1 ARTICLE 40 Petitioner, in defending her marriage to private respondent, pointed out

that his claim that their marriage was contracted without a valid license is
G.R. No. 127406               November 27, 2000 untrue. She submitted their Marriage License No. 5739990 issued at
Rosario, Cavite on April 3, 1979, as Exh. 11, 12 and 12-A. He did not question
OFELIA P. TY, petitioner,  this document when it was submitted in evidence. Petitioner also submitted
the decision of the Juvenile and Domestic Relations Court of Quezon City
vs.
dated August 4, 1980, which declared null and void his civil marriage to
THE COURT OF APPEALS, and EDGARDO M. REYES, respondents.
Anna Maria Regina Villanueva celebrated on March 29, 1977, and his church
marriage to said Anna Maria on August 27, 1977. These documents were
DECISION submitted as evidence during trial and, according to petitioner, are
therefore deemed sufficient proof of the facts therein. The fact that the civil
QUISUMBING, J.: marriage of private respondent and petitioner took place on April 4, 1979,
before the judgment declaring his prior marriage as null and void is
This appeal seeks the reversal of the decision dated July 24, 1996, of the undisputed. It also appears indisputable that private respondent and
Court of Appeals in C.A. – G.R. CV 37897, which affirmed the decision of the petitioner had a church wedding ceremony on April 4, 1982.1
Regional Trial Court of Pasig, Branch 160, declaring the marriage contract
between private respondent Edgardo M. Reyes and petitioner Ofelia P. Ty The Pasig RTC sustained private respondent’s civil suit and declared his
null and void ab initio. It also ordered private respondent to pay P15,000.00 marriage to herein petitioner null and void ab initio in its decision dated
as monthly support for their children Faye Eloise Reyes and Rachel Anne November 4, 1991. Both parties appealed to respondent Court of Appeals.
Reyes. On July 24, 1996, the appellate court affirmed the trial court’s decision. It
ruled that a judicial declaration of nullity of the first marriage (to Anna
As shown in the records of the case, private respondent married Anna Maria Maria) must first be secured before a subsequent marriage could be validly
Regina Villanueva in a civil ceremony on March 29, 1977, in Manila. Then contracted. Said the appellate court:
they had a church wedding on August 27, 1977. However, on August 4,
1980, the Juvenile and Domestic Relations Court of Quezon City declared We can accept, without difficulty, the doctrine cited by defendant’s counsel
their marriage null and void ab initio for lack of a valid marriage license. The that ‘no judicial decree is necessary to establish the invalidity of void
church wedding on August 27, 1977, was also declared null and void ab marriages.’ It does not say, however, that a second marriage may proceed
initio for lack of consent of the parties. even without a judicial decree. While it is true that if a marriage is null and
void, ab initio, there is in fact no subsisting marriage, we are unwilling to
Even before the decree was issued nullifying his marriage to Anna Maria, rule that the matter of whether a marriage is valid or not is for each
private respondent wed Ofelia P. Ty, herein petitioner, on April 4, 1979, in married spouse to determine for himself – for this would be the
ceremonies officiated by the judge of the City Court of Pasay. On April 4, consequence of allowing a spouse to proceed to a second marriage even
1982, they also had a church wedding in Makati, Metro Manila. before a competent court issues a judicial decree of nullity of his first
marriage. The results would be disquieting, to say the least, and could
On January 3, 1991, private respondent filed a Civil Case 1853-J with the not have been the intendment of even the now-repealed provisions of
RTC of Pasig, Branch 160, praying that his marriage to petitioner be the Civil Code on marriage.
declared null and void. He alleged that they had no marriage license when
they got married. He also averred that at the time he married petitioner, he xxx
was still married to Anna Maria. He stated that at the time he married
petitioner the decree of nullity of his marriage to Anna Maria had not been
WHEREFORE, upon the foregoing ratiocination, We modify the appealed
issued. The decree of nullity of his marriage to Anna Maria was rendered
Decision in this wise:
only on August 4, 1980, while his civil marriage to petitioner took place on
April 4, 1979.
 1. The marriage contracted by plaintiff-appellant [herein private In sustaining the trial court, the Court of Appeals declared the marriage of
respondent] Eduardo M. Reyes and defendant-appellant [herein petitioner to private respondent null and void for lack of a prior judicial
petitioner] Ofelia P. Ty is declared null and void ab initio; decree of nullity of the marriage between private respondent and
Villanueva. The appellate court rejected petitioner’s claim that People v.
2. Plaintiff-appellant Eduardo M. Reyes is ordered to give monthly Mendoza3 and People v. Aragon4 are applicable in this case. For these cases
support in the amount of P15,000.00 to his children Faye Eloise held that where a marriage is void from its performance, no judicial decree
Reyes and Rachel Anne Reyes from November 4, 1991; and is necessary to establish its invalidity. But the appellate court said these
cases, decided before the enactment of the Family Code (E.O. No. 209 as
3. Cost against plaintiff-appellant Eduardo M. Reyes. amended by E.O No. 227), no longer control. A binding decree is now needed
and must be read into the provisions of law previously obtaining.5
SO ORDERED.2
In refusing to consider petitioner’s appeal favorably, the appellate court also
Petitioner’s motion for reconsideration was denied. Hence, this instant said:
petition asserting that the Court of Appeals erred:
Terre v. Attorney Terre, Adm. Case No. 2349, 3 July 1992 is mandatory
I. precedent for this case. Although decided by the High Court in 1992, the
facts situate it within the regime of the now-repealed provisions of the Civil
Code, as in the instant case.
BOTH IN THE DECISION AND THE RESOLUTION, IN REQUIRING
FOR THE VALIDITY OF PETITIONER’S MARRIAGE TO
RESPONDENT, A JUDICIAL DECREE NOT REQUIRED BY LAW. xxx

II 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. . . .6
IN THE RESOLUTION, IN APPLYING THE RULING IN DOMINGO VS.
COURT OF APPEALS.
At the outset, we must note that private respondent’s first and second
marriages contracted in 1977 and 1979, respectively, are governed by the
III
provisions of the Civil Code. The present case differs significantly from the
recent cases of Bobis v. Bobis7 and Mercado v. Tan,8 both involving
IN BOTH THE DECISION AND RESOLUTION IN NOT CONSIDERING a criminal case for bigamy where the bigamous marriage was contracted
THE CIVIL EFFECTS OF THE RELIGIOUS RATIFICATION WHICH during the effectivity of the Family Code,9 under which a judicial declaration
USED THE SAME MARRIAGE LICENSE. of nullity of marriage is clearly required.

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

that:
IN THE DECISION NOT GRANTING MORAL AND EXEMPLARY
DAMAGES TO THE DEFENDANT-APPELLANT. 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
The principal issue in this case is whether the decree of nullity of the first first spouse shall be illegal and void from its performance, unless:
marriage is required before a subsequent marriage can be entered into
validly? To resolve this question, we shall go over applicable laws and (1) The first marriage was annulled or dissolved; or
pertinent cases to shed light on the assigned errors, particularly the first and
the second which we shall discuss jointly.
 (2) The first spouse had been absent for seven consecutive years at decree is necessary to establish the invalidity of void marriages. This ruling
the time of the second marriage without the spouse present having was affirmed in Tolentino v. Paras.16
news of the absentee being alive, or if the absentee, though he has
been absent for less than seven years, is generally considered as Yet again in Wiegel v. Sempio-Diy (1986),17 the Court held that there is a need
dead and before any person believed to be so by the spouse present for a judicial declaration of nullity of a void marriage. In Wiegel, Lilia
at the time of contracting such subsequent marriage, or if the married Maxion in 1972. In 1978, she married another man, Wiegel. Wiegel
absentee is presumed dead according to articles 390 and 391. The filed a petition with the Juvenile Domestic Relations Court to declare his
marriage so contracted shall be valid in any of the three cases until marriage to Lilia as void on the ground of her previous valid marriage. The
declared null and void by a competent court. Court, expressly relying on Consuegra, concluded that:18

As to whether a judicial declaration of nullity of a void marriage is There is likewise no need of introducing evidence about the existing prior
necessary, the Civil Code contains no express provision to that effect. marriage of her first husband at the time they married each other, for then
Jurisprudence on the matter, however, appears to be conflicting. such a marriage though void still needs according to this Court a judicial
declaration (citing Consuegra) of such fact and for all legal intents and
Originally, in People v. Mendoza,10 and People v. Aragon,11 this Court held that purposes she would still be regarded as a married woman at the time she
no judicial decree is necessary to establish the nullity of a void marriage. contracted her marriage with respondent Karl Heinz Wiegel; accordingly,
Both cases involved the same factual milieu. Accused contracted a second the marriage of petitioner and respondent would be regarded VOID under
marriage during the subsistence of his first marriage. After the death of his the law. (Emphasis supplied).
first wife, accused contracted a third marriage during the subsistence of the
second marriage. The second wife initiated a complaint for bigamy. The In Yap v. Court of Appeals,19 however, the Court found the second marriage
Court acquitted accused on the ground that the second marriage is void, void without need of judicial declaration, thus reverting to the Odayat,
having been contracted during the existence of the first marriage. There is Mendoza and Aragon rulings.
no need for a judicial declaration that said second marriage is void. Since the
second marriage is void, and the first one terminated by the death of his At any rate, the confusion under the Civil Code was put to rest under the
wife, there are no two subsisting valid marriages. Hence, there can be no Family Code. Our rulings in Gomez, Consuegra, and Wiegel were eventually
bigamy. Justice Alex Reyes dissented in both cases, saying that it is not for embodied in Article 40 of the Family Code.20 Article 40 of said Code
the spouses but the court to judge whether a marriage is void or not. expressly required a judicial declaration of nullity of marriage –

In Gomez v. Lipana,12 and Consuegra v. Consuegra,13 however, we recognized Art. 40. The absolute nullity of a previous marriage may be invoked for
the right of the second wife who entered into the marriage in good faith, to purposes of remarriage on the basis solely of a final judgment declaring
share in their acquired estate and in proceeds of the retirement insurance of such previous marriage void.
the husband. The Court observed that although the second marriage can be
presumed to be void ab initio as it was celebrated while the first marriage In Terre v. Terre (1992)21 the Court, applying Gomez,
was still subsisting, still there was a need for judicial declaration of such Consuegra and Wiegel, categorically stated that a judicial declaration of
nullity (of the second marriage). And since the death of the husband nullity of a void marriage is necessary. Thus, we disbarred a lawyer for
supervened before such declaration, we upheld the right of the second wife contracting a bigamous marriage during the subsistence of his first
to share in the estate they acquired, on grounds of justice and equity.14 marriage. He claimed that his first marriage in 1977 was void since his first
wife was already married in 1968. We held that Atty. Terre should have
But in Odayat v. Amante (1977),15 the Court adverted known that the prevailing case law is that "for purposes of determining
to Aragon and Mendoza as precedents. We exonerated a clerk of court of the whether a person is legally free to contract a second marriage, a judicial
charge of immorality on the ground that his marriage to Filomena Abella in declaration that the first marriage was null and void ab initio is essential."
October of 1948 was void, since she was already previously married to one
Eliseo Portales in February of the same year. The Court held that no judicial
The Court applied this ruling in subsequent cases. In Domingo v. Court of ceremony, we find that petitioner now has raised this matter properly.
Appeals (1993),22 the Court held: Earlier petitioner claimed as untruthful private respondent’s allegation that
he wed petitioner but they lacked a marriage license. Indeed we find there
Came the Family Code which settled once and for all the conflicting was a marriage license, though it was the same license issued on April 3,
jurisprudence on the matter. A declaration of absolute nullity of marriage is 1979 and used in both the civil and the church rites. Obviously, the church
now explicitly required either as a cause of action or a ground for defense. ceremony was confirmatory of their civil marriage. As petitioner contends,
(Art. 39 of the Family Code). Where the absolute nullity of a previous the appellate court erred when it refused to recognize the validity and
marriage is sought to be invoked for purposes of contracting a second salutary effects of said canonical marriage on a technicality, i.e. that
marriage, the sole basis acceptable in law for said projected marriage to be petitioner had failed to raise this matter as affirmative defense during trial.
free from legal infirmity is a final judgment declaring the previous marriage She argues that such failure does not prevent the appellate court from giving
void. (Family Code, Art. 40; See also arts. 11, 13, 42, 44, 48, 50, 52, 54, 86, 99, her defense due consideration and weight. She adds that the interest of the
147, 148).23 State in protecting the inviolability of marriage, as a legal and social
institution, outweighs such technicality. In our view, petitioner and private
However, a recent case applied the old rule because of the peculiar respondent had complied with all the essential and formal requisites for a
circumstances of the case. In Apiag v. Cantero, (1997)24 the first wife charged valid marriage, including the requirement of a valid license in the first of the
a municipal trial judge of immorality for entering into a second marriage. two ceremonies. That this license was used legally in the celebration of the
The judge claimed that his first marriage was void since he was merely civil ceremony does not detract from the ceremonial use thereof in the
forced into marrying his first wife whom he got pregnant. On the issue of church wedding of the same parties to the marriage, for we hold that the
nullity of the first marriage, we applied Odayat, Mendoza and Aragon. We latter rites served not only to ratify but also to fortify the first. The appellate
held that since the second marriage took place and all the children court might have its reasons for brushing aside this possible defense of the
thereunder were born before the promulgation of Wiegel and the effectivity defendant below which undoubtedly could have tendered a valid issue, but
of the Family Code, there is no need for a judicial declaration of nullity of the which was not timely interposed by her before the trial court. But we are
first marriage pursuant to prevailing jurisprudence at that time. now persuaded we cannot play blind to the absurdity, if not inequity, of
letting the wrongdoer profit from what the CA calls "his own deceit and
Similarly, in the present case, the second marriage of private respondent perfidy."
was entered into in 1979, before Wiegel. At that time, the prevailing rule
was found in Odayat, Mendoza and Aragon. The first marriage of private On the matter of petitioner’s counterclaim for damages and attorney’s
respondent being void for lack of license and consent, there was no need for fees.1âwphi1 Although the appellate court admitted that they found private
judicial declaration of its nullity before he could contract a second marriage. respondent acted "duplicitously and craftily" in marrying petitioner, it did
In this case, therefore, we conclude that private respondent’s second not award moral damages because the latter did not adduce evidence to
marriage to petitioner is valid. support her claim.26

Moreover, we find that the provisions of the Family Code cannot be Like the lower courts, we are also of the view that no damages should be
retroactively applied to the present case, for to do so would prejudice the awarded in the present case, but for another reason. Petitioner wants her
vested rights of petitioner and of her children. As held in Jison v. Court of marriage to private respondent held valid and subsisting. She is suing to
Appeals,25 the Family Code has retroactive effect unless there be impairment maintain her status as legitimate wife. In the same breath, she asks for
of vested rights. In the present case, that impairment of vested rights of damages from her husband for filing a baseless complaint for annulment of
petitioner and the children is patent. Additionally, we are not quite prepared their marriage which caused her mental anguish, anxiety, besmirched
to give assent to the appellate court’s finding that despite private reputation, social humiliation and alienation from her parents. Should we
respondent’s "deceit and perfidy" in contracting marriage with petitioner, grant her prayer, we would have a situation where the husband pays the
he could benefit from her silence on the issue. Thus, coming now to the civil wife damages from conjugal or common funds. To do so, would make the
effects of the church ceremony wherein petitioner married private application of the law absurd. Logic, if not common sense, militates against
respondent using the marriage license used three years earlier in the civil such incongruity. Moreover, our laws do not comprehend an action for
damages between husband and wife merely because of breach of a marital
obligation.27There are other remedies.28

WHEREFORE, the petition is GRANTED. The assailed Decision of the Court

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

SO ORDERED.
2 ARTICLE 40 cohabiting with another woman; she further discovered that he had been
disposing of some of her properties without her knowledge or consent; she
G.R. No. 104818 September 17, 1993 confronted him about this and thereafter appointed her brother Moises R.
Avera as her attorney-in-fact to take care of her properties; he failed and
ROBERTO DOMINGO, petitioner,  refused to turn over the possession and administration of said properties to
her brother/attorney-in-fact; and he is not authorized to administer and
vs.
possess the same on account of the nullity of their marriage. The petition
COURT OF APPEALS and DELIA SOLEDAD AVERA represented by
prayed that a temporary restraining order or a writ of preliminary
her Attorney-in-Fact MOISES R. AVERA, respondents. injunction be issued enjoining Roberto from exercising any act of
administration and ownership over said properties; their marriage be
Jose P.O. Aliling IV for petitioner. declared null and void and of no force and effect; and Delia Soledad be
declared the sole and exclusive owner of all properties acquired at the time
De Guzman, Meneses & Associates for private respondent. of their void marriage and such properties be placed under the proper
management and administration of the attorney-in-fact.

Petitioner filed a Motion to Dismiss on the ground that the petition stated no
ROMERO, J.: cause of action. The marriage being void ab initio, the petition for the
declaration of its nullity is, therefore, superfluous and unnecessary. It added
The instant petition seeks the reversal of respondent court's ruling finding that private respondent has no property which is in his possession.
no grave abuse of discretion in the lower court's order denying petitioner's
motion to dismiss the petition for declaration of nullity of marriage and On August 20, 1991, Judge Maria Alicia M. Austria issued an Order denying
separation of property. the motion to dismiss for lack of merit. She explained:

On May 29, 1991, private respondent Delia Soledad A. Domingo filed a Movant argues that a second marriage contracted after a
petition before the Regional Trial Court of Pasig entitled "Declaration of first marriage by a man with another woman is illegal and
Nullity of Marriage and Separation of Property" against petitioner Roberto void (citing the case of Yap v. Court of Appeals, 145 SCRA
Domingo. The petition which was docketed as Special Proceedings No. 229) and no judicial decree is necessary to establish the
1989-J alleged among others that: they were married on November 29, 1976 invalidity of a void marriage (citing the cases of People v.
at the YMCA Youth Center Bldg., as evidenced by a Marriage Contract Aragon, 100 Phil. 1033; People v. Mendoza, 95 Phil. 845).
Registry No. 1277K-76 with Marriage License No. 4999036 issued at Indeed, under the Yap case there is no dispute that the
Carmona, Cavite; unknown to her, he had a previous marriage with one second marriage contracted by respondent with herein
Emerlina dela Paz on April 25, 1969 which marriage is valid and still petitioner after a first marriage with another woman is
existing; she came to know of the prior marriage only sometime in 1983 illegal and void. However, as to whether or not the second
when Emerlina dela Paz sued them for bigamy; from January 23 1979 up to marriage should first be judicially declared a nullity is not
the present, she has been working in Saudi Arabia and she used to come to an issue in said case. In the case of Vda. de Consuegra v. GSIS,
the Philippines only when she would avail of the one-month annual vacation the Supreme Court ruled in explicit terms, thus:
leave granted by her foreign employer since 1983 up to the present, he has
been unemployed and completely dependent upon her for support and And with respect to the right of the second
subsistence; out of her personal earnings, she purchased real and personal wife, this Court observed that although the
properties with a total amount of approximately P350,000.00, which are second marriage can be presumed to be
under the possession and administration of Roberto; sometime in June void ab initio as it was celebrated while the
1989, while on her one-month vacation, she discovered that he was first marriage was still subsisting, still there
 is need for judicial declaration of its nullity. an answer, proceed with the trial and in case of an adverse decision,
(37 SCRA 316, 326) reiterate the issue on appeal. The motion for reconsideration was
subsequently denied for lack of merit.5
The above ruling which is of later vintage
deviated from the previous rulings of the Hence, this petition.
Supreme Court in the aforecited cases of
Aragon and Mendoza. The two basic issues confronting the Court in the instant case are the
following.
Finally, the contention of respondent
movant that petitioner has no property in First, whether or not a petition for judicial declaration of a void marriage is
his possession is an issue that may be necessary. If in the affirmative, whether the same should be filed only for
determined only after trial on the merits.1 purposes of remarriage.

A motion for reconsideration was filed stressing the erroneous application Second, whether or not SP No. 1989-J is the proper remedy of private
of Vda. de Consuegra v. GSIS2 and the absence of justiciable controversy as to respondent to recover certain real and personal properties allegedly
the nullity of the marriage. On September 11, 1991, Judge Austria denied the belonging to her exclusively.
motion for reconsideration and gave petitioner fifteen (15) days from
receipt within which to file his answer. Petitioner, invoking the ruling in People v. Aragon6 and People
v. Mendoza,7 contends that SP. No. 1989-J for Declaration of Nullity of
Instead of filing the required answer, petitioner filed a special civil action Marriage and Separation of Property filed by private respondent must be
of certiorari and mandamus on the ground that the lower court acted with dismissed for being unnecessary and superfluous. Furthermore, under his
grave abuse of discretion amounting to lack of jurisdiction in denying the own interpretation of Article 40 of the Family Code, he submits that a
motion to dismiss. petition for declaration of absolute nullity of marriage is required only for
purposes of remarriage. Since the petition in SP No. 1989-J contains no
On February 7, 1992, the Court of Appeals3 dismissed the petition. It allegation of private respondent's intention to remarry, said petition should
explained that the case of Yap v. CA4 cited by petitioner and that therefore, be dismissed.
of Consuegra v. GSIS relied upon by the lower court do not have relevance in
the case at bar, there being no identity of facts because these cases dealt On the other hand, private respondent insists on the necessity of a judicial
with the successional rights of the second wife while the instant case prays declaration of the nullity of their marriage, not for purposes of remarriage,
for separation of property corollary with the declaration of nullity of but in order to provide a basis for the separation and distribution of the
marriage. It observed that the separation and subsequent distribution of the properties acquired during coverture.
properties acquired during the union can be had only upon proper
determination of the status of the marital relationship between said parties, There is no question that the marriage of petitioner and private respondent
whether or not the validity of the first marriage is denied by petitioner. celebrated while the former's previous marriage with one Emerlina de la
Furthermore, in order to avoid duplication and multiplicity of suits, the Paz was still subsisting, is bigamous. As such, it is from the
declaration of nullity of marriage may be invoked in this proceeding beginning.8 Petitioner himself does not dispute the absolute nullity of their
together with the partition and distribution of the properties involved. marriage.9
Citing Articles 48, 50 and 52 of the Family Code, it held that private
respondent's prayer for declaration of absolute nullity of their marriage The cases of People v. Aragon and People v. Mendoza relied upon by
may be raised together with other incidents of their marriage such as the petitioner are cases where the Court had earlier ruled that no judicial decree
separation of their properties. Lastly, it noted that since the Court has is necessary to establish the invalidity of a void, bigamous marriage. It is
jurisdiction, the alleged error in refusing to grant the motion to dismiss is
merely one of law for which the remedy ordinarily would have been to file
noteworthy to observe that Justice Alex Reyes, however, dissented on these marriage is now explicitly required either as a cause of action or a ground
occasions stating that: for defense. 14 Where the absolute nullity of a previous marriage is sought to
be invoked for purposes of contracting a second marriage, the sole basis
Though the logician may say that where the former acceptable in law for said projected marriage be free from legal infirmity is a
marriage was void there would be nothing to dissolve, still it final judgment declaring the previous marriage void. 15
is not for the spouses to judge whether that marriage was
void or not. That judgment is reserved to the courts. . . . 10 The Family Law Revision Committee and the Civil Code Revision
Committee 16 which drafted what is now the Family Code of the Philippines
This dissenting opinion was adopted as the majority position in subsequent took the position that parties to a marriage should not be allowed to assume
cases involving the same issue. Thus, in Gomez v. Lipana, 11 the Court that their marriage is void even if such be the fact but must first secure a
abandoned its earlier ruling in the Aragon and Mendoza cases. In reversing judicial declaration of the nullity of their marriage before they can be
the lower court's order forfeiting the husband's share of the disputed allowed to marry again. This is borne out by the following minutes of the
property acquired during the second marriage, the Court stated that "if the 152nd Joint Meeting of the Civil Code and Family Law Committees where
nullity, or annulment of the marriage is the basis for the application of the present Article 40, then Art. 39, was discussed.
Article 1417, there is need for a judicial declaration thereof, which of course
contemplates an action for that purpose." B. Article 39. —

Citing Gomez v. Lipana, the Court subsequently held in Vda. de Consuegra The absolute nullity of a marriage may be
v. Government Service Insurance System, that "although the second marriage invoked only on the basis of a final
can be presumed to be void ab initio as it was celebrated while the first judgment declaring the marriage void,
marriage was still subsisting, still there is need for judicial declaration of except as provided in Article 41.
such nullity."
Justice Caguioa remarked that the above provision should
In Tolentino v. Paras,12 however, the Court turned around and applied include not only void but also voidable marriages. He then
the Aragon and Mendoza ruling once again. In granting the prayer of the first suggested that the above provision be modified as follows:
wife asking for a declaration as the lawful surviving spouse and the
correction of the death certificate of her deceased husband, it explained that The validity of a marriage may be invoked
"(t)he second marriage that he contracted with private respondent during only . . .
the lifetime of his first spouse is null and void from the beginning and of no
force and effect. No judicial decree is necessary to establish the invalidity of a Justice Reyes (J.B.L. Reyes), however, proposed that they
void marriage." say:

However, in the more recent case of Wiegel v. Sempio-Diy 13 the Court The validity or invalidity of a marriage may
reverted to the Consuegra case and held that there was "no need of be invoked 
introducing evidence about the existing prior marriage of her first husband only . . .
at the time they married each other, for then such a marriage though void
still needs according to this Court a judicial declaration of such fact and for On the other hand, Justice Puno suggested that they say:
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
The invalidity of a marriage may be invoked
Wiegel."
only . . .
Came the Family Code which settled once and for all the conflicting
jurisprudence on the matter. A declaration of the absolute nullity of a
Justice Caguioa explained that his idea is that one cannot Prof. Bautista commented that they will be doing away with
determine for himself whether or not his marriage is valid collateral defense as well as collateral attack. Justice
and that a court action is needed. Justice Puno accordingly Caguioa explained that the idea in the provision is that there
proposed that the provision be modified to read: should be a final judgment declaring the marriage void and
a party should not declare for himself whether or not the
The invalidity of a marriage may be invoked marriage is void, while the other members affirmed. Justice
only on the basis of a final judgment Caguioa added that they are, therefore, trying to avoid a
annulling the marriage or declaring the collateral attack on that point. Prof. Bautista stated that
marriage void, except as provided in Article there are actions which are brought on the assumption that
41. the marriage is valid. He then asked: Are they depriving one
of the right to raise the defense that he has no liability
Justice Caguioa remarked that in annulment, there is no because the basis of the liability is void? Prof. Bautista
question. Justice Puno, however, pointed out that, even if it added that they cannot say that there will be no judgment
is a judgment of annulment, they still have to produce the on the validity or invalidity of the marriage because it will
judgment. be taken up in the same proceeding. It will not be a
unilateral declaration that, it is a void marriage. Justice
Justice Caguioa suggested that they say: Caguioa saw the point of Prof. Bautista and suggested that
they limit the provision to remarriage. He then proposed that
Article 39 be reworded as follows:
The invalidity of a marriage may be invoked
only on the basis of a final judgment
declaring the marriage invalid, except as The absolute nullity of a marriage for
provided in Article 41. purposes of remarriage may be invoked
only on the basis of final judgment . . .
Justice Puno raised the question: When a marriage is
declared invalid, does it include the annulment of a Justice Puno suggested that the above be modified as
marriage and the declaration that the marriage is void? follows:
Justice Caguioa replied in the affirmative. Dean Gupit added
that in some judgments, even if the marriage is annulled, it The absolute nullity of a previous marriage
is declared void. Justice Puno suggested that this matter be may be invoked for purposes of establishing
made clear in the provision. the validity of a subsequent marriage only
on the basis of a final judgment declaring
Prof. Baviera remarked that the original idea in the such previous marriage void, except as
provision is to require first a judicial declaration of a void provided in Article 41.
marriage and not annullable marriages, with which the
other members concurred. Judge Diy added that annullable Justice Puno later modified the above as follows:
marriages are presumed valid until a direct action is filed to
annul it, which the other members affirmed. Justice Puno For the purpose of establishing the validity
remarked that if this is so, then the phrase "absolute nullity" of a subsequent marriage, the absolute
can stand since it might result in confusion if they change nullity of a previous marriage may only be
the phrase to "invalidity" if what they are referring to in the invoked on the basis of a final judgment
provision is the declaration that the marriage is void. declaring such nullity, except as provided in
Article 41.
 Justice Caguioa commented that the above provision is too As regards the necessity for a judicial declaration of absolute nullity of
broad and will not solve the objection of Prof. Bautista. He marriage, petitioner submits that the same can be maintained only if it is for
proposed that they say: the purpose of remarriage. Failure to allege this purpose, according to
petitioner's theory, will warrant dismissal of the same.
For the purpose of entering into a
subsequent marriage, the absolute nullity of Article 40 of the Family Code provides:
a previous marriage may only be invoked
on the basis of a final judgment declaring Art. 40. The absolute nullity of a previous marriage may be
such nullity, except as provided in Article invoked for purposes of remarriage on the basis solely of a
41. final judgment declaring such previous marriage void. (n)

Justice Caguioa explained that the idea in the above Crucial to the proper interpretation of Article 40 is the position in the
provision is that if one enters into a subsequent marriage provision of the word "solely." As it is placed, the same shows that it is
without obtaining a final judgment declaring the nullity of a meant to qualify "final judgment declaring such previous marriage void."
previous marriage, said subsequent marriage is void ab Realizing the need for careful craftsmanship in conveying the precise intent
initio. of the Committee members, the provision in question, as it finally emerged,
did not state "The absolute nullity of a previous marriage may be
After further deliberation, Justice Puno suggested that they invoked solely for purposes of remarriage . . .," in which case "solely" would
go back to the original wording of the provision as follows: clearly qualify the phrase "for purposes of remarriage." Had the phraseology
been such, the interpretation of petitioner would have been correct and,
The absolute nullity of a previous marriage that is, that the absolute nullity of a previous marriage may be
may be invoked for purposes of remarriage invoked solely for purposes of remarriage, thus rendering irrelevant the
only on the basis of a final judgment clause "on the basis solely of a final judgment declaring such previous
declaring such previous marriage void, marriage void."
except as provided in Article 41. 17
That Article 40 as finally formulated included the significant clause denotes
In fact, the requirement for a declaration of absolute nullity of a marriage is that such final judgment declaring the previous marriage void need not be
also for the protection of the spouse who, believing that his or her marriage obtained only for purposes of remarriage. Undoubtedly, one can conceive of
is illegal and void, marries again. With the judicial declaration of the nullity other instances where a party might well invoke the absolute nullity of a
of his or her first marriage, the person who marries again cannot be charged previous marriage for purposes other than remarriage, such as in case of an
with bigamy. 18 action for liquidation, partition, distribution and separation of property
between the erstwhile spouses, as well as an action for the custody and
Just over a year ago, the Court made the pronouncement that there is a support of their common children and the delivery of the latters'
necessity for a declaration of absolute nullity of a prior subsisting marriage presumptive legitimes. In such cases, evidence needs must be adduced,
before contracting another in the recent case of Terre v. Terre. 19 The Court, testimonial or documentary, to prove the existence of grounds rendering
in turning down the defense of respondent Terre who was charged with such a previous marriage an absolute nullity. These need not be limited
grossly immoral conduct consisting of contracting a second marriage and solely to an earlier final judgment of a court declaring such previous
living with another woman other than complainant while his prior marriage marriage void. Hence, in the instance where a party who has previously
with the latter remained subsisting, said that "for purposes of determining contracted a marriage which remains subsisting desires to enter into
whether a person is legally free to contract a second marriage, a judicial another marriage which is legally unassailable, he is required by law to
declaration that the first marriage was null and void ab initio is essential." prove that the previous one was an absolute nullity. But this he may do on
the basis solely of a final judgment declaring such previous marriage void.
This leads us to the question: Why the distinction? In other words, for Dean Gupit commented the word "only" may be misconstrued
purposes of remarriage, why should the only legally acceptable basis for to refer to "for purposes of remarriage." Judge Diy stated that
declaring a previous marriage an absolute nullity be a final judgment "only" refers to "final judgment." Justice Puno suggested that
declaring such previous marriage void? Whereas, for purposes other than they say "on the basis only of a final judgment." Prof.
remarriage, other evidence is acceptable? Baviera suggested that they use the legal term "solely"
instead of "only," which the Committee
Marriage, a sacrosanct institution, declared by the Constitution as an approved. 24 (Emphasis supplied)
"inviolable social institution, is the foundation of the family;" as such, it
"shall be protected by the State."20 In more explicit terms, the Family Code Pursuing his previous argument that the declaration for absolute nullity of
characterizes it as "a special contract of permanent union between a man marriage is unnecessary, petitioner suggests that private respondent should
and a woman entered into in accordance with law for the establishment of have filed an ordinary civil action for the recovery of the properties alleged
conjugal, and family life." 21 So crucial are marriage and the family to the to have been acquired during their union. In such an eventuality, the lower
stability and peace of the nation that their "nature, consequences, and court would not be acting as a mere special court but would be clothed with
incidents are governed by law and not subject to stipulation . . ." 22 As a jurisdiction to rule on the issues of possession and ownership. In addition,
matter of policy, therefore, the nullification of a marriage for the purpose of 5
contracting another cannot be accomplished merely on the basis of the
perception of both parties or of one that their union is so defective with
respect to the essential requisites of a contract of marriage as to render it
void ipso jure and with no legal effect — and nothing more. Were this so, this
inviolable social institution would be reduced to a mockery and would rest
on very shaky foundations indeed. And the grounds for nullifying marriage
would be as diverse and far-ranging as human ingenuity and fancy could
conceive. For such a social significant institution, an official state
pronouncement through the courts, and nothing less, will satisfy the
exacting norms of society. Not only would such an open and public
declaration by the courts definitively confirm the nullity of the contract of
marriage, but the same would be easily verifiable through records accessible
to everyone.

That the law seeks to ensure that a prior marriage is no impediment to a

second sought to be contracted by one of the parties may be gleaned from
new information required in the Family Code to be included in the
application for a marriage license, viz, "If previously married, how, when
and where the previous marriage was dissolved and annulled." 23

Reverting to the case before us, petitioner's interpretation of Art. 40 of the

Family Code is, undoubtedly, quite restrictive. Thus, his position that private
respondent's failure to state in the petition that the same is filed to enable
her to remarry will result in the dismissal of SP No. 1989-J is untenable. His
misconstruction of Art. 40 resulting from the misplaced emphasis on the
term "solely" was in fact anticipated by the members of the Committee.
3 ARTICLE 40 Stella Eloisa and Joaquin Pedro shall be placed in the
custody of their mother, herein respondent Consuelo
G.R. No. 122749 July 31, 1996 Gomez-Valdes.
ANTONIO A. S. VALDEZ, petitioner,  The petitioner and respondent shall have visitation rights
vs. over the children who are in the custody of the other.
REGIONAL TRIAL COURT, BRANCH 102, QUEZON CITY, and CONSUELO M.
(3) The petitioner and the respondent are directed to
GOMEZ-VALDEZ, respondents.
start proceedings on the liquidation of their common
  properties as defined by Article 147 of the Family Code,
and to comply with the provisions of Articles 50, 51, and
VITUG, J.:p 52 of the same code, within thirty (30) days from notice
of this decision.
The petition for new bewails, purely on the question of law, an
alleged error committed by the Regional Trial Court in Civil Case Let a copy of this decision be furnished the Local Civil
No. Q-92-12539. Petitioner avers that the court a quo has failed Registrar of Mandaluyong, Metro Manila, for proper
to apply the correct law that should govern the disposition of a recording in the registry of marriages.2 (Emphasis ours.)
family dwelling in a situation where a marriage is declared
void ab initio because of psychological incapacity on the part of Consuelo Gomez sought a clarification of that portion of the
either or both parties in the contract. decision directing compliance with Articles 50, 51 and 52 of the
Family Code. She asserted that the Family Code contained no
The pertinent facts giving rise to this incident are, by large, not provisions on the procedure for the liquidation of common
in dispute. property in "unions without marriage." Parenthetically, during
the hearing of the motion, the children filed a joint affidavit
Antonio Valdez and Consuelo Gomez were married on 05
expressing their desire to remain with their father, Antonio
January 1971. Begotten during the marriage were five children.
Valdez, herein petitioner.
In a petition, dated 22 June 1992, Valdez sought the declaration
of nullity of the marriage pursuant to Article 36 of the Family In an order, dated 05 May 1995, the trial court made the
code (docketed Civil Case No. Q-92-12539, Regional Trial Court following clarification:
of Quezon City, Branch 102). After the hearing the parties
following the joinder of issues, the trial court, 1 in its decision of Consequently, considering that Article 147 of the Family
29 July 1994, granted the petition, viz: Code explicitly provides that the property acquired by
both parties during their union, in the absence of proof to
WHEREFORE, judgment is hereby rendered as follows: the contrary, are presumed to have been obtained
through the joint efforts of the parties and will be owned
(1) The marriage of petitioner Antonio Valdez and
by them in equal shares, plaintiff and defendant will own
respondent Consuelo Gomez-Valdez is hereby declared
their "family home" and all their properties for that
null and void under Article 36 of the Family Code on the
matter in equal shares.
ground of their mutual psychological incapacity to
comply with their essential marital obligations; In the liquidation and partition of properties owned in
common by the plaintiff and defendant, the provisions on
(2) The three older children, Carlos Enrique III, Antonio
ownership found in the Civil Code shall apply. 3 (Emphasis
Quintin and Angela Rosario shall choose which parent
supplied.)
they would want to stay with.
In addressing specifically the issue regarding the disposition of It is necessary to determine the parent with whom
the family dwelling, the trial court said: majority of the children wish to stay.5

Considering that this Court has already declared the The trial court correctly applied the law. In a void marriage,
marriage between petitioner and respondent as null and regardless of the cause thereof, the property relations of the
void ab initio, pursuant to Art. 147, the property regime parties during the period of cohabitation is governed by the
of petitioner and respondent shall be governed by provisions of Article 147 or Article 148, such as the case may
the rules on ownership. be, of the Family Code. Article 147 is a remake of Article 144 of
the Civil Code as interpreted and so applied in previous
The provisions of Articles 102 and 129 of the Family Code cases;6 it provides:
finds no application since Article 102 refers to the
procedure for the liquidation of the conjugal partnership Art. 147. When a man and a woman who are capacitated
property  and Article 129 refers to the procedure for the to marry each other, live exclusively with each other as
liquidation of the absolute community of property.4 husband and wife without the benefit of marriage or
under a void marriage, their wages and salaries shall be
Petitioner moved for a reconsideration of the order. The motion owned by them in equal shares and the property
was denied on 30 October 1995. acquired by both of them through their work or industry
In his recourse to this Court, petitioner submits that Articles 50, shall be governed by the rules on co-ownership.
51 and 52 of the Family Code should be held controlling: he In the absence of proof to the contrary, properties
argues that: acquired while they lived together shall be presumed to
I have been obtained by their joint efforts, work or
industry, and shall be owned by them in equal shares. For
Article 147 of the Family Code does not apply to cases purposes of this Article, a party who did not participate in
where the parties are psychologically incapacitated. the acquisition by the other party of any property shall be
deemed to have contributed jointly in the acquisition
II
thereof in the former's efforts consisted in the care and
Articles 50, 51 and 52 in relation to Articles 102 and 129 maintenance of the family and of the household.
of the Family Code govern the disposition of the family
Neither party can encumber or dispose by acts inter
dwelling in cases where a marriage is declared void ab
vivos of his or her share in the property acquired during
initio, including a marriage declared void by reason of the
cohabitation and owned in common, without the consent
psychological incapacity of the spouses.
of the other, until after the termination of their
III cohabitation.

Assuming arguendo that Article 147 applies to marriages When only one of the parties to a void marriage is in
declared void ab initio on the ground of the psychological good faith, the share of the party in bad faith in the
incapacity of a spouse, the same may be read ownership shall be forfeited in favor of their common
consistently with Article 129. children. In case of default of or waiver by any or all of
the common children or their descendants, each vacant
IV share shall belong to the innocent party. In all cases, the
 forfeiture shall take place upon the termination of the (as husband and wife), only the property acquired by both of
cohabitation. them through their actual joint contribution of money, property
or industry shall be owned in common and in proportion to their
This particular kind of co-ownership applies when a man and a respective contributions. Such contributions and corresponding
woman, suffering no illegal impediment to marry each other, so shares, however, are prima facie presumed to be equal. The
exclusively live together as husband and wife under a void share of any party who is married to another shall accrue to the
marriage or without the benefit of marriage. The term absolute community or conjugal partnership, as the case may
"capacitated" in the provision (in the first paragraph of the law) be, if so existing under a valid marriage. If the party who has
refers to the legal capacity of a party to contract marriage, i.e., acted in bad faith is not validly married to another, his or her
any "male or female of the age of eighteen years or upwards not share shall be forfeited in the manner already heretofore
under any of the impediments mentioned in Articles 37 and expressed. 11
38"7 of the Code.
In deciding to take further cognizance of the issue on the
Under this property regime, property acquired by both spouses settlement of the parties' common property, the trial court
through their work and industry shall be governed by the rules acted neither imprudently nor precipitately; a court which has
on equal co-ownership. Any property acquired during the union jurisdiction to declare the marriage a nullity must be deemed
is prima facie presumed to have been obtained through their likewise clothed in authority to resolve incidental and
joint efforts. A party who did not participate in the acquisition of consequential matters. Nor did it commit a reversible error in
the property shall be considered as having contributed thereto ruling that petitioner and private respondent own the "family
jointly if said party's "efforts consisted in the care and home" and all their common property in equal shares, as well as
maintenance of the family household." 8 Unlike the conjugal in concluding that, in the liquidation and partition of the
partnership of gains, the fruits of the couple's separate property property owned in common by them, the provisions on co-
are not included in the co-ownership. ownership under the Civil Code, not Articles 50, 51 and 52, in
Article 147 of the Family Code, in the substance and to the relation to Articles 102 and 129, 12 of the Family Code, should
above extent, has clarified Article 144 of the Civil Code; in aptly prevail. The rules set up to govern the liquidation of either
addition, the law now expressly provides that — the absolute community or the conjugal partnership of gains,
the property regimes recognized for valid and voidable
(a) Neither party can dispose or encumber by act intervivos his marriages (in the latter case until the contract is annulled), are
or her share in co-ownership property, without consent of the irrelevant to the liquidation of the co-ownership that exists
other, during the period of cohabitation; and between common-law spouses. The first paragraph of Articles
50 of the Family Code, applying paragraphs (2), (3), (4) and 95)
(b) In the case of a void marriage, any party in bad faith shall
of Article 43, 13 relates only, by its explicit terms,
forfeit his or her share in the co-ownership in favor of their
to voidable marriages and, exceptionally, to void  marriages
common children; in default thereof or waiver by any or all of
under Article 40 14 of the Code, i.e., the declaration of nullity of a
the common children, each vacant share shall belong to the
subsequent marriage contracted by a spouse of a prior void
respective surviving descendants, or still in default thereof, to
marriage before the latter is judicially declared void. The latter
the innocent party. The forfeiture shall take place upon the
is a special rule that somehow recognizes the philosophy and an
termination of the cohabitation9 or declaration of nullity of the
old doctrine that void marriages are inexistent from the very
marriage. 10
beginning and no judicial decree is necessary to establish their
When the common-law spouses suffer from a legal impediment nullity. In now requiring for purposes of remarriage, the
to marry or when they do not live exclusively with each other declaration of nullity by final judgment of the previously
contracted void marriage, the present law aims to do away with
any continuing uncertainty on the status of the second
marriage. It is not then illogical for the provisions of Article 43,
in relation to Articles 41 15 and 42, 16 of the Family Code, on the
effects of the termination of a subsequent marriage contracted
during the subsistence of a previous marriage to be made
applicable pro hac vice. In all other cases, it is not to be
assumed that the law has also meant to have coincident
property relations, on the one hand, between spouses in valid
and voidable marriages (before annulment) and, on the other,
between common-law spouses or spouses of void marriages,
leaving to ordain, on the latter case, the ordinary rules on co-
ownership subject to the provisions of the Family Code on the
"family home," i.e., the provisions found in Title V, Chapter 2, of
the Family Code, remain in force and effect regardless of the
property regime of the spouses.

WHEREFORE, the questioned orders, dated 05 May 1995 and 30

October 1995, of the trial court are AFFIRMED. No costs.

Padilla, Kapunan and Hermosisima, Jr., JJ., concur.

Bellosillo, J., is on leave.

4 ARTICLE 40 dispute that accused Dr. Vincent Mercado and complainant Ma. Consuelo
Tan got married on June 27, 1991 before MTCC-Bacolod City Br. 7 Judge
G.R. No. 137110               August 1, 2000 Gorgonio J. Ibañ ez [by reason of] which a Marriage Contract was duly
executed and signed by the parties. As entered in said document, the status
VINCENT PAUL G. MERCADO a.k.a. VINCENT G. MERCADO, petitioner,  of accused was ‘single’. There is no dispute either that at the time of the
vs. celebration of the wedding with complainant, accused was actually a
CONSUELO TAN, respondent. married man, having been in lawful wedlock with Ma. Thelma Oliva in a
marriage ceremony solemnized on April 10, 1976 by Judge Leonardo B.
DECISION Cañ ares, CFI-Br. XIV, Cebu City per Marriage Certificate issued in connection
therewith, which matrimony was further blessed by Rev. Father Arthur Baur
on October 10, 1976 in religious rites at the Sacred Heart Church, Cebu City.
PANGANIBAN, J.:
In the same manner, the civil marriage between accused and complainant
was confirmed in a church ceremony on June 29, 1991 officiated by Msgr.
A judicial declaration of nullity of a previous marriage is necessary before a Victorino A. Rivas, Judicial Vicar, Diocese of Bacolod City. Both marriages
subsequent one can be legally contracted. One who enters into a subsequent were consummated when out of the first consortium, Ma. Thelma Oliva bore
marriage without first obtaining such judicial declaration is guilty of bigamy. accused two children, while a child, Vincent Paul, Jr. was sired by accused
This principle applies even if the earlier union is characterized by statute as with complainant Ma. Consuelo Tan.
"void."
"On October 5, 1992, a letter-complaint for bigamy was filed by complainant
The Case through counsel with the City Prosecutor of Bacolod City, which eventually
resulted [in] the institution of the present case before this Court against said
Before us is a Petition for Review on Certiorari assailing the July 14, 1998 accused, Dr. Vincent G. Mercado, on March 1, 1993 in an Information dated
Decision of the Court of Appeals (CA) in CA-GR CR No. 19830 and its January
1 
January 22, 1993.
4, 1999 Resolution denying reconsideration. The assailed Decision affirmed
the ruling of the Regional Trial Court (RTC) of Bacolod City in Criminal Case "On November 13, 1992, or more than a month after the bigamy case was
No. 13848, which convicted herein petitioner of bigamy as follows: lodged in the Prosecutor’s Office, accused filed an action for Declaration of
Nullity of Marriage against Ma. Thelma V. Oliva in RTC-Br. 22, Cebu City, and
"WHEREFORE, finding the guilt of accused Dr. Vincent Paul G. Mercado a.k.a. in a Decision dated May 6, 1993 the marriage between Vincent G. Mercado
Dr. Vincent G. Mercado of the crime of Bigamy punishable under Article 349 and Ma. Thelma V. Oliva was declared null and void.
of the Revised Penal Code to have been proven beyond reasonable doubt,
[the court hereby renders] judgment imposing upon him a prison term of "Accused is charged [with] bigamy under Article 349 of the Revised Penal
three (3) years, four (4) months and fifteen (15) days of prision Code for having contracted a second marriage with herein complainant Ma.
correccional, as minimum of his indeterminate sentence, to eight (8) years Consuelo Tan on June 27, 1991 when at that time he was previously united
and twenty-one (21) days of prision mayor, as maximum, plus accessory in lawful marriage with Ma. Thelma V. Oliva on April 10, 1976 at Cebu City,
penalties provided by law. without said first marriage having been legally dissolved. As shown by the
evidence and admitted by accused, all the essential elements of the crime
Costs against accused." 2
are present, namely: (a) that the offender has been previously legally
married; (2) that the first marriage has not been legally dissolved or in case
The Facts the spouse is absent, the absent spouse could not yet be presumed dead
according to the Civil Code; (3) that he contract[ed] a second or subsequent
The facts are quoted by Court of Appeals (CA) from the trial court’s marriage; and (4) that the second or subsequent marriage ha[d] all the
judgment, as follows: "From the evidence adduced by the parties, there is no essential requisites for validity. x x x
"While acknowledging the existence of the two marriage[s], accused posited Whether or not a liberal interpretation in favor of petitioner of
the defense that his previous marriage ha[d] been judicially declared null Article 349 of the Revised Penal Code punishing bigamy, in relation
and void and that the private complainant had knowledge of the first to Articles 36 and 40 of the Family Code, negates the guilt of
marriage of accused. petitioner.

