investigation allegedly conducted by
respondent in his attempt to ascertain Janet Monica Parker's whereabouts is too sketchy to
form the basis of a reasonable or well-founded belief that she was already dead. When he
arrived in San Jose, Antique after learning of Janet Monica's departure, instead of seeking
the help of local authorities or of the British Embassy, 14 he secured another seaman's
contract and went to London, a vast city of many millions of inhabitants, to look for her there.
Q After arriving here in San Jose, Antique, did you exert
efforts to inquire the whereabouts of your wife?
A Yes, Sir.
Court:
How did you do that?

A I secured another contract with the ship and we had a trip

to London and I went to London to look for her I could not
find her (sic). 15 (Emphasis supplied)
Respondent's testimony, however, showed that he confused London for Liverpool and this
casts doubt on his supposed efforts to locate his wife in England. The Court of Appeal's
justification of the mistake, to wit:
. . . Well, while the cognoscente (sic) would readily know the geographical
difference between London and Liverpool, for a humble seaman like
Gregorio the two places could mean one place in England, the port where
his ship docked and where he found Janet. Our own provincial folks, every
time they leave home to visit relatives in Pasay City, Kalookan City, or
Paraaque, would announce to friends and relatives, "We're going to
Manila." This apparent error in naming of places of destination does not
appear to be fatal. 16
is not well taken. There is no analogy between Manila and its neighboring cities, on one hand,
and London and Liverpool, on the other, which, as pointed out by the Solicitor-General, are
around three hundred fifty (350) kilometers apart. We do not consider that walking into a
major city like Liverpool or London with a simple hope of somehow bumping into one
particular person there which is in effect what Nolasco says he did can be regarded as
a reasonably diligent search.
The Court also views respondent's claim that Janet Monica declined to give any information
as to her personal background even after she had married respondent 17 too convenient an
excuse to justify his failure to locate her. The same can be said of the loss of the alleged
letters respondent had sent to his wife which respondent claims were all returned to him.
Respondent said he had lost these returned letters, under unspecified circumstances.
Neither can this Court give much credence to respondent's bare assertion that he had
inquired from their friends of her whereabouts, considering that respondent did not identify
those friends in his testimony. The Court of Appeals ruled that since the prosecutor failed to
rebut this evidence during trial, it is good evidence. But this kind of evidence cannot, by its
nature, be rebutted. In any case, admissibility is not synonymous with credibility. 18 As noted
before, there are serious doubts to respondent's credibility. Moreover, even if admitted as
evidence, said testimony merely tended to show that the missing spouse had chosen not to
communicate with their common acquaintances, and not that she was dead.

Respondent testified that immediately after receiving his mother's letter sometime in January
1983, he cut short his employment contract to return to San Jose, Antique. However, he did
not explain the delay of nine (9) months from January 1983, when he allegedly asked leave
from his captain, to November 1983 when be finally reached San Jose. Respondent,
moreover, claimed he married Janet Monica Parker without inquiring about her parents and
their place of residence. 19 Also, respondent failed to explain why he did not even try to get
the help of the police or other authorities in London and Liverpool in his effort to find his wife.
The circumstances of Janet Monica's departure and respondent's subsequent behavior make
it very difficult to regard the claimed belief that Janet Monica was dead a well-founded one.
In Goitia v. Campos-Rueda, 20 the Court stressed that:
. . . Marriage is an institution, the maintenance of which in its purity the public
is deeply interested. It is a relationship for life and the parties cannot
terminate it at any shorter period by virtue of any contract they
make. . . . . 21 (Emphasis supplied)
By the same token, the spouses should not be allowed, by the simple expedient of agreeing
that one of them leave the conjugal abode and never to return again, to circumvent the policy
of the laws on marriage. The Court notes that respondent even tried to have his marriage
annulled before the trial court in the same proceeding.
In In Re Szatraw, 22 the Court warned against such collusion between the parties when they
find it impossible to dissolve the marital bonds through existing legal means.
While the Court understands the need of respondent's young son, Gerry Nolasco, for
maternal care, still the requirements of the law must prevail. Since respondent failed to satisfy
the clear requirements of the law, his petition for a judicial declaration of presumptive death
must be denied. The law does not view marriage like an ordinary contract. Article 1 of the
Family Code emphasizes that.
. . . Marriage is 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. It is the foundation of the familyand an inviolable social
institution whose nature, consequences, and incidents are governed by law
and not subject to stipulation, except that marriage settlements may fix the
property relations during the marriage within the limits provided by this Code.
(Emphasis supplied)
In Arroyo, Jr. v. Court of Appeals, 23 the Court stressed strongly the need to protect.

. . . the basic social institutions of marriage and the family in the preservation
of which the State bas the strongest interest; the public policy here involved
is of the most fundamental kind. In Article II, Section 12 of the Constitution
there is set forth the following basic state policy:
The State recognizes the sanctity of family life and shall
protect and strengthen the family as a basic autonomous
social institution. . . .
The same sentiment bas been expressed in the Family Code of the
Philippines in Article 149:
The family, being the foundation of the nation, is a basic
social institution which public policy cherishes and protects.
Consequently, family relations are governed by law and no
custom, practice or agreement destructive of the family shall
be recognized or given effect. 24
In fine, respondent failed to establish that he had the well-founded belief required by law that
his absent wife was already dead that would sustain the issuance of a court order declaring
Janet Monica Parker presumptively dead.
WHEREFORE, the Decision of the Court of Appeals dated 23 February 1990, affirming the
trial court's decision declaring Janet Monica Parker presumptively dead is hereby
REVERSED and both Decisions are hereby NULLIFIED and SET ASIDE. Costs against
respondent.

On 10 March 2005, petitioner Republic of the Philippines, represented by the Office of the
Solicitor General (OSG), filed a Motion for Reconsideration of this Decision. Petitioner argued
that Yolanda had failed to exert earnest efforts to locate Cyrus and thus failed to prove her
well-founded belief that he was already dead. However, in an Order dated 29 June 2007, the
RTC denied the motion.

G.R. No. 187512

June 13, 2012

REPUBLIC OF THE PHILIPPINES, Petitioner,

vs.
YOLANDA CADACIO GRANADA, Respondent.
DECISION
SERENO, J.:
This is a Rule 45 Petition seeking the reversal of the Resolutions dated 23 January 2009 1 and
3 April 20092issued by the Court of Appeals (CA), which affirmed the grant by the Regional
Trial Court (RTC) of the Petition for Declaration of Presumptive Death of the absent spouse of
respondent.
In May 1991, respondent Yolanda Cadacio Granada (Yolanda) met Cyrus Granada (Cyrus) at
Sumida Electric Philippines, an electronics company in Paranaque where both were then
working. The two eventually got married at the Manila City Hall on 3 March 1993. Their
marriage resulted in the birth of their son, Cyborg Dean Cadacio Granada.
Sometime in May 1994, when Sumida Electric Philippines closed down, Cyrus went to Taiwan
to seek employment. Yolanda claimed that from that time, she had not received any
communication from her husband, notwithstanding efforts to locate him. Her brother testified
that he had asked the relatives of Cyrus regarding the latters whereabouts, to no avail.
After nine (9) years of waiting, Yolanda filed a Petition to have Cyrus declared presumptively
dead. The Petition was raffled to Presiding Judge Avelino Demetria of RTC Branch 85, Lipa
City, and was docketed as Sp. Proc. No. 2002-0530.
On 7 February 2005, the RTC rendered a Decision declaring Cyrus as presumptively dead.

Petitioner filed a Notice of Appeal to elevate the case to the CA, presumably under Rule 41,
Section 2(a) of the Rules of Court. Yolanda filed a Motion to Dismiss on the ground that the
CA had no jurisdiction over the appeal. She argued that her Petition for Declaration of
Presumptive Death, based on Article 41 of the Family Code, was a summary judicial
proceeding, in which the judgment is immediately final and executory and, thus, not
appealable.
In its 23 January 2009 Resolution, the appellate court granted Yolandas Motion to Dismiss on
the ground of lack of jurisdiction. Citing Republic v. Bermudez-Lorino, 3 the CA ruled that a
petition for declaration of presumptive death under Rule 41 of the Family Code is a summary
proceeding. Thus, judgment thereon is immediately final and executory upon notice to the
parties.
Petitioner moved for reconsideration, but its motion was likewise denied by the CA in a
Resolution dated 3 April 2009.4
Hence, the present Rule 45 Petition.
Issues
1. Whether the CA seriously erred in dismissing the Petition on the ground that the
Decision of the RTC in a summary proceeding for the declaration of presumptive
death is immediately final and executory upon notice to the parties and, hence, is not
subject to ordinary appeal
2. Whether the CA seriously erred in affirming the RTCs grant of the Petition for
Declaration of Presumptive Death under Article 41 of the Family Code based on the
evidence that respondent presented
Our Ruling
1. On whether the CA seriously erred in dismissing the Petition on the ground that the
Decision of the RTC in a summary proceeding for the declaration of presumptive death is

immediately final and executory upon notice to the parties and, hence, is not subject to
ordinary appeal

Art. 247. The judgment of the court shall be immediately final and executory.
Further, Article 253 of the Family Code reads:

In the assailed Resolution dated 23 January 2009, the CA dismissed the Petition assailing the
RTCs grant of the Petition for Declaration of Presumptive Death of the absent spouse under
Article 41 of the Family Code. Citing Republic v. Bermudez-Lorino, 5 the appellate court noted
that a petition for declaration of presumptive death for the purpose of remarriage is a
summary judicial proceeding under the Family Code. Hence, the RTC Decision therein is
immediately final and executory upon notice to the parties, by express provision of Article 247
of the same Code. The decision is therefore not subject to ordinary appeal, and the attempt to
question it through a Notice of Appeal is unavailing.
We affirm the CA ruling.

Taken together, Articles 41, 238, 247 and 253 of the Family Code provide that since a petition
for declaration of presumptive death is a summary proceeding, the judgment of the court
therein shall be immediately final and executory.
In Republic v. Bermudez-Lorino,6 the Republic likewise appealed the CAs affirmation of the
RTCs grant of respondents Petition for Declaration of Presumptive Death of her absent
spouse. The Court therein held that it was an error for the Republic to file a Notice of Appeal
when the latter elevated the matter to the CA, to wit:

Article 41 of the Family Code provides:

Art. 41. A marriage contracted by any person during the subsistence of a previous marriage
shall be null and void, unless before the celebration of the subsequent marriage, the prior
spouse had been absent for four consecutive years and the spouse present has a wellfounded belief that the absent spouse was already dead. In case of disappearance where
there is danger of death under the circumstances set forth in the provisions of Article 391 of
the Civil Code, an absence of only two years shall be sufficient.
For the purpose of contracting the subsequent marriage under the preceding paragraph the
spouse present must institute a summary proceeding as provided in this Code for the
declaration of presumptive death of the absentee, without prejudice to the effect of
reappearance of the absent spouse. (Underscoring supplied.)
Clearly, a petition for declaration of presumptive death of an absent spouse for the purpose of
contracting a subsequent marriage under Article 41 of the Family Code is a summary
proceeding "as provided for" under the Family Code.
Further, Title XI of the Family Code is entitled "Summary Judicial Proceedings in the Family
Law." Subsumed thereunder are Articles 238 and 247, which provide:
Art. 238. Until modified by the Supreme Court, the procedural rules in this Title shall apply in
all cases provided for in this Code requiring summary court proceedings. Such cases shall be
decided in an expeditious manner without regard to technical rules.
xxx

