Republic of the Philippines

SUPREME COURT
Manila

SECOND DIVISION

A.M. No. 1637 July 6, 1976

IN RE: ATTY. RUFILLO D. BUCANA, respondent.

RESOLUTION

ANTONIO, J.:

Acting upon the letter of Mrs. Angela Drilon Baltazar, Barangay Captain of Victories, Dumangas, Iloilo, dated
February 26, 1976, respondent Notary Public Rufillo D. Bucana was required by this Court in its Resolution
of March 23, 1976, to show cause within ten (10) days from notice, why he should not be disciplinarily dealt
with for having notarized on November 10, 1975 at Dumangas, Iloilo an Agreement executed by the
spouses Gonzalo Baltazar and Luisa Sorongon wherein the afore-mentioned spouses agreed therein 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 afore-mentioned Agreement was "entered into for the purpose of agreement to
allow each and everyone of them to remarry without objection or reservation ...", which affidavit is contrary to
law because it sanctions an illicit and immoral purpose.

On April 21, 1976, respondent . submitted his explanation, admitting that he notarized the afore-mentioned
document and that the Agreement is "immoral and against public policy", but in mitigation he asserted that
the document in question was Prepared by his clerk, Lucia D. Doctolero without his previous knowledge;
that when said document was presented to him for signature after it was signed by the parties, he
vehemently refused to sign it and informed the parties that the document was immoral; that he placed the
said document on his table among his files and more than a week later, he asked his clerk where the
document was for the purpose of destroying it, but to his surprise he found that the same was notarized by
him as per his file copies in the office; that he dispatched his clerk to get the copy from the parties, but the
afore-mentioned parties could not be found in their respective residences; that he must have inadvertently
notarized the same in view of the numerous documents on his table and at that time he was emotionally
disturbed as his father (now deceased) was then seriously ill. The foregoing contentions of respondent were
corroborated substantially by the separate sworn statements of his clerk, Lucia D. Doctolero and Angela
Drilon Baltazar, both dated April 20, 1976. 1

There is no question that the afore-mentioned Agreement is contrary to law, morals and good customs.
Marriage is an inviolable social institution, in the maintenance of which in its purity the public is deeply
interested for it is the foundation of the family and of society without which there could be neither civilization
nor progress. 2

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. 3 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.
As stressed by Justice Malcolm in Panganiban v. Borromeo, 4 "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 notary and lawyer, must
be held responsible for both. We are led to hold that 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."

In the case at bar, respondent in effect pleads for clemency, claiming that the notarization of the questioned
document was due to his negligence. We find, however, that the aforementioned document 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.

WHEREFORE, We hold that respondent Rufillo D. Bucana is guilty of malpractice and is hereby suspended
from the office of not try public for a period of six (6) months, with the admonition that a repetition of the
same or a similar act in the future will be dealt with more severely.

Fernando (Chairman), Barredo, Aquino and Martin, JJ., concur.

Concepcion, Jr., J., is on leave.

Martin, J., was designated to sit in the Second Division.

Footnotes

1 Annexes "A" and "B".

2 Ramirez v. Gmur, 42 Phil. 855.

3 Panganiban v. Borromeo, 58 Phil. 367; Biton v. Momongan, 62 Phil. 7.

4 58 Phil. 367, 369.

Republic of the Philippines

SUPREME COURT
Manila

FIRST DIVISION

G.R. No. 174689 October 22, 2007

ROMMEL JACINTO DANTES SILVERIO, petitioner,

vs.
REPUBLIC OF THE PHILIPPINES, respondent.

DECISION
CORONA, J.:

When God created man, He made him in the likeness of God; He created them male and female.
(Genesis 5:1-2)

Amihan gazed upon the bamboo reed planted by Bathala and she heard voices coming from inside
the bamboo. "Oh North Wind! North Wind! Please let us out!," the voices said. She pecked the reed
once, then twice. All of a sudden, the bamboo cracked and slit open. Out came two human beings;
one was a male and the other was a female. Amihan named the man "Malakas" (Strong) and the
woman "Maganda" (Beautiful). (The Legend of Malakas and Maganda)

When is a man a man and when is a woman a woman? In particular, does the law recognize the changes
made by a physician using scalpel, drugs and counseling with regard to a persons sex? May a person
successfully petition for a change of name and sex appearing in the birth certificate to reflect the result of a
sex reassignment surgery?

On November 26, 2002, petitioner Rommel Jacinto Dantes Silverio filed a petition for the change of his first
name and sex in his birth certificate in the Regional Trial Court of Manila, Branch 8. The petition, docketed
as SP Case No. 02-105207, impleaded the civil registrar of Manila as respondent.

Petitioner alleged in his petition that he was born in the City of Manila to the spouses Melecio Petines
Silverio and Anita Aquino Dantes on April 4, 1962. His name was registered as "Rommel Jacinto Dantes
Silverio" in his certificate of live birth (birth certificate). His sex was registered as "male."

He further alleged that he is a male transsexual, that is, "anatomically male but feels, thinks and acts as a
female" and that he had always identified himself with girls since childhood.1 Feeling trapped in a mans
body, he consulted several doctors in the United States. He underwent psychological examination, hormone
treatment and breast augmentation. His attempts to transform himself to a "woman" culminated on January
27, 2001 when he underwent sex reassignment surgery2 in Bangkok, Thailand. He was thereafter examined
by Dr. Marcelino Reysio-Cruz, Jr., a plastic and reconstruction surgeon in the Philippines, who issued a
medical certificate attesting that he (petitioner) had in fact undergone the procedure.

From then on, petitioner lived as a female and was in fact engaged to be married. He then sought to have
his name in his birth certificate changed from "Rommel Jacinto" to "Mely," and his sex from "male" to
"female."

An order setting the case for initial hearing was published in the Peoples Journal Tonight, a newspaper of
general circulation in Metro Manila, for three consecutive weeks.3 Copies of the order were sent to the Office
of the Solicitor General (OSG) and the civil registrar of Manila.

On the scheduled initial hearing, jurisdictional requirements were established. No opposition to the petition
was made.

During trial, petitioner testified for himself. He also presented Dr. Reysio-Cruz, Jr. and his American fianc,
Richard P. Edel, as witnesses.

On June 4, 2003, the trial court rendered a decision4 in favor of petitioner. Its relevant portions read:

Petitioner filed the present petition not to evade any law or judgment or any infraction thereof or for
any unlawful motive but solely for the purpose of making his birth records compatible with his
present sex.
 The sole issue here is whether or not petitioner is entitled to the relief asked for.

The [c]ourt rules in the affirmative.

Firstly, the [c]ourt is of the opinion that granting the petition would be more in consonance with the
principles of justice and equity. With his sexual [re-assignment], petitioner, who has always felt,
thought and acted like a woman, now possesses the physique of a female. Petitioners misfortune to
be trapped in a mans body is not his own doing and should not be in any way taken against him.

Likewise, the [c]ourt believes that no harm, injury [or] prejudice will be caused to anybody or the
community in granting the petition. On the contrary, granting the petition would bring the much-
awaited happiness on the part of the petitioner and her [fianc] and the realization of their dreams.

Finally, no evidence was presented to show any cause or ground to deny the present petition
despite due notice and publication thereof. Even the State, through the [OSG] has not seen fit to
interpose any [o]pposition.

WHEREFORE, judgment is hereby rendered GRANTING the petition and ordering the Civil
Registrar of Manila to change the entries appearing in the Certificate of Birth of [p]etitioner,
specifically for petitioners first name from "Rommel Jacinto" to MELY and petitioners gender from
"Male" to FEMALE. 5

On August 18, 2003, the Republic of the Philippines (Republic), thru the OSG, filed a petition for certiorari in
the Court of Appeals.6 It alleged that there is no law allowing the change of entries in the birth certificate by
reason of sex alteration.

On February 23, 2006, the Court of Appeals7 rendered a decision8 in favor of the Republic. It ruled that the
trial courts decision lacked legal basis. There is no law allowing the change of either name or sex in the
certificate of birth on the ground of sex reassignment through surgery. Thus, the Court of Appeals granted
the Republics petition, set aside the decision of the trial court and ordered the dismissal of SP Case No. 02-
105207. Petitioner moved for reconsideration but it was denied.9 Hence, this petition.

Petitioner essentially claims that the change of his name and sex in his birth certificate is allowed under
Articles 407 to 413 of the Civil Code, Rules 103 and 108 of the Rules of Court and RA 9048.10

The petition lacks merit.

A Persons First Name Cannot Be Changed On the Ground of Sex Reassignment

Petitioner invoked his sex reassignment as the ground for his petition for change of name and sex. As found
by the trial court:

Petitioner filed the present petition not to evade any law or judgment or any infraction thereof or for
any unlawful motive but solely for the purpose of making his birth records compatible with his
present sex. (emphasis supplied)

Petitioner believes that after having acquired the physical features of a female, he became entitled to the
civil registry changes sought. We disagree.
The State has an interest in the names borne by individuals and entities for purposes of identification. 11 A
change of name is a privilege, not a right.12 Petitions for change of name are controlled by statutes.13 In this
connection, Article 376 of the Civil Code provides:

ART. 376. No person can change his name or surname without judicial authority.

This Civil Code provision was amended by RA 9048 (Clerical Error Law). In particular, Section 1 of RA 9048
provides:

SECTION 1. Authority to Correct Clerical or Typographical Error and Change of First Name or
Nickname. No entry in a civil register shall be changed or corrected without a judicial order, except
for clerical or typographical errors and change of first name or nickname which can be corrected or
changed by the concerned city or municipal civil registrar or consul general in accordance with the
provisions of this Act and its implementing rules and regulations.

