G.R. No.

169575

March 30, 2011

IMELDA PANTOLLANO (for herself as surviving spouse and in behalf of her 4 children Honeyvette, Tierra Bryn, Kienne Dionnes, Sherra Veda Mae, then all minors, with deceased seaman VEDASTO PANTOLLANO), Petitioner, vs. KORPHIL SHIPMANAGEMENT AND MANNING CORPORATION, Respondent. DECISION DEL CASTILLO, J.: The heirs of a missing seaman may file their claim for death compensation benefits within the three-year period fixed by law from the time the seaman has been presumed dead. This Petition for Review on Certiorari1 assails the Decision2 dated June 30, 2005 of the Court of Appeals (CA) in CA-G.R. SP No. 78759, which granted the petition for certiorari and reversed and set aside the Resolutions dated May 30, 20033and July 31, 20034 of the National Labor Relations Commission (NLRC) in NLRC NCR CASE No. OFW (M) 2000-05-00302-30 (NLRC NCR CA No. 031095-02). Factual Antecedents Korphil Shipmanagement and Manning Corporation (Korphil) is a domestic corporation engaged in the recruitment of seafarers for its foreign principals. On March 24, 1994, it hired Vedasto C. Pantollano (Vedasto) as 4th Engineer on board the vessel M/V Couper under a Philippine Overseas Employment Agency (POEA) approved contract5 of employment, with the following terms and conditions: Duration of Contract : 12 months Position : Fourth Engineer

to locate and rescue Vedasto. Assistance from other vessels was also requested. The search and rescue operation lasted for about six hours, but Vedasto was not found. On August 3, 1994, a Report6 was issued by the Master of M/V Couper declaring that Vedasto was missing. His wife, Imelda Pantollano (Imelda), was likewise informed about the disappearance of Vedasto while onboard M/V Couper. Since then, Vedasto was never seen again. On May 29, 2000, Imelda filed a complaint7 before the NLRC where she sought to recover death benefits, damages and attorneys fees. Ruling of the Labor Arbiter On January 31, 2002, Labor Arbiter Renaldo O. Hernandez rendered a Decision8 holding that the legal heirs of Vedasto are entitled to the payment of death benefits and attorneys fees. The dispositive portion of the Labor Arbiters Decision reads: WHEREFORE, premises considered, judgment is entered finding respondents liable for the claimed death benefits to complainant-in-representation thus ORDERING respondent[s] principal and local manning agent, along with the latters corporate officers and directors, jointly and severally: 1. [T]o pay to the deceased complainants legal heirs/beneficiaries Imelda Pantollano and their four minor children, viz., Honeyvette L. Pantollano born 10/30/81, Tierra Bryn L. Pantollano born 04/17/84, Kienne Dionnes L. Pantollano born 08/29/89, and Sherra Veda Mae L. Pantollano born 11/21/90, death benefits under the POEA Rules and Regulations of US$50,000.00 and US$ 28,000.00 (US$7,000.00 each) for the said 4 minor children; 2. [T]o give and/or pay to them the proceeds of seafarer V. Pantollano[s] coverage for Comprehensive Life, Health, Medical and Disability Insurance with various P and I Clubs for the Owners Protection and Indemnity against any such claim against all hazards and risks in operating the vessel pursuant to maritime commerce; 3. [To] pay attorneys fees of 10% of the total monetary amount awarded.

Basic Monthly Salary : USD 550.00 Other claims of complainant-in-representation are denied for lack of merit. Hours of Work : 48 hours per week SO ORDERED.9 Overtime : USD 165.00 Ruling of the National Labor Relations Commission Vacation Leave With Pay : 3 days/month Korphil sought recourse to the NLRC by submitting its Notice of Appeal10 On August 2, 1994, at about 6:45 A.M., Vedasto was seen by Messman Nolito L. Tarnate (Messman Nolito) to be in deep thought, counting other vessels passing by and talking to himself. At about 8:15 A.M., the Chief Engineer of the vessel reported to the Master of the vessel, Mr. Kim Jong Chul, that Vedasto did not show up for his duty. The Master of the vessel thus ordered all personnel on stand by. The vessel then altered its course to search for Vedasto. Some crew members were tasked to search the vessel while others were assigned to focus their search on the open sea With Memorandum of Appeal on March 6, 2002. On June 7, 2002, Korphil filed a Supplemental Appeal11 to their Memorandum of Appeal. On July 31, 2002, the NLRC issued a Resolution12 reversing and setting aside the January 31, 2002 Decision of the Labor Arbiter. According to the NLRC, the death of

