SECOND DIVISION

IN THE MATTER OF THE INTESTATE ESTATE OF CRISTINA

AGUINALDO- SUNTAY; EMILIO A.M. SUNTAY III,
Petitioner,
- versus ISABEL COJUANGCO-SUNTAY,
Respondent.
G.R. No. 183053
Present:
CARPIO, J.,
Chairperson,
NACHURA,
PERALTA,
ABAD, and
PEREZ,* JJ.
Promulgated:

Court (RTC), Branch 78, Malolos, Bulacan, in Special Proceeding

Case No. 117-M-95.[5]

Before anything else, we disentangle the facts.

On June 4, 1990, the decedent, Cristina Aguinaldo-Suntay
(Cristina), married to Dr. Federico Suntay (Federico), died intestate.
In 1979, their only son, Emilio Aguinaldo Suntay (Emilio I),
predeceased both Cristina and Federico. At the time of her death,
Cristina was survived by her husband, Federico, and several
grandchildren, including herein petitioner Emilio A.M. Suntay III
(Emilio III) and respondent Isabel Cojuangco-Suntay.
During his lifetime, Emilio I was married to Isabel Cojuangco, and
they begot three children, namely: herein respondent, Isabel;
Margarita; and Emilio II, all surnamed Cojuangco-Suntay. Emilio Is
marriage to Isabel Cojuangco was subsequently annulled.
Thereafter, Emilio I had two children out of wedlock, Emilio III and
Nenita Suntay Taedo (Nenita), by two different women, Concepcion
Mendoza and Isabel Santos, respectively.
Despite the illegitimate status of Emilio III, he was reared ever since
he was a mere baby, nine months old, by the spouses Federico and
Cristina and was an acknowledged natural child of Emilio I. Nenita
is an acknowledged natural child of Emilio I and was likewise
brought up by the spouses Federico and Cristina.

June 16, 2010

x------------------------------------------------------------------------------------x
DECISION
NACHURA, J.:
Unlike Pope Alexander VI[1] who, faced with the impasse between
Spain and Portugal, deftly and literally divided the exploration, or
more appropriately, the riches of the New World by issuing the Inter
Caetera,[2] we are confronted with the difficult, albeit, all too
familiar tale of another family imbroglio over the estate of a
decedent.[3]
This is a petition for review on certiorari under Rule 45 of the Rules
of Court, assailing the Decision of the Court of Appeals (CA) in CAG.R. CV No. 74949,[4] reversing the decision of the Regional Trial

As previously adverted to, the marriage between Emilio I and Isabel

was annulled.[6] Consequently, respondent and her siblings
Margarita and Emilio II, lived with their mother on Balete Drive,
Quezon City, separately from their father and paternal
grandparents.
Parenthetically, after the death of Emilio I, Federico filed a petition
for visitation rights over his grandchildren: respondent Isabel,
Margarita, and Emilio II. Although the Juvenile and Domestic
Relations Court in Quezon City granted the petition and allowed
Federico one hour of visitation monthly, initially reduced to thirty
minutes, it was altogether stopped because of a manifestation filed
by respondent Isabel, articulating her sentiments on the unwanted
visits of her grandparents.

Significantly, Federico, after the death of his spouse, Cristina, or on

September 27, 1993, adopted their illegitimate grandchildren,
Emilio III and Nenita.[7]
On October 26, 1995, respondent filed a petition for the issuance of
letters of administration in her favor, containing the following
allegations:
[A]t the time of [the decedents] death, [she] was a resident of the
Municipality of Hagonoy, Province of Bulacan; that the [decedent]
left an estate of real and personal properties, with a probable gross
value of P29,000,000.00; that the names, ages and residences of
the surviving heirs of the [decedent] are: (1) Federico C. Suntay, 89
years old, surviving spouse and a resident of x x x; (2) Isabel
Cojuangco-Suntay, 36 years old, legitimate granddaughter and a
resident of x x x; (3) Margarita Cojuangco-Suntay, 39 years old,
legitimate granddaughter and a resident of x x x; and (4) Emilio
Cojuangco-Suntay, 35 years old, legitimate grandson and a
resident of x x x; and that as far as [respondent] knew, the
decedent left no debts or obligation at the time of her death.[8]
Disavowing the allegations in the petition of his grandchild,
respondent Isabel, Federico filed his opposition on December 21,
1995, alleging, among others, that:
[B]eing the surviving spouse of Cristina, he is capable of
administering her estate and he should be the one appointed as its
administrator; that as part owner of the mass of conjugal properties
left by Cristina, he must be accorded legal preference in the
administration thereof; that Isabel and her family had been
alienated from their grandparents for more than thirty (30) years;
that the enumeration of heirs in the petition was incomplete as it
did not mention the other children of his son[,] namely: Emilio III
and Nenita S. Taedo; that he is better situated to protect the
integrity of the estate of Cristina as even before the death of his
wife[,] he was already the one who managed their conjugal
properties; that the probable value of the estate as stated in the
petition was grossly overstated (sic); and that Isabels allegation
that some of the properties are in the hands of usurpers is untrue.
[9]

Meanwhile, after a failed attempt by the parties to settle the

proceedings amicably, Federico filed a Manifestation dated March
13, 1999, nominating his adopted son, Emilio III, as administrator of
the decedents estate on his behalf, in the event he would be
adjudged as the one with a better right to the letters of
administration.
Subsequently, the trial court granted Emilio IIIs Motion for Leave to
Intervene considering his interest in the outcome of the case.
Emilio III filed his Opposition-In-Intervention, which essentially
echoed the allegations in his grandfathers opposition, alleging that
Federico, or in his stead, Emilio III, was better equipped than
respondent to administer and manage the estate of the decedent,
Cristina. Additionally, Emilio III averred his own qualifications that:
[he] is presently engaged in aquaculture and banking; he was
trained by the decedent to work in his early age by involving him in
the activities of the Emilio Aguinaldo Foundation which was
established in 1979 in memory of her grandmothers father; the
significant work experiences outside the family group are included
in his curriculum vitae; he was employed by the oppositor
[Federico] after his graduation in college with management degree
at F.C.E. Corporations and Hagonoy Rural Bank; x x x.[10]
In the course of the proceedings, on November 13, 2000, Federico
died.
After the testimonies of both parties witnesses were heard and
evidence on their respective allegations were adduced, the trial
court rendered a decision on November 9, 2001, appointing herein
petitioner, Emilio III, as administrator of decedent Cristinas
intestate estate, to wit:
WHEREFORE, the petition of Isabel Cojuangco[-]Suntay is DENIED
and the Opposition[-]in[-]Intervention is GRANTED.

Accordingly, the Intervenor, Emilio A.M. Suntay, III is hereby

appointed administrator of the estate of the decedent Cristina
Aguinaldo Suntay, who shall enter upon the execution of his trust
upon the filing of a bond in the amount of P200,000.00, conditioned
as follows:
(1)
To make and return within three (3) months, a true and
complete inventory;

(2)
To administer the estate and to pay and discharge all
debts, legatees, and charge on the same, or dividends thereon;
(3)
To render a true and just account within one (1) year,
and at any other time when required by the court, and
(4)
To perform all orders of the Court.
Once the said bond is approved by the court, let Letters of
Administration be issued in his favor.
SO ORDERED.[11]
Aggrieved, respondent filed an appeal before the CA, which
reversed and set aside the decision of the RTC, revoked the Letters
of Administration issued to Emilio III, and appointed respondent as
administratrix of the intestate estate of the decedent, Cristina, to
wit:
WHEREFORE, in view of all the foregoing, the assailed decision
dated November 9, 2001 of Branch 78, Regional Trial Court of
Malolos, Bulacan in SPC No. 117-M-95 is REVERSED and SET ASIDE
and the letters of administration issued by the said court to Emilio
A.M. Suntay III, if any, are consequently revoked. Petitioner Isabel
Cojuangco[-]Suntay is hereby appointed administratrix of the
intestate estate of Cristina Aguinaldo Suntay. Let letters of
administration be issued in her favor upon her filing of a bond in
the amount of Two Hundred Thousand (P200,000.00) Pesos.
No pronouncement as to costs.
SO ORDERED.[12]

The motion for reconsideration of Emilio III having been denied, he

appeals by certiorari to this Court, raising the following issues:
A. IN THE APPOINTMENT OF AN ADMINISTRATOR OF THE ESTATE
UNDER SECTION 6 OF RULE 78 OF THE RULES OF COURT, WHETHER
ARTICLE 992 OF THE CIVIL CODE APPLIES; and
B. UNDER THE UNDISPUTED FACTS WHERE HEREIN PETITIONER
WAS REARED BY THE DECEDENT AND HER SPOUSE SINCE INFANCY,
WHETHER ARTICLE 992 OF THE NEW CIVIL CODE APPLIES SO AS TO
BAR HIM FROM BEING APPOINTED ADMINISTRATOR OF THE
DECEDENTS ESTATE.[13]

3
In ruling against the petition of herein respondent, the RTC
ratiocinated, thus:
Evidence objectively assessed and carefully evaluated, both
testimonial and documentary, the court opines that it is to the best
interest of the estate of the decedent and all claimants thereto,
that the Intervenor, Emilio A.M. Suntay III, be appointed
administrator of the estate in the above-entitled special
proceedings.
Based on the evidence and demeanor of the parties in court,
[respondents immediate] family and that of the decedent are
apparently estranged. The root cause of which, is not for this court
to ascertain nor is this the right time and the proper forum to dwell
upon. What matters most at this time is the welfare of the estate of
the decedent in the light of such unfortunate and bitter
estrangement.
The Court honestly believes that to appoint the petitioner would go
against the wishes of the decedent who raised [Emilio III] from
infancy in her home in Baguio City as her own child. Certainly, it
would go against the wishes of the surviving spouse x x x who
nominated [Emilio III] for appointment as administrator.
As between [respondent] and the oppositor [Federico], the latter is
accorded preference as the surviving spouse under Sec 6(a), Rule
78, Rules of Court. On the basis of such preference, he vigorously
opposed the appointment of the petitioner and instead nominated
[Emilio III], his grandchild and adopted child. Such nomination,
absent any valid and justifiable reason, should not be imperiously
set aside and insouciantly ignored, even after the oppositor
[Federico] has passed away, in order to give effect to the order of
preference mandated by law. Moreover, from the viewpoint of the
estate, the nomination of [Emilio III] appear[s] intrinsically
meritorious. For the benefit of the estate and its claimants,
creditors, as well as heirs, the administrator should be one who is
prepared, academically and by experience, for the demands and
responsibilities of the position. While [respondent], a practicing
physician, is not unqualified, it is clear to the court that when it
comes to management of real estate and the processing and
payment of debts, [Emilio III], a businessman with an established

track record as a manager has a decided edge and therefore, is in a

position to better handle the preservation of the estate.[14]
In marked contrast, the CA zeroed in on Emilio IIIs status as an
illegitimate child of Emilio I and, thus, barred from representing his
deceased father in the estate of the latters legitimate mother, the
decedent. On the whole, the CA pronounced that Emilio III, who was
merely nominated by Federico, and which nomination hinged upon
the latters appointment as administrator of the decedents estate,
cannot be appointed as the administrator of the decedents estate
for the following reasons:[15]
1. The appointment of Emilio III was subject to a suspensive
condition, i.e., Federicos appointment as administrator of the
estate, he being the surviving spouse of Cristina, the decedent. The
death of Federico before his appointment as administrator of
Cristinas estate rendered his nomination of Emilio III inoperative;
2. As between the legitimate offspring (respondent) and illegitimate
offspring (Emilio III) of decedents son, Emilio I, respondent is
preferred, being the next of kin referred to by Section 6, Rule 78 of
the Rules of Court, and entitled to share in the distribution of
Cristinas estate as an heir;
3. Jurisprudence has consistently held that Article 992[16] of the
Civil Code bars the illegitimate child from inheriting ab intestato
from the legitimate children and relatives of his father or mother.
Thus, Emilio III, who is barred from inheriting from his grandmother,
cannot be preferred over respondent in the administration of the
estate of their grandmother, the decedent; and
4. Contrary to the RTCs finding, respondent is as much competent
as Emilio III to administer and manage the subject estate for she
possesses none of the disqualifications specified in Section 1,[17]
Rule 78 of the Rules of Court.
The pivotal issue in this case turns on who, as between Emilio III
and respondent, is better qualified to act as administrator of the
decedents estate.
We cannot subscribe to the appellate courts ruling excluding Emilio
III in the administration of the decedents undivided estate.
Mistakenly, the CA glosses over several undisputed facts and
circumstances:

4
1. The underlying philosophy of our law on intestate succession is
to give preference to the wishes and presumed will of the
decedent, absent a valid and effective will;
2. The basis for Article 992 of the Civil Code, referred to as the iron
curtain bar rule,[18] is quite the opposite scenario in the facts
obtaining herein for the actual relationship between Federico and
Cristina, on one hand, and Emilio III, on the other, was akin to the
normal relationship of legitimate relatives;
3. Emilio III was reared from infancy by the decedent, Cristina, and
her husband, Federico, who both acknowledged him as their
grandchild;
4. Federico claimed half of the properties included in the estate of
the decedent, Cristina, as forming part of their conjugal partnership
of gains during the subsistence of their marriage;
5. Cristinas properties forming part of her estate are still
commingled with that of her husband, Federico, because her share
in the conjugal partnership, albeit terminated upon her death,
remains undetermined and unliquidated; and
6. Emilio III is a legally adopted child of Federico, entitled to share
in the distribution of the latters estate as a direct heir, one degree
from Federico, not simply representing his deceased illegitimate
father, Emilio I.
From the foregoing, it is patently clear that the CA erred in
excluding Emilio III from the administration of the decedents estate.
As Federicos adopted son, Emilio IIIs interest in the estate of
Cristina is as much apparent to this Court as the interest therein of
respondent, considering that the CA even declared that under the
law, [Federico], being the surviving spouse, would have the right of
succession over a portion of the exclusive property of the decedent,
aside from his share in the conjugal partnership. Thus, we are
puzzled why the CA resorted to a strained legal reasoning Emilio IIIs
nomination was subject to a suspensive condition and rendered
inoperative by reason of Federicos death wholly inapplicable to the
case at bar.

