1

THIRD DIVISION
G.R. No. 167109

February 6, 2007

FELICITAS AMOR-CATALAN, Petitioner,

vs.
COURT OF APPEALS, MANILA, ORLANDO B. CATALAN
and MEROPE E. BRAGANZA, Respondents.
DECISION
YNARES-SANTIAGO, J.:
This petition for review assails the Decision1 of the Court of
Appeals in CA-G.R. CV No. 69875 dated August 6, 2004,
which reversed the Decision2 of the Regional Trial Court (RTC)
of Dagupan City, Branch 44, in Civil Case No. D-10636,
declaring the marriage between respondents Orlando B.
Catalan and Merope E. Braganza void on the ground of
bigamy, as well as the Resolution3 dated January 27, 2005,
which denied the motion for reconsideration.
Petitioner Felicitas Amor-Catalan married respondent Orlando
on June 4, 1950 in Mabini, Pangasinan.4 Thereafter, they
migrated to the United States of America and allegedly
became naturalized citizens thereof. After 38 years of
marriage, Felicitas and Orlando divorced in April 1988.5

Respondents filed a motion to dismiss8 on the ground of lack

of cause of action as petitioner was allegedly not a real partyin-interest, but it was denied.9 Trial on the merits ensued.
On October 10, 2000, the RTC rendered judgment in favor of
the petitioner, the dispositive portion of which reads:
WHEREFORE, judgment is declared in favor of plaintiff
Felicitas Amor Catalan and against defendants Orlando B.
Catalan and Merope E. Braganza, as follows:
1) The subsequent marriage of Merope Braganza with
Orlando B. Catalan is declared null and void ab initio;
2) The defendants are ordered jointly and severally to
pay plaintiff by way of moral damages the amount of
P300,000.00, exemplary damages in the amount of
P200,000.00 and attorneys fees in the amount of
P50,000.00, including costs of this suit; and
3) The donation in consideration of marriage is ordered
revoked and the property donated is ordered awarded
to the heirs of Juliana Braganza.
Furnish copies of this Decision to Atty. Napoleon B. Arenas, Jr.
and Atty. Nolan Evangelista.
SO ORDERED.10

Two months after the divorce, or on June 16, 1988, Orlando

married respondent Merope in Calasiao,
Pangasinan.6Contending that said marriage was bigamous
since Merope had a prior subsisting marriage with Eusebio
Bristol, petitioner filed a petition for declaration of nullity of
marriage with damages in the RTC of Dagupan City7 against
Orlando and Merope.

Respondents appealed the decision to the Court of Appeals,

which reversed the decision of the RTC, thus:
WHEREFORE, premises considered, we hereby GRANT the
appeal and consequently REVERSE and SET ASIDE the
appealed decision. We likewise DISMISS Civil Case No. D10636, RTC, Branch 44, Dagupan City. No costs.

2
SO ORDERED.11
After the motion for reconsideration was denied, petitioner filed
the instant petition for review raising the following issues:
I.
WHETHER PETITIONER HAS THE REQUIRED STANDING
IN COURT TO QUESTION THE NULLITY OF THE
MARRIAGE BETWEEN RESPONDENTS;
II.
WHETHER THE FAILURE OF THE COURT OF APPEALS TO
DECLARE THE QUESTIONED MARRIAGE VOID
CONSTITUTES REVERSIBLE ERROR.12
Petitioner contends that the bigamous marriage of the
respondents, which brought embarrassment to her and her
children, confers upon her an interest to seek judicial remedy
to address her grievances and to protect her family from
further embarrassment and humiliation. She claims that the
Court of Appeals committed reversible error in not declaring
the marriage void despite overwhelming evidence and the
state policy discouraging illegal and immoral marriages.13
The main issue to be resolved is whether petitioner has the
personality to file a petition for the declaration of nullity of
marriage of the respondents on the ground of bigamy.
However, this issue may not be resolved without first
determining the corollary factual issues of whether the
petitioner and respondent Orlando had indeed become
naturalized American citizens and whether they had actually
been judicially granted a divorce decree.

While it is a settled rule that the Court is not a trier of facts and
does not normally undertake the re-examination of the
evidence presented by the contending parties during the trial
of the case,14 there are, however, exceptions to this rule, like
when the findings of facts of the RTC and the Court of Appeals
are conflicting, or when the findings are conclusions without
citation of specific evidence on which they are based.15
Both the RTC and the Court of Appeals found that petitioner
and respondent Orlando were naturalized American citizens
and that they obtained a divorce decree in April 1988.
However, after a careful review of the records, we note that
other than the allegations in the complaint and the testimony
during the trial, the records are bereft of competent evidence
to prove their naturalization and divorce.
The Court of Appeals therefore had no basis when it held:
In light of the allegations of Felicitas complaint and the
documentary and testimonial evidence she presented, we
deem it undisputed that Orlando and Felicitas are American
citizens and had this citizenship status when they secured
their divorce decree in April 1988. We are not therefore dealing
in this case with Filipino citizens whose marital status is
governed by the Family Code and our Civil Code, but with
American citizens who secured their divorce in the U.S. and
who are considered by their national law to be free to contract
another marriage. x x x16
Further, the Court of Appeals mistakenly considered the failure
of the petitioner to refute or contest the allegation in
respondents brief, that she and respondent Orlando were
American citizens at the time they secured their divorce in April
1988, as sufficient to establish the fact of naturalization and
divorce.17 We note that it was the petitioner who alleged in her
complaint that they acquired American citizenship and that

3
respondent Orlando obtained a judicial divorce decree.18 It is
settled rule that one who alleges a fact has the burden of
proving it and mere allegation is not evidence.19
Divorce means the legal dissolution of a lawful union for a
cause arising after marriage. But divorces are of different
types. The two basic ones are (1) absolute divorce or a vinculo
matrimonii and (2) limited divorce or a mensa et thoro. The first
kind terminates the marriage, while the second suspends it
and leaves the bond in full force.20 A divorce obtained abroad
by an alien may be recognized in our jurisdiction, provided
such decree is valid according to the national law of the
foreigner.21 However, before it can be recognized by our
courts, the party pleading it must prove the divorce as a fact
and demonstrate its conformity to the foreign law allowing it,
which must be proved considering that our courts cannot take
judicial notice of foreign laws.22
Without the divorce decree and foreign law as part of the
evidence, we cannot rule on the issue of whether petitioner
has the personality to file the petition for declaration of nullity
of marriage. After all, she may have the personality to file the
petition if the divorce decree obtained was a limited divorce
or a mensa et thoro; or the foreign law may restrict remarriage
even after the divorce decree becomes absolute.23 In such
case, the RTC would be correct to declare the marriage of the
respondents void for being bigamous, there being already in
evidence two existing marriage certificates, which were both
obtained in the Philippines, one in Mabini, Pangasinan dated
December 21, 1959 between Eusebio Bristol and respondent
Merope,24 and the other, in Calasiao, Pangasinan dated June
16, 1988 between the respondents.25
However, if there was indeed a divorce decree obtained and
which, following the national law of Orlando, does not restrict
remarriage, the Court of Appeals would be correct in ruling that

petitioner has no legal personality to file a petition to declare

the nullity of marriage, thus:
Freed from their existing marital bond, each of the former
spouses no longer has any interest nor should each have the
personality to inquire into the marriage that the other might
subsequently contract. x x x Viewed from another perspective,
Felicitas has no existing interest in Orlandos subsequent
marriage since the validity, as well as any defect or infirmity, of
this subsequent marriage will not affect the divorced status of
Orlando and Felicitas. x x x26
True, under the New Civil Code which is the law in force at the
time the respondents were married, or even in the Family
Code, there is no specific provision as to who can file a
petition to declare the nullity of marriage; however, only a party
who can demonstrate "proper interest" can file the same. A
petition to declare the nullity of marriage, like any other
actions, must be prosecuted or defended in the name of the
real party in interest27 and must be based on a cause of
action.28 Thus, in Nial v. Bayadog,29 the Court held that the
children have the personality to file the petition to declare the
nullity of the marriage of their deceased father to their
stepmother as it affects their successional rights.1awphi1.net
Significantly, Section 2(a) of The Rule on Declaration of
Absolute Nullity of Void Marriages and Annulment of Voidable
Marriages, which took effect on March 15, 2003, now
specifically provides:
SECTION 2. Petition for declaration of absolute nullity of void
marriages.
(a) Who may file. A petition for declaration of absolute nullity
of void marriage may be filed solely by the husband or the
wife.

4
2

xxxx

Records, pp. 164-168. Penned by Judge Crispin C.

Laron.

In fine, petitioners personality to file the petition to declare the

nullity of marriage cannot be ascertained because of the
absence of the divorce decree and the foreign law allowing it.
Hence, a remand of the case to the trial court for reception of
additional evidence is necessary to determine whether
respondent Orlando was granted a divorce decree and
whether the foreign law which granted the same allows or
restricts remarriage. If it is proved that a valid divorce decree
was obtained and the same did not allow respondent
Orlandos remarriage, then the trial court should declare
respondents marriage as bigamous and void ab initio but
reduce the amount of moral damages fromP300,000.00
to P50,000.00 and exemplary damages from P200,000.00
to P25,000.00. On the contrary, if it is proved that a valid
divorce decree was obtained which allowed Orlando to
remarry, then the trial court must dismiss the instant petition to
declare nullity of marriage on the ground that petitioner
Felicitas Amor-Catalan lacks legal personality to file the same.
WHEREFORE, in view of the foregoing, let this case be
REMANDED to the trial court for its proper disposition. No
costs.
SO ORDERED.
CONSUELO YNARES-SANTIAGO
Associate Justice
Footnotes

Rollo, pp. 33-34.

Records, p. 4.

Id. at 1.

Id. at 5.

Id. at 1-3.

Id. at 10-12.

Id. at 19.

10

Id. at 167-168.

11

Rollo, p. 54.

12

Id. at 6-7.

13

Id. at 8-9.

14

Bank of the Philippine Islands v. Sarmiento, G.R. No.

146021, March 10, 2006, 484 SCRA 261, 267-268.
15

Id.

16

Rollo, pp. 22-23.

17

Id. at 22.

18

Records, p. 1.

Rollo, pp. 14-24. Penned by Associate Justice Arturo

D. Brion and concurred in by Associate Justices Delilah
Vidallon-Magtolis and Eliezer R. De los Santos.

5
19

Republic v. Orbecido III, G.R. No. 154380, October 5,

2005, 472 SCRA 114, 123.
20

REPUBLIC OF THE PHILIPPINES, petitioner,

vs.
GREGORIO NOLASCO, respondent.

Garcia v. Recio, 418 Phil. 723, 735-736 (2001).

The Solicitor General for plaintiff-appellee.

21

Roehr v. Rodriguez, 452 Phil. 608, 617 (2003).

22

Republic v. Orbecido III, supra.

Warloo G. Cardenal for respondent.

RESOLUTION
23

Garcia v. Recio, supra at 736.

FELICIANO, J.:

24

Records, p. 7.

25

Id. at 5.

26

Rollo, p. 23.

27

RULES OF COURT, Rule 3, Sec. 2.

28

RULES OF COURT, Rule 2, Sec. 1.

29

384 Phil. 661 (2000).

THIRD DIVISION
G.R. No. 94053 March 17, 1993

On 5 August 1988, respondent Gregorio Nolasco filed before

the Regional Trial Court of Antique, Branch 10, a petition for
the declaration of presumptive death of his wife Janet Monica
Parker, invoking Article 41 of the Family Code. The petition
prayed that respondent's wife be declared presumptively dead
or, in the alternative, that the marriage be declared null and
void. 1
The Republic of the Philippines opposed the petition through
the Provincial Prosecutor of Antique who had been deputized
to assist the Solicitor-General in the instant case. The Republic
argued, first, that Nolasco did not possess a "well-founded
belief that the absent spouse was already dead," 2 and second,
Nolasco's attempt to have his marriage annulled in the same
proceeding was a "cunning attempt" to circumvent the law on
marriage. 3
During trial, respondent Nolasco testified that he was a
seaman and that he had first met Janet Monica Parker, a
British subject, in a bar in England during one of his ship's port
calls. From that chance meeting onwards, Janet Monica
Parker lived with respondent Nolasco on his ship for six (6)
months until they returned to respondent's hometown of San
Jose, Antique on 19 November 1980 after his seaman's

6
contract expired. On 15 January 1982, respondent married
Janet Monica Parker in San Jose, Antique, in Catholic rites
officiated by Fr. Henry van Tilborg in the Cathedral of San
Jose.
Respondent Nolasco further testified that after the marriage
celebration, he obtained another employment contract as a
seaman and left his wife with his parents in San Jose, Antique.
Sometime in January 1983, while working overseas,
respondent received a letter from his mother informing him
that Janet Monica had given birth to his son. The same letter
informed him that Janet Monica had left Antique. Respondent
claimed he then immediately asked permission to leave his
ship to return home. He arrived in Antique in November 1983.
Respondent further testified that his efforts to look for her
himself whenever his ship docked in England proved fruitless.
He also stated that all the letters he had sent to his missing
spouse at No. 38 Ravena Road, Allerton, Liverpool, England,
the address of the bar where he and Janet Monica first met,
were all returned to him. He also claimed that he inquired from
among friends but they too had no news of Janet Monica.
On cross-examination, respondent stated that he had lived
with and later married Janet Monica Parker despite his lack of
knowledge as to her family background. He insisted that his
wife continued to refuse to give him such information even
after they were married. He also testified that he did not report
the matter of Janet Monica's disappearance to the Philippine
government authorities.
Respondent Nolasco presented his mother, Alicia Nolasco, as
his witness. She testified that her daughter-in-law Janet
Monica had expressed a desire to return to England even
before she had given birth to Gerry Nolasco on 7 December
1982. When asked why her daughter-in-law might have

wished to leave Antique, respondent's mother replied that

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

7
1. The Court of Appeals erred in affirming the trial
court's finding that there existed a well-founded belief
on the part of Nolasco that Janet Monica Parker was
already dead; and
2. The Court of Appeals erred in affirming the trial
Court's declaration that the petition was a proper case
of the declaration of presumptive death under Article
41, Family Code. 5
The issue before this Court, as formulated by petitioner is
"[w]hether or not Nolasco has a well-founded belief that his
wife is already dead." 6
The present case was filed before the trial court pursuant to
Article 41 of the Family Code which provides that:
Art. 41. A marriage contracted by any person during the
subsistence of a previous marriage shall be null and
void, unless before the celebration of the subsequent
marriage, the prior spouse had been absent for four
consecutive years and the spouse present had a wellfounded belief that the absent spouse was already
dead. In case of disappearance where there is danger
of death under the circumstances set forth in the
provision of Article 391 of the Civil Code, an absence of
only two years shall be sufficient.
For the purpose of contracting the subsequent
marriage under the preceding paragraph, the spouse
present must institute a summary proceeding as
provided in this Code for the declaration of presumptive
death of the absentee, without prejudice to the effect of
reappearance of the absent spouse. (Emphasis
supplied).

When Article 41 is compared with the old provision of the Civil

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

8
Respondent naturally asserts that he had complied with all
these requirements. 11
Petitioner's argument, upon the other hand, boils down to this:
that respondent failed to prove that he had complied with the
third requirement, i.e., the existence of a "well-founded belief"
that the absent spouse is already dead.

help of local authorities or of the British Embassy, 14 he

secured another seaman's contract and went to London, a
vast city of many millions of inhabitants, to look for her there.
Q After arriving here in San Jose, Antique, did you
exert efforts to inquire the whereabouts of your wife?
A Yes, Sir.

The Court believes that respondent Nolasco failed to conduct

a search for his missing wife with such diligence as to give rise
to a "well-founded belief" that she is dead.
United States v. Biasbas, 12 is instructive as to degree of
diligence required in searching for a missing spouse. In that
case, defendant Macario Biasbas was charged with the crime
of bigamy. He set-up the defense of a good faith belief that his
first wife had already died. The Court held that defendant had
not exercised due diligence to ascertain the whereabouts of
his first wife, noting that:
While the defendant testified that he had made
inquiries concerning the whereabouts of his wife, he
fails to state of whom he made such inquiries. He did
not even write to the parents of his first wife, who lived
in the Province of Pampanga, for the purpose of
securing information concerning her whereabouts. He
admits that he had a suspicion only that his first wife
was dead. He admits that the only basis of his
suspicion was the fact that she had been absent. . . . 13
In the case at bar, the Court considers that the investigation
allegedly conducted by respondent in his attempt to ascertain
Janet Monica Parker's whereabouts is too sketchy to form the
basis of a reasonable or well-founded belief that she was
already dead. When he arrived in San Jose, Antique after
learning of Janet Monica's departure, instead of seeking the

Court:
How did you do that?
A I secured another contract with the ship and we had
a trip to London and I went to London to look for her I
could not find her (sic). 15 (Emphasis supplied)
Respondent's testimony, however, showed that he confused
London for Liverpool and this casts doubt on his supposed
efforts to locate his wife in England. The Court of Appeal's
justification of the mistake, to wit:
. . . Well, while the cognoscente (sic) would readily
know the geographical difference between London and
Liverpool, for a humble seaman like Gregorio the two
places could mean one place in England, the port
where his ship docked and where he found Janet. Our
own provincial folks, every time they leave home to visit
relatives in Pasay City, Kalookan City, or Paraaque,
would announce to friends and relatives, "We're going
to Manila." This apparent error in naming of places of
destination does not appear to be fatal. 16
is not well taken. There is no analogy between Manila and its
neighboring cities, on one hand, and London and Liverpool, on
the other, which, as pointed out by the Solicitor-General, are

9
around three hundred fifty (350) kilometers apart. We do not
consider that walking into a major city like Liverpool or London
with a simple hope of somehow bumping into one particular
person there which is in effect what Nolasco says he did
can be regarded as a reasonably diligent search.
The Court also views respondent's claim that Janet Monica
declined to give any information as to her personal
background even after she had married respondent 17 too
convenient an excuse to justify his failure to locate her. The
same can be said of the loss of the alleged letters respondent
had sent to his wife which respondent claims were all returned
to him. Respondent said he had lost these returned letters,
under unspecified circumstances.
Neither can this Court give much credence to respondent's
bare assertion that he had inquired from their friends of her
whereabouts, considering that respondent did not identify
those friends in his testimony. The Court of Appeals ruled that
since the prosecutor failed to rebut this evidence during trial, it
is good evidence. But this kind of evidence cannot, by its
nature, be rebutted. In any case, admissibility is not
synonymous with credibility. 18 As noted before, there are
serious doubts to respondent's credibility. Moreover, even if
admitted as evidence, said testimony merely tended to show
that the missing spouse had chosen not to communicate with
their common acquaintances, and not that she was dead.
Respondent testified that immediately after receiving his
mother's letter sometime in January 1983, he cut short his
employment contract to return to San Jose, Antique. However,
he did not explain the delay of nine (9) months from January
1983, when he allegedly asked leave from his captain, to
November 1983 when be finally reached San Jose.
Respondent, moreover, claimed he married Janet Monica
Parker without inquiring about her parents and their place of

residence. 19 Also, respondent failed to explain why he did not

even try to get the help of the police or other authorities in
London and Liverpool in his effort to find his wife. The
circumstances of Janet Monica's departure and respondent's
subsequent behavior make it very difficult to regard the
claimed belief that Janet Monica was dead a well-founded
one.
In Goitia v. Campos-Rueda, 20 the Court stressed that:
. . . Marriage is an institution, the maintenance of which
in its purity the public is deeply interested. It is a
relationship for life and the parties cannot terminate it
at any shorter period by virtue of any contract they
make. . . . . 21 (Emphasis supplied)
By the same token, the spouses should not be allowed, by the
simple expedient of agreeing that one of them leave the
conjugal abode and never to return again, to circumvent the
policy of the laws on marriage. The Court notes that
respondent even tried to have his marriage annulled before
the trial court in the same proceeding.
In In Re Szatraw, 22 the Court warned against such collusion
between the parties when they find it impossible to dissolve
the marital bonds through existing legal means.
While the Court understands the need of respondent's young
son, Gerry Nolasco, for maternal care, still the requirements of
the law must prevail. Since respondent failed to satisfy the
clear requirements of the law, his petition for a judicial
declaration of presumptive death must be denied. The law
does not view marriage like an ordinary contract. Article 1 of
the Family Code emphasizes that.

