REPUBLIC OF THE PHILIPPINES SUPREME COURT MANILA FIRST (1st) DIVISION JUAN DELA CRUZ, Petitioner-Appellant,

-versusG.R. No. 123456

JUANA CHUA, Defendant-Appellee, x-------------------------------------------x APPEALLANTS BRIEF

PETITIONER APPELLANT, by the undersigned counsel, unto this Court, respectfully state: STATEMENT OF FACTS: 1. This is a case for the declaration of nullity of the marriage celebrated between the parties in this case on March 10, 1988. The Defendant-Appellee Juana Chua (Juana) was before, the celebration of the said marriage as indicated in the Marriage Certificate of the parties, married to Pedro Aquino (Pedro). Her marriage with Pedro was celebrated on August 13, 1989 and then re-celebrated under a Roman Catholic Church held wedding on August 20, 1990. 2. She was able to re-marry in March 19, 1991 because she declared her husband as missing under the old law on the matter as contained in the Civil Code of the Philippines. It is respectfully submitted however that she admitted that her mother-inlaw told her that her husband is alive and had long been married in England in 1990 when the Family Code is already in effect. 3. Sometime in March 1993, Juana filed a petition for change of name, asking that she be allowed to use the surname of her second husband Dela Cruz herein Petitioner-Appellant Juan Dela Cruz (Juan) thereby dropping her use of her first husbands surname Chua. 4. It is respectfully pointed out that in the decision rendered by Branch 59 of the Regional Trial Court of Cagayan De Oro disposing of the above petition for change of name, the said trial court even mentioned that in 1990 Juana was informed by her mother-in-law out of his first marriage that Pedro (her original husband) is ALIVE and in England. This is clearly mentioned in page 4 of the decision of the Cagayan De Oro trial court dated May 6, 1998. The decision is attached herein for ready reference as Annex A. 5. By reason of the abovementioned facts, the petition for declaration of nullity of marriage was filed in the lower court (RTC 100, Makati). The said petition is

based in Article 42 of the Family Code which states that the reappearance of the absent spouse automatically terminates the second marriage. 6. An answer was filed by the respondent Juana contending that the since the marriage between the herein parties was solemnized under the regime of the Civil Code, necessarily the marriage between them should be considered as still valid but annullable, and not automatically invalidated. 7. Instead of considering the said case filed under Article 42 of the Family Code the Makati lower court treated the same as an ordinary case of declaration of nullity. This is evident from the fact that instead of proceeding to determine the allegations in the petition regarding the reappearance of Pedro way back in 1990 as admitted by Juana in her own petition for change of name, the lower court ordered its social worker to conduct a social case study of the family. It is respectfully submitted that there is no need to conduct a social case report in this case under Article 42 of the Family Code. 8. Worse, the court social worker reported to the lower court that she went to the address of the petitioner to conduct the case study report but found-out that the said petitioner is not a resident of the said address. Based on the said report of the social worker the case was dismissed by the lower court. 9. A motion for reconsideration was filed wherein a Certification of residency was issued by the Barangay Chairman of the place where Juan has resided as indicated in the petition dismissed by the lower court (for more than six months prior to the filing of the case), but instead of taking into consideration the said certification issued by the head of the barangay where the petitioner resides, the motion for reconsideration was still denied. 10. Hence this Appeal.

ASSIGNMENT OF ERRORS: I THE LOWER COURT ERRED IN TREATING THE PETITION AS AN ORDINARY CASE FOR NULLITY OF MARRIAGE INSTEAD OF ONE FILED UNDER ARTICLE 42 OF THE FAMILY CODE, WHICH CONCERNS THE REAPPEARANCE OF THE FIRST HUSBAND OF JUANA THUS AUTOMATICALLY TERMINATING THE SUBSEQUENT MARRIAGE SHE CONTRACTED WITH APPELLANT JUAN. II THE LOWER COURT ERRED IN REFERRING THIS CASE TO A SOCIAL WORKER AS THE SAME IS NOT REQUIRED UNDER ARTICLE 42 OF THE FAMILY CODE. III THE LOWER COURT ERRED IN DISMISSING THE CASE DESPITE THE FACT THAT APPELLANT JUAN WAS ISSUED A CERTIFICATION FROM THE BARANGAY CAPTAIN THAT HE IS A RESIDENT OF THE ADDRESS HE USED IN THE PETITION FILED IN THE LOWER COURT.