ART. 253. The foregoing rules in Chapters 2 and 3 hereof shall likewise govern summary
proceedings filed under Articles 41, 51, 69, 73, 96, 124 and 217, insofar as they are
applicable.

xxx

xxx

In Summary Judicial Proceedings under the Family Code, there is no reglementary period
within which to perfect an appeal, precisely because judgments rendered thereunder, by
express provision of Section 247, Family Code, supra, are "immediately final and executory."
xxx

xxx

xxx

But, if only to set the records straight and for the future guidance of the bench and the bar, let
it be stated that the RTCs decision dated November 7, 2001, was immediately final and
executory upon notice to the parties. It was erroneous for the OSG to file a notice of appeal,
and for the RTC to give due course thereto. The Court of Appeals acquired no jurisdiction
over the case, and should have dismissed the appeal outright on that ground.
Justice (later Chief Justice) Artemio Panganiban, who concurred in the result reached by the
Court in Republic v. Bermudez-Lorino, additionally opined that what the OSG should have
filed was a petition for certiorari under Rule 65, not a petition for review under Rule 45.
In the present case, the Republic argues that Bermudez-Lorino has been superseded by the
subsequent Decision of the Court in Republic v. Jomoc,7 issued a few months later.
In Jomoc, the RTC granted respondents Petition for Declaration of Presumptive Death of her
absent husband for the purpose of remarriage. Petitioner Republic appealed the RTC
Decision by filing a Notice of Appeal. The trial court disapproved the Notice of Appeal on the
ground that, under the Rules of Court,8 a record on appeal is required to be filed when

appealing special proceedings cases. The CA affirmed the RTC ruling. In reversing the CA,
this Court clarified that while an action for declaration of death or absence under Rule 72,
Section 1(m), expressly falls under the category of special proceedings, a petition for
declaration of presumptive death under Article 41 of the Family Code is a summary
proceeding, as provided for by Article 238 of the same Code. Since its purpose was to enable
her to contract a subsequent valid marriage, petitioners action was a summary proceeding
based on Article 41 of the Family Code, rather than a special proceeding under Rule 72 of the
Rules of Court. Considering that this action was not a special proceeding, petitioner was not
required to file a record on appeal when it appealed the RTC Decision to the CA.
We do not agree with the Republics argument that Republic v. Jomoc superseded our ruling
in Republic v. Bermudez-Lorino. As observed by the CA, the Supreme Court in Jomoc did not
expound on the characteristics of a summary proceeding under the Family Code. In contrast,
the Court in Bermudez-Lorino expressly stated that its ruling on the impropriety of an ordinary
appeal as a vehicle for questioning the trial courts Decision in a summary proceeding for
declaration of presumptive death under Article 41 of the Family Code was intended "to set the
records straight and for the future guidance of the bench and the bar."
At any rate, four years after Jomoc, this Court settled the rule regarding appeal of judgments
rendered in summary proceedings under the Family Code when it ruled in Republic v. Tango: 9
This case presents an opportunity for us to settle the rule on appeal of judgments rendered in
summary proceedings under the Family Code and accordingly, refine our previous decisions
thereon.
Article 238 of the Family Code, under Title XI: SUMMARY JUDICIAL PROCEEDINGS IN THE
FAMILY LAW, establishes the rules that govern summary court proceedings in the Family
Code:
ART. 238. Until modified by the Supreme Court, the procedural rules in this Title shall apply in
all cases provided for in this Code requiring summary court proceedings. Such cases shall be
decided in an expeditious manner without regard to technical rules.
In turn, Article 253 of the Family Code specifies the cases covered by the rules in chapters
two and three of the same title. It states:
ART. 253. The foregoing rules in Chapters 2 and 3 hereof shall likewise govern summary
proceedings filed under Articles 41, 51, 69, 73, 96, 124 and 217, insofar as they are
applicable. (Emphasis supplied.)

In plain text, Article 247 in Chapter 2 of the same title reads:

ART 247. The judgment of the court shall be immediately final and executory.
By express provision of law, the judgment of the court in a summary proceeding shall be
immediately final and executory. As a matter of course, it follows that no appeal can be had of
the trial court's judgment in a summary proceeding for the declaration of presumptive death of
an absent spouse under Article 41 of the Family Code. It goes without saying, however, that
an aggrieved party may file a petition for certiorari to question abuse of discretion amounting
to lack of jurisdiction. Such petition should be filed in the Court of Appeals in accordance with
the Doctrine of Hierarchy of Courts. To be sure, even if the Court's original jurisdiction to issue
a writ of certiorari is concurrent with the RTCs and the Court of Appeals in certain cases, such
concurrence does not sanction an unrestricted freedom of choice of court forum. From the
decision of the Court of Appeals, the losing party may then file a petition for review on
certiorari under Rule 45 of the Rules of Court with the Supreme Court. This is because the
errors which the court may commit in the exercise of jurisdiction are merely errors of
judgment which are the proper subject of an appeal.
In sum, under Article 41 of the Family Code, the losing party in a summary proceeding for the
declaration of presumptive death may file a petition for certiorari with the CA on the ground
that, in rendering judgment thereon, the trial court committed grave abuse of discretion
amounting to lack of jurisdiction. From the decision of the CA, the aggrieved party may
elevate the matter to this Court via a petition for review on certiorari under Rule 45 of the
Rules of Court.
Evidently then, the CA did not commit any error in dismissing the Republics Notice of Appeal
on the ground that the RTC judgment on the Petition for Declaration of Presumptive Death of
respondents spouse was immediately final and executory and, hence, not subject to ordinary
appeal.
2. On whether the CA seriously erred in affirming the RTCs grant of the Petition for
Declaration of Presumptive Death under Article 41 of the Family Code based on the evidence
that respondent had presented
Petitioner also assails the RTCs grant of the Petition for Declaration of Presumptive Death of
the absent spouse of respondent on the ground that she had not adduced the evidence
required to establish a well-founded belief that her absent spouse was already dead, as
expressly required by Article 41 of the Family Code. Petitioner cites Republic v.
Nolasco,10 United States v. Biasbas11 and Republic v. Court of Appeals and Alegro12 as
authorities on the subject.

In Nolasco, petitioner Republic sought the reversal of the CAs affirmation of the RTCs grant
of respondents Petition for Declaration of Presumptive Death of his absent spouse, a British
subject who left their home in the Philippines soon after giving birth to their son while
respondent was on board a vessel working as a seafarer. Petitioner Republic sought the
reversal of the ruling on the ground that respondent was not able to establish his "wellfounded belief that the absentee is already dead," as required by Article 41 of the Family
Code. In ruling thereon, this Court recognized that this provision imposes more stringent
requirements than does Article 83 of the Civil Code.13 The Civil Code provision merely
requires either that there be no news that the absentee is still alive; or that the absentee is
generally considered to be dead and is believed to be so by the spouse present, or is
presumed dead under Articles 390 and 391 of the Civil Code. In comparison, the Family Code
provision prescribes a "well-founded belief" that the absentee is already dead before a
petition for declaration of presumptive death can be granted. As noted by the Court in that
case, the four requisites for the declaration of presumptive death under the Family Code are
as follows:
1. That the absent spouse has been missing for four consecutive years, or two
consecutive years if the disappearance occurred where there is danger of death
under the circumstances laid down in Article 391, Civil Code;
2. That the present spouse wishes to remarry;

"well-founded belief" that his spouse was already dead. The Court reversed the CA, granted
the Petition, and provided the following criteria for determining the existence of a "wellfounded belief" under Article 41 of the Family Code:
For the purpose of contracting the subsequent marriage under the preceding paragraph, the
spouse present must institute a summary proceeding as provided in this Code for the
declaration of presumptive death of the absentee, without prejudice to the effect of
reappearance of the absent spouse.
The spouse present is, thus, burdened to prove that his spouse has been absent and that he
has a well-founded belief that the absent spouse is already dead before the present spouse
may contract a subsequent marriage. The law does not define what is meant by a wellgrounded belief. Cuello Callon writes that "es menester que su creencia sea firme se funde
en motivos racionales."
Belief is a state of the mind or condition prompting the doing of an overt act.1wphi1 It may
be proved by direct evidence or circumstantial evidence which may tend, even in a slight
degree, to elucidate the inquiry or assist to a determination probably founded in truth. Any fact
or circumstance relating to the character, habits, conditions, attachments, prosperity and
objects of life which usually control the conduct of men, and are the motives of their actions,
was, so far as it tends to explain or characterize their disappearance or throw light on their
intentions, competence [sic] evidence on the ultimate question of his death.

3. That the present spouse has a well-founded belief that the absentee is dead; and
4. That the present spouse files a summary proceeding for the declaration of
presumptive death of the absentee.
In evaluating whether the present spouse has been able to prove the existence of a "wellfounded belief" that the absent spouse is already dead, the Court in Nolasco cited United
States v. Biasbas,14 which it found to be instructive as to the diligence required in searching
for a missing spouse.
In Biasbas, the Court held that defendant Biasbas failed to exercise due diligence in
ascertaining the whereabouts of his first wife, considering his admission that that he only had
a suspicion that she was dead, and that the only basis of that suspicion was the fact of her
absence.
Similarly, in Republic v. Court of Appeals and Alegro, petitioner Republic sought the reversal
of the CA ruling affirming the RTCs grant of the Petition for Declaration of Presumptive Death
of the absent spouse on the ground that the respondent therein had not been able to prove a

The belief of the present spouse must be the result of proper and honest to goodness
inquiries and efforts to ascertain the whereabouts of the absent spouse and whether the
absent spouse is still alive or is already dead. Whether or not the spouse present acted on a
well-founded belief of death of the absent spouse depends upon the inquiries to be drawn
from a great many circumstances occurring before and after the disappearance of the absent
spouse and the nature and extent of the inquiries made by present spouse. (Footnotes
omitted, underscoring supplied.)
Applying the foregoing standards to the present case, petitioner points out that respondent
Yolanda did not initiate a diligent search to locate her absent husband. While her brother
Diosdado Cadacio testified to having inquired about the whereabouts of Cyrus from the
latters relatives, these relatives were not presented to corroborate Diosdados testimony. In
short, respondent was allegedly not diligent in her search for her husband. Petitioner argues
that if she were, she would have sought information from the Taiwanese Consular Office or
assistance from other government agencies in Taiwan or the Philippines. She could have also
utilized mass media for this end, but she did not. Worse, she failed to explain these
omissions.

The Republics arguments are well-taken. Nevertheless, we are constrained to deny the
Petition.
The RTC ruling on the issue of whether respondent was able to prove her "well-founded
belief" that her absent spouse was already dead prior to her filing of the Petition to declare
him presumptively dead is already final and can no longer be modified or reversed. Indeed,
"[n]othing 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."15
WHEREFORE, premises considered, the assailed Resolutions of the Court of Appeals dated
23 January 2009 and 3 April 2009 in CA-G.R. CV No. 90165 are AFFIRMED.

SOCIAL SECURITY SYSTEM, Petitioner,

vs.
TERESITA JARQUE VDA. DE BAILON, Respondent.
DECISION
CARPIO MORALES,J.:
The Court of Appeals Decision1 dated June 23, 20042 and Resolution dated September 28,
20043 reversing the Resolution dated April 2, 20034 and Order dated June 4, 20035 of the
Social Security Commission (SSC) in SSC Case No. 4-15149-01 are challenged in the
present petition for review on certiorari.
On April 25, 1955, Clemente G. Bailon (Bailon) and Alice P. Diaz (Alice) contracted marriage
in Barcelona, Sorsogon.6

SO ORDERED.