10
. . . Marriage is a special contract of permanent
union between a man and a woman entered into in
accordance with law for the establishment of conjugal
and family life. It is the foundation of the family and
an inviolable social institution whose nature,
consequences, and incidents are governed by law
and not subject to stipulation, except that marriage
settlements may fix the property relations during the
marriage within the limits provided by this Code.
(Emphasis supplied)
In Arroyo, Jr. v. Court of Appeals, 23 the Court stressed strongly
the need to protect.
. . . the basic social institutions of marriage and the
family in the preservation of which the State bas the
strongest interest; the public policy here involved is of
the most fundamental kind. In Article II, Section 12 of
the Constitution there is set forth the following basic
state policy:
The State recognizes the sanctity of family life
and shall protect and strengthen the family as a
basic autonomous social institution. . . .
The same sentiment bas been expressed in the Family
Code of the Philippines in Article 149:
The family, being the foundation of the nation, is
a basic social institution which public policy
cherishes and protects. Consequently, family
relations are governed by law and no custom,
practice or agreement destructive of the family
shall be recognized or given effect. 24

In fine, respondent failed to establish that he had the wellfounded belief required by law that his absent wife was already
dead that would sustain the issuance of a court order declaring
Janet Monica Parker presumptively dead.
WHEREFORE, the Decision of the Court of Appeals dated 23
February 1990, affirming the trial court's decision declaring
Janet Monica Parker presumptively dead is hereby
REVERSED and both Decisions are hereby NULLIFIED and
SET ASIDE. Costs against respondent.
Bidin, Davide, Jr., Romero and Melo, JJ., concur.
Gutierrez, Jr. J., is on leave.
# Footnotes
1 Petition, p. 2; Record, p. 7.
2 Records, p. 13.
3 Records, p. 14.
4 Trial Court Decision, p. 4; Records, p. 39.
5 Petition, p. 9; Rollo, p. 13.
6 Id.
7 Pertinent portions of Article 83 of the Civil
Code reads:
Art. 83. Any marriage subsequently contracted
by any person during the lifetime of the first
spouse of such person with any other person
other than such first spouse shall be illegal and
void from its performance, unless:
xxx xxx xxx
(2) The first spouse had been absent for seven
consecutive years at the time of the second
marriage without the spouse present having
news of the absentee being alive, or if the
absentee, though he has been absent for less
than seven years, is generally considered as
dead and believed to be so by the spouse

11
present at the time of the contracting such
subsequent marriage, or if the absentee is
presumed dead according to articles 390 and
391. The marriage so contracted shall be valid
in any of the three cases until declared null and
void by a competent court.
8 See A. V. Sempio Diy, Handbook on the
Family Code of the Philippines (1988),
p. 48.
9 See generally Jones v. Hortiguela, 64 Phil.
179 (1937).
10 Petition, p. 11; Rollo; p. 15.
11 Memorandum for Respondent, p. 4.
12 25 Phil. 71 (1913).
13 25 Phil. at 73.
14 TSN, 28 September 1988, p. 16.
15 Id., p. 8.
16 Court of Appeal's Decision, p. 6.
17 TSN, 28 September 1988, p. 14.
18 See generally Ramos v. Sandiganbayan,
191 SCRA 671 (1990).
19 TSN, 28 September 1988, p. 10.
20 35 Phil. 252 (1919).
21 35 Phil. at 254.
22 81 Phil. 461 (1948).
23 203 SCRA 750 (1991).
24 203 SCRA at 761.

FIRST DIVISION

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

SERAFIA G. TOLENTINO, petitioner,
vs.
HON. EDGARDO L. PARAS, MARIA CLEMENTE and THE
LOCAL CIVIL REGISTRAR OF PAOMBONG,
BULACAN, respondents.
Amelita G. Tolentino for petitioner.
Hermin E. Arceo for Maria Clemente.
The Solicitor General for respondents.

MELENCIO-HERRERA, J.:
The reversal of respondent Court's Order, dismissing
petitioner's suit for her "declaration ... as the lawful surviving
spouse of deceased Amado Tolentino and the correction of the
death certificate of the same", is sought in this Petition for
Review on Certiorari.
The records disclose that Amado Tolentino had contracted a
second marriage with private respondent herein, Maria
Clemente, at Paombong, Bulacan, on November 1, 1948
(Annex "C", Petition), while his marriage with petitioner, Serafia
G. Tolentino, celebrated on July 31, 1943, was still subsisting
(Annex "A", Petition).
Petitioner charged Amado with Bigamy in Criminal Case No.
2768 of the Court of First Instance of Bulacan, Branch II, which
Court, upon Amado's plea of guilty, sentenced him to suffer the
corresponding penalty. After Amado had served the prison
sentence imposed on him, he continued to live with private

12
respondent until his death on July 25, 1974. His death
certificate carried the entry "Name of Surviving Spouse
Maria Clemente."
In Special Proceedings No. 1587-M for Correction of Entry,
petitioner sought to correct the name of the surviving spouse
in the death certificate from "Maria Clemente" to "Serafia G.
Tolentino", her name. The lower Court dismissed the petition
"for lack of the proper requisites under the law" and indicated
the need for a more detailed proceeding,
Conformably thereto, petitioner filed the case below against
private respondent and the Local Civil Registrar of Paombong,
Bulacan, for her declaration as the lawful surviving spouse,
and the correction of the death certificate of Amado. In an
Order, dated October 21, 1976, respondent Court, upon
private respondent's instance, dismissed the case, stating:
The Motion to Dismiss filed by the defendants in this
case, thru counsel Atty. Hernan E. Arceo, for the
reasons therein mentioned, is hereby GRANTED.
Further: (1) the correction of the entry in the Office of
the Local Civil Registrar is not the proper remedy
because the issue involved is marital relationship; (2)
the Court has not acquired proper jurisdiction because
as prescribed under Art. 108, read together with Art.
412 of the Civil Code publication is needed in a case
like this, and up to now, there has been no such
publication; and (3) in a sense, the subject matter of
this case has been aptly discussed in Special
Proceeding No. 1587-M, which this Court has already
dismissed, for lack of the proper requisites under the
law.
In view of the above dismissal, all other motions in this
case are hereby considered MOOT and ACADEMIC.

SO ORDERED. 1
Thus, petitioner's present recourse mainly challenging the
grounds relied upon by respondent Court in ordering
dismissal.
We rule for petitioner.
First, for the remedy. Although petitioner's ultimate objective is
the correction of entry contemplated in Article 412 of the Civil
Code and Rule 108 of the Rules of Court, she initially seeks a
judicial declaration that she is the lawful surviving spouse of
the deceased, Amado, in order to lay the basis for the
correction of the entry in the death certificate of said
deceased. The suit below is a proper remedy. It is of an
adversary character as contrasted to a mere summary
proceeding. A claim of right is asserted against one who has
an interest in contesting it. Private respondent, as the
individual most affected; is a party defendant, and has
appeared to contest the petition and defend her interests. The
Local Civil Registrar is also a party defendant. The publication
required by the Court below pursuant to Rule 108 of the Rules
of Court is not absolutely necessary for no other parties are
involved. After all, publication is required to bar indifferently all
who might be minded to make an objection of any sort against
the right sought to be established. 2 Besides, even assuming
that this is a proceeding under Rule 108, it was the Court that
was caned upon to order the publication, 3 but it did not. in the
ultimate analysis, Courts are not concerned so much with the
form of actions as with their substance. 4
Second, for the merits. Considering that Amado, upon his own
plea, was convicted for Bigamy, that sentence furnishes the
necessary proof of the marital status of petitioner and the
deceased. There is no better proof of marriage than the
admission by the accused of the existence of such

13
marriage. 5 The second marriage that he contracted with
private respondent during the lifetime of his first spouse is null
and void from the beginning and of no force and effect. 6 No
judicial decree is necessary to establish the invalidity of a void
marriage. 7 It can be safely concluded, then, without need of
further proof nor remand to the Court below, that private
respondent is not the surviving spouse of the deceased
Amado, but petitioner. Rectification of the erroneous entry in
the records of the Local Civil Registrar may, therefore, be
validly made.
Having arrived at the foregoing conclusion, the other issues
raised need no longer be discussed.
In fine, since there is no question regarding the invalidity of
Amado's second marriage with private respondent and that the
entry made in the corresponding local register is thereby
rendered false, it may be corrected. 8 While document such as
death and birth certificates, are public and entries therein are
presumed to be correct, such presumption is merely
disputable and will have to yield to more positive evidence
establishing their inaccuracy. 9
WHEREFORE, the Order, dated October 21, 1975, of
respondent Court is hereby set aside and petitioner, Serafia G.
Tolentino, hereby declared the surviving spouse of the
deceased Amado Tolentino. Let the corresponding correction
be made in the latter's death certificate in the records of the
Local Civil Registrar of Paombong, Bulacan.
No costs.
SO ORDERED.
SECOND DIVISION

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

LILIA OLIVA WIEGEL, petitioner,
vs.
THE HONORABLE ALICIA V. SEMPIO-DIY (as presiding
judge of the Juvenile and Domestic Relations Court of
Caloocan City) and KARL HEINZ WIEGEL, respondents.
Dapucanta, Dulay & Associates for petitioner.
Siguion Reyna, Montecillo and Ongsiako Law Office for private
respondent.

PARAS, J.:
In an action (Family Case No. 483) filed before the erstwhile
Juvenile and Domestic Relations Court of Caloocan City,
herein respondent Karl Heinz Wiegel (plaintiff therein) asked
for the declaration of Nullity of his marriage (celebrated on
July, 1978 at the Holy Catholic Apostolic Christian Church
Branch in Makati, Metro Manila) with herein petitioner Lilia
Oliva Wiegel (Lilia, for short, and defendant therein) on the
ground of Lilia's previous existing marriage to one Eduardo A.
Maxion, the ceremony having been performed on June 25,
1972 at our Lady of Lourdes Church in Quezon City. Lilia,
while admitting the existence of said prior subsisting marriage
claimed that said marriage was null and void, she and the first
husband Eduardo A. Maxion having been allegedly forced to
enter said marital union. In the pre-trial that ensued, the issue
agreed upon by both parties was the status of the first
marriage (assuming the presence of force exerted against
both parties): was said prior marriage void or was it merely
voidable? Contesting the validity of the pre-trial order, Lilia

14
asked the respondent court for an opportunity to present
evidence(1) that the first marriage was vitiated by force exercised upon
both her and the first husband; and
(2) that the first husband was at the time of the marriage in
1972 already married to someone else.
Respondent judge ruled against the presentation of evidence
because the existence of force exerted on both parties of the
first marriage had already been agreed upon. Hence, the
present petition for certiorari assailing the following Orders of
therespondent Judge-

needs according to this Court a judicial declaration 1 of such

fact and for all legal intents and purposes she would still be
regarded as a married woman at the time she contracted her
marriage with respondent Karl Heinz Wiegel); accordingly, the
marriage of petitioner and respondent would be regarded
VOID under the law.
WHEREFORE, this petition is hereby DISMISSED, for lack of
merit, and the Orders complained of are hereby AFFIRMED.
Costs against petitioner.
SO ORDERED.
Feria (Chairman), Fernan Alampay and Gutierrez, Jr., JJ.,
concur.

(1) the Order dated March 17, 1980 in which the parties were
compelled to submit the case for resolution based on "agreed
facts;" and
Footnotes
(2) the Order dated April 14, 1980, denying petitioner's motion
to allow her to present evidence in her favor.
We find the petition devoid of merit.
There is no need for petitioner to prove that her first marriage
was vitiated by force committed against both parties because
assuming this to be so, the marriage will not be void but
merely voidable (Art. 85, Civil Code), and therefore valid until
annulled. Since no annulment has yet been made, it is clear
that when she married respondent she was still validly married
to her first husband, consequently, her marriage to respondent
is VOID (Art. 80, Civil Code).
There is likewise no need of introducing evidence about the
existing prior marriage of her first husband at the time they
married each other, for then such a marriage though void still

1 Vda. de Consuegra vs. GSIS, 37 SCRA 315.

15
G.R. No. L-53642 April 15, 1988
LEONILO C. DONATO, petitioners,
vs.
HON. ARTEMON D. LUNA, PRESIDING JUDGE, COURT OF
FIRST INSTANCE OF MANIIA, BRANCH XXXII HON. JOSE
FLAMINIANO, CITY FISCAL OF MANILA; PAZ B.
ABAYAN, respondents.
Leopoldo P. Dela Rosa for petitioner.
Emiterio C. Manibog for private respondent.
City Fiscal of Manila for public respondent.

GANCAYCO, J.:
In this petition for certiorari and prohibition with preliminary
injunction, the question for the resolution of the Court is
whether or not a criminal case for bigamy pending before the
Court of First Itance of Manila should be suspended in view of
a civil case for annulment of marriage pending before the
Juvenile and Domestic Relations Court on the ground that the
latter constitutes a prejudicial question. The respondent judge
ruled in the negative. We sustain him.

EN BANC

The pertinent facts as set forth in the records follow. On

January 23, 1979, the City Fiscal of Manila acting thru
Assistant City Fiscal Amado N. Cantor filed an information for
bigamy against herein petitioner, Leonilo C. Donato with the
Court of First Instance of Manila, docketed as Criminal Case
No. 43554 and assigned to Branch XXXII of said court. The
information was filed based on the complaint of private
respondent Paz B. Abayan.

16
On September 28, 1979, before the petitioner's arraignment,
private respondent filed with the Juvenile and Domestic
Relations Court of Manila a civil action for declaration of nullity
of her marriage with petitioner contracted on September 26,
1978, which action was docketed as Civil Case No. E-02627.
Said civil case was based on the ground that private
respondent consented to entering into the marriage, which
was petitioner Donato's second one, since she had no
previous knowledge that petitioner was already married to a
certain Rosalinda R. Maluping on June 30, 1978. Petitioner
Donato's answer in the civil case for nullity interposed the
defense that his second marriage was void since it was
solemnized without a marriage license and that force,
violence, intimidation and undue influence were employed by
private respondent to obtain petitioner's consent to the
marriage. Prior to the solemnization of the subsequent or
second marriage, petitioner and private respondent had lived
together and deported themselves as husband and wife
without the benefit of wedlock for a period of at least five years
as evidenced by a joint affidavit executed by them on
September 26, 1978, for which reason, the requisite marriage
license was dispensed with pursuant to Article 76 of the New
Civil Code pertaining to marriages of exceptional character.

order further directed that the proceedings in the criminal case

can proceed as scheduled.
A motion for reconsideration was flied by herein petitioner thru
counsel citing as one of his grounds for suspension of
proceedings the ruling laid down by this Court in the case
of De la Cruz vs. Ejercito 2 which was a much later case than
that cited by respondent judge in his order of denial.
The motion for reconsideration of the said order was likewise
denied in an order dated April 14, 1980, for lack of merit.
Hence, the present petition for certiorari and prohibition with
preliminary injunction.

Prior to the date set for the trial on the merits of Criminal Case
No. 43554, petitioner filed a motion to suspend the
proceedings of said case contending that Civil Case No. E02627 seeking the annulment of his second marriage filed by
private respondent raises a prejudicial question which must
first be determined or decided before the criminal case can
proceed.

A prejudicial question has been defined to be one which arises

in a case, the resolution of which question is a logical
antecedent of the issue involved in said case, and the
cognizance of which pertains to another tribunal. 3 It is one
based on a fact distinct and separate from the crime but so
intimately connected with it that it determines the guilt or
innocence of the accused, and for it to suspend the criminal
action, it must appear not only that said case involves facts
intimately related to those upon which the criminal prosecution
would be based but also that in the resolution of the issue or
issues raised in the civil case, the guilt or innocence of the
accused would necessarily be determined. 4 A prejudicial
question usually comes into play in a situation where a civil
action and a criminal action may proceed, because howsoever
the issue raised in the civil action is resolved would be
determinative juris et de jure of the guilt or innocence of the
accused in a criminal case. 5

In an order dated April 7, 1980. Hon. Artemon D. Luna denied

the motion to suspend the proceedings in Criminal Case No.
43554 for bigamy. Respondent judge's basis for denial is the
ruling laid down in the case of Landicho vs. Relova. 1 The

The requisites of a prejudicial question do not obtain in the

case at bar. It must be noted that the issue before the Juvenile
and Domestic Relations Court touching upon the nullity of the
second marriage is not determinative of petitioner Donato's

17
guilt or innocence in the crime of bigamy. Furthermore, it was
petitioner's second wife, the herein private respondent Paz B.
Abayan who filed the complaint for annulment of the second
marriage on the ground that her consent was obtained through
deceit.
Petitioner Donato raised the argument that the second
marriage should have been declared null and void on the
ground of force, threats and intimidation allegedly employed
against him by private respondent only sometime later when
he was required to answer the civil action for anulment of the
second marriage. The doctrine elucidated upon by the case
of Landicho vs. Relova 6 may be applied to the present case.
Said case states that:
The mere fact that there are actions to annul
the marriages entered into by the accused in a
bigamy case does not mean that "prejudicial
questions" are automatically raised in civil
actions as to warrant the suspension of the
case. In order that the case of annulment of
marriage be considered a prejudicial question to
the bigamy case against the accused, it must
be shown that the petitioner's consent to such
marriage must be the one that was obtained by
means of duress, force and intimidation to show
that his act in the second marriage must be
involuntary and cannot be the basis of his
conviction for the crime of bigamy. The situation
in the present case is markedly different. At the
time the petitioner was indicted for bigamy on
February 27, 1963, the fact that two marriage
ceremonies had been contracted appeared to
be indisputable. And it was the second spouse,
not the petitioner who filed the action for nullity
on the ground of force, threats and intimidation.