"It is an admitted fact that when the second marriage was entered into with "C
Ma. Consuelo Tan on June 27, 1991, accused’s prior marriage with Ma.
Thelma V. Oliva was subsisting, no judicial action having yet been initiated Whether or not petitioner is entitled to an acquittal on the basis of
or any judicial declaration obtained as to the nullity of such prior marriage reasonable doubt." 6

with Ma. Thelma V. Oliva. Since no declaration of the nullity of his first
marriage ha[d] yet been made at the time of his second marriage, it is clear The Court’s Ruling
that accused was a married man when he contracted such second marriage
with complainant on June 27, 1991. He was still at the time validly married The Petition is not meritorious.
to his first wife."
3

Main Issue:Effect of Nullity of Previous Marriage

Ruling of the Court of Appeals
Petitioner was convicted of bigamy under Article 349 of the Revised Penal
Agreeing with the lower court, the Court of Appeals stated: Code, which provides:

"Under Article 40 of the Family Code, ‘the absolute nullity of a previous "The penalty of prision mayor shall be imposed upon any person who shall
marriage may be invoked for purposes of remarriage on the basis solely of a contract a second or subsequent marriage before the former marriage has
final judgment declaring such previous marriage void.’ But here, the final been legally dissolved, or before the absent spouse has been declared
judgment declaring null and void accused’s previous marriage came not presumptively dead by means of a judgment rendered in the proper
before the celebration of the second marriage, but after, when the case for proceedings."
bigamy against accused was already tried in court. And what constitutes the
crime of bigamy is the act of any person who shall contract a second
The elements of this crime are as follows:
subsequent marriage ‘before’ the former marriage has been legally
dissolved." 4

"1. That the offender has been legally married;

Hence, this Petition. 5

2. That the marriage has not been legally dissolved or, in case his or
her spouse is absent, the absent spouse could not yet be presumed
The Issues
dead according to the Civil Code;
In his Memorandum, petitioner raises the following issues:
3. That he contracts a second or subsequent marriage;
"A
4. That the second or subsequent marriage has all the essential
requisites for validity."
7

Whether or not the element of previous legal marriage is present in

order to convict petitioner.
When the Information was filed on January 22, 1993, all the elements of
bigamy were present. It is undisputed that petitioner married Thelma G.
"B Oliva on April 10, 1976 in Cebu City. While that marriage was still
subsisting, he contracted a second marriage, this time with Respondent Ma. with respect to the right of the second wife, this Court observes that
Consuelo Tan who subsequently filed the Complaint for bigamy. although the second marriage can be presumed to be void ab initioas it was
celebrated while the first marriage was still subsisting, still there is need for
Petitioner contends, however, that he obtained a judicial declaration of judicial declaration of such nullity."
nullity of his first marriage under Article 36 of the Family Code, thereby
rendering it void ab initio. Unlike voidable marriages which are considered In Tolentino v. Paras, however, the Court again held that judicial declaration
14 

valid until set aside by a competent court, he argues that a void marriage is of nullity of a void marriage was not necessary. In that case, a man married
deemed never to have taken place at all. Thus, he concludes that there is no
8 
twice. In his Death Certificate, his second wife was named as his surviving
first marriage to speak of. Petitioner also quotes the commentaries of 9 
spouse. The first wife then filed a Petition to correct the said entry in the
former Justice Luis Reyes that "it is now settled that if the first marriage is Death Certificate. The Court ruled in favor of the first wife, holding that "the
void from the beginning, it is a defense in a bigamy charge. But if the first second marriage that he contracted with private respondent during the
marriage is voidable, it is not a defense." lifetime of the first spouse is null and void from the beginning and of no
force and effect. No judicial decree is necessary to establish the invalidity of a
Respondent, on the other hand, admits that the first marriage was declared void marriage."
null and void under Article 36 of the Family Code, but she points out that
that declaration came only after the Information had been filed. Hence, by In Wiegel v. Sempio-Diy, the Court stressed the need for such declaration. In
15 

then, the crime had already been consummated. She argues that a judicial that case, Karl Heinz Wiegel filed an action for the declaration of nullity of
declaration of nullity of a void previous marriage must be obtained before a his marriage to Lilia Olivia Wiegel on the ground that the latter had a prior
person can marry for a subsequent time. existing marriage. After pretrial, Lilia asked that she be allowed to present
evidence to prove, among others, that her first husband had previously been
We agree with the respondent. married to another woman. In holding that there was no need for such
evidence, the Court ruled: "x x x There is likewise no need of introducing
To be sure, jurisprudence regarding the need for a judicial declaration of evidence about the existing prior marriage of her first husband at the time
nullity of the previous marriage has been characterized as they married each other, for then such a marriage though void still needs,
"conflicting." In People v. Mendoza, a bigamy case involving an accused who
10  11  according to this Court, a judicial declaration of such fact and for all legal
married three times, the Court ruled that there was no need for such intents and purposes she would still be regarded as a married woman at the
declaration. In that case, the accused contracted a second marriage during time she contracted her marriage with respondent Karl Heinz Wiegel; x x x."
the subsistence of the first. When the first wife died, he married for the third
time. The second wife then charged him with bigamy. Acquitting him, the Subsequently, in Yap v. CA, the Court reverted to the ruling in People v.
16 

Court held that the second marriage was void ab initio because it had been Mendoza, holding that there was no need for such declaration of nullity.
contracted while the first marriage was still in effect. Since the second
marriage was obviously void and illegal, the Court ruled that there was no In Domingo v. CA, the issue raised was whether a judicial declaration of
17 

need for a judicial declaration of its nullity. Hence, the accused did not nullity was still necessary for the recovery and the separation of properties
commit bigamy when he married for the third time. This ruling was affirmed of erstwhile spouses. Ruling in the affirmative, the Court declared: "The
by the Court in People v. Aragon, which involved substantially the same
12
Family Code has settled once and for all the conflicting jurisprudence on the
facts. matter. A declaration of the absolute nullity of a marriage is now explicitly
required either as a cause of action or a ground for defense; in fact, the
But in subsequent cases, the Court impressed the need for a judicial requirement for a declaration of absolute nullity of a marriage is also for the
declaration of nullity. In Vda de Consuegra v. GSIS, Jose Consuegra married
13  protection of the spouse who, believing that his or her marriage is illegal
for the second time while the first marriage was still subsisting. Upon his and void, marries again. With the judicial declaration of the nullity of his or
death, the Court awarded one half of the proceeds of his retirement benefits her first marriage, the person who marries again cannot be charged with
to the first wife and the other half to the second wife and her children, bigamy." 18

notwithstanding the manifest nullity of the second marriage. It held: "And

Unlike Mendoza and Aragon, Domingo as well as the other cases herein cited and Domingo affirm the earlier ruling in Wiegel. Thus, a Civil Law authority
was not a criminal prosecution for bigamy. and member of the Civil Code Revision Commitee has observed:
Nonetheless, Domingo underscored the need for a judicial declaration of
nullity of a void marriage on the basis of a new provision of the Family Code, "[Article 40] is also in line with the recent decisions of the Supreme Court
which came into effect several years after the promulgation that the marriage of a person may be null and void but there is need of a
of Mendoza and Aragon. judicial declaration of such fact before that person can marry again;
otherwise, the second marriage will also be void (Wiegel v. Sempio-Diy, Aug.
In Mendoza and Aragon, the Court relied on Section 29 of Act No. 3613 19/86, 143 SCRA 499, Vda. De Consuegra v. GSIS, 37 SCRA 315). This
(Marriage Law), which provided: provision changes the old rule that where a marriage is illegal and void from
its performance, no judicial decree is necessary to establish its validity (People
"Illegal marriages. — Any marriage subsequently contracted by any person v. Mendoza, 95 Phil. 843; People v. Aragon, 100 Phil. 1033)." 20

during the lifetime of the first spouse shall be illegal and void from its
performance, unless: In this light, the statutory mooring of the ruling in Mendoza and Aragon –
that there is no need for a judicial declaration of nullity of a void marriage --
(a) The first marriage was annulled or dissolved; has been cast aside by Article 40 of the Family Code. Such declaration is now
necessary before one can contract a second marriage. Absent that
(b) The first spouse had been absent for seven consecutive years at declaration, we hold that one may be charged with and convicted of bigamy.
the time of the second marriage without the spouse present having
news of the absentee being alive, or the absentee being generally The present ruling is consistent with our pronouncement in Terre v.
considered as dead and believed to be so by the spouse present at Terre, which involved an administrative Complaint against a lawyer for
21 

the time of contracting such subsequent marriage, the marriage as marrying twice. In rejecting the lawyer’s argument that he was free to enter
contracted being valid in either case until declared null and void by into a second marriage because the first one was void ab initio, the Court
a competent court." ruled: "for purposes of determining whether a person is legally free to
contract a second marriage, a judicial declaration that the first marriage was
The Court held in those two cases that the said provision "plainly makes a null and void ab initio is essential." The Court further noted that the said rule
subsequent marriage contracted by any person during the lifetime of his was "cast into statutory form by Article 40 of the Family Code." Significantly,
first spouse illegal and void from its performance, and no judicial decree is it observed that the second marriage, contracted without a judicial
necessary to establish its invalidity, as distinguished from mere annulable declaration that the first marriage was void, was "bigamous and criminal in
marriages."19 character."

The provision appeared in substantially the same form under Article 83 of Moreover, Justice Reyes, an authority in Criminal Law whose earlier work
the 1950 Civil Code and Article 41 of the Family Code. However, Article 40 was cited by petitioner, changed his view on the subject in view of Article 40
of the Family Code, a new provision, expressly requires a judicial of the Family Code and wrote in 1993 that a person must first obtain a
declaration of nullity of the previous marriage, as follows: judicial declaration of the nullity of a void marriage before contracting a
subsequent marriage: 22

"ART. 40. The absolute nullity of a previous marriage may be invoked for
purposes of remarriage on the basis solely of a final judgment declaring "It is now settled that the fact that the first marriage is void from the
such marriage void." beginning is not a defense in a bigamy charge. As with a voidable marriage,
there must be a judicial declaration of the nullity of a marriage before
In view of this provision, Domingo stressed that a final judgment declaring contracting the second marriage. Article 40 of the Family Code states that x x
such marriage void was necessary. Verily, the Family Code x. The Code Commission believes that the parties to a marriage should not
be allowed to assume that their marriage is void, even if such is the fact, but
must first secure a judicial declaration of nullity of their marriage before anyway, relying on the fact that the first wife would no longer return to Dr.
they should be allowed to marry again. x x x." Mercado, she being by then already living with another man.

In the instant case, petitioner contracted a second marriage although there "Consuelo Tan can therefore not claim damages in this case where she was
was yet no judicial declaration of nullity of his first marriage. In fact, he fully conscious of the consequences of her act. She should have known that
instituted the Petition to have the first marriage declared void only after she would suffer humiliation in the event the truth [would] come out, as it
complainant had filed a letter-complaint charging him with bigamy. By did in this case, ironically because of her personal instigation. If there are
contracting a second marriage while the first was still subsisting, he indeed damages caused to her reputation, they are of her own willful
committed the acts punishable under Article 349 of the Revised Penal Code. making." 25

That he subsequently obtained a judicial declaration of the nullity of the first WHEREFORE, the Petition is DENIED and the assailed Decision AFFIRMED.
marriage was immaterial. To repeat, the crime had already been Costs against petitioner.
consummated by then. Moreover, his view effectively encourages delay in
the prosecution of bigamy cases; an accused could simply file a petition to SO ORDERED.
declare his previous marriage void and invoke the pendency of that action
as a prejudicial question in the criminal case. We cannot allow that. CONCURRING AND DISSENTING OPINION

Under the circumstances of the present case, he is guilty of the charge VITUG, J.:
against him.
At the pith of the controversy is the defense of the absolute
Damages nullity of a previous marriage in an indictment for bigamy. The
majority opinion, penned by my esteemed brother, Mr. Justice
In her Memorandum, respondent prays that the Court set aside the ruling of Artemio V. Panganiban, enunciates that it is only a judicially
the Court of Appeals insofar as it denied her claim of damages and decreed prior void marriage which can constitute a defense
attorney’s fees. 23
against the criminal charge.

Her prayer has no merit. She did not appeal the ruling of the CA against her; The civil law rule stated in Article 40 of the Family Code is a
hence, she cannot obtain affirmative relief from this Court. In any event, we
24 
given but I have strong reservations on its application beyond
find no reason to reverse or set aside the pertinent ruling of the CA on this what appears to be its expressed context. The subject of the
point, which we quote hereunder: instant petition is a criminal prosecution, not a civil case, and
the ponencia affirms the conviction of petitioner Vincent Paul G.
"We are convinced from the totality of the evidence presented in this case Mercado for bigamy.
that Consuelo Tan is not the innocent victim that she claims to be; she was
well aware of the existence of the previous marriage when she contracted Article 40 of the Family code reads:
matrimony with Dr. Mercado. The testimonies of the defense witnesses
prove this, and we find no reason to doubt said testimonies. "ART. 40. The absolute nullity of a previous marriage may be
invoked for purposes of remarriage on the basis solely of a
x x x           x x x          x x x final judgment declaring such previous marriage void."

"Indeed, the claim of Consuelo Tan that she was not aware of his previous The phrase "for purposes of remarriage" is not at all
marriage does not inspire belief, especially as she had seen that Dr. Mercado insignificant. Void marriages, like void contracts, are inexistent
had two (2) children with him. We are convinced that she took the plunge from the very beginning. It is only by way of exception that the
Family code requires a judicial declaration of nullity of the Unlike a voidable marriage which legally exists until judicially
previous marriage before a subsequent marriage is contracted; annulled (and therefore not a defense in bigamy if the second
without such declaration, the validity and the full legal marriage were contracted prior to the decree
consequence of the subsequent marriage would itself be in of annulment), the complete nullity, however, of a previously
similar jeopardy under Article 53, in relation to Article 52, of the contracted marriage, being a total nullity
Family Code. Parenthetically, I would daresay that the necessity and inexistent, should be capable of being independently
of a judicial declaration of nullity of a void marriage for the raised by way of a defense in a criminal case for bigamy. I see
purpose of remarriage should be held to refer merely to cases no incongruence between this rule in criminal law and that of
where it can be said that a marriage, at least ostensibly, had the Family Code, and each may be applied within the respective
taken place. No such judicial declaration of nullity, in my view, spheres of governance.
should still be deemed essential when the "marriage," for
instance, is between persons of the same sex or when either or Accordingly, I vote to grant the petition.
both parties had not at all given consent to the "marriage."
Indeed, it is likely that Article 40 of the Family Code has been
meant and intended to refer only to marriages declared void
under the provisions of Articles 35, 36, 37, 38 and 53 thereof.

In fine, the Family Code, I respectfully submit, did not have the
effect of overturning the rule in criminal law and related
jurisprudence. The Revised Penal Code expresses:

"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.

Surely, the foregoing provision contemplated an existing, not

void, prior marriage. Covered by article 349 would thus be, for
instance, a voidable marriage, it obviously being valid and
subsisting until set aside by a competent court. As early as
People vs. Aragon, this Court has underscored:
1 

"xxx Our Revised Penal Code is of recent enactment and had

the rule enunciated in Spain and in America requiring
judicial declaration of nullity of ab initio void marriages
been within the contemplation of the legislature, an
express provision to that effect would or should have
been inserted in the law. In its absence, we are bound by
said rule of strict interpretation."
5 ARTICLE 40 On December 14, 1993, respondent Susan Yee filed the instant case for
collection of sum of money against petitioner Susan Nicdao praying, inter
G.R. No. 132529. February 2, 2001 alia, that petitioner be ordered to return to her at least one-half of the one
hundred forty-six thousand pesos (P146,000.00) collectively denominated
SUSAN NICDAO CARIÑO, petitioner,  as “death benefits” which she (petitioner) received from “MBAI, PCCUI,
vs. Commutation, NAPOLCOM, [and] Pag-ibig.” Despite service of summons,
SUSAN YEE CARIÑO, respondent. petitioner failed to file her answer, prompting the trial court to declare her
in default.
DECISION
Respondent Susan Yee admitted that her marriage to the deceased took
YNARES-SANTIAGO, J.: place during the subsistence of, and without first obtaining a judicial
declaration of nullity of, the marriage between petitioner and the deceased.
She, however, claimed that she had no knowledge of the previous marriage
The issue for resolution in the case at bar hinges on the validity of the two
and that she became aware of it only at the funeral of the deceased, where
marriages contracted by the deceased SPO4 Santiago S. Cariñ o, whose
she met petitioner who introduced herself as the wife of the deceased. To
“death benefits” is now the subject of the controversy between the two
bolster her action for collection of sum of money, respondent contended
Susans whom he married. 1âwphi1.nêt
that the marriage of petitioner and the deceased is void ab initio because the
same was solemnized without the required marriage license. In support
Before this Court is a petition for review on certiorari seeking to set aside thereof, respondent presented: 1) the marriage certificate of the deceased
the decision 1 of the Court of Appeals in CA-G.R. CV No. 51263, which and the petitioner which bears no marriage license number;  5and 2) a
affirmed in toto the decision 2 of the Regional Trial Court of Quezon City, certification dated March 9, 1994, from the Local Civil Registrar of San Juan,
Branch 87, in Civil Case No. Q-93-18632. Metro Manila, which reads –

During the lifetime of the late SPO4 Santiago S. Cariñ o, he contracted two This is to certify that this Office has no record of marriage license of the
marriages, the first was on June 20, 1969, with petitioner Susan Nicdao spouses SANTIAGO CARINO (sic) and SUSAN NICDAO, who are married in this
Cariñ o (hereafter referred to as Susan Nicdao), with whom he had two municipality on June 20, 1969. Hence, we cannot issue as requested a true
offsprings, namely, Sahlee and Sandee Cariñ o; and the second was on copy or transcription of Marriage License number from the records of this
November 10, 1992, with respondent Susan Yee Cariñ o (hereafter referred archives.
to as Susan Yee), with whom he had no children in their almost ten year
cohabitation starting way back in 1982.
This certification is issued upon the request of Mrs. Susan Yee Cariño for
whatever legal purpose it may serve.  6
In 1988, SPO4 Santiago S. Cariñ o became ill and bedridden due to diabetes
complicated by pulmonary tuberculosis. He passed away on November 23,
On August 28, 1995, the trial court ruled in favor of respondent, Susan Yee,
1992, under the care of Susan Yee, who spent for his medical and burial
holding as follows:
expenses. Both petitioner and respondent filed claims for monetary benefits
and financial assistance pertaining to the deceased from various
government agencies. Petitioner Susan Nicdao was able to collect a total of WHEREFORE, the defendant is hereby ordered to pay the plaintiff the sum of
P146,000.00 from “MBAI, PCCUI, Commutation, NAPOLCOM, [and] Pag- P73,000.00, half of the amount which was paid to her in the form of death
ibig,” 3 while respondent Susan Yee received a total of P21,000.00 from “GSIS benefits arising from the death of SPO4 Santiago S. Cariño, plus attorney’s fees
Life, Burial (GSIS) and burial (SSS).” 4 in the amount of P5,000.00, and costs of suit.

IT IS SO ORDERED.  7
On appeal by petitioner to the Court of Appeals, the latter affirmed in toto It is clear therefore that the Court is clothed with sufficient authority to pass
the decision of the trial court. Hence, the instant petition, contending that: upon the validity of the two marriages in this case, as the same is essential
to the determination of who is rightfully entitled to the subject “death
I. benefits” of the deceased.

THE HONORABLE COURT OF APPEALS GRAVELY ERRED IN Under the Civil Code, which was the law in force when the marriage of
AFFIRMING THE FINDINGS OF THE LOWER COURT THAT VDA. DE petitioner Susan Nicdao and the deceased was solemnized in 1969, a valid
CONSUEGRA VS. GSIS IS APPLICABLE TO THE CASE AT BAR. marriage license is a requisite of marriage, 12 and the absence thereof,
subject to certain exceptions, 13 renders the marriage void ab initio. 14
II.
In the case at bar, there is no question that the marriage of petitioner and
THE HONORABLE COURT OF APPEALS GRAVELY ERRED IN the deceased does not fall within the marriages exempt from the license
APPLYING EQUITY IN THE INSTANT CASE INSTEAD OF THE CLEAR requirement. A marriage license, therefore, was indispensable to the validity
AND UNEQUIVOCAL MANDATE OF THE FAMILY CODE. of their marriage. This notwithstanding, the records reveal that the
marriage contract of petitioner and the deceased bears no marriage license
III. number and, as certified by the Local Civil Registrar of San Juan, Metro
Manila, their office has no record of such marriage license. In Republic v.
Court of Appeals, 15 the Court held that such a certification is adequate to
THE HONORABLE COURT OF APPEALS GRAVELY ERRED IN NOT
prove the non-issuance of a marriage license. Absent any circumstance of
FINDING THE CASE OF VDA. DE CONSUEGRA VS GSIS TO HAVE
suspicion, as in the present case, the certification issued by the local civil
BEEN MODIFIED, AMENDED AND EVEN ABANDONED BY THE
registrar enjoys probative value, he being the officer charged under the law
ENACTMENT OF THE FAMILY CODE. 8
to keep a record of all data relative to the issuance of a marriage license.
Under Article 40 of the Family Code, the absolute nullity of a previous
Such being the case, the presumed validity of the marriage of petitioner and
marriage may be invoked for purposes of remarriage on the basis solely of a
the deceased has been sufficiently overcome. It then became the burden of
final judgment declaring such previous marriage void. Meaning, where the
petitioner to prove that their marriage is valid and that they secured the
absolute nullity of a previous marriage is sought to be invoked for purposes
required marriage license. Although she was declared in default before the
of contracting a second marriage, the sole basis acceptable in law, for said
trial court, petitioner could have squarely met the issue and explained the
projected marriage to be free from legal infirmity, is a final judgment
absence of a marriage license in her pleadings before the Court of Appeals
declaring the previous marriage void. 9 However, for purposes other than
and this Court. But petitioner conveniently avoided the issue and chose to
remarriage, no judicial action is necessary to declare a marriage an absolute
refrain from pursuing an argument that will put her case in jeopardy. Hence,
nullity. For other purposes, such as but not limited to the determination of
the presumed validity of their marriage cannot stand.
heirship, legitimacy or illegitimacy of a child, settlement of estate,
dissolution of property regime, or a criminal case for that matter, the court
may pass upon the validity of marriage even after the death of the parties It is beyond cavil, therefore, that the marriage between petitioner Susan
thereto, and even in a suit not directly instituted to question the validity of Nicdao and the deceased, having been solemnized without the necessary
said marriage, so long as it is essential to the determination of the case.  10 In marriage license, and not being one of the marriages exempt from the
such instances, evidence must be adduced, testimonial or documentary, to marriage license requirement, is undoubtedly void ab initio.
prove the existence of grounds rendering such a previous marriage an
absolute nullity. These need not be limited solely to an earlier final It does not follow from the foregoing disquisition, however, that since the
judgment of a court declaring such previous marriage void. 11 marriage of petitioner and the deceased is declared void ab initio, the “death
benefits” under scrutiny would now be awarded to respondent Susan Yee.
To reiterate, under Article 40 of the Family Code, for purposes of
remarriage, there must first be a prior judicial declaration of the nullity of a
previous marriage, though void, before a party can enter into a second as a police officer. Unless respondent Susan Yee presents proof to the
marriage, otherwise, the second marriage would also be void. contrary, it could not be said that she contributed money, property or
industry in the acquisition of these monetary benefits. Hence, they are not
Accordingly, the declaration in the instant case of nullity of the previous owned in common by respondent and the deceased, but belong to the
marriage of the deceased and petitioner Susan Nicdao does not validate the deceased alone and respondent has no right whatsoever to claim the same.
second marriage of the deceased with respondent Susan Yee. The fact By intestate succession, the said “death benefits” of the deceased shall pass
remains that their marriage was solemnized without first obtaining a to his legal heirs. And, respondent, not being the legal wife of the deceased is
judicial decree declaring the marriage of petitioner Susan Nicdao and the not one of them.
deceased void. Hence, the marriage of respondent Susan Yee and the
deceased is, likewise, void ab initio. As to the property regime of petitioner Susan Nicdao and the deceased,
Article 147 of the Family Code governs. This article applies to unions of
One of the effects of the declaration of nullity of marriage is the separation parties who are legally capacitated and not barred by any impediment to
of the property of the spouses according to the applicable property contract marriage, but whose marriage is nonetheless void for other
regime. 16 Considering that the two marriages are void ab initio, the reasons, like the absence of a marriage license. Article 147 of the Family
applicable property regime would not be absolute community or conjugal Code reads -
partnership of property, but rather, be governed by the provisions of
Articles 147 and 148 of the Family Code on “Property Regime of Unions Art. 147. When a man and a woman who are capacitated to marry each other,
Without Marriage.” live exclusively with each other as husband and wife without the benefit of
marriage or under a void marriage, their wages and salaries shall be owned
Under Article 148 of the Family Code, which refers to the property regime of by them in equal shares and the property acquired by both of them through
bigamous marriages, adulterous relationships, relationships in a state of their work or industry shall be governed by the rules on co-ownership.
concubine, relationships where both man and woman are married to other
persons, multiple alliances of the same married man, 17 - In the absence of proof to the contrary, properties acquired while they lived
together shall be presumed to have been obtained by their joint efforts, work
“... [O]nly the properties acquired by both of the parties through their actual or industry, and shall be owned by them in equal shares. For purposes of this
joint contribution of money, property, or industry shall be owned by them in Article, a party who did not participate in the acquisition by the other party of
common in proportion to their respective contributions ...” any property shall be deemed to have contributed jointly in the acquisition
thereof if the former’s efforts consisted in the care and maintenance of the
In this property regime, the properties acquired by the parties through family and of the household.
their actual joint contribution shall belong to the co-ownership. Wages
and salaries earned by each party belong to him or her exclusively. Then too, xxx
contributions in the form of care of the home, children and household, or
spiritual or moral inspiration, are excluded in this regime. 18 When only one of the parties to a void marriage is in good faith, the share of
the party in bad faith in the co-ownership shall be forfeited in favor of their
Considering that the marriage of respondent Susan Yee and the deceased is common children. In case of default of or waiver by any or all of the common
a bigamous marriage, having been solemnized during the subsistence of a children or their descendants, each vacant share shall belong to the respective
previous marriage then presumed to be valid (between petitioner and the surviving descendants. In the absence of descendants, such share shall belong
deceased), the application of Article 148 is therefore in order. to the innocent party. In all cases, the forfeiture shall take place upon
termination of the cohabitation.
The disputed P146,000.00 from MBAI [AFP Mutual Benefit Association, Inc.],
NAPOLCOM, Commutation, Pag-ibig, and PCCUI, are clearly renumerations, In contrast to Article 148, under the foregoing article, wages and salaries
incentives and benefits from governmental agencies earned by the deceased earned by either party during the cohabitation shall be owned by the parties
in equal shares and will be divided equally between them, even if only one
party earned the wages and the other did not contribute first marriage void, before he or she could contract said second marriage,
thereto. 19 Conformably, even if the disputed “death benefits” were earned otherwise the second marriage would be void. The same rule applies even if
by the deceased alone as a government employee, Article 147 creates a co- the first marriage is patently void because the parties are not free to
ownership in respect thereto, entitling the petitioner to share one-half determine for themselves the validity or invalidity or their marriage.
thereof. As there is no allegation of bad faith in the present case, both However, for purposes other than to remarry, like for filing a case for
parties of the first marriage are presumed to be in good faith. Thus, one-half collection of sum of money anchored on a marriage claimed to be valid, no
of the subject “death benefits” under scrutiny shall go to the petitioner as prior and separate judicial declaration of nullity is necessary. All that a party
her share in the property regime, and the other half pertaining to the has to do is to present evidence, testimonial or documentary, that would
deceased shall pass by, intestate succession, to his legal heirs, namely, his prove that the marriage from which his or her rights flow is in fact valid.
children with Susan Nicdao. Thereupon, the court, if material to the determination of the issues before it,
will rule on the status of the marriage involved and proceed to determine
In affirming the decision of the trial court, the Court of Appeals relied on the the rights of the parties in accordance with the applicable laws and
case of Vda. de Consuegra v. Government Service Insurance System,  20 where jurisprudence. Thus, in Niñal v. Bayadog, 23 the Court explained:
the Court awarded one-half of the retirement benefits of the deceased to the
first wife and the other half, to the second wife, holding that: [T]he court may pass upon the validity of marriage even in a suit not directly
instituted to question the same so long as it is essential to the determination of
“... [S]ince the defendant’s first marriage has not been dissolved or declared the case. This is without prejudice to any issue that may arise in the case.
void the conjugal partnership established by that marriage has not ceased. When such need arises, a final judgment of declaration of nullity is necessary
Nor has the first wife lost or relinquished her status as putative heir of her even if the purpose is other than to remarry. The clause “on the basis of a final
husband under the new Civil Code, entitled to share in his estate upon his judgment declaring such previous marriage void” in Article 40 of the Family
death should she survive him. Consequently, whether as conjugal partner in a Code connoted that such final judgment need not be obtained only for purpose
still subsisting marriage or as such putative heir she has an interest in the of remarriage.
husband’s share in the property here in dispute....” And with respect to the
right of the second wife, this Court observed that although the second WHEREFORE, the petition is GRANTED, and the decision of the Court of
marriage can be presumed to be void ab initio as it was celebrated while the Appeals in CA-G.R. CV No. 51263 which affirmed the decision of the Regional
first marriage was still subsisting, still there is need for judicial declaration of Trial Court of Quezon City ordering petitioner to pay respondent the sum of
such nullity. And inasmuch as the conjugal partnership formed by the second P73,000.00 plus attorney’s fees in the amount of P5,000.00, is REVERSED
marriage was dissolved before judicial declaration of its nullity, “[t]he only and SET ASIDE. The complaint in Civil Case No. Q-93-18632, is hereby
just and equitable solution in this case would be to recognize the right of the DISMISSED. No pronouncement as to costs.1âwphi1.nêt
second wife to her share of one-half in the property acquired by her and her
husband, and consider the other half as pertaining to the conjugal partnership SO ORDERED.
of the first marriage.”  21