More than 15 years later or on October 9, 1970, Bailon filed before the then Court of First
Instance (CFI) of Sorsogon a petition7 to declare Alice presumptively dead.
By Order of December 10, 1970,8 the CFI granted the petition, disposing as follows:
WHEREFORE, there being no opposition filed against the petition notwithstanding the
publication of the Notice of Hearing in a newspaper of general circulation in the country, Alice
Diaz is hereby declared to [sic] all legal intents and purposes, except for those of
succession, presumptively dead.
SO ORDERED.9 (Underscoring supplied)
Close to 13 years after his wife Alice was declared presumptively dead or on August 8, 1983,
Bailon contracted marriage with Teresita Jarque (respondent) in Casiguran, Sorsogon. 10
On January 30, 1998, Bailon, who was a member of the Social Security System (SSS) since
1960 and a retiree pensioner thereof effective July 1994, died. 11
Respondent thereupon filed a claim for funeral benefits, and was granted P12,00012 by the
SSS.

G.R. No. 165545

March 24, 2006

Respondent filed on March 11, 1998 an additional claim for death benefits 13 which was also
granted by the SSS on April 6, 1998.14

Cecilia Bailon-Yap (Cecilia), who claimed to be a daughter of Bailon and one Elisa Jayona
(Elisa) contested before the SSS the release to respondent of the death and funeral benefits.
She claimed that Bailon contracted three marriages in his lifetime, the first with Alice, the
second with her mother Elisa, and the third with respondent, all of whom are still alive; she,
together with her siblings, paid for Bailons medical and funeral expenses; and all the
documents submitted by respondent to the SSS in support of her claims are spurious.
In support of her claim, Cecilia and her sister Norma Bailon Chavez (Norma) submitted an
Affidavit dated February 13, 199915 averring that they are two of nine children of Bailon and
Elisa who cohabited as husband and wife as early as 1958; and they were reserving their
right to file the necessary court action to contest the marriage between Bailon and respondent
as they personally know that Alice is "still very much alive." 16
In the meantime, on April 5, 1999, a certain Hermes P. Diaz, claiming to be the brother and
guardian of "Aliz P. Diaz," filed before the SSS a claim for death benefits accruing from
Bailons death,17 he further attesting in a sworn statement18 that it was Norma who defrayed
Bailons funeral expenses.
Elisa and seven of her children19 subsequently filed claims for death benefits as Bailons
beneficiaries before the SSS.20
Atty. Marites C. de la Torre of the Legal Unit of the SSS Bicol Cluster, Naga City
recommended the cancellation of payment of death pension benefits to respondent and the
issuance of an order for the refund of the amount paid to her from February 1998 to May
1999 representing such benefits; the denial of the claim of Alice on the ground that she was
not dependent upon Bailon for support during his lifetime; and the payment of the balance of
the five-year guaranteed pension to Bailons beneficiaries according to the order of
preference provided under the law, after the amount erroneously paid to respondent has been
collected. The pertinent portions of the Memorandum read:
1. Aliz [sic] Diaz never disappeared. The court must have been misled by
misrepresentation in declaring the first wife, Aliz [sic] Diaz, as presumptively dead.
xxxx
x x x the Order of the court in the "Petition to Declare Alice Diaz Presumptively
Dead," did not become final. The presence of Aliz [sic] Diaz, is contrary proof that
rendered it invalid.
xxxx

3. It was the deceased member who abandoned his wife, Aliz [sic] Diaz. He, being in
bad faith, and is the deserting spouse, his remarriage is void, being bigamous.
xxxx
In this case, it is the deceased member who was the deserting spouse and who remarried,
thus his marriage to Teresita Jarque, for the second time was void as it was bigamous. To
require affidavit of reappearance to terminate the second marriage is not necessary as there
is no disappearance of Aliz [sic] Diaz, the first wife, and a voidable marriage [sic], to speak
of.21 (Underscoring supplied)
In the meantime, the SSS Sorsogon Branch, by letter of August 16, 2000, 22 advised
respondent that as Cecilia and Norma were the ones who defrayed Bailons funeral
expenses, she should return the P12,000 paid to her.
In a separate letter dated September 7, 1999, 23 the SSS advised respondent of the
cancellation of her monthly pension for death benefits in view of the opinion rendered by its
legal department that her marriage with Bailon was void as it was contracted while the latters
marriage with Alice was still subsisting; and the December 10, 1970 CFI Order declaring Alice
presumptively dead did not become final, her "presence" being "contrary proof" against the
validity of the order. It thus requested respondent to return the amount of P24,000
representing the total amount of monthly pension she had received from the SSS from
February 1998 to May 1999.
Respondent protested the cancellation of her monthly pension for death benefits by letter to
the SSS dated October 12, 1999.24 In a subsequent letter dated November 27, 1999 25 to the
SSC, she reiterated her request for the release of her monthly pension, asserting that her
marriage with Bailon was not declared before any court of justice as bigamous or unlawful,
hence, it remained valid and subsisting for all legal intents and purposes as in fact Bailon
designated her as his beneficiary.
The SSS, however, by letter to respondent dated January 21, 2000, 26 maintained the denial of
her claim for and the discontinuance of payment of monthly pension. It advised her, however,
that she was not deprived of her right to file a petition with the SSC.
Respondent thus filed a petition27 against the SSS before the SSC for the restoration to her of
her entitlement to monthly pension.
In the meantime, respondent informed the SSS that she was returning, under protest, the
amount of P12,000 representing the funeral benefits she received, she alleging that Norma

and her siblings "forcibly and coercively prevented her from spending any amount during
Bailons wake."28

SSS contained in its Memorandum dated August 9, 1999,32revealing that Alice (a.k.a. Aliz)
Diaz never left Barcelona, Sorsogon, after her separation from Clemente Bailon x x x.

After the SSS filed its Answer29 to respondents petition, and the parties filed their respective
Position Papers, one Alicia P. Diaz filed an Affidavit30 dated August 14, 2002 with the SSS
Naga Branch attesting that she is the widow of Bailon; she had only recently come to know of
the petition filed by Bailon to declare her presumptively dead; it is not true that she
disappeared as Bailon could have easily located her, she having stayed at her parents
residence in Barcelona, Sorsogon after she found out that Bailon was having an extramarital
affair; and Bailon used to visit her even after their separation.

As the declaration of presumptive death was extracted by the deceased member using
artifice and by exerting fraud upon the unsuspecting court of law, x x x it never had the effect
of giving the deceased member the right to marry anew. x x x [I]t is clear that the marriage to
the petitioner is void, considering that the first marriage on April 25, 1955 to Alice Diaz was
not previously annulled, invalidated or otherwise dissolved during the lifetime of the parties
thereto. x x x as determined through the investigation conducted by the SSS, Clemente
Bailon was the abandoning spouse, not Alice Diaz Bailon.

By Resolution of April 2, 2003, the SSC found that the marriage of respondent to Bailon was
void and, therefore, she was "just a common-law-wife." Accordingly it disposed as follows,
quoted verbatim:

xxxx

WHEREFORE, this Commission finds, and so holds, that petitioner Teresita Jarque-Bailon is
not the legitimate spouse and primary beneficiary of SSS member Clemente Bailon.

It having been established, by substantial evidence, that the petitioner was just a commonlaw wife of the deceased member, it necessarily follows that she is not entitled as a primary
beneficiary, to the latters death benefit. x x x
xxxx

Accordingly, the petitioner is hereby ordered to refund to the SSS the amount of P24,000.00
representing the death benefit she received therefrom for the period February 1998 until May
1999 as well as P12,000.00 representing the funeral benefit.
The SSS is hereby ordered to pay Alice (a.k.a. Aliz) Diaz-Bailon the appropriate death benefit
arising from the demise of SSS member Clemente Bailon in accordance with Section 8(e)
and (k) as well as Section 13 of the SS Law, as amended, and its prevailing rules and
regulations and to inform this Commission of its compliance herewith.

It having been determined that Teresita Jarque was not the legitimate surviving spouse and
primary beneficiary of Clemente Bailon, it behooves her to refund the total amount of death
benefit she received from the SSS for the period from February 1998 until May 1999 pursuant
to the principle of solutio indebiti x x x
Likewise, it appearing that she was not the one who actually defrayed the cost of the wake
and burial of Clemente Bailon, she must return the amount of P12,000.00 which was earlier
given to her by the SSS as funeral benefit.33(Underscoring supplied)

SO ORDERED.31 (Underscoring supplied)

In so ruling against respondent, the SSC ratiocinated.
After a thorough examination of the evidence at hand, this Commission comes to the
inevitable conclusion that the petitioner is not the legitimate wife of the deceased member.

Respondents Motion for Reconsideration34 having been denied by Order of June 4, 2003,
she filed a petition for review35 before the Court of Appeals (CA).
By Decision of June 23, 2004, the CA reversed and set aside the April 2, 2003 Resolution and
June 4, 2003 Order of the SSC and thus ordered the SSS to pay respondent all the pension
benefits due her. Held the CA:

xxxx
There is x x x ample evidence pointing to the fact that, contrary to the declaration of the then
CFI of Sorsogon (10th Judicial District), the first wife never disappeared as the deceased
member represented in bad faith. This Commission accords credence to the findings of the

x x x [T]he paramount concern in this case transcends the issue of whether or not the
decision of the then CFI, now RTC, declaring Alice Diaz presumptively dead has attained
finality but, more importantly, whether or not the respondents SSS and Commission can
validly re-evaluate the findings of the RTC, and on its own, declare the latters decision to be

bereft of any basis. On similar import, can respondents SSS and Commission validly declare
the first marriage subsisting and the second marriage null and void?

The SSC and the SSS separately filed their Motions for Reconsideration 37 which were both
denied for lack of merit.

xxxx

Hence, the SSS present petition for review on certiorari 38 anchored on the following grounds:

x x x while it is true that a judgment declaring a person presumptively dead never attains
finality as the finding that "the person is unheard of in seven years is merely a
presumption juris tantum," the second marriage contracted by a person with an absent
spouse endures until annulled. It is only the competent court that can nullify the second
marriage pursuant to Article 87 of the Civil Code and upon the reappearance of the missing
spouse, which action for annulment may be filed. Nowhere does the law contemplates [sic]
the possibility that respondent SSS may validly declare the second marriage null and void on
the basis alone of its own investigation and declare that the decision of the RTC declaring
one to be presumptively dead is without basis.
Respondent SSS cannot arrogate upon itself the authority to review the decision of the
regular courts under the pretext of determining the actual and lawful beneficiaries of its
members. Notwithstanding its opinion as to the soundness of the findings of the RTC, it
should extend due credence to the decision of the RTC absent of [sic] any judicial
pronouncement to the contrary. x x x
x x x [A]ssuming arguendo that respondent SSS actually possesses the authority to declare
the decision of the RTC to be without basis, the procedure it followed was offensive to the
principle of fair play and thus its findings are of doubtful quality considering that petitioner
Teresita was not given ample opportunity to present evidence for and her behalf.
xxxx

I
THE DECISION OF THE HONORABLE COURT OF APPEALS IS CONTRARY TO LAW.
II
THE HONORABLE COURT OF APPEALS GRAVELY ABUSED ITS DISCRETION
AMOUNTING TO LACK OF JURISDICTION.39
The SSS faults the CA for failing to give due consideration to the findings of facts of the SSC
on the prior and subsisting marriage between Bailon and Alice; in disregarding the authority of
the SSC to determine to whom, between Alice and respondent, the death benefits should be
awarded pursuant to Section 540 of the Social Security Law; and in declaring that the SSS did
not give respondent due process or ample opportunity to present evidence in her behalf.
The SSS submits that "the observations and findings relative to the CFI proceedings are of
no moment to the present controversy, as the same may be considered only as obiter dicta in
view of the SSCs finding of the existence of a prior and subsisting marriage between Bailon
and Alice by virtue of which Alice has a better right to the death benefits." 41
The petition fails.