Section 6, Rule 78 of the Rules of Court lists the order of preference

in the appointment of an administrator of an estate:
SEC. 6. When and to whom letters of administration granted. If no
executor is named in the will, or the executor or executors are
incompetent, refuse the trust, or fail to give bond, or a person dies
intestate, administration shall be granted:
(a) To the surviving husband or wife, as the case may be, or next of
kin, or both, in the discretion of the court, or to such person as such
surviving husband or wife, or next of kin, requests to have
appointed, if competent and willing to serve;
(b) If such surviving husband or wife, as the case may be, or next of
kin, or the person selected by them, be incompetent or unwilling, or
if the husband or widow, or next of kin, neglects for thirty (30) days
after the death of the person to apply for administration or to
request that administration be granted to some other person, it
may be granted to one or more of the principal creditors, if
competent and willing to serve;
(c) If there is no such creditor competent and willing to serve, it
may be granted to such other person as the court may select.
However, the order of preference is not absolute for it depends on
the attendant facts and circumstances of each case.[19]
Jurisprudence has long held that the selection of an administrator
lies in the sound discretion of the trial court.[20] In the main, the
attendant facts and circumstances of this case necessitate, at the
least, a joint administration by both respondent and Emilio III of
their grandmothers, Cristinas, estate.
In the case of Uy v. Court of Appeals,[21] we upheld the
appointment by the trial court of a co-administration between the
decedents son and the decedents brother, who was likewise a
creditor of the decedents estate. In the same vein, we declared in
Delgado Vda. de De la Rosa v. Heirs of Marciana Rustia Vda. de
Damian[22] that:
[i]n the appointment of an administrator, the principal
consideration is the interest in the estate of the one to be
appointed. The order of preference does not rule out the
appointment of co-administrators, specially in cases where justice

and equity demand that opposing parties or factions be

represented in the management of the estates, a situation which
obtains here.

Similarly, the subject estate in this case calls to the succession

other putative heirs, including another illegitimate grandchild of
Cristina and Federico, Nenita Taedo, but who was likewise adopted
by Federico, and the two (2) siblings of respondent Isabel,
Margarita and Emilio II. In all, considering the conflicting claims of
the putative heirs, and the unliquidated conjugal partnership of
Cristina and Federico which forms part of their respective estates,
we are impelled to move in only one direction, i.e., joint
administration of the subject estate.
One final note. Counsel for petitioner meticulously argues that
Article 992 of the Civil Code, the successional bar between the
legitimate and illegitimate relatives of a decedent, does not apply
in this instance where facts indubitably demonstrate the contrary
Emilio III, an illegitimate grandchild of the decedent, was actually
treated by the decedent and her husband as their own son, reared
from infancy, educated and trained in their businesses, and
eventually legally adopted by decedents husband, the original
oppositor to respondents petition for letters of administration.
We are not unmindful of the critiques of civilists of a conflict and a
lacuna in the law concerning the bone of contention that is Article
992 of the Civil Code, beginning with the eminent Justice J.B.L.
Reyes:
In the Spanish Civil Code of 1889 the right of representation was
admitted only within the legitimate family; so much so that Article
943 of that Code prescribed that an illegitimate child can not inherit
ab intestato from the legitimate children and relatives of his father
and mother. The Civil Code of the Philippines apparently adhered to
this principle since it reproduced Article 943 of the Spanish Code in
its own Art. 992, but with fine inconsistency, in subsequent articles
(990, 995 and 998) our Code allows the hereditary portion of the
illegitimate child to pass to his own descendants, whether
legitimate or illegitimate. So that while Art. 992 prevents the
illegitimate issue of a legitimate child from representing him in the
intestate succession of the grandparent, the illegitimates of an
illegitimate child can now do so. This difference being indefensible
and unwarranted, in the future revision of the Civil Code we shall
have to make a choice and decide either that the illegitimate issue

enjoys in all cases the right of representation, in which case Art.

992 must be suppressed; or contrariwise maintain said article and
modify Articles 995 and 998. The first solution would be more in
accord with an enlightened attitude vis--vis illegitimate children.
[23]

opened, and the proceeding has not as yet reached the stage of
distribution of the estate which must come after the inheritance is
liquidated.

Section 1, Rule 90 of the Rules of Court does not depart from the
foregoing admonition:

Manresa explains the basis for the rules on intestate succession:

The law [of intestacy] is founded on the presumed will of the
deceased Love, it is said, first descends, then ascends, and, finally,
spreads sideways. Thus, the law first calls the descendants, then
the ascendants, and finally the collaterals, always preferring those
closer in degree to those of remoter degrees, on the assumption
that the deceased would have done so had he manifested his last
will Lastly, in default of anyone called to succession or bound to the
decedent by ties of blood or affection, it is in accordance with his
presumed will that his property be given to charitable or
educational institutions, and thus contribute to the welfare of
humanity.[24]
Indeed, the factual antecedents of this case accurately reflect the
basis of intestate succession, i.e., love first descends, for the
decedent, Cristina, did not distinguish between her legitimate and
illegitimate grandchildren. Neither did her husband, Federico, who,
in fact, legally raised the status of Emilio III from an illegitimate
grandchild to that of a legitimate child. The peculiar circumstances
of this case, painstakingly pointed out by counsel for petitioner,
overthrow the legal presumption in Article 992 of the Civil Code
that there exist animosity and antagonism between legitimate and
illegitimate descendants of a deceased.
Nonetheless, it must be pointed out that judicial restraint impels us
to refrain from making a final declaration of heirship and
distributing the presumptive shares of the parties in the estates of
Cristina and Federico, considering that the question on who will
administer the properties of the long deceased couple has yet to be
settled.
Our holding in Capistrano v. Nadurata[25] on the same issue
remains good law:
[T]he declaration of heirs made by the lower court is premature,
although the evidence sufficiently shows who are entitled to
succeed the deceased. The estate had hardly been judicially

Sec. 1. When order for distribution of residue is made. x x x. If there

is a controversy before the court as to who are the lawful heirs of
the deceased person or as to the distributive shares to which each
person is entitled under the law, the controversy shall be heard and
decided as in ordinary cases.
No distribution shall be allowed until the payment of the obligations
above mentioned has been made or provided for, unless the
distributees, or any of them, give a bond, in a sum to be fixed by
the court, conditioned for the payment of said obligations within
such time as the court directs.
WHEREFORE, the petition is GRANTED. The Decision of the Court of
Appeals in CA-G.R. CV No. 74949 is REVERSED and SET ASIDE.
Letters of Administration over the estate of decedent Cristina
Aguinaldo-Suntay shall issue to both petitioner Emilio A.M. Suntay
III and respondent Isabel Cojuangco-Suntay upon payment by each
of a bond to be set by the Regional Trial Court, Branch 78, Malolos,
Bulacan, in Special Proceeding Case No. 117-M-95. The Regional
Trial Court, Branch 78, Malolos, Bulacan is likewise directed to make
a determination and to declare the heirs of decedent Cristina
Aguinaldo-Suntay according to the actual factual milieu as proven
by the parties, and all other persons with legal interest in the
subject estate. It is further directed to settle the estate of decedent
Cristina Aguinaldo-Suntay with dispatch. No costs.
SO ORDERED.
ANTONIO EDUARDO B. NACHURA
Associate Justice
WE CONCUR:
ANTONIO T. CARPIO
Associate Justice
Chairperson

7
DIOSDADO M. PERALTA
Associate Justice
ROBERTO A. ABAD
Associate Justice
JOSE PORTUGAL PEREZ
Associate Justice
ATTESTATION
I attest that the conclusions in the above Decision had been
reached in consultation before the case was assigned to the writer
of the opinion of the Courts Division.
ANTONIO T. CARPIO
Associate Justice
Chairperson, Second Division
CERTIFICATION
Pursuant to Section 13, Article VIII of the Constitution and the
Division Chairperson's Attestation, I certify that the conclusions in
the above Decision had been reached in consultation before the
case was assigned to the writer of the opinion of the Courts
Division.
RENATO C. CORONA
Chief Justice
* Additional member in lieu of Associate Justice Jose C. Mendoza per
Special Order No. 842 dated June 3, 2010.
[1] Formerly Cardinal Rodrigo Borgia, before ascending to the religious title
of Pope and assuming the name Alexander VI.
[2] The Papal Bull which drew a longitudinal line (one hundred leagues
west of the Azores and Cape Verde Islands) and bestowed all non-Christian
lands west thereof to Spain, and east of the line to Portugal.
[3] In The Family, a book with a factual core on the Borgia family of 15th
Century Rome, Mario Puzo recounts that the ostensibly fair and just papal
ruling actually favored Spain and placed Portugal at a disadvantage
because papal intervention and arbitration of the matter was made at the
behest of King Ferdinand of Spain. More importantly, Pope Alexander VI
was originally a Catalan who, at the start of his career as a cleric in Italy,

conveniently changed his name from the Spanish Borja to the Italian
Borgia to gain acceptance and credibility as an authentic Roman clergy.
[4] Penned by Associate Justice Sesinando E. Villon, with Associate Justices
Martin S. Villarama, Jr. (now a member of this Court) and Noel G. Tijam,
concurring; rollo, pp. 20-32.
[5] Penned by Judge Gregorio S. Sampaga; rollo, pp. 35-60.
[6] Rollo, p. 43.
[7] Id. at 137-138.
[8] Id. at 35.
[9] Id. at 21-22.
[10] Id. at 58.
[11] Id. at 60.
[12] Id. at 31-32.
[13] Memorandum of petitioner; id. at 195.
[14] Rollo, pp. 59-60.
[15] Id. at 25-31.
[16] Art. 992. An illegitimate child has no right to inherit ab intestato from
the legitimate children and relatives of his father or mother; nor shall such
children or relatives inherit in the same manner from the illegitimate child.
[17] Sec.1. Who are incompetent to serve as executors or administrators.
No person is competent to serve as executor or administrator who:
(a) Is a minor;
(b) Is not a resident of the Philippines; and
(c) Is in the opinion of the court unfit to execute the duties of the trust by
reason of drunkenness, improvidence, or want of understanding or
integrity, or by reason of conviction of an offense involving moral
turpitude.
[18] Called as such because the law does not recognize the natural tie of
blood and is based on the presumed intervening antagonism and
incompatibility between the legitimate and illegitimate family of a
deceased. See Diaz v. Intermediate Appellate Court, G.R. No. L-66574, June
17, 1987, 150 SCRA 645.
[19] See Uy v. Court of Appeals, G.R. No. 167979, March 16, 2006, 484
SCRA 699; Gabriel v. Court of Appeals, G.R. No. 101512, August 7, 1992,
212 SCRA 413; Capistrano v. Nadurata, 46 Phil. 726 (1922).
[20] See Uy v. Court of Appeals, supra; Gabriel v. Court of Appeals, supra;
Capistrano v. Nadurata, supra.
[21] Supra note 19.
[22] G.R. No. 155733, January 27, 2006, 480 SCRA 334, 360. (Citations
omitted.)
[23] Reflections on the Reform of Hereditary Succession, JOURNAL of the
Integrated Bar of the Philippines, First Quarter (1976), Vol. 4, No. 1, pp. 4041; cited in Diaz v. Intermediate Appellate Court, G.R. No. 66574, February
21, 1990, 182 SCRA 427, 434; and Diaz v. Intermediate Appellate Court,
supra note 18, at 651.
[24] Cited in BALANE, Jottings and Jurisprudence (1998), p. 368.
[25] Supra note at 19, at 728.

