Benedicto v.

de la Rama
G.R. No. L-1056
8 December 1903
J. Willard
Espaola
plaintif Agueda Benedicto
defendant Esteban de la Rama
summary Plaintiff Agueda and defendant Esteban both seek a divorce, each one alleging the others
adultery. The Court was faced with the issue, first, of whether Courts of First Instance have
jurisdiction of divorce cases. It concluded: (a) Courts of First instance have jurisdiction to
entertain a suit for divorce; (b) that the only ground therefor is adultery; (c) that an action on
that ground can be maintained by the husband against the wife, or by the wife against the
husband; and (d) that the decree does not dissolve the marriage bond. The Court of First
Instance, therefore, correctly assumed jurisdiction of this case.
As to the allegations of adultery, the evidence proved that Esteban did in fact cheat on
Agueda, but the Court found that Agueda in turn also cheated on Esteban. Hence, since they are
mutually at fault, they are not entitled to the remedy of divorce.

facts of the case

Plaintiff Agueda instituted this action for divorce against her husband, defendant Esteban, alleging abandonment
and adultery. In his answer, Esteban denied the adultery imputed to him, and in turn accused Agueda of adultery and
asked for a divorce. The trial court rendered judgment in Aguedas favor, granting the divorce and her share of the
conjugal property. Esteban moved for a new trial on the ground that the evidence did not justify the facts; such motion
was denied. Hence, this petition.
issue
(1) Whether Courts of First Instance have jurisdiction over divorce cases. YES.
(2) Whether the parties are entitled to divorce. NO. Both Agueda and Esteban are guilty of adultery.
Their mutual fault bars the grant of a divorce.
ratio
(1) The Court examined the laws that had been in force in Spain relating to divorce, and whether these were extended
to the Philippines.
(a) The decrees of the council of Trent
In general, canon lawthe laws of the churchdoes not have any binding force outside of the church, unless by
proper action of the civil authorities, they are recognized as civil law. Such was the case for the decrees of the council
of Trent, which was recognized by the Civil Code: The requisites, form, and solemnities for the celebration of canonical
marriages shall be governed by the provisions of the Catholic Church and of the holy council of Trent, accepted as laws
of the Kingdom.
(b) The Decretal law
The Decretal law, enacted in 1868, was extended to the Philippines by royal order in 1869. Its provisions did not
have the effect of giving the canons therein the same effect as civil laws. It simply declared that the church might try
cases of divorce and annulment of marriage according to its own laws in its own courts, and the State would enforce
the decrees arising from those cases.
(c) The partidas
The partidas define divorce as the means by which the wife is separated from the husband, and the
husband from the wife, on account of some impediment existing between them, when it is properly
proved in court. There are only two grounds for divorce under the partidas: the first, which is not so relevant,
is religion, i.e. if one of the spouses [commits] spiritual fornication by becoming a heretic or a Moor or a Jew. The
second is adultery, which grants the injured party the right to ask for a divorce.
The partidas also provide that the husband and wife may accuse each other of adultery. If such accusation is to
separate them from living together or from having any commerce with each other, only they themselves or their
attorneys may make the accusation. Moreover, the accusation should be made before either the bishop or the judge of
the ecclesiastical court. The divorce, however, will not dissolve the marriage bond.
The Court then sought to examine whether the partidas had any force in the Philippines. The general rule
was that the laws of Spain did not have effect in the colonies unless expressly extended thereto. However, most of the
laws in the PH at the time were administrative in nature. Hence, the Recopilacion de las Leyes Indias provides, [A]s to
all matters not provided for by the laws of this compilation, the laws of the compilations and the partidas of these
Kingdom of Castile shall be followed. Hence, the partidas, particularly its provisions regarding divorce, were
in force in the PH.
Even the subsequent separation of church and state under the American government did not change
the substantive law on divorce, the partidas being civil instead of canon law. The change in sovereignty
indeed removed jurisdiction over divorce proceedings from the ecclesiastical courts and instead gave it to
the Courts of First Instance.1 But this change does not affect the right itselfonly the tribunal where it may be
claimed. Thus, the lower court correctly assumed jurisdiction over this case.
(2) The evidence was able to establish Estebans adultery. However, the Court also found Agueda guilty of
adultery, reversing the lower courts decision. This decision was based on a letter written by Agueda to Esteban,
begging for his forgiveness. The Court concluded that there could be no other cause for this but her adultery. Esteban
had alleged that Agueda had been having illicit relations with a Spanish corporal of the civil guard. He thus brought her
to her parents home and left her there. The Court held that this was not merely because he had tired of her, but
because Esteban had learned what Agueda had done.
The partidas provide: For the sin of each one of them is of itself a bar to an accusation against the other.
Therefore, neither of the parties may secure a divorce nor recover any costs.
dissent, J. Cooper
1 By virtue of Act No. 136. Section 56, first and fifth paragraphs, which provides: "Courts of First Instance shall have original
jurisdiction, first, in all civil actions in which the subject of litigation is not capable of pecuniary estimation; fifth, . . . and in all such
special cases and proceedings as are not otherwise provided for."

The Court decided this case based on facts that were better left with the lower court to determine. Since there are
several inconsistencies in the witnesses statements, the trial judge seemed best equipped to examine the witnesses
more than the Supreme Court. Hence, the rule that the appellate courts will not disturb the trial courts findings of fact
should apply.
Besides, in the so-called damning letter written by Agueda to Benedicto, she was apologizing not for an illicit fair,
but for asking for her pension from Benedicto.

ALBANO v. GAPUSAN
Adm. Matter No. 1022-MJ
May 7, 1976
Aquino
Fernandez
petitioners REDENTOR ALBANO
respondents MUNICIPAL JUDGE PATROCINIO C. GAPUSAN
summary Gapusan, before being appointed as a judge, notarised a document of the separation of
Valentina and Guillermo and for the liquidation of their conjugal partnership. It was stipulated in
that document that in the event that either spouse commits adultery or concubinage, the other
should refrain from filing an action against the other. Court ruled that Gapusan should be
censured for notarising a void agreement. To preserve the institutions of marriage and the
family, the law considers as void any contract for personal separation between husband and
wife and every extrajudicial agreement, during the marriage, for the dissolution of the conjugal
partnershipA notary should not facilitate the disintegration of a marriage and the family by
encouraging the separation of the spouses and extrajudically dissolving the conjugal partnership.

facts of the case

Five years before his appointment to the bench, Gapusan notarized a document for the personal separation of the
spouses Valentina Andres and Guillermo Maligta and for the extrajudicial liquidation of their conjugal partnership.
o It was stipulated in that document that if either spouse should commit adultery or concubinage, as the
case may be, then the other should refrain from filing an action against the other.

Judge Gapusan denied that he drafted the agreement. He explained that the spouses had been separated for a
long time when they signed the separation agreement and that the wife had begotten children with her paramour.
o He said that there was a stipulation in the agreement that the spouses would live together in case of
reconciliation. His belief was that the separation agreement forestalled the occurrence of violent incidents
between the spouses.

Albano in filing the malpractice charge is in effect asking this Court to take belated disciplinary action against
Judge Gapusan as a member of the bar or as a notary.

On the other hand, Albano complains that Judge Gapusan took advantage of his intimacy with Judge Crispin. He
implies that by reason of that intimacy Judge Crispin acquitted of frustrated murder the defendants in People vs.
Freddie Gapusan Gamboa, et al and convicted Albano of double frustrated murder with triple attempted murder in
another case.
o Albano said that Freddie Gapusan, an accused in the first criminal case above-mentioned and a
complaining witness in the other case against Albano, is a relative of Judge Gapusan.
o He revealed that after the acquittal decision was rendered by Judge Crispin the relatives of the accused in
that case were saying that their relationship to Judge Gapusan, a friend of Judge Crispin, proved to be
worthwhile and useful.

Judge Gapusan admitted in his answer that he is close to Judge Crispin because they used to be members of the
Municipal Judges League and because the latter used to be an Executive Judge. Gapusan said that his association
with Judge Crispin was purely official.
issue
(1) Should Gapusan be disciplined for notarizing a void agreement ? YES.
(2) Should Gapusan be disciplined for misconduct as a municipal judge? NO.
ratio
Malpractice as a notary

There is no question that the covenants contained in the said separation agreement are contrary to law, morals
and good customs. Those stipulations undermine the institutions of marriage and the family.
o To preserve the institutions of marriage and the family, the law considers as void any contract for
personal separation between husband and wife and every extrajudicial agreement, during the marriage,
for the dissolution of the conjugal partnership
o Before the new Civil Code, it was held that the extrajudicial dissolution of the conjugal partnership without
judicial sanction was void

A notary should not facilitate the disintegration of a marriage and the family by encouraging the separation of the
spouses and extrajudically dissolving the conjugal partnership. Notaries were severely censured by this Court for
notarizing documents which subvert the institutions of marriage and the family

Alleged misconduct in influencing CFI Judge

It is manifest that Albanos imputation that Judge Gapusan influenced Judge Crispin is anchored on mere suspicion.
If he has any evidence that Judge Crispin committed any irregularity due to the alleged influence exerted by Judge
Gapusan, then Albano should have complained against Judge Crispins actuations. He should not vent his ire on
Judge Gapusan alone.
IN RE ATTY. RUFILLO BUCANA
Adm. Case No. 1637
6 July 1976
Antonio, J.
Gan
petitioners None
respondents ATTY. RUFILLO BUCANA
summary Respondent notarized a document containing an agreement between spouses that in case
anyone of them will remarry both parties offer no objection and waive all civil and criminal
actions against them. Respondent claimed that the notarization of the document was due to his
negligence.
The Supreme Court held the respondent guilty of malpractice for notarizing a document which, in
substance, purports to formulate an agreement between the husband and the wife to take unto
himself a concubine and the wife to live in adulterous relations with another man, without
opposition from either one. The agreement induces each party to commit bigamy. This is not only
immoral but in effect abets the commission of a crime. A member of the bar who performs an act
as a notary public of a disgraceful or immoral character may be held to account by the court
even to the extent of disbarment.
facts of the case
- Respondent Notary Public Rufillo Bucana was required by the SC to show cause why he should not be disciplinary dealt
with for having notarized an Agreement which was contrary to law because it sanctions an illicit and immoral
purpose.

The Agreement was executed by the spouses Gonzalo Baltazar and Luisa Sorongon wherein the spouses agreed:

that in case anyone of them will remarry both parties offer no objection and waive all civil and criminal actions
against them and

that the Agreement was entered into for the purpose of agreement to allow each and everyone of them to
remarry without objection or reservation
- Respondent claimed that the notarization of the questioned document was due to his negligence.

He asserted that the document was prepared by his clerk without his previous knowledge

That when the document was presented to him, he vehemently refused to sign it

That he placed the said document on his table amount his files

And more than a week later, he asked where the document was for the purpose of destroying it, but to his
surprise found that the same was notarized b him as per his filed copies in the office.

That he must have inadvertently notarized the same in view of the numerous documents on his table and at the
time he was emotionally disturbed as his father (now deceased) was then seriously ill.
issue
Whether respondent should be held administratively liable for notarizing a document contrary to law. YES.
Ratio
- The Agreement is contrary to law, morals and good customs.
- The contract, in substance, purports to formulate an agreement between the husband and the wife to take unto
himself a concubine and the wife to live in adulterous relations with another man, without opposition from either
one, and what is more, it induces each party to commit bigamy. This is not only immoral but in effect abets the
commission of a crime.
- A notary public, by virtue of the nature of his office, is required to exercise his duties with due care and with due
regard to the provisions of existing law.
- It is for the notary to inform himself of the facts to which he intends to certify, and to take part in no illegal enterprise.
The notary public is usually a person who has been admitted to the practice of law, and as such, in the commingling
of his duties as notary and lawyer, must be held responsible for both.
- A member of the bar who performs an act as a notary public of a disgraceful or immoral character may be held to
account by the court even to the extent of disbarment.

- Here, the Agreement could not have been notarized if the respondent had only exercised the requisite care required by
law in the exercise of his duties as notary public.
Held: Respondent is guilty of malpractice. Suspended from the office of notary public for six months, with the
admonition that a repetition of the same or a similar act in the future will be dealt with more severely.
Tenchavez v. Escao
G.R. No. L-19671
Nov. 29, 1965
Reyes, J.B.L.
Reynes
petitioners Pastor Tenchavez
respondents Vicenta Escao et al.
summary Tenchavez and Escao entered into a marriage without the knowledge of the latters parents.
When they found out they sought priestly advice, which was to recelebrate the marriage;
however, it never happened. Escao migrated to the US and secured a divorce decree.
Afterwards, she became an American citizen. The Court ruled that the divorce decree cannot be
recognized here since Escao was still a Filipino citizen when she secured a divorce. As a citizen,
the governing law as regards family rights and duties or to the status, condition and legal
capacity is Philippine law.

facts of the case

1. [Feb. 24, 1948] PASTOR Tenchavez (an engineer) and VICENTA Escao (a second year student of commerce in
the Univ. of San Carlos [USC] in Cebu) exchanged marital vows without the knowledge of the latters parents.
The marriage was celebrated before a Catholic chaplain in the house of one Juan Alburo and was registered in
the local civil registry.
2. Their planned elopement after the marriage did not materialize because VICENTAs mother, who got wind of
the intended nuptials, was already waiting for her in USC.
3. VICENTAs parents sought priestly advice from Fr. REYNES, who suggested a recelebration to validate what he
believed to be an invalid marriage from the standpoint of the Church due to lack of authority from the
Archbishop or parish priest.
a. The planned recelebration did not take place because the father would not agree to the same. This was
due to a letter he received purportedly coming from USC students disclosing an amorous relationship
between PASTOR and PACITA (who was supposedly the couples matchmaker and governess-to-be of
their first born).
4. VICENTA continued living with her parents while PASTOR returned to his job in Manila.
5. As of June 1948, the couple were already estranged. VICENTA went to Misamis Occidenal to escape from the
scandal that her marriage stirred in Cebu.
6. VICENTAs lawyer filed a petition to annul her marriage. This petition was dismissed without prejudice because
of her non-appearance at the hearing. She also did not sign the petition.
7. [June 1950] VICENTA applied for a passport, indicating in her application that she was single. This was
approved. She then left for the United States.
8. [Aug. 22, 1950] VICENTA filed a complaint for divorce against PASTOR in a district court in Nevada, which
issued a decree of divorce.
9. [1951] VICENTAs parents filed a petition before the Archbishop of Cebu to annul VICENTA and PASTORs
marriage.
10. [Sept. 10, 1954] VICENTA sought papal dispensation of her marriage.
11. [Sept. 13, 1954] VICENTA married Russel Moran (an American) in Nevada. They lived to gether in California and
begot children.
12. [Aug. 8, 1958] VICENTA acquired American citizenship.
13. [July 30, 1955] PASTOR filed a complaint against VICENTA, her parents, and the Roman Catholic Church. He
asked for legal separation and PHP1 million in damages.
a. VICENTA claimed a valid divorce, while her parents denied that they had influenced their daughters
acts and counterclaimed for moral damages.
14. The CFI did not decree a legal separation but freed PASTOR from supporting VICENTA and to acquire property
to the exclusion of his wife. It also allowed the counterclaim of VICENTAs parents.
issues
1. W/N the marriage between PASTOR and VICENTA remains valid and subsisting under Philippine
law YES, it does.
2. W/N PASTOR is entitled to a decree of legal separation YES, he is.
3. W/N the CFIs grant of damages was correct NO, it was not.
ratio
1. The marriage between PASTOR and VICENTA remains valid and subsisting.