Respondent SSS is correct in stating that the filing of an Affidavit of Reappearance with the
Civil Registry is no longer practical under the premises. Indeed, there is no more first
marriage to restore as the marital bond between Alice Diaz and Clemente Bailon was already
terminated upon the latters death. Neither is there a second marriage to terminate because
the second marriage was likewise dissolved by the death of Clemente Bailon.

That the SSC is empowered to settle any dispute with respect to SSS coverage, benefits and
contributions, there is no doubt. In so exercising such power, however, it cannot review, much
less reverse, decisions rendered by courts of law as it did in the case at bar when it declared
that the December 10, 1970 CFI Order was obtained through fraud and subsequently
disregarded the same, making its own findings with respect to the validity of Bailon and
Alices marriage on the one hand and the invalidity of Bailon and respondents marriage on
the other.

However, it is not correct to conclude that simply because the filing of the Affidavit of
Reappearance with the Civil Registry where parties to the subsequent marriage reside is
already inutile, the respondent SSS has now the authority to review the decision of the RTC
and consequently declare the second marriage null and void.36(Emphasis and underscoring
supplied)

In interfering with and passing upon the CFI Order, the SSC virtually acted as an appellate
court. The law does not give the SSC unfettered discretion to trifle with orders of regular
courts in the exercise of its authority to determine the beneficiaries of the SSS.

The two marriages involved herein having been solemnized prior to the effectivity on August
3, 1988 of the Family Code, the applicable law to determine their validity is the Civil Code
which was the law in effect at the time of their celebration. 42
43

Article 83 of the Civil Code provides:

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 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. (Emphasis
and underscoring supplied)
Under the foregoing provision of the Civil Code, a subsequent marriage contracted during the
lifetime of the first spouse is illegal and void ab initio unless the prior marriage is first annulled
or dissolved or contracted under any of the three exceptional circumstances. It bears noting
that the marriage under any of these exceptional cases is deemed valid "until declared null
and void by a competent court." It follows that the onus probandi in these cases rests on the
party assailing the second marriage.44
In the case at bar, as found by the CFI, Alice had been absent for 15 consecutive
years45 when Bailon sought the declaration of her presumptive death, which judicial
declaration was not even a requirement then for purposes of remarriage. 46

the continuance of life of the first spouse or of the continuance of the marital relation with
such first spouse.47(Underscoring supplied)
Under the Civil Code, a subsequent marriage being voidable,48 it is terminated by final
judgment of annulment in a case instituted by the absent spouse who reappears or by either
of the spouses in the subsequent marriage.
Under the Family Code, no judicial proceeding to annul a subsequent marriage is necessary.
Thus Article 42 thereof provides:
Art. 42. The subsequent marriage referred to in the preceding Article shall be automatically
terminated by therecording of the affidavit of reappearance of the absent spouse, unless
there is a judgment annulling the previous marriage or declaring it void ab initio.
A sworn statement of the fact and circumstances of reappearance shall be recorded in the
civil registry of the residence of the parties to the subsequent marriage at the instance of any
interested person, with due notice to the spouses of the subsequent marriage and
without prejudice to the fact of reappearance being judicially determined in case such fact is
disputed. (Emphasis and underscoring supplied)
The termination of the subsequent marriage by affidavit provided by the above-quoted
provision of the Family Code does not preclude the filing of an action in court to prove the
reappearance of the absentee and obtain a declaration of dissolution or termination of the
subsequent marriage.49
If the absentee reappears, but no step is taken to terminate the subsequent marriage, either
by affidavit or by court action, such absentees mere reappearance, even if made known to
the spouses in the subsequent marriage, will not terminate such marriage.50 Since the second
marriage has been contracted because of a presumption that the former spouse is dead,
such presumption continues inspite of the spouses physical reappearance, and by fiction of
law, he or she must still be regarded as legally an absentee until the subsequent marriage is
terminated as provided by law.51

Eminent jurist Arturo M. Tolentino (now deceased) commented:

Where a person has entered into two successive marriages, a presumption arises in favor of
the validity of the second marriage, and the burden is on the party attacking the validity of the
second marriage to prove that the first marriage had not been dissolved; it is not enough to
prove the first marriage, for it must also be shown that it had not ended when the second
marriage was contracted. The presumption in favor of the innocence of the defendant from
crime or wrong and of the legality of his second marriage, will prevail over the presumption of

If the subsequent marriage is not terminated by registration of an affidavit of reappearance or

by judicial declaration but by death of either spouse as in the case at bar, Tolentino submits:
x x x [G]enerally if a subsequent marriage is dissolved by the death of either spouse, the
effects of dissolution of valid marriages shall arise. The good or bad faith of either spouse can
no longer be raised, because, as in annullable or voidable marriages, the marriage cannot be
questioned except in a direct action for annulment.52(Underscoring supplied)

Similarly, Lapuz v. Eufemio53 instructs:

In fact, even if the bigamous marriage had not been void ab initio but only voidable under
Article 83, paragraph 2, of the Civil Code, because the second marriage had been contracted
with the first wife having been an absentee for seven consecutive years, or when she had
been generally believed dead, still the action for annulment became extinguished as soon as
one of the three persons involved had died, as provided in Article 87, paragraph 2, of the
Code, requiring that the action for annulment should be brought during the lifetime of
any one of the parties involved. And furthermore, the liquidation of any conjugal partnership
that might have resulted from such voidable marriage must be carried out "in the testate or
intestate proceedings of the deceased spouse," as expressly provided in Section 2 of the
Revised Rule 73, and not in the annulment proceeding. 54 (Emphasis and underscoring
supplied)
It bears reiterating that a voidable marriage cannot be assailed collaterally except in a direct
proceeding. Consequently, such marriages can be assailed only during the lifetime of the
parties and not after the death of either, in which case the parties and their offspring will be
left as if the marriage had been perfectly valid.55 Upon the death of either, the marriage
cannot be impeached, and is made good ab initio.56
In the case at bar, as no step was taken to nullify, in accordance with law, Bailons and
respondents marriage prior to the formers death in 1998, respondent is rightfully the
dependent spouse-beneficiary of Bailon.
In light of the foregoing discussions, consideration of the other issues raised has been
rendered unnecessary.
WHEREFORE, the petition is DENIED.
No costs.

D. Feliciano Leviste, D. Tomas P. Panganiban and Doa Sotera N. Megia for appellant.
Doa Luida Buccat Mangonon of their own representation.
HORRILLENO, J. :
This issue has been raised to this Superiority by the Court of First Instance of Baguio, since it
only raises a question purely of law.
On 20 March 1939 the applicant inico the present case, where the defendant appeared not,
however having been duly summoned. So, it allowed the plaintiff to present evidence, the
lower court ruling the matter in favor of the defendant. Hence this appeal.
The applicant seeks the annulment of his marriage been with the defendant Luida Mangonon
of Buccat the November 26, 1938, in the City of Baguio, on the grounds that, by consenting to
the marriage, he did it because the defendant he had said that she was Virgin.
The decision of the lower court the following facts:
The applicant met the defendant March 1938. After several interviews, both were committed
on 19 September of the same year. On 26 November the same year, the claimant married the
defendant in the Catholic catedrla Baguio City. Desoues of living cohabiting for about eightynine days, the defendant gave birth to a child nine months, on 23 February 1939. As a result
of this event, abandonment applicant to the defendant and not returned to make marital life
she.
We see no reason to overturn the original ruling. Indeed, it is unlikely the plaintiff and
appellant's allegation that had not even suspected the gravid state of the defendant, being
this, as is proved in pregnant condition well advanced. So it is not necessary to estimate the
fraud speaking the appellant. Alleged by this in the sense that countries not uncommon to
find people tuck developed, it seems puerile to deserve our consideration, especially as the
applicant was freshman of law.

SO ORDERED.

GR No. 47101 April 25, 1941

GODOFREDO BUCCAT, plaintiff-appellant,
vs. LUIDA Mangonon OF BUCCAT, defendant-respondent.

Marriage is a very sacred institution: it is the foundation upon which the society. To unselect,
they are necessary to clear and convincing evidence. In this case there are no such
evidence.
Finding the original ruling in accordance with law, it must be confirmed, as hereby confirm it,
in its entirety, with costs against the appellant. So it is ordered.
G.R. No. L-15853

July 27, 1960

FERNANDO AQUINO, petitioner,

vs.
CONCHITA DELIZO, respondent.
GUTIERREZ DAVID, J.:
This is a petition for certiorari to review a decision of the Court of Appeals affirming that of the
Court of First Instance of Rizal which dismissed petitioner's complaint for annulment of his
marriage with respondent Conchita Delizo.
The dismissed complaint, which was filed on September 6, 1955, was based on the ground of
fraud, it being alleged, among other things, that defendant Conchita Delizo, herein
respondent, at the date of her marriage to plaintiff, herein petitioner Fernando Aquino, on
December 27, 1954, concealed from the latter that fact that she was pregnant by another
man, and sometime in April, 1955, or about four months after their marriage, gave birth to a
child. In her answer, defendant claimed that the child was conceived out of lawful wedlock
between her and the plaintiff.
At the trial, the attorney's for both parties appeared and the court a quo ordered Assistant
Provincial Fiscal Jose Goco to represent the State in the proceedings to prevent collusion.
Only the plaintiff however, testified and the only documentary evidence presented was the
marriage contract between the parties. Defendant neither appeared nor presented any
evidence despite the reservation made by her counsel that he would present evidence on a
later date.
On June 16, 1956, the trial court noting that no birth certificate was presented to show that
the child was born within 180 days after the marriage between the parties, and holding that
concealment of pregnancy as alleged by the plaintiff does not constitute such fraud sa would
annul a marriage dismissed the complaint. Through a verified "petition to reopen for
reception of additional evidence", plaintiff tried to present the certificates of birth and delivery
of the child born of the defendant on April 26, 1955, which documents, according to him, he
had failed to secure earlier and produce before the trial court thru excusable negligence. The
petition, however, was denied.
On appeal to the Court of Appeals, that court held that there has been excusable neglect in
plaintiff's inability to present the proof of the child's birth, through her birth certificate, and for
that reason the court a quo erred in denying the motion for reception of additional evidence.
On the theory, however, that it was not impossible for plaintiff and defendant to have had
sexual intercourse during their engagement so that the child could be their own, and finding
unbelievable plaintiff's claim that he did not notice or even suspect that defendant was