Vedasto which was clearly shown by evidence to be a case of suicide was not compensable under the clear provisions of the POEA Standard Employment Contract. Imelda filed a Motion for Reconsideration13 which was opposed by Korphil.14 In a Resolution15 dated May 30, 2003, the NLRC reversed its July 31, 2002 Resolution and reinstated the January 31, 2002 Decision of the Labor Arbiter. Korphil filed a Motion for Reconsideration16 which was denied by the NLRC through its Resolution17 dated July 31, 2003. Ruling of the Court of Appeals Aggrieved, Korphil filed with the CA a Petition for Certiorari.18 On October 10, 2003, Imelda filed her Comment.19 Korphil did not file its reply and so the CA in a Resolution20 dated December 4, 2003 deemed that it had waived the right to file its reply. The CA directed the parties to submit their respective memoranda and then the case was declared submitted for decision. On June 30, 2005, the CA issued its assailed Decision which granted the petition, reversed and set aside the May 30, 2003 Resolution of the NLRC, and dismissed the case for lack of merit. It held that under Article 291 of the Labor Code, Imelda should have filed her complaint within three years from the time the cause of action accrued. Thus, Imelda should have filed her complaint within three years from Vedastos disappearance on August 2, 1994. Having filed her complaint only on May 29, 2000, the same is already barred by prescription. Imelda moved for reconsideration21 but to no avail. Hence, this appeal ascribing upon the CA the following errors: 1. The Honorable Court of Appeals erred in law when it held that Art. 291 of the x x x Civil Code [applies] only in case of settlement of estates, not in the claim for death compensation benefits under the Labor Code. 2. The Honorable Court of Appeals erred in law when it applied as precedent the case of Caltex (Phils.) Inc. vs. Cristela Villanueva, G.R. No. L-15658, August 21, 1961. 3. Assuming arguendo that Art. 391 of the x x x Civil Code does not apply, the Honorable Court of Appeals erred in law in refusing to apply the rule on estoppel against the respondent company, thereby giving premium on the respondents deception of invoking prematurity when the petitioner timely demanded her death compensation benefits but then raised the defense of prescription when she reiterated her claim after waiting for the lapse of four (4) years as earlier advised by the respondent company.22 The above issues boil down to a single issue of whether the claim of Imelda for death compensation benefits filed on May 29, 2000, or more than five years from

the time her husband Vedasto was reported missing on August 2, 1994, is already barred by prescription following the provisions of Article 291 of the Labor Code. Imeldas Arguments Imelda contends that her claim was not yet barred by prescription when she filed it on May 29, 2000. She avers that when she went to the office of Korphil to claim the death benefits due to the heirs of her husband, Korphil advised her that it was still premature and that she has to wait for the lapse of four years before her husband Vedasto could be declared dead. This is in accordance with the provisions of Article 391 of the Civil Code. However, when she came back after four years, she was told that her claim has already prescribed pursuant to Article 291 of the Labor Code. Imelda asserts that Korphil is, therefore, estopped from interposing the defense of prescription in this case as it was Korphil itself which advised her to wait for at least four years before filing the claim for death benefits. However, the CA ignored this very material fact albeit conspicuously discussed as one of Imeldas arguments. Imelda further contends that the CA erred when it held that Article 391 of the Civil Code applies only in cases of settlement of estates, and not to cases of death compensation claims as in this case. Korphils Arguments Korphil, on the other hand, argues that prescription of actions for money claims arising from employer-employee relationship is governed by Article 291 of the Labor Code. The three-year prescriptive period referred to in Article 291 shall commence to run from the time the cause of action accrued. According to Korphil, the unexplained disappearance on August 2, 1994 of Vedasto occurred on the high seas where there is inherent impossibility for him to leave the ship. The fact that he could not be found dead or alive despite best efforts of all the crew members and the other vessels which responded to the distress call, and the failure of Imelda to establish that Vedasto is still alive are more than substantial proofs to establish that the latter died on August 2, 1994. Therefore, prescription should be reckoned from this date which is considered as the time of death of Vedasto. It is also at this point that the obligation of Korphil to pay death compensation can be demanded as a matter of right by the heirs of Vedasto. Korphil posits that since Imelda filed only on May 29, 2000, or almost five years and ten months from August 2, 1994, her claim to recover death benefits, damages, and attorneys fees is, therefore, already barred by the three-year prescriptive period under Article 291 of the Labor Code. Our Ruling The petition is impressed with merit.