At the time the divorce was issued, VICENTA was still a Filipino citizen. Thus she was then subject to Philippine
law.
o Art. 15 of the Civil Code provides that [l]aws relating to family rights and duties or to the
status, condition and legal capacity of persons are binding upon the citizens of the
Philippines, even though living abroad.

The Civil Code does not admit absolute divorce. Instead of divorce, the Code only provides for legal separation,
which even if granted, does not sever marriage bonds.
For Philippine courts to recognize divorce between Filipino citizens would be a patent violation of the declared
public policy of the state.
o Art. 17 provides that "[p]rohibitive laws concerning persons, their acts or property and those which
have for their object public order, public policy and good customs, shall not be rendered ineffective by
laws or judgments promulgated, or by determinations or conventions agreed upon in a foreign
country."
o Also, granting the effectivity of divorce obtained abroad by Filipinos would unduly favor wealthy
citizens.

2. PASTOR is entitled to a decree of legal separation.

VICENTAs marriage and cohabitation with Moran is technically intercourse with a person not her husband
from the standpoint of Philippine law.
3. PASTOR should recover only PHP25,000 by way of moral damages and attorneys fees; while
VICENTAs parents should recover only PHP5,000.
VAN DORN v. ROMILLO
G.R. No. L-68470
October 8, 1985
MELENCIO-HERRERA, J.
Villarroya
petitioners Alice Reyes Van Dorn
respondents Hon. Manuel V. Romillo and Richard Upton
summary Petitioner Van Dorn (Filipina) and respondent Upton (US citizen) were married but subsequently
divorced in Nevada, USA. Respondent claims that under Philippine law, divorce decrees are not
recognized because of public policy. Therefore, he still had a right over their conjugal property (a
Galleon Shop in Manila). The SC held that a foreign national may obtain a divorce decree abroad
and be recognized in the Philippines provided it is in accordance with their national law. To hold
otherwise would create an absurd situation where a wife is without a husband. Thus, respondent
has no standing to sue with respect to their conjugal property.

facts of the case

Petitioner Alice Van Dorn is a Filipina citizen while respondent Richard Upton is a US citizen. They were married in
Hongkong and thereafter established their residence in the Philippines. They subsequently divorced in Nevada, United
States in 1982. Petitioner is now married to Theodore Van Dorn.
In 1983, respondent filed suit against petitioner in the Pasay RTC, stating that petitioner's Galleon Shop business in
Ermita, Manila is conjugal property of the parties, and asking that petitioner be ordered to render an accounting of that
business, and that private respondent be declared with right to manage the conjugal property.
Petitioner moved to dismiss the case on the ground that the cause of action is barred by previous judgment in the
divorce proceedings before the Nevada Court wherein respondent had acknowledged that he and petitioner had "no
community property" as of June 11, 1982.
For his part, respondent avers that the Divorce Decree issued by the Nevada Court cannot prevail over the
prohibitive laws of the Philippines and its declared national policy.
issue
Whether or not the Nevada Divorce Decree has force and effect in the Philippines. YES
ratio
It is true that owing to the nationality principle embodied in Article 15 of the Civil Code, only Philippine nationals
are covered by the policy against absolute divorces the same being considered contrary to our concept of public policy
and morality. However, aliens may obtain divorces abroad, which may be recognized in the Philippines, provided they
are valid according to their national law.
In this case, the divorce in Nevada released respondent from his marriage to petitioner. The marriage tie when
thus severed as to one party, ceases to bind either. A husband without a wife, or a wife without a husband, is unknown
to the law.
Thus, pursuant to his national law, respondent is no longer the husband of petitioner. He would have no standing
to sue in the case below as petitioner's husband entitled to exercise control over conjugal assets.
To maintain that, under our laws, petitioner has to be considered still married to respondent and still subject to a
wife's obligations cannot be just. Petitioner should not be obliged to live together with, observe respect and fidelity,
and render support to respondent. The latter should not continue to be one of her heirs with possible rights to conjugal
property. She should not be discriminated against in her own country if the ends of justice are to be served.

PILAPIL v. IBAY-SOMERA
G.R. No. 80116
June 30, 1989
Regalado, J.
Casila
petitioners Imelda Manalaysay Pilapil
respondents Hon. Corona Ibay-Somera, Presiding Judge of RTC Manila Br. 26
Hon. Luis C. Victor, City Fiscal of Manila
Erick Ekkehard Geiling
summary Geiling, the German husband, obtained a divorce decree in Germany against Pilapil, the Filipino
wife. Thereafter, he filed two complaints for adultery against Pilapil. The City Fiscal approved a
resolution to file the complaints. Pilapil asked SOJ to set aside the resolution. SOJ directed the city
fiscal to defer further proceedings. Judge Ibay-Somera merely reset the date of arraignment. Pilapil
filed MTQ which the judge denied. Pilapil now seeks to annul the order denying her MTQ on the
ground that Geiling had no standing to initiate the criminal complaint for adultery. SC set aside the
order and held that status of the complainant vis-a-vis the accused must be determined as of the
time the complaint was filed. The person who initiates the adultery case must be an offended
spouse, and by this is meant that he is still married to the accused spouse, at the time of the filing
of the complaint. The divorce and its legal effects may be recognized in the Philippines insofar as
Geiling is concerned in view of the nationality principle in our civil law on the matter of status of
persons.
facts of the case
Pilapil, a Filipino citizen, and Geiling, a German national, were married in Germany. They lived together for some
time in Malate, Manila where their only child Isabella was born.
After about 3 years of marriage (Jan 1983), Geiling initiated a divorce proceeding against Pilapil in Germany
claiming that there was failure of their marriage and that they had been living apart. Pilapil, on the other hand, filed an
action for legal separation, support and separation of property before RTC Manila (still pending). On Jan 15, 1986,
Schoneberg Local Court (in Germany) promulgated a decree of divorce on the ground of failure of marriage of the
spouses. The custody of the child was granted to Pilapil.
On June 27, 1986, Geiling filed two complaints for adultery before the City Fiscal of Manila alleging that, while still
married, Pilapil had an affair with William Chia in 1982 and with James Chua in 1983. The City Fiscal approved a
resolution directing the filing of two complaints for adultery against Pilapil.
Pilapil filed a petition with SOJ asking that the resolution be set aside and the cases against her be dismissed. SOJ
gave due course to the petition and directed the city fiscal to inform DOJ if the accused have already been arraigned
and if not yet, to move to defer further proceedings, and to elevate the entire records to his office for review.
Pilapil filed a motion in both criminal cases to defer her arraignment and to suspend further proceedings thereon.
Judge Ibay-Somera merely reset the date of the arraignment. Pilapil moved for the cancellation of arraignment and for
the suspension of proceedings until the resolution of the petition for review before SOJ, and filed a motion to quash on
the ground of lack of jurisdiction. The judge denied the motion and directed the arraignment. Pilapil refused to be
arraigned. Such refusal was considered by the judge as direct contempt and she and her counsel were fined and the
former was ordered detained until she submitted herself for arraignment. She later entered a plea of not guilty.
Pilapil filed a special civil action for certiorari and prohibition with TRO seeking the annulment of the order denying
her MTQ. The petition is anchored on the main ground that the court is without jurisdiction to try and decide the
charge of adultery, which is a private offense that cannot be prosecuted de oficio, since the complainant does not
qualify as an offended spouse having obtained a final divorce decree under his national law prior to his filing the
criminal complaint.
Subsequently, the SOJ issued a resolution directing the city fiscal to move for the dismissal of the complaints
upholding Pilapils ratiocinations.
issue
W/N it is necessary in the commencement of a criminal action for adultery that the marital bonds between the
complainant and the accused be unsevered and existing at the time of the institution of the action. YES.
ratio
Under Art. 344, RPC, the crime of adultery, as well as four other crimes against chastity, cannot be prosecuted
except upon a sworn written complaint filed by the offended spouse. Corollary to such exclusive grant of power, it
necessarily follows that such initiator must have the status, capacity or legal representation to do so at the time of the
filing of the criminal action.
In civil actions, the lack of legal capacity to sue, as a ground for a motion to dismiss in civil cases, is determined as
of the filing of the complaint or petition. The absence of an equivalent explicit rule in the prosecution of criminal cases
does not mean that the same requirement and rationale would not apply.
American jurisprudence yields the rule that after a divorce has been decreed, the innocent spouse no longer has
the right to institute proceedings against the offenders where the statute provides that the innocent spouse shall have
the exclusive right to institute a prosecution for adultery. Where, however, proceedings have been properly
commenced, a divorce subsequently granted can have no legal effect on the prosecution of the criminal proceedings
to a conclusion. There is no reason why the same rule should not apply in our jurisdiction. The status of the

complainant vis-a -vis the accused must be determined as of the time the complaint was filed. Thus, the person who
initiates the adultery case must be an offended spouse, and by this is meant that he is still married to the accused
spouse, at the time of the filing of the complaint.
The fact that Geiling obtained a valid divorce in his country is admitted. Said divorce and its legal effects may be
recognized in the Philippines insofar as he is concerned in view of the nationality principle in our civil law on the matter
of status of persons. Geiling, being no longer the husband of Pilapil, had no legal standing to commence the adultery
case under the imposture that he was the offended spouse at the time he filed suit.
Geilings allegation that he could not have brought the case before the decree of divorce for lack of knowledge is
of no legal significance. When he initiated the divorce proceeding, he knew that there would no longer be a family nor
marriage vows to protect once a dissolution of the marriage is decreed. Neither would there be a danger of introducing
spurious heirs into the family.
US v. Mata cannot be relied upon because what was contemplated and within the purview of the decision is the
situation where the criminal action for adultery was filed before the termination of the marriage by a judicial
declaration of its nullity ab initio.
concurring opinion
Paras, J. Geiling, by the very act of his obtaining an absolute divorce in Germany can no longer be considered as
the offended party because in divorcing her, he already implicitly authorized the woman to have sexual relations with
others. A contrary ruling would be less than fair for a man, who is free to have sex will be allowed to deprive the
woman of the same privilege.
One of the exceptions to the application of the proper foreign law (one of the exceptions to comity) is when the
foreign law will work an injustice or injury to the people or residents of the forum. Consequently since to recognize the
absolute divorce as valid on the part of the husband would be injurious or prejudicial to the Filipino wife whose
marriage would be still valid under her national law, it would seem that under our law existing before the new Family
Code (which took effect on August 3, 1988) the divorce should be considered void both with respect to the American
husband and the Filipino wife.
GARCIA v. RECIO
G.R. No. 138322
October 2, 2001
Panganiban, J.
Gonzales
petitioners
Grace J. Garcia, a.k.a. Grace J. Garcia-Recio
respondents
summary

Rederick A. Recio
Rederick Recio and Editha Samson married in Australia in 1987, then divorced in 1989. In 1992
Rederick became Australian citizen. He married Grace Garcia in 1994. In 1995 Grace and
Rederick lived separately. Garcia filed for Declaration of nullity of marriage on ground of Recios
bigamy. RTC recognized the divorce obtained in Australia and did not question respondents lack
of capacity to marry.
SC: The Philippine law does not provide for absolute divorce; hence, our courts cannot grant
it. In mixed marriages involving a Filipino and a foreigner, Article 26 of the Family Code allows
the former to contract a subsequent marriage in case the divorce is validly obtained abroad by
the alien spouse capacitating him or her to remarry. A divorce obtained abroad by two aliens,
may be recognized in the Philippines, provided it is consistent with their respective laws.
Therefore, before our courts can recognize a foreign divorce, the party pleading it must prove the
divorce as a fact and demonstrate its conformity to the foreign law allowing it.
Respondent claims that the Australian divorce decree, which was validly admitted as
evidence, adequately established his legal capacity to marry under Australian law. However,
there are two types of divorce, absolute divorce terminating the marriage and limited divorce
merely suspending the marriage. In this case, it is not known which type of divorce the
respondent
procured.
Respondent also failed to produce sufficient evidence showing the foreign law governing his
status. Together with other pieces of evidence submitted, they dont absolutely establish his
legal capacity to remarry according to the alleged foreign law.
Case was aremanded to the court a quo. The marriage between the petitioner and
respondent cannot be declared null and void based on lack of evidence conclusively showing the
respondents legal capacity to marry petitioner.

facts of the case

Rederick A. Recio, a Filipino, was married to Editha Samson, an Australian citizen, in Malabon, Rizal, on March 1,
1987. They lived together as husband and wife in Australia. On May 18, 1989, a decree of divorce, purportedly
dissolving the marriage, was issued by an Australian family court.
On June 26, 1992, Recio became an Australian citizen. He married Grace Garcia, a Filipina on January 12, 1994. In
their application for a marriage license, Recio was declared as single and Filipino.