RA 9048 now governs the change of first name.14 It vests the power and authority to entertain petitions for
change of first name to the city or municipal civil registrar or consul general concerned. Under the law,
therefore, jurisdiction over applications for change of first name is now primarily lodged with the
aforementioned administrative officers. The intent and effect of the law is to exclude the change of first name
from the coverage of Rules 103 (Change of Name) and 108 (Cancellation or Correction of Entries in the Civil
Registry) of the Rules of Court, until and unless an administrative petition for change of name is first filed
and subsequently denied.15 It likewise lays down the corresponding venue,16 form17 and procedure. In sum,
the remedy and the proceedings regulating change of first name are primarily administrative in nature, not
judicial.

RA 9048 likewise provides the grounds for which change of first name may be allowed:

SECTION 4. Grounds for Change of First Name or Nickname. The petition for change of first name
or nickname may be allowed in any of the following cases:

(1) The petitioner finds the first name or nickname to be ridiculous, tainted with dishonor or
extremely difficult to write or pronounce;

(2) The new first name or nickname has been habitually and continuously used by the petitioner and
he has been publicly known by that first name or nickname in the community; or

(3) The change will avoid confusion.

Petitioners basis in praying for the change of his first name was his sex reassignment. He intended to make
his first name compatible with the sex he thought he transformed himself into through surgery. However, a
change of name does not alter ones legal capacity or civil status.18 RA 9048 does not sanction a change of
first name on the ground of sex reassignment. Rather than avoiding confusion, changing petitioners first
name for his declared purpose may only create grave complications in the civil registry and the public
interest.

Before a person can legally change his given name, he must present proper or reasonable cause or any
compelling reason justifying such change.19 In addition, he must show that he will be prejudiced by the use
of his true and official name.20 In this case, he failed to show, or even allege, any prejudice that he might
suffer as a result of using his true and official name.
In sum, the petition in the trial court in so far as it prayed for the change of petitioners first name was not
within that courts primary jurisdiction as the petition should have been filed with the local civil registrar
concerned, assuming it could be legally done. It was an improper remedy because the proper remedy was
administrative, that is, that provided under RA 9048. It was also filed in the wrong venue as the proper
venue was in the Office of the Civil Registrar of Manila where his birth certificate is kept. More importantly, it
had no merit since the use of his true and official name does not prejudice him at all. For all these reasons,
the Court of Appeals correctly dismissed petitioners petition in so far as the change of his first name was
concerned.

No Law Allows The Change of Entry In The Birth Certificate As To Sex On the Ground of Sex
Reassignment

The determination of a persons sex appearing in his birth certificate is a legal issue and the court must look
to the statutes.21 In this connection, Article 412 of the Civil Code provides:

ART. 412. No entry in the civil register shall be changed or corrected without a judicial order.

Together with Article 376 of the Civil Code, this provision was amended by RA 9048 in so far as clerical or
typographical errors are involved. The correction or change of such matters can now be made through
administrative proceedings and without the need for a judicial order. In effect, RA 9048 removed from the
ambit of Rule 108 of the Rules of Court the correction of such errors.22 Rule 108 now applies only to
substantial changes and corrections in entries in the civil register.23

Section 2(c) of RA 9048 defines what a "clerical or typographical error" is:

SECTION 2. Definition of Terms. As used in this Act, the following terms shall mean:

xxx xxx xxx

(3) "Clerical or typographical error" refers to a mistake committed in the performance of

clerical work in writing, copying, transcribing or typing an entry in the civil register that is
harmless and innocuous, such as misspelled name or misspelled place of birth or the like,
which is visible to the eyes or obvious to the understanding, and can be corrected or
changed only by reference to other existing record or records:Provided, however, That
no correction must involve the change of nationality, age, status or sex of the petitioner.
(emphasis supplied)

Under RA 9048, a correction in the civil registry involving the change of sex is not a mere clerical or
typographical error. It is a substantial change for which the applicable procedure is Rule 108 of the Rules of
Court.

The entries envisaged in Article 412 of the Civil Code and correctable under Rule 108 of the Rules of Court
are those provided in Articles 407 and 408 of the Civil Code:24

ART. 407. Acts, events and judicial decrees concerning the civil status of persons shall be recorded
in the civil register.

ART. 408. The following shall be entered in the civil register:

(1) Births; (2) marriages; (3) deaths; (4) legal separations; (5) annulments of marriage; (6) judgments
declaring marriages void from the beginning; (7) legitimations; (8) adoptions; (9) acknowledgments
 of natural children; (10) naturalization; (11) loss, or (12) recovery of citizenship; (13) civil interdiction;
(14) judicial determination of filiation; (15) voluntary emancipation of a minor; and (16) changes of
name.

The acts, events or factual errors contemplated under Article 407 of the Civil Code include even those that
occur after birth.25 However, no reasonable interpretation of the provision can justify the conclusion that it
covers the correction on the ground of sex reassignment.

To correct simply means "to make or set aright; to remove the faults or error from" while to change means
"to replace something with something else of the same kind or with something that serves as a
substitute."26 The birth certificate of petitioner contained no error. All entries therein, including those
corresponding to his first name and sex, were all correct. No correction is necessary.

Article 407 of the Civil Code authorizes the entry in the civil registry of certain acts (such as legitimations,
acknowledgments of illegitimate children and naturalization), events (such as births, marriages,
naturalization and deaths) and judicial decrees (such as legal separations, annulments of marriage,
declarations of nullity of marriages, adoptions, naturalization, loss or recovery of citizenship, civil interdiction,
judicial determination of filiation and changes of name). These acts, events and judicial decrees produce
legal consequences that touch upon the legal capacity, status and nationality of a person. Their effects are
expressly sanctioned by the laws. In contrast, sex reassignment is not among those acts or events
mentioned in Article 407. Neither is it recognized nor even mentioned by any law, expressly or impliedly.

"Status" refers to the circumstances affecting the legal situation (that is, the sum total of capacities and
incapacities) of a person in view of his age, nationality and his family membership.27

The status of a person in law includes all his personal qualities and relations, more or less
permanent in nature, not ordinarily terminable at his own will, such as his being legitimate or
illegitimate, or his being married or not. The comprehensive term status include such matters as
the beginning and end of legal personality, capacity to have rights in general, family relations, and its
various aspects, such as birth, legitimation, adoption, emancipation, marriage, divorce, and
sometimes even succession.28 (emphasis supplied)

A persons sex is an essential factor in marriage and family relations. It is a part of a persons legal capacity
and civil status. In this connection, Article 413 of the Civil Code provides:

ART. 413. All other matters pertaining to the registration of civil status shall be governed by special
laws.

But there is no such special law in the Philippines governing sex reassignment and its effects. This is fatal to
petitioners cause.

Moreover, Section 5 of Act 3753 (the Civil Register Law) provides:

SEC. 5. Registration and certification of births. The declaration of the physician or midwife in
attendance at the birth or, in default thereof, the declaration of either parent of the newborn child,
shall be sufficient for the registration of a birth in the civil register. Such declaration shall be exempt
from documentary stamp tax and shall be sent to the local civil registrar not later than thirty days
after the birth, by the physician or midwife in attendance at the birth or by either parent of the
newborn child.
 In such declaration, the person above mentioned shall certify to the following facts: (a) date and hour
of birth; (b) sex and nationality of infant; (c) names, citizenship and religion of parents or, in case
the father is not known, of the mother alone; (d) civil status of parents; (e) place where the infant was
born; and (f) such other data as may be required in the regulations to be issued.

xxx xxx xxx (emphasis supplied)

Under the Civil Register Law, a birth certificate is a historical record of the facts as they existed at the time of
birth.29Thus, the sex of a person is determined at birth, visually done by the birth attendant (the physician or
midwife) by examining the genitals of the infant. Considering that there is no law legally recognizing sex
reassignment, the determination of a persons sex made at the time of his or her birth, if not attended by
error,30 is immutable.31

When words are not defined in a statute they are to be given their common and ordinary meaning in the
absence of a contrary legislative intent. The words "sex," "male" and "female" as used in the Civil Register
Law and laws concerning the civil registry (and even all other laws) should therefore be understood in their
common and ordinary usage, there being no legislative intent to the contrary. In this connection, sex is
defined as "the sum of peculiarities of structure and function that distinguish a male from a female"32 or "the
distinction between male and female."33Female is "the sex that produces ova or bears young"34 and male is
"the sex that has organs to produce spermatozoa for fertilizing ova."35 Thus, the words "male" and "female"
in everyday understanding do not include persons who have undergone sex reassignment. Furthermore,
"words that are employed in a statute which had at the time a well-known meaning are presumed to have
been used in that sense unless the context compels to the contrary."36 Since the statutory language of the
Civil Register Law was enacted in the early 1900s and remains unchanged, it cannot be argued that the
term "sex" as used then is something alterable through surgery or something that allows a post-operative
male-to-female transsexual to be included in the category "female."

For these reasons, while petitioner may have succeeded in altering his body and appearance through the
intervention of modern surgery, no law authorizes the change of entry as to sex in the civil registry for that
reason. Thus, there is no legal basis for his petition for the correction or change of the entries in his birth
certificate.

Neither May Entries in the Birth Certificate As to First Name or Sex Be Changed on the Ground of
Equity

The trial court opined that its grant of the petition was in consonance with the principles of justice and equity.
It believed that allowing the petition would cause no harm, injury or prejudice to anyone. This is wrong.

The changes sought by petitioner will have serious and wide-ranging legal and public policy consequences.
First, even the trial court itself found that the petition was but petitioners first step towards his eventual
marriage to his male fianc. However, marriage, one of the most sacred social institutions, is a special
contract of permanent unionbetween a man and a woman.37 One of its essential requisites is the legal
capacity of the contracting parties who must be a male and a female.38 To grant the changes sought by
petitioner will substantially reconfigure and greatly alter the laws on marriage and family relations. It will
allow the union of a man with another man who has undergone sex reassignment (a male-to-female post-
operative transsexual). Second, there are various laws which apply particularly to women such as the
provisions of the Labor Code on employment of women,39 certain felonies under the Revised Penal
Code40 and the presumption of survivorship in case of calamities under Rule 131 of the Rules of
Court,41 among others. These laws underscore the public policy in relation to women which could be
substantially affected if petitioners petition were to be granted.
It is true that Article 9 of the Civil Code mandates that "[n]o judge or court shall decline to render judgment
by reason of the silence, obscurity or insufficiency of the law." However, it is not a license for courts to
engage in judicial legislation. The duty of the courts is to apply or interpret the law, not to make or amend it.