It should be stressed, however, that the aforecited decision is premised on

the rule which requires a prior and separate judicial declaration of nullity of
marriage. This is the reason why in the said case, the Court determined the
rights of the parties in accordance with their existing property regime.

In Domingo v. Court of Appeals, 22 however, the Court, construing Article 40

of the Family Code, clarified that a prior and separate declaration of nullity
of a marriage is an all important condition precedent only for purposes of
remarriage. That is, if a party who is previously married wishes to contract a
second marriage, he or she has to obtain first a judicial decree declaring the
6 ARTICLE 41-42 Respondent Nolasco further testified that after the marriage celebration, he
obtained another employment contract as a seaman and left his wife with
G.R. No. 94053 March 17, 1993 his parents in San Jose, Antique. Sometime in January 1983, while working
overseas, respondent received a letter from his mother informing him that
REPUBLIC OF THE PHILIPPINES, petitioner,  Janet Monica had given birth to his son. The same letter informed him that
vs. Janet Monica had left Antique. Respondent claimed he then immediately
GREGORIO NOLASCO, respondent. asked permission to leave his ship to return home. He arrived in Antique in
November 1983.
The Solicitor General for plaintiff-appellee.
Respondent further testified that his efforts to look for her himself
Warloo G. Cardenal for respondent. 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
RESOLUTION
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

FELICIANO, J.: 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
On 5 August 1988, respondent Gregorio Nolasco filed before the Regional information even after they were married. He also testified that he did not
Trial Court of Antique, Branch 10, a petition for the declaration of report the matter of Janet Monica's disappearance to the Philippine
presumptive death of his wife Janet Monica Parker, invoking Article 41 of government authorities.
the Family Code. The petition prayed that respondent's wife be declared
presumptively dead or, in the alternative, that the marriage be declared null Respondent Nolasco presented his mother, Alicia Nolasco, as his witness.
and void.1 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
The Republic of the Philippines opposed the petition through the Provincial December 1982. When asked why her daughter-in-law might have wished
Prosecutor of Antique who had been deputized to assist the Solicitor- to leave Antique, respondent's mother replied that Janet Monica never got
General in the instant case. The Republic argued, first, that Nolasco did not used to the rural way of life in San Jose, Antique. Alicia Nolasco also said that
possess a "well-founded belief that the absent spouse was already she had tried to dissuade Janet Monica from leaving as she had given birth
dead,"2 and second, Nolasco's attempt to have his marriage annulled in the to her son just fifteen days before, but when she (Alicia) failed to do so, she
same proceeding was a "cunning attempt" to circumvent the law on gave Janet Monica P22,000.00 for her expenses before she left on 22
marriage.3 December 1982 for England. She further claimed that she had no
information as to the missing person's present whereabouts.
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 The trial court granted Nolasco's petition in a Judgment dated 12 October
during one of his ship's port calls. From that chance meeting onwards, Janet 1988 the dispositive portion of which reads:
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 Wherefore, under Article 41, paragraph 2 of the Family
November 1980 after his seaman's contract expired. On 15 January 1982, Code of the Philippines (Executive Order No. 209, July 6,
respondent married Janet Monica Parker in San Jose, Antique, in Catholic 1987, as amended by Executive Order No. 227, July 17,
rites officiated by Fr. Henry van Tilborg in the Cathedral of San Jose. 1987) this Court hereby declares as presumptively dead
 Janet Monica Parker Nolasco, without prejudice to her institute a summary proceeding as provided in this Code for
reappearance.4 the declaration of presumptive death of the absentee,
without prejudice to the effect of reappearance of the
The Republic appealed to the Court of Appeals contending that the trial absent spouse. (Emphasis supplied).
court erred in declaring Janet Monica Parker presumptively dead because
respondent Nolasco had failed to show that there existed a well founded When Article 41 is compared with the old provision of the Civil Code, which
belief for such declaration. it superseded,7 the following crucial differences emerge. Under Article 41,
the time required for the presumption to arise has been shortened to four
The Court of Appeals affirmed the trial court's decision, holding that (4) years; however, there is need for a judicial declaration of presumptive
respondent had sufficiently established a basis to form a belief that his death to enable the spouse present to remarry. 8 Also, Article 41 of the
absent spouse had already died. 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
The Republic, through the Solicitor-General, is now before this Court on a absentee is still alive; or the absentee is generally considered to be
Petition for Review where the following allegations are made: dead and believed 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
1. The Court of Appeals erred in affirming the trial court's hand, prescribes as "well founded belief" that the absentee is already
finding that there existed a well-founded belief on the part dead before a petition for declaration of presumptive death can be granted.
of Nolasco that Janet Monica Parker was already dead; and
As pointed out by the Solicitor-General, there are four (4) requisites for the
2. The Court of Appeals erred in affirming the trial Court's declaration of presumptive death under Article 41 of the Family Code:
declaration that the petition was a proper case of the
declaration of presumptive death under Article 41, Family 1. That the absent spouse has been missing for four
Code.5 consecutive years, or two consecutive years if the
disappearance occurred where there is danger of death
The issue before this Court, as formulated by petitioner is "[w]hether or not under the circumstances laid down in Article 391, Civil
Nolasco has a well-founded belief that his wife is already dead."6 Code;

The present case was filed before the trial court pursuant to Article 41 of the 2. That the present spouse wishes to remarry;
Family Code which provides that:
3. That the present spouse has a well-founded belief that the
Art. 41. A marriage contracted by any person during the absentee is dead; and
subsistence of a previous marriage shall be null and void,
unless before the celebration of the subsequent marriage, 4. That the present spouse files a summary proceeding for
the prior spouse had been absent for four consecutive years the declaration of presumptive death of the absentee. 10
and the spouse present had a well-founded belief that the
absent spouse was already dead. In case of disappearance Respondent naturally asserts that he had complied with all these
where there is danger of death under the circumstances set requirements.11
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
For the purpose of contracting the subsequent marriage requirement, i.e., the existence of a "well-founded belief" that the absent
under the preceding paragraph, the spouse present must spouse is already dead.
The Court believes that respondent Nolasco failed to conduct a search for London to look for her I could not find
his missing wife with such diligence as to give rise to a "well-founded belief" her (sic). 15 (Emphasis supplied)
that she is dead.
Respondent's testimony, however, showed that he confused London for
United States v. Biasbas, 12 is instructive as to degree of diligence required in Liverpool and this casts doubt on his supposed efforts to locate his wife in
searching for a missing spouse. In that case, defendant Macario Biasbas was England. The Court of Appeal's justification of the mistake, to wit:
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 . . . Well, while the cognoscente (sic) would readily know the
not exercised due diligence to ascertain the whereabouts of his first wife, geographical difference between London and Liverpool, for
noting that: a humble seaman like Gregorio the two places could mean
one — place in England, the port where his ship docked and
While the defendant testified that he had made inquiries where he found Janet. Our own provincial folks, every time
concerning the whereabouts of his wife, he fails to state of they leave home to visit relatives in Pasay City, Kalookan
whom he made such inquiries. He did not even write to the City, or Parañ aque, would announce to friends and relatives,
parents of his first wife, who lived in the Province of "We're going to Manila." This apparent error in naming of
Pampanga, for the purpose of securing information places of destination does not appear to be fatal. 16
concerning her whereabouts. He admits that he had a
suspicion only that his first wife was dead. He admits that is not well taken. There is no analogy between Manila and its neighboring
the only basis of his suspicion was the fact that she had been cities, on one hand, and London and Liverpool, on the other, which, as
absent. . . . 13 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
In the case at bar, the Court considers that the investigation allegedly Liverpool or London with a simple hope of somehow bumping into one
conducted by respondent in his attempt to ascertain Janet Monica Parker's particular person there — which is in effect what Nolasco says he did — can
whereabouts is too sketchy to form the basis of a reasonable or well- be regarded as a reasonably diligent search.
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 The Court also views respondent's claim that Janet Monica declined to give
help of local authorities or of the British Embassy, 14 he secured another any information as to her personal background even after she had married
seaman's contract and went to London, a vast city of many millions of respondent 17 too convenient an excuse to justify his failure to locate her.
inhabitants, to look for her there. 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
Q After arriving here in San Jose, Antique, he had lost these returned letters, under unspecified circumstances.
did you exert efforts to inquire the
whereabouts of your wife? Neither can this Court give much credence to respondent's bare assertion
that he had inquired from their friends of her whereabouts, considering that
A Yes, Sir. respondent did not identify those friends in his testimony. The Court of
Appeals ruled that since the prosecutor failed to rebut this evidence during
Court: 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
How did you do that? noted before, there are serious doubts to respondent's credibility.
Moreover, even if admitted as evidence, said testimony merely tended to
A I secured another contract with the ship show that the missing spouse had chosen not to communicate with their
and we had a trip to London and I went to common acquaintances, and not that she was dead.
Respondent testified that immediately after receiving his mother's letter and incidents are governed by law and not subject to
sometime in January 1983, he cut short his employment contract to return stipulation, except that marriage settlements may fix the
to San Jose, Antique. However, he did not explain the delay of nine (9) property relations during the marriage within the limits
months from January 1983, when he allegedly asked leave from his captain, provided by this Code. (Emphasis supplied)
to November 1983 when be finally reached San Jose. Respondent, moreover,
claimed he married Janet Monica Parker without inquiring about her In Arroyo, Jr. v. Court of Appeals, 23 the Court stressed strongly the need to
parents and their place of residence. 19 Also, respondent failed to explain protect.
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 . . . the basic social institutions of marriage and the family in
Janet Monica's departure and respondent's subsequent behavior make it the preservation of which the State bas the strongest
very difficult to regard the claimed belief that Janet Monica was dead a well- interest; the public policy here involved is of the most
founded one. fundamental kind. In Article II, Section 12 of the
Constitution there is set forth the following basic state
In Goitia v. Campos-Rueda, 20 the Court stressed that: policy:

. . . Marriage is an institution, the maintenance of which in The State recognizes the sanctity of family
its purity the public is deeply interested. It is a relationship life and shall protect and strengthen the
for life and the parties cannot terminate it at any shorter family as a basic autonomous social
period by virtue of any contract they make. . . . . 21 (Emphasis institution. . . .
supplied)
The same sentiment bas been expressed in the Family Code
By the same token, the spouses should not be allowed, by the simple of the Philippines in Article 149:
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 The family, being the foundation of the
notes that respondent even tried to have his marriage annulled before the nation, is a basic social institution which
trial court in the same proceeding. public policy cherishes and protects.
Consequently, family relations are governed
In In Re Szatraw, 22 the Court warned against such collusion between the by law and no custom, practice or
parties when they find it impossible to dissolve the marital bonds through agreement destructive of the family shall be
existing legal means. recognized or given effect. 24

While the Court understands the need of respondent's young son, Gerry In fine, respondent failed to establish that he had the well-founded belief
Nolasco, for maternal care, still the requirements of the law must prevail. required by law that his absent wife was already dead that would sustain
Since respondent failed to satisfy the clear requirements of the law, his the issuance of a court order declaring Janet Monica Parker presumptively
petition for a judicial declaration of presumptive death must be denied. The dead.
law does not view marriage like an ordinary contract. Article 1 of the Family
Code emphasizes that. WHEREFORE, the Decision of the Court of Appeals dated 23 February 1990,
affirming the trial court's decision declaring Janet Monica Parker
. . . Marriage is a special contract of permanent presumptively dead is hereby REVERSED and both Decisions are hereby
union between a man and a woman entered into in NULLIFIED and SET ASIDE. Costs against respondent.
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,
7 ARTICLE 41-42 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,
G.R. No. 165545             March 24, 2006 died.11

SOCIAL SECURITY SYSTEM, Petitioner,  Respondent thereupon filed a claim for funeral benefits, and was
vs. granted P12,00012 by the SSS.
TERESITA JARQUE VDA. DE BAILON, Respondent.
Respondent filed on March 11, 1998 an additional claim for death
DECISION benefits13 which was also granted by the SSS on April 6, 1998.14

CARPIO MORALES,J.: 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 Court of Appeals Decision1 dated June 23, 20042 and Resolution dated the death and funeral benefits. She claimed that Bailon contracted three
September 28, 20043 reversing the Resolution dated April 2, 20034 and marriages in his lifetime, the first with Alice, the second with her mother
Order dated June 4, 20035 of the Social Security Commission (SSC) in SSC Elisa, and the third with respondent, all of whom are still alive; she, together
Case No. 4-15149-01 are challenged in the present petition for review on with her siblings, paid for Bailon’s medical and funeral expenses; and all the
certiorari. documents submitted by respondent to the SSS in support of her claims are
spurious.
On April 25, 1955, Clemente G. Bailon (Bailon) and Alice P. Diaz (Alice)
contracted marriage in Barcelona, Sorsogon.6 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
More than 15 years later or on October 9, 1970, Bailon filed before the then of nine children of Bailon and Elisa who cohabited as husband and wife as
Court of First Instance (CFI) of Sorsogon a petition 7 to declare Alice early as 1958; and they were reserving their right to file the necessary court
presumptively dead. action to contest the marriage between Bailon and respondent as they
personally know that Alice is "still very much alive."16
By Order of December 10, 1970,8 the CFI granted the petition, disposing as
follows: 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 Bailon’s death,17 he further attesting in a sworn
WHEREFORE, there being no opposition filed against the petition
statement18 that it was Norma who defrayed Bailon’s funeral expenses.
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 Elisa and seven of her children19 subsequently filed claims for death benefits
dead. as Bailon’s beneficiaries before the SSS.20

SO ORDERED.9 (Underscoring supplied) 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
Close to 13 years after his wife Alice was declared presumptively dead or on
to her from February 1998 to May 1999 representing such benefits; the
August 8, 1983, Bailon contracted marriage with Teresita Jarque
denial of the claim of Alice on the ground that she was not dependent upon
(respondent) in Casiguran, Sorsogon.10
Bailon for support during his lifetime; and the payment of the balance of the
five-year guaranteed pension to Bailon’s beneficiaries according to the
order of preference provided under the law, after the amount erroneously return the amount of P24,000 representing the total amount of monthly
paid to respondent has been collected. The pertinent portions of the pension she had received from the SSS from February 1998 to May 1999.
Memorandum read:
Respondent protested the cancellation of her monthly pension for death
1. Aliz [sic] Diaz never disappeared. The court must have been benefits by letter to the SSS dated October 12, 1999. 24 In a subsequent letter
misled by misrepresentation in declaring the first wife, Aliz [sic] dated November 27, 199925 to the SSC, she reiterated her request for the
Diaz, as presumptively dead. 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
xxxx remained valid and subsisting for all legal intents and purposes as in fact
Bailon designated her as his beneficiary.
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 The SSS, however, by letter to respondent dated January 21,
[sic] Diaz, is contrary proof that rendered it invalid. 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
xxxx deprived of her right to file a petition with the SSC.

3. It was the deceased member who abandoned his wife, Aliz [sic] Respondent thus filed a petition27 against the SSS before the SSC for the
Diaz. He, being in bad faith, and is the deserting spouse, his restoration to her of her entitlement to monthly pension.
remarriage is void, being bigamous.
In the meantime, respondent informed the SSS that she was returning,
xxxx under protest, the amount of P12,000 representing the funeral benefits she
received, she alleging that Norma and her siblings "forcibly and coercively
In this case, it is the deceased member who was the deserting spouse and prevented her from spending any amount during Bailon’s wake."28
who remarried, thus his marriage to Teresita Jarque, for the second time
was void as it was bigamous. To require affidavit of reappearance to After the SSS filed its Answer29 to respondent’s petition, and the parties filed
terminate the second marriage is not necessary as there is no disappearance their respective Position Papers, one Alicia P. Diaz filed an Affidavit 30 dated
of Aliz [sic] Diaz, the first wife, and a voidable marriage [sic], to speak August 14, 2002 with the SSS Naga Branch attesting that she is the widow of
of.21 (Underscoring supplied) 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
In the meantime, the SSS Sorsogon Branch, by letter of August 16, could have easily located her, she having stayed at her parents’ residence in
2000,22 advised respondent that as Cecilia and Norma were the ones who Barcelona, Sorsogon after she found out that Bailon was having an
defrayed Bailon’s funeral expenses, she should return the P12,000 paid to extramarital affair; and Bailon used to visit her even after their separation.
her.
By Resolution of April 2, 2003, the SSC found that the marriage of
In a separate letter dated September 7, 1999,  the SSS advised respondent
23 respondent to Bailon was void and, therefore, she was "just a common-law-
of the cancellation of her monthly pension for death benefits in view of the wife." Accordingly it disposed as follows, quoted verbatim:
opinion rendered by its legal department that her marriage with Bailon was
void as it was contracted while the latter’s marriage with Alice was still WHEREFORE, this Commission finds, and so holds, that petitioner Teresita
subsisting; and the December 10, 1970 CFI Order declaring Alice Jarque-Bailon is not the legitimate spouse and primary beneficiary of SSS
presumptively dead did not become final, her "presence" being "contrary member Clemente Bailon.
proof" against the validity of the order. It thus requested respondent to
Accordingly, the petitioner is hereby ordered to refund to the SSS the It having been established, by substantial evidence, that the petitioner
amount of P24,000.00 representing the death benefit she received was just a common-law wife of the deceased member, it necessarily follows
therefrom for the period February 1998 until May 1999 as well that she is not entitled as a primary beneficiary, to the latter’s death benefit.
as P12,000.00 representing the funeral benefit. xxx

The SSS is hereby ordered to pay Alice (a.k.a. Aliz) Diaz-Bailon the xxxx
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 It having been determined that Teresita Jarque was not the legitimate
Law, as amended, and its prevailing rules and regulations and to inform this surviving spouse and primary beneficiary of Clemente Bailon, it behooves
Commission of its compliance herewith. 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
SO ORDERED.31 (Underscoring supplied) of solutio indebiti x x x

In so ruling against respondent, the SSC ratiocinated. 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
After a thorough examination of the evidence at hand, this Commission of P12,000.00 which was earlier given to her by the SSS as funeral
comes to the inevitable conclusion that the petitioner is not the legitimate benefit.33(Underscoring supplied)
wife of the deceased member.
Respondent’s Motion for Reconsideration34 having been denied by Order of
xxxx June 4, 2003, she filed a petition for review 35 before the Court of Appeals
(CA).
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 By Decision of June 23, 2004, the CA reversed and set aside the April 2, 2003
never disappeared as the deceased member represented in bad faith. This Resolution and June 4, 2003 Order of the SSC and thus ordered the SSS to
Commission accords credence to the findings of the SSS contained in its pay respondent all the pension benefits due her. Held the CA:
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 x [T]he paramount concern in this case transcends the issue of whether
x x. or not the decision of the then CFI, now RTC, declaring Alice Diaz
presumptively dead has attained finality but, more importantly, whether or
As the declaration of presumptive death was extracted by the deceased not the respondents SSS and Commission can validly re-evaluate the
member using artifice and by exerting fraud upon the unsuspecting court of findings of the RTC, and on its own, declare the latter’s decision to be bereft
law, x x x it never had the effect of giving the deceased member the right to of any basis. On similar import, can respondents SSS and Commission validly
marry anew. x x x [I]t is clear that the marriage to the petitioner is void, declare the first marriage subsisting and the second marriage null and void?
considering that the first marriage on April 25, 1955 to Alice Diaz was not
previously annulled, invalidated or otherwise dissolved during the lifetime xxxx
of the parties thereto. x x x as determined through the investigation
conducted by the SSS, Clemente Bailon was the abandoning spouse, not x x x while it is true that a judgment declaring a person presumptively dead
Alice Diaz Bailon. never attains finality as the finding that "the person is unheard of in seven
years is merely a presumption juris tantum," the second marriage
xxxx 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 THE DECISION OF THE HONORABLE COURT OF APPEALS IS CONTRARY TO
contemplates [sic] the possibility that respondent SSS may validly declare LAW.
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 II
dead is without basis.
THE HONORABLE COURT OF APPEALS GRAVELY ABUSED ITS DISCRETION
Respondent SSS cannot arrogate upon itself the authority to review the AMOUNTING TO LACK OF JURISDICTION.39
decision of the regular courts under the pretext of determining the actual
and lawful beneficiaries of its members. Notwithstanding its opinion as to The SSS faults the CA for failing to give due consideration to the findings of
the soundness of the findings of the RTC, it should extend due credence to facts of the SSC on the prior and subsisting marriage between Bailon and
the decision of the RTC absent of [sic] any judicial pronouncement to the Alice; in disregarding the authority of the SSC to determine to whom,
contrary. x x x between Alice and respondent, the death benefits should be awarded
pursuant to Section 540 of the Social Security Law; and in declaring that the
x x x [A]ssuming arguendo that respondent SSS actually possesses the SSS did not give respondent due process or ample opportunity to present
authority to declare the decision of the RTC to be without basis, the evidence in her behalf.
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 The SSS submits that "the observations and findings relative to the CFI
given ample opportunity to present evidence for and her behalf. proceedings are of no moment to the present controversy, as the same may
be considered only as obiter dicta in view of the SSC’s finding of the
xxxx 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
Respondent SSS is correct in stating that the filing of an Affidavit of
Reappearance with the Civil Registry is no longer practical under the The petition fails.
premises. Indeed, there is no more first marriage to restore as the marital
bond between Alice Diaz and Clemente Bailon was already terminated upon That the SSC is empowered to settle any dispute with respect to SSS
the latter’s death. Neither is there a second marriage to terminate because coverage, benefits and contributions, there is no doubt. In so exercising such
the second marriage was likewise dissolved by the death of Clemente power, however, it cannot review, much less reverse, decisions rendered by
Bailon. 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
However, it is not correct to conclude that simply because the filing of the disregarded the same, making its own findings with respect to the validity of
Affidavit of Reappearance with the Civil Registry where parties to the Bailon and Alice’s marriage on the one hand and the invalidity of Bailon and
subsequent marriage reside is already inutile, the respondent SSS has now respondent’s marriage on the other.
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
The SSC and the SSS separately filed their Motions for trifle with orders of regular courts in the exercise of its authority to
Reconsideration37 which were both denied for lack of merit. determine the beneficiaries of the SSS.