In Medline Management, Inc. v. Roslinda,23 we declared that "in order to avail of death benefits, the death of the employee should occur during the effectivity of the employment contract. The death of a seaman during the term of employment makes the employer liable to his heirs for death compensation benefits. Once it is established that the seaman died during the effectivity of his employment contract, the employer is liable." In this case, there is no dispute that Vedasto went missing on August 2, 1994, during the effectivity of his employment contract. Thus, his beneficiaries are entitled to the death benefits under the POEA Standard Employment Contract for Seafarers, Section 20 of which states: SECTION 20. COMPENSATION AND BENEFITS A. COMPENSATION AND BENEFITS FOR DEATH In the case of work-related death of the seafarer during the term of his contract, the employer shall pay his beneficiaries the Philippine Currency equivalent to the amount of Fifty Thousand US dollars (US$ 50,000) and an additional amount of Seven Thousand US dollars (US$ 7,000) to each child under the age of twenty-one (21) but not exceeding four (4) children, at the exchange rate prevailing during the time of payment. xxxx Thus, upon the death of Vedasto, his heirs, specifically Imelda and their four children, are entitled to US$50,000.00 as well as US$7,000.00 for each child under the age of 21. The status of Imelda and her four children as the legitimate beneficiaries of Vedasto was never questioned. The only issue raised by Korphil was the prescription of their claim. Korphil is estopped from asserting that the reckoning point for prescription to set in is August 2, 1994. Preliminarily, it must be stressed that Korphil is estopped from asserting that Imeldas cause of action accrued on August 2, 1994. Korphil could not deny the fact that it is a party to another case filed by Gliceria P. Echavez (Gliceria), the mother of Vedasto. In this case, Gliceria claimed death benefits due to the death of her son Vedasto. In a Decision24 dated October 15, 1997, Labor Arbiter Dominador A. Almirante ruled that the claim was prematurely filed and hence it must be dismissed without prejudice to the re-filing of the same at the right time. The case was re-filed on August 26, 1998. In a decision25 dated February 22, 1999, Labor Arbiter Almirante ruled that Korphil is liable for the payment of death benefits to Gliceria. Korphil appealed to the NLRC. On November 19, 1999, the NLRC rendered its Decision26 which dismissed the appeal and affirmed the Labor Arbiters Decision. Korphil filed with the CA a petition for certiorari27 which was docketed as CA-G.R. SP No. 58933. In the said petition, Korphil advanced the following arguments: Inasmuch as the missing seamans death cannot be proven, Mr. Pantollano cannot be presumed dead right away considering that the New Civil Code as well as the

Rules of Court provide for a specific rule before a missing person can be properly presumed dead. We shall quote in full the said provision as follows: After an absence of seven (7) years, it being unknown whether or not the absentee still lives, he shall be presumed dead for all purposes, except for those of succession. xxxx Considering that Mr. Pantollano has been absent only for less than six (6) years, his death cannot be legally presumed. If Mr. Pantollano cannot be considered to have died at the time of his disappearance or cannot be legally presumed dead as of the present time by virtue of Article 390 of the Civil Code, public respondent NLRC cannot successfully apply the provision of Section 20 (A) (1) of the POEA Standard Employment Contract because the death of Mr. Pantollano indeed had never occurred. Even [if] a perspicacious, thorough and exhaustive perusal is made on the pertinent provisions of the POEA Standard Employment Contract, this Honorable Court cannot find a provision which gives death compensation to a seafarer who had just disappeared or was merely declared as missing. In view of the fact that the death of the seaman was not duly proven and the period within which the missing seaman can be lawfully presumed dead has not been complied with, it becomes clear that public respondent NLRC indeed committed serious error when it affirmed the Decision of the Labor Arbiter awarding death compensation to private respondent.28 The CA dismissed the claim of Gliceria because the natural mother is not the beneficiary contemplated by law notwithstanding the fact that she was designated by her deceased son as the sole allottee and beneficiary. If there is any party entitled to the death compensation benefits, it is Vedastos surviving spouse and children and not her mother. Gliceria thus filed a petition for review with this Court which was docketed as G.R. No. 157424. In a Resolution dated August 6, 2003, the Court denied the same for the failure of Gliceria to file the appeal within the extended period in accordance with Section 2, Rule 45 of the Rules of Court and for her failure to properly verify the petition in accordance with Section 1, Rule 45 in relation to Section 4, Rule 7, since the verification is based on affiants personal knowledge, information and belief, as a consequence of which the petition was treated as an unsigned pleading which under Section 3, Rule 7, produces no legal effect. But what is obvious is that in the earlier claim for compensation benefits filed by Gliceria, who wanted to arrogate unto herself the said benefits, Korphil was claiming that it was still premature because the death of Vedasto was not yet duly proven and the period that must elapse before a seaman can be lawfully presumed dead has not been complied with. Consequently, Korphil is estopped from insisting in this later case filed by Imelda that Vedasto should be considered dead from the time he went missing on August 2, 1994 and therefore the claim was filed beyond the allowable period of three years. This Court is mindful of the fact that as soon as Imelda came to know about the missing status of her husband on August 2, 1994, she went to Korphil to file her

