Domingo vs.

CA
226 SCRA 572
FACTS:

Soledad Domingo, married with Roberto Domingo in 1976, filed a petition for the declaration of
nullity of marriage and separation of property. She did not know that Domingo had been previously
married to Emerlinda dela Paz in 1969. She came to know the previous marriage when the latter filed
a suit of bigamy against her. Furthermore, when she came home from Saudi during her one-month
leave from work, she discovered that Roberto cohabited with another woman and had been disposing
some of her properties which is administered by Roberto. The latter claims that because their
marriage was void ab initio, the declaration of such voidance is unnecessary and superfluous. On the
other hand, Soledad insists the declaration of the nullity of marriage not for the purpose of remarriage,
but in order to provide a basis for the separation and distribution of properties acquired during the
marriage.

ISSUE: Whether or not a petition for judicial declaration should only be filed for purposes of remarriage.

HELD:

The declaration of the nullity of marriage is indeed required for purposed of remarriage.
However, it is also necessary for the protection of the subsequent spouse who believed in good faith
that his or her partner was not lawfully married marries the same. With this, the said person is freed
from being charged with bigamy.
When a marriage is declared void ab initio, law states that final judgment shall provide for the
liquidation, partition and distribution of the properties of the spouses, the custody and support of the
common children and the delivery of their presumptive legitimes, unless such matters had been
adjudicated in previous judicial proceedings. Soledads prayer for separation of property will simply be
the necessary consequence of the judicial declaration of absolute nullity of their marriage. Hence, the
petitioners suggestion that for their properties be separated, an ordinary civil action has to be
instituted for that purpose is baseless. The Family Code has clearly provided the effects of the
declaration of nullity of marriage, one of which is the separation of property according to the regime of
property relations governing them.

Beltran vs. People

G.R. No. 137567
June 20, 2000
FACTS
Petitioner was married to Charmaine Felix on June 16, 1973. After 24 years of marriage and
having four children, petitioner filed a petition for nullity of marriage on ground of psychological
incapacity. Charmaine on the other hand filed a criminal complaint for concubinage against petitioner
and his paramour. To forestall the issuance of a warrant of arrest from the criminal complaint,
petitioner filed for the suspension of the criminal case on concubinage arguing that the civil case for
the nullification of their marriage is a prejudicial question.
ISSUE
Whether or not the civil case for nullity of marriage under psychological incapacity is a
prejudicial question to the criminal case of concubinage.

RULING
The rationale on the existence of prejudicial questions is to avoid two conflicting issues. Its
requisites are 1) that a civil action involves an issue similar or intimately related to the issue in the
criminal action and 2) the resolution of the issue determines whether or not the criminal action will
proceed. In the present case, the accused need not present a final judgment declaring his marriage
void for he can adduce evidence in the criminal case of the nullity of his marriage other than the proof
of a final judgment. More importantly, parties to a marriage should not be allowed to judge for
themselves its nullity, for the same must be submitted to the competent courts. So long as there is no
such final judgment the presumption is that the marriage exists for all intents and purposes. Therefore
he who cohabits with a woman not his wife risks being prosecuted for concubinage.

MARBELLA-BOBIS v. BOBIS
July 31, 2000 (G.R. No. 138509)
PARTIES:

FACTS:
October 21, 1985, first marriage with one Maria Dulce B. Javier. Not annulled, nullified or terminated
January 25, 1996, second marriage with petitioner Imelda Marbella-Bobis
Third marriage with a certain Julia Sally Hernandez
February 25, 1998, Imelda Bobis filed bigamy
Sometime thereafter, respondent initiated a civil action for the judicial declaration of absolute nullity
of his first marriage on the ground that it was celebrated without a marriage license
Petitioner argues that respondent should have first obtained a judicial declaration of nullity of his first
marriage before entering into the second marriage
*After petitioner sued for bigamy, its just when the respondent filed a declaration of absolute nullity.

ISSUE:
Whether or not the subsequent filing of a civil action for declaration of nullity of a previous marriage
constitutes a prejudicial question to a criminal case for bigamy

HELD:
A prejudicial question is one which arises in a case the resolution of which is a logical antecedent of
the issue involved therein.3It is a question 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. Its two essential
elements are:7
(a) the civil action involves an issue similar or intimately related to the issue raised in the criminal
action; and
(b) the resolution of such issue determines whether or not the criminal action may proceed
In Article 40 of the Family Code, respondent, without first having obtained the judicial declaration of
nullity of the first marriage, can not be said to have validly entered into the second marriage. In the
current jurisprudence, a marriage though void still needs a judicial declaration of such fact before any
party can marry again; otherwise the second marriage will also be void. The reason is that, without a
judicial declaration of its nullity, the first marriage is presumed to be subsisting. In the case at bar,
respondent was for all legal intents and purposes regarded as a married man at the time he contracted
his second marriage with petitioner.

Any decision in the civil action for nullity would not erase the fact that respondent entered into a
second marriage during the subsistence of a first marriage. Thus, a decision in the civil case is not
essential to the determination of the criminal charge. It is, therefore, not a prejudicial question
*Parties to a marriage should not be permitted to judge for themselves its nullity, only competent
courts having such authority. Prior to such declaration of nullity, the validity of the first marriage is
beyond question. A party who contracts a second marriage then assumes the risk of being prosecuted
for bigamy (Landicho v. Relova)

Mercado vs. Tan

337 SCRA 122
FACTS:
Dr. Vicent Mercado was previously married with Thelma Oliva in 1976 before he contracted
marriage with Consuelo Tan in 1991 which the latter claims she did not know. Tan filed bigamy against
Mercado and after a month the latter filed an action for declaration of nullity of marriage against Oliva.
The decision in 1993 declared marriage between Mercado and Oliva null and void.
ISSUE: Whether Mercado committed bigamy in spite of filing the declaration of nullity of the former
marriage.

HELD:
A judicial declaration of nullity of a previous marriage is necessary before a subsequent one
can be legally contracted. One who enters into a subsequent marriage without first obtaining such
judicial declaration is guilty of bigamy. This principle applies even if the earlier union is characterized
by statute as void.
In the case at bar, Mercado only filed the declaration of nullity of his marriage with Oliva right
after Tan filed bigamy case. Hence, by then, the crime had already been consummated. He
contracted second marriage without the judicial declaration of the nullity. The fact that the first
marriage is void from the beginning is not a defense in a bigamy charge.
G.R. No. 137110

August 1, 2000

VINCENT PAUL G. MERCADO a.k.a. VINCENT G. MERCADO, petitioner, vs. CONSUELO TAN, respondent.
A judicial declaration of nullity of a previous marriage is necessary before a subsequent one can be
legally contracted. One who enters into a subsequent marriage without first obtaining such judicial
declaration is guilty of bigamy. This principle applies even if the earlier union is characterized by
statute as "void."
The Case
Before us is a Petition for Review on Certiorari assailing the July 14, 1998 Decision of the Court
of Appeals (CA)1 in CA-GR CR No. 19830 and its January 4, 1999 Resolution denying reconsideration.
The assailed Decision affirmed the ruling of the Regional Trial Court (RTC) of Bacolod City in Criminal
Case No. 13848, which convicted herein petitioner of bigamy as follows:
"WHEREFORE, finding the guilt of accused Dr. Vincent Paul G. Mercado a.k.a. Dr. Vincent G.
Mercado of the crime of Bigamy punishable under Article 349 of the Revised Penal Code to have been
proven beyond reasonable doubt, [the court hereby renders] judgment imposing upon him a prison
term of three (3) years, four (4) months and fifteen (15) days of prision correccional, as minimum of his
indeterminate sentence, to eight (8) years and twenty-one (21) days of prision mayor, as maximum,
plus accessory penalties provided by law.

Costs against accused."2

The Facts
The facts are quoted by Court of Appeals (CA) from the trial courts judgment, as follows: "From
the evidence adduced by the parties, there is no dispute that accused Dr. Vincent Mercado and
complainant Ma. Consuelo Tan got married on June 27, 1991 before MTCC-Bacolod City Br. 7 Judge
Gorgonio J. Ibaez [by reason of] which a Marriage Contract was duly executed and signed by the
parties. As entered in said document, the status of accused was single. There is no dispute either that
at the time of the celebration of the wedding with complainant, accused was actually a married man,
having been in lawful wedlock with Ma. Thelma Oliva in a marriage ceremony solemnized on April 10,
1976 by Judge Leonardo B. Caares, CFI-Br. XIV, Cebu City per Marriage Certificate issued in
connection therewith, which matrimony was further blessed by Rev. Father Arthur Baur on October 10,
1976 in religious rites at the Sacred Heart Church, Cebu City. In the same manner, the civil marriage
between accused and complainant was confirmed in a church ceremony on June 29, 1991 officiated by
Msgr. Victorino A. Rivas, Judicial Vicar, Diocese of Bacolod City. Both marriages were consummated
when out of the first consortium, Ma. Thelma Oliva bore accused two children, while a child, Vincent
Paul, Jr. was sired by accused with complainant Ma. Consuelo Tan.
"On October 5, 1992, a letter-complaint for bigamy was filed by complainant through counsel
with the City Prosecutor of Bacolod City, which eventually resulted [in] the institution of the present
case before this Court against said accused, Dr. Vincent G. Mercado, on March 1, 1993 in an
Information dated January 22, 1993.
"On November 13, 1992, or more than a month after the bigamy case was lodged in the
Prosecutors Office, accused filed an action for Declaration of Nullity of Marriage against Ma. Thelma V.
Oliva in RTC-Br. 22, Cebu City, and in a Decision dated May 6, 1993 the marriage between Vincent G.
Mercado and Ma. Thelma V. Oliva was declared null and void.
"Accused is charged [with] bigamy under Article 349 of the Revised Penal Code for having
contracted a second marriage with herein complainant Ma. Consuelo Tan on June 27, 1991 when at
that time he was previously united in lawful marriage with Ma. Thelma V. Oliva on April 10, 1976 at
Cebu City, without said first marriage having been legally dissolved. As shown by the evidence and
admitted by accused, all the essential elements of the crime are present, namely: (a) that the offender
has been previously legally married; (2) that the first marriage has not been legally dissolved or in
case the spouse is absent, the absent spouse could not yet be presumed dead according to the Civil
Code; (3) that he contract[ed] a second or subsequent marriage; and (4) that the second or
subsequent marriage ha[d] all the essential requisites for validity. x x x
"While acknowledging the existence of the two marriage[s], accused posited the defense that
his previous marriage ha[d] been judicially declared null and void and that the private complainant had
knowledge of the first marriage of accused.
"It is an admitted fact that when the second marriage was entered into with Ma. Consuelo Tan
on June 27, 1991, accuseds prior marriage with Ma. Thelma V. Oliva was subsisting, no judicial action
having yet been initiated or any judicial declaration obtained as to the nullity of such prior marriage
with Ma. Thelma V. Oliva. Since no declaration of the nullity of his first marriage ha[d] yet been made
at the time of his second marriage, it is clear that accused was a married man when he contracted
such second marriage with complainant on June 27, 1991. He was still at the time validly married to his
first wife."3
Ruling of the Court of Appeals
Agreeing with the lower court, the Court of Appeals stated:
"Under Article 40 of the Family Code, the absolute nullity of a previous marriage may be
invoked for purposes of remarriage on the basis solely of a final judgment declaring such previous
marriage void. But here, the final judgment declaring null and void accuseds previous marriage came
not before the celebration of the second marriage, but after, when the case for bigamy against
accused was already tried in court. And what constitutes the crime of bigamy is the act of any person

who shall contract a second subsequent marriage before the former marriage has been legally
dissolved."4
Hence, this Petition.5
The Issues
In his Memorandum, petitioner raises the following issues:
"A Whether or not the element of previous legal marriage is present in order to convict petitioner.
"B Whether or not a liberal interpretation in favor of petitioner of Article 349 of the Revised Penal Code
punishing bigamy, in relation to Articles 36 and 40 of the Family Code, negates the guilt of petitioner.
"C Whether or not petitioner is entitled to an acquittal on the basis of reasonable doubt."6
The Courts Ruling
The Petition is not meritorious.