And it was only on June 15, 1963, that

petitioner, as defendant in the civil action, filed a
third-party complaint against the first spouse
alleging that his marriage with her should be
declared null and void on the ground of force,
threats and intimidation. Assuming that the first
marriage was null and void on the ground
alleged by petitioner, the fact would not be
material to the outcome of the case. Parties to
the marriage should not be permitted to judge
for themselves its nullity, for the same must be
submitted to the judgment of the competent
courts and only when the nullity of the marriage
is so declared can it be held as void, and so
long as there is no such declaration the
presumption is that the marriage exists.
Therefore, he who contracts a second marriage
before the judicial declaration of nullity of the
first marriage assumes the risk of being
prosecuted for bigamy. The lower court
therefore, has not abused much less gravely
abused, its discretion in failing to suspend the
hearing as sought by petitioner.
In the case at bar, petitioner has not even sufficiently shown
that his consent to the second marriage has been obtained by
the use of threats, force and intimidation.
Petitioner calls the attention of this Court to the fact that the
case of De la Cruz vs. Ejercito is a later case and as such it
should be the one applied to the case at bar. We cannot agree.
The situation in the case at bar is markedly different. In the
aforecited case it was accused Milagros dela Cruz who was
charged with bigamy for having contracted a second marriage
while a previous one existed. Likewise, Milagros dela Cruz
was also the one who filed an action for annulment on the

18
ground of duress, as contra-distinguished from the present
case wherein it was private respondent Paz B. Abayan,
petitioner's second wife, who filed a complaint for annulment of
the second marriage on the ground that her consent was
obtained through deceit since she was not aware that
petitioner's marriage was still subsisting. Moreover, in De la
Cruz, a judgment was already rendered in the civil case that
the second marriage of De la Cruz was null and void, thus
determinative of the guilt or innocence of the accused in the
criminal case. In the present case, there is as yet no such
judgment in the civil case.
Pursuant to the doctrine discussed in Landicho vs. Relova,
petitioner Donato cannot apply the rule on prejudicial
questions since a case for annulment of marriage can be
considered as a prejudicial question to the bigamy case
against the accused only if it is proved that the petitioner's
consent to such marriage was obtained by means of duress,
violence and intimidation in order to establish that his act in the
subsequent marriage was an involuntary one and as such the
same cannot be the basis for conviction. The preceding
elements do not exist in the case at bar.
Obviously, petitioner merely raised the issue of prejudicial
question to evade the prosecution of the criminal case. The
records reveal that prior to petitioner's second marriage on
September 26, 1978, he had been living with private
respondent Paz B. Abayan as husband and wife for more than
five years without the benefit of marriage. Thus, petitioner's
averments that his consent was obtained by private
respondent through force, violence, intimidation and undue
influence in entering a subsequent marriage is belled by the
fact that both petitioner and private respondent executed an
affidavit which stated that they had lived together as husband
and wife without benefit of marriage for five years, one month
and one day until their marital union was formally ratified by

the second marriage and that it was private respondent who

eventually filed the civil action for nullity.
Another event which militates against petitioner's contentions
is the fact hat it was only when Civil Case No. E-02627 was
filed on September 28, 1979, or more than the lapse of one
year from the solemnization of the second marriage that
petitioner came up with the story that his consent to the
marriage was secured through the use of force, violence,
intimidation and undue influence. Petitioner also continued to
live with private respondent until November 1978, when the
latter left their abode upon learning that Leonilo Donato was
already previously married.
In the light of the preceding factual circumstances, it can be
seen that the respondent Judge did not err in his earlier order.
There is no pivotal issue that must be pre-emptively resolved
in Civil Case No. E-02627 before proceedings in the criminal
action for bigamy can be undertaken.
Accordingly, there being no prejudicial question shown to exit
the order of denial issued by the respondent judge dated April
14, 1980 should be sustained.
WHEREFORE, in view of the foregoing, the instant petition is
hereby DISMISSED for lack of merit. We make no
pronouncement as to costs.
SO ORDERED.
Teehankee, C.J., Narvasa, Cruz and Grio-Aquino, JJ.,
concur.

Footnotes

19
1 22 SCRA 731.
2 68 SCRA 1.

DOROTHY B. TERRE, complainant,

vs.
ATTY. JORDAN TERRE, respondent.

3 People va. Aragon, 94 Phil. 357; Isip vs.

Gonzales, 39 SCRA 255; Rojas vs. People, 57
SCRA 243.

PER CURIAM:

4 Libra va. Coscolluela, Jr., 116 SCRA 303.

5 Ibid.
6 22 SCRA 73.

In a sworn complaint filed with this Court on 24 December

1981, complainant Dorothy B. Terre charged respondent
Jordan Terre, a member of the Philippine Bar with "grossly
immoral conduct," consisting of contracting a second marriage
and living with another woman other than complainant, while
his prior marriage with complainant remained subsisting.
The Court resolved to require respondent to answer the
complaint. 1 Respondent successfully evaded five (5) attempts
to serve a copy of the Court's Resolution and of the complaint
by moving from one place to another, such that he could not
be found nor reached in his alleged place of employment or
residence. 2 On 24 April 1985, that is after three (3) years and
a half, with still no answer from the respondent, the Court
noted respondent's success in evading service of the
complaint and the Court's Resolution and thereupon resolved
to "suspend respondent Atty. Jordan Terre from the practice of
law until after he appears and/or files his answer to the
complaint against him" in the instant
case. 3

A.M. No. 2349 July 3, 1992

On 28 September 1985, respondent finally filed an Answer

with a Motion to Set Aside and/or Lift Suspension Order. In his
Answer, Atty. Terre averred that he had contracted marriage
with complainant Dorothy Terre on 14 June 1977 upon her
representation that she was single; that he subsequently
learned that Dorothy was married to a certain Merlito A.
Bercenilla sometime in 1968; that when he confronted Dorothy

20
about her prior marriage, Dorothy drove him out of their
conjugal residence; that Dorothy had mockingly told him of her
private meetings with Merlito A. Bercenilla and that the child
she was then carrying (i.e., Jason Terre) was the son of
Bercenilla; that believing in good faith that his marriage to
complainant was null and void ab initio, he contracted
marriage with Helina Malicdem at Dasol, Pangasinan. 4
In her Reply, complainant Dorothy denied that Jason Terre was
the child of Merlito A. Bercenilla and insisted that Jason was
the child of respondent Jordan Terre, as evidenced by Jason's
Birth Certificate and physical resemblance to respondent.
Dorothy further explained that while she had given birth to
Jason Terre at the PAFGH registered as a dependent of
Merlito Bercenilla, she had done so out of extreme necessity
and to avoid risk of death or injury to the fetus which happened
to be in a difficult breech position. According to Dorothy, she
had then already been abandoned by respondent Jordan
Terre, leaving her penniless and without means to pay for the
medical and hospital bills arising by reason of her pregnancy.
The Court denied respondent's Motion to Set Aside or Lift the
Suspension Order and instead referred; by a Resolution dated
6 January 1986, the complaint to the Office of the Solicitor
General for investigation, report and recommendation. 5
Then Solicitor Pio C. Guerrero was appointed investigator by
the Office of the Solicitor General. He set the case for hearing
on 7 July 1986 with notice to both parties. On 7 July 1986,
complainant Dorothy appeared and presented her evidence ex
parte, since respondent did not so appear. 6 The Investigating
Solicitor scheduled and held another hearing on 19 August
1986, where he put clarificatory questions to the complainant;
respondent once again did not appear despite notice to do so.
Complainant finally offered her evidence and rested her case.
The Solicitor set still another hearing for 2 October 1986,

notifying respondent to present his evidence with a warning

that should he fail once more to appear, the case would be
deemed submitted for resolution. Respondent did not appear
on 2 October 1986. The Investigating Solicitor accordingly
considered respondent to have waived his right to present
evidence and declared the case submitted for resolution. The
parties were given time to submit their respective memoranda.
Complainant Dorothy did so on 8 December 1986.
Respondent Terre did not file his memorandum.
On 26 February 1990, the Office of the Solicitor General
submitted its "Report and Recommendation" to this Court. The
Report summarized the testimony of the complainant in the
following manner:
Complainant Dorothy Terre took the witness stand and
testified substantially as follows: she and respondent
met for the first time in 1979 as fourth year high school
classmates in Cadiz City High School (tsn, July 7,
1986, p. 9); she was then married to Merlito Bercenilla,
while respondent was single (id.); respondent was
aware of her marital status (ibid, p. 14); it was then that
respondent started courting her but nothing happened
of the courtship (ibid, p. 10); they [complainant and
respondent] moved to Manila were they respectively
pursued their education, respondent as a law student
at the Lyceum University (tsn, July 7, 1986, p. 12, 1516); respondent continued courting her, this time with
more persistence (ibid, p. 11); she decided nothing
would come of it since she was married but he
[respondent] explained to her that their marriage was
void ab initio since she and her first husband were first
cousins (ibid, p. 12); convinced by his explanation and
having secured favorable advice from her mother and
ex-in-laws, she agreed to marry him [respondent] (ibid,
12-13, 16); in their marriage license, despite her

21
[complainant's] objection, he [respondent] wrote
"single" as her status explaining that since her
marriage was void ab initio, there was no need to go to
court to declare it as such (ibid, 14-15); they were
married before Judge Priscilla Mijares of the City Court
of Manila on June 14, 1977 (Exhibit A; tsn, July 7,
1986, pp. 16-17); Jason Terre was born of their union
on June 25, 1981 (Exhibit B, tsn, July 7, 1986, p. 18);
all through their married state up to the time he
[respondent] disappeared in 1981, complainant
supported respondent, in addition to the allowance the
latter was getting from his parents (ibid, pp. 19-20); she
was unaware of the reason for his disappearance until
she found out later that respondent married a certain
Vilma [sic] Malicdem (Exhibit C, tsn, July 7, 1986, pp.
21-22); she then filed a case for abandonment of minor
with the City Fiscal of Pasay City (ibid, p. 23) which
was subsequently filed before Branch II of the City
Court of Pasay City as Criminal Case No. 816159
(Exhibit D; tsn, July 7, 1986, p. 24); she likewise filed a
case for bigamy against respondent and Helina
Malicdem with the office of the Provincial Fiscal of
Pangasinan, where a prima facie case was found to
exist (Exhibit E; tsn, July 7, pp. 25-26); additionally,
complainant filed an administrative case against
respondent with the Commission on Audit where he
was employed, which case however was considered
closed for being moot and academic when respondent
was considered automatically separated from the
service for having gone on absence without official
leave (Exhibit F; tsn, July 7, 1986, pp. 28-29). 7
There is no dispute over the fact that complainant Dorothy
Terre and respondent Jordan Terre contracted marriage on 14
July 1977 before Judge Priscilla Mijares. There is further no
dispute over the fact that on 3 May 1981, respondent Jordan

Terre married Helina Malicdem in Dasol, Pangasinan. When

the second marriage was entered into, respondent's prior
marriage with complainant was subsisting, no judicial action
having been initiated or any judicial declaration obtained as to
the nullity of such prior marriage of respondent with
complainant.
Respondent Jordan Terre sought to defend himself by claiming
that he had believed in good faith that his prior marriage with
complainant Dorothy Terre was null and void ab initio and that
no action for a judicial declaration of nullity was necessary.
The Court considers this claim on the part of respondent
Jordan Terre as a spurious defense. In the first place,
respondent has not rebutted complainant's evidence as to the
basic facts which underscores the bad faith of respondent
Terre. In the second place, that pretended defense is the same
argument by which he had inveigled complainant into believing
that her prior marriage to Merlito A. Bercenilla being
incestuous and void ab initio (Dorothy and Merlito being
allegedly first cousins to each other), she was free to contract
a second marriage with the respondent. Respondent Jordan
Terre, being a lawyer, knew or should have known that such
an argument ran counter to the prevailing case law of this
Court which holds that for purposes of determining whether a
person is legally free to contract a second marriage, a judicial
declaration that the first marriage was null and void ab initio is
essential. 8 Even if we were to assume, arguendomerely, that
Jordan Terre held that mistaken belief in good faith, the same
result will follow. For if we are to hold Jordan Terre to his own
argument, his first marriage to complainant Dorothy Terre must
be deemed valid, with the result that his second marriage to
Helina Malicdem must be regarded as bigamous and criminal
in character.

22
That the moral character of respondent Jordan Terre was
deeply flawed is shown by other circumstances. As noted, he
convinced the complainant that her prior marriage to Bercenilla
was null and void ab initio, that she was still legally single and
free to marry him. When complainant and respondent had
contracted their marriage, respondent went through law school
while being supported by complainant, with some assistance
from respondent's parents. After respondent had finished his
law course and gotten complainant pregnant, respondent
abandoned the complainant without support and without the
wherewithal for delivering his own child safely in a hospital.
Thus, we agree with the Solicitor General that respondent
Jordan Terre, by his actions, "eloquently displayed, not only his
unfitness to remain as a member of the Bar, but likewise his
inadequacy to uphold the purpose and responsibility of his
gender" because marriage is a basic social institution. 9
In Pomperada v. Jochico, 10 the Court, in rejecting a petition to
be allowed to take the oath as a member of the Bar and to
sign the Roll of Attorneys, said through Mme. Justice
Melencio-Herrera:
It is evident that respondent fails to meet the standard
of moral fitness for membership in the legal profession.
Whether the marriage was a joke as respondent
claims, or a trick played on her as claimed by
complainant, it does not speak well of respondent's
moral values. Respondent had made a mockery of
marriage, a basic social institution which public policy
cherishes and protects (Article 216, Civil Code). 11
In Bolivar v. Simbol, 12 the Court found the respondent there
guilty of "grossly immoral conduct" because he made a dupe
of complainant, living on her bounty and allowing her to spend
for his schooling and other personal necessities while dangling

before her the mirage of a marriage, marrying another girl as

soon as he had finished his studies, keeping his marriage a
secret while continuing to demand money from complainant. . .
. ." The Court held such acts "indicative of a character not
worthy of a member of the Bar." 13
We believe and so hold that the conduct of respondent Jordan
Terre in inveigling complainant Dorothy Terre to contract a
second marriage with him; in abandoning complainant Dorothy
Terre after she had cared for him and supported him through
law school, leaving her without means for the safe delivery of
his own child; in contracting a second marriage with Helina
Malicdem while his first marriage with complainant Dorothy
Terre was subsisting, constituted "grossly immoral conduct"
under Section 27 of Rule 138 of the Rules of Court, affording
more than sufficient basis for disbarment of respondent Jordan
Terre. He was unworthy of admission to the Bar in the first
place. The Court will correct this error forthwith.
WHEREFORE, the Court Resolved to DISBAR respondent
Jordan Terre and to STRIKE OUT his name from the Roll of
Attorneys. A copy of this decision shall be spread on the
personal record of respondent Jordan Terre in the Bar
Confidant's Office. A copy of this resolution shall also be
furnished to the Integrated Bar of the Philippines and shall be
circularized to all the courts of the land.
SO ORDERED.
Narvasa, C.J., Gutierrez, Jr., Cruz, Paras, Feliciano, Padilla,
Bidin, Grio-Aquino, Medialdea, Regalado, Davide, Jr.,
Romero, Nocon and Bellosillo, JJ., concur.
Footnotes
1 Resolution, 16 June 1992. Rollo, p. 6.

23
2 Three (3) attempts were made by registered mail:
the first two (2), at respondent's address at Abelardo
Street, Cadiz City, Negros Occidental, and the third,
at respondent's employment address at Commission
on Audit, Cadiz City. Another attempt was made at
respondent's address at Bliss Project Daga, Cadig
City, through the assistance of the P.C. Command at
Bacolod City; and another at Lumbunao Calinog
Sugar Mill, Iloilo (Court's Resolution dated 24 April
1985, Rollo, p. 47).
3 Resolution, 24 April 1985. Rollo, p. 52.
4 Rollo, p. 53.
5 Id., p. 70.
6 In his Answer with Motion to Set Aside and/or Lift
Suspension Order, respondent Jordan Terre stated
his address as "c/o 4th Floor, PAIC Building, 105
Paseo de Roxas, Makati, Metro Manila." Court
papers sent to him at that address were, however,
returned unserved with the notation "not known at
given address" (Rollo, p. 63). It thus appears that
Jordan Terre once more submerged to evade service
of legal papers on him.
7 Rollo, p. 73.
8 Gomez v. Lipana, 33 SCRA 615 (1970); Vda. de
Consuegra v. Government Service Insurance
System, 37 SCRA 316 (1971); Wiegel v. Hon. Alicia
Sempio-Diy, etc., et al, 143 SCRA 499 (1986). This
rule has been cast into statutory form by Article 40 of
the Family Code (Executive Order No. 209, dated 6
July 1987).
9 Arroyo v. Court of Appeals, et al., G.R. Nos. 96602
and 96715, 19 November 1991.
10 133 SCRA 309 (1984).
11 133 SCRA at 316. See also Cordova v. Cordova,
179 SCRA 680 (1989) and Laguitan v. Tinio, 179
SCRA 837 (1989).
12 16 SCRA 623 (1966).
13 16 SCRA 630.

FIRST DIVISION

G.R. No. 109454 June 14, 1994

JOSE C. SERMONIA, petitioner,
vs.
HON. COURT OF APPEALS, Eleventh Division, HON.
DEOGRACIAS FELIZARDO, Presiding Judge, Regional
Trial Court of Pasig, Br. 151, and JOSEPH
SINSAY, respondents.
Quasha, Asperilla, Ancheta, Pea and Nolasco for petitioner.
Ponciano L. Escuadra for private respondent.

BELLOSILLO, J.:
Bigamy is an illegal marriage committed by contracting a
second or subsequent marriage before the first marriage has
been legally dissolved, or before the absent spouse has been
declared presumptively dead by means of a judgment
rendered in the proper proceedings. 1 Bigamy carries with it the
imposable penalty of prision mayor. Being punishable by an
afflictive penalty, this crime prescribes in fifteen (15)
years. 2 The fifteen-year prescriptive period commences to run
from the day on which the crime is discovered by the offended
party, the authorities, or their agents . . . 3
That petitioner contracted a bigamous marriage seems
impliedly admitted. 4 At least, it is not expressly denied. Thus
the only issue for resolution is whether his prosecution for
bigamy is already time-barred, which hinges on whether its
discovery is deemed to have taken place from the time the
offended party actually knew of the second marriage or from
the time the document evidencing the subsequent marriage

24
was registered with the Civil Registry consistent with the rule
on constructive notice.
The antecedents: In an information filed on 26 May 1992,
petitioner Jose C. Sermonia was charged with bigamy before
the Regional Trial Court of Pasig, Br. 151, for contracting
marriage with Ma. Lourdes Unson on 15 February 1975 while
his prior marriage to Virginia C. Nievera remained valid and
subsisting. 5
Petitioner moved to quash the information on the ground that
his criminal liability for bigamy has been extinguished by
prescription.
In the order of 1 October 1992, respondent judge denied the
motion to quash. On 27 October 1992, he likewise denied the
motion to reconsider his order of denial.
Petitioner challenged the above orders before the Court of
Appeals through a petition for certiorari and prohibition. In the
assailed decision of
21 January 1993, his petition was dismissed for lack of merit. 6
In this recourse, petitioner contends that his criminal liability for
bigamy has been obliterated by prescription. He avers that
since the second marriage contract was duly registered with
the Office of the Civil Registrar in 1975, 7such fact of
registration makes it a matter of public record and thus
constitutes notice to the whole world. The offended party
therefore is considered to have had constructive notice of the
subsequent marriage as of 1975; hence, prescription
commenced to run on the day the marriage contract was
registered. For this reason, the corresponding information for
bigamy should have been filed on or before 1990 and not only
in 1992.