Hence, the SSS’ present petition for review on certiorari38 anchored on the The two marriages involved herein having been solemnized prior to the
following grounds: 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
I time of their celebration.42
Article 83 of the Civil Code43 provides: spouse or of the continuance of the marital relation with such first
spouse.47 (Underscoring supplied)
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 Under the Civil Code, a subsequent marriage being voidable,48 it is
first spouse shall be illegal and void from its performance, unless: 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
(1) The first marriage was annulled or dissolved; or marriage.

(2) The first spouse had been absent for seven consecutive years at Under the Family Code, no judicial proceeding to annul a subsequent
the time of the second marriage without the spouse present having marriage is necessary. Thus Article 42 thereof provides:
news of the absentee being alive, or if the absentee, though he has
been absent for less than seven years, is generally considered as Art. 42. The subsequent marriage referred to in the preceding Article shall
dead and believed to be so by the spouse present at the time of be automatically terminated by the recording of the affidavit of
contracting such subsequent marriage, or if the absentee is reappearance of the absent spouse, unless there is a judgment annulling
presumed dead according to Articles 390 and 391. The marriage so the previous marriage or declaring it void ab initio.
contracted shall be valid in any of the three cases until declared
null and void by a competent court. (Emphasis and underscoring A sworn statement of the fact and circumstances of reappearance shall be
supplied) recorded in the civil registry of the residence of the parties to the
subsequent marriage at the instance of any interested person, with due
Under the foregoing provision of the Civil Code, a subsequent marriage notice to the spouses of the subsequent marriage and without prejudice
contracted during the lifetime of the first spouse is illegal and void ab to the fact of reappearance being judicially determined in case such fact is
initio unless the prior marriage is first annulled or dissolved or contracted disputed. (Emphasis and underscoring supplied)
under any of the three exceptional circumstances. It bears noting that the
marriage under any of these exceptional cases is deemed valid "until The termination of the subsequent marriage by affidavit provided by the
declared null and void by a competent court." It follows that the onus above-quoted provision of the Family Code does not preclude the filing of an
probandi in these cases rests on the party assailing the second marriage.44 action in court to prove the reappearance of the absentee and obtain a
declaration of dissolution or termination of the subsequent marriage.49
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 If the absentee reappears, but no step is taken to terminate the subsequent
death, which judicial declaration was not even a requirement then for marriage, either by affidavit or by court action, such absentee’s mere
purposes of remarriage.46 reappearance, even if made known to the spouses in the subsequent
marriage, will not terminate such marriage.50 Since the second marriage has
Eminent jurist Arturo M. Tolentino (now deceased) commented: been contracted because of a presumption that the former spouse is dead,
such presumption continues inspite of the spouse’s physical reappearance,
Where a person has entered into two successive marriages, a presumption and by fiction of law, he or she must still be regarded as legally an absentee
arises in favor of the validity of the second marriage, and the burden is on until the subsequent marriage is terminated as provided by law.51
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 If the subsequent marriage is not terminated by registration of an affidavit
marriage, for it must also be shown that it had not ended when the second of reappearance or by judicial declaration but by death of either spouse as
marriage was contracted. The presumption in favor of the innocence of the in the case at bar, Tolentino submits:
defendant from crime or wrong and of the legality of his second marriage,
will prevail over the presumption of the continuance of life of the first
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,
Bailon’s and respondent’s marriage prior to the former’s 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.

SO ORDERED.
8 ARTICLE 41-42 Tina finally agreed to marry Eduardo sometime in the first week of March 1996.
They were married on April 22, 1996 before Judge Antonio C. Reyes, the
G.R. No. 165842 November 29, 2005
Presiding Judge of the RTC of Baguio City, Branch 61.5 It appeared in their
EDUARDO P. MANUEL, Petitioner,  marriage contract that Eduardo was "single."
vs.
PEOPLE OF THE PHILIPPINES, Respondent.
The couple was happy during the first three years of their married life. Through
DECISION their joint efforts, they were able to build their home in Cypress Point, Irisan,
Baguio City. However, starting 1999, Manuel started making himself scarce and
CALLEJO, SR., J.:
went to their house only twice or thrice a year. Tina was jobless, and whenever
Before us is a petition for review on certiorari of the Decision1 of the Court of she asked money from Eduardo, he would slap her.6 Sometime in January 2001,
Appeals (CA) in CA-G.R. CR No. 26877, affirming the Decision2 of the Regional Eduardo took all his clothes, left, and did not return. Worse, he stopped giving
Trial Court (RTC) of Baguio City, Branch 3, convicting Eduardo P. Manuel of financial support.
bigamy in Criminal Case No. 19562-R.
Sometime in August 2001, Tina became curious and made inquiries from the
Eduardo was charged with bigamy in an Information filed on November 7, 2001, National Statistics Office (NSO) in Manila where she learned that Eduardo had
the accusatory portion of which reads: been previously married. She secured an NSO-certified copy of the marriage
contract.7 She was so embarrassed and humiliated when she learned that
That on or about the 22nd day of April, 1996, in the City of Baguio, Philippines,
Eduardo was in fact already married when they exchanged their own vows.8
and within the jurisdiction of this Honorable Court, the above-named accused
EDUARDO P. MANUEL, being then previously and legally married to RUBYLUS For his part, Eduardo testified that he met Tina sometime in 1995 in a bar
[GAÑA] and without the said marriage having been legally dissolved, did then where she worked as a Guest Relations Officer (GRO). He fell in love with her
and there willfully, unlawfully and feloniously contract a second marriage with and married her. He informed Tina of his previous marriage to Rubylus Gaña,
TINA GANDALERA-MANUEL, herein complainant, who does not know the but she nevertheless agreed to marry him. Their marital relationship was in
existence of the first marriage of said EDUARDO P. MANUEL to Rubylus [Gaña]. order until this one time when he noticed that she had a "love-bite" on her
neck. He then abandoned her. Eduardo further testified that he declared he was
CONTRARY TO LAW. 3
"single" in his marriage contract with Tina because he believed in good faith
The prosecution adduced evidence that on July 28, 1975, Eduardo was married that his first marriage was invalid. He did not know that he had to go to court to
to Rubylus Gaña before Msgr. Feliciano Santos in Makati, which was then still a seek for the nullification of his first marriage before marrying Tina.
municipality of the Province of Rizal.4 He met the private complainant Tina B.
Eduardo further claimed that he was only forced to marry his first wife because
Gandalera in Dagupan City sometime in January 1996. She stayed in Bonuan,
she threatened to commit suicide unless he did so. Rubylus was charged
Dagupan City for two days looking for a friend. Tina was then 21 years old, a
with estafa in 1975 and thereafter imprisoned. He visited her in jail after three
Computer Secretarial student, while Eduardo was 39. Afterwards, Eduardo went
months and never saw her again. He insisted that he married Tina believing that
to Baguio City to visit her. Eventually, as one thing led to another, they went to
his first marriage was no longer valid because he had not heard from Rubylus
a motel where, despite Tina’s resistance, Eduardo succeeded in having his way
for more than 20 years.
with her. Eduardo proposed marriage on several occasions, assuring her that he
was single. Eduardo even brought his parents to Baguio City to meet Tina’s After trial, the court rendered judgment on July 2, 2002 finding Eduardo guilty
parents, and was assured by them that their son was still single. beyond reasonable doubt of bigamy. He was sentenced to an indeterminate
penalty of from six (6) years and ten (10) months, as minimum, to ten (10)
years, as maximum, and directed to indemnify the private complainant Tina However, the OSG agreed with the appellant that the penalty imposed by the
Gandalera the amount of ₱200,000.00 by way of moral damages, plus costs of trial court was erroneous and sought the affirmance of the decision appealed
suit.9 from with modification.

The trial court ruled that the prosecution was able to prove beyond reasonable On June 18, 2004, the CA rendered judgment affirming the decision of the RTC
doubt all the elements of bigamy under Article 349 of the Revised Penal Code. It with modification as to the penalty of the accused. It ruled that the prosecution
declared that Eduardo’s belief, that his first marriage had been dissolved was able to prove all the elements of bigamy. Contrary to the contention of the
because of his first wife’s 20-year absence, even if true, did not exculpate him appellant, Article 41 of the Family Code should apply. Before Manuel could
from liability for bigamy. Citing the ruling of this Court in People v. Bitdu,10 the lawfully marry the private complainant, there should have been a judicial
trial court further ruled that even if the private complainant had known that declaration of Gaña’s presumptive death as the absent spouse. The appellate
Eduardo had been previously married, the latter would still be criminally liable court cited the rulings of this Court in Mercado v. Tan15 and Domingo v. Court of
for bigamy. Appeals16 to support its ruling. The dispositive portion of the decision reads:

Eduardo appealed the decision to the CA. He alleged that he was not criminally WHEREFORE, in the light of the foregoing, the Decision promulgated on July 31,
liable for bigamy because when he married the private complainant, he did so 2002 is hereby MODIFIED to reflect, as it hereby reflects, that accused-
in good faith and without any malicious intent. He maintained that at the time appellant is sentenced to an indeterminate penalty of two (2) years, four (4)
that he married the private complainant, he was of the honest belief that his months and one (1) day of prision correccional, as minimum, to ten (10) years
first marriage no longer subsisted. He insisted that conformably to Article 3 of of prision mayor  as maximum. Said Decision is AFFIRMED in all other respects.
the Revised Penal Code, there must be malice for one to be criminally liable for
SO ORDERED.17
a felony. He was not motivated by malice in marrying the private complainant
because he did so only out of his overwhelming desire to have a fruitful Eduardo, now the petitioner, filed the instant petition for review on certiorari,
marriage. He posited that the trial court should have taken into account Article insisting that:
390 of the New Civil Code. To support his view, the appellant cited the rulings of
this Court in United States v. Peñalosa11 and Manahan, Jr. v. Court of Appeals.12 I

The Office of the Solicitor General (OSG) averred that Eduardo’s defense of THE COURT OF APPEALS COMMITTED REVERSIBLE ERROR OF LAW WHEN IT
good faith and reliance on the Court’s ruling in United States v. Enriquez13 were RULED THAT PETITIONER’S FIRST WIFE CANNOT BE LEGALLY PRESUMED DEAD
misplaced; what is applicable is Article 41 of the Family Code, which amended UNDER ARTICLE 390 OF THE CIVIL CODE AS THERE WAS NO JUDICIAL
Article 390 of the Civil Code. Citing the ruling of this Court in Republic v. DECLARATION OF PRESUMPTIVE DEATH AS PROVIDED FOR UNDER ARTICLE 41
Nolasco,14 the OSG further posited that as provided in Article 41 of the Family OF THE FAMILY CODE.
Code, there is a need for a judicial declaration of presumptive death of the II
absent spouse to enable the present spouse to marry. Even assuming that the
first marriage was void, the parties thereto should not be permitted to judge for THE COURT OF APPEALS COMMITTED REVERSIBLE ERROR OF LAW WHEN IT
themselves the nullity of the marriage;  AFFIRMED THE AWARD OF PHP200,000.00 AS MORAL DAMAGES AS IT HAS NO
the matter should be submitted to the proper court for resolution. Moreover, BASIS IN FACT AND IN LAW.18
the OSG maintained, the private complainant’s knowledge of the first marriage
The petitioner maintains that the prosecution failed to prove the second
would not afford any relief since bigamy is an offense against the State and not
element of the felony, i.e., that the marriage has not been legally dissolved or,
just against the private complainant.
in case his/her spouse is absent, the absent spouse could not yet be presumed
dead under the Civil Code. He avers that when he married Gandalera in 1996,
Gaña had been "absent" for 21 years since 1975; under Article 390 of the Civil Article 349 of the Revised Penal Code, which defines and penalizes bigamy,
Code, she was presumed dead as a matter of law. He points out that, under the reads:
first paragraph of Article 390 of the Civil Code, one who has been absent for
Art. 349. Bigamy. –  The penalty of prision mayor  shall be imposed upon any
seven years, whether or not he/she is still alive, shall be presumed dead for all
person who shall contract a second or subsequent marriage before the former
purposes except for succession, while the second paragraph refers to the rule
marriage has been legally dissolved, or before the absent spouse has been
on legal presumption of death with respect to succession.
declared presumptively dead by means of a judgment rendered in the proper
The petitioner asserts that the presumptive death of the absent spouse arises proceedings.
by operation of law upon the satisfaction of two requirements: the 
The provision was taken from Article 486 of the Spanish Penal Code, to wit:
specified period and the present spouse’s reasonable belief that the absentee is
dead. He insists that he was able to prove that he had not heard from his first El que contrajere Segundo o ulterior matrimonio sin hallarse legítimamente
wife since 1975 and that he had no knowledge of her whereabouts or whether disuelto el anterior, será castigado con la pena de prision mayor.  xxx
she was still alive; hence, under Article 41 of the Family Code, the presumptive
death of Gaña had arisen by operation of law, as the two requirements of The reason why bigamy is considered a felony is to preserve and ensure the
Article 390 of the Civil Code are present. The petitioner concludes that he juridical tie of marriage established by law.20 The phrase "or before the absent
should thus be acquitted of the crime of bigamy. spouse had been declared presumptively dead by means of a judgment
rendered in the proper proceedings" was incorporated in the Revised Penal
The petitioner insists that except for the period of absences provided for in Code because the drafters of the law were of the impression that "in
Article 390 of the Civil Code, the rule therein on legal presumptions remains consonance with the civil law which provides for the presumption of death after
valid and effective. Nowhere under Article 390 of the Civil Code does it require an absence of a number of years, the judicial declaration of presumed death
that there must first be a judicial declaration of death before the rule on like annulment of marriage should be a justification for bigamy."21
presumptive death would apply. He further asserts that contrary to the rulings
of the trial and appellate courts, the requirement of a judicial declaration of For the accused to be held guilty of bigamy, the prosecution is burdened to
presumptive death under Article 41 of the Family Code is only a requirement for prove the felony: (a) he/she has been legally married; and (b) he/she contracts
the validity of the subsequent or second marriage. a subsequent marriage without the former marriage having been lawfully
dissolved. The felony is consummated on the celebration of the second
The petitioner, likewise, avers that the trial court and the CA erred in awarding marriage or subsequent marriage.22 It is essential in the prosecution for bigamy
moral damages in favor of the private complainant. The private complainant that the alleged second marriage, having all the essential requirements, would
was a "GRO" before he married her, and even knew that he was already be valid were it not for the subsistence of the first marriage. 23 Viada avers that a
married. He genuinely loved and took care of her and gave her financial third element of the crime is that the second marriage must be entered into
support. He also pointed out that she had an illicit relationship with a lover with fraudulent intent (intencion fraudulente) which is an essential element of a
whom she brought to their house. felony by dolo.24 On the other hand, Cuello Calon is of the view that there are
only two elements of bigamy: (1) the existence of a marriage that has not been
In its comment on the petition, the OSG maintains that the decision of the CA
lawfully dissolved; and (2) the celebration of a second marriage. It does not
affirming the petitioner’s conviction is in accord with the law, jurisprudence and
matter whether the first marriage is void or voidable because such marriages
the evidence on record. To bolster its claim, the OSG cited the ruling of this
have juridical effects until lawfully dissolved by a court of competent
Court in Republic v. Nolasco.19
jurisdiction.25 As the Court ruled in Domingo v. Court of Appeals26 and Mercado
The petition is denied for lack of merit. v. Tan,27  under the Family Code of the Philippines, the judicial declaration of
nullity of a previous marriage is a defense.
In his commentary on the Revised Penal Code, Albert is of the same view as petitioner married the private complainant in 1996, long after the effectivity of
Viada and declared that there are three (3) elements of bigamy: (1) an the Family Code.
undissolved marriage; (2) a new marriage; and (3) fraudulent intention
The petitioner is presumed to have acted with malice or evil intent when he
constituting the felony of the act.28 He explained that:
married the private complainant. As a general rule, mistake of fact or good faith
… This last element is not stated in Article 349, because it is undoubtedly of the accused is a valid defense in a prosecution for a felony by dolo; such
incorporated in the principle antedating all codes, and, constituting one of the defense negates malice or criminal intent. However, ignorance of the law is not
landmarks of our Penal Code, that, where there is no willfulness there is no an excuse because everyone is presumed to know the law. Ignorantia legis
crime. There is no willfulness if the subject neminem excusat.
believes that the former marriage has been dissolved; and this must be
It was the burden of the petitioner to prove his defense that when he married
supported by very strong evidence, and if this be produced, the act shall be
the private complainant in 1996, he was of the well-grounded belief 
deemed not to constitute a crime. Thus, a person who contracts a second
that his first wife was already dead, as he had not heard from her for more than
marriage in the reasonable and well-founded belief that his first wife is dead,
20 years since 1975. He should have adduced in evidence a decision of a
because of the many years that have elapsed since he has had any news of her
competent court declaring the presumptive death of his first wife as required by
whereabouts, in spite of his endeavors to find her, cannot be deemed guilty of
Article 349 of the Revised Penal Code, in relation to Article 41 of the Family
the crime of bigamy, because there is no fraudulent intent which is one of the
Code. Such judicial declaration also constitutes proof that the petitioner acted
essential elements of the crime.29
in good faith, and would negate criminal intent on his part when he married the
As gleaned from the Information in the RTC, the petitioner is charged with private complainant and, as a consequence, he could not be held guilty of
bigamy, a felony by dolo (deceit). Article 3, paragraph 2 of the Revised Penal bigamy in such case. The petitioner, however, failed to discharge his burden.
Code provides that there is deceit when the act is performed with deliberate
The phrase "or before the absent spouse has been declared presumptively dead
intent. Indeed, a felony cannot exist without intent. Since a felony by dolo is
by means of a judgment rendered on the proceedings" in Article 349 of the
classified as an intentional felony, it is deemed voluntary.30 Although the words
Revised Penal Code was not an aggroupment of empty or useless words. The
"with malice" do not appear in Article 3 of the Revised Penal Code, such phrase
requirement for a judgment of the presumptive death of the absent spouse is
is included in the word "voluntary."31
for the benefit of the spouse present, as protection from the pains and the
Malice is a mental state or condition prompting the doing of an overt act consequences of a second marriage, precisely because he/she could be charged
without legal excuse or justification from which another suffers injury.32 When and convicted of bigamy if the defense of good faith based on mere testimony
the act or omission defined by law as a felony is proved to have been done or is found incredible.
committed by the accused, the law presumes it to have been
The requirement of judicial declaration is also for the benefit of the State.
intentional.33 Indeed, it is a legal presumption of law that every man intends the
Under Article II, Section 12 of the Constitution, the "State shall protect and
natural or probable consequence of his voluntary act in the absence of proof to
strengthen the family as a basic autonomous social institution." Marriage is a
the contrary, and such presumption must prevail unless a reasonable doubt
social institution of the highest importance. Public policy, good morals and the
exists from a consideration of the whole evidence.34
interest of society require that the marital relation should be surrounded with
For one to be criminally liable for a felony by dolo, there must be a confluence every safeguard and its severance only in the manner prescribed and the causes
of both an evil act and an evil intent. Actus non facit reum, nisi mens sit rea.35 specified by law.37 The laws regulating civil marriages are necessary to serve the
interest, safety, good order, comfort or general welfare of the community and
In the present case, the prosecution proved that the petitioner was married to
the parties can waive nothing essential to the validity of the proceedings. A civil
Gaña in 1975, and such marriage was not judicially declared a nullity; hence, the
marriage is presumed to subsist.36 The prosecution also proved that the
marriage anchors an ordered society by encouraging stable relationships over (1) A person on board a vessel lost during a sea voyage, or an aeroplane which
transient ones; it enhances the welfare of the community. is missing, who has not been heard of for four years since the loss of the vessel
or aeroplane;
In a real sense, there are three parties to every civil marriage; two willing
spouses and an approving State. On marriage, the parties assume new relations (2) A person in the armed forces who has taken part in war, and has been
to each other and the State touching nearly on every aspect of life and death. missing for four years;
The consequences of an invalid marriage to the parties, to innocent parties and
(3) A person who has been in danger of death under other circumstances and
to society, are so serious that the law may well take means calculated to ensure
his existence has not been known for four years.
the procurement of the most positive evidence of death of the first spouse or of
the presumptive death of the absent spouse38 after the lapse of the period The presumption of death of the spouse who had been absent for seven years,
provided for under the law. One such means is the requirement of the it being unknown whether or not the absentee still lives, is created by law and
declaration by a competent court of the presumptive death of an absent spouse arises without any necessity of judicial declaration.42 However, Article 41 of the
as proof that the present spouse contracts a subsequent marriage on a well- Family Code, which amended the foregoing rules on presumptive death, reads:
grounded belief of the death of the first spouse. Indeed, "men readily believe
what they wish to be true," is a maxim of the old jurists. To sustain a second Art. 41. A marriage contracted by any person during the subsistence of a
marriage and to vacate a first because one of the parties believed the other to previous marriage shall be null and void, unless before the celebration of the
be dead would make the existence of the marital relation determinable, not by subsequent marriage, the prior spouse had been absent for four consecutive
certain extrinsic facts, easily capable of forensic ascertainment and proof, but years  and the spouse present had a well-founded belief that the absent spouse
by the subjective condition of individuals.39 Only with such proof can marriage was already dead. In case of disappearance where there is danger of death
be treated as so dissolved as to permit second marriages. 40 Thus, Article 349 of under the circumstances set forth in the provisions of Article 391 of the Civil
the Revised Penal Code has made the dissolution of marriage dependent not Code, an absence of only two years shall be sufficient.
only upon the personal belief of parties, but upon certain objective facts easily For the purpose of contracting the subsequent marriage under the preceding
capable of accurate judicial cognizance,41 namely, a judgment of the paragraph, the spouse present must institute a summary proceeding as
presumptive death of the absent spouse. provided in this Court for the declaration of presumptive death of the absentee,
The petitioner’s sole reliance on Article 390 of the Civil Code as basis for his without prejudice to the effect of reappearance of the absent spouse.43
acquittal for bigamy is misplaced. With the effectivity of the Family Code,44 the period of seven years under the
Articles 390 and 391 of the Civil Code provide – first paragraph of Article 390 of the Civil Code was reduced to four consecutive
years. Thus, before the spouse present may contract a subsequent marriage, he
Art. 390. After an absence of seven years, it being unknown whether or not, the or she must institute summary proceedings for the declaration of the
absentee still lives, he shall be presumed dead for all purposes, except for those presumptive death of the absentee spouse,45 without prejudice to the effect of
of succession. the reappearance of the absentee spouse. As explained by this Court in Armas
v. Calisterio:46
The absentee shall not be presumed dead for the purpose of opening his
succession till after an absence of ten years. If he disappeared after the age of In contrast, under the 1988 Family Code, in order that a subsequent bigamous
seventy-five years, an absence of five years shall be sufficient in order that his marriage may exceptionally be considered valid, the following conditions must
succession may be opened. 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
Art. 391. The following shall be presumed dead for all purposes, including the
under the circumstances stated in Article 391 of the Civil Code at the time of
division of the estate among the heirs:
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 that a petition for a declaration of the presumptive death of an absent spouse
of presumptive death of the absentee for which purpose the spouse present may even be made in collusion with the other spouse.
can institute a summary proceeding in court to ask for that declaration. The last
In Lukban v. Republic of the Philippines,51 the Court declared that the words
condition is consistent and in consonance with the requirement of judicial
"proper proceedings" in Article 349 of the Revised Penal Code can only refer to
intervention in subsequent marriages as so provided in Article 41, in relation to
those authorized by law such as Articles 390 and 391 of the Civil Code which
Article 40, of the Family Code.
refer to the administration or settlement of the estate of a deceased person.
The Court rejects petitioner’s contention that the requirement of instituting a In Gue v. Republic of the Philippines,52  the Court rejected the contention of the
petition for declaration of presumptive death under Article 41 of the Family petitioner therein that, under Article 390 of the Civil Code, the courts are
Code is designed merely to enable the spouse present to contract a valid authorized to declare the presumptive death of a person after an absence of
second marriage and not for the acquittal of one charged with bigamy. Such seven years. The Court reiterated its rulings in Szatraw, Lukban and Jones.
provision was designed to harmonize civil law and Article 349 of the Revised
Former Chief Justice Ramon C. Aquino was of the view that "the provision of
Penal Code, and put to rest the confusion spawned by the rulings of this Court
Article 349 or "before the absent spouse has been declared presumptively dead
and comments of eminent authorities on Criminal Law.
by means of a judgment reached in the proper proceedings" is erroneous and
As early as March 6, 1937, this Court ruled in Jones v. Hortiguela47 that, for should be considered as not written. He opined that such provision presupposes
purposes of the marriage law, it is not necessary to have the former spouse that, if the prior marriage has not been legally dissolved and the absent first
judicially declared an absentee before the spouse present may contract a spouse has not been declared presumptively dead in a proper court
subsequent marriage. It held that the declaration of absence made in proceedings, the subsequent marriage is bigamous. He maintains that the
accordance with the provisions of the Civil Code has for its sole purpose the supposition is not true.53 A second marriage is bigamous only when the
taking of the necessary precautions for the administration of the estate of the circumstances in paragraphs 1 and 2 of Article 83 of the Civil Code are not
absentee. For the celebration of civil marriage, however, the law only requires present.54 Former Senator Ambrosio Padilla was, likewise, of the view that
that the former spouse had been absent for seven consecutive years at the time Article 349 seems to require judicial decree of dissolution or judicial declaration
of the second marriage, that the spouse present does not know his or her of absence but even with such decree, a second marriage in good faith will not
former spouse to be living, that such former spouse is generally reputed to be constitute bigamy. He posits that a second marriage, if not illegal, even if it be
dead and the spouse present so believes at the time of the celebration of the annullable, should not give rise to bigamy.55 Former Justice Luis B. Reyes, on the
marriage.48 In In Re Szatraw,49 the Court declared that a judicial declaration that other hand, was of the view that in the case of an absent spouse who could not
a person is presumptively dead, because he or she had been unheard from in yet be presumed dead according to the Civil Code, the spouse present cannot
seven years, being a presumption juris tantum  only, subject to contrary proof, be charged and convicted of bigamy in case he/she contracts a second
cannot reach the stage of finality or become final; and that proof of actual marriage.56
death of the person presumed dead being unheard from in seven years, would
The Committee tasked to prepare the Family Code proposed the amendments
have to be made in another proceeding to have such particular fact finally
of Articles 390 and 391 of the Civil Code to conform to Article 349 of the
determined. The Court ruled that if a judicial decree declaring a person
Revised Penal Code, in that, in a case where a spouse is absent for the requisite
presumptively dead because he or she had not been heard from in seven years
period, the present spouse may contract a subsequent marriage only after
cannot become final and executory even after the lapse of the reglementary
securing a judgment declaring the presumptive death of the absent spouse to
period within which an appeal may be taken, for such presumption is still
avoid being charged and convicted of bigamy; the present spouse will have to
disputable and remains subject to contrary proof, then a petition for such a
adduce evidence that he had a well-founded belief that the absent spouse was
declaration is useless, unnecessary, superfluous and of no benefit to the
already dead.57 Such judgment is proof of the good faith of the present spouse
petitioner. The Court stated that it should not waste its valuable time and be
who contracted a subsequent marriage; thus, even if the present spouse is later
made to perform a superfluous and meaningless act.50 The Court also took note
charged with bigamy if the absentee spouse reappears, he cannot be convicted there were contrary views because of the ruling in Jones  and the provisions of
of the crime. As explained by former Justice Alicia Sempio-Diy: Article 83(2) of the Civil Code, which, however, appears to have been set to rest
by Article 41 of the Family Code, "which requires a summary hearing for the
… Such rulings, however, conflict with Art. 349 of the Revised Penal Code
declaration of presumptive death of the absent spouse before the other spouse
providing that the present spouse must first ask for a declaration of
can remarry."
presumptive death of the absent spouse in order not to be guilty of bigamy in
case he or she marries again. Under Article 238 of the Family Code, a petition for a declaration of the
presumptive death of an absent spouse under Article 41 of the Family Code may
The above Article of the Family Code now clearly provides that for the purpose
be filed under Articles 239 to 247 of the same Code.62
of the present spouse contracting a second marriage, he or she must file a
summary proceeding as provided in the Code for the declaration of the On the second issue, the petitioner, likewise, faults the trial court and the CA
presumptive death of the absentee, without prejudice to the latter’s for awarding moral damages in favor of the private complainant. The petitioner
reappearance. This provision is intended to protect the present spouse from a maintains that moral damages may be awarded only in any of the cases
criminal prosecution for bigamy under Art. 349 of the Revised Penal Code provided in Article 2219 of the Civil Code, and bigamy is not one of them. The
because with the judicial declaration that the missing spouses presumptively petitioner asserts that the appellate court failed to apply its ruling in People v.
dead, the good faith of the present spouse in contracting a second marriage is Bondoc,63 where an award of moral damages for bigamy was disallowed. In any
already established.58 case, the petitioner maintains, the private complainant failed to adduce
evidence to prove moral damages.
Of the same view is former Dean Ernesto L. Pineda (now Undersecretary of
Justice) who wrote that things are now clarified. He says judicial declaration of The appellate court awarded moral damages to the private complainant on its
presumptive death is now authorized for purposes of  finding that she adduced evidence to prove the same. The appellate court ruled
remarriage. The present spouse must institute a summary proceeding for that while bigamy is not included in those cases enumerated in Article 2219 of
declaration of presumptive death of the absentee, where the ordinary rules of the Civil Code, it is not proscribed from awarding moral damages against the
procedure in trial will not be followed. Affidavits will suffice, with possible petitioner. The appellate court ruled that it is not bound by the following ruling
clarificatory examinations of affiants if the Judge finds it necessary for a full in People v. Bondoc:
grasp of the facts. The judgment declaring an absentee as presumptively dead is
... Pero si en dichos asuntos se adjudicaron daños, ello se debió indedublamente
without prejudice to the effect of reappearance of the said absentee.
porque el articulo 2219 del Código Civil de Filipinas autoriza la adjudicación de
Dean Pineda further states that before, the weight of authority is that the daños morales en los delitos de estupro, rapto, violación, adulterio o
clause "before the absent spouse has been declared presumptively dead x x x" concubinato, y otros actos lascivos, sin incluir en esta enumeración el delito de
should be disregarded because of Article 83, paragraph 3 of the Civil Code. With bigamia. No existe, por consiguiente, base legal para adjudicar aquí los daños
the new law, there is a need to institute a summary proceeding for the de ₱5,000.00 arriba mencionados.64
declaration of the presumptive death of the absentee, otherwise, there is
The OSG posits that the findings and ruling of the CA are based on the evidence
bigamy.59
and the law. The OSG, likewise, avers that the CA was not bound by its ruling
According to Retired Supreme Court Justice Florenz D. Regalado, an eminent in People v. Rodeo.
authority on Criminal Law, in some cases where an absentee spouse is believed
The Court rules against the petitioner.
to be dead, there must be a judicial declaration of presumptive death, which
could then be made only in the proceedings for the settlement of his Moral damages include physical suffering, mental anguish, fright, serious
estate.60 Before such declaration, it was held that the remarriage of the other anxiety, besmirched reputation, wounded feelings, moral shock, social
spouse is bigamous even if done in good faith.61 Justice Regalado opined that humiliation, and similar injury. Though incapable of pecuniary computation,
moral damages may be recovered if they are the proximate result of the anxieties, besmirched reputation, wounded feelings, moral shock, social
defendant’s wrongful act or omission.65 An award for moral damages requires humiliation and similar injury arising out of an act or omission of another,
the confluence of the following conditions: first, there must be an injury, otherwise, there would not have been any reason for the inclusion of specific
whether physical, mental or psychological, clearly sustained by the acts in Article 221967 and analogous cases (which refer to those cases bearing
claimant; second, there must be culpable act or omission factually analogy or resemblance, corresponds to some others or resembling, in other
established; third, the wrongful act or omission of the defendant is the respects, as in form, proportion, relation, etc.)68
proximate cause of the injury sustained by the claimant; and fourth, the award
Indeed, bigamy is not one of those specifically mentioned in Article 2219 of the
of damages is predicated on any of the cases stated in Article 2219 or Article
Civil Code in which the offender may be ordered to pay moral damages to the
2220 of the Civil Code.66
private complainant/offended party. Nevertheless, the petitioner is liable to the
Moral damages may be awarded in favor of the offended party only in criminal private complainant for moral damages under Article 2219 in relation to Articles
cases enumerated in Article 2219, paragraphs 1, 3, 4, 5 and 7 of the Civil Code 19, 20 and 21 of the Civil Code.
and analogous cases, viz.:
According to Article 19, "every person must, in the exercise of his rights and in
Art. 2219. Moral damages may be recovered in the following and analogous the performance of his act with justice, give everyone his due, and observe
cases. honesty and good faith." This provision contains what is commonly referred to
as the principle of abuse of rights, and sets certain standards which must be
(1) A criminal offense resulting in physical injuries;
observed not only in the exercise of one’s rights but also in the performance of
(2) Quasi-delicts causing physical injuries; one’s duties. The standards are the following: act with justice; give everyone his
due; and observe honesty and good faith. The elements for abuse of rights are:
(3) Seduction, abduction, rape, or other lascivious acts; (a) there is a legal right or duty; (b) exercised in bad faith; and (c) for the sole
(4) Adultery or concubinage; intent of prejudicing or injuring another.69