Main Issue:Effect of Nullity of Previous Marriage

Petitioner was convicted of bigamy under Article 349 of the Revised Penal Code, which
provides:
"The penalty of prision mayor shall be imposed upon any person who shall contract a second
or subsequent marriage before the former marriage has been legally dissolved, or before the absent
spouse has been declared presumptively dead by means of a judgment rendered in the proper
proceedings."
The elements of this crime are as follows:
"1. That the offender has been legally married;
2. That the marriage has not been legally dissolved or, in case his or her spouse is absent, the
absent spouse could not yet be presumed dead according to the Civil Code;
3. That he contracts a second or subsequent marriage;
4. That the second or subsequent marriage has all the essential requisites for validity."7
When the Information was filed on January 22, 1993, all the elements of bigamy were present.
It is undisputed that petitioner married Thelma G. Oliva on April 10, 1976 in Cebu City. While that
marriage was still subsisting, he contracted a second marriage, this time with Respondent Ma.
Consuelo Tan who subsequently filed the Complaint for bigamy.
Petitioner contends, however, that he obtained a judicial declaration of nullity of his first
marriage under Article 36 of the Family Code, thereby rendering it void ab initio. Unlike voidable
marriages which are considered valid until set aside by a competent court, he argues that a void
marriage is deemed never to have taken place at all.8 Thus, he concludes that there is no first
marriage to speak of. Petitioner also quotes the commentaries9 of former Justice Luis Reyes that "it is
now settled that if the first marriage is void from the beginning, it is a defense in a bigamy charge. But
if the first marriage is voidable, it is not a defense."
Respondent, on the other hand, admits that the first marriage was declared null and void
under Article 36 of the Family Code, but she points out that that declaration came only after the
Information had been filed. Hence, by then, the crime had already been consummated. She argues
that a judicial declaration of nullity of a void previous marriage must be obtained before a person can
marry for a subsequent time.
We agree with the respondent.

To be sure, jurisprudence regarding the need for a judicial declaration of nullity of the previous
marriage has been characterized as "conflicting."10 In People v. Mendoza,11 a bigamy case involving
an accused who married three times, the Court ruled that there was no need for such declaration. In
that case, the accused contracted a second marriage during the subsistence of the first. When the first
wife died, he married for the third time. The second wife then charged him with bigamy. Acquitting
him, the Court held that the second marriage was void ab initio because it had been contracted while
the first marriage was still in effect. Since the second marriage was obviously void and illegal, the
Court ruled that there was no need for a judicial declaration of its nullity. Hence, the accused did not
commit bigamy when he married for the third time. This ruling was affirmed by the Court in People v.
Aragon,12 which involved substantially the same facts.
But in subsequent cases, the Court impressed the need for a judicial declaration of nullity. In
Vda de Consuegra v. GSIS,13 Jose Consuegra married for the second time while the first marriage was
still subsisting. Upon his death, the Court awarded one half of the proceeds of his retirement benefits
to the first wife and the other half to the second wife and her children, notwithstanding the manifest
nullity of the second marriage. It held: "And with respect to the right of the second wife, this Court
observes that although the second marriage can be presumed to be void ab initio as it was celebrated
while the first marriage was still subsisting, still there is need for judicial declaration of such nullity."
In Tolentino v. Paras,14 however, the Court again held that judicial declaration of nullity of a
void marriage was not necessary. In that case, a man married twice. In his Death Certificate, his
second wife was named as his surviving spouse. The first wife then filed a Petition to correct the said
entry in the Death Certificate. The Court ruled in favor of the first wife, holding that "the second
marriage that he contracted with private respondent during the lifetime of the first spouse is null and
void from the beginning and of no force and effect. No judicial decree is necessary to establish the
invalidity of a void marriage."
In Wiegel v. Sempio-Diy,15 the Court stressed the need for such declaration. In that case, Karl
Heinz Wiegel filed an action for the declaration of nullity of his marriage to Lilia Olivia Wiegel on the
ground that the latter had a prior existing marriage. After pretrial, Lilia asked that she be allowed to
present evidence to prove, among others, that her first husband had previously been married to
another woman. In holding that there was no need for such evidence, the Court ruled: "x x x There is
likewise no need of introducing evidence about the existing prior marriage of her first husband at the
time they married each other, for then such a marriage though void still needs, according to this Court,
a judicial declaration of such fact and for all legal intents and purposes she would still be regarded as a
married woman at the time she contracted her marriage with respondent Karl Heinz Wiegel; x x x."
Subsequently, in Yap v. CA,16 the Court reverted to the ruling in People v. Mendoza, holding
that there was no need for such declaration of nullity.
In Domingo v. CA,17 the issue raised was whether a judicial declaration of nullity was still
necessary for the recovery and the separation of properties of erstwhile spouses. Ruling in the
affirmative, the Court declared: "The Family Code has settled once and for all the conflicting
jurisprudence on the matter. A declaration of the absolute nullity of a marriage is now explicitly
required either as a cause of action or a ground for defense; in fact, the requirement for a declaration
of absolute nullity of a marriage is also for the protection of the spouse who, believing that his or her
marriage is illegal and void, marries again. With the judicial declaration of the nullity of his or her first
marriage, the person who marries again cannot be charged with bigamy."18
Unlike Mendoza and Aragon, Domingo as well as the other cases herein cited was not a
criminal prosecution for bigamy. Nonetheless, Domingo underscored the need for a judicial declaration
of nullity of a void marriage on the basis of a new provision of the Family Code, which came into effect
several years after the promulgation of Mendoza and Aragon.
In Mendoza and Aragon, the Court relied on Section 29 of Act No. 3613 (Marriage Law), which
provided:
"Illegal marriages. Any marriage subsequently contracted by any person during the lifetime
of the first spouse shall be illegal and void from its performance, unless:

(a) The first marriage was annulled or dissolved;

(b) The first spouse had been absent for seven consecutive years at the time of the second
marriage without the spouse present having news of the absentee being alive, or the absentee being
generally considered as dead and believed to be so by the spouse present at the time of contracting
such subsequent marriage, the marriage as contracted being valid in either case until declared null
and void by a competent court."
The Court held in those two cases that the said provision "plainly makes a subsequent
marriage contracted by any person during the lifetime of his first spouse illegal and void from its
performance, and no judicial decree is necessary to establish its invalidity, as distinguished from mere
annulable marriages."19
The provision appeared in substantially the same form under Article 83 of the 1950 Civil Code
and Article 41 of the Family Code. However, Article 40 of the Family Code, a new provision, expressly
requires a judicial declaration of nullity of the previous marriage, as follows:
"ART. 40. The absolute nullity of a previous marriage may be invoked for purposes of
remarriage on the basis solely of a final judgment declaring such marriage void."
In view of this provision, Domingo stressed that a final judgment declaring such marriage void
was necessary. Verily, the Family Code and Domingo affirm the earlier ruling in Wiegel. Thus, a Civil
Law authority and member of the Civil Code Revision Commitee has observed:
"[Article 40] is also in line with the recent decisions of the Supreme Court that the marriage of
a person may be null and void but there is need of a judicial declaration of such fact before that person
can marry again; otherwise, the second marriage will also be void (Wiegel v. Sempio-Diy, Aug. 19/86,
143 SCRA 499, Vda. De Consuegra v. GSIS, 37 SCRA 315). This provision changes the old rule that
where a marriage is illegal and void from its performance, no judicial decree is necessary to establish
its validity (People v. Mendoza, 95 Phil. 843; People v. Aragon, 100 Phil. 1033)."20

In this light, the statutory mooring of the ruling in Mendoza and Aragon that there is no need
for a judicial declaration of nullity of a void marriage -- has been cast aside by Article 40 of the Family
Code. Such declaration is now necessary before one can contract a second marriage. Absent that
declaration, we hold that one may be charged with and convicted of bigamy.
The present ruling is consistent with our pronouncement in Terre v. Terre,21 which involved an
administrative Complaint against a lawyer for marrying twice. In rejecting the lawyers argument that
he was free to enter into a second marriage because the first one was void ab initio, the Court ruled:
"for purposes of determining whether a person is legally free to contract a second marriage, a judicial
declaration that the first marriage was null and void ab initio is essential." The Court further noted that
the said rule was "cast into statutory form by Article 40 of the Family Code." Significantly, it observed
that the second marriage, contracted without a judicial declaration that the first marriage was void,
was "bigamous and criminal in character."
Moreover, Justice Reyes, an authority in Criminal Law whose earlier work was cited by
petitioner, changed his view on the subject in view of Article 40 of the Family Code and wrote in 1993
that a person must first obtain a judicial declaration of the nullity of a void marriage before contracting
a subsequent marriage:22
"It is now settled that the fact that the first marriage is void from the beginning is not a
defense in a bigamy charge. As with a voidable marriage, there must be a judicial declaration of the
nullity of a marriage before contracting the second marriage. Article 40 of the Family Code states that
x x x. The Code Commission believes that the parties to a marriage should not be allowed to assume
that their marriage is void, even if such is the fact, but must first secure a judicial declaration of nullity
of their marriage before they should be allowed to marry again. x x x."

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

xxx

xxx

"Indeed, the claim of Consuelo Tan that she was not aware of his previous marriage does not
inspire belief, especially as she had seen that Dr. Mercado had two (2) children with him. We are
convinced that she took the plunge anyway, relying on the fact that the first wife would no longer
return to Dr. Mercado, she being by then already living with another man.
"Consuelo Tan can therefore not claim damages in this case where she was fully conscious of
the consequences of her act. She should have known that she would suffer humiliation in the event the
truth [would] come out, as it did in this case, ironically because of her personal instigation. If there are
indeed damages caused to her reputation, they are of her own willful making."25
WHEREFORE, the Petition is DENIED and the assailed Decision AFFIRMED. Costs against
petitioner.
SO ORDERED.

Morigo vs. People

GR No. 145226, February 6, 2004
FACTS:
Lucio Morigo and Lucia Barrete were boardmates in Bohol. They lost contacts for a while but
after receiving a card from Barrete and various exchanges of letters, they became sweethearts. They
got married in 1990. Barrete went back to Canada for work and in 1991 she filed petition for divorce in
Ontario Canada, which was granted. In 1992, Morigo married Lumbago. He subsequently filed a
complaint for judicial declaration of nullity on the ground that there was no marriage ceremony.
Morigo was then charged with bigamy and moved for a suspension of arraignment since the civil case
pending posed a prejudicial question in the bigamy case. Morigo pleaded not guilty claiming that his
marriage with Barrete was void ab initio. Petitioner contented he contracted second marriage in good
faith.

ISSUE: Whether Morigo must have filed declaration for the nullity of his marriage with Barrete before
his second marriage in order to be free from the bigamy case.

HELD:
Morigos marriage with Barrete is void ab initio considering that there was no actual marriage
ceremony performed between them by a solemnizing officer instead they just merely signed a
marriage contract. The petitioner does not need to file declaration of the nullity of his marriage when
he contracted his second marriage with Lumbago. Hence, he did not commit bigamy and is acquitted
in the case filed.