pregnant when he married her, the appellate court, nevertheless, affirmed the dismissal of the
complaint.
On March 17, 1959, plaintiff filed a motion praying that the decision be reconsidered, or, if
such reconsideration be denied, that the case be remanded to the lower court for new trial. In
support of the motion, plaintiff attached as annexes thereof the following documents:
1. Affidavit of Cesar Aquino (Annex A) (defendant's brother-in-law and plaintiff's
brother, with whom defendant was living at the time plaintiff met, courted and married
her, and with whom defendant has begotten two more children, aside from her first
born, in common-law relationship) admitting that he is the father of defendant's first
born, Catherine Bess Aquino, and that he and defendant hid her pregnancy from
plaintiff at the time of plaintiff's marriage to defendant;
2. Affidavit of defendant, Conchita Delizo (Annex "B") admitting her pregnancy by
Cesar Aquino, her brother-in-law and plaintiff's own brother, at the time of her
marriage to plaintiff and her having hidden this fact from plaintiff before and up to the
time of their marriage;
3. Affidavit of Albert Powell (Annex "C") stating that he knew Cesar Aquino and
defendant lived together as husband and wife before December 27, 1954, the date of
plaintiff's marriage to defendant;
4. Birth Certificate of defendant's first born, Catherine Bess Aquino showing her date
of birth to be April 26, 1955;
5. Birth Certificate (Annex "D") of Carolle Ann Aquino, the second child of defendant
with Cesar Aquino, her brother-in-law;
6. Birth Certificate (Annex "E") of Chris Charibel Aquino, the third child of Cesar
Aquino and defendant; and
7. Pictures of defendant showing her natural plumpness as early as 1952 to as late
as November, 1954, the November, 1954 photo itself does not show defendant's
pregnancy which must have been almost four months old at the time the picture was
taken.
Acting upon the motion, the Court of Appeals ordered the defendant Conchita Delizo and
Assistant Provincial Fiscal of Rizal, who was representing the Government, to answer the
motion for reconsideration, and deferred action on the prayer for new trial until after the case

is disposed of. As both the defendant and the fiscal failed to file an answer, and stating that it
"does not believe the veracity of the contents of the motion and its annexes", the Court of
Appeals, on August 6, 1959, denied the motion. From that order, the plaintiff brought the case
to this Court thru the present petition for certiorari.
After going over the record of the case, we find that the dismissal of plaintiff's complaint
cannot be sustained.
Under the new Civil Code, concealment by the wife of the fact that at the time of the
marriage, she was pregnant by a man other than her husband constitutes fraud and is ground
for annulment of marriage. (Art. 85, par. (4) in relation to Art. 86, par. (3). In the case
of Buccat vs. Buccat (72 Phil., 19) cited in the decision sought to be reviewed, which was also
an action for the annulment of marriage on the ground of fraud, plaintiff's claim that he did not
even suspect the pregnancy of the defendant was held to be unbelievable, it having been
proven that the latter was already in an advanced stage of pregnancy (7th month) at the time
of their marriage. That pronouncement, however, cannot apply to the case at bar. Here the
defendant wife was alleged to be only more than four months pregnant at the time of her
marriage to plaintiff. At that stage, we are not prepared to say that her pregnancy was readily
apparent, especially since she was "naturally plump" or fat as alleged by plaintiff. According
to medical authorities, even on the 5th month of pregnancy, the enlargement of a woman's
abdomen is still below the umbilicus, that is to say, the enlargement is limited to the lower part
of the abdomen so that it is hardly noticeable and may, if noticed, be attributed only to fat
formation on the lower part of the abdomen. It is only on the 6th month of pregnancy that the
enlargement of the woman's abdomen reaches a height above the umbilicus, making the
roundness of the abdomen more general and apparent. (See Lull, Clinical Obstetrics, p. 122)
If, as claimed by plaintiff, defendant is "naturally plump", he could hardly be expected to
know, merely by looking, whether or not she was pregnant at the time of their marriage more
so because she must have attempted to conceal the true state of affairs. Even physicians and
surgeons, with the aid of the woman herself who shows and gives her subjective and
objective symptoms, can only claim positive diagnosis of pregnancy in 33% at five months.
and 50% at six months. (XI Cyclopedia of Medicine, Surgery, etc. Pregnancy, p. 10).

of the defendant cannot be taken as evidence of collusion, especially since a provincial fiscal
has been ordered of represent the Government precisely to prevent such collusion. As to the
veracity of the contents of the motion and its annexes, the same can best be determined only
after hearing evidence. In the circumstance, we think that justice would be better served if a
new trial were ordered.
Wherefore, the decision complained of is set aside and the case remanded to the court a quo
for new trial. Without costs.

G.R. No. 109975

February 9, 2001

REPUBLIC OF THE PHILIPPINES, petitioner,

vs.
ERLINDA MATIAS DAGDAG, respondent.
QUISUMBING, J.:
For review on certiorari is the decision1 of the Court of Appeals dated April 22, 1993, in CAG.R. CY No. 34378, which affirmed the decision of the Regional Trial Court of Olongapo City
in Civil Case No. 380-0-90 declaring the marriage of Erlinda Matias Dagdag and Avelino
Dagdag void under Article 36 of the Family Code.
On September 7, 1975, Erlinda Matias, 16 years old, married Avelino Parangan Dagdag, 20
years old, at the Iglesia Filipina Independent Church in Cuyapo, Nueva Ecija. 2 The marriage
certificate was issued by the Office of the Local Civil Registrar of the Municipality of Cuyapo,
Nueva Ecija, on October 20, 1988.

The appellate court also said that it was not impossible for plaintiff and defendant to have had
sexual intercourse before they got married and therefore the child could be their own. This
statement, however, is purely conjectural and finds no support or justification in the record.

Erlinda and Avelino begot two children, namely: Avelyn M. Dagdag, born on January 16,
1978; and Eden M. Dagdag, born on April 21, 1982. 3 Their birth certificates were issued by
the Office of the Local Civil Registrar of the Municipality of Cuyapo, Nueva Ecija, also on
October 20, 1988.

Upon the other hand, the evidence sought to be introduced at the new trial, taken together
with what has already been adduced would, in our opinion, be sufficient to sustain the fraud
alleged by plaintiff. The Court of Appeals should, therefore, not have denied the motion
praying for new trial simply because defendant failed to file her answer thereto. Such failure

Erlinda and Avelino lived in a house in District 8, Cuyapo, Nueva Ecija, located at the back of
the house of their in-laws.4 A week after the wedding, Avelino started leaving his family
without explanation. He would disappear for months, suddenly reappear for a few months,
then disappear again. During the times when he was with his family, he indulged in drinking

sprees with friends and would return home drunk. He would force his wife to submit to sexual
intercourse and if she refused, he would inflict physical injuries on her.5
On October 1993, he left his family again and that was the last they heard from him. Erlinda
was constrained to look for a job in Olongapo City as a manicurist to support herself and her
children. Finally, Erlinda learned that Avelino was imprisoned for some crime, 6 and that he
escaped from jail on October 22, 1985.7 A certification therefor dated February 14, 1990, was
issued by Jail Warden Orlando S. Limon. Avelino remains at-large to date.
On July 3, 1990, Erlinda filed with the Regional Trial Court of Olongapo City a petition for
judicial declaration of nullity of marriage on the ground of psychological incapacity under
Article 36 of the Family Code.8 Since Avelino could not be located, summons was served by
publication in the Olongapo News, a newspaper of general circulation, on September 3, 10,
and 17, 1990.9 Subsequently, a hearing was conducted to establish jurisdictional facts.
Thereafter, on December 17, 1990, the date set for presentation of evidence, only Erlinda and
her counsel appeared. Erlinda testified and presented her sister-in-law, Virginia Dagdag, as
her only witness.
Virginia testified that she is married to the brother of Avelino. She and her husband live in
Olongapo City but they spend their vacations at the house of Avelino's parents in Cuyapo,
Nueva Ecija. She testified that Erlinda and Avelino always quarrelled, and that Avelino never
stayed for long at the couple's house. She knew that Avelino had been gone for a long time
now, and that she pitied Erlinda and the children.10
Thereafter, Erlinda rested her case. The trial court issued an Order giving the investigating
prosecutor until January 2, 1991, to manifest in writing whether or not he would present
controverting evidence, and stating that should he fail to file said manifestation, the case
would be deemed submitted for decision.
In compliance with the Order, the investigating prosecutor conducted an investigation and
found that there was no collusion between the parties. However, he intended to intervene in
the case to avoid fabrication of evidence.11
On December 27, 1990, without waiting for the investigating prosecutor's manifestation dated
December 5, 1990, the trial court rendered a decision 12 declaring the marriage of Erlinda and
Avelino void under Article 36 of the Family Code, disposing thus:
"WHEREFORE, and viewed from the foregoing considerations, the Court hereby
declares the marriage celebrated at Cuyapo, Nueva Ecija between Erlinda Matias
and Avelino Dagdag on 7 September 1975 to be null and void.

The Local Civil Registrar of Cuyapo, Nueva Ecija is hereby ordered to enter into his
Book of Marriage this declaration after this decision shall have become final and
executory .
SO ORDERED."
On January 29, 1991, the investigating prosecutor filed a Motion to Set Aside Judgment on
the ground that the decision was prematurely rendered since he was given until January 2,
1991 to manifest whether he was presenting controverting evidence.
The Office of the Solicitor General likewise filed a Motion for Reconsideration of the decision
on the ground that the same is not in accordance with the evidence and the law. After
requiring Erlinda to comment, the trial court denied the Motion for Reconsideration in an
Order dated August 21, 1991 as follows:13
"This resolves the Motion for Reconsideration of the Decision of this Honorable Court
dated December 27, 1990 filed by the Solicitor-General. The observation of the
movant is to the effect that 'Mere alcoholism and abusiveness are not enough to
show psychological incapacity. Nor is abandonment. These are common in marriage.
There must be showing that these traits, stemmed from psychological incapacity
existing at the time of celebration of the marriage.
In the case at bar, the abandonment is prolonged as the husband left his wife and
children since 1983. The defendant, while in jail escaped and whose present
whereabouts are unknown. He failed to support his family for the same period of
time, actuations clearly indicative of the failure of the husband to comply with the
essential marital obligations of marriage defined and enumerated under Article 68 of
the Family Code. These findings of facts are uncontroverted. 1wphi1.nt
Defendant's character traits, by their nature, existed at the time of marriage and
became manifest only after the marriage. In rerum natura, these traits are
manifestations of lack of marital responsibility and appear now to be incurable.
Nothing can be graver since the family members are now left to fend for themselves.
Contrary to the opinion of the Solicitor-General, these are not common in marriage.
Let it be said that the provisions of Article 36 of the New Family Code, to assuage the
sensibilities of the more numerous church, is a substitute for divorce (See: Sempio
Diy, New Family Code, p. 36) in order to dissolve marriages that exist only in name.

WHEREFORE, and the foregoing considered, the motion for Reconsideration

aforecited is DENIED for lack of merit.
SO ORDERED"
The Solicitor General appealed to the Court of Appeals, raising the sole assignment of error
that:
THE LOWER COURT ERRED IN DECLARING APPELLEE'S MARRIAGE TO A
VELINO DAGDAG NULL AND VOID ON THE GROUND OF PSYCHOLOGICAL
INCAPACITY OF THE LATTER, PURSUANT TO ARTICLE 36 OF THE FAMILY
CODE, THE PSYCHOLOGICAL INCAPACITY OF THE NATURE CONTEMPLATED
BY THE LAW NOT HAVING BEEN PROVEN TO EXIST.14
On April 22, 1993, the Court of Appeals rendered a decision 15 affirming the decision of the
trial court, disposing thus:
"Avelino Dagdag is psychologically incapacitated not only because he failed to
perform the duties and obligations of a married person but because he is emotionally
immature and irresponsible, an alcoholic, and a criminal. Necessarily, the plaintiff is
now endowed with the right to seek the judicial declaration of nullity of their marriage
under Article 36 of the Family Code. Defendant's constant non-fulfillment of any of
such obligations is continously (sic) destroying the integrity or wholeness of his
marriage with the plaintiff. (Pineda, The Family Code of the Philippines Annotated,
1992 Ed., p. 46)."16
Hence, the present petition for review ,17 filed by the Solicitor General.
The Solicitor General contends that the alleged psychological incapacity of Avelino Dagdag is
not of the nature contemplated by Article 36 of the Family Code. According to him, the Court
of Appeals made an erroneous and incorrect interpretation of the phrase "psychological
incapacity" and an incorrect application thereof to the facts of the case. Respondent, in her
Comment, insists that the facts constituting psychological incapacity were proven by
preponderance of evidence during trial.
At issue is whether or not the trial court and the Court of Appeals correctly declared the
marriage as null and void under Article 36 of the Family Code, on the ground that the
husband suffers from psychological incapacity as he is emotionally immature and
irresponsible, a habitual alcoholic, and a fugitive from justice.