In our system of government, it is for the legislature, should it choose to do so, to determine what guidelines
should govern the recognition of the effects of sex reassignment. The need for legislative guidelines
becomes particularly important in this case where the claims asserted are statute-based.

To reiterate, the statutes define who may file petitions for change of first name and for correction or change
of entries in the civil registry, where they may be filed, what grounds may be invoked, what proof must be
presented and what procedures shall be observed. If the legislature intends to confer on a person who has
undergone sex reassignment the privilege to change his name and sex to conform with his reassigned sex,
it has to enact legislation laying down the guidelines in turn governing the conferment of that privilege.

It might be theoretically possible for this Court to write a protocol on when a person may be recognized as
having successfully changed his sex. However, this Court has no authority to fashion a law on that matter, or
on anything else. The Court cannot enact a law where no law exists. It can only apply or interpret the written
word of its co-equal branch of government, Congress.

Petitioner pleads that "[t]he unfortunates are also entitled to a life of happiness, contentment and [the]
realization of their dreams." No argument about that. The Court recognizes that there are people whose
preferences and orientation do not fit neatly into the commonly recognized parameters of social convention
and that, at least for them, life is indeed an ordeal. However, the remedies petitioner seeks involve questions
of public policy to be addressed solely by the legislature, not by the courts.

WHEREFORE, the petition is hereby DENIED.

Costs against petitioner.

SO ORDERED.

Puno, C.J., Chairperson, Sandoval-Gutierrez, Azcuna, Garcia, JJ., concur.

SECOND DIVISION

REPUBLIC OF THE PHILIPPINES, G.R. No. 166676

Petitioner,
Present:

QUISUMBING, J., Chairperson,

- versus - CARPIO MORALES,
TINGA,
VELASCO, JR., and
BRION, JJ.

JENNIFER B. CAGANDAHAN, Promulgated:

Respondent.
 September 12, 2008
x- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -x

DECISION
QUISUMBING, J.:

This is a petition for review under Rule 45 of the Rules of Court raising purely
questions of law and seeking a reversal of the Decision[1] dated January 12, 2005 of the
Regional Trial Court (RTC), Branch 33 of Siniloan, Laguna, which granted the Petition for
Correction of Entries in Birth Certificate filed by Jennifer B. Cagandahan and ordered the
following changes of entries in Cagandahans birth certificate: (1) the name Jennifer
Cagandahan changed to Jeff Cagandahan and (2) gender from female to male.

The facts are as follows.

On December 11, 2003, respondent Jennifer Cagandahan filed a Petition for

Correction of Entries in Birth Certificate[2] before the RTC, Branch 33 of Siniloan,
Laguna.

In her petition, she alleged that she was born on January 13, 1981 and was
registered as a female in the Certificate of Live Birth but while growing up, she
developed secondary male characteristics and was diagnosed to have Congenital Adrenal
Hyperplasia (CAH) which is a condition where persons thus afflicted possess both male
and female characteristics.She further alleged that she was diagnosed to have clitoral
hyperthropy in her early years and at age six, underwent an ultrasound where it was
discovered that she has small ovaries. At age thirteen, tests revealed that her ovarian
structures had minimized, she has stopped growing and she has no breast or menstrual
development. She then alleged that for all interests and appearances as well as in mind
and emotion, she has become a male person. Thus, she prayed that her birth certificate be
corrected such that her gender be changed from female to male and her first name be
changed from Jennifer to Jeff.

The petition was published in a newspaper of general circulation for three (3)
consecutive weeks and was posted in conspicuous places by the sheriff of the court. The
Solicitor General entered his appearance and authorized the Assistant Provincial
Prosecutor to appear in his behalf.
 To prove her claim, respondent testified and presented the testimony of Dr.
Michael Sionzon of the Department of Psychiatry, University of
the PhilippinesPhilippine General Hospital. Dr. Sionzon issued a medical certificate
stating that respondents condition is known as CAH. He explained that genetically
respondent is female but because her body secretes male hormones, her female organs did
not develop normally and she has two sex organs female and male. He testified that this
condition is very rare, that respondents uterus is not fully developed because of lack of
female hormones, and that she has no monthly period. He further testified that
respondents condition is permanent and recommended the change of gender because
respondent has made up her mind, adjusted to her chosen role as male, and the gender
change would be advantageous to her.

The RTC granted respondents petition in a Decision dated January 12, 2005 which
reads:
The Court is convinced that petitioner has satisfactorily shown that he is entitled
to the reliefs prayed [for]. Petitioner has adequately presented to the Court very clear and
convincing proofs for the granting of his petition. It was medically proven that petitioners
body produces male hormones, and first his body as well as his action and feelings are
that of a male. He has chosen to be male. He is a normal person and wants to be
acknowledged and identified as a male.

WHEREFORE, premises considered, the Civil Register of Pakil, Laguna is

hereby ordered to make the following corrections in the birth [c]ertificate of Jennifer
Cagandahan upon payment of the prescribed fees:

a) By changing the name from Jennifer Cagandahan to JEFF

CAGANDAHAN; and

b) By changing the gender from female to MALE.

It is likewise ordered that petitioners school records, voters registry, baptismal

certificate, and other pertinent records are hereby amended to conform with the foregoing
corrected data.
[3]
SO ORDERED.

Thus, this petition by the Office of the Solicitor General (OSG) seeking a reversal
of the abovementioned ruling.

The issues raised by petitioner are:

 THE TRIAL COURT ERRED IN GRANTING THE PETITION CONSIDERING
THAT:
I.
THE REQUIREMENTS OF RULES 103 AND 108 OF THE RULES OF COURT
HAVE NOT BEEN COMPLIED WITH; AND,

II.
CORRECTION OF ENTRY UNDER RULE 108 DOES NOT ALLOW CHANGE OF
SEX OR GENDER IN THE BIRTH CERTIFICATE, WHILE RESPONDENTS
MEDICAL CONDITION, i.e., CONGENITAL ADRENAL HYPERPLASIA DOES NOT
MAKE HER A MALE.[4]

Simply stated, the issue is whether the trial court erred in ordering the correction of
entries in the birth certificate of respondent to change her sex or gender, from female to
male, on the ground of her medical condition known as CAH, and her name from
Jennifer to Jeff, under Rules 103 and 108 of the Rules of Court.

The OSG contends that the petition below is fatally defective for non-compliance
with Rules 103 and 108 of the Rules of Court because while the local civil registrar is an
indispensable party in a petition for cancellation or correction of entries under Section 3,
Rule 108 of the Rules of Court, respondents petition before the court a quo did not
implead the local civil registrar.[5] The OSG further contends respondents petition is
fatally defective since it failed to state that respondent is a bona fide resident of the
province where the petition was filed for at least three (3) years prior to the date of such
filing as mandated under Section 2(b), Rule 103 of the Rules of Court.[6] The OSG argues
that Rule 108 does not allow change of sex or gender in the birth certificate and
respondents claimed medical condition known as CAH does not make her a male.[7]

On the other hand, respondent counters that although the Local Civil Registrar of
Pakil, Laguna was not formally named a party in the Petition for Correction of Birth
Certificate, nonetheless the Local Civil Registrar was furnished a copy of the Petition, the
Order to publish on December 16, 2003 and all pleadings, orders or processes in the
course of the proceedings,[8] respondent is actually a male person and hence his birth
certificate has to be corrected to reflect his true sex/gender,[9] change of sex or gender is
allowed under Rule 108,[10] and respondent substantially complied with the requirements
of Rules 103 and 108 of the Rules of Court.[11]

Rules 103 and 108 of the Rules of Court provide:

 Rule 103
CHANGE OF NAME
SECTION 1. Venue. A person desiring to change his name shall present the petition to
the Regional Trial Court of the province in which he resides, [or, in the City of Manila, to
the Juvenile and Domestic Relations Court].

SEC. 2. Contents of petition. A petition for change of name shall be signed and verified
by the person desiring his name changed, or some other person on his behalf, and shall
set forth:

(a) That the petitioner has been a bona fide resident of the province where the
petition is filed for at least three (3) years prior to the date of such filing;

(b) The cause for which the change of the petitioner's name is sought;

(c) The name asked for.

SEC. 3. Order for hearing. If the petition filed is sufficient in form and substance, the
court, by an order reciting the purpose of the petition, shall fix a date and place for the
hearing thereof, and shall direct that a copy of the order be published before the hearing
at least once a week for three (3) successive weeks in some newspaper of general
circulation published in the province, as the court shall deem best. The date set for the
hearing shall not be within thirty (30) days prior to an election nor within four (4) months
after the last publication of the notice.

SEC. 4. Hearing. Any interested person may appear at the hearing and oppose the
petition. The Solicitor General or the proper provincial or city fiscal shall appear on
behalf of the Government of the Republic.

SEC. 5. Judgment. Upon satisfactory proof in open court on the date fixed in the order
that such order has been published as directed and that the allegations of the petition are
true, the court shall, if proper and reasonable cause appears for changing the name of the
petitioner, adjudge that such name be changed in accordance with the prayer of the
petition.

SEC. 6. Service of judgment. Judgments or orders rendered in connection with this rule
shall be furnished the civil registrar of the municipality or city where the court issuing the
same is situated, who shall forthwith enter the same in the civil register.

