PEOPLE VS.

OPENIA

G.R. No. L-34954 February 20, 1981

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
OPERIANO OPEÑA, accused-appellant.

ABAD SANTOS, J.:

In a decision dated March 8, 1971, The Court of First Instance of Palawan rendered judgment in Criminal Case No.
3953 as follows:

In view of all the foregoing, the Court finds the accused Operiano Opeña guilty beyond reasonable
doubt of the crime of rape. Article 335 of the Revised Penal Code provides for the penalty of from
reclusion perpetua to death in cases of rape committed with the use of a deadly weapon or when the
same was committed by two or more persons. There is no mitigating circumstance attendant to the
crime so that much to the desire of this Court to impose the minimum penalty prescribed by law
which is reclusion perpetua, the presence of the aggravating circumstance of abuse of parental
authority and relationship and the fact that the act was committed not once but thrice, make it
obligatory upon the Court to impose the maximum. The law gives the Court no other alternative and
therefore sentences the accused, to suffer the penalty of death and to pay the costs.

The foregoing judgment was the result of the evidence adduced to prove the allegations in the following information:

The undersigned accuses Operiano Opeña of the crime of Rape, committed as follows:

That on or about the Ist day of May, 1968, in barrio Magsaysay, municipality of Aborlan, province of
Palawan, Philippines and within the jurisdiction of this Honorable Court, the said accused Operiano
Opena by means of force, threats, and intimidation and violence, said accused having a drawn knife
on hand, did then and there wilfully, unlawfully and feloniously have carnal knowledge of one
Ansonia Madarcos, a minor 15 years of age and against her will.

Contrary to law and with the aggravating circumstances of use of superior strength and abuse of
parental authority, said accused being the step-father of the victim Ansonia Madarcos, and penalized
under Article 335 of the Revised Penal Code.

The testimonial and documentary evidence for the prosecution elicited the following:

Maura Hiponia was first married to Vicente Madarcos with whom she had two children, namely Noni and Ansonia
Madarcos. In 1954, Maura married Operiano Opeña the appellant, and bore him six children, namely: Gella,
Dionisio, Wilfredo, Leopoldo, Rodolfo, and Operiano, Jr.

Operiano had been previously convicted by the Court of First Instance of Manila in Criminal Case No. 7164 of the
crime of frustrated homicide and sentenced to an indeterminate penalty of imprisonment for six months and one
day, as minimum, to six years and one day, as maximum. He was received at the Iwahig Penal Colony on July 2,
1948, and was released on June 6, 1953.

It was after Operiano was released that he married Maura and they settled in barrio Magsaysay, Aborlan, Palawan,
where they begot, as aforesaid, six children. The spouses, their children, and Maura's children by her first marriage
(Noni and Ansonia Madarcos) lived in a small one-room hut where they cooked, ate and slept under a common
mosquito net.

On May 1, 1968, Ansonia who was then 15 years old went to sleep beside one wall of the house near her half-
brother Dionisio, aged 11. The spouses, on the other hand, slept at the other end of the house. What happened
thereafter is narrated succinctly in the decision of the trial court as follows:
 About eleven o'clock in the evening of May 1, 1968, while Ansonia was asleep beside her brother,
half-brothers and half-sister in their one-room hut in Barrio Magsaysay, Aborlan, Palawan, Ansonia
woke up to find the accused sitting beside her and fondling her breasts. Prompted by instinct,
Ansonia tried to push away her intruder only to find out the futility of this act when she felt a knife
pressed on her neck as the accused commanded her not to stir or shout. With this knife drawn
towards his victim, the accused succeeded in removing Ansonias underwear, parted her thighs and
consummated his desire. In the meantime, Maura Hiponia who was then asleep on the other side of
the room was awakened by the cries of Ansonia. She sat up and upon realizing the situation before
her, she cried helplessly, unable, as she was, to do anything about it. Thereafter, the accused went
back to his place beside his wife and youngest son and slept. But before Ansonia could get some
sleep, the accused came back to her with his knife and with the same maneuver, he succeeded in
having carnal relations with Ansonia for the second time while Maura, her mother, was seated in one
corner, crying in anguish and fear of her husband who commanded her not to make any move. She
could not do anything to prevent her husband, it being too well known to her that the latter was an
ex-convict of frustrated homicide and she knew too well that whatever he says he does. Around
three o'clock at early dawn, the accused again went back to his victim and had another intercourse
with her under the same circumstances. He refused to listen to the pleadings of Maura Hiponia, who
as usual was commanded not to make any false move.

The following morning, the accused warned Ansonia and his wife not to tell anyone about last night's
incident otherwise, he will kill all of them. Then he got their two pigs in the backyard, placed them in
a sack and brought them to Puerto Princesa, the capital, leaving instructions to Maura to follow him
to the capital. Maura, however, went instead to town of Aborlan to report to the Chief of Police and to
seek protection bringing along all the children except Noni Madarcos who volunteered to stay to look
after the plants and their animals.

When Operiano returned to the house to find that only Noni Madarcos was there, he killed Noni with a knife.
Explaining why he killed Noni, Operiano said:

I asked him where his mother went and he answered me that he didn't know. Then I brought him to
the house of a certain Ricardo Bacosa I wanted to borrow the pick-up truck but Mr. Bacosa did not
lend me his pick-up truck. Because I was already mad that time and I remembered that my wife said
that she is going to separate from me, I told Mr. Bacosa that I am going to kill this boy so that my
wife will know the truth that we are really separating from each other. (p. 17, tsn. Feb. 17, 1971.)

As a result Operiano was accused of homicide in Criminal Case No. 3952 of the CFI of Palawan to which he
pleaded guilty and was accordingly sentenced in a decision dated February 19, 1969.