Article 36 of the Family Code provides "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."
Whether or not psychological incapacity exists in a given case calling for annulment of a
marriage, depends crucially, more than in any field of the law, on the facts of the case. Each
case must be judged, not on the basis ofa priori assumptions, predilections or generalizations
but according to its own facts. In regard to psychological incapacity as a ground for
annulment of marriage, it is trite to say that no case is on "all fours" with another case. The
trial judge must take pains in examining the factual milieu and the appellate court must, as
much as possible, avoid substituting its own judgment for that of the trial court. 18
In Republic v. Court of Appeals and Molina,19 the Court laid down the following GUIDELINES
in the interpretation and application of Article 36 of the Family Code:
"(1) The burden of proof to show the nullity of the marriage belongs to the plaintiff.
Any doubt should be resolved in favor of the existence and continuation of the
marriage and against its dissolution and nullity. This is rooted in the fact that both our
Constitution and our laws cherish the validity of marriage and unity of the family. x x x
(2) The root cause of the psychological incapacity must be: (a) medically or clinically
identified, (b) alleged in the complaint, (c) sufficiently proven by experts and (d)
clearly explained in the decision. Article 36 of the Family Code requires that the
incapacity must be psychological - not physical, although its manifestations and/or
symptoms may be physical. The evidence must convince the court that the parties, or
one of them, was mentally or psychically ill to such an extent that the person could
not have known the obligations he was assuming, or knowing them, could not have
given valid assumption thereof. Although no example of such incapacity need be
given here so as not to limit the application of the provision under the principle
ofejusdem generis (Salita vs. Magtolis, 233 SCRA 100, June 13, 1994), nevertheless
such root cause must be identified as a psychological illness and its incapacitating
nature fully explained. Expert evidence may be given by qualified psychiatrists and
clinical psychologists.
(3) The incapacity must be proven to be existing at "the time of the celebration" of the
marriage. The evidence must show that the illness was existing when the parties

exchanged their "I do's." The manifestation of the illness need not be perceivable at
such time, but the illness itself must have attached at such moment, or prior thereto.
(4) Such incapacity must also be shown to be medically or clinically permanent
or incurable. Such incurability may be absolute or even relative only in regard to the
other spouse, not necessarily absolutely against everyone of the same sex.
Furthermore, such incapacity must be relevant to the assumption of marriage
obligations, not necessarily to those not related to marriage, like the exercise of a
profession or employment in a job. Hence, a pediatrician may be effective in
diagnosing illnesses of children and prescribing medicine to cure them but may not
be psychologically capacitated to procreate, bear and raise his/her own children as
an essential obligation of marriage.
(5) Such illness must be grave enough to bring about the disability of the party to
assume the essential obligations of marriage. Thus, "mild characteriological
peculiarities, mood changes, occasional emotional outbursts" cannot be accepted
as root causes. The illness must be shown as downright incapacity or inability, not a
refusal, neglect or difficulty, much less in will. In other words, there is a natal or
supervening disabling factor in the person, an adverse integral element in the
personality structure that effectively incapacitates the person from really accepting
and thereby complying with the obligations essential to marriage.
(6) The essential marital obligations must be those embraced by Articles 68 up to 71
of the Family Code20as regards the husband and wife as well as Articles 220, 221
and 225 of the same Code21 in regard to parents and their children. Such noncomplied marital obligation(s) must also be stated in the petition, proven by evidence
and included in the text of the decision.
(7) Interpretations given by the National Appellate Matrimonial Tribunal of the
Catholic Church in the Philippines, while not controlling or decisive, should be given
great respect by our courts. x x x
(8) The trial court must order the prosecuting attorney or fiscal and the Solicitor
General to appear as counsel for the state. No decision shall be handed down unless
the Solicitor General issues a certification, which will be quoted in the decision, briefly
stating therein his reasons for his agreement or opposition, as the case may be, to
the petition. The Solicitor-General, along with the prosecuting attorney, shall submit
to the court such certification within fifteen (15) days from the date the case is
deemed submitted for resolution of the court. The Solicitor-General shall discharge
the equivalent function of the defensor vinculicontemplated under Canon 1095."22

Taking into consideration these guidelines, it is evident that Erlinda failed to comply with the
above-mentioned evidentiary requirements. Erlinda failed to comply with guideline No. 2
which requires that the root cause of psychological incapacity must be medically or clinically
identified and sufficiently proven by experts, since no psychiatrist or medical doctor testified
as to the alleged psychological incapacity of her husband. Further, the allegation that the
husband is a fugitive from justice was not sufficiently proven. In fact, the crime for which he
was arrested was not even alleged. The investigating prosecutor was likewise not given an
opportunity to present controverting evidence since the trial court's decision was prematurely
rendered.
In the case of Hernandez v. Court of Appeals,23 we affirmed the dismissal of the trial court and
Court of Appeals of the petition for annulment on the ground of dearth of the evidence
presented. We further explained therein that "Moreover, expert testimony should have been presented to establish the precise
cause of private respondent's psychological incapacity, if any, in order to show that it
existed at the inception of the marriage. The burden of proof to show the nullity of the
marriage rests upon petitioner. The Court is mindful of the policy of the 1987
Constitution to protect and strengthen the family as the basic autonomous social
institution and marriage as the foundation of the family. (Art. II, Sec. 12, Art. XV, Secs.
1-2) Thus, any doubt should be resolved in favor of the validity of the marriage. (citing
Republic of the Philippines v. Court of Appeals, supra. )"24
WHEREFORE, the present petition is GRANTED. The assailed Decision of the Court of
Appeals dated April 22, 1993, in CA-G.R. CY No. 34378 is REVERSED and SET ASIDE.
No pronouncement as to costs.
SO ORDERED.

G.R. No. 179620

August 26, 2008

MANUEL G. ALMELOR, petitioner,

vs.
THE HON. REGIONAL TRIAL COURT OF LAS PIAS CITY, BRANCH 254, and LEONIDA
T. ALMELOR, respondents.
DECISION
REYES, R.T., J.:
MARRIAGE, in its totality, involves the spouses' right to the community of their whole lives. It
likewise involves a true intertwining of personalities.1
2

This is a petition for review on certiorari of the Decision of the Court of Appeals (CA) denying
the petition for annulment of judgment and affirming in toto the decision of the Regional Trial
Court (RTC), Las Pias, Branch 254. The CA dismissed outright the Rule 47 petition for being
the wrong remedy.
The Facts
Petitioner Manuel G. Almelor (Manuel) and respondent Leonida Trinidad (Leonida) were
married on January 29, 1989 at the Manila Cathedral.3 Their union bore three children: (1)
Maria Paulina Corinne, born on October 20, 1989; (2) Napoleon Manuel, born on August 9,
1991; and (3) Manuel Homer, born on July 4, 1994.4 Manuel and Leonida are both medical
practitioners, an anesthesiologist and a pediatrician, respectively.5
After eleven (11) years of marriage, Leonida filed a petition with the RTC in Las Pias City to
annul their marriage on the ground that Manuel was psychologically incapacitated to perform
his marital obligations. The case, docketed as LP-00-0132 was raffled off to Branch 254.
During the trial, Leonida testified that she first met Manuel in 1981 at the San Lazaro Hospital
where they worked as medical student clerks. At that time, she regarded Manuel as a very
thoughtful person who got along well with other people. They soon became sweethearts.
Three years after, they got married.6
Leonida averred that Manuel's kind and gentle demeanor did not last long. In the public eye,
Manuel was the picture of a perfect husband and father. This was not the case in his private

life. At home, Leonida described Manuel as a harsh disciplinarian, unreasonably meticulous,

easily angered. Manuel's unreasonable way of imposing discipline on their children was the
cause of their frequent fights as a couple.7 Leonida complained that this was in stark contrast
to the alleged lavish affection Manuel has for his mother. Manuel's deep attachment to his
mother and his dependence on her decision-making were incomprehensible to Leonida. 8
Further adding to her woes was his concealment to her of his homosexuality. Her suspicions
were first aroused when she noticed Manuel's peculiar closeness to his male companions.
For instance, she caught him in an indiscreet telephone conversation manifesting his
affection for a male caller.9She also found several pornographic homosexual materials in his
possession.10 Her worse fears were confirmed when she saw Manuel kissed another man on
the lips. The man was a certain Dr. Nogales.11 When she confronted Manuel, he denied
everything. At this point, Leonida took her children and left their conjugal abode. Since then,
Manuel stopped giving support to their children.12
Dr. Valentina del Fonso Garcia, a clinical psychologist, was presented to prove Leonida's
claim. Dr. del Fonso Garcia testified that she conducted evaluative interviews and a battery of
psychiatric tests on Leonida. She also had a one-time interview with Manuel and face-to-face
interviews with Ma. Paulina Corrinne (the eldest child). 13 She concluded that Manuel is
psychologically incapacitated.14Such incapacity is marked by antecedence; it existed even
before the marriage and appeared to be incurable.
Manuel, for his part, admitted that he and Leonida had some petty arguments here and there.
He, however, maintained that their marital relationship was generally harmonious. The
petition for annulment filed by Leonida came as a surprise to him.
Manuel countered that the true cause of Leonida's hostility against him was their professional
rivalry. It began when he refused to heed the memorandum 15 released by Christ the King
Hospital. The memorandum ordered him to desist from converting his own lying-in clinic to a
primary or secondary hospital.16 Leonida's family owns Christ the King Hospital which is
situated in the same subdivision as Manuel's clinic and residence. 17 In other words, he and
her family have competing or rival hospitals in the same vicinity.
Manuel belied her allegation that he was a cruel father to their children. He denied
maltreating them. At most, he only imposed the necessary discipline on the children.
He also defended his show of affection for his mother. He said there was nothing wrong for
him to return the love and affection of the person who reared and looked after him and his
siblings. This is especially apt now that his mother is in her twilight years. 18 Manuel pointed