Republic of the Philippines

8
SUPREME COURT
Manila
SECOND DIVISION
G.R. No. 141528
October 31, 2006
OSCAR P. MALLION, petitioner,
vs.
EDITHA ALCANTARA, respondent.
DECISION
AZCUNA, J.:
This is a petition for review on certiorari under Rule 45 of the Rules of Court
raising a question of law: Does a previous final judgment denying a petition
for declaration of nullity on the ground of psychological incapacity bar a
subsequent petition for declaration of nullity on the ground of lack of marriage
license?
The facts are not disputed:
On October 24, 1995, petitioner Oscar P. Mallion filed a petition 1 with the
Regional Trial Court (RTC), Branch 29, of San Pablo City seeking a
declaration of nullity of his marriage to respondent Editha Alcantara under
Article 36 of Executive Order No. 209, as amended, otherwise known as the
Family Code, citing respondents alleged psychological incapacity. The case
was docketed as Civil Case No. SP 4341-95. After trial on the merits, the
RTC denied the petition in a decision2 dated November 11, 1997 upon the
finding that petitioner "failed to adduce preponderant evidence to warrant the
grant of the relief he is seeking."3 The appeal filed with the Court of Appeals
was likewise dismissed in a resolution4 dated June 11, 1998 for failure of
petitioner to pay the docket and other lawful fees within the reglementary
period.
After the decision in Civil Case No. SP 4341-95 attained finality, petitioner
filed on July 12, 1999 another petition5 for declaration of nullity of marriage
with the RTC of San Pablo City, this time alleging that his marriage with
respondent was null and void due to the fact that it was celebrated without a
valid marriage license. For her part, respondent filed an answer with a motion
to dismiss6 dated August 13, 1999, praying for the dismissal of the petition on
the ground of res judicata and forum shopping.
In an order7 dated October 8, 1999, the RTC granted respondents motion to
dismiss, the dispositive portion of which reads:
WHEREFORE, for Forum Shopping and Multiplicity of Suits, the Motion to
Dismiss is GRANTED. This case is DISMISSED.
SO ORDERED.8
Petitioners motion for reconsideration was also denied in an order 9 dated
January 21, 2000.
Hence, this petition which alleges, as follows:
A. IN DISMISSING PETITIONERS PETITION FOR THE DECLARATION OF

HIS MARRIAGE AS NULL AND VOID AB INITIO FOR LACK OF THE

REQUISITE MARRIAGE LICENSE BECAUSE OF (THE) DISMISSAL OF AN
EARLIER PETITION FOR DECLARATION OF NULLITY OF THE SAME
MARRIAGE ON THE GROUND OF HIS WIFES PSYCHOLOGICAL
INCAPACITY UNDER ARTICLE 36 OF THE FAMILY CODE, THE TRIAL
COURT HAD DECIDED A QUESTION OF SUBSTANCE WHICH HAS
PROBABLY NOT HERETOFORE BEEN DETERMINED SQUARELY AND
DEFINITIVELY BY THIS COURT, OR HAD DECIDED IT IN A WAY NOT IN
ACCORD WITH LAW.
B. IN DISMISSING PETITIONERS PETITION FOR THE DECLARATION OF
NULLITY OF HIS MARRIAGE FOR LACK OF THE REQUISITE MARRIAGE
LICENSE, THE TRIAL COURT HAD CONFUSED, DISTORTED AND
MISAPPLIED THE FUNDAMENTAL RULES AND CONCEPTS ON RES
JUDICATA, SPLITTING OF A CAUSE OF ACTION AND FORUM
SHOPPING.10
Petitioner argues that while the relief prayed for in the two cases was the
same, that is, the declaration of nullity of his marriage to respondent, the
cause of action in the earlier case was distinct and separate from the cause
of action in the present case because the operative facts upon which they
were based as well as the evidence required to sustain either were different.
Because there is no identity as to the cause of action, petitioner claims that
res judicata does not lie to bar the second petition. In this connection,
petitioner maintains that there was no violation of the rule on forum shopping
or of the rule which proscribes the splitting of a cause of action.
On the other hand, respondent, in her comment dated May 26, 2000,
counters that while the present suit is anchored on a different ground, it still
involves the same issue raised in Civil Case No. SP 4341-95, that is, the
validity of petitioner and respondents marriage, and prays for the same
remedy, that is, the declaration of nullity of their marriage. Respondent thus
contends that petitioner violated the rule on forum shopping. Moreover,
respondent asserts that petitioner violated the rule on multiplicity of suits as
the ground he cites in this petition could have been raised during the trial in
Civil Case No. SP 4341-95.
The petition lacks merit.
The issue before this Court is one of first impression. Should the matter of
the invalidity of a marriage due to the absence of an essential requisite
prescribed by Article 4 of the Family Code be raised in the same proceeding
where the marriage is being impugned on the ground of a partys
psychological incapacity under Article 36 of the Family Code?
Petitioner insists that because the action for declaration of nullity of marriage
on the ground of psychological incapacity and the action for declaration of
nullity of marriage on the ground of absence of marriage license constitute
separate causes of action, the present case would not fall under the
prohibition against splitting a single cause of action nor would it be barred by
the principle of res judicata.

9
The contention is untenable.
Res judicata is defined as "a matter adjudged; a thing judicially acted upon or
decided; a thing or matter settled by judgment. It also refers to the rule that a
final judgment or decree on the merits by a court of competent jurisdiction is
conclusive of the rights of the parties or their privies in all later suits on points
and matters determined in the former suit."11
This doctrine is a rule which pervades every well-regulated system of
jurisprudence and is founded upon the following precepts of common law,
namely: (1) public policy and necessity, which makes it to the interest of the
State that there should be an end to litigation, and (2) the hardship on the
individual that he should be vexed twice for the same cause. A contrary
doctrine would subject the public peace and quiet to the will and neglect of
individuals and prefer the gratification of the litigious disposition on the part of
suitors to the preservation of the public tranquility and happiness. 12
In this jurisdiction, the concept of res judicata is embodied in Section 47 (b)
and (c) of Rule 39 of the Rules of Court, thus:
SEC. 47. Effect of judgments or final orders. The effect of a judgment or
final order rendered by a court of the Philippines, having jurisdiction to
pronounce the judgment or final order, may be as follows:
(a) In case of a judgment or final order against a specific thing or in respect
to the probate of a will, or the administration of the estate of a deceased
person, or in respect to the personal, political, or legal condition or status of a
particular person or his relationship to another, the judgment or final order is
conclusive upon the title to the thing, the will or administration, or the
condition, status or relationship of the person; however, the probate of a will
or granting of letters of administration shall only be prima facie evidence of
the death of the testator or intestate;
(b) In other cases, the judgment or final order is, with respect to the
matter directly adjudged or as to any other matter that could have been
raised in relation thereto, conclusive between the parties and their
successors in interest by title subsequent to the commencement of the
action or special proceeding, litigating for the same thing and under the
same title and in the same capacity; and,
(c) In any other litigation between the same parties or their successors
in interest, that only is deemed to have been adjudged in a former
judgment or final order which appears upon its face to have been so
adjudged, or which was actually and necessarily included therein or
necessary thereto.
The above provision outlines the dual aspect of res judicata.13 Section 47 (b)
pertains to it in its concept as "bar by prior judgment" or "estoppel by verdict,"
which is the effect of a judgment as a bar to the prosecution of a second
action upon the same claim, demand or cause of action. On the other
hand, Section 47 (c) pertains to res judicata in its concept as "conclusiveness
of judgment" or otherwise known as the rule of auter action pendant which
ordains that issues actually and directly resolved in a former suit cannot

again be raised in any future case between the same parties involving a
different cause of action.14 Res judicata in its concept as a bar by prior
judgment obtains in the present case.
Res judicata in this sense requires the concurrence of the following
requisites: (1) the former judgment is final; (2) it is rendered by a court having
jurisdiction over the subject matter and the parties; (3) it is a judgment or an
order on the merits; and (4) there is -- between the first and the second
actions -- identity of parties, of subject matter, and of causes of action. 15
Petitioner does not dispute the existence of the first three requisites. What is
in issue is the presence of the fourth requisite. In this regard, the test to
determine whether the causes of action are identical is to ascertain whether
the same evidence will sustain both actions, or whether there is an identity in
the facts essential to the maintenance of the two actions. If the same facts or
evidence would sustain both, the two actions are considered the same, and a
judgment in the first case is a bar to the subsequent action. 16
Based on this test, petitioner would contend that the two petitions brought by
him seeking the declaration of nullity of his marriage are anchored on
separate causes of action for the evidence necessary to sustain the first
petition which was anchored on the alleged psychological incapacity of
respondent is different from the evidence necessary to sustain the present
petition which is anchored on the purported absence of a marriage license.
Petitioner, however, forgets that he is simply invoking different grounds for
the same cause of action. By definition, a cause of action is the act or
omission by which a party violates the right of another.17 In both petitions,
petitioner has the same cause - the declaration of nullity of his marriage to
respondent. What differs is the ground upon which the cause of action is
predicated. These grounds cited by petitioner essentially split the various
aspects of the pivotal issue that holds the key to the resolution of this
controversy, that is, the actual status of petitioner and respondents marriage.
Furthermore, the instant case is premised on the claim that the marriage is
null and void because no valid celebration of the same took place due to the
alleged lack of a marriage license. In Civil Case No. SP 4341-95, however,
petitioner impliedly conceded that the marriage had been solemnized and
celebrated in accordance with law. Petitioner is now bound by this admission.
The alleged absence of a marriage license which petitioner raises now could
have been presented and heard in the earlier case. Suffice it to state that
parties are bound not only as regards every matter offered and received to
sustain or defeat their claims or demand but as to any other admissible
matter which might have been offered for that purpose and of all other
matters that could have been adjudged in that case. 18
It must be emphasized that a party cannot evade or avoid the application of
res judicata by simply varying the form of his action or adopting a different
method of presenting his case. 19 As this Court stated in Perez v. Court of
Appeals:20
x x x the statement of a different form of liability is not a different cause of

10
action, provided it grows out of the same transaction or act and seeks
redress for the wrong. Two actions are not necessarily for different causes of
action simply because the theory of the second would not have been open
under the pleadings in the first. A party cannot preserve the right to bring a
second action after the loss of the first merely by having circumscribed and
limited theories of recovery opened by the pleadings in the first.
It bears stressing that a party cannot divide the grounds for recovery. A
plaintiff is mandated to place in issue in his pleading, all the issues
existing when the suit began. A lawsuit cannot be tried piecemeal. The
plaintiff is bound to set forth in his first action every ground for relief
which he claims to exist and upon which he relied, and cannot be
permitted to rely upon them by piecemeal in successive action to
recover for the same wrong or injury.
A party seeking to enforce a claim, legal or equitable, must present to
the court, either by the pleadings or proofs, or both, on the grounds
upon which to expect a judgment in his favor. He is not at liberty to split
up his demands, and prosecute it by piecemeal or present only a
portion of the grounds upon which a special relief is sought and leave
the rest to the presentment in a second suit if the first fails. There
would be no end to litigation if such piecemeal presentation is allowed.
(Citations omitted.)
In sum, litigants are provided with the options on the course of action to take
in order to obtain judicial relief. Once an option has been taken and a case is
filed in court, the parties must ventilate all matters and relevant issues
therein. The losing party who files another action regarding the same
controversy will be needlessly squandering time, effort and financial
resources because he is barred by law from litigating the same controversy
all over again.21
Therefore, having expressly and impliedly conceded the validity of their
marriage celebration, petitioner is now deemed to have waived any defects
therein. For this reason, the Court finds that the present action for declaration
of nullity of marriage on the ground of lack of marriage license is barred by
the decision dated November 11, 1997 of the RTC, Branch 29, of San Pablo
City, in Civil Case No. SP 4341-95.
WHEREFORE, the petition is DENIED for lack of merit. Costs against
petitioner.
SO ORDERED.
Puno, J., Chairperson, Sandoval-Gutierrez, Corona, and Garcia, JJ.,
concur.
Footnotes
1
Rollo, pp. 39-42.
2
Id. at 43-53.
3
Id. at 53.
4
Records, p. 33.