G.R. No. 145226

February 06, 2004

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

This petition for review on certiorari seeks to reverse the decision1 dated October 21, 1999 of the
Court of Appeals in CA-G.R. CR No. 20700, which affirmed the judgment2 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 resolution3 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:
Appellant Lucio Morigo and Lucia Barrete were boardmates at the house of Catalina Tortor at Tagbilaran
City, Province of Bohol, for a period of four (4) years (from 1974-1978).
After school year 1977-78, Lucio Morigo and Lucia Barrete lost contact with each other.
In 1984, Lucio Morigo was surprised to receive a card from Lucia Barrete from Singapore. The former
replied and after an exchange of letters, they became sweethearts.
In 1986, Lucia returned to the Philippines but left again for Canada to work there. While in Canada,
they maintained constant communication.
In 1990, Lucia came back to the Philippines and proposed to petition appellant to join her in Canada.
Both agreed to get married, thus they were married on August 30, 1990 at the Iglesia de Filipina
Nacional at Catagdaan, Pilar, Bohol.
On September 8, 1990, Lucia reported back to her work in Canada leaving appellant Lucio behind.

On August 19, 1991, Lucia filed with the Ontario Court (General Division) a petition for divorce against
appellant which was granted by the court on January 17, 1992 and to take effect on February 17, 1992.
On October 4, 1992, appellant Lucio Morigo married Maria Jececha Lumbago4 at the Virgen sa
Barangay Parish, Tagbilaran City, Bohol.
On September 21, 1993, accused filed a complaint for judicial declaration of nullity of marriage in the
Regional Trial Court of Bohol, docketed as Civil Case No. 6020. The complaint seek (sic) among others,
the declaration of nullity of accuseds marriage with Lucia, on the ground that no marriage ceremony
actually took place.
On October 19, 1993, appellant was charged with Bigamy in an Information5 filed by the City
Prosecutor of Tagbilaran [City], with the Regional Trial Court of Bohol.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, foregoing premises considered, the Court finds accused Lucio Morigo y Cacho guilty
beyond reasonable doubt of the crime of Bigamy and sentences him to suffer the penalty of
imprisonment ranging from Seven (7) Months of Prision Correccional as minimum to Six (6) Years and
One (1) Day of Prision Mayor as maximum.
SO ORDERED.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
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.
Seasonably, petitioner filed an appeal with the Court of Appeals, docketed as CA-G.R. CR No. 20700.
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 CA-G.R. CR No. 20700 as follows:
WHEREFORE, finding no error in the appealed decision, the same is hereby AFFIRMED in toto.
SO ORDERED.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 34912 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.
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 1513 of the Civil Code and
given the fact that it is contrary to public policy in this jurisdiction. Under Article 1714 of the Civil Code,
a declaration of public policy cannot be rendered ineffectual by a judgment promulgated in a foreign
jurisdiction.

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.

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.WHETHER OR NOT THE COURT OF APPEALS ERRED IN FAILING TO APPLY THE RULE THAT IN CRIMES
PENALIZED UNDER THE REVISED PENAL CODE, CRIMINAL INTENT IS AN INDISPENSABLE REQUISITE.
COROLLARILY, WHETHER OR NOT THE COURT OF APPEALS ERRED IN FAILING TO APPRECIATE [THE]
PETITIONERS LACK OF CRIMINAL INTENT WHEN HE CONTRACTED THE SECOND MARRIAGE.
B.WHETHER OR NOT THE COURT OF APPEALS ERRED IN HOLDING THAT THE RULING IN PEOPLE VS.
BITDU (58 PHIL. 817) IS APPLICABLE TO THE CASE AT BAR.
C.WHETHER OR NOT THE COURT OF APPEALS ERRED IN FAILING TO APPLY THE RULE THAT EACH AND
EVERY CIRCUMSTANCE FAVORING THE INNOCENCE OF THE ACCUSED MUST BE TAKEN INTO
ACCOUNT.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 4019 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:

WHEREFORE, premises considered, judgment is hereby rendered decreeing the annulment of the
marriage entered into by petitioner Lucio Morigo and Lucia Barrete on August 23, 1990 in Pilar, Bohol
and further directing the Local Civil Registrar of Pilar, Bohol to effect the cancellation of the marriage
contract.
SO ORDERED.21
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 322 and 423 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 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.
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:
A judicial declaration of nullity of a previous marriage is necessary before a subsequent one can be
legally contracted. One who enters into a subsequent marriage without first obtaining such judicial
declaration is guilty of bigamy. This principle applies even if the earlier union is characterized by
statutes as "void."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.
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.

CALISTERIO v. CALISTERIO
April 6, 2000 (GR No. 136467)
PARTIES:
Petitioner: MARIETTA CALISTERIO
Respondent: ANTONIA ARMAS Y CALISTERIO

FACTS:
Marietta is the wife of the deceased, Teoderico Calisterio.
13 January 1946, petitioner was married to James William Bounds
11 February 1947, James Bounds disappeared without a trace
08 May 1958, after 11 years, Teodorico and Marietta were married without Marietta having priorly
secured a court declaration that James was presumptively dead
24 April 1992, Teodorico Calisterio died intestate
09 October 1992, prespondent Antonia Armas y Calisterio, a surviving sister of deceased, claiming
that she is the sole surviving heir of Teodorico Calisterio, and alleging that the marriage between the
latter and respondent being allegedly bigamous and thereby null and void
The RTC ruled in favour of Antonia, but the CA reversed the decision.

ISSUE:
WON the marriage between deceased Teoderico C. And Marietta C. is valid.

HELD:
Yes. The law in force at the time of their marriage 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. Article 83 of the New Civil Code which 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
Unlike in the Family Code, the New Civil Code does not necessitate a judicial declaration of absence of
the absentee spouse as long as the prescribed period of absence is met.

Republic vs. Nolasco

220 SCRA 20
FACTS:
Gregorio Nolasco is a seaman. He met Janet Parker, a British, in bar in England. After that, Janet
started living with Nolasco in his ship for six months. It lasted until the contract of Nolasco expired
then he brought her to his hometown in Antique. They got married in January 1982. Due to another
contract, Nolasco left the province. In 1983, Nolasco received a letter from his mother informing him
that his son had been born but 15 days after, Janet left. Nolasco went home and cut short his contract
to find Janets whereabouts. He did so by securing another seamans contract going to London. He
wrote several letters to the bar where they first met but it was all returned. Gregorio petitioned in
1988 for a declaration of presumptive death of Janet.
ISSUE: Whether or not Nolasco had a well-founded belief that his wife, Janet, is already dead?
HELD:
The Supreme Court ruled that Nolascos efforts to locate Janet were not persistent to show that he has
a well-founded belief that his wife was already dead because instead of seeking assistance of local
authorities and the British Embassy, he even secured another contract. More so, while he was in
London, he did not even try to solicit help of the authorities to find his wife.
REPUBLIC V. NOLASCO
FACTS
Gregorio Nolasco filed before the Regional Trial Court of Antique a petition for the declarationof the
presumptive death of his wife Janet Monica Parker, invoking Article 41 of the Family Code. 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 case. During trial, Nolasco testified that he was seaman
and that he had first met Parker, a British subject, in a bar in England during one of his ships port
calls. From that chance meeting onwards, Parker lived with Nolasco on his ship for six months until
they returned to Nolascos hometown of San Jose, Antique in 1980 after his seamans contract expired.
On January 1982, NOlasco married Parker in San Jose, Antique. After the marriage celebration, Nolasco
obtained another employment as a seaman and left his wife with his parents in Antique. Sometime in
1983, while working overseas, Nolasco received a letter from his mother informing him that Parker had
left Antique. Nolasco claimed he asked permission to leave the ship and return home to look for his
wife. He testified that his efforts to look for her whenever their ship docked in England were fruitless,
that the letters he sent to Parkers address in England were all returned to him, and that their friends
received no news from Parker. He testified that he had no knowledge of her family background even
after the marriage and did not report the disappearance to the authorities. The petition was granted by
lower court and was also affirmed by the appellate court. As such, the republic appealed to the SC.
Issue
Whether or not Nolasco has a well-founded belief that his wife is already dead.
Held

The respondent failed to establish that he had the well-founded 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. 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, he secured another seaman's contract and went to London, a vast city of many
millions of inhabitants, to look for her there. 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.

Republic v. Cantor
G.R. No. 184621; December 10, 2013

FACTS:
Sometime in January 1998, Jerry F. Cantor left his wife Maria Fe Espinosa Cantor after a violent quarrel.
After more than four years of not seeing or hearing from Jerry, Maria Fe filed a petition for the
declaration of presumptive death of her husband. She alleged that she conducted a diligent search for
her husband and exerted earnest efforts to find him. The RTC granted her petition. Dissatisfied with the
ruling, the OSG filed the present petition for review on certiorari.
ISSUE:
Did Maria Fe have a well-founded belief that Jerry was dead in pursuant with Article 41 of the Family
Code?
HELD:
Whether or not one has a well-founded belief that his or her spouse is dead depends on the unique
circumstance of each case and that there is no set standard or procedure in determining the same.
Maria Fes alleged well-founded belief arose when: 1) Jerrys relatives and friends could not give her
any information on his whereabouts; and 2) she did not find Jerrys name in the patients directory
whenever she went to a hospital. It appears that Maria Fe did not actively look for her husband in
hospitals and it may be sensed that her search was not intentional or planned. Her search for Jerry was
far from diligent. Were it not for the finality of the RTC ruling, the declaration of presumptive death
should have been recalled and set aside for utter lack of factual basis
G.R. No. 184621

December 10, 2013

REPUBLIC OF THE PHILIPPINES, Petitioner, vs. MARIA FE ESPINOSA CANTOR, Respondent.

The petition for review on certiorari1 before us assails the decision2 dated August 27, 2008 of the
Court of Appeals (CA) in CA-G.R. SP No. 01558-MIN which affirmed be order3 dated December 15, 2006
of the Regional Trial Court (RTC), Branch 25, Koronadal City, South Cotabato, in SP Proc. Case No. 31325, declaring Jerry F. Cantor, respondent Maria Fe Espinosa Cantors husband, presumptively dead
under Article 41 of the Family Code.
The Factual Antecedents
The respondent and Jerry were married on September 20, 1997. They lived together as husband and
wife in their conjugal dwelling in Agan Homes, Koronadal City, South Cotabato. Sometime in January
1998, the couple had a violent quarrel brought about by: (1) the respondents inability to reach "sexual

climax" whenever she and Jerry would have intimate moments; and (2) Jerrys expression of animosity
toward the respondents father.
After their quarrel, Jerry left their conjugal dwelling and this was the last time that the respondent ever
saw him. Since then, she had not seen, communicated nor heard anything from Jerry or about his
whereabouts.
On May 21, 2002, or more than four (4) years from the time of Jerrys disappearance, the respondent
filed before the RTC a petition4for her husbands declaration of presumptive death, docketed as SP
Proc. Case No. 313-25. She claimed that she had a well-founded belief that Jerry was already dead. She
alleged that she had inquired from her mother-in-law, her brothers-in-law, her sisters-in-law, as well as
her neighbors and friends, but to no avail. In the hopes of finding Jerry, she also allegedly made it a
point to check the patients directory whenever she went to a hospital. All these earnest efforts, the
respondent claimed, proved futile, prompting her to file the petition in court.
The Ruling of the RTC
After due proceedings, the RTC issued an order granting the respondents petition and declaring Jerry
presumptively dead. It concluded that the respondent had a well-founded belief that her husband was
already dead since more than four (4) years had passed without the former receiving any news about
the latter or his whereabouts. The dispositive portion of the order dated December 15, 2006 reads:

WHEREFORE, the Court hereby declares, as it hereby declared that respondent Jerry F. Cantor is
presumptively dead pursuant to Article 41 of the Family Code of the Philippines without prejudice to
the effect of the reappearance of the absent spouse Jerry F. Cantor.5
The Ruling of the CA
The case reached the CA through a petition for certiorari6filed by the petitioner, Republic of the
Philippines, through the Office of the Solicitor General (OSG). In its August 27, 2008 decision, the CA
dismissed the petitioners petition, finding no grave abuse of discretion on the RTCs part, and,
accordingly, fully affirmed the latters order, thus:
WHEREFORE, premises foregoing (sic), the instant petition is hereby DISMISSED and the assailed Order
dated December 15, 2006 declaring Jerry F. Cantor presumptively dead is hereby AFFIRMED in toto.7
The petitioner brought the matter via a Rule 45 petition before this Court. The Petition The petitioner
contends that certiorari lies to challenge the decisions, judgments or final orders of trial courts in
petitions for declaration of presumptive death of an absent spouse under Rule 41 of the Family Code. It
maintains that although judgments of trial courts in summary judicial proceedings, including
presumptive death cases, are deemed immediately final and executory (hence, not appeal able under
Article 247 of the Family Code), this rule does not mean that they are not subject to review on
certiorari.
The petitioner also posits that the respondent did not have a well-founded belief to justify the
declaration of her husbands presumptive death. It claims that the respondent failed to conduct the
requisite diligent search for her missing husband. Likewise, the petitioner invites this Courts attention
to the attendant circumstances surrounding the case, particularly, the degree of search conducted and
the respondents resultant failure to meet the strict standard under Article 41 of the Family Code.
The Issues
The petition poses to us the following issues:
(1) Whether certiorarilies to challenge the decisions, judgments or final orders of trial courts in
petitions for declaration of presumptive death of an absent spouse under Article 41 of the Family Code;
and
(2) Whether the respondent had a well-founded belief that Jerry is already dead.