out that Leonida found fault in this otherwise healthy relationship because of her very jealous
and possessive nature.19
This same overly jealous behavior of Leonida drove Manuel to avoid the company of female
friends. He wanted to avoid any further misunderstanding with his wife. But, Leonida instead
conjured up stories about his sexual preference. She also fabricated tales about pornographic
materials found in his possession to cast doubt on his masculinity.20
To corroborate his version, he presented his brother, Jesus G. Almelor. Jesus narrated that he
usually stayed at Manuel's house during his weekly trips to Manila from Iriga City. He was a
witness to the generally harmonious relationship between his brother Manuel and sister-inlaw, Leonida. True, they had some quarrels typical of a husband and wife relationship. But
there was nothing similar to what Leonida described in her testimony.21
Jesus further testified that he was with his brother on the day Leonida allegedly saw Manuel
kissed another man. He denied that such an incident occurred. On that particular date, 22 he
and Manuel went straight home from a trip to Bicol. There was no other person with them at
that time, except their driver.23
Manuel expressed his intention to refute Dr. del Fonso Garcia's findings by presenting his
own expert witness. However, no psychiatrist was presented.
RTC Disposition
By decision dated November 25, 2005, the RTC granted the petition for annulment, with the
following disposition:
WHEREFORE, premised on the foregoing, judgment is hereby rendered:
1. Declaring the marriage contracted by herein parties on 29 January 1989 and all its
effects under the law null and void from the beginning;
2. Dissolving the regime of community property between the same parties with
forfeiture of defendant's share thereon in favor of the same parties' children whose
legal custody is awarded to plaintiff with visitorial right afforded to defendant;

a. Directing the Branch Clerk of this Court to enter this Judgment upon its
finality in the Book of Entry of Judgment and to issue an Entry of Judgment in
accordance thereto; and
b. Directing the Local Civil Registrars of Las Pias City and Manila City to
cause the registration of the said Entry of Judgment in their respective Books
of Marriages.
Upon compliance, a decree of nullity of marriage shall be issued.
SO ORDERED.24 (Emphasis supplied)
The trial court nullified the marriage, not on the ground of Article 36, but Article 45 of the
Family Code. It ratiocinated:
x x x a careful evaluation and in-depth analysis of the surrounding circumstances of
the allegations in the complaint and of the evidence presented in support thereof (sic)
reveals that in this case (sic) there is more than meets the eyes (sic).
Both legally and biologically, homosexuality x x x is, indeed, generally incompatible
with hetero sexual marriage. This is reason enough that in this jurisdiction (sic) the
law recognizes marriage as a special contract exclusively only between a man and a
woman x x x and thus when homosexuality has trespassed into marriage, the same
law provides ample remedies to correct the situation [Article 45(3) in relation to Article
46(4) or Article 55, par. 6, Family Code]. This is of course in recognition of the
biological fact that no matter how a man cheats himself that he is not a homosexual
and forces himself to live a normal heterosexual life, there will surely come a time
when his true sexual preference as a homosexual shall prevail in haunting him and
thus jeopardizing the solidity, honor, and welfare of his own family.25
Manuel filed a notice of appeal which was, however, denied due course. Undaunted, he filed
a petition for annulment of judgment with the CA. 26
Manuel contended that the assailed decision was issued in excess of the lower court's
jurisdiction; that it had no jurisdiction to dissolve the absolute community of property and
forfeit his conjugal share in favor of his children.

3. Ordering the defendant to give monthly financial support to all the children; and
CA Disposition
4. Pursuant to the provisions of A.M. No. 02-11-10-SC:
On July 31, 2007, the CA denied the petition, disposing as follows:

WHEREFORE, the present Petition for Annulment of Judgment is hereby DENIED.

The Court AFFIRMS in toto the Decision (dated November 25, 2005) of the Regional
Trial Court (Branch 254), in Las Pias City, in Civil Case No. LP-00-0132. No costs. 27
The CA stated that petitioner pursued the wrong remedy by filing the extraordinary remedy of
petition for annulment of judgment. Said the appellate court:
It is obvious that the petitioner is questioning the propriety of the decision rendered
by the lower Court. But the remedy assuming there was a mistake is not a Petition for
Annulment of Judgment but an ordinary appeal. An error of judgment may be
reversed or corrected only by appeal.

THE HONORABLE COURT OF APPEALS ERRED IN UPHOLDING THE DECISION

OF THE TRIAL COURT AS REGARDS THE ORDER TO FORFEIT THE SHARE OF
PETITIONER IN HIS SHARE OF THE CONJUGAL ASSETS.29
Our Ruling
I. The stringent rules of procedures may be relaxed to serve the demands of
substantial justice and in the Court's exercise of equity jurisdiction.

What petitioner is ascribing is an error of judgment, not of jurisdiction, which is

properly the subject of an ordinary appeal.

Generally, an appeal taken either to the Supreme Court or the CA by the wrong or
inappropriate mode shall be dismissed.30 This is to prevent the party from benefiting from
one's neglect and mistakes. However, like most rules, it carries certain exceptions. After
all, the ultimate purpose of all rules of procedures is to achieve substantial justice as
expeditiously as possible.31

In short, petitioner admits the jurisdiction of the lower court but he claims excess in
the exercise thereof. "Excess" assuming there was is not covered by Rule 47 of the
1997 Rules of Civil Procedure. The Rule refers the lack of jurisdiction and not the
exercise thereof.28

Annulment of judgment under Rule 47 is a last remedy. It can not be resorted to if the
ordinary remedies are available or no longer available through no fault of
petitioner.32 However, in Buenaflor v. Court of Appeals,33 this Court clarified the proper
appreciation for technical rules of procedure, in this wise:

Issues
Petitioner Manuel takes the present recourse via Rule 45, assigning to the CA the following
errors:
I
THE HONORABLE COURT OF APPEALS ERRED IN NOT TREATING THE
PETITION FOR ANNULMENT OF JUDGMENT AS A PETITION FOR REVIEW IN
VIEW OF THE IMPORTANCE OF THE ISSUES INVOLVED AND IN THE INTEREST
OF JUSTICE;
II
THE HONORABLE COURT OF APPEALS ERRED IN UPHOLDING THE DECISION
OF THE TRIAL COURT AS REGARDS THE ORDER DECLARING THE MARRIAGE
AS NULL AND VOID ON THE GROUND OF PETITIONER'S PSYCHOLOGICAL
INCAPACITY;
III

Rules of procedures are intended to promote, not to defeat, substantial justice

and, therefore, they should not be applied in a very rigid and technical sense.
The exception is that while the Rules are liberally construed, the provisions
with respect to the rules on the manner and periods for perfecting appeals are
strictly applied. As an exception to the exception, these rules have sometimes
been relaxed on equitable considerations. Also, in some cases the Supreme Court
has given due course to an appeal perfected out of time where a stringent application
of the rules would have denied it, but only when to do so would serve the demands of
substantial justice and in the exercise of equity jurisdiction of the Supreme
Court.34(Emphasis and underscoring supplied)
For reasons of justice and equity, this Court has allowed exceptions to the stringent rules
governing appeals.35 It has, in the past, refused to sacrifice justice for technicality.36
After discovering the palpable error of his petition, Manuel seeks the indulgence of this Court
to consider his petition before the CA instead as a petition for certiorari under Rule 65.
A perusal of the said petition reveals that Manuel imputed grave abuse of discretion to the
lower court for annulling his marriage on account of his alleged homosexuality. This is not the
first time that this Court is faced with a similar situation. In Nerves v. Civil Service

Commission,37 petitioner Delia R. Nerves elevated to the CA a Civil Service Commission

(CSC) decision suspending her for six (6) months. The CSC ruled Nerves, a public school
teacher, is deemed to have already served her six-month suspension during the pendency of
the case. Nevertheless, she is ordered reinstated without back wages. On appeal, Nerves
stated in her petition, inter alia:
1. This is a petition for certiorari filed pursuant to Article IX-A, Section 7 of the
Constitution of the Philippines and under Rule 65 of the Rules of Court.
2. But per Supreme Court Revised Administrative Circular No. 1-95 (Revised Circular
No. 1-91) petitioner is filing the instant petition with this Honorable Court instead of
the Supreme Court.38(Underscoring supplied)
The CA dismissed Nerves' petition for certiorari for being the wrong remedy or the
inappropriate mode of appeal.39 The CA opined that "under the Supreme Court Revised
Administrative Circular No. 1-95 x x x appeals from judgments or final orders or resolutions of
CSC is by a petition for review."40
This Court granted Nerves petition and held that she had substantially complied with the
Administrative Circular. The Court stated:
That it was erroneously labeled as a petition for certiorari under Rule 65 of the Rules
of Court is only a minor procedural lapse, not fatal to the appeal. x x x
More importantly, the appeal on its face appears to be impressed with merit. Hence,
the Court of Appeals should have overlooked the insubstantial defects of the petition
x x x in order to do justice to the parties concerned. There is, indeed, nothing
sacrosanct about procedural rules, which should be liberally construed in order to
promote their object and assist the parties in obtaining just, speedy, and inexpensive
determination of every action or proceeding. As it has been said, where the rigid
application of the rules would frustrate substantial justice, or bar the vindication of a
legitimate grievance, the courts are justified in exempting a particular case from the
operation of the rules.41 (Underscoring supplied)
Similarly, in the more recent case of Tan v. Dumarpa,42 petitioner Joy G. Tan availed of a
wrong remedy by filing a petition for review on certiorari instead of a motion for new trial or an
ordinary appeal. In the interest of justice, this Court considered the petition, pro hac vice, as a
petition forcertiorari under Rule 65.

This Court found that based on Tan's allegations, the trial court prima facie committed grave
abuse of discretion in rendering a judgment by default. If uncorrected, it will cause petitioner
great injustice. The Court elucidated in this wise:
Indeed, where as here, there is a strong showing that grave miscarriage of justice
would result from the strict application of the Rules, we will not hesitate to relax the
same in the interest of substantial justice.43 (Underscoring supplied)
Measured by the foregoing yardstick, justice will be better served by giving due course to the
present petition and treating petitioner's CA petition as one for certiorari under Rule 65,
considering that what is at stake is the validity or non-validity of a marriage.
In Salazar v. Court of Appeals,44 citing Labad v. University of Southeastern Philippines, this
Court reiterated:
x x x The dismissal of appeals on purely technical grounds is frowned upon. While
the right to appeal is a statutory, not a natural right, nonetheless it is an essential part
of our judicial system and courts should proceed with caution so as not to deprive a
party of the right to appeal, but rather, ensure that every party-litigant has the amplest
opportunity for the proper and just disposition of his cause, free from the constraints
of technicalities.45
Indeed, it is far better and more prudent for a court to excuse a technical lapse and afford the
parties a review of the case on the merits to attain the ends of justice. 46
Furthermore, it was the negligence and incompetence of Manuel's counsel that prejudiced his
right to appeal. His counsel, Atty. Christine Dugenio, repeatedly availed of inappropriate
remedies. After the denial of her notice of appeal, she failed to move for reconsideration or
new trial at the first instance. She also erroneously filed a petition for annulment of judgment
rather than pursue an ordinary appeal.
These manifest errors were clearly indicative of counsel's incompetence. These gravely
worked to the detriment of Manuel's appeal. True it is that the negligence of counsel binds the
client. Still, this Court has recognized certain exceptions: (1) where reckless or gross
negligence of counsel deprives the client of due process of law; (2) when its application will
result in outright deprivation of the client's liberty and property; or (3) where the interest of
justice so require.47
The negligence of Manuel's counsel falls under the exceptions. Ultimately, the reckless or
gross negligence of petitioner's former counsel led to the loss of his right to appeal. He

should not be made to suffer for his counsel's grave mistakes. Higher interests of justice and
equity demand that he be allowed to ventilate his case in a higher court.