Id. at 3-10.
6
Id. at 15-33.
7
Id. at 74-77.
8
Rollo, p. 28.
9
Records, p. 90.
10
Rollo, pp. 7-8.
11
Gutierrez v. CA, G.R. No. 82475, January 28, 1991, 193 SCRA 437.
12
Cruz v. CA, G.R. No. 164797, February 13, 2006, 482 SCRA 379, quoting
Heirs of the Late Faustina Adalid v. Court of Appeals, G.R. No. 122202, May
26, 2005, 459 SCRA 27.
13
NHA v. Baello, G.R. No. 143230, August 30, 2004, 437 SCRA 86.
14
Spouses Rasdas v. Estenor, G.R. No. 157605, December 13, 2005, 477
SCRA 538.
15
Luzon Development Bank v. Conquilla, G.R. No. 163338, September 21,
2005, 470 SCRA 533.
16
Sangalang v. Caparas, G.R. No. L-49749, June 18, 1987, 151 SCRA 53.
17
RULES OF COURT, Rule 2, Section 2.
18
Carlet v. CA, G.R. No. 114275, July 7, 1997, 275 SCRA 97.
19
Linzag v. Court of Appeals, G.R. No. 122181, June 26, 1998, 291 SCRA
304.
20
G.R. No. 157616, July 22, 2005, 464 SCRA 89.
21
Carlet v. CA, supra note 18.
5

Republic of the Philippines

SUPREME COURT
Manila
THIRD DIVISION
G.R. No. 104818 September 17, 1993
ROBERTO DOMINGO, petitioner,
vs.
COURT OF APPEALS and DELIA SOLEDAD AVERA represented by her
Attorney-in-Fact MOISES R. AVERA, respondents.
Jose P.O. Aliling IV for petitioner.
De Guzman, Meneses & Associates for private respondent.
ROMERO, J.:
The instant petition seeks the reversal of respondent court's ruling finding no
grave abuse of discretion in the lower court's order denying petitioner's
motion to dismiss the petition for declaration of nullity of marriage and
separation of property.
On May 29, 1991, private respondent Delia Soledad A. Domingo filed a
petition before the Regional Trial Court of Pasig entitled "Declaration of
Nullity of Marriage and Separation of Property" against petitioner Roberto
Domingo. The petition which was docketed as Special Proceedings No.
1989-J alleged among others that: they were married on November 29, 1976
at the YMCA Youth Center Bldg., as evidenced by a Marriage Contract

11
Registry No. 1277K-76 with Marriage License No. 4999036 issued at
Carmona, Cavite; unknown to her, he had a previous marriage with one
Emerlina dela Paz on April 25, 1969 which marriage is valid and still existing;
she came to know of the prior marriage only sometime in 1983 when
Emerlina dela Paz sued them for bigamy; from January 23 1979 up to the
present, she has been working in Saudi Arabia and she used to come to the
Philippines only when she would avail of the one-month annual vacation
leave granted by her foreign employer since 1983 up to the present, he has
been unemployed and completely dependent upon her for support and
subsistence; out of her personal earnings, she purchased real and personal
properties with a total amount of approximately P350,000.00, which are
under the possession and administration of Roberto; sometime in June 1989,
while on her one-month vacation, she discovered that he was cohabiting with
another woman; she further discovered that he had been disposing of some
of her properties without her knowledge or consent; she confronted him
about this and thereafter appointed her brother Moises R. Avera as her
attorney-in-fact to take care of her properties; he failed and refused to turn
over the possession and administration of said properties to her
brother/attorney-in-fact; and he is not authorized to administer and possess
the same on account of the nullity of their marriage. The petition prayed that
a temporary restraining order or a writ of preliminary injunction be issued
enjoining Roberto from exercising any act of administration and ownership
over said properties; their marriage be declared null and void and of no force
and effect; and Delia Soledad be declared the sole and exclusive owner of all
properties acquired at the time of their void marriage and such properties be
placed under the proper management and administration of the attorney-infact.
Petitioner filed a Motion to Dismiss on the ground that the petition stated no
cause of action. The marriage being void ab initio, the petition for the
declaration of its nullity is, therefore, superfluous and unnecessary. It added
that private respondent has no property which is in his possession.
On August 20, 1991, Judge Maria Alicia M. Austria issued an Order denying
the motion to dismiss for lack of merit. She explained:
Movant argues that a second marriage contracted after a first marriage by a
man with another woman is illegal and void (citing the case of Yap v. Court of
Appeals, 145 SCRA 229) and no judicial decree is necessary to establish the
invalidity of a void marriage (citing the cases of People v. Aragon, 100 Phil.
1033; People v. Mendoza, 95 Phil. 845). Indeed, under the Yap case there is
no dispute that the second marriage contracted by respondent with herein
petitioner after a first marriage with another woman is illegal and void.
However, as to whether or not the second marriage should first be judicially
declared a nullity is not an issue in said case. In the case of Vda. de
Consuegra v. GSIS, the Supreme Court ruled in explicit terms, thus:
And with respect to the right of the second wife, this Court observed that
although the second marriage can be presumed to be void ab initio as it was

celebrated while the first marriage was still subsisting, still there is need
for judicial declaration of its nullity. (37 SCRA 316, 326)
The above ruling which is of later vintage deviated from the previous rulings
of the Supreme Court in the aforecited cases of Aragon and Mendoza.
Finally, the contention of respondent movant that petitioner has no property
in his possession is an issue that may be determined only after trial on the
merits. 1
A motion for reconsideration was filed stressing the erroneous application of
Vda. de Consuegra v. GSIS 2 and the absence of justiciable controversy as to
the nullity of the marriage. On September 11, 1991, Judge Austria denied the
motion for reconsideration and gave petitioner fifteen (15) days from receipt
within which to file his answer.
Instead of filing the required answer, petitioner filed a special civil action of
certiorari and mandamus on the ground that the lower court acted with grave
abuse of discretion amounting to lack of jurisdiction in denying the motion to
dismiss.
On February 7, 1992, the Court of Appeals 3 dismissed the petition. It
explained that the case of Yap v. CA 4 cited by petitioner and that of
Consuegra v. GSIS relied upon by the lower court do not have relevance in
the case at bar, there being no identity of facts because these cases dealt
with the successional rights of the second wife while the instant case prays
for separation of property corollary with the declaration of nullity of marriage.
It observed that the separation and subsequent distribution of the properties
acquired during the union can be had only upon proper determination of the
status of the marital relationship between said parties, whether or not the
validity of the first marriage is denied by petitioner. Furthermore, in order to
avoid duplication and multiplicity of suits, the declaration of nullity of marriage
may be invoked in this proceeding together with the partition and distribution
of the properties involved. Citing Articles 48, 50 and 52 of the Family Code, it
held that private respondent's prayer for declaration of absolute nullity of their
marriage may be raised together with other incidents of their marriage such
as the separation of their properties. Lastly, it noted that since the Court has
jurisdiction, the alleged error in refusing to grant the motion to dismiss is
merely one of law for which the remedy ordinarily would have been to file an
answer, proceed with the trial and in case of an adverse decision, reiterate
the issue on appeal. The motion for reconsideration was subsequently
denied for lack of merit. 5
Hence, this petition.
The two basic issues confronting the Court in the instant case are the
following.
First, whether or not a petition for judicial declaration of a void marriage is
necessary. If in the affirmative, whether the same should be filed only for
purposes of remarriage.
Second, whether or not SP No. 1989-J is the proper remedy of private
respondent to recover certain real and personal properties allegedly

12
belonging to her exclusively.
Petitioner, invoking the ruling in People v. Aragon 6 and People v. Mendoza, 7
contends that SP. No. 1989-J for Declaration of Nullity of Marriage and
Separation of Property filed by private respondent must be dismissed for
being unnecessary and superfluous. Furthermore, under his own
interpretation of Article 40 of the Family Code, he submits that a petition for
declaration of absolute nullity of marriage is required only for purposes of
remarriage. Since the petition in SP No. 1989-J contains no allegation of
private respondent's intention to remarry, said petition should therefore, be
dismissed.
On the other hand, private respondent insists on the necessity of a judicial
declaration of the nullity of their marriage, not for purposes of remarriage, but
in order to provide a basis for the separation and distribution of the properties
acquired during coverture.
There is no question that the marriage of petitioner and private respondent
celebrated while the former's previous marriage with one Emerlina de la Paz
was still subsisting, is bigamous. As such, it is from the beginning. 8 Petitioner
himself does not dispute the absolute nullity of their marriage. 9
The cases of People v. Aragon and People v. Mendoza relied upon by
petitioner are cases where the Court had earlier ruled that no judicial decree
is necessary to establish the invalidity of a void, bigamous marriage. It is
noteworthy to observe that Justice Alex Reyes, however, dissented on these
occasions stating that:
Though the logician may say that where the former marriage was void there
would be nothing to dissolve, still it is not for the spouses to judge whether
that marriage was void or not. That judgment is reserved to the courts. . . . 10
This dissenting opinion was adopted as the majority position in subsequent
cases involving the same issue. Thus, in Gomez v. Lipana, 11 the Court
abandoned its earlier ruling in the Aragon and Mendoza cases. In reversing
the lower court's order forfeiting the husband's share of the disputed property
acquired during the second marriage, the Court stated that "if the nullity, or
annulment of the marriage is the basis for the application of Article 1417,
there is need for a judicial declaration thereof, which of course contemplates
an action for that purpose."
Citing Gomez v. Lipana, the Court subsequently held in Vda. de Consuegra
v. Government Service Insurance System, that "although the second
marriage can be presumed to be void ab initio as it was celebrated while the
first marriage was still subsisting, still there is need for judicial declaration of
such nullity."
In Tolentino v. Paras, 12 however, the Court turned around and applied the
Aragon and Mendoza ruling once again. In granting the prayer of the first
wife asking for a declaration as the lawful surviving spouse and the
correction of the death certificate of her deceased husband, it explained that
"(t)he second marriage that he contracted with private respondent during the
lifetime of his first spouse is null and void from the beginning and of no force

and effect. No judicial decree is necessary to establish the invalidity of a

void marriage."
However, in the more recent case of Wiegel v. Sempio-Diy 13 the Court
reverted to the Consuegra case and held that there was "no need of
introducing evidence about the existing prior marriage of her first husband at
the time they married each other, for then such a marriage though void still
needs according to this Court a judicial declaration of such fact and for all
legal intents and purposes she would still be regarded as a married woman
at the time she contracted her marriage with respondent Karl Heinz Wiegel."
Came the Family Code which settled once and for all the conflicting
jurisprudence on the matter. A declaration of the absolute nullity of a
marriage is now explicitly required either as a cause of action or a ground for
defense. 14 Where the absolute nullity of a previous marriage is sought to be
invoked for purposes of contracting a second marriage, the sole basis
acceptable in law for said projected marriage be free from legal infirmity is a
final judgment declaring the previous marriage void. 15
The Family Law Revision Committee and the Civil Code Revision Committee
16
which drafted what is now the Family Code of the Philippines took the
position that parties to a marriage should not be allowed to assume that their
marriage is void even if such be the fact but must first secure a judicial
declaration of the nullity of their marriage before they can be allowed to
marry again. This is borne out by the following minutes of the 152nd Joint
Meeting of the Civil Code and Family Law Committees where the present
Article 40, then Art. 39, was discussed.
B. Article 39.
The absolute nullity of a marriage may be invoked only on the basis of a final
judgment declaring the marriage void, except as provided in Article 41.
Justice Caguioa remarked that the above provision should include not only
void but also voidable marriages. He then suggested that the above provision
be modified as follows:
The validity of a marriage may be invoked only . . .
Justice Reyes (J.B.L. Reyes), however, proposed that they say:
The validity or invalidity of a marriage may be invoked
only . . .
On the other hand, Justice Puno suggested that they say:
The invalidity of a marriage may be invoked only . . .
Justice Caguioa explained that his idea is that one cannot determine for
himself whether or not his marriage is valid and that a court action is needed .
Justice Puno accordingly proposed that the provision be modified to read:
The invalidity of a marriage may be invoked only on the basis of a final
judgment annulling the marriage or declaring the marriage void, except as
provided in Article 41.
Justice Caguioa remarked that in annulment, there is no question. Justice
Puno, however, pointed out that, even if it is a judgment of annulment, they
still have to produce the judgment.