Petitioner likewise takes issue with the "alleged concealment

of the bigamous marriage" as declared by the appellate court,
insisting that the second marriage was publicly held at Our
Lady of Nativity Church in Marikina on
15 February 1975, and adding for good measure that from the
moment of registration the marriage contract was open to
inspection by any interested person.
On the other hand, the prosecution maintains that the
prescriptive period does not begin from the commission of the
crime but from the time of discovery by complainant which was
in July 1991.
While we concede the point that the rule on constructive notice
in civil cases may be applied in criminal actions if the factual
and legal circumstances so warrant, 8 we agree with the view
expounded by the Court of Appeals that it cannot apply in the
crime of bigamy notwithstanding the possibility of its being
more favorable to the accused. The appellate court succinctly
explains
Argued by the petitioner is that the principle of
constructive notice should be applied in the case at bar,
principally citing in support of his stand, the cases
of People v. Reyes (175 SCRA 597); and People
v.Dinsay (40 SCRA 50).
This Court is of the view that the principle of
constructive notice should not be applied in regard to
the crime of bigamy as judicial notice may be taken of
the fact that a bigamous marriage is generally entered
into by the offender in secrecy from the spouse of the
previous subsisting marriage. Also, a bigamous
marriage is generally entered into in a place where the
offender is not known to be still a married person, in

25
order to conceal his legal impediment to contract
another marriage.
In the case of real property, the registration of any
transaction involving any right or interest therein is
made in the Register of Deeds of the place where the
said property is located. Verification in the office of the
Register of Deeds concerned of the transactions
involving the said property can easily be made by any
interested party. In the case of a bigamous marriage,
verification by the offended person or the authorities of
the same would indeed be quite difficult as such a
marriage may be entered into in a place where the
offender is not known to be still a married person.
Be it noted that in the criminal cases cited by the
petitioner wherein constructive notice was applied,
involved therein were land or property disputes and
certainly, marriage is not property.
The non-application to the crime of bigamy of the
principle of constructive notice is not contrary to the well
entrenched policy that penal laws should be construed
liberally in favor of the accused. To compute the
prescriptive period for the offense of bigamy from
registration thereof would amount to almost absolving
the offenders thereof for liability therefor. While the
celebration of the bigamous marriage may be said to be
open and made of public record by its registration, the
offender however is not truthful as he conceals from the
officiating authority and those concerned the existence
of his previous subsisting marriage. He does not reveal
to them that he is still a married person. He likewise
conceals from his legitimate spouse his bigamous
marriage. And for these, he contracts the bigamous
marriage in a place where he is not known to be still a

married person. And such a place may be anywhere,

under which circumstance, the discovery of the
bigamous marriage is rendered quite difficult and would
take time. It is therefore reasonable that the prescriptive
period for the crime of bigamy should be counted only
from the day on which the said crime was discovered by
the offended party, the authorities or their agency (sic).
Considering such concealment of the bigamous
marriage by the offender, if the prescriptive period for
the offense of bigamy were to be counted from the date
of registration thereof, the prosecution of the violators
of the said offense would almost be impossible. The
interpretation urged by the petitioner would encourage
fearless violations of a social institution cherished and
protected by law. 9
To this we may also add that the rule on constructive notice
will make de rigueur the routinary inspection or verification of
the marriages listed in the National Census Office and in
various local civil registries all over the country to make certain
that no second or even third marriage has been contracted
without the knowledge of the legitimate spouse. This is too
formidable a task to even contemplate.
More importantly, while Sec. 52 of P.D. 1529 (Property
Registration Decree) provides for constructive notice to all
persons of every conveyance, mortgage, lease, lien,
attachment, order, judgment, instrument or entry affecting
registered land filed or entered in the office of the Register of
Deeds for the province or city where the land to which it
relates lies from the time of such registering, filing or entering,
there is no counterpart provision either in Act
No. 3753 (Act to Establish a Civil Register) or in Arts. 407 to
413 of the Civil Code, which leads us to the conclusion that

26
there is no legal basis for applying the constructive notice rule
to the documents registered in the Civil Register.

Cruz, Davide, Jr., and Quiason, JJ., concur.

Kapunan, J., took no part.

Finally, petitioner would want us to believe that there was no

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

#Footnotes

1 Art. 349, The Revised Penal Code.

2 Art. 90, par. 3, id.
3 Art. 91, id.
4 Petitioner has not denied his coverture with
Virginia C. Nievera and has likewise presented
his marriage contract with Ma. Lourdes Unson
as Annex "K" to the petition.
5 Crim. Case No. 92582, RTC-Pasig.
6 Decision penned by Mme. Justice Gloria C.
Paras with Justices Luis L. Victor and Fermin A.
Martin, Jr., concurring, CA-G.R. SP No.
29495; Rollo, pp. 29-32.
7 Entry No. 1572, Bk. No. 36, pp. 96-97; Annex
"K", Rollo, p. 75.
8 People v. Reyes, G.R. Nos. 74226-27, 27 July
1989, 175 SCRA 597.
9 See Note 6, pp. 30-31.

27
10 Art. 352. Performance of illegal marriage
ceremony. Priests or ministers of any
religious denomination or sect, or civil
authorities who shall perform or authorize any
illegal marriage ceremony shall be punished in
accordance with the provisions of the Marriage
Law (The Revised Penal Code).

SECOND DIVISION
[G.R. No. 145226. February 06, 2004]

LUCIO MORIGO y CACHO, petitioner, vs. PEOPLE OF THE

PHILIPPINES, respondent.
DECISION
QUISUMBING, J.:
This petition for review on certiorari seeks to reverse the
decision[1] dated October 21, 1999 of the Court of Appeals in
CA-G.R. CR No. 20700, which affirmed the judgment [2]dated
August 5, 1996 of the Regional Trial Court (RTC) of Bohol,
Branch 4, in Criminal Case No. 8688. The trial court found
herein petitioner Lucio Morigo y Cacho guilty beyond
reasonable doubt of bigamy and sentenced him to a prison
term of seven (7) months of prision correccional as minimum
to six (6) years and one (1) day of prision mayor as maximum.
Also assailed in this petition is the resolution [3] of the appellate
court, dated September 25, 2000, denying Morigos motion for
reconsideration.
The facts of this case, as found by the court a quo, are as
follows:
AppellantLucioMorigoandLuciaBarretewereboardmatesatthe
houseofCatalinaTortoratTagbilaranCity,ProvinceofBohol,fora
periodoffour(4)years(from19741978).
Afterschoolyear197778,LucioMorigoandLuciaBarretelost
contactwitheachother.

28
In1984,LucioMorigowassurprisedtoreceiveacardfromLucia
BarretefromSingapore.Theformerrepliedandafteranexchangeof
letters,theybecamesweethearts.
In1986,LuciareturnedtothePhilippinesbutleftagainforCanada
toworkthere.WhileinCanada,theymaintainedconstant
communication.
In1990,LuciacamebacktothePhilippinesandproposedtopetition
appellanttojoinherinCanada.Bothagreedtogetmarried,thusthey
weremarriedonAugust30,1990attheIglesiadeFilipina
NacionalatCatagdaan,Pilar,Bohol.
OnSeptember8,1990,LuciareportedbacktoherworkinCanada
leavingappellantLuciobehind.
OnAugust19,1991,LuciafiledwiththeOntarioCourt(General
Division)apetitionfordivorceagainstappellantwhichwasgranted
bythecourtonJanuary17,1992andtotakeeffectonFebruary17,
1992.
OnOctober4,1992,appellantLucioMorigomarriedMariaJececha
Lumbago[4]attheVirgensaBarangayParish,TagbilaranCity,
Bohol.
OnSeptember21,1993,accusedfiledacomplaintforjudicial
declarationofnullityofmarriageintheRegionalTrialCourtof
Bohol,docketedasCivilCaseNo.6020.Thecomplaintseek(sic)
amongothers,thedeclarationofnullityofaccusedsmarriagewith
Lucia,onthegroundthatnomarriageceremonyactuallytookplace.
OnOctober19,1993,appellantwaschargedwithBigamyinan
Information[5]filedbytheCityProsecutorofTagbilaran[City],with
theRegionalTrialCourtofBohol.[6]

The petitioner moved for suspension of the arraignment

on the ground that the civil case for judicial nullification of his
marriage with Lucia posed a prejudicial question in the bigamy
case. His motion was granted, but subsequently denied upon
motion for reconsideration by the prosecution. When arraigned
in the bigamy case, which was docketed as Criminal Case No.
8688, herein petitioner pleaded not guilty to the charge. Trial
thereafter ensued.
On August 5, 1996, the RTC of Bohol handed down its
judgment in Criminal Case No. 8688, as follows:
WHEREFORE,foregoingpremisesconsidered,theCourtfinds
accusedLucioMorigoyCachoguiltybeyondreasonabledoubtof
thecrimeofBigamyandsentenceshimtosufferthepenaltyof
imprisonmentrangingfromSeven(7)MonthsofPrision
CorreccionalasminimumtoSix(6)YearsandOne(1)Day
ofPrisionMayorasmaximum.
SOORDERED.[7]
In convicting herein petitioner, the trial court discounted
petitioners claim that his first marriage to Lucia was null and
void ab initio. Following Domingo v. Court of Appeals,[8]the trial
court ruled that want of a valid marriage ceremony is not a
defense in a charge of bigamy. The parties to a marriage
should not be allowed to assume that their marriage is void
even if such be the fact but must first secure a judicial
declaration of the nullity of their marriage before they can be
allowed to marry again.
Anent the Canadian divorce obtained by Lucia, the trial
court cited Ramirez v. Gmur,[9] which held that the court of a
country in which neither of the spouses is domiciled and in
which one or both spouses may resort merely for the purpose
of obtaining a divorce, has no jurisdiction to determine the

29
matrimonial status of the parties. As such, a divorce granted
by said court is not entitled to recognition anywhere.
Debunking Lucios defense of good faith in contracting the
second marriage, the trial court stressed that following People
v. Bitdu,[10] everyone is presumed to know the law, and the fact
that one does not know that his act constitutes a violation of
the law does not exempt him from the consequences thereof.

The Court of Appeals also pointed out that the divorce

decree obtained by Lucia from the Canadian court could not
be accorded validity in the Philippines, pursuant to Article
15[13] of the Civil Code and given the fact that it is contrary to
public policy in this jurisdiction. Under Article 17 [14] of the Civil
Code, a declaration of public policy cannot be rendered
ineffectual by a judgment promulgated in a foreign jurisdiction.

Seasonably, petitioner filed an appeal with the Court of

Appeals, docketed as CA-G.R. CR No. 20700.

Petitioner moved for reconsideration of the appellate

courts decision, contending that the doctrine in Mendiola v.
People,[15] allows mistake upon a difficult question of law (such
as the effect of a foreign divorce decree) to be a basis for good
faith.

Meanwhile, on October 23, 1997, or while CA-G.R. CR

No. 20700 was pending before the appellate court, the trial
court rendered a decision in Civil Case No. 6020 declaring the
marriage between Lucio and Lucia void ab initio since no
marriage ceremony actually took place. No appeal was taken
from this decision, which then became final and executory.
On October 21, 1999, the appellate court decided CAG.R. CR No. 20700 as follows:
WHEREFORE,findingnoerrorintheappealeddecision,thesameis
herebyAFFIRMEDintoto.
SOORDERED.[11]
In affirming the assailed judgment of conviction, the
appellate court stressed that the subsequent declaration of
nullity of Lucios marriage to Lucia in Civil Case No. 6020
could not acquit Lucio. The reason is that what is sought to be
punished by Article 349[12] of the Revised Penal Code is the act
of contracting a second marriage before the first marriage had
been dissolved. Hence, the CA held, the fact that the first
marriage was void from the beginning is not a valid defense in
a bigamy case.

On September 25, 2000, the appellate court denied the

motion for lack of merit.[16] However, the denial was by a split
vote. The ponente of the appellate courts original decision in
CA-G.R. CR No. 20700, Justice Eugenio S. Labitoria, joined in
the opinion prepared by Justice Bernardo P. Abesamis. The
dissent observed that as the first marriage was validly
declared void ab initio, then there was no first marriage to
speak of. Since the date of the nullity retroacts to the date of
the first marriage and since herein petitioner was, in the eyes
of the law, never married, he cannot be convicted beyond
reasonable doubt of bigamy.
The present petition raises the following issues for our
resolution:
A.
WHETHERORNOTTHECOURTOFAPPEALSERREDIN
FAILINGTOAPPLYTHERULETHATINCRIMES
PENALIZEDUNDERTHEREVISEDPENALCODE,CRIMINAL
INTENTISANINDISPENSABLEREQUISITE.COROLLARILY,
WHETHERORNOTTHECOURTOFAPPEALSERREDIN

30
FAILINGTOAPPRECIATE[THE]PETITIONERSLACKOF
CRIMINALINTENTWHENHECONTRACTEDTHESECOND
MARRIAGE.
B.
WHETHERORNOTTHECOURTOFAPPEALSERREDIN
HOLDINGTHATTHERULINGINPEOPLEVS.BITDU(58
PHIL.817)ISAPPLICABLETOTHECASEATBAR.
C.
WHETHERORNOTTHECOURTOFAPPEALSERREDIN
FAILINGTOAPPLYTHERULETHATEACHANDEVERY
CIRCUMSTANCEFAVORINGTHEINNOCENCEOFTHE
ACCUSEDMUSTBETAKENINTOACCOUNT.[17]
To our mind, the primordial issue should be whether or not
petitioner committed bigamy and if so, whether his defense of
good faith is valid.
The petitioner submits that he should not be faulted for
relying in good faith upon the divorce decree of the Ontario
court. He highlights the fact that he contracted the second
marriage openly and publicly, which a person intent upon
bigamy would not be doing. The petitioner further argues that
his lack of criminal intent is material to a conviction or acquittal
in the instant case. The crime of bigamy, just like other felonies
punished under the Revised Penal Code, is mala in se, and
hence, good faith and lack of criminal intent are allowed as a
complete defense. He stresses that there is a difference
between the intent to commit the crime and the intent to
perpetrate the act. Hence, it does not necessarily follow that
his intention to contract a second marriage is tantamount to an
intent to commit bigamy.

For the respondent, the Office of the Solicitor General

(OSG) submits that good faith in the instant case is a
convenient but flimsy excuse. The Solicitor General relies
upon our ruling in Marbella-Bobis v. Bobis,[18] which held that
bigamy can be successfully prosecuted provided all the
elements concur, stressing that under Article 40[19] of the
Family Code, a judicial declaration of nullity is a must before a
party may re-marry. Whether or not the petitioner was aware of
said Article 40 is of no account as everyone is presumed to
know the law. The OSG counters that petitioners contention
that he was in good faith because he relied on the divorce
decree of the Ontario court is negated by his act of filing Civil
Case No. 6020, seeking a judicial declaration of nullity of his
marriage to Lucia.
Before we delve into petitioners defense of good faith and
lack of criminal intent, we must first determine whether all the
elements of bigamy are present in this case. In Marbella-Bobis
v. Bobis,[20] we laid down the elements of bigamy thus:
(1) the offender has been legally married;
(2) the first marriage has not been legally dissolved, or in
case his or her spouse is absent, the absent spouse
has not been judicially declared presumptively dead;
(3) he contracts a subsequent marriage; and
(4) the subsequent marriage would have been valid had
it not been for the existence of the first.
Applying the foregoing test to the instant case, we note
that during the pendency of CA-G.R. CR No. 20700, the RTC
of Bohol Branch 1, handed down the following decision in Civil
Case No. 6020, to wit:

31
WHEREFORE,premisesconsidered,judgmentisherebyrendered
decreeingtheannulmentofthemarriageenteredintobypetitioner
LucioMorigoandLuciaBarreteonAugust23,1990inPilar,Bohol
andfurtherdirectingtheLocalCivilRegistrarofPilar,Boholto
effectthecancellationofthemarriagecontract.

validity of the first marriage being an essential element of the

crime of bigamy, it is but logical that a conviction for said
offense cannot be sustained where there is no first marriage to
speak of. The petitioner, must, perforce be acquitted of the
instant charge.

SOORDERED.[21]

The present case is analogous to, but must be

distinguished from Mercado v. Tan.[25] In the latter case, the
judicial declaration of nullity of the first marriage was likewise
obtained after the second marriage was already celebrated.
We held therein that:

The trial court found that there was no actual marriage

ceremony performed between Lucio and Lucia by a
solemnizing officer. Instead, what transpired was a mere
signing of the marriage contract by the two, without the
presence of a solemnizing officer. The trial court thus held that
the marriage is void ab initio, in accordance with Articles
3[22] and 4[23]of the Family Code. As the dissenting opinion in
CA-G.R. CR No. 20700, correctly puts it, This simply means
that there was no marriage to begin with; and that such
declaration of nullity retroacts to the date of the first marriage.
In other words, for all intents and purposes, reckoned from the
date of the declaration of the first marriage as void ab initio to
the date of the celebration of the first marriage, the accused
was, under the eyes of the law, never married.[24] The records
show that no appeal was taken from the decision of the trial
court in Civil Case No. 6020, hence, the decision had long
become final and executory.
The first element of bigamy as a crime requires that the
accused must have been legally married. But in this case,
legally speaking, the petitioner was never married to Lucia
Barrete. Thus, there is no first marriage to speak of. Under the
principle of retroactivity of a marriage being declared void ab
initio, the two were never married from the beginning. The
contract of marriage is null; it bears no legal effect. Taking this
argument to its logical conclusion, for legal purposes,
petitioner was not married to Lucia at the time he contracted
the marriage with Maria Jececha. The existence and the

Ajudicialdeclarationofnullityofapreviousmarriageisnecessary
beforeasubsequentonecanbelegallycontracted.Onewhoenters
intoasubsequentmarriagewithoutfirstobtainingsuchjudicial
declarationisguiltyofbigamy.Thisprincipleappliesevenifthe
earlierunionischaracterizedbystatutesasvoid. [26]
It bears stressing though that in Mercado, the first
marriage was actually solemnized not just once, but twice: first
before a judge where a marriage certificate was duly issued
and then again six months later before a priest in religious
rites. Ostensibly, at least, the first marriage appeared to have
transpired, although later declared void ab initio.
In the instant case, however, no marriage ceremony at all
was performed by a duly authorized solemnizing officer.
Petitioner and Lucia Barrete merely signed a marriage contract
on their own. The mere private act of signing a marriage
contract bears no semblance to a valid marriage and thus,
needs no judicial declaration of nullity. Such act alone, without
more, cannot be deemed to constitute an ostensibly valid
marriage for which petitioner might be held liable for bigamy
unless he first secures a judicial declaration of nullity before he
contracts a subsequent marriage.