claim for the payment of death benefits. However, the latter informed her that it was still premature to claim the same and advised her instead to wait four more years before her husband could be presumed dead thereby entitling his heirs to death benefits. Korphil is therefore guilty of estoppel. "Under the doctrine of estoppel, an admission or representation is rendered conclusive upon the person making it, and cannot be denied or disproved as against the person relying thereon. A party may not go back on his own acts and representations to the prejudice of the other party who relied upon them. In the law of evidence, whenever a party has, by his own declaration, act, or omission, intentionally and deliberately led another to believe a particular thing true, to act upon such belief, he cannot, in any litigation arising out of such declaration, act, or omission, be permitted to falsify it."29 Imeldas cause of action accrued only on August 2, 1998 and not on August 2, 1994. According to Korphil, Article 291 of the Labor Code is applicable in this case as it provides: ART. 291. Money Claims. All money claims arising from employer-employee relations accruing during the effectivity of this Code shall be filed within three (3) years from the time the cause of action accrued; otherwise they shall be forever barred. xxxx Korphil posits that the three-year prescriptive period referred to in Article 291 shall commence to run from the time the cause of action accrued, i.e., at the time Vedasto died on August 2, 1994. Hence, when Imelda filed her claim on May 29, 2000, the same has already prescribed. We are not persuaded. On August 2, 1994, it cannot as yet be presumed that Vedasto is already dead. "The boat was not lost. This opens up a number of possibilities. x x x [N]othing is certain. Nobody knows what has happened to him. He could have transferred to another vessel or watercraft. He could even have swum to safety. Or he could have died. Or worse, he could have taken his own life. Legal implications such as right to compensation, succession, the legal status of the wife are so important that courts should not so easily be carried to the conclusion that the man is dead. The result is that death cannot be taken as a fact."30 A person missing under the circumstances as those of Vedasto may not legally be considered as dead until the lapse of the period fixed by law on presumption of death, and consequently Imelda cannot yet be considered as a widow entitled to compensation under the law. On August 2, 1994, when Vedasto was reported missing, Imelda cannot as yet file her claim for death benefits as it is still premature. The provisions of Article 391 of the Civil Code therefore become relevant, to wit:

The following shall be presumed dead for all purposes, including the division of the estate among the heirs; (1) A person on board a vessel lost during a sea voyage, or an aeroplane which is missing, who has not been heard of for four years since the loss of the vessel or aeroplane; (2) A person in the armed forces who has taken part in war, and has been missing for four years; (3) A person who has been in danger of death under other circumstances and his existence has not been known for four years. (Emphasis supplied.) With the known facts, namely, that Vedasto was lost or missing while M/V Couper was navigating the open sea, there is no doubt that he could have been in danger of death. Paragraph (3) of Article 391 of the Civil Code will then be applicable in this case. Thus, Vedasto can only be presumed dead after the lapse of four years from August 2, 1994 when he was declared missing. But of course, evidence must be shown that Vedasto has not been heard of for four years or thereafter. This is the case here. Vedasto is presumed legally dead only on August 2, 1998. It is only at this time that the rights of his heirs to file their claim for death benefits accrued. Korphil then further argued that although Vedasto was declared dead only on August 2, 1998, his death should be considered on the very day of the occurrence of the event from which death is presumed. Thus, the death of Vedasto should retroact to August 2, 1994. The three-year prescriptive period under Article 291 of the Labor Code will therefore be reckoned on August 2, 1994. We do not agree. If we allow such an argument, then no claim for death compensation benefits under this circumstance will ever prosper. This is so because the heirs of a missing seaman have to wait for four years as provided under Article 391 of the Civil Code before the seaman is declared as legally dead. After four years, the prescriptive period for filing money claims under Article 291 of the Labor Code would, obviously, lapse. This scenario could not have been the intention of the legislature in enacting a social legislation, such as the Labor Code. Imeldas claim for death compensation benefits was filed on time. Having already established that Imeldas cause of action accrued on August 2, 1998, it follows that her claim filed on May 29, 2000 was timely. It was filed within three years from the time the cause of action accrued pursuant to Article 291 of the Labor Code. Hence, Imelda and her children are entitled to the payment of said compensation. WHEREFORE, the instant petition for review on certiorari is GRANTED. The Decision of the Court of Appeals in CA-G.R. SP No. 78759 dated May 30, 2005, is