13
Justice Caguioa suggested that they say:
The invalidity of a marriage may be invoked only on the basis of a final
judgment declaring the marriage invalid, except as provided in Article 41.
Justice Puno raised the question: When a marriage is declared invalid, does
it include the annulment of a marriage and the declaration that the marriage
is void? Justice Caguioa replied in the affirmative. Dean Gupit added that in
some judgments, even if the marriage is annulled, it is declared void. Justice
Puno suggested that this matter be made clear in the provision.
Prof. Baviera remarked that the original idea in the provision is to require first
a judicial declaration of a void marriage and not annullable marriages, with
which the other members concurred. Judge Diy added that annullable
marriages are presumed valid until a direct action is filed to annul it, which
the other members affirmed. Justice Puno remarked that if this is so, then the
phrase "absolute nullity" can stand since it might result in confusion if they
change the phrase to "invalidity" if what they are referring to in the provision
is the declaration that the marriage is void.
Prof. Bautista commented that they will be doing away with collateral defense
as well as collateral attack. Justice Caguioa explained that the idea in the
provision is that there should be a final judgment declaring the marriage void
and a party should not declare for himself whether or not the marriage is
void, while the other members affirmed. Justice Caguioa added that they are,
therefore, trying to avoid a collateral attack on that point. Prof. Bautista stated
that there are actions which are brought on the assumption that the marriage
is valid. He then asked: Are they depriving one of the right to raise the
defense that he has no liability because the basis of the liability is void? Prof.
Bautista added that they cannot say that there will be no judgment on the
validity or invalidity of the marriage because it will be taken up in the same
proceeding. It will not be a unilateral declaration that, it is a void marriage.
Justice Caguioa saw the point of Prof. Bautista and suggested that they limit
the provision to remarriage. He then proposed that Article 39 be reworded as
follows:
The absolute nullity of a marriage for purposes of remarriage may be invoked
only on the basis of final judgment . . .
Justice Puno suggested that the above be modified as follows:
The absolute nullity of a previous marriage may be invoked for purposes of
establishing the validity of a subsequent marriage only on the basis of a final
judgment declaring such previous marriage void, except as provided in
Article 41.
Justice Puno later modified the above as follows:
For the purpose of establishing the validity of a subsequent marriage, the
absolute nullity of a previous marriage may only be invoked on the basis of a
final judgment declaring such nullity, except as provided in Article 41.
Justice Caguioa commented that the above provision is too broad and will
not solve the objection of Prof. Bautista. He proposed that they say:
For the purpose of entering into a subsequent marriage, the absolute nullity

of a previous marriage may only be invoked on the basis of a final

judgment declaring such nullity, except as provided in Article 41.
Justice Caguioa explained that the idea in the above provision is that if one
enters into a subsequent marriage without obtaining a final judgment
declaring the nullity of a previous marriage, said subsequent marriage is void
ab initio.
After further deliberation, Justice Puno suggested that they go back to the
original wording of the provision as follows:
The absolute nullity of a previous marriage may be invoked for purposes of
remarriage only on the basis of a final judgment declaring such previous
marriage void, except as provided in Article 41. 17
In fact, the requirement for a declaration of absolute nullity of a marriage is
also for the protection of the spouse who, believing that his or her marriage is
illegal and void, marries again. With the judicial declaration of the nullity of
his or her first marriage, the person who marries again cannot be charged
with bigamy. 18
Just over a year ago, the Court made the pronouncement that there is a
necessity for a declaration of absolute nullity of a prior subsisting marriage
before contracting another in the recent case of Terre v. Terre. 19 The Court,
in turning down the defense of respondent Terre who was charged with
grossly immoral conduct consisting of contracting a second marriage and
living with another woman other than complainant while his prior marriage
with the latter remained subsisting, said that "for purposes of determining
whether a person is legally free to contract a second marriage, a judicial
declaration that the first marriage was null and void ab initio is essential."
As regards the necessity for a judicial declaration of absolute nullity of
marriage, petitioner submits that the same can be maintained only if it is for
the purpose of remarriage. Failure to allege this purpose, according to
petitioner's theory, will warrant dismissal of the same.
Article 40 of the Family Code provides:
Art. 40. The absolute nullity of a previous marriage may be invoked for
purposes of remarriage on the basis solely of a final judgment declaring such
previous marriage void. (n)
Crucial to the proper interpretation of Article 40 is the position in the provision
of the word "solely." As it is placed, the same shows that it is meant to qualify
"final judgment declaring such previous marriage void." Realizing the need
for careful craftsmanship in conveying the precise intent of the Committee
members, the provision in question, as it finally emerged, did not state "The
absolute nullity of a previous marriage may be invoked solely for purposes of
remarriage . . .," in which case "solely" would clearly qualify the phrase "for
purposes of remarriage." Had the phraseology been such, the interpretation
of petitioner would have been correct and, that is, that the absolute nullity of
a previous marriage may be invoked solely for purposes of remarriage, thus
rendering irrelevant the clause "on the basis solely of a final judgment
declaring such previous marriage void."

14
That Article 40 as finally formulated included the significant clause denotes
that such final judgment declaring the previous marriage void need not be
obtained only for purposes of remarriage. Undoubtedly, one can conceive of
other instances where a party might well invoke the absolute nullity of a
previous marriage for purposes other than remarriage, such as in case of an
action for liquidation, partition, distribution and separation of property
between the erstwhile spouses, as well as an action for the custody and
support of their common children and the delivery of the latters' presumptive
legitimes. In such cases, evidence needs must be adduced, testimonial or
documentary, to prove the existence of grounds rendering such a previous
marriage an absolute nullity. These need not be limited solely to an earlier
final judgment of a court declaring such previous marriage void. Hence, in
the instance where a party who has previously contracted a marriage which
remains subsisting desires to enter into another marriage which is legally
unassailable, he is required by law to prove that the previous one was an
absolute nullity. But this he may do on the basis solely of a final judgment
declaring such previous marriage void.
This leads us to the question: Why the distinction? In other words, for
purposes of remarriage, why should the only legally acceptable basis for
declaring a previous marriage an absolute nullity be a final judgment
declaring such previous marriage void? Whereas, for purposes other than
remarriage, other evidence is acceptable?
Marriage, a sacrosanct institution, declared by the Constitution as an
"inviolable social institution, is the foundation of the family;" as such, it "shall
be protected by the State." 20 In more explicit terms, the Family Code
characterizes it as "a special contract of permanent union between a man
and a woman entered into in accordance with law for the establishment of
conjugal, and family life." 21 So crucial are marriage and the family to the
stability and peace of the nation that their "nature, consequences, and
incidents are governed by law and not subject to stipulation . . ." 22 As a
matter of policy, therefore, the nullification of a marriage for the purpose of
contracting another cannot be accomplished merely on the basis of the
perception of both parties or of one that their union is so defective with
respect to the essential requisites of a contract of marriage as to render it
void ipso jure and with no legal effect and nothing more. Were this so, this
inviolable social institution would be reduced to a mockery and would rest on
very shaky foundations indeed. And the grounds for nullifying marriage would
be as diverse and far-ranging as human ingenuity and fancy could conceive.
For such a social significant institution, an official state pronouncement
through the courts, and nothing less, will satisfy the exacting norms of
society. Not only would such an open and public declaration by the courts
definitively confirm the nullity of the contract of marriage, but the same would
be easily verifiable through records accessible to everyone.
That the law seeks to ensure that a prior marriage is no impediment to a
second sought to be contracted by one of the parties may be gleaned from

new information required in the Family Code to be included in the

application for a marriage license, viz, "If previously married, how, when and
where the previous marriage was dissolved and annulled." 23
Reverting to the case before us, petitioner's interpretation of Art. 40 of the
Family Code is, undoubtedly, quite restrictive. Thus, his position that private
respondent's failure to state in the petition that the same is filed to enable her
to remarry will result in the dismissal of SP No. 1989-J is untenable. His
misconstruction of Art. 40 resulting from the misplaced emphasis on the term
"solely" was in fact anticipated by the members of the Committee.
Dean Gupit commented the word "only" may be misconstrued to refer to "for
purposes of remarriage." Judge Diy stated that "only" refers to "final
judgment." Justice Puno suggested that they say "on the basis only of a final
judgment." Prof. Baviera suggested that they use the legal term "solely"
instead of "only," which the Committee approved. 24 (Emphasis supplied)
Pursuing his previous argument that the declaration for absolute nullity of
marriage is unnecessary, petitioner suggests that private respondent should
have filed an ordinary civil action for the recovery of the properties alleged to
have been acquired during their union. In such an eventuality, the lower court
would not be acting as a mere special court but would be clothed with
jurisdiction to rule on the issues of possession and ownership. In addition, he
pointed out that there is actually nothing to separate or partition as the
petition admits that all the properties were acquired with private respondent's
money.
The Court of Appeals disregarded this argument and concluded that "the
prayer for declaration of absolute nullity of marriage may be raised together
with the other incident of their marriage such as the separation of their
properties."
When a marriage is declared void ab initio, the law states that the final
judgment therein shall provide for "the liquidation, partition and distribution of
the properties of the spouses, the custody and support of the common
children, and the delivery of their presumptive legitimes, unless such matters
had been adjudicated in previous judicial proceedings." 25 Other specific
effects flowing therefrom, in proper cases, are the following:
Art. 43. xxx xxx xxx
(2) The absolute community of property or the conjugal partnership, as the
case may be, shall be dissolved and liquidated, but if either spouse
contracted said marriage in bad faith, his or her share of the net profits of the
community property or conjugal partnership property shall be forfeited in
favor of the common children or, if there are none, the children of the guilty
spouse by a previous marriage or, in default of children, the innocent spouse;
(3) Donations by reason of marriage shall remain valid, except that if the
donee contracted the marriage in bad faith, such donations made to said
donee are revoked by operation of law;
(4) The innocent spouse may revoke the designation of the other spouse
who acted in bad faith as a beneficiary in any insurance policy, even if such

15
designation be stipulated as irrevocable; and
(5) The spouse who contracted the subsequent marriage in bad faith shall be
disqualified to inherit from the innocent spouse by testate and intestate
succession. (n)
Art. 44. If both spouses of the subsequent marriage acted in bad faith, said
marriage shall be void ab initio and all donations by reason of marriage and
testamentary disposition made by one in favor of the other are revoked by
operation of law. (n) 26
Based on the foregoing provisions, private respondent's ultimate prayer for
separation of property will simply be one of the necessary consequences of
the judicial declaration of absolute nullity of their marriage. Thus, petitioner's
suggestion that in order for their properties to be separated, an ordinary civil
action has to be instituted for that purpose is baseless. The Family Code has
clearly provided the effects of the declaration of nullity of marriage, one of
which is the separation of property according to the regime of property
relations governing them. It stands to reason that the lower court before
whom the issue of nullity of a first marriage is brought is likewise clothed with
jurisdiction to decide the incidental questions regarding the couple's
properties. Accordingly, the respondent court committed no reversible error in
finding that the lower court committed no grave abuse of discretion in
denying petitioner's motion to dismiss SP No. 1989-J.
WHEREFORE, the instant petition is hereby DENIED. The decision of
respondent Court dated February 7, 1992 and the Resolution dated March
20, 1992 are AFFIRMED.
SO ORDERED.
Bidin and Melo, JJ., concur.
Feliciano, J., is on leave.

Family Code took effect (Article 39, Family Code); otherwise, the
marriage is deemed unaffected by the Family Code.
A void marriage, even without its being judicially declared a nullity, albeit the
preferability for, and justiciability (fully discussed in the majority opinion) of,
such a declaration, will not give it the status or the consequences of a valid
marriage, saving only specific instances where certain effects of a valid
marriage can still flow from the void marriage. Examples of these cases are
children of void marriages under Article 36 (due to psychological incapacity)
and Article 53, in relation to Article 52 (due to failure of partition, delivery of
presumptive legitimes of children and recording thereof following the
annulment or declaration of nullity a prior marriage), conceived or born
before the judicial declaration of nullity of such void marriages, who the law
deems as legitimate (Article 54, Family Code).
In most, if not in all, other cases, a void marriage is to be considered extant
per se. Neither the conjugal, partnership of gain under the old regime nor the
absolute community of property under the new Code (absent a marriage
settlement), will apply; instead, their property relations shall be governed by
the co-ownership rules under either Article 147 or Article 148 of the Family
Code. I must hasten to add as a personal view, however, that the exceptional
effects on children of a void marriage because of the psychological
incapacity of a party thereto should have been extended to cover even the
personal and property relations of the spouses. Unlike the other cases of
void marriages where the grounds therefor may be established by hard facts
and with little uncertainty, the term "psychological incapacity" is so relative
and unsettling that until a judicial declaration of nullity is made its interim
effects can long and literally hang on the balance not only insofar as the
spouses themselves are concerned but also as regards third persons with
whom the spouses deal.