(5) Illegal or arbitrary detention or arrest; Article 20 speaks of the general sanctions of all other provisions of law which do
not especially provide for its own sanction. When a right is exercised in a
(6) Illegal search; manner which does not conform to the standards set forth in the said provision
and results in damage to another, a legal wrong is thereby committed for which
(7) Libel, slander or any other form of defamation;
the wrongdoer must be responsible. 70 If the provision does not provide a
(8) Malicious prosecution; remedy for its violation, an action for damages under either Article 20 or Article
21 of the Civil Code would be proper. Article 20 provides that "every person
(9) Acts mentioned in article 309; who, contrary to law, willfully or negligently causes damage to another shall
(10) Acts and actions referred to in articles 21, 26, 27, 28, 29, 30, 32, 34 and 35. indemnify the latter for the same." On the other hand, Article 21 provides that
"any person who willfully causes loss or injury to another in a manner that is
The parents of the female seduced, abducted, raped, or abused, referred to in contrary to morals, good customs or public policy shall compensate the latter
No. 3 of this article, may also recover moral damages. for damages." The latter provision 
The spouse, descendants, ascendants, and brothers and sisters may bring the is adopted to remedy "the countless gaps in the statutes which leave so many
action mentioned in No. 9 of this article in the order named. victims of moral wrongs helpless, even though they have actually suffered
material and moral injury should vouchsafe adequate legal remedy for that
Thus, the law does not intend that moral damages should be awarded in all untold number of moral wrongs which it is impossible for human foresight to
cases where the aggrieved party has suffered mental anguish, fright, moral prove for specifically in the statutes." Whether or not the principle of abuse of
rights has been violated resulting in damages under Article 20 or Article 21 of and when such result did ensue the plaintiff became entitled not only to
the Civil Code or other applicable provisions of law depends upon the compensatory but also to punitive damages. See Spiegel v. Evergreen Cemetery
circumstances of each case.71 Co., supra; Kuzma v Millinery Workers, etc., Local 24, supra. CF. Note,
"Exemplary Damages in the Law of Torts," 70 Harv. L. Rev. 517 (1957). The
In the present case, the petitioner courted the private complainant and
plaintiff testified that because of the defendant’s bigamous marriage to her and
proposed to marry her. He assured her that he was single. He even brought his
the attendant publicity she not only was embarrassed and "ashamed to go out"
parents to the house of the private complainant where he and his parents made
but "couldn’t sleep" but "couldn’t eat," had terrific headaches" and "lost quite a
the same assurance – that he was single. Thus, the private complainant agreed
lot of weight." No just basis appears for judicial interference with the jury’s
to marry the petitioner, who even stated in the certificate of marriage that he
reasonable allowance of $1,000 punitive damages on the first count. See
was single. She lived with the petitioner and dutifully performed her duties as
Cabakov v. Thatcher, 37 N.J. Super 249, 117 A.2d 298 (App. Div.74 1955).
his wife, believing all the while that he was her lawful husband. For two years or
so until the petitioner heartlessly abandoned her, the private complainant had The Court thus declares that the petitioner’s acts are against public policy as
no inkling that he was already married to another before they were married. they undermine and subvert the family as a social institution, good morals and
the interest and general welfare of society.
Thus, the private complainant was an innocent victim of the petitioner’s
chicanery and heartless deception, the fraud consisting not of a single act alone, Because the private complainant was an innocent victim of the petitioner’s
but a continuous series of acts. Day by day, he maintained the appearance of perfidy, she is not barred from claiming moral damages. Besides, even
being a lawful husband to the private complainant, who  considerations of public policy would not prevent her from recovery. As held
changed her status from a single woman to a married woman, lost the in Jekshewitz v. Groswald:75
consortium, attributes and support of a single man she could have married
Where a person is induced by the fraudulent representation of another to do an
lawfully and endured mental pain and humiliation, being bound to a man who it
act which, in consequence of such misrepresentation, he believes to be neither
turned out was not her lawful husband.72
illegal nor immoral, but which is in fact a criminal offense, he has a right of
The Court rules that the petitioner’s collective acts of fraud and deceit before, action against the person so inducing him for damages sustained by him in
during and after his marriage with the private complainant were willful, consequence of his having done such act. Burrows v. Rhodes, [1899] 1 Q.B. 816.
deliberate and with malice and caused injury to the latter. That she did not In Cooper v. Cooper, 147 Mass. 370, 17 N.E. 892, 9 Am. St. Rep. 721, the court
sustain any physical injuries is not a bar to an award for moral damages. Indeed, said that a false representation by the defendant that he was divorced from his
in Morris v. Macnab,73 the New Jersey Supreme Court ruled: former wife, whereby the plaintiff was induced to marry him, gave her a
remedy in tort for deceit. It seems to have been assumed that the fact that she
xxx The defendant cites authorities which indicate that, absent physical injuries,
had unintentionally violated the law or innocently committed a crime by
damages for shame, humiliation, and mental anguish are not recoverable where
cohabiting with him would be no bar to the action, but rather that it might be a
the actor is simply negligent. See Prosser, supra, at p. 180; 2 Harper & James,
ground for enhancing her damages. The injury to the plaintiff was said to be in
Torts, 1031 (1956). But the authorities all recognize that where the wrong is
her being led by the promise to give the fellowship and assistance of a wife to
willful rather than negligent, recovery may be had for the ordinary, natural, and
one who was not her husband and to assume and act in a relation and condition
proximate consequences though they consist of shame, humiliation, and mental
that proved to be false and ignominious. Damages for such an injury were held
anguish. See Spiegel v. Evergreen Cemetery Co., 117 NJL 90, 94, 186 A 585 (Sup.
to be recoverable in Sherman v. Rawson, 102 Mass. 395 and Kelley v. Riley, 106
Ct. 1936); Kuzma v. Millinery Workers, etc., Local 24, 27 N.J. Super, 579, 591, 99
Mass. 339, 343, 8 Am. Rep. 336.
A.2d 833 (App. Div. 1953); Prosser, supra, at p. 38. Here the defendant’s
conduct was not merely negligent, but was willfully and maliciously wrongful. It Furthermore, in the case at bar the plaintiff does not base her cause of action
was bound to result in shame, humiliation, and mental anguish for the plaintiff, upon any transgression of the law by herself but upon the defendant’s
misrepresentation. The criminal relations which followed, innocently on her
part, were but one of the incidental results of the defendant’s fraud for which
damages may be assessed.

[7] Actions for deceit for fraudulently inducing a woman to enter into the
marriage relation have been maintained in other jurisdictions. Sears v. Wegner,
150 Mich. 388, 114 N.W. 224, 17 L.R. A. (N.S.) 819; Larson v. McMillan, 99
Wash. 626, 170 P. 324; Blossom v. Barrett, 37 N.Y. 434, 97 Am. Dec. 747; Morril
v. Palmer, 68 Vt. 1, 33 A. 829, 33 L.R.A. 411. Considerations of public policy
would not prevent recovery where the circumstances are such that the plaintiff
was conscious of no moral turpitude, that her illegal action was induced solely
by the defendant’s misrepresentation, and that she does not base her cause of
action upon any transgression of the law by herself. Such considerations 
distinguish this case from cases in which the court has refused to lend its aid to
the enforcement of a contract illegal on its face or to one who has consciously
and voluntarily become a party to an illegal act upon which the cause of action
is founded. Szadiwicz v. Cantor, 257 Mass. 518, 520, 154 N.E. 251, 49 A. L. R.
958.76

Considering the attendant circumstances of the case, the Court finds the award
of ₱200,000.00 for moral damages to be just and reasonable.

IN LIGHT OF ALL THE FOREGOING, the petition is DENIED. The assailed decision

of the Court of Appeals isAFFIRMED. Costs against the petitioner.

SO ORDERED
9 ARTICLE 45-46 At the pre-trial, only Albios, her counsel and the prosecutor appeared.
Fringer did not attend the hearing despite being duly notified of the
G.R. No. 198780               October 16, 2013 schedule. After the pre-trial, hearing on the merits ensued.