32
The law abhors an injustice and the Court is mandated to
liberally construe a penal statute in favor of an accused and
weigh every circumstance in favor of the presumption of
innocence to ensure that justice is done. Under the
circumstances of the present case, we held that petitioner has
not committed bigamy. Further, we also find that we need not
tarry on the issue of the validity of his defense of good faith or
lack of criminal intent, which is now moot and academic.
WHEREFORE, the instant petition is GRANTED. The
assailed decision, dated October 21, 1999 of the Court of
Appeals in CA-G.R. CR No. 20700, as well as the resolution of
the appellate court dated September 25, 2000, denying herein
petitioners motion for reconsideration, is REVERSED and SET
ASIDE. The petitioner Lucio Morigo y Cacho is ACQUITTED
from the charge of BIGAMY on the ground that his guilt has
not been proven with moral certainty.
SO ORDERED.
Puno,
(Chairman),
Sr., and Tinga, JJ., concur.

[1]

Austria-Martinez,

Callejo,

Rollo, pp. 38-44. Penned by Associate Justice Eugenio S. Labitoria

and concurred in by Associate Justices Marina L. Buzon and
Edgardo P. Cruz.

[2]

Records, pp. 114-119.

[3]

Rollo, pp. 46-58. Per Associate Justice Edgardo P. Cruz, with

Associate Justices Cancio C. Garcia and Marina L. Buzon,

concurring and Eugenio S. Labitoria and Bernardo P.

Abesamis, dissenting.
[4]

Her correct name is Maria Jececha Limbago (Italics for emphasis).

See Exh. B, the copy of their marriage contract. Records, p.
10.

[5]

The accusatory portion of the charge sheet found in Records, p. 1,

reads:

That, on or about the 4 th day of October, 1992, in the City of

Tagbilaran, Philippines, and within the jurisdiction of this
Honorable Court, the above-named accused being
previously united in lawful marriage with Lucia Barrete on
August 23, 1990 and without the said marriage having been
legally dissolved, did then and there willfully, unlawfully and
feloniously contract a second marriage with Maria Jececha
Limbago to the damage and prejudice of Lucia Barrete in the
amount to be proved during trial.
Acts committed contrary to the provisions of Article 349 of the
Revised Penal Code.
[6]

Rollo, pp. 38-40.

[7]

Records, p. 119.

[8]

G.R. No. 104818, 17 September 1993, 226 SCRA 572.

[9]

42 Phil. 855, 863 (1918).

[10]

58 Phil. 817 (1933).

[11]

Rollo, p. 43.

[12]

ART. 349. Bigamy. The penalty of prision mayor shall be imposed

upon any person who shall contract a second or subsequent
marriage before the former marriage has been legally

33
dissolved, or before the absent spouse has been declared
presumptively dead by means of a judgment rendered in the
proper proceedings.

[22]

Art. 3. The formal requisites of marriage are:

(1) Authority of the solemnizing officer;

[13]

Art. 15. Laws relating to family rights and duties, or to the status,
condition and legal capacity of persons are binding upon
citizens of the Philippines, even though living abroad.

(2) A valid marriage license except in the cases provided for in

Chapter 2 of this Title; and

[14]

Art. 17. The forms and solemnities of contracts, wills, and other
public instruments shall be governed by the laws of the
country in which they are executed.

(3) A marriage ceremony which takes place with the appearance of

the contracting parties before the solemnizing officer and
their personal declaration that they take each other as
husband and wife in the presence of not less than two
witnesses of legal age.

When the acts referred to are executed before the diplomatic or

consular officials of the Republic of the Philippines in a
foreign country, the solemnities established by Philippine
laws shall be observed in their execution.
Prohibitive laws concerning persons, their acts or property, and those
which have for their object public order, public policy and
good customs shall not be rendered ineffective by laws or
judgments promulgated, or by determinations or conventions
agreed upon in a foreign country.

[23]

Art. 4. The absence of any of the essential or formal requisites

shall render the marriage void ab initio, except as stated in
Article 35 (2).

A defect in any of the essential requisites shall render the marriage

voidable as provided in Article 45.

[15]

G.R. Nos. 89983-84, 6 March 1992, 207 SCRA 85.

An irregularity in the formal requisites shall not affect the validity of

the marriage but the party or parties responsible for the
irregularity shall be civilly, criminally and administratively
liable.

[16]

Rollo, p. 51.

[24]

Rollo, p. 54.

[17]

Id. at 20-21.

[25]

G.R. No. 137110, 1 August 2000, 337 SCRA 122.

[18]

G.R. No. 138509, 31 July 2000, 336 SCRA 747, 752-753.

[26]

Id. at 124.

[19]

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.

[20]

Supra.

[21]

CA Rollo, p. 38.

THIRD DIVISION
[G.R. No. 136467. April 6, 2000]

34
ANTONIA ARMAS Y CALISTERIO, petitioner,
vs. MARIETTA CALISTERIO, respondent.
DECISION
VITUG, J.:
On 24 April 1992, Teodorico Calisterio died intestate, leaving
several parcels of land with an estimated value of
P604,750.00. Teodorico was survived by his wife, herein
respondent Marietta Calisterio.
Teodorico was the second husband of Marietta who had
previously been married to James William Bounds on 13
January 1946 at Caloocan City. James Bounds disappeared
without a trace on 11 February 1947. Teodorico and Marietta
were married eleven years later, or on 08 May 1958, without
Marietta having priorly secured a court declaration that James
was presumptively dead.
On 09 October 1992, herein petitioner Antonia Armas y
Calisterio, a surviving sister of Teodorico, filed with the
Regional Trial Court ("RTC") of Quezon City, Branch 104, a
petition entitled, "In the Matter of Intestate Estate of the
Deceased Teodorico Calisterio y Cacabelos, Antonia Armas,
Petitioner," claiming to be inter alia, the sole surviving heir of
Teodorico Calisterio, the marriage between the latter and
respondent Marietta Espinosa Calisterio being allegedly
bigamous and thereby null and void. She prayed that her son
Sinfroniano C. Armas, Jr., be appointed administrator, without
bond, of the estate of the deceased and that the inheritance be
adjudicated to her after all the obligations of the estate would
have been settled.
Respondent Marietta opposed the petition. Marietta stated that
her first marriage with James Bounds had been dissolved due

to the latter's absence, his whereabouts being unknown, for

more than eleven years before she contracted her second
marriage with Teodorico. Contending to be the surviving
spouse of Teodorico, she sought priority in the administration
of the estate of the decedent.
On 05 February 1993, the trial court issued an order
appointing jointly Sinfroniano C. Armas, Jr., and respondent
Marietta administrator and administratrix, respectively, of the
intestate estate of Teodorico.
On 17 January 1996, the lower court handed down its decision
in favor of petitioner Antonia; it adjudged:
"WHEREFORE, judgment is hereby rendered
finding for the petitioner and against the
oppositor whereby herein petitioner, Antonia
Armas y Calisterio, is declared as the sole heir
of the estate of Teodorico Calisterio y
Cacabelos."[1]
Respondent Marietta appealed the decision of the trial court to
the Court of Appeals, formulating that"1. The trial court erred in applying the
provisions of the Family Code in the instant
case despite the fact that the controversy arose
when the New Civil Code was the law in force.
"2. The trial court erred in holding that the
marriage between oppositor-appellant and the
deceased Teodorico Calisterio is bigamous for
failure of the former to secure a decree of the
presumptive death of her first spouse.

35
"3. The trial court erred in not holding that the
property situated at No. 32 Batangas Street,
San Francisco del Monte, Quezon City, is the
conjugal property of the oppositor-appellant and
the deceased Teodorico Calisterio.
"4. The trial court erred in holding that
oppositor-appellant is not a legal heir of
deceased Teodorico Calisterio.
"5. The trial court erred in not holding that
letters of administration should be granted
solely in favor of oppositor-appellant."[2]
On 31 August 1998, the appellate court, through Mr. Justice
Conrado M. Vasquez, Jr., promulgated its now assailed
decision, thus:
"IN VIEW OF ALL THE FOREGOING, the
Decision appealed from is REVERSED AND
SET ASIDE, and a new one entered declaring
as follows:
"(a) Marietta Calisterio's marriage to Teodorico
remains valid;
"(b) The house and lot situated at #32 Batangas
Street, San Francisco del Monte, Quezon City,
belong to the conjugal partnership property with
the concomitant obligation of the partnership to
pay the value of the land to Teodorico's estate
as of the time of the taking;
"(c) Marietta Calisterio, being Teodorico's
compulsory heir, is entitled to one half of her
husband's estate, and Teodorico's sister, herein

petitioner Antonia Armas and her children, to

the other half;
"(d) The trial court is ordered to determine the
competence of Marietta E. Calisterio to act as
administrator of Teodorico's estate, and if so
found competent and willing, that she be
appointed as such; otherwise, to determine who
among the deceased's next of kin is competent
and willing to become the administrator of the
estate."[3]
On 23 November 1998, the Court of Appeals denied
petitioner's motion for reconsideration, prompting her to
interpose the present appeal. Petitioner asseverates:
"It is respectfully submitted that the decision of
the Court of Appeals reversing and setting aside
the decision of the trial court is not in accord
with the law or with the applicable decisions of
this Honorable Court."[4]
It is evident that the basic issue focuses on the validity of the
marriage between the deceased Teodorico and respondent
Marietta, that, in turn, would be determinative of her right as a
surviving spouse.
The marriage between the deceased Teodorico and
respondent Marietta was solemnized on 08 May 1958. The law
in force at that time was the Civil Code, not the Family Code
which took effect only on 03 August 1988. Article 256 of the
Family Code[5] itself limited its retroactive governance only to
cases where it thereby would not prejudice or impair vested or
acquired rights in accordance with the Civil Code or other
laws.

36
Verily, the applicable specific provision in the instant
controversy is Article 83 of the New Civil Code which
provides: Kyle
"Art. 83. Any marriage subsequently contracted by any
person during the lifetime of the first spouse of such
person with any person other than such first spouse
shall be illegal and void from its performance, unless:
"(1) The first marriage was annulled or dissolved; or
"(2) The first spouse had been absent for seven
consecutive years at the time of the second marriage
without the spouse present having news of the
absentee being alive, or if the absentee, though he has
been absent for less than seven years, is generally
considered as dead and believed to be so by the
spouse present at the time of contracting such
subsequent marriage, or if the absentee is presumed
dead according to articles 390 and 391. The marriage
so contracted shall be valid in any of the three cases
until declared null and void by a competent court."
Under the foregoing provisions, a subsequent marriage
contracted during the lifetime of the first spouse is illegal and
void ab initio unless the prior marriage is first annulled or
dissolved. Paragraph (2) of the law gives exceptions from the
above rule. For the subsequent marriage referred to in the
three exceptional cases therein provided, to be held valid, the
spouse present (not the absentee spouse) so contracting the
later marriage must have done so in good faith.[6] Bad faith
imports a dishonest purpose or some moral obliquity and
conscious doing of wrong - it partakes of the nature of fraud, a
breach of a known duty through some motive of interest or ill
will.[7] The Court does not find these circumstances to be here
extant.

A judicial declaration of absence of the absentee spouse is not

necessary[8] as long as the prescribed period of absence is
met. It is equally noteworthy that the marriage in these
exceptional cases are, by the explicit mandate of Article 83, to
be deemed valid "until declared null and void by a competent
court." It follows that the burden of proof would be, in these
cases, on the party assailing the second marriage.
In contrast, under the 1988 Family Code, in order that a
subsequent bigamous marriage may exceptionally be
considered valid, the following conditions must concur; viz.: (a)
The prior spouse of the contracting party must have been
absent for four consecutive years, or two years where there is
danger of death under the circumstances stated in Article 391
of the Civil Code at the time of disappearance; (b) the spouse
present has a well-founded belief that the absent spouse is
already dead; and (c) there is, unlike the old rule, a judicial
declaration of presumptive death of the absentee for which
purpose the spouse present can institute a summary
proceeding in court to ask for that declaration. The last
condition is consistent and in consonance with the requirement
of judicial intervention in subsequent marriages as so provided
in Article 41[9], in relation to Article 40,[10] of the Family Code.
In the case at bar, it remained undisputed that respondent
Marietta's first husband, James William Bounds, had been
absent or had disappeared for more than eleven years before
she entered into a second marriage in 1958 with the deceased
Teodorico Calisterio. This second marriage, having been
contracted during the regime of the Civil Code, should thus be
deemed valid notwithstanding the absence of a judicial
declaration of presumptive death of James Bounds.
The conjugal property of Teodorico and Marietta, no evidence
having been adduced to indicate another property regime
between the spouses, pertains to them in common. Upon its

37
dissolution with the death of Teodorico, the property should
rightly be divided in two equal portions -- one portion going to
the surviving spouse and the other portion to the estate of the
deceased spouse. The successional right in intestacy of a
surviving spouse over the net estate[11] of the deceased,
concurring with legitimate brothers and sisters or nephews and
nieces (the latter by right of representation), is one-half of the
inheritance, the brothers and sisters or nephews and nieces,
being entitled to the other half. Nephews and nieces, however,
can only succeed by right of representation in the presence of
uncles and aunts; alone, upon the other hand, nephews and
nieces can succeed in their own right which is to say that
brothers or sisters exclude nephews and nieces except only in
representation by the latter of their parents who predecease or
are incapacitated to succeed. The appellate court has thus
erred in granting, in paragraph (c) of the dispositive portion of
its judgment, successional rights, to petitioner's children, along
with their own mother Antonia who herself is invoking
successional rights over the estate of her deceased brother.
WHEREFORE, the assailed judgment of the Coin of Appeals
in CA G.R. CV No. 51574 is AFFIRMED except insofar only as
it decreed in paragraph (c) of the dispositive portion thereof
that the children of petitioner are likewise entitled, along with
her, to the other half of the inheritance, in lieu of which, it is
hereby DECLARED that said one-half share of the decedent's
estate pertains solely to petitioner to the exclusion of her own
children. No costs.
SO ORDERED.
Melo, (Chairman), Panganiban, Purisima, and GonzagaReyes, JJ., concur.

[1]

Rollo, p. 45.
Rollo, pp. 29-30.
[3]
Rollo, pp. 35-36.
[4]
Rollo, p. 15.
[5]
Article 256. This Code shall have retroactive effect insofar as it
does not prejudice or impair vested or acquired rights in accordance
with the Civil Code or other laws.
[6]
The good faith or bad faith of the other contracting party to the
subsequent marriage is not all that consequential (See Lapuz Sy vs.
Eufemio, 43 SCRA 177).
[7]
Commissioner of Internal Revenue vs. Court of Appeals, 267
SCRA 557.
[8]
Jones vs. Hortiguela, 64 Phil. 179.
[2]

[9]

Article 41. A marriage contracted by any person during the

subsistence of a previous marriage shall be null and void, unless
before the celebration of the subsequent marriage, the prior spouse
had been absent for four consecutive years and the spouse present
had a well-founded belief that the absent spouse was already dead. In
case of disappearance where there is danger of death under the
circumstances set forth in the provisions of Article 391 of the civil
code, an absence of only two years shall be sufficient.
For the purpose of contracting the subsequent marriage under the
preceding paragraph, the spouse present must institute a summary
proceeding as provided in this Code for the declaration of
presumptive death of the absentee, without prejudice to the effect of
reappearance of the absent spouse.
[10]
Article 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.
[11]
First deducting to her favor her one-half share of the conjugal
property.

38
THIRD DIVISION

G.R. No. 94053 March 17, 1993

REPUBLIC OF THE PHILIPPINES, petitioner,
vs.
GREGORIO NOLASCO, respondent.
The Solicitor General for plaintiff-appellee.
Warloo G. Cardenal for respondent.
RESOLUTION
FELICIANO, J.:
On 5 August 1988, respondent Gregorio Nolasco filed before
the Regional Trial Court of Antique, Branch 10, a petition for
the declaration of presumptive death of his wife Janet Monica
Parker, invoking Article 41 of the Family Code. The petition
prayed that respondent's wife be declared presumptively dead
or, in the alternative, that the marriage be declared null and
void. 1
The Republic of the Philippines opposed the petition through
the Provincial Prosecutor of Antique who had been deputized
to assist the Solicitor-General in the instant case. The Republic
argued, first, that Nolasco did not possess a "well-founded
belief that the absent spouse was already dead," 2 and second,
Nolasco's attempt to have his marriage annulled in the same
proceeding was a "cunning attempt" to circumvent the law on
marriage. 3

During trial, respondent Nolasco testified that he was a

seaman and that he had first met Janet Monica Parker, a
British subject, in a bar in England during one of his ship's port
calls. From that chance meeting onwards, Janet Monica
Parker lived with respondent Nolasco on his ship for six (6)
months until they returned to respondent's hometown of San
Jose, Antique on 19 November 1980 after his seaman's
contract expired. On 15 January 1982, respondent married
Janet Monica Parker in San Jose, Antique, in Catholic rites
officiated by Fr. Henry van Tilborg in the Cathedral of San
Jose.
Respondent Nolasco further testified that after the marriage
celebration, he obtained another employment contract as a
seaman and left his wife with his parents in San Jose, Antique.
Sometime in January 1983, while working overseas,
respondent received a letter from his mother informing him
that Janet Monica had given birth to his son. The same letter
informed him that Janet Monica had left Antique. Respondent
claimed he then immediately asked permission to leave his
ship to return home. He arrived in Antique in November 1983.
Respondent further testified that his efforts to look for her
himself whenever his ship docked in England proved fruitless.
He also stated that all the letters he had sent to his missing
spouse at No. 38 Ravena Road, Allerton, Liverpool, England,
the address of the bar where he and Janet Monica first met,
were all returned to him. He also claimed that he inquired from
among friends but they too had no news of Janet Monica.
On cross-examination, respondent stated that he had lived
with and later married Janet Monica Parker despite his lack of
knowledge as to her family background. He insisted that his
wife continued to refuse to give him such information even
after they were married. He also testified that he did not report

39
the matter of Janet Monica's disappearance to the Philippine
government authorities.
Respondent Nolasco presented his mother, Alicia Nolasco, as
his witness. She testified that her daughter-in-law Janet
Monica had expressed a desire to return to England even
before she had given birth to Gerry Nolasco on 7 December
1982. When asked why her daughter-in-law might have
wished to leave Antique, respondent's mother replied that
Janet Monica never got used to the rural way of life in San
Jose, Antique. Alicia Nolasco also said that she had tried to
dissuade Janet Monica from leaving as she had given birth to
her son just fifteen days before, but when she (Alicia) failed to
do so, she gave Janet Monica P22,000.00 for her expenses
before she left on 22 December 1982 for England. She further
claimed that she had no information as to the missing person's
present whereabouts.
The trial court granted Nolasco's petition in a Judgment dated
12 October 1988 the dispositive portion of which reads:
Wherefore, under Article 41, paragraph 2 of the Family
Code of the Philippines (Executive Order No. 209, July
6, 1987, as amended by Executive Order No. 227, July
17, 1987) this Court hereby declares as presumptively
dead Janet Monica Parker Nolasco, without prejudice
to her reappearance. 4
The Republic appealed to the Court of Appeals contending
that the trial court erred in declaring Janet Monica Parker
presumptively dead because respondent Nolasco had failed to
show that there existed a well founded belief for such
declaration.