Separate Opinions
VITUG, J., concurring:
I concur with the opinion so well expressed by Mme. Justice Flerida Ruth P.
Romero. I should like, however, to put in a modest observation.
Void marriages are inexistent from the very beginning and, I believe, no
judicial decree is required to establish their nullity, except in the following
instances:
(a) For purposes of remarriage pursuant to the provision of Article 40 of the
Family Code; viz.:
The absolute nullity of a previous marriage may be invoked for purposes of
remarriage on the basis solely of a final judgment declaring such previous
marriage void. (n)
(b) A marriage celebrated prior to the effectivity of the Family Code in case a
party thereto was psychologically incapacitated to comply with the essential
marital obligations of marriage (Article 36, Family Code), where an action or
defense for the declaration of nullity prescribes ten (10) years after the

# Separate Opinions
VITUG, J., concurring:
I concur with the opinion so well expressed by Mme. Justice Flerida Ruth P.
Romero. I should like, however, to put in a modest observation.
Void marriages are inexistent from the very beginning and, I believe, no
judicial decree is required to establish their nullity, except in the following
instances:
(a) For purposes of remarriage pursuant to the provision of Article 40 of the
Family Code; viz.:
The absolute nullity of a previous marriage may be invoked for purposes of
remarriage on the basis solely of a final judgment declaring such previous
marriage void. (n)
(b) A marriage celebrated prior to the effectivity of the Family Code in case a
party thereto was psychologically incapacitated to comply with the essential
marital obligations of marriage (Article 36, Family Code), where an action or
defense for the declaration of nullity prescribes ten (10) years after the

16
Family Code took effect (Article 39, Family Code); otherwise, the marriage is
deemed unaffected by the Family Code.
A void marriage, even without its being judicially declared a nullity, albeit the
preferability for, and justiciability (fully discussed in the majority opinion) of,
such a declaration, will not give it the status or the consequences of a valid
marriage, saving only specific instances where certain effects of a valid
marriage can still flow from the void marriage. Examples of these cases are
children of void marriages under Article 36 (due to psychological incapacity)
and Article 53, in relation to Article 52 (due to failure of partition, delivery of
presumptive legitimes of children and recording thereof following the
annulment or declaration of nullity a prior marriage), conceived or born
before the judicial declaration of nullity of such void marriages, who the law
deems as legitimate (Article 54, Family Code).
In most, if not in all, other cases, a void marriage is to be considered extant
per se. Neither the conjugal, partnership of gain under the old regime nor the
absolute community of property under the new Code (absent a marriage
settlement), will apply; instead, their property relations shall be governed by
the co-ownership rules under either Article 147 or Article 148 of the Family
Code. I must hasten to add as a personal view, however, that the exceptional
effects on children of a void marriage because of the psychological
incapacity of a party thereto should have been extended to cover even the
personal and property relations of the spouses. Unlike the other cases of
void marriages where the grounds therefor may be established by hard facts
and with little uncertainty, the term "psychological incapacity" is so relative
and unsettling that until a judicial declaration of nullity is made its interim
effects can long and literally hang on the balance not only insofar as the
spouses themselves are concerned but also as regards third persons with
whom the spouses deal.
# Footnotes
1 Annex "C", Rollo, pp. 28-29.
2 L-28093, January 30, 1971, 37 SCRA 315.
3 Annex "J", Rollo, pp. 62-67, Justice Jorge S. Imperial, ponente and Justices
Luis A. Javellana and Serafin V.C. Guingona, concurring.
4 L-40003, October 28, 1986, 145 SCRA 229.
5 Annex "M", Rollo, p. 80.
6 100 Phil. 1033 (1957).
7 95 Phil. 845 (1954).
8 CIVIL CODE, art. 80, par. 4; FAMILY CODE, arts. 35, par. 4 and 41.
9 Rollo, pp. 102 and 106.
10 See: Note 6 at p. 1036; Note 7 at p. 848.
11 L-23214, June 30, 1970, 33 SCRA 615, 620-621.
12 L-43905, May 30, 1983, 122 SCRA 525.
13 G.R. No. 53703, August 19, 1986, 143 SCRA 499.
14 FAMILY CODE, art. 39.
15 Id., art. 40. See also: arts. 11, 13, 42, 44, 48, 50, 52, 54, 86, 99, 147,
148.

16 The Family Law Revision Committee of the Integrated Bar of the

Philippines (IBP) prepared the draft of the revision of Book I of the Civil
Code of the Philippines. After more than four years, the draft was turned
over to the Civil Code Revision Committee of the UP Law Center which
reviewed and revised the same for more than three years.
17 August 23, 1986, pp. 4-7.
18 J. A.V. SEMPIO-DIY, HANDBOOK OF THE FAMILY CODE OF THE
PHILIPPINES, 46 (1988).
19 Adm. Case No. 2349, July 3, 1992, 211 SCRA 6, 11.
20 CONST., art. XV, sec. 2.
21 FAMILY CODE, art. 1.
22 Id.
23 Id., art. 11.
24 See: Note 17, at p. 7.
25 Art. 50 (2).
26 In relation to Art. 50 (1) The effects provided for in paragraphs (2),
(3), (4) and (5) of Article 43 and in Article 44 shall also apply in proper
cases to marriages which are declared void ab initio or annulled by final
judgment under Articles 40 and 45.

EN BANC
[G.R. No. 5184. August 17, 1909. ]
THE UNITED STATES, Plaintiff-Appellee, v. PLATON IBAEZ,
Defendant-Appellant.
Alberto Barretto, for Appellant.
Attorney-General Villamor, for Appellee.
SYLLABUS
1. MARRIAGE AND DIVORCE BIGAMY. The impediment termed
"ligamen" in law prohibits a married man or woman from
contracting another bond of union as long as the consort is alive; a
violation of the prohibitive law against contracting a second or
subsequent marriage without the prior one being dissolved
constitutes the crime of bigamy, which consists in the contracting,
on the part of a married person, with fraudulent intent and bad
faith, of a new marriage while his lawful spouse is living.
2. PUBLIC DOCUMENT; PARISH RECORDS; CERTIFIED COPIES BY
PRIESTS. Parish priests continue to be the legal custodians of
the parish records kept under the laws enforced during the former
sovereignty, and are authorized to issue true copies, in the form of

17
certificates, of the entries contained in said books. The latter, for
the purpose of proving the acts to which they refer, have not lost
the character of public documents which they possessed under the
former laws. (U. S. v. Arceo, 11 Phil. Rep., 530.)
DECISION
TORRES, J. :
On the 8th of May, 1893, according to the marriage certificate
which appears at folio 8, Platon Ibanez contracted a religious
marriage with Maria Lopez in the parish church of the pueblo of
Hagonoy, Bulacan, and while the said Maria Lopez was still living,
the said Platon Ibanez, on the 9th of January, 1907, contracted a
further marriage with Vivencia B. Casiano, before a pastor or
Protestant minister in the city of Manila, according to a certificate
issued by the justice of the peace of this city on June 19, 1908,
appearing at folio 9.
From the time they were married Platon Ibanez and his wife, Maria
Lopez, lived together for nearly five years and had two children,
one of whom died, while the other is still living and is nw nearly 12
years old. When the woman separated from her husband on
account of the ill-treatment which, according to her statement, she
received at his hands after the birth of her second child, she went
to live with her parents in the said pueblo of Hagonoy, while the
husband removed to Bulacan, and later on to Manila, where he has
resided ever since; but from the time of his second marriage,
Platon Ibanez and Vivencia B. Casiano have been living together

Platon Ibanez has committed the crime of illegal marriage.

Inasmuch as while his lawful wife, Maria Lopez, was still living in
the pueblo of Hagonoy, Province of Bulacan, where she and the
accused, Platon Ibanez, resided together for nearly five years,
between the time when they were married in accordance with the
ecclesiastical and civil laws on the 8th of May, 1893, and the time
when the husband abandoned his wife and went to live first in
Bulacan and subsequently in the city of Manila, where he again
contracted marriage on the 9th of January, 1907, with Vivencia B.
Casiano before a Protestant minister, without using due and
necessary diligence in order to ascertain with certainty whether his
lawful wife, Maria Lopez, was still living or was dead, as he claims
in his defense, it is not proper to consider that he acted in good
faith when marrying a second time.
Article 471 of the Penal Code provides as
follows:jgc:chanrobles.com.ph
"Any person who shall contract a second or subsequent marriage
without the prior marriage being lawfully dissolved shall be
punished with the penalty of prision mayor."cralaw virtua1aw
library
The impediment termed "ligamen" in law prohibits a married man
or woman from contracting another bond of union as long as the
consort is alive; a violation of the prohibitive law against
contracting a second or subsequent marriage without the prior one
being dissolved constitutes the crime of bigamy, which consists in
the contracting, on the part of a married person with fraudulent
intent and bad faith, of a new marriage while a lawful spouse is
living.

In view of the above an assistant prosecuting attorney filed a

complaint on the 25th of July, 1908, against the said Ibanez,
charging him with the crime of contracting an illegal marriage on
the 9th of January, 1907, while his wife, Maria Lopez, was still
living, and without his first marriage having been lawfully
dissolved. The correspoding proceedings having been instituted,
the court below rendered judgment on the 1st of September, 1908,
sentencing the accused to the penalty of eight years and six
months of presidio mayor, and the payment of the costs of the
proceedings, from which judgment the representative of the
accused has appealed to this court.

The two certificates exhibited, marked "A" and "B," are authentic
and indisputable; they prove the respective and successive
celebrations of the two marriages contracted by the accused with
two different women. Certificate marked "B" of the marriage
contracted with Vivencia B. Casiano appears as having been issued
by the justice of the peace of this city in connection with the
register of marriage certificates kept in said court; and document
marked "A" consists of a certificate of the record of the marriage
copied from the church records kept in the parish church of the
pueblo of Hagonoy and signed by the curate thereof.

From the above facts it appears to have been fully proven that

It is proper to state herein that parish priests continue to be the

18
legal custodians of the parish records kept under the laws enforced
during the former sovereignty, and are authorized to issue true
copies, in the form of certificates, of the entries contained in said
books. The latter, for the purpose of proving the acts to which they
refer, have not lost the character of public documents which they
possessed under the former laws. (U. S. v. Arceo, 11 Phil. Rep.,
530.)
The accused pleaded not guilty, but notwithstanding his
exculpatory allegations unsupported by even circumstantial
evidence, the record in the case furnishes incriminating data and
sufficient merits of fully establish the conviction of his guilt as the
proven responsible author of said crime, as it has not been shown
that he contracted the second marriage in good faith. This case
does not refer to a spouse who was absent for many years, but to
a wife whom, on the statement of a third party, the accused
believed to be already dead. In order to be sure he should have
communicated with the relatives of the woman reported dead, and
the parish priest and municipal secretary, who keep a record of the
burials that take place in the pueblo, but as these things were not
done, his allegation of good faith can not be accepted.
If it were true that the accused tried to ascertain the whereabouts
of his wife, Maria Lopez, in the pueblo of Hagonoy where she now
resides, well known and reputed among its inhabitants as an
honest woman, according to the declaration of the parish priest
thereof, it is impossible to believe, in the natural order of things,
that, had he employed the most common and ordinary diligence,
he could have remained ignorant of her whereabouts as well as
that of his child; he did not do this, and preferred to incur the
penalty that the penal law imposes on persons guilty of the crime
of bigamy.
It has further been shown from the statements of his conditions as
given in his cedulas for 1905 and 1906 that Platon Ibanezs second
marriage was a guilty one and that he was aware that his lawful
wife was still living; in the first one he appears as a widower, while
in the second he appears as single. (Exhibits 1 and 2.) Such
changes indicate bad faith on the part of the holder of said cedulas,
as it is impossible to admit the explanation given by the accused,
attributing the error to the clerk who made out the said document.
It is impossile to understand how, if in his 1905 cedula he figured
as a widower, he could appear as single in his cedula of 1906,

unless it was done at his request or upon his indication, and, as

there is no evidence to the contrary, it must be accepted as true
that in 1905 he procured a widowers cedula but in the following
year had himself appear as a bachelor, for had he given no
instructions, his cedula for 1906 would have contained the same
statement as that of the previous year.
On the other hand, there is no question but that, under the
provisions of General Orders, No. 68, the second marriage
contracted by the accused was illegal and null. The first marriage
contracted in 1893 had not been dissolved or annulled, inasmuch
as his first wife was then, and is still living, and the accused did not
come within the exception expressly indicated in the said general
orders by the positive absence of his lawful wife, Maria Lopez.
In view of the above, and inasmuch as no mitigating nor
aggravating circumstance is present in the commission of the
crime, and in the absence of proof as to the amount or importance
of the damages occasioned to the woman who married in good
faith, and considering that the judgment appealed from is in
accordance with the law and the merits of the case, it is our
opinion that the same should be and is hereby affirmed; provided,
however, that the penalty imposed shall be prision mayor with
costs; and provided further, that the right to claim an indemnity in
accordance with the provisions of article 480 of the code shall be
reserved to the woman Vivencia B. Casiano. So ordered.
Arellano, C.J., Johnson, Carson and Moreland, JJ., concur.