Rule 108
CANCELLATION OR CORRECTION OF ENTRIES
IN THE CIVIL REGISTRY
SECTION 1. Who may file petition. Any person interested in any act, event, order or
decree concerning the civil status of persons which has been recorded in the civil register,
may file a verified petition for the cancellation or correction of any entry relating thereto,
with the Regional Trial Court of the province where the corresponding civil registry is
located.
 SEC. 2. Entries subject to cancellation or correction. Upon good and valid grounds, the
following entries in the civil register may be cancelled or corrected: (a) births; (b)
marriages; (c) deaths; (d) legal separations; (e) judgments of annulments of marriage; (f)
judgments declaring marriages void from the beginning; (g) legitimations; (h) adoptions;
(i) acknowledgments of natural children; (j) naturalization; (k) election, loss or recovery
of citizenship; (l) civil interdiction; (m) judicial determination of filiation; (n) voluntary
emancipation of a minor; and (o) changes of name.

SEC. 3. Parties. When cancellation or correction of an entry in the civil register is

sought, the civil registrar and all persons who have or claim any interest which would be
affected thereby shall be made parties to the proceeding.

SEC. 4. Notice and publication. Upon the filing of the petition, the court shall, by an
order, fix the time and place for the hearing of the same, and cause reasonable notice
thereof to be given to the persons named in the petition. The court shall also cause the
order to be published once a week for three (3) consecutive weeks in a newspaper of
general circulation in the province.

SEC. 5. Opposition. The civil registrar and any person having or claiming any interest
under the entry whose cancellation or correction is sought may, within fifteen (15) days
from notice of the petition, or from the last date of publication of such notice, file his
opposition thereto.

SEC. 6. Expediting proceedings. The court in which the proceedings is brought may
make orders expediting the proceedings, and may also grant preliminary injunction for
the preservation of the rights of the parties pending such proceedings.

SEC. 7. Order. After hearing, the court may either dismiss the petition or issue an order
granting the cancellation or correction prayed for. In either case, a certified copy of the
judgment shall be served upon the civil registrar concerned who shall annotate the same
in his record.

The OSG argues that the petition below is fatally defective for non-compliance
with Rules 103 and 108 of the Rules of Court because respondents petition did not
implead the local civil registrar. Section 3, Rule 108 provides that the civil registrar and
all persons who have or claim any interest which would be affected thereby shall be made
parties to the proceedings. Likewise, the local civil registrar is required to be made a
party in a proceeding for the correction of name in the civil registry. He is an
indispensable party without whom no final determination of the case can be
had.[12] Unless all possible indispensable parties were duly notified of the proceedings,
the same shall be considered as falling much too short of the requirements of the
rules.[13] The corresponding petition should also implead as respondents the civil registrar
and all other persons who may have or may claim to have any interest that would be
affected thereby.[14] Respondent, however, invokes Section 6,[15] Rule 1 of the Rules of
Court which states that courts shall construe the Rules liberally to promote their
objectives of securing to the parties a just, speedy and inexpensive disposition of the
matters brought before it. We agree that there is substantial compliance with Rule 108
when respondent furnished a copy of the petition to the local civil registrar.

The determination of a persons sex appearing in his birth certificate is a legal issue
and the court must look to the statutes. In this connection, Article 412 of the Civil Code
provides:

ART. 412. No entry in a civil register shall be changed or corrected without a judicial
order.

Together with Article 376[16] of the Civil Code, this provision was amended by
Republic Act No. 9048[17] in so far as clerical or typographical errors are involved. The
correction or change of such matters can now be made through administrative
proceedings and without the need for a judicial order. In effect, Rep. Act No. 9048
removed from the ambit of Rule 108 of the Rules of Court the correction of such errors.
Rule 108 now applies only to substantial changes and corrections in entries in the civil
register.[18]

Under Rep. Act No. 9048, a correction in the civil registry involving the change of
sex is not a mere clerical or typographical error. It is a substantial change for which the
applicable procedure is Rule 108 of the Rules of Court.[19]

The entries envisaged in Article 412 of the Civil Code and correctable under Rule
108 of the Rules of Court are those provided in Articles 407 and 408 of the Civil Code:
ART. 407. Acts, events and judicial decrees concerning the civil status of persons shall
be recorded in the civil register.

ART. 408. The following shall be entered in the civil register:

(1) Births; (2) marriages; (3) deaths; (4) legal separations; (5) annulments of marriage;
(6) judgments declaring marriages void from the beginning; (7) legitimations; (8)
adoptions; (9) acknowledgments of natural children; (10) naturalization; (11) loss, or (12)
recovery of citizenship; (13) civil interdiction; (14) judicial determination of filiation;
(15) voluntary emancipation of a minor; and (16) changes of name.

The acts, events or factual errors contemplated under Article 407 of the Civil Code
include even those that occur after birth.[20]
 Respondent undisputedly has CAH. This condition causes the early or
inappropriate appearance of male characteristics. A person, like respondent, with this
condition produces too much androgen, a male hormone. A newborn who has XX
chromosomes coupled with CAH usually has a (1) swollen clitoris with the urethral
opening at the base, an ambiguous genitalia often appearing more male than female; (2)
normal internal structures of the female reproductive tract such as the ovaries, uterus and
fallopian tubes; as the child grows older, some features start to appear male, such as
deepening of the voice, facial hair, and failure to menstruate at puberty. About 1 in
10,000 to 18,000 children are born with CAH.

CAH is one of many conditions[21] that involve intersex anatomy. During the
twentieth century, medicine adopted the term intersexuality to apply to human beings
who cannot be classified as either male or female.[22] The term is now of widespread
use. According to Wikipedia, intersexuality is the state of a living thing of
a gonochoristic species whose sex chromosomes, genitalia, and/or secondary sex
characteristics are determined to be neither exclusively male nor female. An organism
with intersex may have biological characteristics of both male and female sexes.

Intersex individuals are treated in different ways by different cultures. In most

societies, intersex individuals have been expected to conform to either a male or female
gender role.[23] Since the rise of modern medical science in Western societies,
some intersex people with ambiguous external genitalia have had their genitalia
surgically modified to resemble either male or female genitals.[24] More commonly,
an intersex individual is considered as suffering from a disorder which is almost always
recommended to be treated, whether by surgery and/or by taking lifetime medication in
order to mold the individual as neatly as possible into the category of either male or
female.

In deciding this case, we consider the compassionate calls for recognition of the
various degrees of intersex as variations which should not be subject to outright denial. It
has been suggested that there is some middle ground between the sexes, a no-mans land
for those individuals who are neither truly male nor truly female.[25] The current state of
Philippine statutes apparently compels that a person be classified either as a male or as a
female, but this Court is not controlled by mere appearances when nature itself
fundamentally negates such rigid classification.

In the instant case, if we determine respondent to be a female, then there is no basis

for a change in the birth certificate entry for gender. But if we determine, based on
medical testimony and scientific development
showing the respondent to be other than female, then a change in the

subjects birth certificate entry is in order.

Biologically, nature endowed respondent with a mixed (neither consistently and

categorically female nor consistently and categorically male) composition. Respondent
has female (XX) chromosomes. However, respondents body system naturally produces
high levels of male hormones (androgen). As a result, respondent has ambiguous
genitalia and the phenotypic features of a male.

Ultimately, we are of the view that where the person is biologically or

naturally intersex the determining factor in his gender classification would be what the
individual, like respondent, having reached the age of majority, with good reason thinks
of his/her sex. Respondent here thinks of himself as a male and considering that his body
produces high levels of male hormones (androgen) there is preponderant biological
support for considering him as being male. Sexual development in cases
of intersex persons makes the gender classification at birth inconclusive. It is at maturity
that the gender of such persons, like respondent, is fixed.

Respondent here has simply let nature take its course and has not taken unnatural
steps to arrest or interfere with what he was born with. And accordingly, he has already
ordered his life to that of a male. Respondent could have undergone treatment and taken
steps, like taking lifelong medication,[26] to force his body into the categorical mold of a
female but he did not. He chose not to do so. Nature has instead taken its due course in
respondents development to reveal more fully his male characteristics.

In the absence of a law on the matter, the Court will not dictate on respondent
concerning a matter so innately private as ones sexuality and lifestyle preferences, much
less on whether or not to undergo medical treatment to reverse the male tendency due to
CAH. The Court will not consider respondent as having erred in not choosing to undergo
treatment in order to become or remain as a female. Neither will the Court force
respondent to undergo treatment and to take medication in order to fit the mold of a
female, as society commonly currently knows this gender of the human
species. Respondent is the one who has to live with his intersex anatomy. To him belongs
the human right to the pursuit of happiness and of health. Thus, to him should belong the
primordial choice of what courses of action to take along the path of his sexual
development and maturation. In the absence of evidence that respondent is an
incompetent[27] and in the absence of evidence to show that classifying respondent as a
male will harm other members of society who are equally entitled to protection under the
law, the Court affirms as valid and justified the respondents position and his personal
judgment of being a male.

In so ruling we do no more than give respect to (1) the diversity of nature; and (2)
how an individual deals with what nature has handed out. In other words, we respect
respondents congenital condition and his mature decision to be a male. Life is already
difficult for the ordinary person. We cannot but respect how respondent deals with
his unordinary state and thus help make his life easier, considering the unique
circumstances in this case.

As for respondents change of name under Rule 103, this Court has held that a
change of name is not a matter of right but of judicial discretion, to be exercised in the
light of the reasons adduced and the consequences that will follow.[28] The trial courts
grant of respondents change of name from Jennifer to Jeff implies a change of a feminine
name to a masculine name. Considering the consequence that respondents change of
name merely recognizes his preferred gender, we find merit in respondents change of
name. Such a change will conform with the change of the entry in his birth certificate
from female to male.