The Courts Ruling

We grant the petition.
a. On the Issue of the Propriety of Certiorari as a Remedy
Courts Judgment in the Judicial
Proceedings for Declaration of
Presumptive Death Is Final and
Executory, Hence, Unappealable
The Family Code was explicit that the courts judgment in summary proceedings, such as the
declaration of presumptive death of an absent spouse under Article 41 of the Family Code, shall be
immediately final and executory.
Article 41,in relation to Article 247, of the Family Code provides:
Art. 41. A marriage contracted by any person during 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.

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.
Art. 247. The judgment of the court shall be immediately final and executory. [underscores ours]
With the judgment being final, it necessarily follows that it is no longer subject to an appeal, the
dispositions and conclusions therein having become immutable and unalterable not only as against the
parties but even as against the courts.8 Modification of the courts ruling, no matter how erroneous is
no longer permissible. The final and executory nature of this summary proceeding thus prohibits the
resort to appeal. As explained in Republic of the Phils. v. Bermudez-Lorino,9 the right to appeal is not
granted to parties because of the express mandate of Article 247 of the Family Code, 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
[Article] 247, Family Code, supra, are "immediately final and executory." It was erroneous, therefore, on
the part of the RTCto give due course to the Republics appeal and order the transmittal of the entire
records of the case to the Court of Appeals.
An appellate court acquires no jurisdiction to review a judgment which, by express provision of law, is
immediately final and executory. As we have said in Veloria vs. Comelec, "the right to appeal is not a
natural right nor is it a part of due process, for it is merely a statutory privilege." Since, by express
mandate of Article 247 of the Family Code, all judgments rendered in summary judicial proceedings in
Family Law are "immediately final and executory," the right to appeal was not granted to any of the
parties therein. The Republic of the Philippines, as oppositor in the petition for declaration of
presumptive death, should not be treated differently. It had no right to appeal the RTC decision of
November 7, 2001. [emphases ours; italics supplied]
Certiorari Lies to Challenge the
Decisions, Judgments or Final

Orders of Trial Courts in a Summary

Proceeding for the Declaration of Presumptive
Death Under the Family Code
A losing party in this proceeding, however, is not entirely left without a remedy. While jurisprudence
tells us that no appeal can be made from the trial court's judgment, an aggrieved party may,
nevertheless, file a petition for certiorari under Rule 65 of the Rules of Court to question any abuse of
discretion amounting to lack or excess of jurisdiction that transpired.
As held in Delos Santos v. Rodriguez, et al.,10 the fact that a decision has become final does not
automatically negate the original action of the CA to issue certiorari, prohibition and mandamus in
connection with orders or processes issued by the trial court. Certiorari may be availed of where a
court has acted without or in excess of jurisdiction or with grave abuse of discretion, and where the
ordinary remedy of appeal is not available. Such a procedure finds support in the case of Republic v.
Tango,11 wherein we held that:
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 2and 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 trial court's
judgment ina 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. [emphasis ours]
Viewed in this light, we find that the petitioners resort to certiorari under Rule 65 of the Rules of Court
to question the RTCs order declaring Jerry presumptively dead was proper.
b. On the Issue of the Existence of Well-Founded Belief
The Essential Requisites for the
Declaration of Presumptive Death
Under Article 41 of the Family Code

Before a judicial declaration of presumptive death can be obtained, it must be shown that the prior
spouse had been absent for four consecutive years and the present spouse had a well-founded belief
that the prior spouse was already dead. Under Article 41 of the Family Code, there are four (4)
essential requisites for the declaration of presumptive death:
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.12
The Present Spouse Has the Burden
of Proof to Show that All the
Requisites Under Article 41 of the
Family Code Are Present
The burden of proof rests on the present spouse to show that all the requisites under Article 41 of the
Family Code are present. Since it is the present spouse who, for purposes of declaration of presumptive
death, substantially asserts the affirmative of the issue, it stands to reason that the burden of proof lies
with him/her. He who alleges a fact has the burden of proving it and mere allegation is not evidence.13
Declaration of Presumptive Death
Under Article 41 of the Family Code
Imposes a Stricter Standard
Notably, Article 41 of the Family Code, compared to the old provision of the Civil Code which it
superseded, imposes a stricter standard. It requires a "well-founded belief " that the absentee is
already dead before a petition for declaration of presumptive death can be granted. We have had
occasion to make the same observation in Republic v. Nolasco,14 where we noted the crucial
differences between Article 41 of the Family Code and Article 83 of the Civil Code, to wit:

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. 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 Articles 390 and 391 of the Civil Code. 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.
Thus, mere absence of the spouse (even for such period required by the law), lack of any news that
such absentee is still alive, failure to communicate or general presumption of absence under the Civil
Code would not suffice. This conclusion proceeds from the premise that Article 41 of the Family Code
places upon the present spouse the burden of proving the additional and more stringent requirement
of "well-founded belief" which can only be discharged upon a showing of proper and honest-togoodness inquiries and efforts to ascertain not only the absent spouses whereabouts but, more
importantly, that the absent spouse is still alive or is already dead.15
The Requirement of Well-Founded Belief

The law did not define what is meant by "well-founded belief." It depends upon the circumstances of
each particular case. Its determination, so to speak, remains on a case-to-case basis. To be able to
comply with this requirement, the present spouse must prove that his/her belief was the result of
diligent and reasonable efforts and inquiries to locate the absent spouse and that based on these
efforts and inquiries, he/she believes that under the circumstances, the absent spouseis already dead.
It requires exertion of active effort (not a mere passive one).
To illustrate this degree of "diligent and reasonable search" required by the law, an analysis of the
following relevant cases is warranted:
i. Republic of the Philippines v. Court of Appeals (Tenth Div.)16
In Republic of the Philippines v. Court of Appeals (Tenth Div.),17 the Court ruled that the present
spouse failed to prove that he had a well-founded belief that his absent spouse was already dead
before he filed his petition. His efforts to locate his absent wife allegedly consisted of the following:
(1) He went to his in-laws house to look for her;
(2) He sought the barangay captains aid to locate her;
(3) He went to her friends houses to find her and inquired about her whereabouts among his friends;
(4) He went to Manila and worked as a part-time taxi driver to look for her in malls during his free time;
(5) He went back to Catbalogan and again looked for her; and
(6) He reported her disappearance to the local police station and to the NBI.
Despite these alleged "earnest efforts," the Court still ruled against the present spouse. The Court
found that he failed to present the persons from whom he allegedly made inquiries and only reported
his wifes absence after the OSG filed its notice to dismiss his petition in the RTC.
The Court also provided the following criteria for determining the existence of a "well-founded belief"
under Article 41 of the Family Code:
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 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 [the] present spouse.18
ii. Republic v. Granada19

Similarly in Granada, the Court ruled that the absent spouse failed to prove her "well-founded belief"
that her absent spouse was already dead prior to her filing of the petition. In this case, the present
spouse alleged that her brother had made inquiries from their relatives regarding the absent spouses
whereabouts. The present spouse did not report to the police nor seek the aid of the mass media.
Applying the standards in Republic of the Philippines v. Court of Appeals (Tenth Div.),20 the Court ruled
against the present spouse, as follows:
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 inquiredabout 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.

iii.Republic v. Nolasco21
In Nolasco, the present spouse filed a petition for declaration of presumptive death of his wife, who
had been missing for more than four years. He testified that his efforts to find her consisted of:
(1) Searching for her whenever his ship docked in England;
(2) Sending her letters which were all returned to him; and
(3) Inquiring from their friends regarding her whereabouts, which all proved fruitless. The Court ruled
that the present spouses investigations were too sketchy to form a basis that his wife was already
dead and ruled that the pieces of evidence only proved that his wife had chosen not to communicate
with their common acquaintances, and not that she was dead.
iv.The present case
In the case at bar, the respondents "well-founded belief" was anchored on her alleged "earnest
efforts" to locate Jerry, which consisted of the following:
(1) She made inquiries about Jerrys whereabouts from her in-laws, neighbors and friends; and
(2) Whenever she went to a hospital, she saw to it that she looked through the patients directory,
hoping to find Jerry.
These efforts, however, fell short of the "stringent standard" and degree of diligence required by
jurisprudence for the following reasons:
First, the respondent did not actively look for her missing husband. It can be inferred from the records
that her hospital visits and her consequent checking of the patients directory therein were
unintentional. She did not purposely undertake a diligent search for her husband as her hospital visits
were not planned nor primarily directed to look for him. This Court thus considers these attempts
insufficient to engender a belief that her husband is dead.
Second, she did not report Jerrys absence to the police nor did she seek the aid of the authorities to
look for him. While a finding of well-founded belief varies with the nature of the situation in which the
present spouse is placed, under present conditions, we find it proper and prudent for a present spouse,
whose spouse had been missing, to seek the aid of the authorities or, at the very least, report his/her
absence to the police.
Third, she did not present as witnesses Jerrys relatives or their neighbors and friends, who can
corroborate her efforts to locate Jerry. Worse, these persons, from whom she allegedly made inquiries,
were not even named. As held in Nolasco, the present spouses bare assertion that he inquired from
his friends about his absent spouses whereabouts is insufficient as the names of the friends from
whom he made inquiries were not identified in the testimony nor presented as witnesses.
Lastly, there was no other corroborative evidence to support the respondents claim that she
conducted a diligent search. Neither was there supporting evidence proving that she had a wellfounded belief other than her bare claims that she inquired from her friends and in-laws about her
husbands whereabouts. In sum, the Court is of the view that the respondent merely engaged in a
"passive search" where she relied on uncorroborated inquiries from her in-laws, neighbors and friends.
She failed to conduct a diligent search because her alleged efforts are insufficient to form a wellfounded belief that her husband was already dead. As held in Republic of the Philippines v. Court of
Appeals (Tenth Div.),22 "[w]hether or not the spouse present acted on a well-founded belief of death of
the absent spouse depends upon the inquiries to be drawn from a great many circumstances occurring
before and after the disappearance of the absent spouse and the natureand extent of the inquiries
made by [the] present spouse."
Strict Standard Approach Is Consistent with the States Policy to Protect and Strengthen Marriage
In the above-cited cases, the Court, fully aware of the possible collusion of spouses in nullifying their
marriage, has consistently applied the "strictstandard" approach. This is to ensure that a petition for