Republic of the Philippines

SUPREME COURT
Manila
THIRD DIVISION
G.R. No. 164435
September 29, 2009
VICTORIA S. JARILLO, Petitioner,
vs.
PEOPLE OF THE PHILIPPINES, Respondent.
DECISION
DEL CASTILLO, J.:
This resolves the Petition for Review on Certiorari under Rule 45 of the Rules
of Court, praying that the Decision1 of the Court of Appeals (CA), dated July
21, 2003, and its Resolution2 dated July 8, 2004, be reversed and set aside.

19
On May 31, 2000, petitioner was charged with Bigamy before the Regional
Trial Court (RTC) of Pasay City, Branch 117 under the following Information
in Criminal Case No. 00-08-11:
INFORMATION
The undersigned Assistant City Prosecutor accuses VICTORIA S. JARILLO
of the crime of BIGAMY, committed as follows:
That on or about the 26th day of November 1979, in Pasay City, Metro
Manila, Philippines and within the jurisdiction of this Honorable Court, the
above-named accused, Victoria S. Jarillo, being previously united in lawful
marriage with Rafael M. Alocillo, and without the said marriage having been
legally dissolved, did then and there willfully, unlawfully and feloniously
contract a second marriage with Emmanuel Ebora Santos Uy which marriage
was only discovered on January 12, 1999.
Contrary to law.
On July 14, 2000, petitioner pleaded not guilty during arraignment and,
thereafter, trial proceeded.
The undisputed facts, as accurately summarized by the CA, are as follows.
On May 24, 1974, Victoria Jarillo and Rafael Alocillo were married in a civil
wedding ceremony solemnized by Hon. Monico C. Tanyag, then Municipal
Mayor of Taguig, Rizal (Exhs. A, A-1, H, H-1, H-2, O, O-1, pp. 20-21, TSN
dated November 17, 2000).
On May 4, 1975, Victoria Jarillo and Rafael Alocillo again celebrated
marriage in a church wedding ceremony before Rev. Angel Resultay in San
Carlos City, Pangasinan (pp. 25-26, TSN dated November 17, 2000). Out of
the marital union, appellant begot a daughter, Rachelle J. Alocillo on October
29, 1975 (Exhs. F, R, R-1).
Appellant Victoria Jarillo thereafter contracted a subsequent marriage with
Emmanuel Ebora Santos Uy, at the City Court of Pasay City, Branch 1,
before then Hon. Judge Nicanor Cruz on November 26, 1979 (Exhs. D, J, J1, Q, Q-1, pp. 15-18, TSN dated November 22, 2000).
On April 16, 1995, appellant and Emmanuel Uy exchanged marital vows
anew in a church wedding in Manila (Exh. E).
In 1999, Emmanuel Uy filed against the appellant Civil Case No. 99-93582
for annulment of marriage before the Regional Trial Court of Manila.
Thereafter, appellant Jarillo was charged with bigamy before the Regional
Trial Court of Pasay City x x x.
xxxx
Parenthetically, accused-appellant filed against Alocillo, on October 5, 2000,
before the Regional Trial Court of Makati, Civil Case No. 00-1217, for
declaration of nullity of their marriage.
On July 9, 2001, the court a quo promulgated the assailed decision, the
dispositive portion of which states:
WHEREFORE, upon the foregoing premises, this court hereby finds accused
Victoria Soriano Jarillo GUILTY beyond reasonable doubt of the crime of
BIGAMY.

Accordingly, said accused is hereby sentenced to suffer an indeterminate

penalty of SIX (6) YEARS of prision correccional, as minimum, to TEN (10)
YEARS of prision mayor, as maximum.
This court makes no pronouncement on the civil aspect of this case, such as
the nullity of accuseds bigamous marriage to Uy and its effect on their
children and their property. This aspect is being determined by the Regional
Trial Court of Manila in Civil Case No. 99-93582.
Costs against the accused.
The motion for reconsideration was likewise denied by the same court in that
assailed Order dated 2 August 2001.3
For her defense, petitioner insisted that (1) her 1974 and 1975 marriages to
Alocillo were null and void because Alocillo was allegedly still married to a
certain Loretta Tillman at the time of the celebration of their marriage; (2) her
marriages to both Alocillo and Uy were null and void for lack of a valid
marriage license; and (3) the action had prescribed, since Uy knew about her
marriage to Alocillo as far back as 1978.
On appeal to the CA, petitioners conviction was affirmed in toto. In its
Decision dated July 21, 2003, the CA held that petitioner committed bigamy
when she contracted marriage with Emmanuel Santos Uy because, at that
time, her marriage to Rafael Alocillo had not yet been declared null and void
by the court. This being so, the presumption is, her previous marriage to
Alocillo was still existing at the time of her marriage to Uy. The CA also struck
down, for lack of sufficient evidence, petitioners contentions that her
marriages were celebrated without a marriage license, and that Uy had
notice of her previous marriage as far back as 1978.
In the meantime, the RTC of Makati City, Branch 140, rendered a Decision
dated March 28, 2003, declaring petitioners 1974 and 1975 marriages to
Alocillo null and void ab initio on the ground of Alocillos psychological
incapacity. Said decision became final and executory on July 9, 2003. In her
motion for reconsideration, petitioner invoked said declaration of nullity as a
ground for the reversal of her conviction. However, in its Resolution dated
July 8, 2004, the CA, citing Tenebro v. Court of Appeals,4 denied
reconsideration and ruled that "[t]he subsequent declaration of nullity of her
first marriage on the ground of psychological incapacity, while it retroacts to
the date of the celebration of the marriage insofar as the vinculum between
the spouses is concerned, the said marriage is not without legal
consequences, among which is incurring criminal liability for bigamy." 5
Hence, the present petition for review on certiorari under Rule 45 of the
Rules of Court where petitioner alleges that:
V.1. THE COURT OF APPEALS COMMITTED REVERSIBLE ERROR IN
PROCEEDING WITH THE CASE DESPITE THE PENDENCY OF A CASE
WHICH IS PREJUDICIAL TO THE OUTCOME OF THIS CASE.
V.2. THE COURT OF APPEALS COMMITTED REVERSIBLE ERROR IN
AFFIRMING THE CONVICTION OF PETITIONER FOR THE CRIME OF
BIGAMY DESPITE THE SUPERVENING PROOF THAT THE FIRST TWO

20
MARRIAGES OF PETITIONER TO ALOCILLO HAD BEEN DECLARED BY
FINAL JUDGMENT NULL AND VOID AB INITIO.
V.3. THE COURT OF APPEALS COMMITTED REVERSIBLE ERROR IN
NOT CONSIDERING THAT THERE IS A PENDING ANNULMENT OF
MARRIAGE AT THE REGIONAL TRIAL COURT BRANCH 38 BETWEEN
EMMANUEL SANTOS AND VICTORIA S. JARILLO.
V.4. THE COURT OF APPEALS COMMITTED REVERSIBLE ERROR IN
NOT CONSIDERING THAT THE INSTANT CASE OF BIGAMY HAD
ALREADY PRESCRIBED.
V.5. THE COURT OF APPEALS COMMITTED REVERSIBLE ERROR IN
NOT CONSIDERING THAT THE MARRIAGE OF VICTORIA JARILLO AND
EMMANUEL SANTOS UY HAS NO VALID MARRIAGE LICENSE.
V.6. THE COURT OF APPEALS COMMITTED REVERSIBLE ERROR IN
NOT ACQUITTING THE PETITIONER BUT IMPOSED AN ERRONEOUS
PENALTY UNDER THE REVISED PENAL CODE AND THE
INDETERMINATE SENTENCE LAW.
The first, second, third and fifth issues, being closely related, shall be
discussed jointly. It is true that right after the presentation of the prosecution
evidence, petitioner moved for suspension of the proceedings on the ground
of the pendency of the petition for declaration of nullity of petitioners
marriages to Alocillo, which, petitioner claimed involved a prejudicial
question. In her appeal, she also asserted that the petition for declaration of
nullity of her marriage to Uy, initiated by the latter, was a ground for
suspension of the proceedings. The RTC denied her motion for suspension,
while the CA struck down her arguments. In Marbella-Bobis v. Bobis, 6 the
Court categorically stated that:
x x x as ruled in Landicho v. Relova, he who contracts a second marriage
before the judicial declaration of nullity of the first marriage assumes the risk
of being prosecuted for bigamy, and in such a case the criminal case may not
be suspended on the ground of the pendency of a civil case for declaration of
nullity. x x x
xxxx
x x x The reason is that, without a judicial declaration of its nullity, the first
marriage is presumed to be subsisting. In the case at bar, respondent was for
all legal intents and purposes regarded as a married man at the time he
contracted his second marriage with petitioner. Against this legal backdrop,
any decision in the civil action for nullity would not erase the fact that
respondent entered into a second marriage during the subsistence of a first
marriage. Thus, a decision in the civil case is not essential to the
determination of the criminal charge. It is, therefore, not a prejudicial
question. x x x7
The foregoing ruling had been reiterated in Abunado v. People, 8 where it was
held thus:
The subsequent judicial declaration of the nullity of the first marriage was
immaterial because prior to the declaration of nullity, the crime had already

been consummated. Moreover, petitioners assertion would only delay the

prosecution of bigamy cases considering that an accused could simply file a
petition to declare his previous marriage void and invoke the pendency of
that action as a prejudicial question in the criminal case. We cannot allow
that.
The outcome of the civil case for annulment of petitioners marriage to
[private complainant] had no bearing upon the determination of petitioners
innocence or guilt in the criminal case for bigamy, because all that is required
for the charge of bigamy to prosper is that the first marriage be subsisting at
the time the second marriage is contracted.
Thus, under the law, a marriage, even one which is void or voidable, shall be
deemed valid until declared otherwise in a judicial proceeding. In this case,
even if petitioner eventually obtained a declaration that his first marriage was
void ab initio, the point is, both the first and the second marriage were
subsisting before the first marriage was annulled.9
For the very same reasons elucidated in the above-quoted cases, petitioners
conviction of the crime of bigamy must be affirmed. The subsequent judicial
declaration of nullity of petitioners two marriages to Alocillo cannot be
considered a valid defense in the crime of bigamy. The moment petitioner
contracted a second marriage without the previous one having been judicially
declared null and void, the crime of bigamy was already consummated
because at the time of the celebration of the second marriage, petitioners
marriage to Alocillo, which had not yet been declared null and void by a court
of competent jurisdiction, was deemed valid and subsisting. Neither would a
judicial declaration of the nullity of petitioners marriage to Uy make any
difference.10 As held in Tenebro, "[s]ince a marriage contracted during the
subsistence of a valid marriage is automatically void, the nullity of this
second marriage is not per se an argument for the avoidance of criminal
liability for bigamy. x x x A plain reading of [Article 349 of the Revised Penal
Code], therefore, would indicate that the provision penalizes the mere act of
contracting a second or subsequent marriage during the subsistence of a
valid marriage."11
Petitioners defense of prescription is likewise doomed to fail.
Under Article 349 of the Revised Penal Code, bigamy is punishable by
prision mayor, which is classified under Article 25 of said Code as an afflictive
penalty. Article 90 thereof provides that "[c]rimes punishable by other
afflictive penalties shall prescribe in fifteen years," while Article 91 states that
"[t]he period of prescription shall commence to run from the day on which the
crime is discovered by the offended party, the authorities, or their agents x x
x ."
Petitioner asserts that Uy had known of her previous marriage as far back as
1978; hence, prescription began to run from that time. Note that the party
who raises a fact as a matter of defense has the burden of proving it. The
defendant or accused is obliged to produce evidence in support of its
defense; otherwise, failing to establish the same, it remains self-serving. 12