WHEREFORE, the Republics petition is DENIED. The Decision dated January

12, 2005 of the Regional Trial Court, Branch 33 of Siniloan, Laguna, is AFFIRMED. No
pronouncement as to costs.

SO ORDERED.

Republic of the Philippines

SUPREME COURT
Manila

SECOND DIVISION

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

LILIA OLIVA WIEGEL, petitioner,

vs.
THE HONORABLE ALICIA V. SEMPIO-DIY (as presiding judge of the Juvenile and Domestic
Relations Court of Caloocan City) and KARL HEINZ WIEGEL, respondents.

Dapucanta, Dulay & Associates for petitioner.

Siguion Reyna, Montecillo and Ongsiako Law Office for private respondent.
PARAS, J.:

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

(1) that the first marriage was vitiated by force exercised upon both her and the first husband; and

(2) that the first husband was at the time of the marriage in 1972 already married to someone else.

Respondent judge ruled against the presentation of evidence because the existence of force exerted on
both parties of the first marriage had already been agreed upon. Hence, the present petition for certiorari
assailing the following Orders of therespondent Judge-

(1) the Order dated March 17, 1980 in which the parties were compelled to submit the case for resolution
based on "agreed facts;" and

(2) the Order dated April 14, 1980, denying petitioner's motion to allow her to present evidence in her favor.

We find the petition devoid of merit.

There is no need for petitioner to prove that her first marriage was vitiated by force committed against both
parties because assuming this to be so, the marriage will not be void but merely viodable (Art. 85, Civil
Code), and therefore valid until annulled. Since no annulment has yet been made, it is clear that when she
married respondent she was still validly married to her first husband, consequently, her marriage to
respondent is VOID (Art. 80, Civil Code).

There is likewise no need of introducing evidence about the existing prior marriage of her first husband at
the time they married each other, for then such a marriage though void still needs according to this Court a
judicial declaration 1 of such fact and for all legal intents and purposes she would still be regarded as a married
woman at the time she contracted her marriage with respondent Karl Heinz Wiegel); accordingly, the marriage of
petitioner and respondent would be regarded VOID under the law.

WHEREFORE, this petition is hereby DISMISSED, for lack of merit, and the Orders complained of are
hereby AFFIRMED. Costs against petitioner.

SO ORDERED.

Feria (Chairman), Fernan Alampay and Gutierrez, Jr., JJ., concur.

Footnotes

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

THIRD DIVISION

[G.R. No. 137110. August 1, 2000]

VINCENT PAUL G. MERCADO a.k.a. VINCENT G. MERCADO, petitioner, vs.

CONSUELO TAN, respondent.

DECISION
PANGANIBAN, J.:

A judicial declaration of nullity of a previous marriage is necessary before a subsequent

one can be legally contracted. One who enters into a subsequent marriage without first
obtaining suchjudicial declaration is guilty of bigamy. This principle applies even if the earlier
union is characterized by statute as void.

The Case

Before us is a Petition for Review on Certiorari assailing the July 14, 1998 Decision of the
Court of Appeals (CA)[1] in CA-GR CR No. 19830 and its January 4, 1999 Resolution denying
reconsideration. The assailed Decision affirmed the ruling of the Regional Trial Court (RTC) of
Bacolod City in Criminal Case No. 13848, which convicted herein petitioner of bigamy as
follows:

WHEREFORE, finding the guilt of accused Dr. Vincent Paul G. Mercado a.k.a. Dr.
Vincent G. Mercado of the crime of Bigamy punishable under Article 349 of the
Revised Penal Code to have been proven beyond reasonable doubt, [the court
hereby renders] judgment imposing upon him a prison term of three (3) years, four
(4) months and fifteen (15) days of prision correccional, as minimum of his
indeterminate sentence, to eight (8) years and twenty-one (21) days of prision
mayor, as maximum, plus accessory penalties provided by law.
Costs against accused.[2]

The Facts

The facts are quoted by Court of Appeals (CA) from the trial courts judgment, as follows:
From the evidence adduced by the parties, there is no dispute that accused Dr. Vincent
Mercado and complainant Ma. Consuelo Tan got married on June 27, 1991 before MTCC-
Bacolod City Br. 7 Judge Gorgonio J. Ibaez [by reason of] which a Marriage Contract was duly
executed and signed by the parties. As entered in said document, the status of accused was
single. There is no dispute either that at the time of the celebration of the wedding with
complainant, accused was actually a married man, having been in lawful wedlock with Ma.
Thelma Oliva in a marriage ceremony solemnized on April 10, 1976 by Judge Leonardo B.
Caares, CFI-Br. XIV, Cebu City per Marriage Certificate issued in connection therewith, which
matrimony was further blessed by Rev. Father Arthur Baur on October 10, 1976 in religious
rites at the Sacred Heart Church, Cebu City. In the same manner, the civil marriage between
accused and complainant was confirmed in a church ceremony on June 29, 1991 officiated by
Msgr. Victorino A. Rivas, Judicial Vicar, Diocese of Bacolod City. Both marriages were
consummated when out of the first consortium, Ma. Thelma Oliva bore accused two children,
while a child, Vincent Paul, Jr. was sired by accused with complainant Ma. Consuelo Tan.

On October 5, 1992, a letter-complaint for bigamy was filed by complainant through

counsel with the City Prosecutor of Bacolod City, which eventually resulted [in] the
institution of the present case before this Court against said accused, Dr. Vincent G.
Mercado, on March 1, 1993 in an Information dated January 22, 1993.

On November 13, 1992, or more than a month after the bigamy case was lodged in
the Prosecutors Office, accused filed an action for Declaration of Nullity of Marriage
against Ma. Thelma V. Oliva in RTC-Br. 22, Cebu City, and in a Decision dated May
6, 1993 the marriage between Vincent G. Mercado and Ma. Thelma V. Oliva was
declared null and void.

Accused is charged [with] bigamy under Article 349 of the Revised Penal Code for
having contracted a second marriage with herein complainant Ma. Consuelo Tan on
June 27, 1991 when at that time he was previously united in lawful marriage with
Ma. Thelma V. Oliva on April 10, 1976 at Cebu City, without said first marriage
having been legally dissolved. As shown by the evidence and admitted by accused,
all the essential elements of the crime are present, namely: (a) that the offender has
been previously legally married; (2) that the first marriage has not been legally
dissolved or in case the spouse is absent, the absent spouse could not yet be
presumed dead according to the Civil Code; (3) that he contract[ed] a second or
subsequent marriage; and (4) that the second or subsequent marriage ha[d] all the
essential requisites for validity. x x x
While acknowledging the existence of the two marriage[s], accused posited the
defense that his previous marriage ha[d] been judicially declared null and void and
that the private complainant had knowledge of the first marriage of accused.

It is an admitted fact that when the second marriage was entered into with Ma.
Consuelo Tan on June 27, 1991, accuseds prior marriage with Ma. Thelma V. Oliva
was subsisting, no judicial action having yet been initiated or any judicial declaration
obtained as to the nullity of such prior marriage with Ma. Thelma V. Oliva. Since no
declaration of the nullity of his first marriage ha[d] yet been made at the time of his
second marriage, it is clear that accused was a married man when he contracted
such second marriage with complainant on June 27, 1991. He was still at the time
validly married to his first wife.[3]

Ruling of the Court of Appeals

Agreeing with the lower court, the Court of Appeals stated:

Under Article 40 of the Family Code, the absolute nullity of a previous marriage may
be invoked for purposes of remarriage on the basis solely of a final judgment
declaring such previous marriage void. But here, the final judgment declaring null
and void accuseds previous marriage came not before the celebration of the second
marriage, but after, when the case for bigamy against accused was already tried in
court. And what constitutes the crime of bigamy is the act of any person who shall
contract a second subsequent marriage before the former marriage has been legally
dissolved.[4]

Hence, this Petition.[5]

The Issues

In his Memorandum, petitioner raises the following issues:

Whether or not the element of previous legal marriage is present in order to convict
petitioner.

B
Whether or not a liberal interpretation in favor of petitioner of Article 349 of the
Revised Penal Code punishing bigamy, in relation to Articles 36 and 40 of the
Family Code, negates the guilt of petitioner.

Whether or not petitioner is entitled to an acquittal on the basis of reasonable

doubt.[6]

The Courts Ruling

The Petition is not meritorious.

Main Issue:Effect of Nullity of Previous Marriage

Petitioner was convicted of bigamy under Article 349 of the Revised Penal Code, which
provides:

The penalty of prision mayor shall be imposed upon any person who shall contract a
second or subsequent marriage before the former marriage has been legally
dissolved, or before the absent spouse has been declared presumptively dead by
means of a judgment rendered in the proper proceedings.