Starting October 22, 1995, petitioner and respondent lived separately without prior judicial dissolution of their
marriage. While the two were still in Australia, their conjugal assets were divided on May 16, 1996, in accordance with
their Statutory Declarations secured in Australia.
On March 3, 1998, Garcia filed a Complaint for Declaration of Nullity of Marriage on the ground of bigamy -respondent allegedly had a prior subsisting marriage at the time he married her on January 12, 1994. She claimed that
she learned of respondents marriage to Editha Samson only in November, 1997.
Recio contended that his first marriage to an Australian citizen had been validly dissolved by a divorce decree
obtained in Australia in 1989; thus, he was legally capacitated to marry petitioner in 1994.
On July 7, 1998 -- or about five years after the couples wedding and while the suit for the declaration of nullity was
pending -- Recio was able to secure a divorce decree from a family court in Sydney, Australia because the marriage
ha[d] irretrievably broken down. Recio then prayed in his Answer that the Complaint be dismissed on the ground that it
stated no cause of action.
RTC declared the marriage dissolved on the ground that the divorce issued in Australia was valid and recognized in
the Philippines. It deemed the marriage ended, but not on the basis of any defect in an essential element of the
marriage; that is, respondents alleged lack of legal capacity to remarry. Rather, it based its Decision on the divorce
decree obtained by respondent. The Australian divorce had ended the marriage; thus, there was no more marital union
to nullify or annul.
issue
WoN Recio was legally capacitated to remarry (marry Garcia)Not sure. Case is remanded to RTC for the purpose of
receiving evidence which conclusively show respondents legal capacity to marry petitioner.
ratio
Before a foreign divorce decree can be recognized by our courts, the party pleading it must prove the divorce as a fact
and demonstrate its conformity to the foreign law allowing it. Presentation solely of the divorce decree is insufficient.
Proof of the divorce between Recio and Samson
Before a foreign judgment is given presumptive evidentiary value, the document must first be presented and
admitted in evidence.
Under Sections 24 and 25 of Rule 132, on the other hand, a writing or document may be proven as a public or
official record of a foreign country by either (1) an official publication or (2) a copy thereof attested by the officer
having legal custody of the document. If the record is not kept in the Philippines, such copy must be (a) accompanied
by a certificate issued by the proper diplomatic or consular officer in the Philippine foreign service stationed in the
foreign country in which the record is kept and (b) authenticated by the seal of his office.
The divorce decree between respondent and Editha Samson appears to be an authentic one issued by an
Australian family court. However, appearance is not sufficient; compliance with the aforementioned rules on evidence
must be demonstrated.
Fortunately for respondents cause, when the divorce decree of May 18, 1989 was submitted in evidence, counsel
for petitioner objected, not to its admissibility, but only to the fact that it had not been registered in the Local Civil
Registry of Cabanatuan City. The trial court ruled that it was admissible, subject to petitioners qualification. Hence, it
was admitted in evidence and accorded weight by the judge. Indeed, petitioners failure to object properly rendered
the divorce decree admissible as a written act of the Family Court of Sydney, Australia.
Compliance with the articles (11, 13 and 52) of the Family Code is not necessary; respondent was no longer bound
by Philippine personal laws after he acquired Australian citizenship in 1992. Naturalization is the legal act of adopting
an alien and clothing him with the political and civil rights belonging to a citizen. By becoming an Australian,
respondent severed his allegiance to the Philippines and the vinculum juris that had tied him to Philippine personal
laws.
Respondents Legal Capacity to Remarry
In its strict legal sense, divorce means the legal dissolution of a lawful union for a cause arising after
marriage. But divorces are of different types. The two basic ones are (1) absolute divorce or a vinculo matrimonii and
(2) limited divorce or a mensa et thoro. The first kind terminates the marriage, while the second suspends it and
leaves the bond in full force. There is no showing in the case at bar which type of divorce was procured by respondent.
Respondent presented a decree nisi or an interlocutory decree -- a conditional or provisional judgment of
divorce. It is in effect the same as a separation from bed and board, although an absolute divorce may follow after the
lapse of the prescribed period during which no reconciliation is effected.
Even after the divorce becomes absolute, the court may under some foreign statutes and practices, still restrict
remarriage. Under some other jurisdictions, remarriage may be limited by statute; thus, the guilty party in a divorce
which was granted on the ground of adultery may be prohibited from marrying again. The court may allow a
remarriage only after proof of good behavior.
On its face, the herein Australian divorce decree contains a restriction that reads:

1. A party to a marriage who marries again before this decree becomes absolute (unless the other party has
died) commits the offence of bigamy.
This quotation bolsters the contention that the divorce obtained by respondent may have been restricted. It did
not absolutely establish his legal capacity to remarry according to his national law. Hence, there is no basis for the
ruling of the trial court, which erroneously assumed that the Australian divorce ipso facto restored respondents
capacity to remarry despite the paucity of evidence on this matter.
IN SUM, the court a quo erred in finding that the divorce decree ipso facto clothed respondent with the legal
capacity to remarry without requiring him to adduce sufficient evidence to show the Australian personal law governing
his status; or at the very least, to prove his legal capacity to contract the second marriage.
Neither can petitioners prayer to declare her marriage to respondent null and void on the ground of bigamy be
granted. After all, it may turn out that under Australian law, Recio was really capacitated to marry petitioner as a direct
result of the divorce decree.

Goitia v. Campos Rueda

G.R. No. 11263
November 2, 1916
Trent, J.
Hermosisima
petitioners ELOISA GOITIA DE LA CAMARA
respondents JOSE CAMPOS RUEDA
summary Wife left the conjugal home because of unchaste and lascivious acts that husband is forcing her
to do. She now seeks for support. Husband refuses and claims that under Art 149, he has a
choice to support the wife through pension or for her to live at his house. SC: the option given in
Art 149 is not absolute, it may be limited to just giving pension when for justifiable or moral
cause, the wife is driven away due to acts of husband.

facts of the case

This is an action by wife against husband for support outside the conjugal home. After 1 month of marriage, Rueda
repeatedly demanded from Goitia to perform "unchaste and lascivious acts on his genitals." Goitia refused so Rueda
maltreated her by word and deed, inflicting bodily injuries on her. To escape Rueda's lewd designs, Goitia left the
conjugal home and took refuge in her parent's house. She then filed an action for support with the trial court.
TC: Dismissed on the ground that the husband cannot be compelled to give support if wife lived outside of the
conjugal home, unless there was legal separation.
issue
May the husband, on account of his conduct toward his wife, lose the option given to him in Art 149 and be compelled
to pay the pension even if the wife refuses to live with him at home? YES.
ratio
Marriage is an institution, in the maintenance of which in its purity the public is deeply interested. It is a relation
for life and the parties cannot terminate it at any shorter period by virtue of any contract they may make .The
reciprocal rights arising from this relation, so long as it continues, are such as the law determines from time to time,
and none other.
Civil Code Provisions Applicable to the Philippines (by royal decree):
ART. 44. The spouses are obliged to be faithful to each other and to mutually assist each other.
ART. 45. The husband must live with and protect his wife. (The second paragraph deals with the management of the
wife's property.)
ART. 48. The wife must obey her husband, live with him, and follow him when he charges his domicile or residence.
Notwithstanding the provisions of the foregoing paragraph, the court may for just cause relieve her from this duty
when the husband removes his residence to a foreign country.
ART. 143. The following are obliged to support each other reciprocally to the whole extent specified in the preceding
article.
1. The consorts. xxx xxx xxx
ART. (149) 49. The person obliged to give support may, at his option, satisfy it, either by paying the
pension that may be fixed or by receiving and maintaining in his own home the person having the right
to the same.
Article 152 of the Civil Code gives the instances when the obligation to give support shall cease. The failure of the wife
to live with her husband is not one of them.
The SC of Spain ruled:
The option, which article 149 grants to pay a pension or maintain the wife in his house, is NOT
ABSOLUTE. If the person entitled to enjoy support has a justifiable or moral cause to refuse to be maintained in his
household, then the right of selection must be understood to be restricted.
Situation 1:
Voluntary separation, the spouses mutually agreed to separate
Effect:
The duty to live together and support each other remains. Because to rule otherwise would disregard
the marriage bond and the spouses would be able to separate from each other on their own free will.
Situation 2:
Effect:

Willful abandonment of a spouse, without any cause whatsoever

Neither spouse can be compelled to support the other outside of the conjugal abode

Situation 3:

Abandonment of conjugal home due to justifiable/moral cause

Effect:

Duty/obligation of guilty spouse remains, the option to choose as per 149 is limited

In the Philippines, the only ground allowed for divorce is adultery

In Spain, there are several grounds for divorce, e.g. adultery on the part of the wife in every case and on the part of
the husband when public scandal or disgrace of the wife results therefrom; personal violence actually inflicted or grave
insults: violence exercised by the husband toward the wife in order to force her to change her religion; the proposal of
the husband to prostitute his wife; the attempts of the husband or wife to corrupt their sons or to prostitute their
daughters; the connivance in their corruption or prostitution; and the condemnation of a spouse to perpetual chains or
hard labor. But these laws are not applicable here in the Philippines.
Argument against support given to spouse when one leaves the conjugal home for justifiable cause:
to grant support in an independent suit is equivalent to granting divorce or separation, as it necessitates a
determination of the question whether the wife has a good and sufficient cause for living separate from her husband;
and, consequently, if a court lacks power to decree a divorce, as in the instant case, power to grant a separate
maintenance must also be lacking.
SCs Answer: The weakness of this argument lies in the assumption that the power to grant support in a separate
action is dependent upon a power to grant a divorce. That the one is not dependent upon the other is apparent from
the very nature of the marital obligations of the spouses. The mere act of marriage creates an obligation on the part of
the husband to support his wife. This obligation is founded not so much on the express or implied terms of the contract
of marriage as on the natural and legal duty of the husband; an obligation, the enforcement of which is of such vital
concern to the state itself that the laws will not permit him to terminate it by his own wrongful acts in driving his wife
to seek protection in the parental home. A judgment for separate maintenance is not due and payable either as
damages or as a penalty; nor is it a debt in the strict legal sense of the term, but rather a judgment calling for the
performance of a duty made specific by the mandate of the sovereign. This is done from necessity and with a view to
preserve the public peace and the purity of the wife; as where the husband makes so base demands upon his wife and
indulges in the habit of assaulting her.
People v Zapanta
G.R. No. L-3047
May 16, 1951
PADILLA
Leynes
petitioners THE PEOPLE OF THE PHILIPPINES
respondents GUADALUPE ZAPATA and DALMACIO BONDOC
summary Two subsequent complaints for adultery were filed by Andres against his wife (Guadalupe) and
paramour (Dalmacio). Defendants filed a motion to quash on the ground of double jeopardy. SC
said, NO. since each act of carnal knowledge constitutes a crime. Hence, the first case deals with
crimes before such case and the second case covers act committed between the first case and
the second case.

facts of the case

14 March 1947 - Andres Bondoc file a case of adultery against Guadalupe Zapata, his wife, and Dalmacio Bondoc,
her paramour, for cohabiting and having repeated sexual intercourse during the period from the year 1946
Dalmacio Bondoc knowing his codefendant to be a married woman.
The defendant wife entered the plea of guilty and was sentenced to suffer four months of arresto mayor which
penalty she served.
17 September 1948 - Andres filed another complaint for adulterous acts committed by his wife and her paramour
from 15 March 1947 to 17 September 1948.
Each of the defendants filed a motion to quash the complaint of the ground of double jeopardy.
The trial court held that the adulterous acts charged in the first and second complains must be deemed one
continuous offense,

the defendants in both complaints being the same and identical persons and

the two sets of unlawful acts having taken place continuously during the years 1946, 1947 and part of 1948,
and

that the acts or two sets of acts that gave rise to the crimes of adultery complained of in both cases.
issue
WON the second complaint should be quashed for double jeopardy. NO. Each act of carnal knowledge constitutes
the crime of adultery, so long as the husband and wife are still married.
ratio
Adultery is a crime of result and not of tendency;
It is a instantaneous crime which is consummated and exhausted or completed at the moment of the carnal union.
Each sexual intercourse constitutes a crime of adultery.
True, two or more adulterous acts committed by the same defendants are against the same person the
offended husband, the same status the union of the husband and wife by their marriage, and the same
community represented by the State for its interest in maintaining and preserving such status.