21
Thus, for petitioners defense of prescription to prosper, it was incumbent
upon her to adduce evidence that as early as the year 1978, Uy already
obtained knowledge of her previous marriage.
A close examination of the records of the case reveals that petitioner utterly
failed to present sufficient evidence to support her allegation. Petitioners
testimony that her own mother told Uy in 1978 that she (petitioner) is already
married to Alocillo does not inspire belief, as it is totally unsupported by any
corroborating evidence. The trial court correctly observed that:
x x x She did not call to the witness stand her mother the person who
allegedly actually told Uy about her previous marriage to Alocillo. It must be
obvious that without the confirmatory testimony of her mother, the attribution
of the latter of any act which she allegedly did is hearsay.13
As ruled in Sermonia v. Court of Appeals,14 "the prescriptive period for the
crime of bigamy should be counted only from the day on which the said crime
was discovered by the offended party, the authorities or their [agents]," as
opposed to being counted from the date of registration of the bigamous
marriage.15 Since petitioner failed to prove with certainty that the period of
prescription began to run as of 1978, her defense is, therefore,
ineffectual.1avvphi1
Finally, petitioner avers that the RTC and the CA imposed an erroneous
penalty under the Revised Penal Code. Again, petitioner is mistaken.
The Indeterminate Sentence Law provides that the accused shall be
sentenced to an indeterminate penalty, the maximum term of which shall be
that which, in view of the attending circumstances, could be properly
imposed under the Revised Penal Code, and the minimum of which shall be
within the range of the penalty next lower than that prescribed by the Code
for the offense, without first considering any modifying circumstance
attendant to the commission of the crime. The Indeterminate Sentence Law
leaves it entirely within the sound discretion of the court to determine the
minimum penalty, as long as it is anywhere within the range of the penalty
next lower without any reference to the periods into which it might be
subdivided. The modifying circumstances are considered only in the
imposition of the maximum term of the indeterminate sentence. 16
Applying the foregoing rule, it is clear that the penalty imposed on petitioner
is proper. Under Article 349 of the Revised Penal Code, the imposable
penalty for bigamy is prision mayor. The penalty next lower is prision
correccional, which ranges from 6 months and 1 day to 6 years. The
minimum penalty of six years imposed by the trial court is, therefore, correct
as it is still within the duration of prision correccional. There being no
mitigating or aggravating circumstances proven in this case, the prescribed
penalty of prision mayor should be imposed in its medium period, which is
from 8 years and 1 day to 10 years. Again, the trial court correctly imposed a
maximum penalty of 10 years.
However, for humanitarian purposes, and considering that petitioners
marriage to Alocillo has after all been declared by final judgment 17 to be void

ab initio on account of the latters psychological incapacity, by reason of

which, petitioner was subjected to manipulative abuse, the Court deems it
proper to reduce the penalty imposed by the lower courts. Thus, petitioner
should be sentenced to suffer an indeterminate penalty of imprisonment from
Two (2) years, Four (4) months and One (1) day of prision correccional, as
minimum, to 8 years and 1 day of prision mayor, as maximum.
IN VIEW OF THE FOREGOING, the petition is PARTLY GRANTED. The
Decision of the Court of Appeals dated July 21, 2003, and its Resolution
dated July 8, 2004 are hereby MODIFIED as to the penalty imposed, but
AFFIRMED in all other respects. Petitioner is sentenced to suffer an
indeterminate penalty of imprisonment from Two (2) years, Four (4) months
and One (1) day of prision correccional, as minimum, to Eight (8) years and
One (1) day of prision mayor, as maximum.
SO ORDERED.
DIOSDADO M. PERALTA
Associate Justice
WE CONCUR:
CONSUELO YNARES-SANTIAGO
Associate Justice
Chairperson
MINITA V. CHICO-NAZARIO
Associate Justice
ANTONIO EDUARDO B. NACHURA
Associate Justice
AT T E S TAT I O N
I attest that the conclusions in the above Decision had been reached in
consultation before the case was assigned to the writer of the opinion of the
Courts Division.
CONSUELO YNARES-SANTIAGO
Associate Justice
Third Division, Chairperson
C E R T I F I C AT I O N
Pursuant to Section 13, Article VIII of the Constitution and the Division
Chairpersons Attestation, I certify that the conclusions in the above Decision
were reached in consultation before the case was assigned to the writer of
the opinion of the Courts Division.
REYNATO S. PUNO
Chief Justice
Footnotes
1
Penned by Associate Justice Bernardo P. Abesamis, with Associate Justices
Jose L. Sabio, Jr. and Jose C. Mendoza, concurring; rollo, pp. 8-21.
2
Penned by Associate Justice Jose L. Sabio, Jr., with Associate Justices
Mariano C. del Castillo and Jose C. Mendoza, concurring; rollo, pp. 22-23.

22

Rollo, pp. 9-10.

4
467 Phil. 723 (2004).
5
CA rollo, p. 404.
6
391 Phil. 648 (2000).
7
Id. at 655-657. (Emphasis supplied.)
8
G.R. No. 159218, March 30, 2004, 426 SCRA 562.
9
Id. at 567-568. (Emphasis supplied.)
10
Abunado v. People, supra note 8; Tenebro v. Court of Appeals, supra note
4, at 752.
11
Tenebro v. Court of Appeals, supra, at 742.
12
Prudential Guarantee and Assurance, Inc. v. Trans-Asia Shipping Lines,
Inc., G.R. No. 151890, June 20, 2006, 491 SCRA 411, 433.
13
Records, p. 383.
14
G.R. No. 109454, June 14, 1994, 233 SCRA 155.
15
Id. at 161.
16
Abunado v. People, supra note 8, at 568.
17
See Decision of the Regional Trial Court of Makati City in Civil Case No.
00-1217, CA rollo, pp. 343-347.
McKEE v. McKEE
No. 11838.
262 So.2d 111 (1972)
Rita Nell Foster McKEE, Plaintiff-Appellant, v. Bob McKEE,
Defendant-Appellee.
Court of Appeal of Louisiana, Second Circuit.
April 24, 1972.
Rehearing Denied May 23, 1972.
John E. Lawhon, Shreveport, for plaintiff-appellant.
Bob McKee, in pro. per.
Before AYRES, BOLIN, and HALL, JJ.
En Banc. Rehearing Denied May 23, 1972.
AYRES, Judge.
In the institution of this action, plaintiff initially sought from the
husband a judgment of separation based upon charges of cruelty.
In an amended petition, plaintiff sought to have the marriage
between her and the defendant annulled on an alleged basis of her
mistaken identity of the person she married. In the alternative,
plaintiff sought a divorce for the reason that defendant has been
convicted of a felony and sentenced to imprisonment at hard labor
in a state penitentiary. On trial, on a confirmation of a default,
plaintiff was granted a decree of separation "a mensa et thoro"
from defendant; the community of acquets and gains between
plaintiff and defendant was dissolved. Plaintiff's demands for the

annulment of the marriage or for a divorce were rejected. From

that portion of the judgment so rejecting plaintiff's demands, she
appealed.
We find no basis for plaintiff's claims for a divorce. The evidence
with respect to defendant's conviction of a felony and his
subsequent sentence to imprisonment at hard labor are shown only
by an FBI report. This evidence, denied by defendant, was hearsay
in character and was therefore inadmissible. Moreover, the
conviction and sentence were alleged to have preceded the
marriage of these parties.
Plaintiff's only claim before the court meriting consideration is the
demand for the annulment of the marriage, which was predicated,
as heretofore noted, upon a contention that at the time she entered
into marriage with the defendant she was mistaken in his identity,
that is, that he was not the person with whom she intended to
enter into a contract of marriage.
These parties were married in New Orleans on or about October 14,
1963, after which they moved to Caddo Parish and established their
matrimonial domicile in the City of Shreveport. Because of
defendant's violent and uncontrollable temper, which was
eventually exhibited in an attempt to run into and over petitioner
with an automobile, followed by an attempt to shoot her on or
about July 8, 1971, plaintiff
[262 So.2d 113]

and defendant separated. Through criminal proceedings instituted

against defendant in the City Court of the City of Shreveport, it was
allegedly learned that defendant had been convicted of the crime
of robbery on or about November 19, 1952, in New Bedford, Bristol
County, Massachusetts, and thereafter sentenced to the state
penitentiary of that State at hard labor for a period of five years;
and that defendant's real name was not Bob McKee, under which
he married plaintiff, but was Robert Allen Weaver.
Under the laws of this State, marriage is considered in no other
view than as a civil contract. LSA-C.C. Art. 86. However, the manner
of contracting and celebrating marriages, the legal effects, the
consequences thereof, and the manner in which marriages may be
dissolved are prescribed and regulated by law. LSA-C.C. Art. 87.
Thus, though marriage is a contract intended in its origin to endure
until the death of one of the contracting parties, this contract may
nevertheless be dissolved before the death of either of the parties
for causes determined by law. LSA-C.C. Art. 89. Other than by death
of one of the married persons, the law of this State in general
prescribes that marriages may be terminated by divorce based
upon, inter alia, conviction of the other spouse of a felony and his

sentence to imprisonment at hard labor. LSA-C.C. Art. 139.

Consistent with the rules governing contracts in general, "No
marriage is valid to which the parties have not freely consented."
LSA-C.C. Art. 91. There it is further stated:
"Consent is not free: ...
3. When there is a mistake respecting the person, whom one of the
parties intended to marry.
Thus, the rule is that:
Marriages celebrated without the free consent of the married
persons, or of one of them, can only be annulled upon application
of both the parties, or of that one of them whose consent was not
free.
When there has been a mistake in the person, the party laboring
under the mistake can alone impeach the marriage.
LSA-C.C. Art. 110.
The record clearly establishes that plaintiff married the identical
man whom she intended to marry. She was not mistaken with
reference to his identity but only with reference to his name. Thus,
the lack of free consent to the marriage of which plaintiff now
complains is not the lack of consent contemplated by the aforesaid
articles of the Revised Civil Code. The error, or lack of consent,
contemplated by the codal provisions relates to the identity of a
person and not to the quality, age, or name of the person with
whom one has entered into a contract of marriage.
For instance, in Delpit v. Young, 51 La. Ann. 923, 25 So. 547, 550
(1899), plaintiff sought to have his marriage annulled on several
grounds, one of which was that, in consenting to the marriage, he
was deceived and imposed upon and was in error as to the person
with whom he was marrying in that she represented herself to be a
virtuous woman, whereas, as he was informed after the marriage,
she had previously had illicit connection with divers persons. In the
cited case, after reviewing earlier French authorities learned in the
civil law, and from which our system comes, Justice Monroe, later
Chief Justice of our Supreme Court, appropriately pointed out:
.... marriage, in the eye of the law, is purely and absolutely a civil
contract. The law prescribes who may enter into it, how it may be
entered into, and specifies the causes for which it may be annulled
or avoided. Under these circumstances, it seems better to interpret
our marriage law without the aid of criticism which is inappropriate
to the conditions under which it was enacted and to which it is
intended to apply; and, so interpreting it, we think that, if the
general assembly had intended that marriages should be annulled
when the one party mistakes the character, the social standing, the
pedigree, the acquirements, the pecuniary means, the habits, the
temperament, or the religion of the other, or when the one party,

23

after the marriage, discovers `redhibitory' vices in the other,

some language, beyond the words `mistake respecting the person,'
would have been found to express that intention.
If the marriage of a woman is to be annulled because she was
unchaste before marriage, what is to be done in the case of a man?
If the courts are to determine whether the mistake is sufficiently
serious, how are they to deal with people who, having united
themselves together `for better, for worse, in sickness and in
health,' etc., present a case where the one develops hereditary
disease, such as consumption or insanity, of the possibility of which
the other was ignorant, or becomes confirmed in a pre-existing
alcohol or opium habit, of which the other had no knowledge? No
such doctrine as that propounded by the learned counsel for the
appellant has as yet found a place in our jurisprudence, and the
language of our Code, interpreted according to familiar canons of
construction, does not justify its introduction. (Emphasis supplied).
Thus, it was pointed out that the words "mistake in the person" as
used in Articles 91 and 110 of the Revised Civil Code, which
prescribe the causes for which marriages may be annulled, do not
mean mistake in the character of the person, or in his or her
attributes, condition in life, or previous habits.
Thus, it appears appropriate to observe that the vices and defects
of a thing which constitute the object of a contract and thus
constitute redhibition in the avoidance of a contract, because the
object is rendered absolutely useless or its use so inconvenient and
imperfect that it must be supposed the parties would not have
entered into a contract with reference to it, have never been
extended to the vices, or imperfections, of the parties to a contract
of marriage. Nor do such imperfections, or vices, constitute a basis
for an annulment of the contract of marriage. Nor is it sufficient
that one of the parties to a contract of marriage discovers he or she
was disillusioned as to some quality or character of the other, such
as a misstatement of a proper name, to constitute a mistaken belief
in the identity of the person.
See, also, Stier v. Price, 214 La. 394, 37 So.2d 847 (1948), which
cited and quoted with approval from Delpit v. Young, supra. There it
was held that the lack of consent based on the wife's lack of
knowledge at the time of marriage that her husband was suffering
from dementia praecox was not such lack of consent as
contemplated by the statute permitting an annulment of the
marriage when there is a mistake respecting the person of one of
the parties to the marriage.
We conclude plaintiff had no mistaken belief in the identity of the
person she married; that her mistaken belief as to his real name is
insufficient to constitute a basis for an action of annulment of the

marriage.
We find no error in the judgment appealed, which is now affirmed at
plaintiff-appellant's costs.
Affirmed.

24