The elements of this crime are as follows:

1. That the offender has been legally married;

2. That the marriage has not been legally dissolved or, in case his or her spouse is
absent, the absent spouse could not yet be presumed dead according to the Civil
Code;

3. That he contracts a second or subsequent marriage;

4. That the second or subsequent marriage has all the essential requisites for
validity.[7]

When the Information was filed on January 22, 1993, all the elements of bigamy were
present. It is undisputed that petitioner married Thelma G. Oliva on April 10, 1976 in Cebu
City. While that marriage was still subsisting, he contracted a second marriage, this time with
Respondent Ma. Consuelo Tan who subsequently filed the Complaint for bigamy.
 Petitioner contends, however, that he obtained a judicial declaration of nullity of his first
marriage under Article 36 of the Family Code, thereby rendering it void ab initio. Unlike
voidable marriages which are considered valid until set aside by a competent court, he argues
that a void marriage is deemed never to have taken place at all.[8] Thus, he concludes that
there is no first marriage to speak of. Petitioner also quotes the commentaries[9] of former
Justice Luis Reyes that it is now settled that if the first marriage is void from the beginning, it is
a defense in a bigamy charge. But if the first marriage is voidable, it is not a defense.
Respondent, on the other hand, admits that the first marriage was declared null and void
under Article 36 of the Family Code, but she points out that that declaration came only after the
Information had been filed. Hence, by then, the crime had already been consummated. She
argues that a judicial declaration of nullity of a void previous marriage must be obtained before
a person can marry for a subsequent time.
We agree with the respondent.
To be sure, jurisprudence regarding the need for a judicial declaration of nullity of the
previous marriage has been characterized as conflicting.[10] In People v. Mendoza,[11] a bigamy
case involving an accused who married three times, the Court ruled that there was no need for
such declaration. In that case, the accused contracted a second marriage during the
subsistence of the first. When the first wife died, he married for the third time. The second wife
then charged him with bigamy. Acquitting him, the Court held that the second marriage was
void ab initio because it had been contracted while the first marriage was still in effect. Since
the second marriage was obviously void and illegal, the Court ruled that there was no need for
a judicial declaration of its nullity.Hence, the accused did not commit bigamy when he married
for the third time. This ruling was affirmed by the Court in People v. Aragon,[12] which involved
substantially the same facts.
But in subsequent cases, the Court impressed the need for a judicial declaration of
nullity. In Vda de Consuegra v. GSIS,[13] Jose Consuegra married for the second time while the
first marriage was still subsisting. Upon his death, the Court awarded one half of the proceeds
of his retirement benefits to the first wife and the other half to the second wife and her children,
notwithstanding the manifest nullity of the second marriage. It held: And with respect to the
right of the second wife, this Court observes that although the second marriage can be
presumed to be void ab initio as it was celebrated while the first marriage was still
subsisting, still there is need for judicial declaration of such nullity.
In Tolentino v. Paras,[14] however, the Court again held that judicial declaration of nullity of
a void marriage was not necessary. In that case, a man married twice. In his Death Certificate,
his second wife was named as his surviving spouse. The first wife then filed a Petition to
correct the said entry in the Death Certificate. The Court ruled in favor of the first wife, holding
that the second marriage that he contracted with private respondent during the lifetime of the
first spouse is null and void from the beginning and of no force and effect. No judicial decree is
necessary to establish the invalidity of a void marriage.
In Wiegel v. Sempio-Diy,[15] the Court stressed the need for such declaration. In that case,
Karl Heinz Wiegel filed an action for the declaration of nullity of his marriage to Lilia Olivia
Wiegel on the ground that the latter had a prior existing marriage. After pretrial, Lilia asked that
she be allowed to present evidence to prove, among others, that her first husband had
previously been married to another woman. In holding that there was no need for such
evidence, the Court ruled: x x x There is likewise no need of introducing evidence about the
existing prior marriage of her first husband at the time they married each other, for then such a
marriage though void still needs, according to this Court, a judicial declaration of such fact and
for all legal intents and purposes she would still be regarded as a married woman at the time
she contracted her marriage with respondent Karl Heinz Wiegel; x x x.
Subsequently, in Yap v. CA,[16] the Court reverted to the ruling in People v. Mendoza,
holding that there was no need for such declaration of nullity.
In Domingo v. CA,[17] the issue raised was whether a judicial declaration of nullity was still
necessary for the recovery and the separation of properties of erstwhile spouses. Ruling in the
affirmative, the Court declared: The Family Code has settled once and for all the conflicting
jurisprudence on the matter. A declaration of the absolute nullity of a marriage is now explicitly
required either as a cause of action or a ground for defense; in fact, the requirement for a
declaration of absolute nullity of a marriage is also for the protection of the spouse who,
believing that his or her marriage is illegal and void, marries again. With the judicial declaration
of the nullity of his or her first marriage, the person who marries again cannot be charged with
bigamy.[18]
Unlike Mendoza and Aragon, Domingo as well as the other cases herein cited was not a
criminal prosecution for bigamy. Nonetheless, Domingo underscored the need for a judicial
declaration of nullity of a void marriage on the basis of a new provision of the Family Code,
which came into effect several years after the promulgation of Mendoza and Aragon.
In Mendoza and Aragon, the Court relied on Section 29 of Act No. 3613 (Marriage Law),
which provided:

Illegal marriages. Any marriage subsequently contracted by any person during the
lifetime of the first spouse shall be illegal and void from its performance, unless:
(a) The first marriage was annulled or dissolved;
(b) The first spouse had been absent for seven consecutive years at the time of the second
marriage without the spouse present having news of the absentee being alive, or the
absentee being generally considered as dead and believed to be so by the spouse present
at the time of contracting such subsequent marriage, the marriage as contracted being valid
in either case until declared null and void by a competent court."
The Court held in those two cases that the said provision plainly makes a subsequent
marriage contracted by any person during the lifetime of his first spouse illegal and void from
its performance, and no judicial decree is necessary to establish its invalidity, as distinguished
from mere annulable marriages.[19]
The provision appeared in substantially the same form under Article 83 of the 1950 Civil
Code and Article 41 of the Family Code. However, Article 40 of the Family Code, a new
provision, expressly requires a judicial declaration of nullity of the previous marriage, as
follows:
ART. 40. The absolute nullity of a previous marriage may be invoked for purposes of
remarriage on the basis solely of a final judgment declaring such marriage void.

In view of this provision, Domingo stressed that a final judgment declaring such marriage
void was necessary. Verily, the Family Code and Domingo affirm the earlier ruling
in Wiegel. Thus, a Civil Law authority and member of the Civil Code Revision Commitee has
observed:

[Article 40] is also in line with the recent decisions of the Supreme Court that the
marriage of a person may be null and void but there is need of a judicial declaration
of such fact before that person can marry again; otherwise, the second marriage will
also be void (Wiegel v. Sempio-Diy, Aug. 19/86, 143 SCRA 499, Vda. De
Consuegra v. GSIS, 37 SCRA 315). This provision changes the old rule that where
a marriage is illegal and void from its performance, no judicial decree is necessary
to establish its validity (People v. Mendoza, 95 Phil. 843; People v. Aragon, 100
Phil. 1033).[20]

In this light, the statutory mooring of the ruling in Mendoza and Aragon that there is no
need for a judicial declaration of nullity of a void marriage -- has been cast aside by Article 40
of the Family Code. Such declaration is now necessary before one can contract a second
marriage. Absent that declaration, we hold that one may be charged with and convicted of
bigamy.
The present ruling is consistent with our pronouncement in Terre v. Terre,[21] which
involved an administrative Complaint against a lawyer for marrying twice. In rejecting the
lawyers argument that he was free to enter into a second marriage because the first one was
void ab initio, the Court ruled: for purposes of determining whether a person is legally free to
contract a second marriage, a judicial declaration that the first marriage was null and void ab
initio is essential. The Court further noted that the said rule was cast into statutory form by
Article 40 of the Family Code. Significantly, it observed that the second marriage, contracted
without a judicial declaration that the first marriage was void, was bigamous and criminal in
character.
Moreover, Justice Reyes, an authority in Criminal Law whose earlier work was cited by
petitioner, changed his view on the subject in view of Article 40 of the Family Code and wrote
in 1993 that a person must first obtain a judicial declaration of the nullity of a void marriage
before contracting a subsequent marriage:[22]

It is now settled that the fact that the first marriage is void from the beginning is not a
defense in a bigamy charge. As with a voidable marriage, there must be a judicial
declaration of the nullity of a marriage before contracting the
second marriage. Article 40 of the Family Code states that x x x. The Code
Commission believes that the parties to a marriage should not be allowed to
assume that their marriage is void, even if such is the fact, but must first secure a
judicial declaration of nullity of their marriage before they should be allowed to marry
again. x x x.

In the instant case, petitioner contracted a second marriage although there was yet no
judicial declaration of nullity of his first marriage. In fact, he instituted the Petition to have the
first marriage declared void only after complainant had filed a letter-complaint charging him
with bigamy. By contracting a second marriage while the first was still subsisting, he committed
the acts punishable under Article 349 of the Revised Penal Code.
That he subsequently obtained a judicial declaration of the nullity of the first marriage was
immaterial. To repeat, the crime had already been consummated by then. Moreover, his view
effectively encourages delay in the prosecution of bigamy cases; an accused could simply file
a petition to declare his previous marriage void and invoke the pendency of that action as a
prejudicial question in the criminal case. We cannot allow that.
Under the circumstances of the present case, he is guilty of the charge against him.

Damages

In her Memorandum, respondent prays that the Court set aside the ruling of the Court of
Appeals insofar as it denied her claim of damages and attorneys fees.[23]
Her prayer has no merit. She did not appeal the ruling of the CA against her; hence, she
cannot obtain affirmative relief from this Court.[24] In any event, we find no reason to reverse or
set aside the pertinent ruling of the CA on this point, which we quote hereunder:

We are convinced from the totality of the evidence presented in this case that
Consuelo Tan is not the innocent victim that she claims to be; she was well aware of
the existence of the previous marriage when she contracted matrimony with Dr.
Mercado. The testimonies of the defense witnesses prove this, and we find no
reason to doubt said testimonies.

xxxxxxxxx

Indeed, the claim of Consuelo Tan that she was not aware of his previous marriage
does not inspire belief, especially as she had seen that Dr. Mercado had two (2)
children with him. We are convinced that she took the plunge anyway, relying on the
fact that the first wife would no longer return to Dr. Mercado, she being by then
already living with another man.

Consuelo Tan can therefore not claim damages in this case where she was fully
conscious of the consequences of her act. She should have known that she would
suffer humiliation in the event the truth [would] come out, as it did in this case,
ironically because of her personal instigation. If there are indeed damages caused
to her reputation, they are of her own willful making.[25]

WHEREFORE, the Petition is DENIED and the assailed Decision AFFIRMED. Costs
against petitioner.
SO ORDERED.
Melo, (Chairman), Purisima, and Gonzaga-Reyes, JJ., concur.
Vitug, J., see concurring and dissenting opinion.