declaration of presumptive death under Article 41 of the Family Code is not used as a tool to
conveniently circumvent the laws. Courts should never allow procedural shortcuts and should ensure
that the stricter standard required by the Family Code is met. In Republic of the Philippines v. Court of
Appeals (Tenth Div.),23 we emphasized that:
In view of the summary nature of proceedings under Article 41 of the Family Code for the declaration
of presumptive death of ones spouse, the degree of due diligence set by this Honorable Court in the
above-mentioned cases in locating the whereabouts of a missing spouse must be strictly complied
with. There have been times when Article 41 of the Family Code had been resorted to by parties
wishing to remarry knowing fully well that their alleged missing spouses are alive and well. It is even
possible that those who cannot have their marriages xxx declared null and void under Article 36 of the
Family Code resort to Article 41 of the Family Code for relief because of the xxx summary nature of its
proceedings.
The application of this stricter standard becomes even more imperative if we consider the States
policy to protect and strengthen the institution of marriage.24 Since marriage serves as the familys
foundation25 and since it is the states policy to protect and strengthen the family as a basic social
institution,26 marriage should not be permitted to be dissolved at the whim of the parties. In
interpreting and applying Article 41, this is the underlying rationale to uphold the sanctity of
marriage. Arroyo, Jr.v. Court of Appeals27 reflected this sentiment when we stressed:
[The]protection of the basic social institutions of marriage and the family in the preservation of which
the State has 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.
Strict Standard Prescribed Under Article 41 of the Family Code Is for the Present Spouses Benefit
The requisite judicial declaration of presumptive death of the absent spouse (and consequently, the
application of a stringent standard for its issuance) is also for the present spouse's benefit. It is
intended to protect him/her from a criminal prosecution of bigamy under Article 349 of the Revised
Penal Code which might come into play if he/she would prematurely remarry sans the court's
declaration.
Upon the issuance of the decision declaring his/her absent spouse presumptively dead, the present
spouse's good faith in contracting a second marriage is effectively established. The decision of the
competent court constitutes sufficient proof of his/her good faith and his/her criminal intent in case of
remarriage is effectively negated.28 Thus, for purposes of remarriage, it is necessary to strictly comply
with the stringent standard and have the absent spouse judicially declared presumptively dead.
Final Word
As a final word, it has not escaped this Court's attention that the strict standard required in petitions
for declaration of presumptive death has not been fully observed by the lower courts. We need only to
cite the instances when this Court, on review, has consistently ruled on the sanctity of marriage and
reiterated that anything less than the use of the strict standard necessitates a denial. To rectify this
situation, lower courts are now expressly put on notice of the strict standard this Court requires in
cases under Article 41 of the Family Code.
WHEREFORE, in view of the foregoing, the assailed decision dated August 27, 2008 of the Court of
Appeals, which affirmed the order dated December 15, 2006 of the Regional Trial Court, Branch 25,
Koronadal City, South Cotabato, declaring Jerry F. Cantor presumptively dead is hereby REVERSED and
SET ASIDE.
SO ORDERED..

Republic vs. CA
GR No. 159614, December 9, 2005

FACTS:
Alan Alegro, the petitioner, was married with Lea in January 1995. Lea arrived home late in
February 1995 and Alan told her that if she enjoys life of a single person, it will be better for her to go
back to her parents. Lea left after that fight. Allan checked if she went to her parents house but was
not there and even inquired to her friends. He went back to the parents-in-laws house and learned
that Lea had been to their house but left without notice. He then sought help from the Barangay
Captain. For sometime, Alan decided to work as part-time taxi driver and during his free time he would
look for Lea in the malls. In June 2001, Alan reported Leas disappearance to the local police station
and an alarm notice was issued. He also reported the disappearance in NBI on July 2001. Alan filed a
petition in March 2001 for the declaration of presumptive death of his wife
ISSUE: Whether Alan has a well-founded belief that his wife is already dead.
HELD:
The court ruled that Alan failed to prove that he has a well-founded belief, before he filed his
petition with RTC, that his spouse was dead. He failed to present a witness other than the Barangay
Captain. He even failed to present those friends of Lea which he inquired to corroborate his testimony.
He also failed to make inquiries from his parents-in-law regarding Leas whereabouts before filing his
petition in the RTC. It could have enhanced his credibility had he made inquiries from his parents-in-law
about Lea's whereabouts considering that Lea's father was the owner of Radio DYMS. He did report and
seek help of the local police authorities and NBI to locate Lea but he did so only after the OSG filed its
notice to dismiss his petition in RTC.

Republic of the Philippines VS. Bermudez Lorino

G.R. No. 160258. January 19, 2005

FACTS:
Gloria Bermudez and Francisco Lorino were married in June 1987. The wife was unaware that
her husband was a habitual drinker with violent attitude and character and had the propensity to go
out with his friends to the point of being unable to work. In 1991 she left him and returned to her
parents together with her three children. She went abroad to work for her support her children. From
the time she left him, she had no communication with him or his relatives.
In 2000, nine years after leaving her husband, Gloria filed a verified petition with the RTC under
the rules on Summary Judicial Proceedings in the Family Law. The lower court issued an order for the
publication of the petition in a newspaper of general circulation.
In November 7, 2001, the RTC granted the summary petition. Although the judgment was final
and executors under the provisions of Act. 247 of the Family Code, the OSG for the Republic of the
Philippines filed a notice of appeal.

ISSUE: Whether or not the factual and legal bases for a judicial declaration of presumptive
death under Art 41 of the Family Code were duly established.

HELD: Art. 238 of the Family Code under Title XI Summary Judicial Proceeding in the Family
Law, sets the tenor for cases scoured by these rules, to wit:
Art238. 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 proceeding. Such cases shall be decided in an
expeditions manner with out regards technical rules.
The judge of the RTC fully complied with the above-cited provision by expeditiously rending
judgment within ninety (90) days after the formal offer of evidence by the petitioner.
G.R. No. 160258

January 19, 2005

REPUBLIC OF THE PHILIPPINES, petitioner, vs. GLORIA BERMUDEZ-LORINO, respondent.

Via this petition for review on certiorari under Rule 45 of the Rules of Court, petitioner Republic
of the Philippines, represented by the Office of the Solicitor General (OSG), seeks the reversal and
setting aside of the decision dated September 23, 2003 of the Court of Appeals in CA-G.R. CV No.
73884, which affirmed on appeal an earlier decision of the Regional Trial Court (RTC) at San Mateo,
Rizal in a summary judicial proceeding thereat commenced by the herein respondent Gloria BermudezLorino for the declaration of the presumptive death of her absent spouse, Francisco Lorino, Jr., based
on the provisions of Article 41 of the Family Code, for purposes of remarriage.
The facts may be summarized, as follows:
Respondent Gloria Bermudez-Lorino (Gloria for brevity), and her husband were married on June
12, 1987. Out of this marriage, she begot three (3) children, namely: Francis Jeno, Fria Lou and
Fatima.1a\^/phi1.net
Before they got married in 1987, Gloria was unaware that her husband was a habitual drinker,
possessed with violent character/attitude, and had the propensity to go out with friends to the extent
of being unable to engage in any gainful work.

Because of her husbands violent character, Gloria found it safer to leave him behind and
decided to go back to her parents together with her three (3) children. In order to support the children,
Gloria was compelled to work abroad.

From the time of her physical separation from her husband in 1991, Gloria has not heard of
him at all. She had absolutely no communications with him, or with any of his relatives.
On August 14, 2000, nine (9) years after she left her husband, Gloria filed a verified petition
with the Regional Trial Court (RTC) at San Mateo, Rizal under the rules on Summary Judicial
Proceedings in the Family Law provided for in the Family Code, which petition was docketed in the
same court as Special Proceeding No. 325-00 SM.
On August 28, 2000, the RTC issued an order directing, inter alia, the publication of the petition
in a newspaper of general circulation, thus:
A verified petition was filed by herein petitioner through counsel alleging that she married
Francisco Lorino, Jr. on June 12, 1987 but because of the violent character of his husband, she decided
to go back to her parents and lived separately from her husband. After nine (9) years, there was
absolutely no news about him and she believes that he is already dead and is now seeking through this
petition for a Court declaration that her husband is judicially presumed dead for the purpose of
remarriage.
Finding the said petition to be sufficient in form and substance, the same is hereby set for
hearing before this Court on September 18, 2000 at 8:30 oclock in the morning at which place, date
and time, any or all persons who may claim any interest thereto may appear and show cause why the
same should not be granted.
Let a copy of this Order be published in a newspaper of general circulation in this province
once a week for three (3) consecutive weeks and be posted in the bulletin boards of the Hall of Justice
and the Municipal Hall, San Mateo, Rizal, all at the expense of the petitioner.1awphi1.nt
Furnish the Office of the Solicitor General a copy of this Order together with a copy of the
petition. Further, send a copy of this Order to the last known address of Francisco Lorino, Jr. at 719
Burgos St., Sta. Elena, Marikina City.
SO ORDERED1
The evidence in support of the summary judicial proceeding are: the order of publication dated
August 28, 2000 (Exhibit "A"); affidavit of publication dated September 16, 2000 (Exhibit "B")2 ; copies
of the newspapers where the order appeared (Exhibits "C" to "E-1")3 ; a deposition dated September 4,
2000 of Gloria taken in Hong Kong (Exhibit "G")4 ; Glorias affidavit dated October 21, 1999, also
executed in Hong Kong (Exhibit "G-1")5 ; and a certification by Department of Foreign Affairs
Authentication Officer, Catalina C. Gonzalez, dated November 3, 1999, therein certifying that the
signature of Vice Consul Adriane Bernie C. Candolada, appearing below the jurat in Glorias affidavit of
October 21, 1999, is authentic (Exhibit "G-2")6 .
In a decision dated November 7, 2001, the RTC, finding merit in the summary petition,
rendered judgment granting the same, to wit:
WHEREFORE, this Court in view of the facts and circumstances obtaining, finds the petition
with merit and hereby grants its imprimatur to the petition. Judgment is hereby rendered declaring the
presumptive death/absence of Francisco Lorino, Jr. pursuant to Art. 41 of the New Family Code but
subject to all restrictions and conditions provided therein.
SO ORDERED.7
Despite the judgment being immediately final and executory under the provisions of Article
247 of the Family Code, thus:

Art. 247. The judgment of the court shall be immediately final and executory,
the Office of the Solicitor General, for the Republic of the Philippines, nevertheless filed a
Notice of Appeal.8 Acting thereon, the RTC had the records elevated to the Court of Appeals which
docketed the case as CA-G.R. CV No. 73884.
In a decision dated September 23, 2003, the Court of Appeals, treating the case as an ordinary
appealed case under Rule 41 of the Revised Rules on Civil Procedure, denied the Republics appeal and
accordingly affirmed the appealed RTC decision:
WHEREFORE, based on the foregoing premises, the instant appeal is DENIED. Accordingly, the
appealed November 7, 2001 Decision of the Regional Trial Court of San Mateo, Rizal in Spec. Proc. No.
325-00 SM is hereby AFFIRMED.