SET ASIDE and the May 30, 2003 Resolution of the NLRC is REINSTATED and AFFIRMED. SO ORDERED.

G.R. No. 137110

August 1, 2000

consortium, Ma. Thelma Oliva bore accused two children, while a child, Vincent Paul, Jr. was sired by accused with complainant Ma. Consuelo Tan. "On October 5, 1992, a letter-complaint for bigamy was filed by complainant through counsel with the City Prosecutor of Bacolod City, which eventually resulted [in] the institution of the present case before this Court against said accused, Dr. Vincent G. Mercado, on March 1, 1993 in an Information dated January 22, 1993. "On November 13, 1992, or more than a month after the bigamy case was lodged in the Prosecutors Office, accused filed an action for Declaration of Nullity of Marriage against Ma. Thelma V. Oliva in RTC-Br. 22, Cebu City, and in a Decision dated May 6, 1993 the marriage between Vincent G. Mercado and Ma. Thelma V. Oliva was declared null and void. "Accused is charged [with] bigamy under Article 349 of the Revised Penal Code for having contracted a second marriage with herein complainant Ma. Consuelo Tan on June 27, 1991 when at that time he was previously united in lawful marriage with Ma. Thelma V. Oliva on April 10, 1976 at Cebu City, without said first marriage having been legally dissolved. As shown by the evidence and admitted by accused, all the essential elements of the crime are present, namely: (a) that the offender has been previously legally married; (2) that the first marriage has not been legally dissolved or in case the spouse is absent, the absent spouse could not yet be presumed dead according to the Civil Code; (3) that he contract[ed] a second or subsequent marriage; and (4) that the second or subsequent marriage ha[d] all the essential requisites for validity. x x x "While acknowledging the existence of the two marriage[s], accused posited the defense that his previous marriage ha[d] been judicially declared null and void and that the private complainant had knowledge of the first marriage of accused. "It is an admitted fact that when the second marriage was entered into with Ma. Consuelo Tan on June 27, 1991, accuseds prior marriage with Ma. Thelma V. Oliva was subsisting, no judicial action having yet been initiated or any judicial declaration obtained as to the nullity of such prior marriage with Ma. Thelma V. Oliva. Since no declaration of the nullity of his first marriage ha[d] yet been made at the time of his second marriage, it is clear that accused was a married man when he contracted such second marriage with complainant on June 27, 1991. He was still at the time validly married to his first wife."3 Ruling of the Court of Appeals Agreeing with the lower court, the Court of Appeals stated: "Under Article 40 of the Family Code, the absolute nullity of a previous marriage may be invoked for purposes of remarriage on the basis solely of a final judgment declaring such previous marriage void. But here, the final judgment declaring null and void accuseds previous marriage came not before the celebration of the second marriage, but after, when the case for bigamy against accused was already tried in court. And what constitutes the crime of bigamy is the act of any person who shall contract a second subsequent marriage before the former marriage has been legally dissolved."4