The trial court declared that Leonida's petition for nullity had "no basis at all because the
supporting grounds relied upon can not legally make a case under Article 36 of the
Family Code." It went further by citing Republic v. Molina:54

In Apex Mining, Inc. v. Court of Appeals,48 this Court explained thus:

It is settled that the negligence of counsel binds the client. This is based on the rule
that any act performed by a counsel within the scope of his general or implied
authority is regarded as an act of his client. However, where counsel is guilty of gross
ignorance, negligence and dereliction of duty, which resulted in the client's being held
liable for damages in a damage suit, the client is deprived of his day in court and the
judgment may be set aside on such ground. In the instant case, higher interests of
justice and equity demand that petitioners be allowed to present evidence on their
defense. Petitioners may not be made to suffer for the lawyer's mistakes. This Court
will always be disposed to grant relief to parties aggrieved by perfidy, fraud,
reckless inattention and downright incompetence of lawyers, which has the
consequence of depriving their clients, of their day in court.49 (Emphasis
supplied)
Clearly, this Court has the power to except a particular case from the operation of the rule
whenever the demands of justice require it. With more conviction should it wield such power
in a case involving the sacrosanct institution of marriage. This Court is guided with the thrust
of giving a party the fullest opportunity to establish the merits of one's action. 50
The client was likewise spared from counsel's negligence in Government Service Insurance
System v. Bengson Commercial Buildings, Inc.51 and Ancheta v. Guersey-Dalaygon.52 Said
the Court in Bengson:
But if under the circumstances of the case, the rule deserts its proper office as an aid
to justice and becomes a great hindrance and chief enemy, its rigors must be relaxed
to admit exceptions thereto and to prevent a miscarriage of justice. In other words,
the court has the power to except a particular case from the operation of the rule
whenever the purposes of justice require it.53
II. Concealment of homosexuality is the proper ground to annul a marriage, not
homosexuality per se.
Manuel is a desperate man determined to salvage what remains of his marriage. Persistent in
his quest, he fought back all the heavy accusations of incapacity, cruelty, and doubted
masculinity thrown at him.

Indeed, mere allegations of conflicting personalities, irreconcilable differences,

incessant quarrels and/or beatings, unpredictable mood swings, infidelities, vices,
abandonment, and difficulty, neglect, or failure in the performance of some marital
obligations do not suffice to establish psychological incapacity.55
If so, the lower court should have dismissed outright the petition for not meeting the
guidelines set in Molina. What Leonida attempted to demonstrate were Manuel's homosexual
tendencies by citing overt acts generally predominant among homosexual individuals. 56 She
wanted to prove that the perceived homosexuality rendered Manuel incapable of fulfilling the
essential marital obligations.
But instead of dismissing the petition, the trial court nullified the marriage between Manuel
and Leonida on the ground of vitiated consent by virtue of fraud. In support of its conclusion,
the lower court reasoned out:
As insinuated by the State (p. 75, TSN, 15 December 2003), when there is smoke
surely there is fire. Although vehemently denied by defendant, there is preponderant
evidence enough to establish with certainty that defendant is really a homosexual.
This is the fact that can bededuced from the totality of the marriage life scenario of
herein parties.
Before his marriage, defendant knew very well that people around him even including
his own close friends doubted his true sexual preference (TSN, pp. 35-36, 13
December 2000; pp. 73-75, 15 December 2003). After receiving many forewarnings,
plaintiff told defendant about the rumor she heard but defendant did not do anything
to prove to the whole world once and for all the truth of all his denials. Defendant
threatened to sue those people but nothing happened after that. There may have
been more important matters to attend to than to waste time and effort filing cases
against and be effected by these people and so, putting more premiums on
defendant's denials, plaintiff just the same married him. Reasons upon reasons may
be advanced to either exculpate or nail to the cross defendant for his act of initially
concealing his homosexuality to plaintiff, but in the end, only one thing is certain even during his marriage with plaintiff, the smoke of doubt about his real preference
continued and even got thicker, reason why obviously defendant failed to establish a
happy and solid family; and in so failing, plaintiff and their children became his
innocent and unwilling victims.

Yes, there is nothing untoward of a man if, like herein defendant, he is meticulous
over even small details in the house (sic) like wrongly folded bed sheets, etc. or if a
man is more authoritative in knowing what clothes or jewelry shall fit his wife (pp. 7781, TSN, 15 December 2003); but these admissions of defendant taken in the light of
evidence presented apparently showing that he had extra fondness of his male
friends (sic) to the extent that twice on separate occasions (pp. 4-7, TSN, 14
February 2001) he was allegedly seen by plaintiff kissing another man lips-to-lips
plus the homosexual magazines and tapes likewise allegedly discovered underneath
his bed (Exhibits "L" and "M"), the doubt as to his real sex identity becomes stronger.
The accusation of plaintiff versus thereof of defendant may be the name of the game
in this case; but the simple reason of professional rivalry advanced by the defendant
is certainly not enough to justify and obscure the question why plaintiff should accuse
him of such a very untoward infidelity at the expense and humiliation of their children
and family as a whole.57
Evidently, no sufficient proof was presented to substantiate the allegations that Manuel is a
homosexual and that he concealed this to Leonida at the time of their marriage. The lower
court considered the public perception of Manuel's sexual preference without the
corroboration of witnesses. Also, it took cognizance of Manuel's peculiarities and interpreted it
against his sexuality.
Even assuming, ex gratia argumenti, that Manuel is a homosexual, the lower court cannot
appreciate it as a ground to annul his marriage with Leonida. The law is clear - a marriage
may be annulled when the consent of either party was obtained by fraud, 58 such as
concealment of homosexuality.59Nowhere in the said decision was it proven by
preponderance of evidence that Manuel was a homosexual at the onset of his marriage and
that he deliberately hid such fact to his wife.60 It is the concealment of homosexuality, and not
homosexuality per se, that vitiates the consent of the innocent party. Such concealment
presupposes bad faith and intent to defraud the other party in giving consent to the marriage.
Consent is an essential requisite of a valid marriage. To be valid, it must be freely given by
both parties. An allegation of vitiated consent must be proven by preponderance of evidence.
The Family Code has enumerated an exclusive list of circumstances61 constituting fraud.
Homosexuality per se is not among those cited, but its concealment.
This distinction becomes more apparent when we go over the deliberations 62 of the
Committees on the Civil Code and Family Law, to wit:
Justice Caguioa remarked that this ground should be eliminated in the provision on
the grounds for legal separation. Dean Gupit, however, pointed out that in Article 46,

they are talking only of "concealment," while in the article on legal separation, there is
actuality. Judge Diy added that in legal separation, the ground existed after the
marriage, while in Article 46, the ground existed at the time of the marriage. Justice
Reyes suggested that, for clarity, they add the phrase "existing at the time of the
marriage" at the end of subparagraph (4). The Committee approved the suggestion. 63
To reiterate, homosexuality per se is only a ground for legal separation. It is its concealment
that serves as a valid ground to annul a marriage. 64 Concealment in this case is not simply a
blanket denial, but one that is constitutive of fraud. It is this fundamental element that
respondent failed to prove.
In the United States, homosexuality has been considered as a basis for divorce. It indicates
that questions of sexual identity strike so deeply at one of the basic elements of marriage,
which is the exclusive sexual bond between the spouses. 65 In Crutcher v. Crutcher,66 the
Court held:
Unnatural practices of the kind charged here are an infamous indignity to the wife,
and which would make the marriage relation so revolting to her that it would become
impossible for her to discharge the duties of a wife, and would defeat the whole
purpose of the relation. In the natural course of things, they would cause mental
suffering to the extent of affecting her health.67
However, although there may be similar sentiments here in the Philippines, the legal
overtones are significantly different. Divorce is not recognized in the country. Homosexuality
and its alleged incompatibility to a healthy heterosexual life are not sanctioned as grounds to
sever the marriage bond in our jurisdiction. At most, it is only a ground to separate from bed
and board.
What was proven in the hearings a quo was a relatively blissful marital union for more than
eleven (11) years, which produced three (3) children. The burden of proof to show the nullity
of the marriage rests on Leonida. Sadly, she failed to discharge this onus.
The same failure to prove fraud which purportedly resulted to a vitiated marital consent was
found inVillanueva v. Court of Appeals.68 In Villanueva, instead of proving vitiation of consent,
appellant resorted to baseless portrayals of his wife as a perpetrator of fraudulent schemes.
Said the Court:
Factual findings of the Court of Appeals, especially if they coincide with those of the
trial court, as in the instant case, are generally binding on this Court. We affirm the
findings of the Court of Appeals that petitioner freely and voluntarily married private

respondent and that no threats or intimidation, duress or violence compelled him to

do so, thus -

III. In a valid marriage, the husband and wife jointly administer and enjoy their
community or conjugal property.

Appellant anchored his prayer for the annulment of his marriage on the ground that
he did not freely consent to be married to the appellee. He cited several incidents that
created on his mind a reasonable and well-grounded fear of an imminent and grave
danger to his life and safety. x x x

Article 96 of the Family Code, on regimes of absolute community property, provides:

The Court is not convinced that appellant's apprehension of danger to his person is
so overwhelming as to deprive him of the will to enter voluntarily to a contract of
marriage. It is not disputed that at the time he was allegedly being harassed,
appellant worked as a security guard in a bank. Given the rudiments of self-defense,
or, at the very least, the proper way to keep himself out of harm's way. x x x
Appellant also invoked fraud to annul his marriage, as he was made to believe by
appellee that the latter was pregnant with his child when they were married.
Appellant's excuse that he could not have impregnated the appellee because he did
not have an erection during their tryst is flimsy at best, and an outright lie at worst.
The complaint is bereft of any reference to his inability to copulate with the appellee.
xxx
xxxx
x x x The failure to cohabit becomes relevant only if it arises as a result of the
perpetration of any of the grounds for annulling the marriage, such as lack of parental
consent, insanity, fraud, intimidation, or undue influence x x x. Since the appellant
failed to justify his failure to cohabit with the appellee on any of these grounds, the
validity of his marriage must be upheld.69
Verily, the lower court committed grave abuse of discretion, not only by solely taking into
account petitioner's homosexuality per se and not its concealment, but by declaring the
marriage void from its existence.
This Court is mindful of the constitutional policy to protect and strengthen the family as the
basicautonomous social institution and marriage as the foundation of the family.70 The State
and the public have vital interest in the maintenance and preservation of these social
institutions against desecration by fabricated evidence. 71 Thus, any doubt should be resolved
in favor of the validity of marriage.

Art. 96. The administration and enjoyment of the community property shall belong to
both spouses jointly. In case of disagreement, the husband's decision shall prevail,
subject to recourse to the court by the wife for a proper remedy, which must be
availed of within five years from the date of the contract implementing such decision.
In the event that one spouse is incapacitated or otherwise unable to participate in the
administration of the common properties, the other spouse may assume sole powers
of administration. These powers do not include the powers of disposition or
encumbrance without the authority of the court or the written consent of the other
spouse. In the absence of such authority or consent, the disposition or encumbrance
shall be void. However, the transaction shall be construed as a continuing offer on
the part of the consenting spouse and the third person, and may be perfected as a
binding contract upon the acceptance by the other spouse or authorization by the
court before the offer is withdrawn by either or both offerors.
A similar provision, Article 12472 prescribes joint administration and enjoyment in a regime of
conjugal partnership. In a valid marriage, both spouses exercise administration and
enjoyment of the property regime, jointly.
In the case under review, the RTC decreed a dissolution of the community property of Manuel
and Leonida. In the same breath, the trial court forfeited Manuel's share in favor of the
children. Considering that the marriage is upheld valid and subsisting, the dissolution and
forfeiture of Manuel's share in the property regime is unwarranted. They remain the joint
administrators of the community property.
WHEREFORE, the petition is GRANTED. The appealed Decision is REVERSED and SET
ASIDEand the petition in the trial court to annul the marriage is DISMISSED.
SO ORDERED.