SO ORDERED.9
Without filing any motion for reconsideration, petitioner Republic directly went to this Court via
the instant recourse under Rule 45, maintaining that the petition raises a pure question of law that
does not require prior filing of a motion for reconsideration.
The foregoing factual antecedents present to this Court the following issues:
WHETHER OR NOT THE COURT OF APPEALS DULY ACQUIRED JURISDICTION OVER THE
APPEAL ON A FINAL AND EXECUTORY JUDGMENT OF THE REGIONAL TRIAL COURT; and
WHETHER OR NOT THE FACTUAL AND LEGAL BASES FOR A JUDICIAL DECLARATION OF
PRESUMPTIVE DEATH UNDER ARTICLE 41 OF THE FAMILY CODE WERE DULY ESTABLISHED IN THIS CASE.
The Court rules against petitioner Republic.
Article 238 of the Family Code, under Title XI: SUMMARY JUDICIAL PROCEEDINGS IN THE FAMILY
LAW, sets the tenor for cases covered by these rules, to wit:
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.
Judge Elizabeth Balquin-Reyes of RTC, Branch 75, San Mateo, Rizal duly complied with the
above-cited provision by expeditiously rendering judgment within ninety (90) days after the formal
offer of evidence by therein petitioner, Gloria Bermudez-Lorino.
The problem came about when the judge gave due course to the Republics appeal upon the
filing of a Notice of Appeal, and had the entire records of the case elevated to the Court of Appeals,
stating in her order of December 18, 2001, as follows:
Notice of Appeal having been filed through registered mail on November 22, 2001 by the Office
of the Solicitor General who received a copy of the Decision in this case on November 14, 2001, within
the reglementary period fixed by the Rules, let the entire records of this case be transmitted to the
Court of Appeals for further proceedings.
SO ORDERED.10
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". It was erroneous, therefore, on
the part of the RTC to give due course to the Republics appeal and order the transmittal of the entire
records of the case to the Court of Appeals.
An appellate court acquires no jurisdiction to review a judgment which, by express provision of
law, is immediately final and executory. As we have said in Veloria vs. Comelec,11 "the right to appeal

is not a natural right nor is it a part of due process, for it is merely a statutory privilege." Since, by
express mandate of Article 247 of the Family Code, all judgments rendered in summary judicial
proceedings in Family Law are "immediately final and executory", the right to appeal was not granted
to any of the parties therein. The Republic of the Philippines, as oppositor in the petition for declaration
of presumptive death, should not be treated differently. It had no right to appeal the RTC decision of
November 7, 2001.
It was fortunate, though, that the Court of Appeals, acting through its Special Fourth Division,
with Justice Elvi John S. Asuncion as Acting Chairman and ponente, denied the Republics appeal and
affirmed without modification the final and executory judgment of the lower court. For, as we have
held in Nacuray vs. NLRC :12
Nothing 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, and
whether made by the highest court of the land (citing Nunal v. Court of Appeals, G.R. No. 94005, 6 April
1993, 221 SCRA 26).

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.
This judgment of denial was elevated to this Court via a petition for review on certiorari under
Rule 45. Although the result of the Court of Appeals denial of the appeal would apparently be the
same, there is a big difference between having the supposed appeal dismissed for lack of jurisdiction
by virtue of the fact that the RTC decision sought to be appealed is immediately final and executory,
and the denial of the appeal for lack of merit. In the former, the supposed appellee can immediately
ask for the issuance of an Entry of Judgment in the RTC, whereas, in the latter, the appellant can still
raise the matter to this Court on petition for review and the RTC judgment cannot be executed until
this Court makes the final pronouncement.
The Court, therefore, finds in this case grave error on the part of both the RTC and the Court of
Appeals. To stress, the Court of Appeals should have dismissed the appeal on ground of lack of
jurisdiction, and reiterated the fact that the RTC decision of November 7, 2001 was immediately final
and executory. As it were, the Court of Appeals committed grave reversible error when it failed to
dismiss the erroneous appeal of the Republic on ground of lack of jurisdiction because, by express
provision of law, the judgment was not appealable.
WHEREFORE, the instant petition is hereby DENIED for lack of merit.1a\^/phi1.net No
pronouncement as to costs.
SO ORDERED.

EDUARDO P. MANUEL, petitioner, vs. PEOPLE OF THE PHILIPPINES, respondent

G.R. No. 165842
November 29, 2005
FACTS:
This case is a petition for review on certiorari of the decision of Court of Appeals affirming the
decision of the Regional Trial Court of Baguio City, convicting the petitioner for the crime of bigamy.
Eduardo P. Manuel, herein petitioner, was first married to Rubylus Gaa on July 18, 1975, who,
according to the former, was charged with estafa in 1975 and thereafter imprisoned and was never
seen again by him after his last visit. Manuel met Tina B. Gandalera in January 1996 when the latter
was only 21 years old. Three months after their meeting, the two got married through a civil wedding
in Baguio City without Gandaleras knowledge of Manuels first marriage. In the course of their
marriage, things got rocky and Gandalera learned that Eduardo was in fact already married when he
married him. She then filed a criminal case of bigamy against Eduardo Manuel. The latters defense
being that his declaration of single in his marriage contract with Gandalera was done because he
believed in good faith that his first marriage was invalid and that he did not know that he had to go to
court to seek for the nullification of his first marriage before marrying Tina. The Regional Trial Court
ruled against him sentencing him of imprisonment of from 6 years and 10 months to ten years, and an
amount 0f P200,000.00 for moral damages.
Eduardo appealed the decision to the CA where he alleged that he was not criminally liable for
bigamy because when he married the private complainant, he did so in good faith and without any
malicious intent. The CA ruled against the petitioner but with modification on the RTCs decision.
Imprisonment was from 2 years, months and 1 day to ten years. Pecuniary reward for moral damages
was affirmed.
Hence, this petition.
ISSUES:
1. Whether or not the Court of Appeals committed reversible error of law when it ruled that petitioners
wife cannot be legally presumed dead under Article 390 of the Civil Code as there was no judicial
declaration of presumptive death as provided for under Article 41 of the Family Code.

2. Whether or not the Court of Appeals committed reversible error of law when it affirmed the award of
Php200,000.00 as moral damages as it has no basis in fact and in law.
RULINGS:
1. The petition is denied for lack of merit. The petitioner is presumed to have acted with malice or evil
intent when he married the private complainant. As a general rule, mistake of fact or good faith of the
accused is a valid defense in a prosecution for a felony by dolo; such defense negates malice or
criminal intent. However, ignorance of the law is not an excuse because everyone is presumed to know
the law.
Ignorantia legis neminem excusat. Where a spouse is absent for the requisite period, the present
spouse may contract a subsequent marriage only after securing a judgment declaring the presumptive
death of the absent spouse to avoid being charged and convicted of bigamy; the present spouse will
have to adduce evidence that he had a well-founded belief that the absent spouse was already dead.
Such judgment is proof of the good faith of the present spouse who contracted a subsequent marriage;
thus, even if the present spouse is later charged with bigamy if the absentee spouse reappears, he
cannot be convicted of the crime. The court rules against the petitioner.
2. The Court rules that the petitioners collective acts of fraud and deceit before, during and after his
marriage with the private complainant were willful, deliberate and with malice and caused injury to the
latter. The Court thus declares that the petitioners acts are against public policy as they undermine
and subvert the family as a social institution, good morals and the interest and general welfare of
society. Because the private complainant was an innocent victim of the petitioners perfidy, she is not
barred from claiming moral damages. Considering the attendant circumstances of the case, the Court
finds the award of P200,000.00 for moral damages to be just and reasonable.

Cario vs Cario
November 20, 2010
Article 40
In 1969 SPO4 Santiago Cario married Susan Nicdao Cario. He had 2 children with her. In 1992, SPO4
contracted a second marriage, this time with Susan Yee Cario. In 1988, prior to his second marriage,
SPO4 is already bedridden and he was under the care of Yee. In 1992, he died 13 days after his
marriage with Yee. Thereafter, the spouses went on to claim the benefits of SPO4. Nicdao was able to
claim a total of P140,000.00 while Yee was able to collect a total of P21,000.00. In 1993, Yee filed an
action for collection of sum of money against Nicdao. She wanted to have half of the P140k. Yee
admitted that her marriage with SPO4 was solemnized during the subsistence of the marriage b/n
SPO4 and Nicdao but the said marriage between Nicdao and SPO4 is null and void due to the absence
of a valid marriage license as certified by the local civil registrar. Yee also claimed that she only found
out about the previous marriage on SPO4s funeral.

ISSUE: Whether or not the absolute nullity of marriage may be invoked to claim presumptive legitimes.
HELD: The marriage between Nicdao and SPO4 is null and void due the absence of a valid marriage
license. The marriage between Yee and SPO4 is likewise null and void for the same has been
solemnized without the judicial declaration of the nullity of the marriage between Nicdao and SPO4.
Under Article 40 of the FC, 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. Meaning,
where the absolute nullity of a previous marriage is sought to be invoked for purposes of contracting a
second marriage, the sole basis acceptable in law, for said projected marriage to be free from legal
infirmity, is a final judgment declaring the previous marriage void. However, for purposes other than
remarriage, no judicial action is necessary to declare a marriage an absolute nullity. For other
purposes, such as but not limited to the determination of heirship, legitimacy or illegitimacy of a child,

settlement of estate, dissolution of property regime, or a criminal case for that matter, the court may
pass upon the validity of marriage even after the death of the parties thereto, and even in a suit not
directly instituted to question the validity of said marriage, so long as it is essential to the
determination of the case. In such instances, evidence must be adduced, testimonial or documentary,
to prove the existence of grounds rendering such a previous marriage an absolute nullity. These need
not be limited solely to an earlier final judgment of a court declaring such previous marriage void.
The SC ruled that Yee has no right to the benefits earned by SPO4 as a policeman for their marriage is
void due to bigamy; she is only entitled to properties, money etc owned by them in common in
proportion to their respective contributions. Wages and salaries earned by each party shall belong to
him or her exclusively (Art. 148 of FC). Nicdao is entitled to the full benefits earned by SPO4 as a cop
even if their marriage is likewise void. This is because the two were capacitated to marry each other
for there were no impediments but their marriage was void due to the lack of a marriage license; in
their situation, their property relations is governed by Art 147 of the FC which provides that everything
they earned during their cohabitation is presumed to have been equally contributed by each party
this includes salaries and wages earned by each party notwithstanding the fact that the other may not
have contributed at all.

Anaya vs. Palaroan

36 SCRA 97
FACTS:
Aurora Anaya and Fernando Palaroan were married in 1953. Palaroan filed an action for annulment of
the marriage in 1954 on the ground that his consent was obtained through force and intimidation. The
complaint was dismissed and upheld the validity of the marriage and granting Auroras counterclaim.
While the amount of counterclaim was being negotiated, Fernando divulged to her that several months
prior to their marriage, he had pre-marital relationship with a close relative of his. According to her,
the non-divulgement to her of such pre-marital secret constituted fraud in obtaining her consent. She
prayed for the annulment of her marriage with Fernando on such ground.

ISSUE: Whether or not the concealment to a wife by her husband of his pre-marital relationship with
another woman is a ground for annulment of marriage.

HELD:
The concealment of a husbands pre-marital relationship with another woman was not one of those
enumerated that would constitute fraud as ground for annulment and it is further excluded by the last
paragraph providing that no other misrepresentation or deceit as to.. chastity shall give ground for

an action to annul a marriage. Hence, the case at bar does not constitute fraud and therefore would
not warrant an annulment of marriage.