BUT the commission of the crime of adultery is as many times as there were carnal consummated, for as long as
the status remain unchanged, an encroachment or trespass upon that status constitutes a crime.
Gadionco v. Peeranda
G.R. No. ######
Date promulgated
Ponente
Authors surname
petitioners Froilan Gadionco
respondents Hon. Senen Peeranda, Teresita Gadionco
summary Summary of facts and ratio. Doctrine. Relationship to syllabus topic.

facts of the case

Teresita Gadionco filed an action for legal separation (+ support, support pendente lite) against her husband
Froilan on the ground of concubinage. She also filed with the GenSan MTC a criminal action for concubinage.
Judge Peeranda issued an Order directing petitioner to pay support pendente lite. Petitioner contends that the
civil action for legal separation and the incidents consequent thereto, such as, application for support pendente
lite, should be suspended in view of the criminal case for concubinage filed against him the private respondent.
issue
Whether the civil action for legal sep should be suspended pending the result of the criminal case. NO.
ratio
Suspension of civil action should be based on the civil liability arising from the crime - In view of the
amendment under the 1985 Rules on Criminal Procedure, a civil action for legal separation, based on concubinage,
may proceed ahead of, or simultaneously with, a criminal action for concubinage, because said civil action is not one
"to enforce the civil liability arising from the offense" even if both the civil and criminal actions arise from or are
related to the same offense. Such civil action is one intended to obtain the right to live separately, with the legal
consequences thereof, such as, the dissolution of the conjugal partnership of gains, custody of offsprings, support, and
disqualification from inheriting from the innocent spouse, among others.
This action for legal separation is not to recover civil liability, in the main, but is aimed at the conjugal rights of the
spouses and their relations to each other, within the contemplation of Articles 7 to 108, of the Civil Code."
No need for concubinage convicion before decree of legal sep issued - A decree of legal separation, on the
ground of concubinage, may be issued upon proof by preponderance of evidence in the action for legal separation. No
criminal proceeding or conviction is necessary. To this end, the doctrine in Francisco vs. Tayao has been modified, as
that case was decided under Act. No. 2710, when absolute divorce was then allowed and had for its grounds the same
grounds for legal separation under the New Civil Code, with the requirement, under such former law, that the guilt of
defendant spouses had to be established by final judgment in a criminal action. That requirement has not been
reproduced or adopted by the framers of the present Civil Code, and the omission has been uniformly accepted as a
modification of the stringent rule in Francisco v. Tayao.
Muoz v. Barrio
No. 12506-R (CA)
15 April 1955
J. Felix
Espaola
petitioner Felicidad P. Muoz
respondent Jose del Barrio
summary Felicidad and Jose married in 1942 and separated in 1947 after Jose allegedly physically
maltreated Felicidad. Notwithstanding their separation, she claims he once again maltreated her
in 1950 and 1951, prompting her to file the present action, praying for legal separation on the
ground of attempt on her life. The Court denied, holding that intent to kill had not been
sufficiently proven, since it must be established by clear and convincing evidence. In
this case, Jose had merely hurt Felicidad on impulse, but had desisted from injuring her further
hence not demonstrating acts calculated to produce her death.

facts of the case

Felicidad Muoz and Jose del Barrio married each other in 1942 and lived at the home of Joses father in Rizal
Avenue, Manila. They later moved their residence to Meycauayan, Bulacan, and had two children.
The couple frequently quarreled, and on these occasions, Jose maltreated his wife. Unable to bear this
maltreatment, they separated in 1947: she remained in Meycauayan, while Jose left for his fathers house in Manila.
Notwithstanding their separation, however, Felicidad claims that Jose once again maltreated her in 1950 and 1951,
prompting her to file the present action, praying for legal separation, dissolution and liquidation of conjugal
partnership, custody, and support, on the ground that Jose had made several attempts on her life. In his Answer, Jose
denied the averments made in Felicidads pleading.

The Court took every feasible step towards reconciliation, but when this failed, trial ensued. Felicidads complaint
was dismissed for lack of merit; thus, this appeal, where she alleges that the court below had erred in finding that Jose
had not made attempts on her life.
issue
Whether the maltreatments that Felicidad suffered at Joses hands after their de facto separation furnish ground for
legal separation. NO. The intention to take a life was not here proven. It must be established with clear
and convincing evidence.
ratio
The Court assumed that the maltreatments Felicidad suffered before the spouses separation in fact must not have
amounted to attempts by Jose on her life, since she did not institute any action upon the effectivity of the NCC. This
case was only brought to the court below in October 1951, after she had been allegedly maltreated in September
1951.
A witness for Felicididad, Jovita Faustino, one of their neighbors in Meycauayan, testified that Jose had punched
Felicidad in the face. Another witness, the Patrolman who responded to the spouses encounter in 1950, arrived when
the altercation was already over, but noticed that Felicidad was crying, there were scratches on her brow and cheeks,
and parts of her neck were blackened with ecchymosis. 2 Finally, Atty. Manuel Macias testified as to the time when the
spouses quarreled in his office: Jose boxed his wife on the abdomen, pulled her hair, and twisted her neck, but Atty.
Macias and two others were able to separate them.
Art. 97, NCC, provides:
A petition for legal separation may be filed:
(1)
For adultery on the part of the wife and for concubinage on the part of the husband, as defined in
the Penal Code; or
(2)
An attempt by one spouse against the life of the other.
An attempt on a persons life implies that the attempt is moved by intention to kill, but the Court here declared
that the alleged maltreatments by Jose of his wife were not motivated by intent to kill.
The intention to take a life must be proved with the same degree of certainty as is required with
respect to other elements of the crime. Homicidal intent is shown through adequate acts, which, at the time of
their execution, were unmistakably calculated to produce the death of the victim. In the absence of proof, it is not
proper or just to attribute to the delinquent a specific intent to commit the higher crime, in order to justify such a
conclusion.
The Court had held in US v. Reyes:
When the case affords no good reason for holding that the assailants positively intended to kill the
injured party in spite of the persistent and repeated beatings they gave him, however much they
plainly demonstrated their intention of doing him injury, by striking him in an inhuman manner on
various parts of his body, it is improper to classify the crime as either frustrated or attempted
homicide.
Felicidad argues that since this is a civil case, it suffices to prove her right of action only by a preponderance of
evidence, and not by evidence beyond reasonable doubt, as is required in criminal cases,
The Court disagreed and ruled that in so far as the intent to kill is concerned, it must be established with
clear and convincing evidence. In this case, Jose had at most used his bare fists or hands against Felicidad, only at
the spur of his impulse, and he had desisted from further hurting her. Thus, intent to kill has not been proved in
this case by Felicidads evidence.
Contreras v. Macaraig
G.R. No. L-29138
May 29, 1970
Dizon
Ramos
petitioners ELENA CONTRERAS
respondents CESAR J. MACARAIG
summary Wife found out from their driver on September 1962 that her husband was having an affair with
Lily Ann Alcala. She did not confront him because she did not want to drive away her husband
from their family and wanted him to come home. She talked to her father-in-law, sister-in-law,
and even Lily just so she can amend her relationship with him.
Eventually, on December 1963, Plaintiff with her 2 children went to the place of work of
Defendant to finally confront him and pleaded with him to go home. However, Defendant refused
and said he could no longer leave Lily Ann to return to their family. On December 14, 1963,
plaintiff instituted the present action for legal separation.
TC said action prescribed. She should have filed the case one year from September 1962
pursuant to Article 102 of CC which provides that, an action for legal separation cannot be
instituted except within one year after plaintiff "became cognizant of the cause."

2 Ecchymosis: a discoloration of the skin resulting from bleeding underneath, typically

caused by bruising.
8

SC said the only time when appellant really became cognizant of the infidelity of her husband
was in the early part of December 1963 when she went and begged her husband to return to
their conjugal home assuring him that she would forgive him. It was only on the occasion when
her husband admitted to her that he was living with and would no longer leave Lily Ann to return
to his legitimate family that appellant must be deemed to be under obligation to decide whether
to sue or not to sue for legal separation, and it was only then that the legal period of one year
must be deemed to have commenced.

facts of the case

Petitioner (wife) and respondent (husband) were married on March 16, 1952. They had 3 children, who are all
under the care of the wife.
Sometime in 1958, the couple acquired rights, as lessee and purchaser under a conditional sale agreement, to own
a house and lot, in Quezon City which they transferred in favor of their 3 children on October 29, 1958. Installment
payments are being made by wifes father. The spouses own no other conjugal property.
Husband then worked in the printing establishment of wifes father. There he met Lily Ann Alcala who placed
orders for Sergio Osmena for the 1961 elections. After the elections, he began to be away and come home very late.
He said he had confidential missions since he was now a special agent for the Malacanang.
In September, 1962, Avelino Lubos, driver of the family car, told plaintiff that defendant was living in Singalong
with Lily Ann Alcala. She also received rumors that defendant was seen with a woman who was on the family way on
Dasmarias St. She never confronted the husband, even if he would only stay at home for 2 or 3 days but be gone for
about a month (Note: he went home on Oct. 2013). Eventually, she received reports that Lily Ann Alcala had given
birth to a baby. This was confirmed by Antioqua, her fathers employee. In the baptismal certificate of the child,
defendant was named as the father (shown to her in Oct. 1963)
Plaintiff talked to her father-in-law to talk to his son but he could not do anything about the situation. She also
talked to her sister-in-law in Nov. 2013 to arrange a meeting with Lily. The latter said she was willing to give up
defendant as she had no desire to be accused criminally but it was defendant who refused to break relationship with
her.
In the early part of December 1963, Plaintiff with her 2 children went to the place of work of Defendant and
pleaded with him to go home but Defendant informed plaintiff that he could no longer leave Lily Ann and refused to
return to his legitimate family. On December 14, 1963, plaintiff instituted the present action for legal separation.
TC: Action prescribed. Should have filed the case within 1 year from Sept. 1962
issue
WON the period of one year provided for in Article 102 of the Civil Code should be counted, as far as the instant case is
concerned from September 1962 or from December 1963 (NO)
ratio
In the month of September 1962, whatever knowledge appellant had acquired regarding the infidelity of her was
only through the information given to her by Avelino Lubos, driver of the family car. Much as such hearsay information
had pained and anguished her, she apparently thought it best and no reasonable person may justifiably blame her
for it not to go deeper into the matter herself because in all probability even up to that time, notwithstanding her
husband's obvious neglect of his entire family, appellant still cherished the hope however forlorn of his coming
back home to them. Indeed, when her husband returned to the conjugal home the following October, she purposely
refrained from bringing up the matter of his marital infidelity "in her desire not to anger nor drive defendant away".
Appellant likewise heard in April 1963 rumors that her husband was seen with a woman on the family way on
Dasmarias Street, but failed again to either bring up the matter with her husband or make attempts to verify the
truth of said rumors, but this was due, as the lower court itself believed, because "she was so happy that defendant
again returned to the family home in May 1963 that she once more desisted from discussing the matter with him
because she did not wish to precipitate a quarrel and drive him away."
The Court recognized that the only time when appellant really became cognizant of the infidelity of her husband
was in the early part of December 1963 when she went and begged her husband to return to their conjugal home
assuring him that she would forgive him. It was only on the occasion when her husband admitted to her that he was
living with and would no longer leave Lily Ann to return to his legitimate family that appellant must be deemed to be
under obligation to decide whether to sue or not to sue for legal separation, and it was only then that the legal period
of one year must be deemed to have commenced.
Lapuz v. Eufemio

G.R. No. L-30977

January 31, 1972
Reyes, JBL
Recto
petitioners Carmen Lapuz Sy, represented by her substitute Macario Lapuz
respondents Eufemio S. Eufemio alias Eufemio Sy Uy
summary Carmen filed a petition for legal separation against Eufemio. She discovered Eufemio cohabiting
with Go Hiok. Eufemio counterclaimed for a declaration of nullity ab initio on the ground of a
prior marriage with Go Hiok. Carmen died before trial could be completed. Eufemio moved to
dismiss. Carmens father Macario moved to be substituted. SC held that an action for legal
separation (which involves nothing more than the bed-and-board separation) is purely personal
and does not survive death, even if it involves property rights. The action must be brought
before the death of any of the parties.

facts of the case

On Aug. 18, 1953, Carmen Lapuz Sy filed a petition for legal separation against Eufemio S. Eufemio praying that he
be deprived of his share of the conjugal partnership profits. They were married civilly on Sept. 21, 1934 and
canonically on Sept. 30, 1934. In 1943, her husband abandoned her and had no children. She discovered her husband
was cohabiting with a Chinese woman Go Hiok alias Ngo Hiok in Manila.
Eufemio counterclaimed for the declaration of nullity ab initio of his marriage with Carmen on the ground of his
prior and subsisting marriage, celebrated according to Chinese law and customs with Go Hiok.
Before trial could be completed (Eufemio was scheduled to present surrebuttal evidence), Carmen died in a
vehicular accident.
Eufemio moved to dismiss the petition for legal separation on 2 grounds: (1) the petition for legal separation was
filed beyond the 1 year period provided in CC 102; (2) the death of Carmen abated the action for legal separation.
Counsel for the deceased moved to substituted the deceased Carmen by her father, Macario. Counsel for Eufemio
opposed. Court did not act on the motion.
The Juvenile and Domestic Relations court dismissed the case stating that the motion to dismiss and the motion for
substitution had to be resolved on the question of whether or not the plaintiff's cause of action has survived, which the
court resolved in the negative. MR denied.

issue
Whether or not the death of the plaintiff before final decree in an action for legal separation abate the action? If so, will
abatement also apply if the action involved property rights? YES
ratio
An action for legal separation (which involves nothing more than the bed-and-board separation) is purely personal.
NCC recognizes this in NCC 1003 by allowing only the innocent spouse and no one else to claim legal separation. NCC
1084 provides that the spouses can, by their reconciliation, stop or abate the proceedings and even rescind a decree of
legal separation already rendered.
Being personal in character, it follows that the death of one party to the action causes the death of the action itself
actio personalis moritur cum persona.
A review of the resulting changes in property relations between spouses shows that they are solely the effect of
the decree of legal separation; hence, they can not survive the death of the plaintiff if it occurs prior to the decree.
NCC 1065 shows that the right to the dissolution of the conjugal partnership of gains (or of the absolute community
of property), the loss of right by the offending spouse to any share of the profits earned by the partnership or
community, or his disqualification to inherit by intestacy from the innocent spouse as well as the revocation of
testamentary provisions in favor of the offending spouse made by the innocent one, are all rights and disabilities that,
3 Art. 100. The legal separation may be claimed only by the innocent spouse, provided there has been no condonation of orconsent to
the adultery or concubinage. Where both spouses are offenders, a legal separation cannot be claimed by either of them.
Collusion between the parties to obtain legal separation shall cause the dismissal of the petition.
4 Art. 108. Reconciliation stops the proceedings for legal separation and rescinds the decree of legal separation already rendered.The
revival of the conjugal partnership of gains or of the absolute conjugal community of property shall be governed by article 195.
5 "Art. 106. The decree of legal separation shall have the following effects: (1) The spouses shall be entitled to live separately from
each other, but the marriage bonds shall not be severed;
(2) The conjugal partnership of gains or the absolute conjugal community of property shall be dissolved and liquidated, but the
offending spouse shall have no right to any share of the profits earned by the partnership or community, without prejudice to the
provisions of article 176;
(3) The custody of the minor children shall be awarded to the innocent spouse, unless otherwise directed by the court in the interest
of said minors, for whom said court may appoint a guardian;
(4) The offending spouse shall be disqualified from inheriting from the innocent spouse by intestate succession. Moreover, provisions
in favor of the offending spouse made in the will of the innocent one shall be revoked by operation of law.