REPUBLIC OF THE PHILIPPINES, Petitioner,  Ruling of the RTC

vs.
LIBERTY D. ALBIOS, Respondent. In its April 25, 2008 Decision,5 the RTC declared the marriage void ab initio,
the dispositive portion of which reads:
DECISION
WHEREFORE, premises considered, judgment is hereby rendered declaring
MENDOZA, J.: the marriage of Liberty Albios and Daniel Lee Fringer as void from the very
beginning. As a necessary consequence of this pronouncement, petitioner
This is a petition for review on certiorari under Rule 45 of the Rules t of shall cease using the surname of respondent as she never acquired any right
Court assailing the September 29, 2011 Decision1 of the Court of Appeals over it and so as to avoid a misimpression that she remains the wife of
(CA), in CA-G.R. CV No. 95414, which affirmed the April 25, 2008Decision 2 of respondent.
the Regional Trial Court, Imus, Cavite (RTC). declaring the marriage of
Daniel Lee Fringer (Fringer) and respondent Liberty Albios (A/bios) as void xxxx
from the beginning.
SO ORDERED.6
The facts
The RTC was of the view that the parties married each other for
On October 22, 2004, Fringer, an American citizen, and Albios were married convenience only. Giving credence to the testimony of Albios, it stated that
before Judge Ofelia I. Calo of the Metropolitan Trial Court, Branch59, she contracted Fringer to enter into a marriage to enable her to acquire
Mandaluyong City (MeTC), as evidenced by a Certificate of Marriage with American citizenship; that in consideration thereof, she agreed to pay him
Register No. 2004-1588.3 the sum of $2,000.00; that after the ceremony, the parties went their
separate ways; that Fringer returned to the United States and never again
On December 6, 2006, Albios filed with the RTC a petition for declaration of communicated with her; and that, in turn, she did not pay him the $2,000.00
nullity 4 of her marriage with Fringer. She alleged that immediately after because he never processed her petition for citizenship. The RTC, thus, ruled
their marriage, they separated and never lived as husband and wife because that when marriage was entered into for a purpose other than the
they never really had any intention of entering into a married state or establishment of a conjugal and family life, such was a farce and should not
complying with any of their essential marital obligations. She described be recognized from its inception.
their marriage as one made in jest and, therefore, null and void ab initio .
Petitioner Republic of the Philippines, represented by the Office of the
Summons was served on Fringer but he did not file his answer. On Solicitor General (OSG), filed a motion for reconsideration. The RTC issued
September 13, 2007, Albios filed a motion to set case for pre-trial and to the Order, 7 dated February 5, 2009, denying the motion for want of merit.
admit her pre-trial brief. The RTC ordered the Assistant Provincial It explained that the marriage was declared void because the parties failed
Prosecutor to conduct an investigation and determine the existence of a to freely give their consent to the marriage as they had no intention to be
collusion. On October 2, 2007, the Assistant Prosecutor complied and legally bound by it and used it only as a means to acquire American
reported that she could not make a determination for failure of both parties citizenship in consideration of $2,000.00.
to appear at the scheduled investigation.
Not in conformity, the OSG filed an appeal before the CA.
Ruling of the CA The resolution of this case hinges on this sole question of law: Is a marriage,
contracted for the sole purpose of acquiring American citizenship in
In its assailed decision, dated September 29, 2011, the CA affirmed the RTC consideration of $2,000.00, void ab initio on the ground of lack of consent?
ruling which found that the essential requisite of consent was lacking. The
CA stated that the parties clearly did not understand the nature and The Court resolves in the negative.
consequence of getting married and that their case was similar to a
marriage in jest. It further explained that the parties never intended to enter Before the Court delves into its ruling, It shall first examine the phenomenon
into the marriage contract and never intended to live as husband and wife of marriage fraud for the purposes of immigration.
or build a family. It concluded that their purpose was primarily for personal
gain, that is, for Albios to obtain foreign citizenship, and for Fringer, the Marriage Fraud in Immigration
consideration of $2,000.00.
The institution of marriage carries with it concomitant benefits. This has led
Hence, this petition. to the development of marriage fraud for the sole purpose of availing of
particular benefits. In the United States, marriages where a couple marries
Assignment of Error only to achieve a particular purpose or acquire specific benefits, have been
referred to as "limited purpose" marriages.11 A common limited purpose
THE COURT OF APPEALS ERRED ON A QUESTION OF LAWWHEN IT HELD marriage is one entered into solely for the legitimization of a
THAT A MARRIAGE CONTRACTED FOR THEPURPOSE OF OBTAINING child.12 Another, which is the subject of the present case, is for immigration
FOREIGN CITIZENSHIP WAS DONEIN JEST, HENCE, LACKING IN THE purposes. Immigration law is usually concerned with the intention of the
ESSENTIAL ELEMENT OFCONSENT.8 couple at the time of their marriage,13 and it attempts to filter out those who
use marriage solely to achieve immigration status.14
The OSG argues that albeit the intention was for Albios to acquire American
citizenship and for Fringer to be paid $2,000.00, both parties freely gave In 1975, the seminal case of Bark v. Immigration and Naturalization
their consent to the marriage, as they knowingly and willingly entered into Service,15 established the principal test for determining the presence of
that marriage and knew the benefits and consequences of being bound by it. marriage fraud in immigration cases. It ruled that a "marriage is a sham if
According to the OSG, consent should be distinguished from motive, the the bride and groom did not intend to establish a life together at the time
latter being inconsequential to the validity of marriage. they were married. "This standard was modified with the passage of the
Immigration Marriage Fraud Amendment of 1986 (IMFA), which now
The OSG also argues that the present case does not fall within the concept of requires the couple to instead demonstrate that the marriage was not
a marriage in jest. The parties here intentionally consented to enter into a "entered into for the purpose of evading the immigration laws of the United
real and valid marriage, for if it were otherwise, the purpose of Albios to States." The focus, thus, shifted from determining the intention to establish a
acquire American citizenship would be rendered futile. life together, to determining the intention of evading immigration laws.16 It
must be noted, however, that this standard is used purely for immigration
On October 29, 2012, Albios filed her Comment 9 to the petition, reiterating purposes and, therefore, does not purport to rule on the legal validity or
her stand that her marriage was similar to a marriage by way of jest and, existence of a marriage.
therefore, void from the beginning.
The question that then arises is whether a marriage declared as a sham or
On March 22, 2013, the OSG filed its Reply  reiterating its arguments in its
10 fraudulent for the limited purpose of immigration is also legally void and in
petition for review on certiorari. existent. The early cases on limited purpose marriages in the United States
made no definitive ruling. In 1946, the notable case of
Ruling of the Court
United States v. Rubenstein17 was promulgated, wherein in order to allow an In declaring the respondent’s marriage void, the RTC ruled that when a
alien to stay in the country, the parties had agreed to marry but not to live marriage was entered into for a purpose other than the establishment of a
together and to obtain a divorce within six months. The Court, through conjugal and family life, such was a farce and should not be recognized from
Judge Learned Hand, ruled that a marriage to convert temporary into its inception. In its resolution denying the OSG’s motion for reconsideration,
permanent permission to stay in the country was not a marriage, there the RTC went on to explain that the marriage was declared void because the
being no consent, to wit: parties failed to freely give their consent to the marriage as they had no
intention to be legally bound by it and used it only as a means for the
x x x But, that aside, Spitz and Sandler were never married at all. Mutual respondent to acquire American citizenship. Agreeing with the RTC, the CA
consent is necessary to every contract; and no matter what forms or ruled that the essential requisite of consent was lacking. It held that the
ceremonies the parties may go through indicating the contrary, they do not parties clearly did not understand the nature and consequence of getting
contract if they do not in fact assent, which may always be proved. x x x married. As in the Rubenstein case, the CA found the marriage to be similar
Marriage is no exception to this rule: a marriage in jest is not a marriage at to a marriage in jest considering that the parties only entered into the
all. x x x It is quite true that a marriage without subsequent consummation marriage for the acquisition of American citizenship in exchange of
will be valid; but if the spouses agree to a marriage only for the sake of $2,000.00. They never intended to enter into a marriage contract and never
representing it as such to the outside world and with the understanding that intended to live as husband and wife or build a family.
they will put an end to it as soon as it has served its purpose to deceive, they
have never really agreed to be married at all. They must assent to enter into The CA’s assailed decision was, therefore, grounded on the parties’
the relation as it is ordinarily understood, and it is not ordinarily supposed lack of consent. Under Article 2 of the Family Code, consent is an
understood as merely a pretence, or cover, to deceive others.18 essential requisite of marriage. Article 4 of the same Code provides that the
absence of any essential requisite shall render a marriage void ab initio.
(Italics supplied)
Under said Article 2, for consent to be valid, it must be (1) freely given and
On the other end of the spectrum is the 1969 case of Mpiliris v. Hellenic (2) made in the presence of a solemnizing officer. A "freely given" consent
Lines,19 which declared as valid a marriage entered into solely for the requires that the contracting parties willingly and deliberately enter into the
husband to gain entry to the United States, stating that a valid marriage marriage. Consent must be real in the sense that it is not vitiated nor
could not be avoided "merely because the marriage was entered into for a rendered defective by any of the vices of consent under Articles45 and 46 of
limited purpose."20 The 1980 immigration case of Matter of McKee,21 further the Family Code, such as fraud, force, intimidation, and undue
recognized that a fraudulent or sham marriage was intrinsically different influence.24Consent must also be conscious or intelligent, in that the parties
from a non subsisting one. must be capable of intelligently understanding the nature of, and both the
beneficial or unfavorable consequences of their act.25 Their understanding
Nullifying these limited purpose marriages for lack of consent has, should not be affected by insanity, intoxication, drugs, or hypnotism.26
therefore, been recognized as problematic. The problem being that in order
to obtain an immigration benefit, a legal marriage is first necessary. 22 At Based on the above, consent was not lacking between Albios and Fringer. In
present, United States courts have generally denied annulments involving" fact, there was real consent because it was not vitiated nor rendered
limited purpose" marriages where a couple married only to achieve a defective by any vice of consent. Their consent was also conscious and
particular purpose, and have upheld such marriages as valid.23 intelligent as they understood the nature and the beneficial and
inconvenient consequences of their marriage, as nothing impaired their
The Court now turns to the case at hand. ability to do so. That their consent was freely given is best evidenced by
their conscious purpose of acquiring American citizenship through
Respondent’s marriage not void marriage. Such plainly demonstrates that they willingly and deliberately
contracted the marriage. There was a clear intention to enter into a real and
valid marriage so as to fully comply with the requirements of an application
for citizenship. There was a full and complete understanding of the legal tie
that would be created between them, since it was that precise legal tie marital privacy allows married couples to structure their marriages in
which was necessary to accomplish their goal. almost any way they see fit, to live together or live apart, to have children or
no children, to love one another or not, and so on. 30 Thus, marriages entered
In ruling that Albios’ marriage was void for lack of consent, the CA into for other purposes, limited or otherwise, such as convenience,
characterized such as akin to a marriage by way of jest. A marriage in jest is companionship, money, status, and title, provided that they comply with all
a pretended marriage, legal in form but entered into as a joke, with no real the legal requisites,31are equally valid. Love, though the ideal consideration
intention of entering into the actual marriage status, and with a clear in a marriage contract, is not the only valid cause for marriage. Other
understanding that the parties would not be bound. The ceremony is not considerations, not precluded by law, may validly support a marriage.
followed by any conduct indicating a purpose to enter into such a
relation.27 It is a pretended marriage not intended to be real and with no Although the Court views with disdain the respondent’s attempt to utilize
intention to create any legal ties whatsoever, hence, the absence of any marriage for dishonest purposes, It cannot declare the marriage void. Hence,
genuine consent. Marriages in jest are void ab initio, not for vitiated, though the respondent’s marriage may be considered a sham or fraudulent
defective, or unintelligent consent, but for a complete absence of consent. for the purposes of immigration, it is not void ab initio and continues to be
There is no genuine consent because the parties have absolutely no valid and subsisting.
intention of being bound in any way or for any purpose.
Neither can their marriage be considered voidable on the ground of fraud
The respondent’s marriage is not at all analogous to a marriage in under Article 45 (3) of the Family Code. Only the circumstances listed under
jest.  Albios and Fringer had an undeniable intention to be bound in order to
1âwphi1 Article 46 of the same Code may constitute fraud, namely, (1) non-
create the very bond necessary to allow the respondent to acquire American disclosure of a previous conv1ctwn involving moral turpitude; (2)
citizenship. Only a genuine consent to be married would allow them to concealment by the wife of a pregnancy by another man; (3) concealment of
further their objective, considering that only a valid marriage can properly a sexually transmitted disease; and (4) concealment of drug addiction,
support an application for citizenship. There was, thus, an apparent alcoholism, or homosexuality. No other misrepresentation or deceit shall
intention to enter into the actual marriage status and to create a legal tie, constitute fraud as a ground for an action to annul a marriage. Entering into
albeit for a limited purpose. Genuine consent was, therefore, clearly present. a marriage for the sole purpose of evading immigration laws does not
qualify under any of the listed circumstances. Furthermore, under Article 47
The avowed purpose of marriage under Article 1 of the Family Code is for (3), the ground of fraud may only be brought by the injured or innocent
the couple to establish a conjugal and family life. The possibility that the party. In the present case, there is no injured party because Albios and
parties in a marriage might have no real intention to establish a life together Fringer both conspired to enter into the sham marriage.
is, however, insufficient to nullify a marriage freely entered into in
accordance with law. The same Article 1 provides that the nature, Albios has indeed made a mockery of the sacred institution of marriage.
consequences, and incidents of marriage are governed by law and not Allowing her marriage with Fringer to be declared void would only further
subject to stipulation. A marriage may, thus, only be declared void or trivialize this inviolable institution. The Court cannot declare such a
voidable under the grounds provided by law. There is no law that declares a marriage void in the event the parties fail to qualify for immigration
marriage void if it is entered into for purposes other than what the benefits, after they have availed of its benefits, or simply have no further use
Constitution or law declares, such as the acquisition of foreign citizenship. for it. These unscrupulous individuals cannot be allowed to use the courts as
Therefore, so long as all the essential and formal requisites prescribed by instruments in their fraudulent schemes. Albios already misused a judicial
law are present, and it is not void or voidable under the grounds provided institution to enter into a marriage of convenience; she should not be
by law, it shall be declared valid.28 allowed to again abuse it to get herself out of an inconvenient situation.

Motives for entering into a marriage are varied and complex. The State does No less than our Constitution declares that marriage, as an in violable social
not and cannot dictate on the kind of life that a couple chooses to lead. Any institution, is the foundation of the family and shall be protected by the
attempt to regulate their lifestyle would go into the realm of their right to State.32 It must, therefore, be safeguarded from the whims and caprices of
privacy and would raise serious constitutional questions.29 The right to the contracting parties. This Court cannot leave the impression that
marriage may easily be entered into when it suits the needs of the parties,
and just as easily nullified when no longer needed.

WHEREFORE, the petition is GRANTED. The September 29, 2011 Decision of

the Court of Appeals in CA-G.R. CV No. 95414 is ANNULLED, and Civil Case
No. 1134-06 is DISMISSED for utter lack of merit.

SO ORDERED.
10 ARTICLE 48-49 (c) Imprecriptibility ofaction or defense. - An Action or defense for
the declaration of absolute nullity of void marriage shall not
A.M. No. 02-11-10-SC             March 4, 2003 prescribe.
RE: PROPOSED RULE ON DECLARATION OF ABSOLUTE NULLITY (d) What to allege. - A petition under Article 36 of Family Code
OF VOID MARRIAGES AND ANNULMENT OF VOIDABLE shall specially allege te complete facts showing the either or both
MARRIAGES parties were psychologically incapacitated from complying with
RESOLUTION the essential marital obligations of marriages at the time of the
celebration of marriage even if such incapacity becomes manifest
          Acting on the letter of the Chairman of the Committee on Revision only after its celebration.
of the Rules of Court submitting for this Court's consideration and
approval the Proposed Rule on Declaration of Absolute Nullity of Void           The complete facts should allege the physical manifestations, if
Marriages and Annulment of Voidable Marriages, the Court Resolved to any, as are indicative of psychological incapacity at the time of the
APPROVE the same. celebration of the marriage but expert opinion need not be alleged.

          The Rule shall take effect on March 15, 2003 following its Section 3. Petition for annulment of voidable marriages. -
publication in a newspaper of general circulation not later than March 7, (a) Who may file. - The following persons may file a petition for
2003 annulment of voidable marriage based on any of the grounds
          March 4, 2003 under article 45 of the Family Code and within the period herein
indicated:
Davide, C.J. Bellosillo, Puno, Vitug Mendoza, Panganiban, Quisumbing,
Sandoval-Gutierrez, Carpio, Austria-Martinez, Carpio Morales, Callejo, (1) The contracting party whose parent, or guardian, or
Sr. and Azcuna person exercising substitute parental authority did not
Ynares-Santiago, on leave give his or her consent, within five years after attaining the
Corona, on official leave age of twenty-one unless, after attaining the age of
twenty-one, such party freely cohabitated with the other
RULE ON DECLARATION OF ABSOLUTE NULLITY OF VOID as husband or wife; or the parent, guardian or person
MARIAGES AND ANNULMENT OF VOIDABLE MARRIAGES having legal charge of the contracting party , at any time
before such party has reached the age of twenty-one;
Section 1. Scope - This Rule shall govern petitions for declaration of
absolute nullity of void marriages and annulment of voidable marriages (2) The sane spouse who had no knowledge of the other's
under the Family Code of te Philippines. insanity; or by any relative, guardian, or person having
legal charge of the insane, at any time before the death of
          The Rules of Court shall apply suppletorily.
either party; or by the insane spouse during the a lucid
Section 2. Petition for declaration of absolute nullity of void marriages. interval or after regaining sanity, provided that the
petitioner , after coming to reason, has not freely
(a) Who may file. - A petition for declaration of absolute nullity of cohabited with the other as husband or wife;
void marriage may be filed solely by the husband or the wife. (n)
(3) The injured party whose consent was obtained by
(b) Where to file. - The petition shal be filed in the Family Court. fraud, within five years after the discovery of the fraud,
provided that said party, with full knowledge of the facts
constituting the fraud, has not freely cohabited with the
other as husband or wife;
 (4) The injured party whose consent was obtained by Section 4. Venue. - The petition shall be filed in the Family Court of the
force, intimidation, or undue influence, within five years province or city where the petitioner or the respondent has been residing
from the time the force intimidation, or undue influence for at least six months prior to the date of filing, or in the case of a non-
disappeared or ceased, provided that the force, resident respondent, where he may be found in the Philippines at the
intimidation, or undue influence having disappeared or election of the petitioner.
ceased, said party has not thereafter freely cohabited with
the other as husband or wife; Section 5. Contents and form of petition. - (1) The petition shall allege
the complete facts constituting the cause of action.
(5) The injured party where the other spouse is physically
incapable of consummating the marriage with the other (2) it shall state the names and ages of the common children of
and such incapability continues and appears to be the parties and specify the regime governing their property
incurable, within five years after the celebration of relations, as well as the properties involved.
marriage; and           If there is no adequate provision in a written agreement
(6) Te injured party where the other party was afflicted between the parties, the petitioner may apply for a provisional
with a sexually-transmissible disease found to be serious order for spousal support, custody and support of common
and appears to be incurable, within five years after the children, visitation rights, administration of community or conjugal
celebration of marriage. property, and other matters similarly requiring urgent action.

(b) Where to file. - The petition shall be filed in the Family Court. (3) it must be verified and accompanied by a certification against
forum shopping. The verification and certification must be signed
Section 4. Venue. - The Petition shall be filed in the Family Court of the personally by me petitioner. No petition may be filed solely by
province or city where the petitioner or the respondent has been residing counsel or through an attorney-in-fact.
for at least six months prior to the date of filing. Or in the case of non-
resident respondent, where he may be found in the Philippines, at the           If the petitioner is in a foreign country, the verification and
election of the petitioner. certification against forum shopping shall be authenticated by the
duly authorized officer of the Philippine embassy or legation,
Section 5. Contents and form of petition. - (1) The petition shall allege consul general, consul or vice-consul or consular agent in said
the complete facts constituting the cause of action. country.

(2) It shall state the names and ages of the common children of (4) it shall be filed in six copies. The petitioner shall serve a copy
the parties and specify the regime governing their property of the petition on the Office of the Solicitor General and the Office
relations, as well as the properties involved. of the City or Provincial Prosecutor, within five days from the date
of its filing and submit to the court proof of such service within the
          If there is no adequate provision in a written agreement same period.
between the parties, the petitioner may apply for a provisional
order for spousal support, the custody and support of common           Failure to comply with any of the preceding requirements
children, visitation rights, administration of community or conjugal may be a ground for immediate dismissal of the petition.
property, and other matters similarly requiringurgent action.
Section 6. Summons. - The service of summons shall be governed by
(3) It must be verified and accompanied celebration of marriage. Rule 14 of the Rules of Court and by the following rules:
(b) Where to file.-The petition shall be filed in the Family Court.
(1) Where the respondent cannot be located at his given address
or his whereabouts are unknown and cannot be ascertained by
 diligent inquiry, service of summons may, by leave of court, be convinced that the parties are in collusion, it shall dismiss the
effected upon him by publication once a week for two consecutive petition.
weeks in a newspaper of general circulation in the Philippines
and in such places as the court may order In addition, a copy of (3) If the public prosecutor reports that no collusion exists, the
the summons shall be served on the respondent at his last known court shall set the case for pre-trial. It shall be the duty of the
address by registered mail or any other means the court may public prosecutor to appear for the State at the pre-trial.
deem sufficient. Section 10. Social worker. - The court may require a social worker to
(2) The summons to be published shall be contained in an order conduct a case study and submit the corresponding report at least three
of the court with the following data: (a) title of the case; (b) docket days before the pre-trial. The court may also require a case study at any
number; (c) nature of the petition; (d) principal grounds of the stage of the case whenever necessary.
petition and the reliefs prayed for; and (e) a directive for the Section 11. Pre-trial. -
respondent to answer within thirty days from the last issue of
publication. (1) Pre-trial mandatory. - A pre-trial is mandatory. On motion
or motu proprio, the court shall set the pre-trial after the last
Section 7. Motion to dismiss. - No motion to dismiss the petition shall be pleading has been served and filed, or upon receipt of the report
allowed except on the ground of lack of jurisdiction over the subject of the public prosecutor that no collusion exists between the
matter or over the parties; provided, however, that any other ground that parties.
might warrant a dismissal of the case may be raised as an affirmative
defense in an answer. (2) Notice of pre-trial. - (a) The notice of pre-trial shall contain:

Section 8. Answer. - (1) The respondent shall file his answer within (1) the date of pre-trial conference; and
fifteen days from service of summons, or within thirty days from the last
(2) an order directing the parties to file and serve
issue of publication in case of service of summons by publication. The
their respective pre-trial briefs in such manner as
answer must be verified by the respondent himself and not by counsel or
shall ensure the receipt thereof by the adverse
attorney-in-fact.
party at least three days before the date of pre-
(2) If the respondent fails to file an answer, the court shall not trial.
declare him or her in default.
(b) The notice shall be served separately on the parties
(3) Where no answer is filed or if the answer does not tender an and their respective counsels as well as on the public
issue, the court shall order the public prosecutor to investigate prosecutor. It shall be their duty to appear personally at
whether collusion exists between the parties. the pre-trial.

Section 9. Investigation report of public prosecutor. - (1) Within one (c) Notice of pre-trial shall be sent to the respondent even
month after receipt of the court order mentioned in paragraph (3) of if he fails to file an answer. In case of summons by
Section 8 above, the public prosecutor shall submit a report to the court publication and the respondent failed to file his answer,
stating whether the parties are in collusion and serve copies thereof on notice of pre-trial shall be sent to respondent at his last
the parties and their respective counsels, if any. known address.

(2) If the public prosecutor finds that collusion exists, he shall Section 12. Contents of pre-trial brief. - The pre-trial brief shall contain
state the on the finding of collusion within ten days from receipt of the following:
a copy of a report The court shall set the report for hearing and If
 (a) A statement of the willingness of the parties to enter into (b) In case mediation is not availed of or where it fails, the court
agreements as may be allowed by law, indicating the desired shall proceed with the pre-trial conference, on which occasion it
terms thereof; shall consider the advisability of receiving expert testimony and
such other makers as may aid in the prompt disposition of the
(b) A concise statement of their respective claims together with petition.
the applicable laws and authorities;
Section 15. Pre-trial order. - {a) The proceedings in the pre-trial shall be
(c) Admitted facts and proposed stipulations of facts, as well as recorded. Upon termination of the pre-trial, the court shall Issue a pre-trial
the disputed factual and legal issues; order which shall recite in detail the matters taken up In the conference,
(d) All the evidence to be presented, including expert opinion, if the action taken thereon, the amendments allowed on the pleadings, and
any, briefly stating or describing the nature and purpose thereof; except as to the ground of declaration of nullity or annulment, the
agreements or admissions made by the parties on any of the matters
(e) The number and names of the witnesses and their respective considered, including any provisional order that may be necessary or
affidavits; and agreed upon by the parties.
(f) Such other matters as the court may require. (b) Should the action proceed to trial, the order shall contain a
recital of the following;
          Failure to file the pre-trial brief or to comply with its required
contents shall have the same effect as failure to appear at the pre-trial (1) Facts undisputed, admitted, and those which need not
under the succeeding paragraphs. be proved subject to Section 16 of this Rule;
Section 13. Effect of failure to appear at the pre-trial. - {a) If the petitioner (2) Factual and legal issues to be litigated;
fails to appear personally, the case shall be dismissed unless his counsel
or a duly authorized representative appears in court and proves a valid (3) Evidence, including objects and documents, that have
excuse for the non-appearance of the petitioner. been marked and will be presented;

(b) If the respondent has filed his answer but fails to appear, the (4) Names of witnesses who will be presented and their
court shall proceed with the pre-trial and require the public testimonies in the form of affidavits; and
prosecutor to investigate the non-appearance of the respondent (5) Schedule of the presentation of evidence.
and submit within fifteen days thereafter a report to the court
stating whether his non-appearance is due to any collusion (c) The pre-trial order shall also contain a directive to the public
between the parties. If there Is no collusion, the court shall prosecutor to appear for the State and take steps to prevent
require the public prosecutor to intervene for the State during the collusion between the parties at any stage of the proceedings and
trial on the merits to prevent suppression or fabrication of fabrication or suppression of evidence during the trial on the
evidence. merits.

Section 14. Pre-trial conference. -At the pre-trial conference, the court: (d) The parlies shall not be allowed to raise issues or present
witnesses and evidence other than those stated in the pre-trial
(a) May refer the issues to a mediator who shall assist the parties order.
in reaching an agreement on matters not prohibited by law.
The order shall control the trial of the case, unless modified by
          The mediator shall render a report within one month from the court to prevent manifest injustice.
referral which, for good reasons, the court may extend for a
period not exceeding one month.
 (e) The parties shall have five days from receipt of the pre-trial interest to the State. No other pleadings or papers may be submitted
order to propose corrections or modifications. without leave of court. After the lapse of the period herein provided, the
case will be considered submitted for decision, with or without the
Section 16. Prohibited compromise. - The court-shall not allow memoranda.
compromise on prohibited matters, such as the following:
Section 19. Decision. - (1) If the court renders a decision granting the
(a) The civil status of persons; petition, it shall declare therein that the decree of absolute nullity or
(b) The validity of a marriage or of a legal separation; decree of annulment shall be issued by the court only after compliance
with Article 50 and 51 of the Family Code as implemented under the Rule
(c) Any ground for legal separation; on Liquidation, Partition and Distribution of Properties.
(d) Future support; (2) The parties, including the Solicitor General and the public
prosecutor, shall be served with copies of the decision personally
(e) The jurisdiction of courts; and
or by registered mail. If the respondent summoned by publication
(f) Future legitime. failed to appear in the action, the dispositive part of the decision
shall be published once in a newspaper of general circulation.
Section 17. Trial. - (1) The presiding judge shall personally conduct the
trial of the case. No delegation of the reception of evidence to a (3) The decision becomes final upon the expiration of fifteen days
commissioner shall be allowed except as to matters involving property from notice to the parties. Entry of judgment shall be made if no
relations of the spouses. motion for reconsideration or new trial, or appeal Is filed by any of
the parties the public prosecutor, or the Solicitor General.
(2) The grounds for declaration of absolute nullity or annulment of
marriage must be proved. No judgment on the pleadings, (4) Upon the finality of the decision, the court shall forthwith issue
summary judgment, or confession of judgment shall be allowed. the corresponding decree if the parties have no properties.

(3) The court may order the exclusion from the courtroom of all           If the parties have properties, the court shall observe the procedure
persons, including members of the press, who do not have a prescribed in Section 21 of this Rule.
direct interest in the case. Such an order may be made if the
          The entry of judgment shall be registered in the Civil Registry
court determines on the record that requiring a party to testify in
where the marriage was recorded and In the Civil Registry where the
open court would not enhance the ascertainment of truth; would
Family Court'granting the petition for declaration of absolute nullity or
cause to the party psychological harm or inability to effectively
annulment of marriage is located.
communicate due to embarrassment, fear, or timidity; would
violate the right of a party to privacy; or would be offensive to Section 20. Appeal. -
decency or public morals.
(1) Pre-condition. - No appeal from the decision shall be allowed
(4) No copy shall be taken nor any examination or perusal of the unless the appellant has filed a motion for reconsideration or new
records of the case or parts thereof be made by any person other trial within fifteen days from notice of judgment.
than a party or counsel of a party, except by order of the court.
(2) Notice of appeal. - An aggrieved party or the Solicitor General
Section 18. Memoranda. - The court may require the parties and the may appeal from the decision by filing a Notice of Appeal within
public prosecutor, in consultation with the Office of the Solicitor General, fifteen days from notice of denial of the motion for reconsideration
to file their respective memoranda support of their claims within fifteen or new trial. The appellant shall serve a copy of the notice of
days from the date the trial is terminated. It may require the Office of the appeal on the adverse parties.
Solicitor General to file its own memorandum if the case is of significant
Section 21. Liquidation, partition and distribution, custody, support of (b) In case service of summons was made by publication, the
common children and delivery of their presumptive iegltimes. - Upon parties shall cause the publication of the Decree once in a
entry of the judgment granting the petition, or, in case of appeal, upon newspaper of general circulation.
receipt of the entry of judgment of the appellate court granting the
petition, the Family Court, on motion of either party, shall proceed with (c) The registered Decree shall be the best evidence to prove the
the liquidation, partition and distribution of the properties of the spouses, declaration of absolute nullity or annulment of marriage and shall
including custody, support of common children and delivery of their serve as notice to third persons concerning the properties of
presumptive legitimes pursuant to Articles 50 and 51 of the Family Code petitioner and respondent as well as the properties or
unless such matters had been adjudicated in previous judicial presumptive legitimes delivered to their common children.
proceedings. Section 24. Effect of death of a party; duty of the Family Court or
Section 22. Issuance of Decree of Declaration of Absolute Nullity or Appellate Court. - (a) In case a party dies at any stage of the proceedings
Annulment of Marriage." (a) The court shall issue the Decree after; before the entry of judgment, the court shall order the case closed and
terminated, without prejudice to the settlement of the estate in proper
(1) Registration of the entry of judgment granting the proceedings in the regular courts.
petition for declaration of nullity or annulment of marriage
in the Civil Registry where the marriage was celebrated (b) If the party dies after the entry of judgment of nullity or
and in the Civil Registry of the place where the Family annulment, the judgment shall be binding upon the parties and
Court is located; their successors in interest in the settlement of the estate in the
regular courts.
(2) Registration of the approved partition and distribution
of the properties of the spouses, in the proper Register of Section 25. Effectlvity. - This Rule shall take effect on March 15, 2003
Deeds where the real properties are located; and following its publication in a newspaper of general circulation not later
than March 7, 2003.
(3) The delivery of the children's presumptive legitimes in
cash, property, or sound securities.