CONCURRING AND DISSENTING OPINION

VITUG, J.:

At the pith of the controversy is the defense of the absolute nullity of a previous marriage in
an indictment for bigamy. The majority opinion, penned by my esteemed brother, Mr. Justice
Artemio V. Panganiban, enunciates that it is only a judicially decreed prior void marriage which
can constitute a defense against the criminal charge.
The civil law rule stated in Article 40 of the Family Code is a given but I have strong
reservations on its application beyond what appears to be its expressed context. The subject
of the instant petition is a criminal prosecution, not a civil case, and the ponencia affirms the
conviction of petitioner Vincent Paul G. Mercado for bigamy.
Article 40 of the Family code reads:

ART. 40. The absolute nullity of a previous marriage may be invoked for purposes
of remarriage on the basis solely of a final judgment declaring such previous
marriage void.

The phrase for purposes of remarriage is not at all insignificant. Void marriages, like void
contracts, are inexistent from the very beginning. It is only by way of exception that the Family
code requires a judicial declaration of nullity of the previous marriage before a subsequent
marriage is contracted; without such declaration, the validity and the full legal consequence of
the subsequent marriage would itself be in similar jeopardy under Article 53, in relation to
Article 52, of the Family Code. Parenthetically, I would daresay that the necessity of a judicial
declaration of nullity of a void marriage for the purpose of remarriage should be held to refer
merely to cases where it can be said that a marriage, at least ostensibly, had taken place. No
such judicial declaration of nullity, in my view, should still be deemed essential when the
marriage, for instance, is between persons of the same sex or when either or both parties had
not at all given consent to the marriage. Indeed, it is likely that Article 40 of the Family Code
has been meant and intended to refer only to marriages declared void under the provisions of
Articles 35, 36, 37, 38 and 53 thereof.
In fine, the Family Code, I respectfully submit, did not have the effect of overturning the
rule in criminal law and related jurisprudence. The Revised Penal Code expresses:
Art. 349. Bigamy.---The penalty of prision mayor shall be imposed upon any person
who shall contract a second or subsequent marriage before the former marriage
has been legally dissolved,or before the absent spouse has been declared
presumptively dead by means of a judgment rendered in the proper proceedings.

Surely, the foregoing provision contemplated an existing, not void, prior marriage. Covered by
article 349 would thus be, for instance, a voidable marriage, it obviously being valid and
subsisting until set aside by a competent court. As early as People vs. Aragon,1 this Court has
underscored:

xxx Our Revised Penal Code is of recent enactment and had the rule enunciated
in Spain and in America requiring judicial declaration of nullity of ab initio
void marriages been within the contemplation of the legislature, an express
provision to that effect would or should have been inserted in the law. In its
absence, we are bound by said rule of strict interpretation.

Unlike a voidable marriage which legally exists until judicially annulled (and therefore not a
defense in bigamy if the second marriage were contracted prior to the decree
of annulment), the complete nullity, however, of a previously contracted marriage, being a
total nullity and inexistent, should be capable of being independently raised by way of a
defense in a criminal case for bigamy. I see no incongruence between this rule in criminal law
and that of the Family Code, and each may be applied within the respective spheres of
governance.
Accordingly, I vote to grant the petition.

SECOND DIVISION

[G.R. No. 127406. November 27, 2000]

OFELIA P. TY, petitioner, vs. THE COURT OF APPEALS, and EDGARDO M.

REYES, respondents.

DECISION
QUISUMBING, J.:

This appeal seeks the reversal of the decision dated July 24, 1996, of the Court of Appeals
in C.A. G.R. CV 37897, which affirmed the decision of the Regional Trial Court of Pasig,
Branch 160, declaring the marriage contract between private respondent Edgardo M. Reyes
and petitioner Ofelia P. Ty null and void ab initio. It also ordered private respondent to pay
P15,000.00 as monthly support for their children Faye Eloise Reyes and Rachel Anne Reyes.
As shown in the records of the case, private respondent married Anna Maria Regina
Villanueva in a civil ceremony on March 29, 1977, in Manila. Then they had a church wedding
on August 27, 1977. However, on August 4, 1980, the Juvenile and Domestic Relations Court
of Quezon City declared their marriage null and void ab initio for lack of a valid marriage
license. The church wedding on August 27, 1977, was also declared null and void ab initio for
lack of consent of the parties.
Even before the decree was issued nullifying his marriage to Anna Maria, private
respondent wed Ofelia P. Ty, herein petitioner, on April 4, 1979, in ceremonies officiated by the
judge of the City Court of Pasay. On April 4, 1982, they also had a church wedding in Makati,
Metro Manila.
On January 3, 1991, private respondent filed a Civil Case 1853-J with the RTC of Pasig,
Branch 160, praying that his marriage to petitioner be declared null and void. He alleged that
they had no marriage license when they got married. He also averred that at the time he
married petitioner, he was still married to Anna Maria. He stated that at the time he married
petitioner the decree of nullity of his marriage to Anna Maria had not been issued. The decree
of nullity of his marriage to Anna Maria was rendered only on August 4, 1980, while his civil
marriage to petitioner took place on April 4, 1979.
Petitioner, in defending her marriage to private respondent, pointed out that his claim that
their marriage was contracted without a valid license is untrue. She submitted their Marriage
License No. 5739990 issued at Rosario, Cavite on April 3, 1979, as Exh. 11, 12 and 12-A. He
did not question this document when it was submitted in evidence. Petitioner also submitted
the decision of the Juvenile and Domestic Relations Court of Quezon City dated August 4,
1980, which declared null and void his civil marriage to Anna Maria Regina Villanueva
celebrated on March 29, 1977, and his church marriage to said Anna Maria on August 27,
1977. These documents were submitted as evidence during trial and, according to petitioner,
are therefore deemed sufficient proof of the facts therein. The fact that the civil marriage of
private respondent and petitioner took place on April 4, 1979, before the judgment declaring
his prior marriage as null and void is undisputed. It also appears indisputable that private
respondent and petitioner had a church wedding ceremony on April 4, 1982. [1]

The Pasig RTC sustained private respondents civil suit and declared his marriage to
herein petitioner null and void ab initio in its decision dated November 4, 1991. Both parties
appealed to respondent Court of Appeals. On July 24, 1996, the appellate court affirmed the
trial courts decision. It ruled that a judicial declaration of nullity of the first marriage (to Anna
Maria) must first be secured before a subsequent marriage could be validly contracted. Said
the appellate court:

We can accept, without difficulty, the doctrine cited by defendants counsel that no
judicial decree is necessary to establish the invalidity of void marriages. It does not
say, however, that a second marriage may proceed even without a judicial
decree. While it is true that if a marriage is null and void, ab initio, there is in fact no
subsisting marriage, we are unwilling to rule that the matter of whether a marriage is
valid or not is for each married spouse to determine for himself for this would be the
consequence of allowing a spouse to proceed to a second marriage even before a
competent court issues a judicial decree of nullity of his first marriage. The results
would be disquieting, to say the least, and could not have been the intendment of
even the now-repealed provisions of the Civil Code on marriage.

xxx

WHEREFORE, upon the foregoing ratiocination, We modify the appealed Decision

in this wise:
1. The marriage contracted by plaintiff-appellant [herein private respondent] Eduardo M.
Reyes and defendant-appellant [herein petitioner] Ofelia P. Ty is declared null and void ab
initio;
2. Plaintiff-appellant Eduardo M. Reyes is ordered to give monthly support in the amount of
P15,000.00 to his children Faye Eloise Reyes and Rachel Anne Reyes from November 4,
1991; and
3. Cost against plaintiff-appellant Eduardo M. Reyes.

SO ORDERED. [2]

Petitioners motion for reconsideration was denied. Hence, this instant petition asserting
that the Court of Appeals erred:
I.

BOTH IN THE DECISION AND THE RESOLUTION, IN REQUIRING FOR THE

VALIDITY OF PETITIONERS MARRIAGE TO RESPONDENT, A JUDICIAL
DECREE NOT REQUIRED BY LAW.
II

IN THE RESOLUTION, IN APPLYING THE RULING IN DOMINGO VS. COURT OF

APPEALS.
III

IN BOTH THE DECISION AND RESOLUTION IN NOT CONSIDERING THE CIVIL

EFFECTS OF THE RELIGIOUS RATIFICATION WHICH USED THE SAME
MARRIAGE LICENSE.
IV

IN THE DECISION NOT GRANTING MORAL AND EXEMPLARY DAMAGES TO

THE DEFENDANT-APPELLANT.
 The principal issue in this case is whether the decree of nullity of the first marriage is
required before a subsequent marriage can be entered into validly? To resolve this question,
we shall go over applicable laws and pertinent cases to shed light on the assigned errors,
particularly the first and the second which we shall discuss jointly.
In sustaining the trial court, the Court of Appeals declared the marriage of petitioner to
private respondent null and void for lack of a prior judicial decree of nullity of the marriage
between private respondent and Villanueva. The appellate court rejected petitioners claim
that People v. Mendoza and People v. Aragon are applicable in this case. For these cases
[3] [4]

held that where a marriage isvoid from its performance, no judicial decree is necessary to
establish its invalidity. But the appellate court said these cases, decided before the enactment
of the Family Code (E.O. No. 209 as amended by E.O No. 227), no longer control. A binding
decree is now needed and must be read into the provisions of law previously obtaining. [5]

In refusing to consider petitioners appeal favorably, the appellate court also said:

Terre v. Attorney Terre, Adm. Case No. 2349, 3 July 1992 is mandatory precedent
for this case. Although decided by the High Court in 1992, the facts situate it within
the regime of the now-repealed provisions of the Civil Code, as in the instant case.

xxx

For purposes of determining whether a person is legally free to contract a second

marriage, a judicial declaration that the first marriage was null and void ab initio is
essential. . . .
[6]