VINCENT PAUL G. MERCADO a.k.a. VINCENT G. MERCADO, petitioner, vs. CONSUELO TAN, respondent. DECISION PANGANIBAN, J.: A judicial declaration of nullity of a previous marriage is necessary before a subsequent one can be legally contracted. One who enters into a subsequent marriage without first obtaining such judicial declaration is guilty of bigamy. This principle applies even if the earlier union is characterized by statute as "void." The Case Before us is a Petition for Review on Certiorari assailing the July 14, 1998 Decision of the Court of Appeals (CA)1 in CA-GR CR No. 19830 and its January 4, 1999 Resolution denying reconsideration. The assailed Decision affirmed the ruling of the Regional Trial Court (RTC) of Bacolod City in Criminal Case No. 13848, which convicted herein petitioner of bigamy as follows: "WHEREFORE, finding the guilt of accused Dr. Vincent Paul G. Mercado a.k.a. Dr. Vincent G. Mercado of the crime of Bigamy punishable under Article 349 of the Revised Penal Code to have been proven beyond reasonable doubt, [the court hereby renders] judgment imposing upon him a prison term of three (3) years, four (4) months and fifteen (15) days of prision correccional, as minimum of his indeterminate sentence, to eight (8) years and twenty-one (21) days of prision mayor, as maximum, plus accessory penalties provided by law. Costs against accused."2 The Facts The facts are quoted by Court of Appeals (CA) from the trial courts judgment, as follows: "From the evidence adduced by the parties, there is no dispute that accused Dr. Vincent Mercado and complainant Ma. Consuelo Tan got married on June 27, 1991 before MTCC-Bacolod City Br. 7 Judge Gorgonio J. Ibaez [by reason of] which a Marriage Contract was duly executed and signed by the parties. As entered in said document, the status of accused was single. There is no dispute either that at the time of the celebration of the wedding with complainant, accused was actually a married man, having been in lawful wedlock with Ma. Thelma Oliva in a marriage ceremony solemnized on April 10, 1976 by Judge Leonardo B. Caares, CFI-Br. XIV, Cebu City per Marriage Certificate issued in connection therewith, which matrimony was further blessed by Rev. Father Arthur Baur on October 10, 1976 in religious rites at the Sacred Heart Church, Cebu City. In the same manner, the civil marriage between accused and complainant was confirmed in a church ceremony on June 29, 1991 officiated by Msgr. Victorino A. Rivas, Judicial Vicar, Diocese of Bacolod City. Both marriages were consummated when out of the first

Hence, this Petition.5 The Issues In his Memorandum, petitioner raises the following issues: "A Whether or not the element of previous legal marriage is present in order to convict petitioner. "B Whether or not a liberal interpretation in favor of petitioner of Article 349 of the Revised Penal Code punishing bigamy, in relation to Articles 36 and 40 of the Family Code, negates the guilt of petitioner. "C Whether or not petitioner is entitled to an acquittal on the basis of reasonable doubt."6 The Courts Ruling The Petition is not meritorious. Main Issue:Effect of Nullity of Previous Marriage Petitioner was convicted of bigamy under Article 349 of the Revised Penal Code, which provides: "The penalty of prision mayor shall be imposed upon any person who shall contract a second or subsequent marriage before the former marriage has been legally dissolved, or before the absent spouse has been declared presumptively dead by means of a judgment rendered in the proper proceedings." The elements of this crime are as follows: "1. That the offender has been legally married; 2. That the marriage has not been legally dissolved or, in case his or her spouse is absent, the absent spouse could not yet be presumed dead according to the Civil Code; 3. That he contracts a second or subsequent marriage;

4. That the second or subsequent marriage has all the essential requisites for validity."7 When the Information was filed on January 22, 1993, all the elements of bigamy were present. It is undisputed that petitioner married Thelma G. Oliva on April 10, 1976 in Cebu City. While that marriage was still subsisting, he contracted a second marriage, this time with Respondent Ma. Consuelo Tan who subsequently filed the Complaint for bigamy. Petitioner contends, however, that he obtained a judicial declaration of nullity of his first marriage under Article 36 of the Family Code, thereby rendering it void ab initio. Unlike voidable marriages which are considered valid until set aside by a competent court, he argues that a void marriage is deemed never to have taken place at all.8 Thus, he concludes that there is no first marriage to speak of. Petitioner also quotes the commentaries9 of former Justice Luis Reyes that "it is now settled that if the first marriage is void from the beginning, it is a defense in a bigamy charge. But if the first marriage is voidable, it is not a defense." Respondent, on the other hand, admits that the first marriage was declared null and void under Article 36 of the Family Code, but she points out that that declaration came only after the Information had been filed. Hence, by then, the crime had already been consummated. She argues that a judicial declaration of nullity of a void previous marriage must be obtained before a person can marry for a subsequent time. We agree with the respondent. To be sure, jurisprudence regarding the need for a judicial declaration of nullity of the previous marriage has been characterized as "conflicting."10 In People v. Mendoza,11 a bigamy case involving an accused who married three times, the Court ruled that there was no need for such declaration. In that case, the accused contracted a second marriage during the subsistence of the first. When the first wife died, he married for the third time. The second wife then charged him with bigamy. Acquitting him, the Court held that the second marriage was void ab initio because it had been contracted while the first marriage was still in effect. Since the second marriage was obviously void and illegal, the Court ruled that there was no need for a judicial declaration of its nullity. Hence, the accused did not commit bigamy when he married for the third time. This ruling was affirmed by the Court in People v. Aragon,12 which involved substantially the same facts. But in subsequent cases, the Court impressed the need for a judicial declaration of nullity. In Vda de Consuegra v. GSIS,13 Jose Consuegra married for the second time while the first marriage was still subsisting. Upon his death, the Court awarded one half of the proceeds of his retirement benefits to the first wife and the other half to the second wife and her children, notwithstanding the manifest nullity of the second marriage. It held: "And with respect to the right of the second wife, this Court observes that although the second marriage can be presumed to be void ab initio as it was celebrated while the first marriage was still subsisting, still there is need for judicial declaration of such nullity." In Tolentino v. Paras,14 however, the Court again held that judicial declaration of nullity of a void marriage was not necessary. In that case, a man married twice. In