10

by the very terms of the Civil Code article, are vested exclusively in the persons of the spouses; and by their nature
and intent, such claims and disabilities are difficult to conceive as assignable or transmissible.
A claim to such rights is not a claim that is not thereby extinguished after a party dies under Sec. 17 Rule 3 ROC 6
to warrant continuation of the action through a substitute of the deceased party. After considering the enumeration of
actions that survive for or against administrators in Sec. 1 Rule 87 ROC 7, neither actions for legal separation or for
annulment of marriage can be deemed fairly included in the enumeration.
A further reason why an action for legal separation is abated by the death of the plaintiff, even if property rights
are involved, is that these rights are mere effects of a decree of separation, their source being the decree itself;
without the decree such rights do not come into existence, so that before the finality of a decree, these claims are
merely rights in expectation. If death supervenes during the pendency of the action, no decree can be forthcoming,
death producing a more radical and definitive separation; and the expected consequential rights and claims would
necessarily remain unborn.
As to the action for declaration of nullity ab initio of Eufemio, the action became moot and academic upon the
death of Carmen. Any property rights acquired by either party could be resolved and determined in a proper action for
partition by either Eufemio or heirs of Carmen.
Even if the bigamous marriage had not been void ab initio but only voidable because the second marriage had
been contracted with the first wife being an absentee spouse, the action for annulment would become extinguished as
soon as one of the parties involved had died. Art 83 par 2 of the NCC provides that the action for annulment should be
brought during the lifetime of any one of the parties involved.
The liquidation of any conjugal partnership that might have resulted from such voidable marriage must be carried
out "in the testate or intestate proceedings of the deceased spouse," as expressly provided in Section 2 of the Revised
Rule 73, and not in the annulment proceeding.
Matubis v. Praxedes
G.R. No. L-11766
October 25, 1960
Paredes
Reynes
petitioners Socorro Matubis
respondents Zoilo Praxedes
summary Matubis and Praxedes entered into an agreement whereby they agreed to live separately and to
waive any action for adultery or concubinage against east other. Pracedes cohabited and had a
child with another woman. Matubis sued for legal separation and change of surname. The lower
court and the Supreme Court dismissed the complaint, ruling that the same was filed out of time
(i.e. more than a year after the date on which the plaintiff knew of the cause for legal separation)
and that Matubis actually consented to the concubinage.

facts of the case

1. [Jan. 10, 1943] Socorro MATUBIS and Zoilo PRAXEDES were legally married.
a. [May 30, 1944] For failure to agree on how they should live as husband and wife, they agreed to
live separately.
2. [Apr. 3, 1948] They entered into an agreement, which stated the following (verbatim):
a. That both of us relinquish our right over the other as legal husband and wife.
b. That both of us is free to get any mate and live with as husband and wife without any interference
by any of us, nor either of us can prosecute the other for adultery or Concubinage or any other
crime or suit arising from our separation.
c. That I, the wife, is no longer entitled for any support front my husband or any benefits he may
receive thereafter, nor I the husband is not entitled for anything from my wife.
d. That neither of us can claim anything from the other from the time we verbally separated, that is
from May 30, 1944 to the present when we made our verbal separation into writing.
3. [Jan. 1955] PRAXEDES began cohabiting with Asuncion Rebulado, who later gave birth to a child recorded
as the child of PRAXEDES. They also deported themselves as husband and wife and were generally known
as such in the community.
4. [Apr. 24, 1956] Alleging abandonment and concubinage, MATUBIS filed with the CFI a complaint for legal
separation and change of surname against PRAXEDES.

6 Sec. 17. Death of party. After a party dies and the claim is not thereby extinguished,
the court shall order, upon proper notice, the legal representative of the deceased to
appear and to be substituted for the deceased, within a period of thirty (30) days, or
within such time as may be granted. * * *
7 SECTION 1. Actions which may and which may not be brought against executor or administrator. No action upon a claim for the

recovery of money or debt or interest thereon shall be commenced against the executor or administrator; but actions to recover real or
personal property, or an interest therein, from the estate, or to enforce a lien thereon, and actions to recover damages for an injury to
person or property, real or personal, may be commenced against him.

11

a.

5.

The allegations of the complaint [which was basically the facts mentioned above] were denied by
PRAXEDES and interposed the defense that it was MATUBIS who left the conjugal home.
The CFI held that while the acts of PRAXEDES constituted concubinagea ground for legal separationit
still dismissed the complaint for being filed out of time and for MATUBIS having consented to the
concubinage.

issue
W/N MATUBIS is entitled to a decree of legal separation NO, she is not.
ratio
The complaint was filed out of time.

An action for legal separation cannot be filed except within one year from and after the date on which the
plaintiff became cognizant of the cause and within five years from and after the date when the cayse occurred.
(CIVIL CODE, art. 102)
o By MATUBISs own admission, she came to know of the ground for legal separation (i.e. concubinage)
in January 1955 and she instituted the complaint only on April 24, 1956. MATUBIS did not even press
this matter in her brief.
MATUBIS condoned and consented to the concubinage.

Legal separation may be claimed only by the innocent spouse, provided there has been no condonation of or
consent to the adultery or concubinage. (CIVIL CODE, art. 100)

Condonation and consent on the part of MATUBIS are necessarily the import of [Facts. 2.b., supra]. Such was
not only implied but expressed.
Petition DENIED. CFI Decision AFFIRMED.
BUGAYONG v. GINEZ
G.R. No. L-10033
December 28, 1956
FELIX, J.
Villarroya
petitioners Benjamin Bugayong
respondents Leonila Ginez
summary Benjamin received letters informing him that his wife, Leonila, was committing acts of infidelity.
He tried looking for her and after around 10 months, they lived as husband and wife for 2 nights
and 1 day. However, Leonila left him again. Thereafter, Benjamin filed a petition for legal
separation. The SC held that Benjamin is barred from filing the petition since he condoned
whatever act of infidelity Leonila might have committed. A single act of sexual intercourse after
discovery of the offense is ordinarily sufficient to constitute condonation.

facts of the case

Benjamin Bugayong and Leonila Ginez were married in 1949. In 1951, Leonila left their dwelling and informed her
husband by letter that she had gone to reside with her mother in Pangasinan. Later, she moved to Dagupan City to
study at a local college there. Around that time, Benjamin began receiving letters informing him of his wifes alleged
acts of infidelity. On cross-examination, he admitted that his wife also told him that a certain "Eliong" kissed her.
A year later, Benjamin went to Pangasinan and sought for his wife. She came along with him and both proceeded
to the house of Pedro Bugayong, where they stayed and lived for 2 nights and 1 day as husband and wife. Then they
repaired to Benjamin's house and again passed the night therein as husband and wife. On the second day, Benjamin
tried to verify from his wife the truth of the information he received that she had committed adultery but Leonila,
instead of answering his query, merely packed up and left, which he took as a confirmation of the acts of infidelity
imputed on her. After that and despite such belief, Benjamin exerted efforts to locate her and failing to find her, he
went to Ilocos Norte to soothe his wounded feelings.
Benjamin filed a complaint for legal separation against his wife. Leonila filed a motion to dismiss on the following
grounds: (1) Assuming arguendo the truth of the allegations, the cause of action (acts of rank infidelity amounting to
adultery), if any, is barred by the statute of limitations; (2) That under the same assumption, the act charged has been
condoned by Benjamin.
The CFI dismissed the case solely on the ground of condonation.
issue
Whether or not the cause of action is barred by the statute of limitations. SC disregarded this issue.
Whether or not Benjamin condoned Leonilas alleged infidelity. YES.
ratio
When may petition be filed?
The (old) Civil Code provides:
ART. 97. A petition for legal separation may be filed:
(1) For adultery on the part of the wife and for concubinage for the part of the husband as defined on the Penal
Code;
xxx

12

ART. 100. 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. Where both spouses are offenders, a legal separation
cannot by either of them. Collusion between the parties to obtain legal separation shall cause the dismissal of the
petition.
ART. 102. An action for legal separation cannot be filed except within one year from and after the date on which
the plaintiff became cognizant of the cause and within five years from and after the date when such cause occurred.
Condonation
Condonation is the forgiveness of a marital offense constituting a ground for legal separation or, as stated in
Bouver's Law Dictionary, condonation is the "conditional forgiveness or remission, by a husband or wife of a
matrimonial offense which the latter has committed."
Even if we were to give full weight to the testimony of Benjamin, we would have to conclude that the facts are far
from sufficient to establish the charge of adultery. But this is not a question at issue. In this appeal, we have to
consider plaintiff's line of conduct under the assumption that he really believed his wife guilty of adultery. What did he
do in such state of mind? Does the husband's attitude of sleeping with his wife for 2 nights despite his alleged belief
that she was unfaithful to him, amount to a condonation of her previous and supposed adulterous acts?
All these facts have no other meaning than that a reconciliation between them was effected and that there was a
condonation of the wife by the husband. The reconciliation occurred almost ten months after he came to know of the
acts of infidelity amounting to adultery. It has been held in a long line of decisions of the various supreme courts of the
different states of the U. S. that a single voluntary act of sexual intercourse by the innocent spouse after discovery of
the offense is ordinarily sufficient to constitute condonation, especially as against the husband.
Such conduct deprives the husband of any action for legal separation against the offending wife.
YANGCO v. ROHDE
G.R. No. 996
October 13, 1902
Arrelano, C.J.
Casila
petitioners
Luis R. Yangco
respondents
William J. Rohde
summary
Judge Rohde ordered Yangco to pay Obin monthly allowance as alimony pending a case for
divorce. Yangco denies the fact of marriage. Yangco filed a petition for a writ of prohibition. SC
overruled Judge Rohdes demurrer and held that where the answer to a complaint alleging
marriage and praying for a divorce denies the fact of marriage, the court exceeds its jurisdiction
in granting alimony, and the enforcement of an order granting it will be restrained by the writ of
prohibition. The right of a wife to support depends upon her status as such, and where the
existence of the status is put in issue by the pleading it cannot be presumed to exist for the
purpose of granting alimony.

facts of the case

Victoria Obin filed a complaint against Yangco before Judge Rohde of CFI Manila praying that she be declared the
lawful wife of Yangco, that she be granted a divorce, an allowance for alimony, and attorneys fees during the
pendency of the suit. Yangco filed a demurrer but was overruled (I am of the opinion that the marriage alleged in the
complaint is valid under the laws in force, although the question is not clear nor without doubt. The facts alleged in the
complaint compel me to resolve the doubt in favor of the plaintiff.) Yangco denied the mutual agreement to be
husband and wife.
Obin filed a motion for a monthly allowance as alimony which Judge Rohde granted. The judge ordered Yangco to
pay Obin, in advance, a monthly allowance of 250 Mexican pesos.
Yangco filed before SC a petition for a writ of prohibition alleging that Obin owns no property and the judge did not
require any security so should the judgment be rendered in his favor, it is certain that he would be unable to recover,
that he has no right of appeal or any plain, speedy, or adequate remedy, that Judge Rohde has acted in excess of his
jurisdiction, and praying that a Judge Rohde be prohibited from attempting to compel him to pay the amount.
Judge Rohde filed a demurrer and motion to dismiss.
issue
W/N Yangco must Obin alimony - NO
ratio
Under Art 1591 of the Old Civil Code, any person believing himself entitled to that provisional alimony or support
was required to file with the complaint documents proving conclusively the title by virtue of which the same was sued
for. A suit for alimony could not proper upon the mere opinio of the judge expressed in an interlocutory order.
The necessity of founding the action for support or alimony on a title, and a title supported by documentary
evidence, is a consequence of the precepts of Art 143 of the Civil Code. The right to support is granted (1) to spouses
inter se, (2) to legitimate descendants and ascendants inter se, (3) to parents and certain legitimated and
acknowleged natural children, (4) to other illegitimate children, and (5) to brothers and sisters. It is a civil status or a
juridical relation which is the basis of the action for support the civil status of marriage or that of relationship.
In this case, the action is brought by a woman who alleges that she is a wife; therefore it is necessary for her to
prove possession of the civil status of a spouse. Marriages celebrated before the adoption of the Civil Code must be

13

proven by the means established by the former laws (aka by canonical certificate).There is no law or reason which
authorizes the granting of alimony to a person who claims to be a spouse in the same manner as to a person who
conclusively establishes by legal proof that he or she is such spouse, and sues for divorce or separation.There is a
substantial difference between the capacity of a person after the rendition of a final judgment in which that person is
declared to be in possession of the status of marriage and his capacity prior to such time when nothing exists other
than his suit or claim to be declared in possession of such status of marriage.
The remedy of prohibition must be based upon a lack of jurisdiction or an excess in the exercise of jurisdiction in
order that the judge may be prohibited from continuing the proceedings.The court below had jurisdiction to try the
divorce suit but he was without jurisdiction to grant alimony when the right to claim alimony had not accrued in
accordance with the provisions of the Civil Code. Therefore mandamus is the proper remedy upon the facts related.
Dissent: Cooper, J.
CFI has jurisdiction over suits for divorce, and the granting of alimony pendete lite is incidental to this jurisdiction. An
order granting alimony, even if erroneous, is not an excess of jurisdiction, and its enforcement can not be restrained by
prohibition.
De la Vina vs Villareal
G.R. No. L-13982
July 31, 1920
Johnson J
Chua
Petitioners Diego de la Vina
Respondents Narcisa Geopano
Summary
Diego and Narcisa are husband and wife. They were married in Negros Oriental and lived there
until Narcisa was ejected from their conjugal home by Diego because the latter had a concubine.
Narcisa was then forced to move to Iloilo. Subsequently, she filed for divorce, partition of
conjugal property and prayed for alimony pendent lite. The Court ruled that that a married
woman may acquire a residence or domicile separate from that of her husband, during the
existence of the marriage, where the husband has given cause for divorce. As to the preliminary
injunction granted restraining alienation by Diego of their conjugal properties, the Court ruled
that it was proper. In an action for divorce brought by the wife against the husband, in which the
partition of the conjugal property is also prayed for, the wife may obtain a preliminary injunction
against the husband, prohibiting the latter from alienating or encumbering any part of the
conjugal property during the pendency of the action.
(Case is under the Cooling-Off Period, however, it seems to be irrelevant to said heading)

Facts of the Case

Narcisa, a resident of Iloilo filed a complaint with CFI Iloilo against her husband, Diego, a resident of Negros
Oriental. She alleged that they were married in Negros Oriental, in the year 1888. They have lived as husband
and wife since then and had nine children, three of whom were living and were already of age. During their
marriage, they acquired real and personal properties, the value of which was about P300, 000 and all of which
was under the administration of Diego. Since 1913 and up to the date of the complaint, Diego had been
committing acts of adultery with one Ana Calog, sustaining illicit relations with her and having her as his
concubine.
Because of this, Diego ejected Narcisa from their conjugal home, forcing the latter to move to Iloilo. Scorned by
her husband, she had no means of support and was living only at the expense of one of her daughters.
Narcisa prayed for (a) a decree of divorce, (b) the partition of the conjugal property, and (c) alimony pendente
lite in the sum of P400/month. Subsequently, Narcisa prayed that a preliminary injunction be issued against
Diego to prevent the latter from alienating their properties.