IV THE LOWER COURT ERRED IN NOT AUTOMATICALLY TERMINATING THE SECOND MARRIAGE BETWEEN JUANA AND JUAN DUE TO THE ADMISSION MADE BY JUANA HERSELF THAT HER FIRST HUSBAND PEDRO IS ALIVE AND LIVING IN ENGLAND.

DISCUSSIONS & ARGUMENTS: 11. Article 42 of the Family Code is very clear as to the effect of the reappearance of the first spouse on the second marriage, to wit: 12. The argument of the respondent using the tenets laid down under the Civil Code should be unacceptable under the circumstances obtaining herein because the reappearance happened in 1990 wherein the Family Code and Article 42 thereof is already in full effect. 13. As contained in Article 42 of the Family Code, it only takes an affidavit of reappearance executed by an interested person with notice given to the spouses of the subsequent marriage, filed with the civil registries of the parties to the second marriage, to automatically terminate the subsequent marriage, thus also automatically and effectively reviving the existence of the first one. In this case not only was an affidavit filed but a verified petition in court. 14. The evidence appended in the abovementioned petition to declare annulled the second marriage is a decision of Branch 46 of the Regional Trial Court of Cagayan De Oro which was filed by Juana herself, wherein she admitted as contained in the Cagayan De Oro case decision that Pedro is alive and living in England. It is submitted that as early as the said admission the second marriage should have been automatically severed in accordance with Article 42 of the Family Code. 15. Yet for some strange reasons the Cagayan De Oro RTC ignored the declaration, if not outright admission, made by Juana that her first husband Pedro is ALIVE in England. And also the Makati RTC, likewise again for some strange and unknown reasons, failed to recognize the said declaration or admission of Juana which was never denied by her in the answer filed in the Makati RTC. The Cagayan De Oro RTC decision was appended to the Makati RTC petition for declaration of nullity. 16. Comes now the matter of the dismissal of the petition by the lower court. This case was dismissed because the assigned social worker, whom the lower court ordered to conduct a social case study of the family of Juana and Juan, reported to the lower court that Juan is not a resident of the address stated in the petition. 17. At first glance this may be proper however, in the motion for reconsideration filed by Juan through counsel he attached a Certification issued by the Barangay Chairman of Barangay San Antonio, the place indicated in the petition as his place of residence, stating that he is a resident of the said barangay. It is respectfully submitted that between the report of the lower courts social worker and the certification of the barangay chairman, the latter should have been given more weight because the local barangay executive is more competent in determining or ascertaining the veracity of Juans allegation that he resides in Barangay San Antonio, Makati City. 18. The barangay chairman would definitely have more personal knowledge and capability to ascertain whether Juan has been a resident of his barangay for more than

six months before the petition was filed, as opposed to the social worker who merely based her report on second hand information passed to her by residents she interviewed during this singular instance that she tried to conduct a social case study. 19. The lower court should have ordered the social worker to coordinate with the above barangay official and to find out if Juan is indeed residing in the address he gave, or to clarify the confusion made by the conflicting report and certification. In truth Juan has been staying with some relatives who have been long-time residents of Barangay San Antonio after he separated with Juana, for more than six month prior to the filing of the case at bench in the lower court. 20. It is submitted that considering the foregoing factual narrations, arguments and discussions, the lower court erred in dismissing the petition filed by Juan. It is therefore further respectfully submitted that the Honorable Court should declare the marriage between Juana and Juan as automatically terminated in accordance with the provisions of Article 42 of the Family Code. PRAYER WHEREFORE, premises considered it is respectfully prayed that the subsequent marriage contracted by Juana with Juan be AUTOMATICALLY NULLIFIED in accordance with Article 42 of the Family Code. Other just and equitable remedies are also prayed for.

Respectfully submitted.

Genesis Paul Irao Counsel for the Petitioner-Appellant