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

          Except in the case of children under Articles 36 and 53 of the

Family Code, the court shall order the Local Civil Registrar to issue an
amended birth certificate indicating the new civil status of the children
affected.

Section 23. Registration and publication of the decree; decree as best

evidence. - (a) The prevailing party shall cause the registration of the
Decree in the Civil Registry where the marriage was registered, the Civil
Registry of the place where the Family Court is situated, and in the
National Census and Statistics Office. He shall report td the court
compliance with this requirement within thirty days from receipt of the
copy of the Decree.
11 ART 48-49 On January 4, 1987, after a two-year courtship and engagement, Florence and
respondent Philipp T. Sin (hereafter "Philipp"), a Portugese citizen, were
G.R. No. 137590            March 26, 2001 married at St. Jude Catholic Parish in San Miguel, Manila.7
FLORENCE MALCAMPO-SIN, petitioner,  On September 20, 1994, Florence filed with the Regional Trial Court, Branch
vs. 158, Pasig City, a complaint for "declaration of nullity of marriage" against
PHILIPP T. SIN, respondent. Philipp.8 Trial ensued and the parties presented their respective documentary
and testimonial evidence.
PARDO, J.:
On June 16, 1995, the trial court dismissed Florence's petition.9
The Family Code emphasizes the permanent nature of marriage, hailing it as the
foundation of the family.1 It is this inviolability which is central to our traditional On December 19, 1995, Florence filed with the trial court a notice of appeal to
and religious concepts of morality and provides the very bedrock on which our the Court of Appeals.10
society finds stability.2 Marriage is immutable and when both spouses give their
consent to enter it, their consent becomes irrevocable, unchanged even by After due proceedings, on April 30, 1998, the Court of Appeals promulgated its
their independent wills. decision, the dispositive portion of which reads:

However, this inviolability depends on whether the marriage exists and is valid. "IN THE LIGHT OF ALL THE FOREGOING, the Appeal is DISMISSED. The
If it is void ab initio, the "permanence" of the union becomes irrelevant, and the Decision appealed from is AFFIRMED. Cost against the Appellant."11
Court can step in to declare it so. Article 36 of the Family Code is the On June 23, 1998, petitioner filed with the Court of Appeals a motion for
justification.3 Where it applies and is duly proven, a judicial declaration can free reconsideration of the aforequoted decision.12
the parties from the rights, obligations, burdens and consequences stemming
from their marriage. On January 19, 1999, the Court of Appeals denied petitioner's motion for
reconsideration.13
A declaration of nullity of marriage under Article 36 of the Family Code requires
the application of procedural and substantive guidelines. While compliance with Hence, this appeal.14
these requirements mostly devolves upon petitioner, the State is likewise
The Court's Ruling
mandated to actively intervene in the procedure. Should there be non-
compliance by the State with its statutory duty, there is a need to remand the We note that throughout the trial in the lower court, the State did not
case to the lower court for proper trial. participate in the proceedings. While Fiscal Jose Danilo C. Jabson15 filed with the
trial court a manifestation dated November 16, 1994, stating that he found no
The Case
collusion between the parties,16 he did not actively participate therein. Other
What is before the Court4 is an appeal from a decision of the Court of than entering his appearance at certain hearings of the case, nothing more was
Appeals5 which affirmed the decision of the Regional Trial Court, Branch 158, heard from him. Neither did the presiding Judge take any step to encourage the
Pasig City6 dismissing petitioner Florence Malcampo-Sin's (hereafter "Florence") fiscal to contribute to the proceedings.
petition for declaration of nullity of marriage due to psychological incapacity for
The Family Code mandates:
insufficiency of evidence.
"ARTICLE 48. In all cases of annulment or declaration of absolute nullity
The Facts
of marriage, the Court shall order the prosecuting attorney or fiscal
assigned to it to appear on behalf of the State to take steps to prevent
 collusion between the parties and to take care that evidence is not the Family Code are as follows (omitting guideline [8] in the enumeration as it
fabricated or suppressed (italics ours). was already earlier quoted):

"In the cases referred to in the preceding paragraph, no judgment shall "(1) The burden of proof to show the nullity of the marriage belongs to
be based upon a stipulation of facts or confession of judgment." the plaintiff. Any doubt should be resolved in favor of the existence and
continuation of the marriage and against its dissolution and nullity. This
It can be argued that since the lower court dismissed the petition, the evil
is rooted in the fact that both our Constitution and our laws cherish the
sought to be prevented (i.e., dissolution of the marriage) did not come about,
validity of marriage and unity of the family. Thus, our Constitution
hence, the lack of participation of the State was cured. Not so. The task of
devotes an entire Article on the Family, recognizing it "as the
protecting marriage as an inviolable social institution requires vigilant and
foundation of the nation." It decrees marriage as legally "inviolable,"
zealous participation and not mere pro-forma compliance. The protection of
thereby protecting it from dissolution at the whim of the parties. Both
marriage as a sacred institution requires not just the defense of a true and
the family and marriage are to be "protected" by the state. The Family
genuine union but the exposure of an invalid one as well. This is made clear by
Code echoes this constitutional edict on marriage and the family and
the following pronouncement:
emphasizes their permanence, inviolability and solidarity.
"(8) The trial court must order the prosecuting attorney or fiscal and
"(2) The root cause of the psychological incapacity must be: a)
the Solicitor General to appear as counsel for the state. No decision
medically or clinically identified, b) alleged in the complaint, c)
shall be handed down unless the Solicitor General issues a certification,
sufficiently proven by experts and d) clearly explained in the decision.
which will be quoted in the decision,17 briefly stating therein his
Article 36 of the Family Code requires that the incapacity must be
reasons for his agreement or opposition as the case may be, to the
psychological — not physical, although its manifestations and/or
petition. The Solicitor-General shall discharge the equivalent function of
symptoms may be physical. The evidence must convince the court that
the defensor vinculi contemplated under Canon 1095 (italics ours)."18
the parties, or one of them, was mentally or psychically (sic) ill to such
The records are bereft of any evidence that the State participated in the an extent that the person could not have known the obligations he was
prosecution of the case not just at the trial level but on appeal with the Court of assuming, or knowing them, could not have given valid assumption
Appeals as well. Other than the "manifestation" filed with the trial court on thereof. Although no example of such incapacity need be given here so
November 16, 1994, the State did not file any pleading, motion or position as not to limit the application of the provision under the principle
paper, at any stage of the proceedings. of ejusdem generis, nevertheless such root cause must be identified as
a psychological illness and its incapacitating nature fully explained.
In Republic of the Philippines v. Erlinda Matias Dagdag,19 while we upheld the Expert evidence may be given by qualified psychiatrists and clinical
validity of the marriage, we nevertheless characterized the decision of the trial psychologists.
court as "prematurely rendered" since the investigating prosecutor was not
given an opportunity to present controverting evidence before the judgment "(3) The incapacity must be proven to be existing at "the time of the
was rendered. This stresses the importance of the participation of the State. celebration" of the marriage. The evidence must show that the illness
was existing when the parties exchanged their "I do's." The
Having so ruled, we decline to rule on the factual disputes of the case, this manifestation of the illness need not be perceivable at such time, but
being within the province of the trial court upon proper re-trial. the illness itself must have attached at such moment, or prior thereto.
Obiter Dictum "(4) Such incapacity must also be shown to be medically or clinically
For purposes of re-trial, we guide the parties thus: In Republic vs. Court of permanent or incurable. Such incurability may be absolute or even
Appeals,20 the guidelines in the interpretation and application of Article 36 of 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 refusal, neglect or
difficulty, much less ill 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 Code as regards the husband and wife
as well as Articles 220, 221 and 225 of the same Code in regard to
parents and their children. Such non-complied 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."

The Fallo

WHEREFORE, the Court REVERSES and SETS ASIDE the appealed decision of the
Court of Appeals in CA-G.R. CV No. 51304, promulgated on April 30, 1998 and
the decision of the Regional Trial Court, Branch 158, Pasig City in Civil Case No.
3190, dated June 16, 1995.

Let the case be REMANDED to the trial court for proper trial.

No costs.

SO ORDERED.
12 ART 48-49 1. In partial settlement of the conjugal partnership of gains, the parties agree to
the following:
G.R. NO. 155409              June 8, 2007
a. ₱500,000.00 of the money deposited in the bank jointly in the name of the
VIRGILIO MAQUILAN, petitioner,  spouses shall be withdrawn and deposited in favor and in trust of their common
vs. child, Neil Maquilan, with the deposit in the joint account of the parties.
DITA MAQUILAN, respondent.
The balance of such deposit, which presently stands at ₱1,318,043.36, shall be
DECISION withdrawn and divided equally by the parties;
AUSTRIA-MARTINEZ, J.: b. The store that is now being occupied by the plaintiff shall be allotted to her
Before the Court is a Petition for Review on Certiorari under Rule 45 of the while the bodega shall be for the defendant. The defendant shall be paid the
Rules of Court assailing the Decision1dated August 30, 2002 promulgated by the sum of ₱50,000.00 as his share in the stocks of the store in full settlement
Court of Appeals (CA) in CA-G.R. SP No. 69689, which affirmed the Judgment on thereof.
Compromise Agreement dated January 2, 2002 of the Regional Trial Court The plaintiff shall be allowed to occupy the bodega until the time the owner of
(RTC), Branch 3, Nabunturan, Compostela Valley, and the RTC Orders dated the lot on which it stands shall construct a building thereon;
January 21, 2002 and February 7, 2002 (ORDERS) in Civil Case No. 656.
c. The motorcycles shall be divided between them such that the Kawasaki shall
The facts of the case, as found by the CA, are as follows: be owned by the plaintiff while the Honda Dream shall be for the defendant;
Herein petitioner and herein private respondent are spouses who once had a d. The passenger jeep shall be for the plaintiff who shall pay the defendant the
blissful married life and out of which were blessed to have a son. However, sum of ₱75,000.00 as his share thereon and in full settlement thereof;
their once sugar coated romance turned bitter when petitioner discovered that
private respondent was having illicit sexual affair with her paramour, which e. The house and lot shall be to the common child.
thus, prompted the petitioner to file a case of adultery against private
2. This settlement is only partial, i.e., without prejudice to the litigation of other
respondent and the latter’s paramour. Consequently, both the private
conjugal properties that have not been mentioned;
respondent and her paramour were convicted of the crime charged and were
sentenced to suffer an imprisonment ranging from one (1) year, eight (8) xxxx
months, minimum of prision correccional as minimum penalty, to three (3)
years, six (6) months and twenty one (21) days, medium of prision correccional The said Compromise Agreement was given judicial imprimatur by the
as maximum penalty. respondent judge in the assailed Judgment On Compromise Agreement, which
was erroneously dated January 2, 2002.2
Thereafter, private respondent, through counsel, filed a Petition for Declaration
of Nullity of Marriage, Dissolution and Liquidation of Conjugal Partnership of However, petitioner filed an Omnibus Motion dated January 15, 2002, praying
Gains and Damages on June 15, 2001 with the Regional Trial Court, Branch 3 of for the repudiation of the Compromise Agreement and the reconsideration of
Nabunturan, Compostela Valley, docketed as Civil Case No. 656, imputing the Judgment on Compromise Agreement by the respondent judge on the
psychological incapacity on the part of the petitioner. grounds that his previous lawyer did not intelligently and judiciously apprise
him of the consequential effects of the Compromise Agreement.
During the pre-trial of the said case, petitioner and private respondent entered
into a COMPROMISE AGREEMENT in the following terms, to wit: The respondent Judge in the assailed Order dated January 21, 2002, denied the
aforementioned Omnibus Motion.
Displeased, petitioner filed a Motion for Reconsideration of the aforesaid Order, of ordinary intelligence can discern the consequences thereof, hence,
but the same was denied in the assailed Order dated February 7, petitioner’s claim that his consent was vitiated is highly incredible; that the
2002.3 (Emphasis supplied) Compromise Agreement was made during the existence of the marriage of the
parties since it was submitted during the pendency of the petition for
The petitioner filed a Petition for Certiorari and Prohibition with the CA under
declaration of nullity of marriage; that the application of Article 2035 of the Civil
Rule 65 of the Rules of Court claiming that the RTC committed grave error and
Code is misplaced; that the cooling-off period under Article 58 of the Family
abuse of discretion amounting to lack or excess of jurisdiction (1) in upholding
Code has no bearing on the validity of the Compromise Agreement; that the
the validity of the Compromise Agreement dated January 11, 2002; (2) when it
Compromise Agreement is not contrary to law, morals, good customs, public
held in its Order dated February 7, 2002 that the Compromise Agreement was
order, and public policy; that this agreement may not be later disowned simply
made within the cooling-off period; (3) when it denied petitioner’s Motion to
because of a change of mind; that the presence of the Solicitor General or his
Repudiate Compromise Agreement and to Reconsider Its Judgment on
deputy is not indispensable to the execution and validity of the Compromise
Compromise Agreement; and (4) when it conducted the proceedings without
Agreement, since the purpose of his presence is to curtail any collusion
the appearance and participation of the Office of the Solicitor General and/or
between the parties and to see to it that evidence is not fabricated, and, with
the Provincial Prosecutor.4
this in mind, nothing in the Compromise Agreement touches on the very merits
On August 30, 2002, the CA dismissed the Petition for lack of merit. The CA held of the case of declaration of nullity of marriage for the court to be wary of any
that the conviction of the respondent of the crime of adultery does not ipso possible collusion; and, finally, that the Compromise Agreement is merely an
facto disqualify her from sharing in the conjugal property, especially considering agreement between the parties to separate their conjugal properties partially
that she had only been sentenced with the penalty of prision correccional, a without prejudice to the outcome of the pending case of declaration of nullity
penalty that does not carry the accessory penalty of civil interdiction which of marriage.
deprives the person of the rights to manage her property and to dispose of such
Hence, herein Petition, purely on questions of law, raising the following issues:
property inter vivos; that Articles 43 and 63 of the Family Code, which pertain
to the effects of a nullified marriage and the effects of legal separation, I.
respectively, do not apply, considering, too, that the Petition for the Declaration
WHETHER OF NOT A SPOUSE CONVICTED OF EITHER CONCUBINAGE OR
of the Nullity of Marriage filed by the respondent invoking Article 36 of the
ADULTERY, CAN STILL SHARE IN THE CONJUGAL PARTNERSHIP;
Family Code has yet to be decided, and, hence, it is premature to apply Articles
43 and 63 of the Family Code; that, although adultery is a ground for legal II
separation, nonetheless, Article 63 finds no application in the instant case since
no petition to that effect was filed by the petitioner against the respondent; WHETHER OR NOT A COMPROMISE AGREEMENT ENTERED INTO BY SPOUSES,
that the spouses voluntarily separated their property through their Compromise ONE OF WHOM WAS CONVICTED OF ADULTERY, GIVING THE CONVICTED
Agreement with court approval under Article 134 of the Family Code; that the SPOUSE A SHARE IN THE CONJUGAL PROPERTY, VALID AND LEGAL;
Compromise Agreement, which embodies the voluntary separation of property, III
is valid and binding in all respects because it had been voluntarily entered into
by the parties; that, furthermore, even if it were true that the petitioner was WHETHER OR NOT A JUDGMENT FOR ANNULMENT AND LEGAL SEPARATION IS
not duly informed by his previous counsel about the legal effects of the A PRE-REQUISITE BEFORE A SPOUSE CONVICTED OF EITHER CONCUBINAGE OR
Compromise Agreement, this point is untenable since the mistake or negligence ADULTERY, BE DISQUALIFIED AND PROHIBITED FROM SHARING IN THE
of the lawyer binds his client, unless such mistake or negligence amounts to CONJUGAL PROPERTY;
gross negligence or deprivation of due process on the part of his client; that
IV
these exceptions are not present in the instant case; that the Compromise
Agreement was plainly worded and written in simple language, which a person
WHETHER OR NOT THE DISQUALIFICATION OF A CONVICTED SPOUSE OF A sworn statement of the fact and circumstances of reappearance shall be
ADULTERY FROM SHARING IN A CONJUGAL PROPERTY, CONSTITUTES CIVIL recorded in the civil registry of the residence of the parties to the subsequent
INTERDICTION.5 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
The petitioner argues that the Compromise Agreement should not have been
reappearance being judicially determined in case such fact is disputed.
given judicial imprimatur since it is against law and public policy; that the
proceedings where it was approved is null and void, there being no appearance where a subsequent marriage is terminated because of the reappearance of an
and participation of the Solicitor General or the Provincial Prosecutor; that it absent spouse; while Article 63 applies to the effects of a decree of legal
was timely repudiated; and that the respondent, having been convicted of separation. The present case involves a proceeding where the nullity of the
adultery, is therefore disqualified from sharing in the conjugal property. marriage is sought to be declared under the ground of psychological capacity.

The Petition must fail. Article 2035 of the Civil Code is also clearly inapplicable. The Compromise
Agreement partially divided the properties of the conjugal partnership of gains
The essential question is whether the partial voluntary separation of property
between the parties and does not deal with the validity of a marriage or legal
made by the spouses pending the petition for declaration of nullity of marriage
separation. It is not among those that are expressly prohibited by Article 2035.
is valid.
Moreover, the contention that the Compromise Agreement is tantamount to a
First. The petitioner contends that the Compromise Agreement is void because
circumvention of the law prohibiting the guilty spouse from sharing in the
it circumvents the law that prohibits the guilty spouse, who was convicted of
conjugal properties is misplaced. Existing law and jurisprudence do not impose
either adultery or concubinage, from sharing in the conjugal property. Since the
such disqualification.
respondent was convicted of adultery, the petitioner argues that her share
should be forfeited in favor of the common child under Articles 43(2)6 and 637 of Under Article 143 of the Family Code, separation of property may be effected
the Family Code. voluntarily or for sufficient cause, subject to judicial approval. The questioned
Compromise Agreement which was judicially approved is exactly such a
To the petitioner, it is the clear intention of the law to disqualify the spouse
separation of property allowed under the law. This conclusion holds true even if
convicted of adultery from sharing in the conjugal property; and because the
the proceedings for the declaration of nullity of marriage was still pending.
Compromise Agreement is void, it never became final and executory.
However, the Court must stress that this voluntary separation of property is
Moreover, the petitioner cites Article 20358 of the Civil Code and argues that subject to the rights of all creditors of the conjugal partnership of gains and
since adultery is a ground for legal separation, the Compromise Agreement is other persons with pecuniary interest pursuant to Article 136 of the Family
therefore void. Code.

These arguments are specious. The foregoing provisions of the law are Second. Petitioner’s claim that since the proceedings before the RTC were void
inapplicable to the instant case. in the absence of the participation of the provincial prosecutor or solicitor, the
voluntary separation made during the pendency of the case is also void. The
Article 43 of the Family Code refers to Article 42, to wit: proceedings pertaining to the Compromise Agreement involved the conjugal
Article 42. The subsequent marriage referred to in the preceding Article 9 shall properties of the spouses. The settlement had no relation to the questions
be automatically terminated by the recording of the affidavit of reappearance surrounding the validity of their marriage. Nor did the settlement amount to a
of the absent spouse, unless there is a judgment annulling the previous collusion between the parties.
marriage or declaring it void ab initio. Article 48 of the Family Code states:
Art. 48. In all cases of annulment or declaration of absolute nullity of marriage, Third. The conviction of adultery does not carry the accessory of civil
the Court shall order the prosecuting attorney or fiscal assigned to it to appear interdiction. Article 34 of the Revised Penal Code provides for the consequences
on behalf of the State to take steps to prevent collusion between the parties of civil interdiction:
and to take care that the evidence is not fabricated or suppressed. (Emphasis
Art. 34. Civil Interdiction. – Civil interdiction shall deprive the offender during
supplied)
the time of his sentence of the rights of parental authority, or guardianship,
Section 3(e) of Rule 9 of the 1997 Rules of Court provides: either as to the person or property of any ward, of marital authority, of the
right to manage his property and of the right to dispose of such property by any
SEC. 3. Default; declaration of.- x x x x
act or any conveyance inter vivos.
xxxx
Under Article 333 of the same Code, the penalty for adultery is prision
(e) Where no defaults allowed.— If the defending party in action for annulment correccional in its medium and maximum periods. Article 333 should be read
or declaration of nullity of marriage or for legal separation fails to answer, the with Article 43 of the same Code. The latter provides:
court shall order the prosecuting attorney to investigate whether or not a
Art. 43. Prision correccional – Its accessory penalties. – The penalty of prision
collusion between the parties exists if there is no collusion, to intervene for the
correccional shall carry with it that of suspension from public office, from the
State in order to see to it that the evidence submitted is not fabricated.
right to follow a profession or calling, and that of perpetual special
(Emphasis supplied
disqualification from the right of suffrage, if the duration of said imprisonment
Truly, the purpose of the active participation of the Public Prosecutor or the shall exceed eighteen months. The offender shall suffer the disqualification
Solicitor General is to ensure that the interest of the State is represented and provided in this article although pardoned as to the principal penalty, unless the
protected in proceedings for annulment and declaration of nullity of marriages same shall have been expressly remitted in the pardon.
by preventing collusion between the parties, or the fabrication or suppression
It is clear, therefore, and as correctly held by the CA, that the crime of adultery
of evidence.10 While the appearances of the Solicitor General and/or the Public
does not carry the accessory penalty of civil interdiction which deprives the
Prosecutor are mandatory, the failure of the RTC to require their appearance
person of the rights to manage her property and to dispose of such property
does not per se nullify the Compromise Agreement. This Court fully concurs
inter vivos.
with the findings of the CA:
Fourth. Neither could it be said that the petitioner was not intelligently and
x x x. It bears emphasizing that the intendment of the law in requiring the
judiciously informed of the consequential effects of the compromise
presence of the Solicitor General and/or State prosecutor in all proceedings of
agreement, and that, on this basis, he may repudiate the Compromise
legal separation and annulment or declaration of nullity of marriage is to curtail
Agreement. The argument of the petitioner that he was not duly informed by
or prevent any possibility of collusion between the parties and to see to it that
his previous counsel about the legal effects of the voluntary settlement is not
their evidence respecting the case is not fabricated. In the instant case, there is
convincing. Mistake or vitiation of consent, as now claimed by the petitioner as
no exigency for the presence of the Solicitor General and/or the State
his basis for repudiating the settlement, could hardly be said to be evident. In
prosecutor because as already stated, nothing in the subject compromise
Salonga v. Court of Appeals,12 this Court held:
agreement touched into the very merits of the case of declaration of nullity of
marriage for the court to be wary of any possible collusion between the parties. [I]t is well-settled that the negligence of counsel binds the client. This is based
At the risk of being repetiti[ve], the compromise agreement pertains merely to on the rule that any act performed by a lawyer within the scope of his general
an agreement between the petitioner and the private respondent to separate or implied authority is regarded as an act of his client. Consequently, the
their conjugal properties partially without prejudice to the outcome of the mistake or negligence of petitioners' counsel may result in the rendition of an
pending case of declaration of nullity of marriage.11 unfavorable judgment against them.
Exceptions to the foregoing have been recognized by the Court in cases where
reckless or gross negligence of counsel deprives the client of due process of law,
or when its application "results in the outright deprivation of one's property
through a technicality." x x x x13

None of these exceptions has been sufficiently shown in the present case.

WHEREFORE, the Petition is DENIED. The Decision of the Court of Appeals is

AFFIRMED with MODIFICATION that the subject Compromise Agreement is
VALID without prejudice to the rights of all creditors and other persons with
pecuniary interest in the properties of the conjugal partnership of gains.

SO ORDERED.