G.R. No. L-27930 November 26, 1970

AURORA A. ANAYA, plaintiff-appellant, vs.FERNANDO O. PALAROAN, defendant-appellee.
Isabelo V. Castro for plaintiff-appellant.
Arturo A. Romero for defendant-appellee.
Appeal from an order of dismissal, issued motu proprio by the Juvenile & Domestic Relations Court,
Manila, of a complaint for annulment of marriage, docketed therein as Civil Case No. E-00431, entitled
"Aurora A. Anaya, plaintiff vs. Fernando O. Palaroan, defendant."
The complaint in said Civil Case No. E-00431 alleged, inter alia, that plaintiff Aurora and defendant
Fernando were married on 4 December 1953; that defendant Fernando filed an action for annulment of
the marriage on 7 January 1954 on the ground that his consent was obtained through force and
intimidation, which action was docketed in the Court of First Instance of Manila as Civil Case No.
21589; that judgment was rendered therein on 23 September 1959 dismissing the complaint of
Fernando, upholding the validity of the marriage and granting Aurora's counterclaim; that (per
paragraph IV) while the amount of the counterclaim was being negotiated "to settle the judgment,"
Fernando had divulged to Aurora that several months prior to their marriage he had pre-marital
relationship with a close relative of his; and that "the non-divulgement to her of the aforementioned
pre-marital secret on the part of defendant that definitely wrecked their marriage, which apparently
doomed to fail even before it had hardly commenced ... frank disclosure of which, certitude precisely
precluded her, the Plaintiff herein from going thru the marriage that was solemnized between them
constituted 'FRAUD', in obtaining her consent, within the contemplation of No. 4 of Article 85 of the
Civil Code" (sic) (Record on Appeal, page 3). She prayed for the annulment of the marriage and for
moral damages.
Defendant Fernando, in his answer, denied the allegation in paragraph IV of the complaint and denied
having had pre-marital relationship with a close relative; he averred that under no circumstance would
he live with Aurora, as he had escaped from her and from her relatives the day following their marriage
on 4 December 1953; that he denied having committed any fraud against her. He set up the defenses
of lack of cause of action and estoppel, for her having prayed in Civil Case No. 21589 for the validity of
the marriage and her having enjoyed the support that had been granted her. He counterclaimed for
damages for the malicious filing of the suit. Defendant Fernando did not pray for the dismissal of the
complaint but for its dismissal "with respect to the alleged moral damages."
Plaintiff Aurora filed a reply with answer to the counterclaim, wherein she alleged:
(1) that prior to their marriage on 4 December 1953, he paid court to her, and pretended to shower her
with love and affection not because he really felt so but because she merely happened to be the first
girl available to marry so he could evade marrying the close relative of his whose immediate members
of her family were threatening him to force him to marry her (the close relative);
(2) that since he contracted the marriage for the reason intimated by him, and not because he loved
her, he secretly intended from the very beginning not to perform the marital duties and obligations
appurtenant thereto, and furthermore, he covertly made up his mind not to live with her;
(3) that the foregoing clandestine intentions intimated by him were prematurely concretized for him,
when in order to placate and appease the immediate members of the family of the first girl (referent
being the close relative) and to convince them of his intention not to live with plaintiff, carried on a
courtship with a third girl with whom, after gaining the latter's love cohabited and had several children
during the whole range of nine years that Civil Case No. 21589, had been litigated between them
(parties); (Record on Appeal, pages 10-11)

Failing in its attempt to have the parties reconciled, the court set the case for trial on 26 August 1966
but it was postponed. Thereafter, while reviewing the expendiente, the court realized that Aurora's
allegation of the fraud was legally insufficient to invalidate her marriage, and, on the authority of
Brown vs. Yambao, 102 Phil. 168, holding:
It is true that the wife has not interposed prescription as a defense. Nevertheless, the courts can take
cognizance thereof, because actions seeking a decree of legal separation, or annulment of marriage,
involve public interest, and it is the policy of our law that no such decree be issued if any legal
obstacles thereto appear upon the record.
the court a quo required plaintiff to show cause why her complaint should not be dismissed. Plaintiff
Aurora submitted a memorandum in compliance therewith, but the court found it inadequate and
thereby issued an order, dated 7 October 1966, for the dismissal of the complaint; it also denied
reconsideration.
The main issue is whether or not the non-disclosure to a wife by her husband of his pre-marital
relationship with another woman is a ground for annulment of marriage.
We must agree with the lower court that it is not. For fraud as a vice of consent in marriage, which may
be a cause for its annulment, comes under Article 85, No. 4, of the Civil Code, which provides:
ART. 85. A marriage may be annulled for any of the following causes, existing at the time of the
marriage:
xxx xxx xxx
(4) That the consent of either party was obtained by fraud, unless such party afterwards, with full
knowledge of the facts constituting the fraud, freely cohabited with the other as her husband or his
wife, as the case may be;
This fraud, as vice of consent, is limited exclusively by law to those kinds or species of fraud
enumerated in Article 86, as follows:
ART. 86. Any of the following circumstances shall constitute fraud referred to in number 4 of the
preceding article:
(1) Misrepresentation as to the identity of one of the contracting parties;
(2) Non-disclosure of the previous conviction of the other party of a crime involving moral turpitude,
and the penalty imposed was imprisonment for two years or more;
(3) Concealment by the wife of the fact that at the time of the marriage, she was pregnant by a man
other than her husband.
No other misrepresentation or deceit as to character, rank, fortune or chastity shall constitute such
fraud as will give grounds for action for the annulment of marriage.

The intention of Congress to confine the circumstances that can constitute fraud as ground for
annulment of marriage to the foregoing three cases may be deduced from the fact that, of all the
causes of nullity enumerated in Article 85, fraud is the only one given special treatment in a
subsequent article within the chapter on void and voidable marriages. If its intention were otherwise,
Congress would have stopped at Article 85, for, anyway, fraud in general is already mentioned therein
as a cause for annulment. But Article 86 was also enacted, expressly and specifically dealing with
"fraud referred to in number 4 of the preceding article," and proceeds by enumerating the specific
frauds (misrepresentation as to identity, non-disclosure of a previous conviction, and concealment of
pregnancy), making it clear that Congress intended to exclude all other frauds or deceits. To stress
further such intention, the enumeration of the specific frauds was followed by the interdiction: "No
other misrepresentation or deceit as to character, rank, fortune or chastity shall constitute such fraud
as will give grounds for action for the annulment of marriage."

Non-disclosure of a husband's pre-marital relationship with another woman is not one of the
enumerated circumstances that would constitute a ground for annulment; and it is further excluded by
the last paragraph of the article, providing that "no other misrepresentation or deceit as to ... chastity"
shall give ground for an action to annul a marriage. While a woman may detest such non-disclosure of
premarital lewdness or feel having been thereby cheated into giving her consent to the marriage,
nevertheless the law does not assuage her grief after her consent was solemnly given, for upon
marriage she entered into an institution in which society, and not herself alone, is interested. The
lawmaker's intent being plain, the Court's duty is to give effect to the same, whether it agrees with the
rule or not.
But plaintiff-appellant Anaya emphasizes that not only has she alleged "non-divulgement" (the word
chosen by her) of the pre-marital relationship of her husband with another woman as her cause of
action, but that she has, likewise, alleged in her reply that defendant Fernando paid court to her
without any intention of complying with his marital duties and obligations and covertly made up his
mind not to live with her. Plaintiff-appellant contends that the lower court erred in ignoring these
allegations in her reply.
This second set of averments which were made in the reply (pretended love and absence of intention
to perform duties of consortium) is an entirely new and additional "cause of action." According to the
plaintiff herself, the second set of allegations is "apart, distinct and separate from that earlier averred
in the Complaint ..." (Record on Appeal, page 76). Said allegations were, therefore, improperly alleged
in the reply, because if in a reply a party-plaintiff is not permitted to amend or change the cause of
action as set forth in his complaint (Calo vs. Roldan, 76 Phil. 445), there is more reason not to allow
such party to allege a new and additional cause of action in the reply. Otherwise, the series of
pleadings of the parties could become interminable.
On the merits of this second fraud charge, it is enough to point out that any secret intention on the
husband's part not to perform his marital duties must have been discovered by the wife soon after the
marriage: hence her action for annulment based on that fraud should have been brought within four
years after the marriage. Since appellant's wedding was celebrated in December of 1953, and this
ground was only pleaded in 1966, it must be declared already barred.
FOR THE FOREGOING REASONS, the appealed order is hereby affirmed. No costs.

Aquino vs delizo
109 Phil 21

FACTS:

Fernando Aquino filed a complaint in September 1955 on the ground of fraud against Conchita Delizo
that at the date of her marriage with the former on December 1954, concealed the fact that she was
pregnant by another man and sometime in April 1955 or about 4 months after their marriage, gave
birth to a child. During the trial, Provincial Fiscal Jose Goco represent the state in the proceedings to
prevent collusion. Only Aquino testified and the only documentary evidence presented was the
marriage contract between the parties. Delizo did not appear nor presented any evidence.
CFI-Rizal dismissed petitioners complaint for annulment of marriage, which was affirmed by CA thus a
petition for certiorari to review the decisions.

ISSUE: Whether or not concealment of pregnancy as alleged by Aquino does not constitute such fraud
as would annul a marriage.

HELD:

The concealment by the wife of the fact that at the time of the marriage, she was pregnant by a man
other than her husband constitutes fraud and is a ground for annulment of marriage. Delizo was
allegedly to be only more than four months pregnant at the time of her marriage. At this stage, it is
hard to say that her pregnancy was readily apparent especially since she was naturally plump or fat.
It is only on the 6th month of pregnancy that the enlargement of the womans abdomen reaches a
height above the umbilicus, making the roundness of the abdomen more general and apparent.
In the following circumstances, the court remanded the case for new trial and decision complained is
set aside.

JIMENEZ VS. REPUBLIC OF THE PHILIPPINES

109 Phil 273

FACTS:
Plaintiff Joel Jimenez filed a complaint praying of a decree annulling his marriage with Remedios
Canizares. He claimed that the orifice of her genitals was too small to allow the penetration of a male
organ or penis for copulation. He also claimed that the condition of her genitals existed at the time of
marriage and continues to exist. The wife was summoned and served with a copy of the complaint but
she did not file an answer. The court entered an order requiring defendant to submit to a physical
examination by a competent lady physician to determine her physical capacity for copulation.
Defendant did not submit herself to the examination and the court entered a decree annulling the
marriage. The City Attorney filed a Motion for Reconsideration, among the grounds that the
defendants impotency has not been satisfactorily established as required by law; that she had not
been physically examined because she refused to be examined.

ISSUE: Whether or not the marriage may be annulled on the strength only of the lone testimony of the
husband who claimed and testified that his wife is impotent.

HELD:
The law specifically enumerates the legal grounds that must be proved to exist by indubitable
evidence to annul a marriage. In the case at bar, the annulment of the marriage in question was
decreed upon the sole testimony of the husband who was expected to give testimony tending or
aiming at securing the annulment of his marriage he sought and seeks. Whether the wife is really
impotent cannot be deemed to have been satisfactorily established because from the commencement
of the proceedings until the entry of the decree she had abstained from taking part therein.
Although her refusal to be examined or failure to appear in court show indifference on her part,
yet from such attitude the presumption arising out of the suppression of evidence could not arise or be
inferred because women of this country are by nature coy, bashful and shy and would not submit to a
physical examination unless compelled to by competent authority.
A physical examination in this case is not self-incriminating. She is not charged with any
offense . She is not being compelled to be a witness against herself.
Impotency being an abnormal condition should not be presumed. The presumption is in favor
of potency. The lone testimony of the husband that his wife is physically incapable of sexual
intercourse is insufficient to tear asunder the ties that have bound them together as husband and wife.
Ruling: The decree appealed from is set aside and the case remanded to the lower court for further
proceedings in accordance with this decision, without pronouncement as to costs.

OCAMPO vs. FLORENCIANO

Overview: This is an action for legal separation which Jose de Ocampo filed against his wife Serafina
on the ground of adultery. The case was dismissed by the Court of first Instance which was affirmed by
the Court Appeals holding that there was confession of judgment , plus condonation or consent to the
adultery and prescription.
Facts:
Jose de Ocampo (Petitioner) and Serafina Florenciano (Respondent) got married on April 5, 1938 and as
a result of such union, they begot several children. Sometime in March 1951, Ocampo discovered that
his wife was maintaining illicit relations with Jose Arcalas. He sent his wife to Manila to study beauty
culture. Again, Ocampo discovered that aside from Jose Arcalas, Serafina was going out with several
other men. Serafina left Ocampo after she finished her study and since then the two lived separately.
After Ocampo caught his wife in the act of having illicit relations with Nelsom Orzame on June 18,
1955, he signified his intention of filing a petition for legal separation. Serafina conformed to his
intention provided that she will not be charged with adultery in a criminal action.
Ocampo filed a petition for legal separation but the Court of First Instance of Nueva Ecija dismissed it
holding there was confession of judgment, plus condonation or consent to the adultery and
prescription which was AFFIRMED by the Court of Appeals.
CAs decision:
With regard to the defendants adultery with Jose Arcalas, the husbands right to legal separation had
prescribed because his action was not filed within one year from March 1951 when plaintiff discovered
her infidelity (art.102,NCC).
As to the adultery with Nelson Orzame, after discovery of such, the husband expressed his wish to file
a petition for legal separation which the defendant had readily agreed to. Before the fiscal, the
defendant even reiterated her conformity to the legal separation and admitted having sexual relations
with Nelson Orzame. The Appellate Court had interpreted such facts as a confession of judgment under
Art.101 and thus, legal separation could not be decreed.