The Court of Appeals affirmed the trial court's decision, holding

that respondent had sufficiently established a basis to form a
belief that his absent spouse had already died.
The Republic, through the Solicitor-General, is now before this
Court on a Petition for Review where the following allegations
are made:
1. The Court of Appeals erred in affirming the trial
court's finding that there existed a well-founded belief
on the part of Nolasco that Janet Monica Parker was
already dead; and
2. The Court of Appeals erred in affirming the trial
Court's declaration that the petition was a proper case
of the declaration of presumptive death under Article
41, Family Code. 5
The issue before this Court, as formulated by petitioner is
"[w]hether or not Nolasco has a well-founded belief that his
wife is already dead." 6
The present case was filed before the trial court pursuant to
Article 41 of the Family Code which provides that:
Art. 41. A marriage contracted by any person during the
subsistence of a previous marriage shall be null and
void, unless before the celebration of the subsequent
marriage, the prior spouse had been absent for four
consecutive years and the spouse present had a wellfounded belief that the absent spouse was already
dead. In case of disappearance where there is danger
of death under the circumstances set forth in the
provision of Article 391 of the Civil Code, an absence of
only two years shall be sufficient.

40
For the purpose of contracting the subsequent
marriage under the preceding paragraph, the spouse
present must institute a summary proceeding as
provided in this Code for the declaration of presumptive
death of the absentee, without prejudice to the effect of
reappearance of the absent spouse. (Emphasis
supplied).
When Article 41 is compared with the old provision of the Civil
Code, which it superseded, 7 the following crucial differences
emerge. Under Article 41, the time required for the
presumption to arise has been shortened to four (4) years;
however, there is need for a judicial declaration of presumptive
death to enable the spouse present to remarry. 8 Also, Article
41 of the Family Code imposes a stricter standard than the
Civil Code: Article 83 of the Civil Code merely requires either
that there be no news that such absentee is still alive; or the
absentee is generally considered to be dead and believed to
be so by the spouse present, or is presumed dead under
Article 390 and 391 of the Civil Code. 9 The Family Code, upon
the other hand, prescribes as "well founded belief" that the
absentee is already dead before a petition for declaration of
presumptive death can be granted.
As pointed out by the Solicitor-General, there are four (4)
requisites for the declaration of presumptive death under
Article 41 of the Family Code:
1. That the absent spouse has been missing for
four consecutive years, or two consecutive
years if the disappearance occurred where
there is danger of death under the
circumstances laid down in Article 391, Civil
Code;
2. That the present spouse wishes to remarry;

3. That the present spouse has a well-founded

belief that the absentee is dead; and
4. That the present spouse files a summary
proceeding for the declaration of presumptive
death of the absentee. 10
Respondent naturally asserts that he had complied with all
these requirements. 11
Petitioner's argument, upon the other hand, boils down to this:
that respondent failed to prove that he had complied with the
third requirement, i.e., the existence of a "well-founded belief"
that the absent spouse is already dead.
The Court believes that respondent Nolasco failed to conduct
a search for his missing wife with such diligence as to give rise
to a "well-founded belief" that she is dead.
United States v. Biasbas, 12 is instructive as to degree of
diligence required in searching for a missing spouse. In that
case, defendant Macario Biasbas was charged with the crime
of bigamy. He set-up the defense of a good faith belief that his
first wife had already died. The Court held that defendant had
not exercised due diligence to ascertain the whereabouts of
his first wife, noting that:
While the defendant testified that he had made
inquiries concerning the whereabouts of his
wife, he fails to state of whom he made such
inquiries. He did not even write to the parents of
his first wife, who lived in the Province of
Pampanga, for the purpose of securing
information concerning her whereabouts. He
admits that he had a suspicion only that his first
wife was dead. He admits that the only basis of

41
his suspicion was the fact that she had been
absent. . . . 13
In the case at bar, the Court considers that the investigation
allegedly conducted by respondent in his attempt to ascertain
Janet Monica Parker's whereabouts is too sketchy to form the
basis of a reasonable or well-founded belief that she was
already dead. When he arrived in San Jose, Antique after
learning of Janet Monica's departure, instead of seeking the
help of local authorities or of the British Embassy, 14 he
secured another seaman's contract and went to London, a
vast city of many millions of inhabitants, to look for her there.
Q After arriving here in San Jose, Antique, did you
exert efforts to inquire the whereabouts of your wife?
A Yes, Sir.
Court:
How did you do that?
A I secured another contract with the ship and we had
a trip to London and I went to London to look for her I
could not find her (sic). 15 (Emphasis supplied)
Respondent's testimony, however, showed that he confused
London for Liverpool and this casts doubt on his supposed
efforts to locate his wife in England. The Court of Appeal's
justification of the mistake, to wit:
. . . Well, while the cognoscente (sic) would readily
know the geographical difference between London and
Liverpool, for a humble seaman like Gregorio the two
places could mean one place in England, the port
where his ship docked and where he found Janet. Our

own provincial folks, every time they leave home to visit

relatives in Pasay City, Kalookan City, or Paraaque,
would announce to friends and relatives, "We're going
to Manila." This apparent error in naming of places of
destination does not appear to be fatal. 16
is not well taken. There is no analogy between Manila and its
neighboring cities, on one hand, and London and Liverpool, on
the other, which, as pointed out by the Solicitor-General, are
around three hundred fifty (350) kilometers apart. We do not
consider that walking into a major city like Liverpool or London
with a simple hope of somehow bumping into one particular
person there which is in effect what Nolasco says he did
can be regarded as a reasonably diligent search.
The Court also views respondent's claim that Janet Monica
declined to give any information as to her personal
background even after she had married respondent 17 too
convenient an excuse to justify his failure to locate her. The
same can be said of the loss of the alleged letters respondent
had sent to his wife which respondent claims were all returned
to him. Respondent said he had lost these returned letters,
under unspecified circumstances.
Neither can this Court give much credence to respondent's
bare assertion that he had inquired from their friends of her
whereabouts, considering that respondent did not identify
those friends in his testimony. The Court of Appeals ruled that
since the prosecutor failed to rebut this evidence during trial, it
is good evidence. But this kind of evidence cannot, by its
nature, be rebutted. In any case, admissibility is not
synonymous with credibility. 18 As noted before, there are
serious doubts to respondent's credibility. Moreover, even if
admitted as evidence, said testimony merely tended to show
that the missing spouse had chosen not to communicate with
their common acquaintances, and not that she was dead.

42
Respondent testified that immediately after receiving his
mother's letter sometime in January 1983, he cut short his
employment contract to return to San Jose, Antique. However,
he did not explain the delay of nine (9) months from January
1983, when he allegedly asked leave from his captain, to
November 1983 when be finally reached San Jose.
Respondent, moreover, claimed he married Janet Monica
Parker without inquiring about her parents and their place of
residence. 19 Also, respondent failed to explain why he did not
even try to get the help of the police or other authorities in
London and Liverpool in his effort to find his wife. The
circumstances of Janet Monica's departure and respondent's
subsequent behavior make it very difficult to regard the
claimed belief that Janet Monica was dead a well-founded
one.
In Goitia v. Campos-Rueda, 20 the Court stressed that:
. . . Marriage is an institution, the maintenance of which
in its purity the public is deeply interested. It is a
relationship for life and the parties cannot terminate it
at any shorter period by virtue of any contract they
make. . . . . 21 (Emphasis supplied)
By the same token, the spouses should not be allowed, by the
simple expedient of agreeing that one of them leave the
conjugal abode and never to return again, to circumvent the
policy of the laws on marriage. The Court notes that
respondent even tried to have his marriage annulled before
the trial court in the same proceeding.
In In Re Szatraw, 22 the Court warned against such collusion
between the parties when they find it impossible to dissolve
the marital bonds through existing legal means.

While the Court understands the need of respondent's young

son, Gerry Nolasco, for maternal care, still the requirements of
the law must prevail. Since respondent failed to satisfy the
clear requirements of the law, his petition for a judicial
declaration of presumptive death must be denied. The law
does not view marriage like an ordinary contract. Article 1 of
the Family Code emphasizes that.
. . . Marriage is a special contract of permanent
union between a man and a woman entered into in
accordance with law for the establishment of conjugal
and family life. It is the foundation of the familyand
an inviolable social institution whose nature,
consequences, and incidents are governed by law
and not subject to stipulation, except that marriage
settlements may fix the property relations during the
marriage within the limits provided by this Code.
(Emphasis supplied)
In Arroyo, Jr. v. Court of Appeals, 23 the Court stressed strongly
the need to protect.
. . . the basic social institutions of marriage and the
family in the preservation of which the State bas the
strongest interest; the public policy here involved is of
the most fundamental kind. In Article II, Section 12 of
the Constitution there is set forth the following basic
state policy:
The State recognizes the sanctity of family life
and shall protect and strengthen the family as a
basic autonomous social institution. . . .
The same sentiment bas been expressed in the Family
Code of the Philippines in Article 149:

43
The family, being the foundation of the nation, is
a basic social institution which public policy
cherishes and protects. Consequently, family
relations are governed by law and no custom,
practice or agreement destructive of the family
shall be recognized or given effect. 24
In fine, respondent failed to establish that he had the wellfounded belief required by law that his absent wife was already
dead that would sustain the issuance of a court order declaring
Janet Monica Parker presumptively dead.
WHEREFORE, the Decision of the Court of Appeals dated 23
February 1990, affirming the trial court's decision declaring
Janet Monica Parker presumptively dead is hereby
REVERSED and both Decisions are hereby NULLIFIED and
SET ASIDE. Costs against respondent.
Bidin, Davide, Jr., Romero and Melo, JJ., concur.
Gutierrez, Jr. J., is on leave.
# Footnotes
1 Petition, p. 2; Record, p. 7.
2 Records, p. 13.
3 Records, p. 14.
4 Trial Court Decision, p. 4; Records, p. 39.
5 Petition, p. 9; Rollo, p. 13.
6 Id.
7 Pertinent portions of Article 83 of the Civil
Code reads:
Art. 83. Any marriage subsequently contracted
by any person during the lifetime of the first
spouse of such person with any other person
other than such first spouse shall be illegal and
void from its performance, unless:
xxx xxx xxx

(2) The first spouse had been absent for seven

consecutive years at the time of the second
marriage without the spouse present having
news of the absentee being alive, or if the
absentee, though he has been absent for less
than seven years, is generally considered as
dead and believed to be so by the spouse
present at the time of the contracting such
subsequent marriage, or if the absentee is
presumed dead according to articles 390 and
391. The marriage so contracted shall be valid
in any of the three cases until declared null and
void by a competent court.
8 See A. V. Sempio Diy, Handbook on the
Family Code of the Philippines (1988),
p. 48.
9 See generally Jones v. Hortiguela, 64 Phil.
179 (1937).
10 Petition, p. 11; Rollo; p. 15.
11 Memorandum for Respondent, p. 4.
12 25 Phil. 71 (1913).
13 25 Phil. at 73.
14 TSN, 28 September 1988, p. 16.
15 Id., p. 8.
16 Court of Appeal's Decision, p. 6.
17 TSN, 28 September 1988, p. 14.
18 See generally Ramos v. Sandiganbayan,
191 SCRA 671 (1990).
19 TSN, 28 September 1988, p. 10.
20 35 Phil. 252 (1919).
21 35 Phil. at 254.
22 81 Phil. 461 (1948).
23 203 SCRA 750 (1991).
24 203 SCRA at 761.

44
SECOND DIVISION
REPUBLIC
OF
PHILIPPINES,
Petitioner,

- versus -

YOLANDA CADACIO
GRANADA,
Respondent.

THE

G. R. No. 187512
Present:
CARPIO, J., Chairperson,
BRION,
PEREZ,
SERENO, and
REYES, JJ.
Promulgated:
June 13, 2012

x-----------------------------------x
DECISION
SERENO, J.:
This is a Rule 45 Petition seeking the reversal of the Resolutions
dated 23 January 2009[1] and 3 April 2009[2] issued by the Court of
Appeals (CA), which affirmed the grant by the Regional Trial Court
(RTC) of the Petition for Declaration of Presumptive Death of the
absent spouse of respondent.
In May 1991, respondent Yolanda Cadacio Granada
(Yolanda) met Cyrus Granada (Cyrus) at Sumida Electric
Philippines,
an
electronics
company in Paranaque where both were then working. The two
eventually got married at the Manila City Hall on 3 March 1993.
Their marriage resulted in the birth of their son, Cyborg Dean
Cadacio Granada.

Sometime in May 1994, when Sumida Electric Philippines

closed down, Cyrus went to Taiwan to seek employment. Yolanda
claimed that from that time, she had not received any communication
from her husband, notwithstanding efforts to locate him. Her brother
testified that he had asked the relatives of Cyrus regarding the latters
whereabouts, to no avail.
After nine (9) years of waiting, Yolanda filed a Petition to
have Cyrus declared presumptively dead. The Petition was raffled to
Presiding Judge Avelino Demetria of RTC Branch 85, Lipa City, and
was docketed as Sp. Proc. No. 2002-0530.
On 7 February 2005, the RTC rendered a Decision declaring
Cyrus as presumptively dead.
On 10 March 2005, petitioner Republic of the Philippines,
represented by the Office of the Solicitor General (OSG), filed a
Motion for Reconsideration of this Decision. Petitioner argued that
Yolanda had failed to exert earnest efforts to locate Cyrus and thus
failed to prove her well-founded belief that he was already dead.
However, in an Order dated 29 June 2007, the RTC denied the
motion.
Petitioner filed a Notice of Appeal to elevate the case to the
CA, presumably under Rule 41, Section 2(a) of the Rules of Court.
Yolanda filed a Motion to Dismiss on the ground that the CA had no
jurisdiction over the appeal. She argued that her Petition for
Declaration of Presumptive Death, based on Article 41 of the Family
Code,
was
a
summary
judicial
proceeding,
in which the judgment is immediately final and executory and, thus,
not appealable.
In its 23 January 2009 Resolution, the appellate court
granted Yolandas Motion to Dismiss on the ground of lack of
jurisdiction. Citing Republic v. Bermudez-Lorino,[3] the CA ruled that
a petition for declaration of presumptive death under Rule 41 of the

45
Family Code is a summary proceeding. Thus, judgment thereon is
immediately final and executory upon notice to the parties.
Petitioner moved for reconsideration, but its motion was
likewise denied by the CA in a Resolution dated 3 April 2009. [4]
Hence, the present Rule 45 Petition.
Issues
1.
Whether the CA seriously erred
in dismissing the Petition on the ground that the
Decision of the RTC in a summary proceeding for
the declaration of presumptive death is immediately
final and executory upon notice to the parties and,
hence, is not subject to ordinary appeal
2.
Whether the CA seriously erred
in affirming the RTCs grant of the Petition for
Declaration of Presumptive Death under Article 41
of the Family Code based on the evidence that
respondent presented

death for the purpose of remarriage is a summary judicial proceeding

under the Family Code. Hence, the RTC Decision therein is
immediately final and executory upon notice to the parties, by
express provision of Article 247 of the same Code. The decision is
therefore not subject to ordinary appeal, and the attempt to question
it through a Notice of Appeal is unavailing.
We affirm the CA ruling.
Article 41 of the Family Code provides:
Art. 41. A marriage contracted by any person during
the subsistence of a previous marriage shall be null
and void, unless before the celebration of the
subsequent marriage, the prior spouse had been
absent for four consecutive years and the spouse
present has a well-founded belief that the absent
spouse was already dead. In case of disappearance
where there is danger of death under the
circumstances set forth in the provisions of Article
391 of the Civil Code, an absence of only two years
shall be sufficient.

Our Ruling
1. On whether the CA seriously erred in dismissing
the Petition on the ground that the Decision of the
RTC in a summary proceeding for the declaration of
presumptive death is immediately final and executory
upon notice to the parties and, hence, is not subject to
ordinary appeal
In the assailed Resolution dated 23 January 2009, the CA
dismissed the Petition assailing the RTCs grant of the Petition for
Declaration of Presumptive Death of the absent spouse under Article
41 of the Family Code. Citing Republic v. Bermudez-Lorino,[5] the
appellate court noted that a petition for declaration of presumptive

For the purpose of contracting the

subsequent marriage under the preceding paragraph
the spouse present must institute a summary
proceeding as provided in this Code for the
declaration of presumptive death of the absentee,
without prejudice to the effect of reappearance of the
absent spouse. (Underscoring supplied.)
Clearly, a petition for declaration of presumptive death of an
absent spouse for the purpose of contracting a subsequent marriage
under Article 41 of the Family Code is a summary proceeding as
provided for under the Family Code.