his Death Certificate, his second wife was named as his surviving spouse. The first wife then filed a Petition to correct the said entry in the Death Certificate. The Court ruled in favor of the first wife, holding that "the second marriage that he contracted with private respondent during the lifetime of the first spouse is null and void from the beginning and of no force and effect. No judicial decree is necessary to establish the invalidity of a void marriage." In Wiegel v. Sempio-Diy,15 the Court stressed the need for such declaration. In that case, Karl Heinz Wiegel filed an action for the declaration of nullity of his marriage to Lilia Olivia Wiegel on the ground that the latter had a prior existing marriage. After pretrial, Lilia asked that she be allowed to present evidence to prove, among others, that her first husband had previously been married to another woman. In holding that there was no need for such evidence, the Court ruled: "x x x There is likewise no need of introducing evidence about the existing prior marriage of her first husband at the time they married each other, for then such a marriage though void still needs, according to this Court, a judicial declaration of such fact and for all legal intents and purposes she would still be regarded as a married woman at the time she contracted her marriage with respondent Karl Heinz Wiegel; x x x." Subsequently, in Yap v. CA,16 the Court reverted to the ruling in People v. Mendoza, holding that there was no need for such declaration of nullity. In Domingo v. CA,17 the issue raised was whether a judicial declaration of nullity was still necessary for the recovery and the separation of properties of erstwhile spouses. Ruling in the affirmative, the Court declared: "The Family Code has settled once and for all the conflicting jurisprudence on the matter. A declaration of the absolute nullity of a marriage is now explicitly required either as a cause of action or a ground for defense; in fact, the requirement for a declaration of absolute nullity of a marriage is also for the protection of the spouse who, believing that his or her marriage is illegal and void, marries again. With the judicial declaration of the nullity of his or her first marriage, the person who marries again cannot be charged with bigamy."18 Unlike Mendoza and Aragon, Domingo as well as the other cases herein cited was not a criminal prosecution for bigamy. Nonetheless, Domingo underscored the need for a judicial declaration of nullity of a void marriage on the basis of a new provision of the Family Code, which came into effect several years after the promulgation of Mendoza and Aragon. In Mendoza and Aragon, the Court relied on Section 29 of Act No. 3613 (Marriage Law), which provided: "Illegal marriages. Any marriage subsequently contracted by any person during the lifetime of the first spouse shall beillegal and void from its performance, unless: (a) The first marriage was annulled or dissolved; (b) The first spouse had been absent for seven consecutive years at the time of the second marriage without the spouse present having news of the absentee being alive, or the absentee being generally considered as dead and believed to be so by the spouse present at the time of contracting such