Issues
WON a married woman may acquire a residence or domicile separate from that of her husband during the existence of
the marriage. YES.
WON in an action for divorce in which the partition of the conjugal property is also prayed for, may the wife obtain a
preliminary injunction against the husband prohibiting him from alienating or encumbering any part of the conjugal
property during its pendency. YES.
Ratio

14

Diego contends that the CFI Iloilo had no jurisdiction because he is was a resident of Negros Oriental and
Narcisa, as the wife, must also be considered a resident of the same province inasmuch as, under the law, the
domicile of the husband is also the domicile of the wife; that the Narcisa could not acquire a residence in Iloilo
before their marriage is legally dissolved.
As a general of law, the domicile of the wife follows that of her husband. But this is not an absolute rule. The
wife may acquire a separate domicile from that of her husband where the theoretical unity of husband and
wife is dissolved, as it is by the institution of divorce proceedings; or where the husband has given cause for
divorce; or where there is a separation of the parties by agreement, or a permanent separation due to
desertion of the wife by the husband or attributable to cruel treatment on the part of the husband; or where
there has been a forfeiture by the wife of the benefit of the husband's domicile.
According to Manresa, the domicile of married women not legally separated from their husband shall be that of
the latter. But the wife can acquire a separate residence when her husband consents or acquiesces, as when
the husband unlawfully ejects her from the conjugal home in order that he may freely indulge in his illicit
relations with another woman. Under no other circumstance could a wife be more justified in establishing a
separate residence from that of her husband. For her to continue living with him, even if he had permitted it,
would have been a condonation of his flagrant breach of fidelity and marital duty. It would do violence to the
plainest principle of common sense and common justice of to call this residence of the guilty husband, where
the wife is forbidden to come, the domicile of the wife.
Diego contends that he, as the husband, is the manager of the conjugal partnership and, as such, is
empowered to alienate and encumber conjugal property without the consent of the wife; that the wife could
not obtain a preliminary injunction because she had no right to intervene in the administration of the conjugal
property.
The Court believes otherwise. So long as the harmonious relation between husband and wife continues, the
wife cannot and should not interfere with the husband in his judicious administration of the conjugal property.
But when that relation ceases and the wife seeks to dissolve the marriage and to partition the conjugal
property, it is just and proper, in order to protect the interests of the wife, that the husband's power of
administration be curtailed, insofar as alienating or encumbering the conjugal property is concerned.
Diego did not controvert Narcisas allegations that he was about to alienate or encumber the property
belonging to the conjugal partnership. What is sought to be protected is not the right to administer the
conjugal property but the right to share in the conjugal property upon the dissolution of the conjugal
partnership.
Therefore, in an action for divorce brought by the wife against the husband, in which the partition of the
conjugal property is also prayed for, the wife may obtain a preliminary injunction 8 against the husband,
prohibiting the latter from alienating or encumbering any part of the conjugal property during the pendency of
the action.

Araneta v Concepcion
G.R. No. L-9667
July 31, 1956
Labrador, J.
Cristobal
petitioners Luis Ma. Araneta
respondents CFI Judge Hermogenes Concepcion and Emma Benitez Araneta
summary H sued W for legal separation (adultery). W asked for custory of 3 minors and support. Judge
granted Ws petition, and denied to grant Hs request that they be required to present evidence
in view of the 6-month cooling off period. Held: Evidence not affecting the cause of the
separation should be allowed so that the court may properly determine the case.

facts of the case

Luis sued his wife Emma for legal separation on the ground of adultery. Emma then filed an omnibus petition to
secure custody of their three minor children, monthly support of P500, the return of her passport and to enjoin Luis and
his staff from harassing her, and for attorneys fees.

8 A preliminary injunction may be granted when it is established, in the manner hereinafter provided, to the satisfaction of the judge granting it:1. That the plaintiff is
entitled to the relief demanded and such relief, or any part thereof, consists in restraining the commission or continuance of the acts complained of either for a limited
period or perpetually;
2. That the commission or continuance of some act complained of during the litigation would probably work injustice to the plaintiff;
3. That the defendant is doing, or threatens, on is about to do, or is procuring or suffering to be done, some act probably in violation of the plaintiff's rights, respecting
the subject of the action, and tending to render the judgment ineffectual.

15

Luis denied the allegations, saying that Emma is not entitled to support because of her infidelity, that she had
abandoned their children and that their conjugal properties were worth only P80k, not 1M. He also prayed that they be
required to submit evidence.
Respondent judge granted Emmas petition, granting custody of the children to her and a monthly allowance of
P2,300 for her and the children, P300 for a house and P2,000 for attys fees.
Luis then filed this petition for certiorari and mandamus to compel judge to receive evidence before deciding the
omnibus petition.
The judges main reason in refusing the request to allow introduction of evidence is Art. 103 CC (An action for legal
separation shall in no case be tried before six months shall have elapsed since the filing of the petition).
The judge said, admitting evidence now will make reconciliation difficult if not impossible. In this case the court
should act as if nothing yet had happened. The children must be given for custody to him or her who by family custom
and tradition is the custodian of the children. The status quo of the family must be restored as much as possible. In
this country, unlike perhaps in any other country of the globe, a family or a home is a petite corporation. The father is
the administrator who earns the family funds, dictates rules in the home for all to follow, and protects all members of
his family. The mother keeps home, keeps children in her company and custody, and keeps the treasure of that family.
In a typical Filipino family, the wife prepares home budget and makes little investment without the knowledge of her
husband. A husband who holds the purse is un-Filipino. He is shunned in Filipino community.
issue
WON respondent Judge committed error in not allowing evidence to be presented regarding custody and support? YES
ratio
Determination of the custody and alimony should be given effect and force provided it does not go to the
extent of violating the policy of the cooling off period. Evidence not affecting the cause of the separation should be
allowed so that the court may determine which is best for the childrens custody.
It is conceded that the period of six months fixed therein Article 103 (Civil Code) is evidently intended as a
cooling off period to make possible a reconciliation between the spouses. The recital of their grievances against each
other in court may only fan their already inflamed passions against one another, and the lawmaker has imposed the
period to give them opportunity for dispassionate reflection. But this practical expedient, necessary to carry out
legislative policy, does not have the effect of overriding other provisions such as the determination of the custody of
the children and alimony and support pendente lite according to the circumstances. The rule is that all the provisions
of the law even if apparently contradictory, should be allowed to stand and given effect by reconciling them if
necessary.
SOMOSA-RAMOS v. VAMENTA
G.R. No. L-34132
July 29, 1972
Fernando
Enad
petitioners Lucy Somosa- Ramos
respondents Hon. Cipriano Vamenta Jr., Presiding Judge of the CFI of Negros Oriental, and Clemente Ramos
summary Wife filed for legal sep with a prayer for the issuance of a writ of preliminary mandatory
injunction. Judge ordered the suspension of the hearing on the motion, ruling that Art 103
prohibits any hearing for legal separation before the lapse of 6 months. Held: Art 103 is not an
absolute bar to the hearing of the motion, since it can be inferred from Art 104 that the court can
determine who can manage the property, and jurisprudence has held that courts can resolve
actions for custody, alimony, and support pendente lite before the lapse of the period to prevent
injustice.

facts of the case

Lucy filed for legal separation on the ground of concubinage and an attempt by the husband against her life
against Clemente. She also sought the issuance of a writ of preliminary mandatory injunction for the return to her of
what she claimed to be her paraphernal and exclusive property, then under the administration and management of
Clemente. Such motion was opposed by Clemente, based on Art. 103 OCC, alleging that if the motion was heard, the
prospect of reconciliation of the spouses would become even more dim.
Judge Vamenta granted the motion to suspend the hearing of the petition for a writ of mandatory preliminary
injunction.
issue
WoN Art 103 OCC9 prohibiting the hearing of an action for legal separation before the lapse of six months from the
filing of the petition, would likewise preclude the court from acting on a motion for preliminary mandatory injunction
applied for as an ancillary remedy to such a suit. NO.
ratio

9 An action for legal separation shall in no case be tried before six months shall have
elapsed since the filing of the petition.
16

Art 103 is not an absolute bar to the hearing of the motion for preliminary injunction prior to the
expiration of the 6-month period.
The law remains cognizant of the need in certain cases for judicial power to assert itself. Art. 104 OCC states:
After the filing of the petition for legal separation, the spouse shall be entitled to live separately from each other
and manage their respective property. The husband shall continue to manage the conjugal partnership property but if
the court deems it proper, it may appoint another to manage said property, in which case the administrator
shall have the same rights and duties as a guardian and shall not be allowed to dispose of the income or of the capital
except in accordance with the orders of the court.
There appears to be a recognition that the question of management of their respective property need not be left
unresolved even during the 6-month period. An administrator may even be appointed for the management of the
property of the conjugal partnership. Art 103 does not have the effect of overriding other provisions such as the
determination of the custody of the children, alimony, and support pendente lite according to the circumstance s. The
law expressly enjoins that these should be determined by the court according to the circumstances. If these are
ignored, or the courts close their eyes to actual facts, rank injustice may be caused.
In this case, there is all the more reason to hear the motion, considering that Celemente whom she accused of
concubinage and an attempt against her life would continue in the management of what she claimed to be her
paraphernal property.
At any rate, from the time of issuance of the order complained of (Aug. 4, 1971), more than 6 mos. had elapsed.
Lerma v. CA
G.R. No. L-33352
December 20, 1974
C.J. Makalintal
Ortiz
petitioners TEODORO E. LERMA, petitioner,
respondents THE HONORABLE COURT OF APPEALS and CONCEPCION DIAZ, respondents.
summary Wife filed for legal separation and requested for support pendente lite. The defense of the
husband was that she is not entitled to support pendente lite because he had already filed a
case for adultery against the wife. The CFI granted the request for support pendente lite. CA
upheld the CFI citing Article 292 of the Civil Code. The SC reversed the CA and said that the wife
had no right to support pendente lite, whether from the separate property of the husband or the
conjugal property, because she is not an innocent spouse, having been already convicted of
adultery with the CFI. The right to separate support or maintenance, even from the conjugal
partnership property, presupposes the existence of a justifiable cause for the spouse claiming
such right to live separately.

facts of the case

Petitioner Lerma (H) and respondent Diaz (W) were married on May 19, 1951.
Respondent wife filed a complaint against her husband for legal separation with the CFI of Rizal.

With an urgent petition for support pendente lite for her and their youngest son Gregory

Grounds: Concubinage and attempt against her life

Defense of husband regarding the claim for support: Husband already filed a case against the wife for adultery
CFI granted the application for support pendente lite. CA affirmed the order of the CFI
issue
WON adultery is a good defense against the wifes claim for support pendente lite [YES]
ratio
The Supreme Court in the case of Quintana v. Lerma that adultery is a good defense. This ruling was reiterated in
subsequent cases.
The Court of Appeals, in upholding the lower court, relied on Article 292 10 of the Civil Code. It held that while
adultery may be a defense in an action for personal support, that is, support of the wife by the husband from his own
funds, it is not a defense when the support is to be taken from the conjugal partnership property.
The SC does not agree that the distinction of source of funds is material in this case.

10 ART. 292. During the proceedings for legal separation, or for annulment of marriage,
the spouses and children shall be supported from the conjugal partnership property. After
the final judgment of legal separation, or of annulment of marriage, the obligation of
mutual support between the spouses ceases. However, in case of legal separation, the
court may order that the guilty spouse shall give support to the innocent one, the
judgment specifying the terms of such order.
17

Article 292 is not in itself the source of the legal right to receive support. It merely states that the support,
not only of the spouses but also of the children, shall be taken from the conjugal property during the
pendency of the legal separation proceeding. It does not preclude the loss of such right in certain cases
Article 292 contemplates the pendency of a court action. For if the action is shown to be groundless the
mere filing thereof will not necessarily set Article 292 in operation. The probable failure of the wife's suit
for legal separation can be foreseen since she is not an innocent spouse, having been convicted of
adultery by the CFI. Thus, she cannot claim support pendent lite. Otherwise, all that an erring spouse has
to do to circumvent such defense would be to file a suit for legal separation no matter how groundless.