At the outset, we must note that private respondents first and second marriages contracted
in 1977 and 1979, respectively, are governed by the provisions of the Civil Code. The present
case differs significantly from the recent cases of Bobis v. Bobis and Mercado v. Tan, both
[7] [8]

involving a criminal case for bigamy where the bigamous marriage was contracted during the
effectivity of the Family Code, under which a judicial declaration of nullity of marriage is
[9]

clearly required.
Pertinent to the present controversy, Article 83 of the Civil Code provides that:

Art. 83. Any marriage subsequently contracted by any person during the lifetime of
the first spouse of such person with any person other than such first spouse shall be
illegal and void from its performance, unless:

(1) The first marriage was annulled or dissolved; or

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

As to whether a judicial declaration of nullity of a void marriage is necessary, the Civil

Code contains no express provision to that effect. Jurisprudence on the matter, however,
appears to be conflicting.
Originally, in People v. Mendoza, and People v. Aragon, this Court held that no judicial
[10] [11]

decree is necessary to establish the nullity of a void marriage. Both cases involved the same
factual milieu. Accused contracted a second marriage during the subsistence of his first
marriage. After the death of his first wife, accused contracted a third marriage during the
subsistence of the second marriage. The second wife initiated a complaint for bigamy. The
Court acquitted accused on the ground that the second marriage is void, having been
contracted during the existence of the first marriage. There is no need for a judicial declaration
that said second marriage is void. Since the second marriage is void, and the first one
terminated by the death of his wife, there are no two subsisting valid marriages. Hence, there
can be no bigamy. Justice Alex Reyes dissented in both cases, saying that it is not for the
spouses but the court to judge whether a marriage is void or not.
In Gomez v. Lipana, and Consuegra v. Consuegra, however, we recognized the right of
[12] [13]

the second wife who entered into the marriage in good faith, to share in their acquired estate
and in proceeds of the retirement insurance of the husband. The Court observed that although
the second marriage can be presumed to be void ab initio as it was celebrated while the first
marriage was still subsisting, still there was a need for judicial declaration of such nullity (of the
second marriage). And since the death of the husband supervened before such declaration,
we upheld the right of the second wife to share in the estate they acquired, on grounds of
justice and equity.[14]

But in Odayat v. Amante (1977), the Court adverted to Aragon and Mendoza as
[15]

precedents. We exonerated a clerk of court of the charge of immorality on the ground that his
marriage to Filomena Abella in October of 1948 was void, since she was already previously
married to one Eliseo Portales in February of the same year. The Court held that no judicial
decree is necessary to establish the invalidity of void marriages. This ruling was affirmed
in Tolentino v. Paras. [16]

Yet again in Wiegel v. Sempio-Diy (1986), the Court held that there is a need for a
[17]

judicial declaration of nullity of a void marriage. In Wiegel, Lilia married Maxion in 1972. In
1978, she married another man, Wiegel. Wiegel filed a petition with the Juvenile Domestic
Relations Court to declare his marriage to Lilia as void on the ground of her previous valid
marriage. The Court, expressly relying on Consuegra, concluded that: [18]

There is likewise no need of introducing evidence about the existing prior marriage of her
first husband at the time they married each other, for then such a marriage though void still
needs according to this Court a judicial declaration (citing Consuegra) of such fact and for all
legal intents and purposes she would still be regarded as a married woman at the time she
contracted her marriage with respondent Karl Heinz Wiegel; accordingly, the marriage of
petitioner and respondent would be regarded VOID under the law. (Emphasis supplied).
 In Yap v. Court of Appeals, however, the Court found the second marriage void without
[19]

need of judicial declaration, thus reverting to the Odayat, Mendoza and Aragon rulings.
At any rate, the confusion under the Civil Code was put to rest under the Family Code. Our
rulings in Gomez, Consuegra, and Wiegel were eventually embodied in Article 40 of the Family
Code. Article 40 of said Code expressly required a judicial declaration of nullity of marriage
[20]

Art. 40. The absolute nullity of a previous marriage may be invoked for purposes of
remarriage on the basis solely of a final judgment declaring such previous marriage
void.

In Terre v. Terre (1992) the Court, applying Gomez, Consuegra and Wiegel, categorically
[21]

stated that a judicial declaration of nullity of a void marriage is necessary. Thus, we disbarred a
lawyer for contracting a bigamous marriage during the subsistence of his first marriage. He
claimed that his first marriage in 1977 was void since his first wife was already married in
1968. We held that Atty. Terre should have known that the prevailing case law is that for
purposes of determining whether a person is legally free to contract a second marriage, a
judicial declaration that the first marriage was null and void ab initio is essential.
The Court applied this ruling in subsequent cases. In Domingo v. Court of
Appeals (1993), the Court held:
[22]

Came the Family Code which settled once and for all the conflicting jurisprudence
on the matter. A declaration of absolute nullity of marriage is now explicitly required
either as a cause of action or a ground for defense. (Art. 39 of the Family
Code). Where the absolute nullity of a previous marriage is sought to be invoked for
purposes of contracting a second marriage, the sole basis acceptable in law for said
projected marriage to be free from legal infirmity is a final judgment declaring the
previous marriage void. (Family Code, Art. 40; See also arts. 11, 13, 42, 44, 48, 50,
52, 54, 86, 99, 147, 148). [23]

However, a recent case applied the old rule because of the peculiar circumstances of the
case. In Apiag v. Cantero, (1997) the first wife charged a municipal trial judge of immorality
[24]

for entering into a second marriage. The judge claimed that his first marriage was void since
he was merely forced into marrying his first wife whom he got pregnant. On the issue of nullity
of the first marriage, we applied Odayat, Mendoza and Aragon. We held that since the second
marriage took place and all the children thereunder were born before the promulgation
of Wiegel and the effectivity of the Family Code, there is no need for a judicial declaration of
nullity of the first marriage pursuant to prevailing jurisprudence at that time.
Similarly, in the present case, the second marriage of private respondent was entered into
in 1979, before Wiegel. At that time, the prevailing rule was found in Odayat,
Mendoza and Aragon.The first marriage of private respondent being void for lack of license
and consent, there was no need for judicial declaration of its nullity before he could contract a
second marriage. In this case, therefore, we conclude that private respondents second
marriage to petitioner is valid.
 Moreover, we find that the provisions of the Family Code cannot be retroactively applied to
the present case, for to do so would prejudice the vested rights of petitioner and of her
children. As held in Jison v. Court of Appeals, the Family Code has retroactive
[25]

effect unless there be impairment of vested rights. In the present case, that impairment of
vested rights of petitioner and the children is patent. Additionally, we are not quite prepared to
give assent to the appellate courts finding that despite private respondents deceit and perfidy
in contracting marriage with petitioner, he could benefit from her silence on the issue. Thus,
coming now to the civil effects of the church ceremony wherein petitioner married private
respondent using the marriage license used three years earlier in the civil ceremony, we find
that petitioner now has raised this matter properly. Earlier petitioner claimed as untruthful
private respondents allegation that he wed petitioner but they lacked a marriage
license. Indeed we find there was a marriage license, though it was the same license issued
on April 3, 1979 and used in both the civil and the church rites. Obviously, the church
ceremony was confirmatory of their civil marriage. As petitioner contends, the appellate court
erred when it refused to recognize the validity and salutary effects of said canonical marriage
on a technicality, i.e. that petitioner had failed to raise this matter as affirmative defense during
trial. She argues that such failure does not prevent the appellate court
from giving her defense dueconsideration and weight. She adds that the interest of the State in
protecting the inviolability of marriage, as a legal and social institution, outweighs such
technicality. In our view, petitioner and private respondent had complied with all the essential
and formal requisites for a valid marriage, including the requirement of a valid license in the
first of the two ceremonies. That this license was used legally in the celebration of the civil
ceremony does not detract from the ceremonial use thereof in the church wedding of the same
parties to the marriage, for we hold that the latter rites served not only to ratify but also to fortify
the first. The appellate court might have its reasons for brushing aside this possible defense of
the defendant below which undoubtedly could have tendered a valid issue, but which was not
timely interposed by her before the trial court. But we are now persuaded we cannot play blind
to the absurdity, if not inequity, of letting the wrongdoer profit from what the CA calls his own
deceit and perfidy.
On the matter of petitioners counterclaim for damages and attorneys fees. Although the
appellate court admitted that they found private respondent acted duplicitously and craftily in
marrying petitioner, it did not award moral damages because the latter did not adduce
evidence to support her claim. [26]

Like the lower courts, we are also of the view that no damages should be awarded in the
present case, but for another reason. Petitioner wants her marriage to private respondent held
valid and subsisting. She is suing to maintain her status as legitimate wife. In the same breath,
she asks for damages from her husband for filing a baseless complaint for annulment of their
marriage which caused her mental anguish, anxiety, besmirched reputation, social humiliation
and alienation from her parents. Should we grant her prayer, we would have a situation where
the husband pays the wife damages from conjugal or common funds. To do so, would make
the application of the law absurd. Logic, if not common sense, militates against such
incongruity. Moreover, our laws do not comprehend an action for damages between husband
and wife merely because of breach of a marital obligation. There are other remedies.
[27] [28]

WHEREFORE, the petition is GRANTED. The assailed Decision of the Court of Appeals
dated July 24, 1996 and its Resolution dated November 7, 1996, are reversed partially, so that
the marriage of petitioner Ofelia P. Ty and private respondent Edgardo M. Reyes is hereby
DECLARED VALID AND SUBSISTING; and the award of the amount of P15,000.00 is
RATIFIED and MAINTAINED as monthly support to their two children, Faye Eloise Reyes and
Rachel Anne Reyes, for as long as they are of minor age or otherwise legally entitled thereto.
Costs against private respondent.
SO ORDERED.
Bellosillo, (Chairman), Mendoza, Buena, and De Leon, Jr., JJ., concur.