subsequent marriage, the marriage as contracted being valid in either case until declared null and void by a competent court." The Court held in those two cases that the said provision "plainly makes a subsequent marriage contracted by any person during the lifetime of his first spouse illegal and void from its performance, and no judicial decree is necessary to establish its invalidity, as distinguished from mere annulable marriages."19 The provision appeared in substantially the same form under Article 83 of the 1950 Civil Code and Article 41 of the Family Code. However, Article 40 of the Family Code, a new provision, expressly requires a judicial declaration of nullity of the previous marriage, as follows: "ART. 40. The absolute nullity of a previous marriage may be invoked for purposes of remarriage on the basis solely of a final judgment declaring such marriage void." In view of this provision, Domingo stressed that a final judgment declaring such marriage void was necessary. Verily, the Family Code and Domingo affirm the earlier ruling in Wiegel. Thus, a Civil Law authority and member of the Civil Code Revision Commitee has observed: "[Article 40] is also in line with the recent decisions of the Supreme Court that the marriage of a person may be null and void but there is need of a judicial declaration of such fact before that person can marry again; otherwise, the second marriage will also be void (Wiegel v. Sempio-Diy, Aug. 19/86, 143 SCRA 499, Vda. De Consuegra v. GSIS, 37 SCRA 315).This provision changes the old rule that where a marriage is illegal and void from its performance, no judicial decree is necessary to establish its validity (People v. Mendoza, 95 Phil. 843; People v. Aragon, 100 Phil. 1033)."20 In this light, the statutory mooring of the ruling in Mendoza and Aragon that there is no need for a judicial declaration of nullity of a void marriage -- has been cast aside by Article 40 of the Family Code. Such declaration is now necessary before one can contract a second marriage. Absent that declaration, we hold that one may be charged with and convicted of bigamy. The present ruling is consistent with our pronouncement in Terre v. Terre,21 which involved an administrative Complaint against a lawyer for marrying twice. In rejecting the lawyers argument that he was free to enter into a second marriage because the first one was void ab initio, the Court ruled: "for purposes of determining whether a person is legally free to contract a second marriage, a judicial declaration that the first marriage was null and void ab initio is essential." The Court further noted that the said rule was "cast into statutory form by Article 40 of the Family Code." Significantly, it observed that the second marriage, contracted without a judicial declaration that the first marriage was void, was "bigamous and criminal in character." Moreover, Justice Reyes, an authority in Criminal Law whose earlier work was cited by petitioner, changed his view on the subject in view of Article 40 of the Family Code and wrote in 1993 that a person must first obtain a judicial declaration of the nullity of a void marriage before contracting a subsequent marriage:22

"It is now settled that the fact that the first marriage is void from the beginning is not a defense in a bigamy charge. As with a voidable marriage, there must be a judicial declaration of the nullity of a marriage before contracting the second marriage. Article 40 of the Family Code states that x x x. The Code Commission believes that the parties to a marriage should not be allowed to assume that their marriage is void, even if such is the fact, but must first secure a judicial declaration of nullity of their marriage before they should be allowed to marry again. x x x." In the instant case, petitioner contracted a second marriage although there was yet no judicial declaration of nullity of his first marriage. In fact, he instituted the Petition to have the first marriage declared void only after complainant had filed a letter-complaint charging him with bigamy. By contracting a second marriage while the first was still subsisting, he committed the acts punishable under Article 349 of the Revised Penal Code. That he subsequently obtained a judicial declaration of the nullity of the first marriage was immaterial. To repeat, the crime had already been consummated by then. Moreover, his view effectively encourages delay in the prosecution of bigamy cases; an accused could simply file a petition to declare his previous marriage void and invoke the pendency of that action as a prejudicial question in the criminal case. We cannot allow that. Under the circumstances of the present case, he is guilty of the charge against him. Damages In her Memorandum, respondent prays that the Court set aside the ruling of the Court of Appeals insofar as it denied her claim of damages and attorneys fees.23 Her prayer has no merit. She did not appeal the ruling of the CA against her; hence, she cannot obtain affirmative relief from this Court.24 In any event, we find no reason to reverse or set aside the pertinent ruling of the CA on this point, which we quote hereunder: "We are convinced from the totality of the evidence presented in this case that Consuelo Tan is not the innocent victim that she claims to be; she was well aware of the existence of the previous marriage when she contracted matrimony with Dr. Mercado. The testimonies of the defense witnesses prove this, and we find no reason to doubt said testimonies. xxx xxx xxx

ironically because of her personal instigation. If there are indeed damages caused to her reputation, they are of her own willful making."25 WHEREFORE, the Petition is DENIED and the assailed Decision AFFIRMED. Costs against petitioner. SO ORDERED.

"Indeed, the claim of Consuelo Tan that she was not aware of his previous marriage does not inspire belief, especially as she had seen that Dr. Mercado had two (2) children with him. We are convinced that she took the plunge anyway, relying on the fact that the first wife would no longer return to Dr. Mercado, she being by then already living with another man. "Consuelo Tan can therefore not claim damages in this case where she was fully conscious of the consequences of her act. She should have known that she would suffer humiliation in the event the truth [would] come out, as it did in this case,

People v. Timbol 47 OG 1868