The right to separate support or maintenance, even from the conjugal partnership property,
presupposes the existence of a justifiable cause for the spouse claiming such right to live separately . A
petition in bad faith cannot be considered as basis for the granting of separate support. Under Article 303 of the same
Code, the obligation to give support shall cease "when the recipient, be he a forced heir or not, has committed some
act which gives rise to disinheritance;" and under Article 921 one of the causes for disinheriting a spouse is "when the
spouse has given cause for legal separation." The loss of the substantive right to support in such a situation is
incompatible with any claim for support pendente lite.
PEOPLE v SANSANO
G.R. No. 37720
March 7, 1933
Butte
Fernandez
petitioners REDENTOR ALBANO
respondents MUNICIPAL JUDGE PATROCINIO C. GAPUSAN
summary Ursula and Mariano were married in 1919. After the birth of their child, Mariano left for Cagayan
and did not communicate with Ursula for 3 years. Ursula met Marcelo Ramos and cohabited with
him. When Mariano returned, he filed a complaint for adultery. Ursula and Marcelo were found
guilty. After this, Ursula begged for Marianos pardon but Mariano refused to do so stating that
she could go wherever she pleases. Mariano then left for Hawaii and Ursula resumed leaving with
Marcelo. When Mariano returned, he instituted a second complaint for adultery to be able to
obtain divorce under Act No. 2710. Court ruled that Marianos conduct warrant the inference
that he consented to the adulterous relations existing between the accused and therefore he is
not authorized by law to institute this criminal proceeding.

facts of the case

Ursula Sensano and Mariano Ventura were married in April 1919. They had one child.
o Shortly after the birth of the child, Mariano left his wife to go to the Cagayan where he remained for 3
years without writing to his wife or sending her anything for the support.
o Poor and illiterate, without relatives upon whom she could call, she struggled for an existence for herself
and her son until she met the Marcelo Ramos who took her and the child to live with him.

On the return of the Mariano, he filed a charge against his Ursula and Marcelo adultery and both were sentenced to
four months and one day of arresto mayor.
o The court, in its decision, stated: "In the opinion of the court, the husband of the accused has been
somewhat cruel in his treatment of his wife, having abandoned her as he did."

After completing her sentence, the Marcelo left her paramour. She thereupon appealed to the municipal president
and the justice of the peace to send for her husband so that she might ask his pardon and beg him to take her
back.
o Ursula begged his pardon and promised to be a faithful wife if he would take her back. Mariano refused to
pardon her or to live with her and said she could go where she wished, that he would have nothing more to
do with her, and she could do as she pleased.

Abandoned for the second time, she and her child went back to Marcelo Ramos and they have lived with him ever
since. The husband, knowing that she resumed living with Marcelo did nothing to interfere with their relations or to
assert his rights as husband.
o Mariano left for Hawaii where he remained for seven years completely abandoning his said wife and child.
On his return to these Islands, he presented the second charge of adultery to be able to obtain a divorce
under the provisions of Act No. 2710.

CFI sentenced Ursula and Mariano for the crime of adultery to three years, six months and twenty-one days of
prisin correccional.
issue
(3) Was there acquiescence on the part of Mariano? YES.
ratio

The evidence in this case and Marianos conduct warrant the inference that he consented to the adulterous
relations existing between the accused and therefore he is not authorized by law to institute this criminal
proceeding.

18

The argument of the Attorney-General that the seven years of acquiescence on his part in the adultery of his wife
is explained by his absence from the Philippine Islands during which period it was impossible for him to take any
action against the accused. There is no merit in the argument that it was impossible for the husband to take any
action against the accused during the said seven years.
PEOPLE v. SCHNECKENBURGER
G.R. No. 48183
10 Nov 1941
Moran, J.
Gan
petitioners PEOPLE OF THE PHILIPPINES
respondents RODOLFO A. SCHNECKENBURGER ET AL.
summary Rodolfo (the accused) and Elena (the complainant), after seven years of marital life, agreed to
live separately from each other. They executed a document in which they agreed not to bother
each other in every aspect of their public and private life. The accused, without leaving the
Philippines, secured a divorce decree in Mexico and contracted another marriage. The
complainant instituted a complaint for Bigamy and for Concubinage. The accused was convicted
for bigamy. However, the Supreme Court held that the accused should be acquitted for the crime
of concubinage based on the document executed by the spouses. This document, while illegal for
the purpose for which it was executed, constitutes nevertheless a valid consent to the act of
concubinage within the meaning of section 344 of the Revised Penal Code. There can be no
doubt that by such agreement, each party clearly intended to forego the illicit acts of the other.

facts of the case

- Accused Rodolfo Schneckenburger married the complainant Elena Ramirez Cartagena and after seven years of marital
life, they agreed to live separately from each other for reason of alleged incompatibility of character.
- The spouses executed a document (in Spanish). One part was quoted by the Supreme Court: [translation taken from
Google Translate]
"That both appearing parties agree to live apart from each other for the rest of their lives and are
committed and mutually undertake not to bother or intervene or mix under any circumstances in public
life or private thereof, each leaving each one of the grantors in complete freedom of action in any event
and in every respect."
- Subsequently, the accused, without leaving the Philippines, secured a decree of divorce from the civil court of Juarez,
Bravos District, State of Chihuahua, Mexico.
- The accused contracted another marriage with his co-accused Julia Medel in the justice of the peace court of Malabon,
Rizal. Since then they have lived together as husband and wife in the City of Manila.
- The Complainant instituted two actions against the accused, one for bigamy in the CFI-Rizal and the other for
concubinage in the CFI-Manila.
- He was convicted of bigamy. (sentenced to two months and one day arresto mayor)
- On the trial for concubinage, the accused interposed the plea of double jeopardy, and the case was dismissed.

But on appeal by the fiscal, the Supreme Court held the dismissal before trial to be premature (this was under
the former procedure) and without deciding the question of double jeopardy, remanded the case to the trial
court for trial on the merits.

He was convicted of concubinage through reckless imprudence. (sentenced to two months and one day arresto
mayor)
issue
Whether the accused s right against double jeopardy has been violated. NO.
Whether the accused should be convicted of concubinage. NO. The document executed by the spouses
constitutes a valid consent to the act of concubinage.
Ratio
The accuseds right against double jeopardy was not violated.
- The test is whether the defendant has already been tried for the same act, but whether he has been put in jeopardy
for the same offense.
- The offense of bigamy and that of concubinage are two distinct offenses in law and in fact as well as in mode of
prosecution.
- The celebration of the second marriage, with the first still existing, characterizes the crime of bigamy. While mere
cohabitation by the husband with a woman not his wife characterizes the crime of concubinage.

19

- Bigamy is an offense against civil status which may be prosecuted at the instance of the state. Concubinage is an
offense against chastity and may be prosecuted only at the instance of the offended party.
The accused should be acquitted of the crime of concubinage.
- The document executed by and between the accused and the complainant in which they agreed to be "en
completa libertad de accidn en cualquier acto y en todos conceptos (completely free of any act and in every
respect), while illegal for the purpose for which it was executed, constitutes nevertheless a valid
consent to the act of concubinage within the meaning of section 344 of the Revised Penal Code. There can be no
doubt that by such agreement, each party clearly intended to forego the illicit acts of the other.
- The second paragraph of Art. 344 of the Revised Penal Code provides:
"The offended party cannot institute criminal prosecution without including both the guilty parties, if they
are both alive, nor, in any case, if he shall have consented or pardoned the offenders."
- As the term pardon unquestionably refers to the offense after its commission, consent must have been intended,
agreeably with its ordinary usage, to refer to the offense prior to its commission.
- Thus, no logical difference can indeed be perceived between prior and subsequent consent, for in both instances as
the offended party has chosen to compromise with his/her dishonor, he/she becomes unworthy to come to court and
invoke its aid in the vindication of the wrong.
- The Supreme Court, therefore, held that prior consent is as effective as subsequent consent to bar the offended party
from prosecuting the offense.
On the illegality of the agreement
In arriving at this conclusion we do not wish to be misconstrued as legalizing an agreement to do an illicit act, in
violation of law. Our view must be taken only to mean that an agreement of the tenor entered into between the parties
herein, operates, within the plain language and manifest policy of the law, to bar the offended party from prosecuting
the offense. If there is anything morally condemnatory in a situation of this character, the remedy lies not with us but
with the legislative department of the government. What the law is, not what it should be, defines the limits of our
authority.
BUGAYONG v. GINEZ
G.R. No. L-10033
December 28, 1956
FELIX, J.
Villarroya
petitioners Benjamin Bugayong
respondents Leonila Ginez
summary Benjamin received letters informing him that his wife, Leonila, was committing acts of infidelity.
He tried looking for her and after around 10 months, they lived as husband and wife for 2 nights
and 1 day. However, Leonila left him again. Thereafter, Benjamin filed a petition for legal
separation. The SC held that Benjamin is barred from filing the petition since he condoned
whatever act of infidelity Leonila might have committed. A single act of sexual intercourse after
discovery of the offense is ordinarily sufficient to constitute condonation.

facts of the case

Benjamin Bugayong and Leonila Ginez were married in 1949. In 1951, Leonila left their dwelling and informed her
husband by letter that she had gone to reside with her mother in Pangasinan. Later, she moved to Dagupan City to
study at a local college there. Around that time, Benjamin began receiving letters informing him of his wifes alleged
acts of infidelity. On cross-examination, he admitted that his wife also told him that a certain "Eliong" kissed her.
A year later, Benjamin went to Pangasinan and sought for his wife. She came along with him and both proceeded
to the house of Pedro Bugayong, where they stayed and lived for 2 nights and 1 day as husband and wife. Then they
repaired to Benjamin's house and again passed the night therein as husband and wife. On the second day, Benjamin
tried to verify from his wife the truth of the information he received that she had committed adultery but Leonila,
instead of answering his query, merely packed up and left, which he took as a confirmation of the acts of infidelity
imputed on her. After that and despite such belief, Benjamin exerted efforts to locate her and failing to find her, he
went to Ilocos Norte to soothe his wounded feelings.
Benjamin filed a complaint for legal separation against his wife. Leonila filed a motion to dismiss on the following
grounds: (1) Assuming arguendo the truth of the allegations, the cause of action (acts of rank infidelity amounting to
adultery), if any, is barred by the statute of limitations; (2) That under the same assumption, the act charged has been
condoned by Benjamin.
The CFI dismissed the case solely on the ground of condonation.
issue
Whether or not the cause of action is barred by the statute of limitations. SC disregarded this issue.
Whether or not Benjamin condoned Leonilas alleged infidelity. YES.

20

ratio
When may petition be filed?
The (old) Civil Code provides:
ART. 97. A petition for legal separation may be filed:
(1) For adultery on the part of the wife and for concubinage for the part of the husband as defined on the Penal
Code;
xxx
ART. 100. 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. Where both spouses are offenders, a legal separation
cannot by either of them. Collusion between the parties to obtain legal separation shall cause the dismissal of the
petition.
ART. 102. An action for legal separation cannot be filed except within one year from and after the date on which
the plaintiff became cognizant of the cause and within five years from and after the date when such cause occurred.
Condonation
Condonation is the forgiveness of a marital offense constituting a ground for legal separation or, as stated in
Bouver's Law Dictionary, condonation is the "conditional forgiveness or remission, by a husband or wife of a
matrimonial offense which the latter has committed."
Even if we were to give full weight to the testimony of Benjamin, we would have to conclude that the facts are far
from sufficient to establish the charge of adultery. But this is not a question at issue. In this appeal, we have to
consider plaintiff's line of conduct under the assumption that he really believed his wife guilty of adultery. What did he
do in such state of mind? Does the husband's attitude of sleeping with his wife for 2 nights despite his alleged belief
that she was unfaithful to him, amount to a condonation of her previous and supposed adulterous acts?
All these facts have no other meaning than that a reconciliation between them was effected and that there was a
condonation of the wife by the husband. The reconciliation occurred almost ten months after he came to know of the
acts of infidelity amounting to adultery. It has been held in a long line of decisions of the various supreme courts of the
different states of the U. S. that a single voluntary act of sexual intercourse by the innocent spouse after discovery of
the offense is ordinarily sufficient to constitute condonation, especially as against the husband.
Such conduct deprives the husband of any action for legal separation against the offending wife.
BROWN v. YAMBAO
G.R. No. L-10699
October 18, 1957
Reyes, J.B.L.
Gonzales
petitioners WILLIAM H. BROWN, plaintiff-appellant
respondents JUANITA YAMBAO, defendant-appellee
summary William Brown filed a petition for legal separation against his wife Juanita Yambao who got
pregnant by a certain Carlos Field while Brown was interred in Intramuros (ground: adultery).
Yambao was declared in default. Fiscal was ordered by the CFI to intervene. The fiscal found that
Brown was barred from filing the action because he had a concubine (Lilia Delito) himself. Fiscal
further added that petitioner was also prescribed from action because he learned about the
cause in 1945 but only file ten years later. Petitioner says that the fiscals only duty was to
ensure no collusion took place and not stand in place of the wife.
SC: it was legitimate for the Fiscal to bring to light any circumstances that could give rise to the
inference that the wife's default was calculated, or agreed upon, to enable appellant to obtain
the decree of legal separation that he sought without regard to the legal merits of his case. The
policy of Article 101 of the new Civil Code, calling for the intervention of the state attorneys in
case of uncontested proceedings for legal separation (and of annulment of marriages, under
Article 88), is to emphasize that marriage is more than a mere contract; that it is a social
institution in which the state is vitally interested, so that its continuation or interruption cannot
be made depend upon the parties themselves.
Browns action was already barred, because he did not petition for legal separation proceedings
until ten years after he learned of his wife's adultery, which was upon his release from
internment in 1945.

facts of the case

On July 14, 1955, William H. Brown filed suit in the CFI Manila to obtain legal separation from his lawful wife Juanita
Yambao.

Brown alleged under oath that

o while interned by the Japanese invaders, from 1942 to 1945, at the UST internment camp, his wife engaged in
adulterous relations with one Carlos Field of whom she begot a baby girl
o that Brown learned of his wifes misconduct only in 1945, upon his release from internment;
o that thereafter the spouses lived separately and later executed a document liquidating their conjugal
partnership and assigning certain properties to the erring wife as her share.