46
Further, Title XI of the Family Code is entitled Summary
Judicial Proceedings in the Family Law. Subsumed thereunder are
Articles 238 and 247, which provide:
Art. 238. Until modified by the Supreme Court, the
procedural rules in this Title shall apply in all cases
provided for in this Code requiring summary court
proceedings. Such cases shall be decided in an
expeditious manner without regard to technical
rules.
xxx xxx xxx
Art. 247. The judgment of the court shall be
immediately final and executory.
Further, Article 253 of the Family Code reads:
ART. 253. The foregoing rules in Chapters 2 and 3
hereof shall likewise govern summary proceedings
filed under Articles 41, 51, 69, 73, 96, 124 and 217,
insofar as they are applicable.
Taken together, Articles 41, 238, 247 and 253 of the Family
Code provide that since a petition for declaration of presumptive
death is a summary proceeding, the judgment of the court therein
shall be immediately final and executory.
In Republic v. Bermudez-Lorino,[6] the Republic likewise
appealed the CAs affirmation of the RTCs grant of respondents
Petition for Declaration of Presumptive Death of her absent spouse.
The Court therein held that it was an error for the Republic to file a
Notice of Appeal when the latter elevated the matter to the CA, to
wit:

In Summary Judicial Proceedings under the

Family Code, there is no reglementary period within
which to perfect an appeal, precisely because
judgments rendered thereunder, by express provision
of Section 247, Family Code, supra, are immediately
final and executory.
xxx xxx xxx
But, if only to set the records straight and for
the future guidance of the bench and the bar, let it be
stated that the RTCs decision dated November 7,
2001, was immediately final and executory upon
notice to the parties. It was erroneous for the OSG to
file a notice of appeal, and for the RTC to give due
course thereto. The Court of Appeals acquired no
jurisdiction over the case, and should have dismissed
the appeal outright on that ground.
Justice (later Chief Justice) Artemio Panganiban, who
concurred in the result reached by the Court in Republic v.
Bermudez-Lorino, additionally opined that what the OSG should
have filed was a petition for certiorari under Rule 65, not a petition
for review under Rule 45.
In the present case, the Republic argues that BermudezLorino has been superseded by the subsequent Decision of the Court
in Republic v. Jomoc,[7] issued a few months later.
In Jomoc, the RTC granted respondents Petition for
Declaration of Presumptive Death of her absent husband for the
purpose of remarriage. Petitioner Republic appealed the RTC
Decision by filing a Notice of Appeal. The trial court disapproved the
Notice
of
Appeal
on
the
ground
that,
under
the Rules of Court,[8] a record on appeal is required to be filed when

47
appealing special proceedings cases. The CA affirmed the RTC
ruling. In reversing the CA, this Court clarified that while an action
for declaration of death or absence under Rule 72, Section 1(m),
expressly falls under the category of special proceedings, a petition
for declaration of presumptive death under Article 41 of the Family
Code is a summary proceeding, as provided for by Article 238 of the
same Code. Since its purpose was to enable her to contract a
subsequent valid marriage, petitioners action was a summary
proceeding based on Article 41 of the Family Code, rather than a
special proceeding under Rule 72 of the Rules of Court. Considering
that this action was not a special proceeding, petitioner
was not required to file a record on appeal when it appealed the RTC
Decision to the CA.
We do not agree with the Republics argument that Republic
v. Jomoc superseded our ruling in Republic v. Bermudez-Lorino. As
observed by the CA, the Supreme Court in Jomoc did not expound
on the characteristics of a summary proceeding under the Family
Code. In contrast, the Court in Bermudez-Lorino expressly stated that
its ruling on the impropriety of an ordinary appeal as a vehicle for
questioning the trial courts Decision in a summary proceeding for
declaration of presumptive death under Article 41 of the Family
Code was intended to set the records straight and for the future
guidance of the bench and the bar.
At any rate, four years after Jomoc, this Court settled the rule
regarding appeal of judgments rendered in summary proceedings
under the Family Code when it ruled in Republic v. Tango:[9]
This case presents an opportunity for us to
settle the rule on appeal of judgments rendered in
summary proceedings under the Family Code and
accordingly, refine our previous decisions thereon.
Article 238 of the Family Code, under Title
XI: SUMMARY JUDICIAL PROCEEDINGS IN

THE FAMILY LAW, establishes the rules that

govern summary court proceedings in the Family
Code:
ART. 238. Until modified by the
Supreme Court, the procedural rules
in this Title shall apply in all cases
provided for in this Code requiring
summary court proceedings. Such
cases shall be decided in an
expeditious manner without regard
to technical rules.
In turn, Article 253 of the Family Code
specifies the cases covered by the rules in chapters
two and three of the same title. It states:
ART. 253. The foregoing rules in
Chapters 2 and 3 hereof shall
likewise
govern
summary
proceedings filed under Articles 41,
51, 69, 73, 96, 124 and 217, insofar
as they are applicable. (Emphasis
supplied.)
In plain text, Article 247 in Chapter 2 of the
same title reads:
ART 247. The judgment of the court
shall be immediately final and
executory.
By express provision of law, the judgment of
the court in a summary proceeding shall be
immediately final and executory. As a matter of
course, it follows that no appeal can be had of the

48
trial court's judgment in a summary proceeding for
the declaration of presumptive death of an absent
spouse under Article 41 of the Family Code. It goes
without saying, however, that an aggrieved party
may file a petition for certiorari to question abuse of
discretion amounting to lack of jurisdiction. Such
petition should be filed in the Court of Appeals in
accordance with the Doctrine of Hierarchy of
Courts. To be sure, even if the Court's original
jurisdiction to issue a writ of certiorari is concurrent
with the RTCs and the Court of Appeals in certain
cases, such concurrence does not sanction an
unrestricted freedom of choice of court forum. From
the decision of the Court of Appeals, the losing party
may then file a petition for review on certiorari
under Rule 45 of the Rules of Court with the
Supreme Court. This is because the errors which the
court may commit in the exercise of jurisdiction are
merely errors of judgment which are the proper
subject of an appeal.
In sum, under Article 41 of the Family Code, the losing party
in a summary proceeding for the declaration of presumptive death
may file a petition for certiorari with the CA on the ground that, in
rendering judgment thereon, the trial court committed grave abuse of
discretion amounting to lack of jurisdiction. From the decision of the
CA, the aggrieved party may elevate the matter to this Court via a
petition for review on certiorari under Rule 45 of the Rules of Court.
Evidently then, the CA did not commit any error in
dismissing the Republics Notice of Appeal on the ground that the
RTC judgment on the Petition for Declaration of Presumptive Death
of respondents spouse was immediately final and executory and,
hence, not subject to ordinary appeal.

2.
On whether the CA seriously erred in affirming
the RTCs grant of the Petition for Declaration of
Presumptive Death under Article 41 of the Family
Code based on the evidence that respondent had
presented
Petitioner also assails the RTCs grant of the Petition for
Declaration of Presumptive Death of the absent spouse of respondent
on the ground that she had not adduced the evidence required to
establish a well-founded belief that her absent spouse was already
dead, as expressly required by Article 41 of the Family Code.
Petitioner cites Republic v. Nolasco,[10] United States v.
Biasbas[11] and Republic v. Court of Appeals and Alegro[12] as
authorities on the subject.
In Nolasco, petitioner Republic sought the reversal of the
CAs affirmation of the RTCs grant of respondents Petition for
Declaration of Presumptive Death of his absent spouse, a British
subject who left their home in the Philippines soon after giving birth
to their son while respondent was on board a vessel working as a
seafarer. Petitioner Republic sought the reversal of the ruling on the
ground that respondent was not able to establish
his well-founded belief that the absentee is already dead, as required
by Article 41 of the Family Code. In ruling thereon, this Court
recognized that this provision imposes more stringent requirements
than does Article 83 of the Civil Code. [13] The Civil Code provision
merely requires either that there be no news that the absentee is still
alive; or that the absentee is generally considered to be dead and is
believed to be so by the spouse present, or is presumed dead under
Articles 390 and 391 of the Civil Code. In comparison, the Family
Code provision prescribes a well-founded belief that the absentee is
already dead before a petition for declaration of presumptive death
can be granted. As noted by the Court in that case, the four requisites
for the declaration of presumptive death under the Family Code are
as follows:

49
1. That the absent spouse has been missing for four
consecutive years, or two consecutive years if
the disappearance occurred where there is
danger of death under the circumstances laid
down in Article 391, Civil Code;
2. That the present spouse wishes to remarry;
3. That the present spouse has a well-founded belief
that the absentee is dead; and
4. That the present spouse files a summary
proceeding for the declaration of presumptive
death of the absentee.
In evaluating whether the present spouse has been able to
prove the existence of a well-founded belief that the absent spouse is
already dead, the Court in Nolasco cited United States v. Biasbas,
[14]
which it found to be instructive as to the diligence required in
searching for a missing spouse.
In Biasbas, the Court held that defendant Biasbas failed to
exercise due diligence in ascertaining the whereabouts of his first
wife, considering his admission that that he only had a suspicion that
she was dead, and that the only basis of that suspicion was the fact of
her absence.
Similarly, in Republic v. Court of Appeals and Alegro,
petitioner Republic sought the reversal of the CA ruling affirming the
RTCs grant of the Petition for Declaration of Presumptive Death of
the absent spouse on the ground that the respondent therein had not
been able to prove a well-founded belief that his spouse was already
dead. The Court reversed the CA, granted the Petition, and provided
the following criteria for determining the existence of a well-founded
belief under Article 41 of the Family Code:
For the purpose of contracting the
subsequent marriage under the preceding paragraph,

the spouse present must institute a summary

proceeding as provided in this Code for the
declaration of presumptive death of the absentee,
without prejudice to the effect of reappearance of the
absent spouse.
The spouse present is, thus, burdened to
prove that his spouse has been absent and that he has
a well-founded belief that the absent spouse is
already dead before the present spouse may contract
a subsequent marriage. The law does not define what
is meant by a well-grounded belief. Cuello Callon
writes that es menester que su creencia sea firme se
funde en motivos racionales.
Belief is a state of the mind or condition
prompting the doing of an overt act. It may be
proved by direct evidence or circumstantial evidence
which may tend, even in a slight degree, to elucidate
the inquiry or assist to a determination probably
founded in truth. Any fact or circumstance relating
to the character, habits, conditions, attachments,
prosperity and objects of life which usually control
the conduct of men, and are the motives of their
actions, was, so far as it tends to explain or
characterize their disappearance or throw light on
their intentions, competence [sic] evidence on the
ultimate question of his death.
The belief of the present spouse must be the
result of proper and honest to goodness inquiries and
efforts to ascertain the whereabouts of the absent
spouse and whether the absent spouse is still alive or
is already dead. Whether or not the spouse present
acted
on
a
well-founded
belief
of
death of the absent spouse depends upon the

50
inquiries to be drawn from a great many
circumstances occurring before and after the
disappearance of the absent spouse and the nature
and extent of the inquiries made by present spouse.
(Footnotes omitted, underscoring supplied.)
Applying the foregoing standards to the present case,
petitioner points out that respondent Yolanda did not initiate a
diligent search to locate her absent husband. While her brother
Diosdado Cadacio testified to having inquired about the whereabouts
of Cyrus from the latters relatives, these relatives were not presented
to corroborate Diosdados testimony. In short, respondent was
allegedly not diligent in her search for her husband. Petitioner argues
that if she were, she would have sought information from the
Taiwanese Consular Office or assistance from other government
agencies in Taiwan or the Philippines. She could have also utilized
mass media for this end, but she did not. Worse, she failed to explain
these omissions.
The Republics arguments are well-taken. Nevertheless, we
are constrained to deny the Petition.
The RTC ruling on the issue of whether respondent was able
to prove her well-founded belief that her absent spouse was already
dead prior to her filing of the Petition to declare him presumptively
dead is already final and can no longer be modified or reversed.
Indeed, [n]othing is more settled in law than that when a judgment
becomes final and executory, it becomes immutable and unalterable.
The same may no longer be modified in any respect, even if the
modification is meant to correct what is perceived to be an erroneous
conclusion of fact or law.[15]
WHEREFORE, premises considered, the assailed
Resolutions of the Court of Appeals dated 23 January 2009 and 3
April 2009 in CA-G.R. CV No. 90165 are AFFIRMED.

SO ORDERED.
MARIA LOURDES P. A. SERENO
Associate Justice

[1]

Rollo, pp. 30-33. The Court of Appeals Fifth Division Decision in

CA-G.R. CV No. 90165 was penned by Justice Remedios A. SalazarFernando and concurred in by Justices Jose C. Reyes, Jr. and
Normandie B. Pizarro.
[2]

[3]

[4]

[5]

Rollo, pp. 35-36.

489 Phil. 761 (2005).
Rollo, pp. 35-36.
Supra note 3.

[6]

Supra note 3.

[7]

497 Phil. 528 (2005).

[8]

The case cited Rule 41, Sec. 2(a), which reads:

SEC. 2. Modes of appeal.
(a)
Ordinary appeal.The appeal to the
Court of Appeals in cases decided by the Regional
Trial Court in the exercise of its original
jurisdiction shall be taken by filing a notice of
appeal with the court which rendered the judgment

51
or final order appealed from and serving a copy
thereof upon the adverse party. No record on appeal
shall be required except in special proceedings and
other cases of multiple or separate appeals where the
law or these Rules so require. In such cases, the
record -on appeal shall be filed and served in like
manner. (Underscoring supplied.)
[9]

G.R. No. 161062, 31 July 2009, 594 SCRA 560.

[10]

G.R. No. 94053, 17 March 1993, 220 SCRA 20.

[11]

25 Phil. 71 (1913).

[12]

513 Phil. 391 (2005).

[13]

Art. 83. Any marriage subsequently contracted by any person

during the lifetime of the first spouse of such person with any person
other than such first spouse shall be illegal and void from its
performance, unless:
(1) The first marriage was annulled or dissolved; or
(2) The first spouse had been absent for seven consecutive
years at the time of the second marriage without the spouse
present having news of the absentee being alive, or if the
absentee, though he has been absent for less than seven
years, is generally considered as dead and believed to be so
by the spouse present at the time of contracting such
subsequent marriage, or if the absentee is presumed dead
according to Articles 390 and 391. The marriage so
contracted shall be valid in any of the three cases until
declared null and void by a competent court.

[14]

The case originated from a bigamy suit against defendant Biasbas,

whose defense was that he contracted a second marriage on the good
faith belief that his first wife was already dead.
[15]

Chan-Tan v. Tan, G.R. No. 167139, 25 February 2010, 613 SCRA

592.

52
THIRD DIVISION

SOCIAL SECURITY
SYSTEM, Petitioner,

G.R. No. 165545

Present:
QUISUMBING, Chairperson,*
CARPIO, Acting Chairperson,
CARPIO MORALES, and
TINGA, JJ.

-versus-

TERESITA JARQUE VDA.

DE BAILON,

Promulgated:

Respondent.

March 24, 2006

x--------------------------------------------x

DECISION

CARPIO MORALES, J.:

The Court of Appeals Decision[1] dated June 23, 2004[2] and

Resolution dated September 28, 2004[3] reversing the Resolution
dated April 2, 2003[4] and Order dated June 4, 2003 [5] of the Social

53
Security Commission (SSC) in SSC Case No. 4-15149-01 are
challenged in the present petition for review on certiorari.
Close to 13 years after his wife Alice was declared
presumptively dead or on August 8, 1983, Bailon contracted
marriage with Teresita Jarque (respondent) in Casiguran, Sorsogon.
On April 25, 1955, Clemente G. Bailon (Bailon) and Alice P.
Diaz (Alice) contracted marriage in Barcelona, Sorsogon.[6]

More than 15 years later or on October 9, 1970, Bailon filed

before the then Court of First Instance (CFI) of Sorsogon a
petition[7] to declare Alice presumptively dead.

[8]

By Order of December 10, 1970, the CFI granted the

petition, disposing as follows:

WHEREFORE, there being no opposition

filed against the petition notwithstanding the
publication of the Notice of Hearing in a newspaper
of general circulation in the country, Alice Diaz is
hereby declared to [sic] all legal intents and
purposes,
except
for
those
of
succession, presumptively dead.

SO ORDERED.[9] (Underscoring supplied)

[10]

On January 30, 1998, Bailon, who was a member of the

Social Security System (SSS) since 1960 and a retiree pensioner
thereof effective July 1994, died.[11]

Respondent thereupon filed a claim for funeral benefits, and

was granted P12,000[12] by the SSS.

Respondent filed on March 11, 1998 an additional claim for

death benefits[13] which was also granted by the SSS on April 6,
1998.[14]

Cecilia Bailon-Yap (Cecilia), who claimed to be a daughter

of Bailon and one Elisa Jayona (Elisa) contested before the SSS the
release to respondent of the death and funeral benefits. She claimed
that Bailon contracted three marriages in his lifetime, the first
with Alice, the second with her mother Elisa, and the third with
respondent, all of whom are still alive; she, together with her
siblings, paid for Bailons medical and funeral expenses; and all the
documents submitted by respondent to the SSS in support of her
claims are spurious.

54

In support of her claim, Cecilia and her sister Norma Bailon

Chavez (Norma) submitted an Affidavit dated February 13,
1999[15] averring that they are two of nine children of Bailon and
Elisa who cohabited as husband and wife as early as 1958; and they
were reserving their right to file the necessary court action to contest
the marriage between Bailon and respondent as they personally know
that Alice is still very much alive.[16]

1. Aliz [sic] Diaz never disappeared. The

court must have been misled by misrepresentation in
declaring the first wife, Aliz [sic] Diaz, as
presumptively dead.

xxxx
In the meantime, on April 5, 1999, a certain Hermes P. Diaz,
claiming to be the brother and guardian of Aliz P. Diaz, filed before
the SSS a claim for death benefits accruing from Bailons death, [17] he
further attesting in a sworn statement [18] that it was Norma who
defrayed Bailons funeral expenses.

x x x the Order of the court in the Petition to

Declare Alice Diaz Presumptively Dead, did not
become final. The presence of Aliz [sic] Diaz, is
contrary proof that rendered it invalid.
xxxx

Elisa and seven of her children[19] subsequently filed claims

for death benefits as Bailons beneficiaries before the SSS. [20]

Atty. Marites C. de la Torre of the Legal Unit of the SSS

Bicol Cluster, Naga City recommended the cancellation of payment
of death pension benefits to respondent and the issuance of an order
for the refund of the amount paid to her from February 1998 to May
1999 representing such benefits; the denial of the claim of Alice on
the ground that she was not dependent upon Bailon for support
during his lifetime; and the payment of the balance of the five-year
guaranteed pension toBailons beneficiaries according to the order of
preference provided under the law, after the amount erroneously paid
to respondent has been collected. The pertinent portions of the
Memorandum read:

3. It was the deceased member who

abandoned his wife, Aliz [sic] Diaz. He, being in
bad faith, and is the deserting spouse, his remarriage
is void, being bigamous.

xxxx

In this case, it is the deceased member who

was the deserting spouse and who remarried, thus

55
his marriage to Teresita Jarque, for the second time
was void as it was bigamous. To require affidavit of
reappearance to terminate the second marriage is not
necessary as there is no disappearance of Aliz [ sic]
Diaz, the first wife, and a voidable marriage [sic], to
speak of.[21] (Underscoring supplied)

before any court of justice as bigamous or unlawful, hence, it

remained valid and subsisting for all legal intents and purposes as in
fact Bailon designated her as his beneficiary.

The SSS, however, by letter to respondent dated January 21,

2000,[26] maintained the denial of her claim for and the
discontinuance of payment of monthly pension. It advised her,
however, that she was not deprived of her right to file a petition with
the SSC.
In the meantime, the SSS Sorsogon Branch, by letter
of August 16, 2000,[22] advised respondent that as Cecilia and Norma
were the ones who defrayed Bailons funeral expenses, she should
return the P12,000 paid to her.