Issue:
Whether or not a decree for legal separation be granted.

Ruling:
Yes. As the Court understand the article, it does not exclude, as evidence, any admission or confession
made by the defendant outside of the court. It merely prohibits a decree of separation upon a
confession of judgment. Confession of judgment usually happens when the defendant appears in court
and confesses the right of plaintiff to judgment or files a pleading expressly agreeing to the plaintiffs
demand.
Supposing the statement of defendant constitutes a confession of judgment, inasmuch as there is
evidence of the adultery independent of such statement, the decree may and should be granted, since
it would not be based on her confession, but upon evidence presented by the plaintiff. What the law
prohibits is a judgment based exclusively or mainly on defendants confession. If a confession defeats
the action ipso facto, any defendant who opposes the separation will immediately confess judgment
for the purpose of preventing it.
The fact that the defendant like also to be legally separated from her husband, is not an obstacle to
the successful prosecution of the action. When the court is informed that defendant equally desires the
separation and admitted the commission of the offense, it should be doubly careful lest a collusion
exists. However, the Court of Appeals did not find collusion.

There would be collusion if the parties had arranged by making it appear that a matrimonial offense
had been committed although it was not, or if the parties had connived to bring about a legal
separation even in the absence of grounds therefor.

According to the evidence presented in the instant case, the offense of adultery had really took place.
The defendant could not have falsely told the adulterous acts to the Fiscal, because her story might
send her to jail the moment her husband request the Fiscal to prosecute. She could not have practiced
deception at such a personal risk.
In connection to this, collusion may not be inferred from the mere fact that the guilty party confesses
to the offense and thus enables the other party to procure evidence necessary to prove it (Williams vs.
Williams, Rosenweig vs. Rosenweig). And proof that defendant desires the divorce and makes no
defense, it not by itself collusion (Pohlman vs. Pohlman).
The plaintiffs failure to actively search for the defendant and take her home (after the latter left him in
1952) does not constitute condonation or consent to her adulterous relations with Orzame. It was not
his duty to search for her to bring her home. Hers was the obligation to return.
Finding no obstacles to the aggrieved husbands petition, the Supreme Court hereby REVERSED the
decision being appealed and decree a legal separation between the spouses. Cost against Serafina
Florenciano.

Bugayong vs. Ginez

GR No. 10033, December 28, 1956

FACTS:

Benjamin Bugayong, a serviceman in the US Navy was married with Leonila Ginez on August 1949 at
Pangasinan while on furlough leave. Immediately after the marriage, they lived with the sisters of
Bugayong in said municipality before he went back to duty. The couple came to an agreement that
Ginez would stay with his sisters who later moved in Manila. On or about July 1951, she left the
dwelling of the sisters-in-law and informed her husband by letter that she had gone to Pangasinan to
reside with her mother and later on moved to Dagupan to study in a local college.
Petitioner then began receiving letters from Valeriana Polangco, (plaintiffs sister-in-law) and some from
anonymous writers, which were not produced at the hearing, informing him of alleged acts of infidelity
of his wife. He admitted that his wife informed him by letter that a certain Eliong kissed her. All these
communications, prompted him in October 1951 to seek the advice of the Navy Chaplain who asked
him to consult with the navy legal department.
In August 1952, Bugayong went to Pangasinan and looked for his wife. They met in the house of the
defendants godmother. They proceeded to the house of Pedro, cousin of the plaintiff where they
stayed for 1 day and 1 night as husband and wife. The next day, they slept together in their own
house. He tried to verify with Leonila the truth on the information he received but instead of
answering, she merely packed up and left which he took as a confirmation of the acts of infidelity. He
then filed a complaint for legal separation.

ISSUE: Whether there was condonation between Bugayong and Ginez that may serve as a ground for
dismissal of the action.

HELD:
Condonation is the forgiveness of a marital offense constituting a ground for legal separation. A single
voluntary act of marital intercourse between the parties ordinarily is sufficient to constitute
condonation and where the parties live in the same house, it is presumed that they live on terms of
matrimonial cohabitation.
Furthermore, Art. 100 of the Civil Code states that the legal separation may be claimed only by the
innocent spouse, provided there has been no condonation of or consent to the adultery or
concubinage.
Bugayong vs. Ginez
100 Phil 616, December 28, 1956
FACTS:

Benjamin Bugayong was married to defendant Leonila Ginez on August 27, 1949 at Asingan,
Pangasinan wherein they resided at the residence of Bugayongs sister. After some time or about July
1951, Leonila left and had gone to reside with her mother.


As early of July 1951, Benjamin began receiving letters from his sister-in-law and some from
anonymous writers informing him of alleged acts of infidelity of his wife.

In August 1952, Benjamin went to Pangasinan and sought for his wife whom he met in the
house of Leonilas godmother. They stayed in the house of Benjamins cousin and lived as husband and
wife for two nights and one day.

The couple then went to Benjamins house where they passed the night as husband and wife.
On the second day, Benjamin tried to verify from his wife the truth of the information he received but
instead of answering, Leonila packed up and left him which Benjamin concluded as a confirmation of
the acts of infidelity.

On November 18, 1952, Benjamin filed in the Court of First Instance a complaint for legal
separation against his wife Leonila Ginez.. The case was dismissed on the ground of alleged
condonation.

ISSUE:
Did Benjamin Bugayong condone the infidelity of Leonila?

RULING:
Yes. There was condonation because the husband, Benjamin Bugayong, actively searched for his wife
in Pangasinan after she left the conjugal home. The act of Benjamin in persuading Leoniza to come
along with him, and the fact that she went with him and consented to be brought to the house of his
cousin and together slept there as husband and wife and the further fact that in the second night they
slept together in their house as husband and wife all these facts have no other meaning than that a
reconciliation between them was effected and that there was condonation of the wife by the husband.
A single voluntary act of marital intercourse between the parties ordinarily is sufficient to constitute
condonation, and where the parties live in the same house, it is presumed that they live on terms of
matrimonial cohabitation.

Laperal vs. Republic

GR No. 18008, October 30, 1962

FACTS:

The petitioner, a bona fide resident of Baguio City, was married with Mr. Enrique R. Santamaria on
March 1939. However, a decree of legal separation was later on issued to the spouses. Aside from
that, she ceased to live with Enrique. During their marriage, she naturally uses Elisea L. Santamaria.
She filed this petition to be permitted to resume in using her maiden name Elisea Laperal. This was
opposed by the City Attorney of Baguio on the ground that it violates Art. 372 of the Civil Code. She
was claiming that continuing to use her married name would give rise to confusion in her finances and
the eventual liquidation of the conjugal assets.

ISSUE: Whether Rule 103 which refers to change of name in general will prevail over the specific
provision of Art. 372 of the Civil Code with regard to married woman legally separated from his
husband.

HELD:
In legal separation, the married status is unaffected by the separation, there being no severance of the
vinculum. The finding that petitioners continued use of her husband surname may cause undue
confusion in her finances was without basis. It must be considered that the issuance of the decree of
legal separation in 1958, necessitate that the conjugal partnership between her and Enrique had
automatically been dissolved and liquidated. Hence, there could be no more occasion for an eventual
liquidation of the conjugal assets.
Furthermore, applying Rule 103 is not a sufficient ground to justify a change of the name of Elisea for
to hold otherwise would be to provide for an easy circumvention of the mandatory provision of Art.
372.

Case Doctrines:

Legal separation alone is not a ground for wife's change of name. A womans married status is not
affected by a decree of legal separation, there being no severance of the vinculum, and under Article

372 of the New Civil Code, she must continue using the name and surname employed by her before
the separation.
It is doubtful whether Rule 103 of the Rules of Court, which refers to change of name in general, may
prevail over the specific provisions of Article 372 of the New Civil Code with regard to married women
legally separated from their husbands. Even, however, applying Rule 103, the fact of legal separation
alone is not sufficient ground to justify a change of name, because to hold otherwise, would be to
provide an easy circumvention of the mandatory provisions of said Article 372.

Facts:
In 1958, petitioner Elisea L. Santamaria was decreed legally separated from her husband Enrique R.
Santamaria. In 1960, she filed a petition to be allowed to change her name and/or be permitted to
resume using her maiden name Elisea Laperal. The City Attorney of Baguio opposed the petition on
the ground that the same violates the provisions of Article 370 (should be 372) of the Civil Code, and
that it is not sanctioned by the Rules of Court.

The court denied the petition. Upon petitioner's motion, however, the court, treating the petition as
one for change of name, reconsidered its decision and granted the petition on the ground that to allow
petitioner, who is a businesswoman decreed legally separated from her husband, to continue using her
married name would give rise to confusion in her finances and the eventual liquidation of the conjugal
assets. Hence, this appeal by the State.

Issues:
Should petitioner be allowed to change her name or be permitted to resume using her maiden name?

Held:
No. Article 372 of the Civil Code reads:
ART. 372. When legal separation has been granted, the wife shall continue using her name and
surname employed before the legal separation.
The language of the statute is mandatory that the wife, even after the legal separation has been
decreed, shall continue using her name and surname employed before the legal separation. This is so
because her married status is unaffected by the separation, there being no severance of the vinculum.
It seems to be the policy of the law that the wife should continue to use the name indicative of her
unchanged status for the benefit of all concerned.
Even applying Rule 103, the fact of legal separation alone which is the only basis for the petition
is, not a sufficient ground to justify a change of the name of petitioner, for to hold otherwise would be
to provide an easy circumvention of the mandatory provisions of Article 372.
The finding that petitioners continued use of her husband surname may cause undue confusion in her
finances was without basis. It must be considered that the issuance of the decree of legal separation
in 1958, necessitate that the conjugal partnership between her and Enrique had automatically been
dissolved and liquidated. Hence, there could be no more occasion for an eventual liquidation of the
conjugal assets. (Laperal vs Republic, GR No. L-18008, October 30, 1962).

TITLE: ONE ENG KIAM a.k.a. WILLIAM ONG, petitioner vs. LUCITA ONG, respondent
DATE: October 2006
PONENTE: J. Austria-Martinez
FACTS: William Ong and Lucita Ong were married on July 13, 1975. Union was blessed with 3 children.
On March 21, 1996, Lucita filed a complaint for legal separation under Art 55 (1) of FC on grounds of
physical violence, threats, intimidation and grossly abusive conduct of petitioner. RTC granted prayer
for legal separation. CA upheld RTCs decision when herein petitioner filed a Motion for Reconsideration
(MR). The climax of the couples drama was on December 14, 1995 when the respondent asked
petitioner to bring Kingston, their son, back from Bacolod which turned into a violent quarrel with the
petitioner hitting the respondent on the head, left cheek, eye, stomach, arms, and ultimately pointing
a gun at respondents head asking her to leave the conjugal house.
ISSUES: Whether or not CA erred in upholding the RTCs decision granting legal separation to Lucita
when she herself has given ground for legal separation when abandoned her family.
HELD: No.
RATIO: It is true that a decree of legal separation should not be granted when both parties have given
ground for legal separation (Art 56 (4) FC). However, the abandonment referred to in the Familu Code
is abandonment without justifiable cause for more than one year. Also, it was established that Lucita
left William due to his abusive conduct which does not constitute the abandonment contemplated in
the said provision.
DISPOSITION: Petition denied for lack of merit.