21

The complaint prayed for confirmation of the liquidation agreement; for custody of the children issued of the
marriage; that the defendant be declared disqualified to succeed the plaintiff; and for their remedy as might be
just and equitable.
Upon petition of Brown, CFI Manila declared Yambao in default, for failure to answer in due time, despite service of
summons.
CFI also directed the City Fiscal or his representatives to investigate, in accordance with Article 101 of the Civil
Code, whether or not a collusion exists between the parties and to report to this Court the result of his
investigation within fifteen (15) days from receipt of copy of this order. The City Fiscal or his representative is also
directed to intervene in the case in behalf of the State
Assistant City Fiscal Rafael Jose appeared at the trial, and cross-examined Brown. His questions (strenuously
objected to by Brown's counsel) elicited the fact that after liberation, Brown had lived maritally with another
woman and had begotten children by her.
Thereafter, the court rendered judgment denying the legal separation asked, on the ff. grounds:
o That while the wife's adultery was established, Brown had incurred in a misconduct of similar nature
that barred his right of action under Article 100 of the new Civil Code and
ART. 100. The legal separation may be claimed only by the innocent spouse, provided there
has been no condonation or of consent to the adultery or concubinage. Where both spouses
are offenders, a legal separation cannot be claimed by either of them. Collusion between the
parties to obtain legal separation shall cause the dismissal of the petition.
o that there had been consent and connivance, and because Brown's action had prescribed under Article
102 of the same Code since the evidence showed that the learned of his wife's infidelity in 1945 but
only filed action in 1945.
ART. 102 An action for legal separation cannot be filed except within one year from and after
the date on which the plaintiff became cognizant of the cause and within five years from and
after date when such cause occurred.
Brown appealed to SC and argued
o that in cross-examining him with regard to his marital relation with Lilia Deito, who was not his wife,
the Assistant Fiscal acted as counsel for the defaulting wife, "when the power of the prosecuting officer
is limited to finding out whether or not there is collusion, and if there is no collusion, which is the fact
in the case at bar, to intervene for the state which is not the fact in the instant case, the truth of the
matter being that he intervened for Juanita Yambao, the defendant-appellee, who is private citizen and
who is far from being the state.".
o that there was no condonation or consent and

issues
WoN the intervention of the fiscal is warrantedYES.
WoN the action has prescribedYES.
Ratio
The intervention of the fiscal is warranted
Collusion in matrimonial cases being "the act of married persons in procuring a divorce by mutual consent, whether by
preconcerted commission by one of a matrimonial offense, or by failure, in pursuance of agreement to defend
divorce proceedings", it was legitimate for the Fiscal to bring to light any circumstances that could give rise to the
inference that the wife's default was calculated, or agreed upon, to enable appellant to obtain the decree of legal
separation that he sought without regard to the legal merits of his case.
One such circumstance is obviously the fact of Brown's cohabitation with a woman other than his wife, since it bars
him from claiming legal separation by express provision of Article 100 of the new Civil Code. Such evidence of such
misconduct, were proper subject of inquiry as they may justifiably be considered circumstantial evidence of collusion
between the spouses.
The policy of Article 101 of the new Civil Code, calling for the intervention of the state attorneys in case
of uncontested proceedings for legal separation (and of annulment of marriages, under Article 88), is
to emphasize that marriage is more than a mere contract; that it is a social institution in which the
state is vitally interested, so that its continuation or interruption cannot be made depend upon the
parties themselves. It is consonant with this policy that the inquiry by the Fiscal should be allowed to focus upon
any relevant matter that may indicate whether the proceedings for separation or annulment are fully justified or not.
The action has prescribed
Browns action was already barred, because he did not petition for legal separation proceedings until ten years after he
learned of his wife's adultery, which was upon his release from internment in 1945.
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.
Hence, there being at least two well established statutory grounds for denying the remedy sought (commission of
similar offense by petitioner and prescription of the action), it becomes unnecesary to delve further into the

22

case and ascertain if Brown's inaction for ten years also evidences condonation or connivance on his
part. Even if it did not, his situation would not be improved.
OCAMPO v. FLORENCIANO
G.R. No. L-13553
February 23 1960
Bengzon
Hermosisima
petitioners Jose de Ocampo
respondents Serafina Florenciano
summary Wife cheated on husband many times. On the last time, husband caught wifey having sex with
Norman. He signified that he wanted a legal separation to which she agreed to in exchange for
him not filing any criminal charge against her. Lower and CA found this to be a confession which
would effectively dismiss the petition. Court held otherwise.
For confession of judgment, it should be made in court orally or through a pleading. It must also
be the only evidence presented in order for it to deny the decree requested, contrary to what
happened here since the husband also presented evidence
As for collusion, there must have been an agreement between h and w to either make it appear
in court that a ground existed when in fact there wasnt or to get a separation even in the
absence of any ground. Here Serafina already committed numerous acts of adultery and her
alleged conformity is the only thing she can say under oath, if she wants to avoid prosecution
for perjury.

facts of the case

Jose and Serafina were married in April 5 1938. In March 1951 Jose discovered that his wife was cheating on
him with one Jose Arcalas. He sent her to Manila in June 1951 for her to study beauty culture
Serafina stayed in Manila for one year where Jose again discovered that she was going out with other men.
Since Manila until June 1952, they stopped living together
On June 18 1955, Jose surprised his wife while the latter was having sex with Nelson Orzame. Jose signified
in this incident (#awkward) his intention of filing a petition for legal separation, to which Serafina
manifested her conformity provided shes not charged with adultery.
July 5 1955 Jose filed the subject petition for legal separation. Because Serafina made no answer to the
petition, the court defaulted her, and pursuant to Article 101 of the NCC 11 ordered the fiscal to investigate
collusion. The fiscal examined Serafina and determined that there was no collusion. This is when Jose
presented his evidence through the testimonies of 6 witnesses.
Both the CFI of Nueva Ecija and the CA held that as for Serafinas illicit relations with Jose Arcalas, Joses right
of action has already prescribed (one year from discovery of infidelity). As for Serafinas illicit relation with
Nelson Orzame, the lower and appellate court held that her conformity to Joses statement were a confession
of judgment. Thus bth of them did not decree the legal separation asked for.
issue
Whether Serafinas conformity to Joses statement precluded the latter from getting a legal separation. NO
Ratio
The Confession
The SC interpreted Article 101 as not excluding for evidence any admission or confession made by a defendant
outside of court. It merely prohibits a decree upon a confession of judgment when a defendant appears in
court and confesses the right of a plaintiff to a decree or files a pleading agreeing to such action. Here,
Serafina didnt do any of these
Even if Serafinas conformity constituted a confession, the SC held that the decree should still be granted
inasmuch that there is evidence of the adultery independently of her conformity. In this case, the decree
will be based not on her confession, but on evidence presented by plaintiff. What the law prohibits is a
judgment based exclusively or mainly on defendants confession. If a confession defeats the
action ipso facto, then every defendant will just immediately confess to purposely prevent legal
separation

Was there collusion?

11 No decree of legal separation shall be promulgated upon a stipulation of facts or by confession of judgmentIn case of nonappearance of the defendant, the court shall order the prosecuting attorney to inquire whether or not a collusion between the parties
exists. If there is no collusion, the prosecuting attorney shall intervene for the State in order to take care that evidence for plaintiff is
not fabricated.

23

Although Serafinas failure to give an anwer to the petition can be considered as her willingness to be
separated, the law does not order the proceeding to stop but instead orders the fiscal to investigate for any
collusion
Collusion in divorce is an agreement between the husband and the wife for one of them to commit, or to
appear to commit, or to be represented in court as having committed, a matrimonial offense, or to suppress
evidence of a valid defense, for the purpose of enabling another to obtain a divorce. This agreement may be
express or implied.
o There would be collusion here if the parties arranged to make it appear that there was a matrimonial
offense even if there was not or when they connive to bring about a legal separation on the absence of
any ground
Here, clearly, Serafina already committed adultery and she couldn not have lied about that lest she could be
found guilty of perjury for lying under oath.
Proof that she wanted the divorce does not make it collusion

What about Joses failure to bring her back?

His failure to take her home cannot be construed as condonation or consent to her wifes offense. It will be
remembered that she left him after having sex with Arcalas and after he had discovered her dates with other
men.
Matute v Macadaeg
G.R. No. L-9325
May 30, 1956
CONCEPCION
Leynes
petitioners ROSARIO MATUTE
respondents HON. HIGINIO B. MACADAEG, as Judge of the Court of First Instance of Manila, Branch X, and
ARMANDO MEDEL
summary Armando and Rosario were legally separated and custody of the children were given to Armando.
With permission of Armando, Rosario brought the children to Manila for the funeral of their
maternal grandfather. The children were not returned to Armando. Rosario filed a motion for
award of custody of the children. This was denied by the lower court. Rosario filed a petition for
certiorari and prohibition questioning the order of the lower court. SC stated that the lower court
did not commit grave abuse of discretion in deciding that the exceptions were present in giving
deference to the choice of the children.

24

facts of the case

Armando Medel filed an action for legal separation against Rosario Matute. (ground: adultery with his brother
Ernesto Medel)
November 6, 1952 - Court found Rosario guilty of the charges against her, decreeing said LEGAL SEPARATION &
awarding to Armando the custody of their 4 minor children, ages 12, 10, 8 and 4.
With his permission, Rosario brought the children to Manila in April, 1955, to attend the funeral of her father.
Armando alleges that he consented thereto on condition that she would return the children to him within two (2)
weeks. However, Rosario did not do so.
Instead, on June 10, 1955, she filed a motion for an award of custody of the children (in deference to the
preference expressed by the children) and for support from Armando for school fees and allowances.
Said motion was based upon the ground that the children three (3) of whom, namely, Florencia, Manuel and
Carmelita, were then 16, 14 and 12 years of age, respectively do not want to go back to their father, because he is
living with a woman other than their mother.
Armando opposed this motion and countered with a petition to declare and punish Rosario for contempt of court, in
view of her failure and alleged refusal to restore the custody of their children to him.
The court absolved Rosario of contempt but denied her prayer for custody with an order to return the children
within 24 hours.
Petitioner filed a petition for certiorari and prohibition questioning the order of the lower court.
issue
1) WON the petition for certiorari and prohibition should be granted. NO. Since the decision of the lower
court judge was within his jurisdiction
2) WON Petitioner had custody of the children when she brought them to Manila. NO. She had physical
possession of the children in the name and authority of Respondent.
ratio
Again, it is conceded that children over ten (10) years of age, whose parents are divorced or living separately, may
choose which parent they prefer to live with, unless the parent chosen is unfit to take charge of their care by reason of
moral depravity, habitual drunkenness, incapacity or poverty (Rule 100, section 6, Rules of Court).
However, the decision of the lower court in finding that poverty of the mother and the adultery committed by the
mother falls within the exception of the above rule is not an abuse of discretion, much less a grave one..
1st Issue
Neither the writ of certiorari nor that of prohibition lies unless the act complained of has been performed without
or in excess of jurisdiction or with grave abuse of discretion.
Whatever mistakes, if any, he may have committed they are not errors of jurisdiction, but errors in the exercise
of the jurisdiction which the lower court admittedly had.
They may be reviewed by appeal, not by writ of certiorari or prohibition.
2nd Issue
Furthermore, by virtue of said decision of November 6, 1952, Respondent had, admittedly, the custody of said
minors.
Petitioner merely obtained his permission to bring them to Manila, for the purpose of attending the funeral of their
maternal grandfather.
Thus, Petitioner obtained and has the physical possession of the minors in a precarious manner.
She holds it in the name, on behalf and by authority of Respondent Medel, whose agent she is.
He may demand their return at any time, and she is bound to comply immediately with such demand.
She cannot even question his authority to make it, although she is free to seek a review of the order or decision
awarding the custody of the minors to him, and to ask that they be placed under her charge.

25

Laperal v. Republic
G.R. No. ######
October 30, 1962
Ponente
Authors surname
petitioners Elisea Laperal
respondents Republic of the Philippines
summary Elisa Laperal, after legally separating from her husband, wants permission from the court to
revert to her maiden name via Rule 103, stating the fact of her legal separation and that there
may be confusion in her business dealings.
The court denied her petition as the language in the Code is mandatory that a legally separated
woman may not revert to the use of her maiden name since there is no severance of the
marriage.

26

facts of the case

Elisea Laperal obtained a decree of legal separation from Enrique Santamaria. Aside from being legally separated,
they were also separated in fact.
Before they separated, she used the name Elisea L. Santamaria instead of her maiden name. She then filed a
petition before the CFI of Baguio asking for permission to use her maiden name. Republic opposed, saying that the
petition violates Article 372 of the Civil Code.
The court denied the petition for the reason that Article 372 of the Civil Code requires the wife, even after she is
decreed legally separated from her husband, to continue using the name and surname she employed before the legal
separation. 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.
issue
Whether petitioner is allowed to revert to her maiden name. NO.
ratio
Language in Article 372 mandatory - 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.
Rule 103 will not prevail over Article 372 in this case - the only reason relied upon for the change of name is
the fact that petitioner is legally separated from her husband and has, in fact, ceased to live with him for many years.
It is doubtful, to say the least, whether Rule 103 which refers to change of name in general, may prevail over the
specific provisions of Article 372 of the New Civil Code with regards to married women legally separated from their
husbands. Even, however, applying Rule 103 to this case, the fact of legal separation alone which is the only basis
for the petition at bar is, in our opinion, not a sufficient ground to justify a change of the name of herein petitioner,
for to hold otherwise would be to provide an easy circumvention of the mandatory provisions of Article 372.
The fact that she has extensive business interests will not cause undue confusion - This finding is
however without basis. In the first place, these were not the causes upon which the petition was based; hence,
obviously no evidence to this effect had been adduced. Secondly, with the issuance of the decree of legal separation in
1958, the conjugal partnership between petitioner and her husband had automatically been dissolved and liquidated.
(Art. 106[2], Civil Cod). Consequently, there could be no more occasion for an eventual liquidation of the conjugal
assets.