In a separate letter dated September 7, 1999, [23] the SSS

advised respondent of the cancellation of her monthly pension for
death benefits in view of the opinion rendered by its legal department
that her marriage with Bailon was void as it was contracted while the
latters marriage with Alice was still subsisting; and the December 10,
1970 CFI Order declaring Alice presumptively dead did not become
final, her presence being contrary proof against the validity of the
order. It thus requested respondent to return the amount of P24,000
representing the total amount of monthly pension she had received
from the SSS from February 1998 to May 1999.

Respondent protested the cancellation of her monthly

pension for death benefits by letter to the SSS dated October 12,
1999.[24] In a subsequent letter dated November 27, 1999 [25] to the
SSC, she reiterated her request for the release of her monthly
pension, asserting that her marriage with Bailon was not declared

Respondent thus filed a petition[27] against the SSS before the

SSC for the restoration to her of her entitlement to monthly pension.

In the meantime, respondent informed the SSS that she was

returning, under protest, the amount of P12,000 representing the
funeral benefits she received, she alleging that Norma and her
siblings forcibly and coercively prevented her from spending any
amount during Bailons wake.[28]

After the SSS filed its Answer[29] to respondents petition, and

the parties filed their respective Position Papers, one Alicia P. Diaz
filed an Affidavit[30] dated August 14, 2002 with the SSS Naga
Branch attesting that she is the widow of Bailon; she had only
recently come to know of the petition filed by Bailon to declare her
presumptively dead; it is not true that she disappeared as Bailon
could have easily located her, she having stayed at her parents
residence in Barcelona, Sorsogon after she found out that Bailon was

56
having an extramarital affair; and Bailon used to visit her even after
their separation.
SO ORDERED.[31] (Underscoring supplied)
By Resolution of April 2, 2003, the SSC found that the
marriage of respondent to Bailon was void and, therefore, she was
just a common-law-wife. Accordingly it disposed as follows,
quoted verbatim:

WHEREFORE, this Commission finds,

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

Accordingly, the petitioner is hereby ordered

to refund to the SSS the amount of P24,000.00
representing the death benefit she received
therefrom for the period February 1998 until May
1999 as well as P12,000.00 representing the funeral
benefit.

The SSS is hereby ordered to pay Alice

(a.k.a. Aliz) Diaz-Bailon the appropriate death
benefit arising from the demise of SSS member
Clemente Bailon in accordance with Section 8(e)
and (k) as well as Section 13 of the SS Law, as
amended, and its prevailing rules and regulations
and to inform this Commission of its compliance
herewith.

In so ruling against respondent, the SSC ratiocinated.

After a thorough examination of the

evidence at hand, this Commission comes to the
inevitable conclusion that the petitioner is not the
legitimate wife of the deceased member.

xxxx

There is x x x ample evidence pointing to

the fact that, contrary to the declaration of the then
CFI of Sorsogon (10th Judicial District), the first
wife never disappeared as the deceased member
represented in bad faith. This Commission
accords credence to the findings of the SSS
contained in its Memorandum dated August 9, 1999,
[32]
revealing that Alice (a.k.a. Aliz) Diaz never left
Barcelona, Sorsogon, after her separation from
Clemente Bailon x x x.

57
As the declaration of presumptive death was
extracted by the deceased member using artifice and
by exerting fraud upon the unsuspecting court of
law, x x x it never had the effect of giving the
deceased member the right to marry anew. x x x [I]t
is clear that the marriage to the petitioner is void,
considering that the first marriage on April 25, 1955
to Alice Diaz was not previously annulled,
invalidated or otherwise dissolved during the
lifetime of the parties thereto. x x x as determined
through the investigation conducted by the SSS,
Clemente Bailon was the abandoning spouse, not
Alice Diaz Bailon.

received from the SSS for the period from February

1998 until May 1999 pursuant to the principle
of solutio indebiti x x x

Likewise, it appearing that she was not the

one who actually defrayed the cost of the wake and
burial of Clemente Bailon, she must return the
amount of P12,000.00 which was earlier given to
her by the SSS as funeral benefit.[33] (Underscoring
supplied)

xxxx

It having been established, by substantial

evidence, that the petitioner was just a common-law
wife of the deceased member, it necessarily follows
that she is not entitled as a primary beneficiary, to
the latters death benefit. x x x

Respondents Motion for Reconsideration[34] having been

denied by Order of June 4, 2003, she filed a petition for
review[35] before the Court of Appeals (CA).

By Decision of June 23, 2004, the CA reversed and set aside

the April 2, 2003 Resolution and June 4, 2003 Order of the SSC and
thus ordered the SSS to pay respondent all the pension benefits due
her. Held the CA:

xxxx

It having been determined that Teresita

Jarque was not the legitimate surviving spouse and
primary beneficiary of Clemente Bailon, it behooves
her to refund the total amount of death benefit she

x x x [T]he paramount concern in this case

transcends the issue of whether or not the decision
of the then CFI, now RTC, declaring Alice Diaz
presumptively dead has attained finality but, more
importantly, whether or not the respondents SSS and
Commission can validly re-evaluate the findings of

58
the RTC, and on its own, declare the latters decision
to be bereft of any basis. On similar import, can
respondents SSS and Commission validly declare
the first marriage subsisting and the second marriage
null and void?

xxxx

x x x while it is true that a judgment

declaring a person presumptively dead never attains
finality as the finding that the person is unheard of
in seven years is merely a presumption juris tantum,
the second marriage contracted by a person with an
absent spouse endures until annulled. It is only the
competent court that can nullify the second
marriage pursuant to Article 87 of the Civil Code
and upon the reappearance of the missing spouse,
which action for annulment may be filed. Nowhere
does the law contemplates [sic] the possibility that
respondent SSS may validly declare the second
marriage null and void on the basis alone of its own
investigation and declare that the decision of the
RTC declaring one to be presumptively dead is
without basis.

Respondent SSS cannot arrogate upon

itself the authority to review the decision of the
regular courts under the pretext of determining the
actual
and
lawful
beneficiaries
of
its
members. Notwithstanding its opinion as to the

soundness of the findings of the RTC, it should

extend due credence to the decision of the RTC
absent of [sic] any judicial pronouncement to the
contrary. x x x

x x x [A]ssuming arguendo that respondent

SSS actually possesses the authority to declare the
decision of the RTC to be without basis, the
procedure it followed was offensive to the principle
of fair play and thus its findings are of doubtful
quality considering that petitioner Teresita was not
given ample opportunity to present evidence for and
her behalf.

xxxx

Respondent SSS is correct in stating that the

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

However, it is not correct to conclude that

simply because the filing of the Affidavit of

59
Reappearance with the Civil Registry where parties
to the subsequent marriage reside is already inutile,
the respondent SSS has now the authority to review
the decision of the RTC and consequently declare
the second marriage null and void.[36] (Emphasis and
underscoring supplied)

THE HONORABLE COURT OF APPEALS

GRAVELY
ABUSED
ITS
DISCRETION
AMOUNTING TO LACK OF JURISDICTION.[39]

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

Hence, the SSS present petition

certiorari[38] anchored on the following grounds:

for

review

The SSS faults the CA for failing to give due consideration

to the findings of facts of the SSC on the prior and subsisting
marriage between Bailon and Alice; in disregarding the authority of
the SSC to determine to whom, between Alice and respondent, the
death benefits should be awarded pursuant to Section 5 [40] of the
Social Security Law; and in declaring that the SSS did not give
respondent due process or ample opportunity to present evidence in
her behalf.

on
The SSS submits that the observations and findings relative
to the CFI proceedings are of no moment to the present controversy,
as the same may be considered only as obiter dicta in view of the
SSCs finding of the existence of a prior and subsisting marriage
between Bailon and Alice by virtue of which Alice has a better right
to the death benefits.[41]

THE DECISION OF THE HONORABLE COURT

OF APPEALS IS CONTRARY TO LAW.
The petition fails.
II
That the SSC is empowered to settle any dispute with respect
to SSS coverage, benefits and contributions, there is no doubt. In so
exercising such power, however, it cannot review, much less reverse,
decisions rendered by courts of law as it did in the case at bar when it

60
declared that the December 10, 1970 CFI Order was obtained
through fraud and subsequently disregarded the same, making its
own findings with respect to the validity of Bailon and Alices
marriage on the one hand and the invalidity of Bailon and
respondents marriage on the other.

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

The two marriages involved herein having been solemnized

prior to the effectivity on August 3, 1988 of the Family Code, the
applicable law to determine their validity is the Civil Code which
was the law in effect at the time of their celebration. [42]

Article 83 of the Civil Code[43] provides:

Art. 83. Any marriage subsequently

contracted by any person during the lifetime of the
first spouse of such person with any person other
than such first spouse shall be illegal and void from
its performance, unless:

(1) The first marriage was annulled or

dissolved; or

(2) The first spouse had been absent for

seven consecutive years at the time of the second
marriage without the spouse present having news of
the absentee being alive, or if the absentee, though
he has been absent for less than seven years, is
generally considered as dead and believed to be so
by the spouse present at the time of contracting such
subsequent marriage, or if the absentee is presumed
dead
according
to
Articles
390 and
391. The marriage so contracted shall be valid in
any of the three cases until declared null and void by
a competent court. (Emphasis and underscoring
supplied)

Under the foregoing provision of the Civil Code, a

subsequent marriage contracted during the lifetime of the first
spouse is illegal and void ab initio unless the prior marriage is first
annulled or dissolved or contracted under any of the three
exceptional circumstances. It bears noting that the marriage under
any of these exceptional cases is deemed valid until declared null
and void by a competent court. It follows that the onus probandi in
these cases rests on the party assailing the second marriage. [44]

In the case at bar, as found by the CFI, Alice had been

absent for 15 consecutive years [45] when Bailon sought the

61
declaration of her presumptive death, which judicial declaration was
not even a requirement then for purposes of remarriage. [46]

Under the Family Code, no judicial proceeding to annul a

subsequent marriage is necessary. Thus Article 42 thereof provides:

Eminent jurist Arturo M. Tolentino (now deceased)

commented:

Art. 42. The subsequent marriage referred to

in the preceding Article shall be automatically
terminated by the recording of the affidavit of
reappearance of the absent spouse, unless there is a
judgment annulling the previous marriage or
declaring it void ab initio.

Where a person has entered into two

successive marriages, a presumption arises in favor of
the validity of the second marriage, and the burden is
on the party attacking the validity of the second
marriage to prove that the first marriage had not been
dissolved; it is not enough to prove the first marriage,
for it must also be shown that it had not ended when
the second marriage was contracted. The presumption
in favor of the innocence of the defendant from crime
or wrong and of the legality of his second marriage,
will prevail over the presumption of the continuance
of life of the first spouse or of the continuance of the
marital
relation
with
such
first
spouse.
[47]
(Underscoring supplied)

Under the Civil Code, a subsequent marriage being

voidable,[48] it is terminated by final judgment of annulment in a case
instituted by the absent spouse who reappears or by either of the
spouses in the subsequent marriage.

A sworn statement of the fact and

circumstances of reappearance shall be recorded in
the civil registry of the residence of the parties to the
subsequent marriage at the instance of any interested
person, with due notice to the spouses of the
subsequent marriage and without prejudice to the
fact of reappearance being judicially determined in
case such fact is disputed. (Emphasis and
underscoring supplied)

The termination of the subsequent marriage by affidavit

provided by the above-quoted provision of the Family Code does
not preclude the filing of an action in court to prove the
reappearance of the absentee and obtain a declaration of dissolution
or termination of the subsequent marriage. [49]

62

If the absentee reappears, but no step is taken to terminate

the subsequent marriage, either by affidavit or by court action,
such absentees mere reappearance, even if made known to the
spouses in the subsequent marriage, will not terminate such
marriage.[50] Since the second marriage has been contracted because
of a presumption that the former spouse is dead, such presumption
continues inspite of the spouses physical reappearance, and
by fiction of law, he or she must still be regarded as legally an
absentee until the subsequent marriage is terminated as provided by
law.[51]

If the subsequent marriage is not terminated by registration

of an affidavit of reappearance or by judicial declaration but
by death of either spouse as in the case at bar, Tolentino submits:

x x x [G]enerally if a subsequent marriage is

dissolved by the death of either spouse, the effects
of dissolution of valid marriages shall arise. The
good or bad faith of either spouse can no longer be
raised,
because,
as in
annullable
or voidable marriages, the marriage cannot be
questioned except in a direct action for annulment.
[52]
(Underscoring supplied)

Similarly, Lapuz v. Eufemio[53] instructs:

In fact, even if the bigamous marriage had

not been void ab initio but only voidable under
Article 83, paragraph 2, of the Civil Code, because
the second marriage had been contracted with the
first wife having been an absentee for seven
consecutive years, or when she had been generally
believed dead, still the action for annulment became
extinguished as soon as one of the three persons
involved had died, as provided in Article 87,
paragraph 2, of the Code, requiring that the action
for annulment should be brought during the
lifetime of any one of the parties involved. And
furthermore, the liquidation of any conjugal
partnership that might have resulted from
such voidable marriage must be carried out in the
testate or intestate proceedings of the deceased
spouse, as expressly provided in Section 2 of the
Revised Rule 73, and not in the annulment
proceeding.[54] (Emphasis
and
underscoring
supplied)

It bears reiterating that a voidable marriage cannot be assailed

collaterally except in a direct proceeding. Consequently, such
marriages can be assailed only during the lifetime of the parties and
not after the death of either, in which case the parties and their
offspring will be left as if the marriage had been perfectly valid.
[55]
Upon the death of either, the marriage cannot be impeached, and is
made good ab initio.[56]

63
In the case at bar, as no step was taken to nullify, in
accordance with law, Bailons and respondents marriage prior to
the formers death in 1998, respondent is rightfully the dependent
spouse-beneficiary of Bailon.

In light of the foregoing discussions, consideration of the

other issues raised has been rendered unnecessary.

On Official Leave.

[1]

Penned by Justice Remedios A. Salazar-Fernando and concurred in

by Justices Mariano C. del Castillo and Edgardo F. Sundiam.

[2]

CA rollo, pp. 147-157.

[3]

Id. at 195.

[4]

Id. at 47-55.

[5]

Id. at 56.

[6]

SSC records, p. 112.

[7]

Id. at 65-67.

[8]

CA rollo, pp. 6-9.

[9]

Id. at 8-9.

WHEREFORE, the petition is DENIED.

No costs.

SO ORDERED.

[10]

SSC records, p. 127.

[11]

CA rollo, p. 11.

[12]

SSC records, p. 48.

[13]

Ibid.

[14]

Id. at 96-97.

[15]

Id. at 55.

CONCHITA CARPIO MORALES

Associate Justice

64
[16]

Ibid.

[17]

Id. at 109.

[18]

Id. at 110.

[19]

Herminia Bailon-Argente, Cecilia Bailon-Yap, Norma BailonChavez,

Roselyn Bailon-Ladesma,
Susan
J.
Bailon, Charito Bailon-Soriano, and Clemente J. Bailon, Jr.

[20]

SSC records, pp. 113-120.

[21]

[22]

[23]

[24]

[25]

[26]

[27]

Id. at 135-136.
Id. at 137.
Id. at 124.
Id. at 125.
Id. at 129-130.
Id. at 134.
CA rollo, pp. 12-14.

[28]

SSC records, p. 149.

[29]

CA rollo, pp. 15-19.

[30]

Id. at 144.

[31]

Rollo, pp. 56-57.

[32]

Pertinent portions of the Memorandum provide:

xxxx
1. Based on the interview conducted by our Account
Officer, Mr. Rolando G. Gomez to [sic] the relatives of Alice
(not Aliz) Diaz namely: Rogelio Del Prado and Emelita Diaz
at Poblacion Sur, Barcelona, Sorsogon they alleged that subject
deceased member and Alice live [sic] as husband and wife for
only a year. Alice never left Barcelona, Sorsogon since their
separation and is not dependent for support nor received support
from the deceased member. x x x
[33]

Rollo, pp. 53-56.

[34]

SSC records, pp. 172-174.

[35]

CA rollo, pp. 2-5.

[36]

Rollo, pp. 41-44.

[37]

CA rollo, pp. 161-170.

[38]

Rollo, pp. 10-34.

[39]

Id. at 22.

[40]

SEC. 5. Settlement of Disputes. (a) Any dispute arising under this

Act with respect to coverage, benefits, contributions and
penalties thereon or any other matter related thereto, shall be
cognizable by the Commission, and any case filed with respect
thereto shall be heard by the Commission, or any of its
members, or by hearing officers duly authorized by the
Commission and decided within the mandatory period of twenty
(20) days after the submission of the evidence. The filing,
determination and settlement of disputes shall be governed by
the rules and regulations promulgated by the Commission.

65
xxxx
[41]

Rollo, p. 28.

[42]

Article 256 of the Family Code itself limited its retroactive

governance only to cases where it thereby would not prejudice
or impair vested or acquired rights in accordance with the Civil
Code or other laws.

[48]

Art. 85. A marriage may be annulled for any of the following

causes, existing at the time of the marriage:
xxxx

[43]

(2) In a subsequent marriage under Article 83, Number 2, that

the former husband or wife believed to be dead was in fact
living and the marriage with such former husband or wife was
then in force;

Article 41 of the Family Code now provides:

x x x x (Underscoring supplied)
Art. 41. A marriage contracted by any person during the
subsistence of a previous marriage shall be null and void, unless
before the celebration of the subsequent marriage, the prior
spouse had been absent for four consecutive years and the
spouse present had a well-founded belief that the absent spouse
was already dead. In case of disappearance where there is
danger of death under the circumstances set forth in the
provisions of Article 391 of the Civil Code, an absence of only
two years shall be sufficient.

Art. 87. The action for annulment of marriage must be

commenced by the parties and within the periods as follows:
xxxx
(2) For causes mentioned in number 2 of Article 85, by
the spouse who has been absent, during his or her lifetime; or by
either spouse of the subsequent marriage during the lifetime of
the other;

For the purpose of contracting the subsequent marriage

under the preceding paragraph, the spouse present must institute
a summary proceeding as provided in this Code for the
declaration of presumptive death of the absentee, without
prejudice to the effect of reappearance of the absent spouse.
[44]

Armas v. Calisterio, 386 Phil. 402, 409 (2000).

[45]

CA rollo, p. 8.

[46]

Jones v. Hortiguela, 64 Phil. 179, 183 (1937).

[47]

I A. Tolentino, COMMENTARIES AND JURISPRUDENCE ON

THE
CIVIL
CODE
OF
THE PHILIPPINES 282
(1999 ed.). (Citations omitted)

xxxx
[49]

Supra note 47, at 284.

[50]

Ibid.

[51]

Id. at 285-286.

[52]

Supra note 47, at 287.

[53]

150 Phil. 204 (1972).

66
[54]

Id. at 213.

[55]

Nial v. Bayadog, 384 Phil. 661, 673 (2000). (Citations omitted)

[56]

Id. at 674.