On May 4, 1968, after the burial of Noni, Maura took Ansonia to Dr. Alberto H. Lim, Rural Health Physician of
Aborlan who came out with the following:

FINDINGS

EXTERNAL EXAMINATION: Fairly developed fairly nourished female, Filipina, about 4 ft. 11 inches
in height; Breast hemispherical, moderately developed, firm consistency; nipple moderately
protruding with pinkish arealae.

INTERNAL EXAMINATION: Pubic hair moderate to scanty in growth; Labia majora and minora
coaptated Hymen, lacerated at 3:00, 7:00 and 9:00 at the face of the clock; vaginal canal admits two
fingers with but moderate resistance.

CONCLUSION: Physical virginity lost.

(Exh. A)

On May 8, 1968, Ansonia filed a verified complaint for rape against Operiano in the Municipal Court of Aborlan. The
case was subsequently elevated to the Court of First Instance under the information quoted above.
Operiano's defense consisted of a flat denial that he had raped Ansonia. He claimed that the rape charge against
him was merely concocted by Maura who wanted him to suffer longer in jail for the death of Noni.

It is axiomatic that the evidence for the prosecution must stand on its own merits and cannot be allowed to draw
strength from the weakness of the evidence for the defense. So the basic question in this case is whether or not, the
prosecution has been able to prove the offense even as the defendant denied having committed it. In the ultimate
analysis, the resolution of the issue depends on the credibility of the witnesses.

Appellant argues that the fact of rape was not established by the testimony of Dr. Alberto H. Lim. Appellant makes
capital of the fact that according to Dr. Lim, Ansonia could have lost her virginity by causes other than sexual
intercourse. Appellant's error lies in the fact that the prosecution presented Dr. Lim, not to prove that Ansonia had
been raped for surely Dr. Lim who was not an eyewitness to the rape could not testify to such a fact, but to show
only that Ansonia had lost her virginity. The evidence on the rape was supplied by Ansonia and her mother, not by
the medical examination of Dr. Lim which was merely corroborative. In fact, "medical examination is not an
indispensable element in the prosecution for the crime of rape, because it all depends upon the evidence offered
and as long as such evidence convinces the court, a conviction therefore is proper." (People vs. Orteza, G.R. No.
L16033, Sept. 29, 1962, 6 SCRA 109, 113 and cases cited therein.)

Appellant also tried to capitalize on the fact that no physical evidence, such as a torn panty or a blood-stained dress
was presented to corroborate the story of Ansonia and her mother. Suffice it to say, while it may have been
desirable, it was not necessary to present such evidence which, like medical examination, is merely corroborative.

Appellant also contends that under the facts narrated, the rape was incredible and highly improbable if not
altogether impossible. But it is not incredible for a man to rape his stepdaughter as it is not incredible for a man to
rape his own flesh and blood daughter. Many are the decisions of this Court convicting perverted men who raped
their daughters. Neither was it impossible to commit rape in a small space which was then occupied by other
persons also. True, only Maura was awakened that night. But it must be recalled that the other persons in the room
were all children who must have been heavy sleepers or who must have gotten used to sleep through the night even
when the accused made love to his wife. At any rate, whether or not the children were awakened would not have
made any difference for as Maura testified:

Q — Dit it not occur to your mind to wake up the other persons in your house at that
time?

A — How could we wake them up when we couldn't even move or talk because he
warned us that once we move, he will kill us all. (pp. 40-41, t.s.n, Jan. 29, 1969.)

Appellant also argues that it was physically impossible for him to have held a knife, removed Ansonia's panty,
mashed her breasts, inserted his penis into her vagina and held her shoulders all at the same time unless he had
"four arms or hands." Appellant exaggerates, of course, for Ansonia never said that her step-father did all of those
things at the same time. They were executed one at a time.

Appellant also points to inconsistencies in the testimony of some prosecution witnesses which in our mind do not
merit discussion for they relate to minor details only and do not impair the integrity of the testimony of Ansonia and
Maura on the commission of the rape.

Appellant claims that the use of a knife was not proved beyond reasonable doubt. And how does he argue this
point? By saying that the knife presented in evidence in the rape case was the same knife concededly used in the
killing of Noni Madarcos. Frankly, we fail to understand the argument. For how could the presentation of only one
knife in the two cases, prove that no knife was used in the rape case. There appears to be present here a perfect
example of non sequitur.

Finally, the appellant assigns as error the finding by the trial court that there was abuse of parental authority. He
claims that he was not legally married to Maura; that theirs was only a common law relationship. We find no merit in
this contention for several reasons.
The appellant and Maura had represented themselves as husband and wife since 1954. Accordingly, it must be
presumed that "a man and woman deporting themselves as husband and wife have entered into a lawful contract of
marriage." (Rule 131, Sec. 5 (bb), Rules of Court; Sison vs. Amblada, 30 Phil. 118 [1915].) A mere denial of
marriage by the appellant is utterly insufficient to overcome the presumption. (In re Manare, 23 SCRA 292, 295
[April 29, 19681.) Moreover, when the appellant testified he described himself as married and he could have been
married only to Maura for he referred to her as his wife in the course of his testimony. He also acknowledged Noni
Madarcos to be his step-son several times during his direct examination.

WHEREFORE, the decision of the court a quo convicting the accused is hereby affirmed. However, for lack of the
required number of votes to impose the death penalty, the appellant is hereby sentenced instead to suffer the
penalty of reclusion perpetua. Costs de oficio.

SO ORDERED.

Barredo, Makasiar, Aquino, Concepcion, Jr., Fernandez, Guerrero, De Castro and Melencio-Herrera, JJ., concur.

Separate Opinions

TEEHANKEE, J., dissenting:

I vote for the imposition of the lesser penalty of reclusion perpetua. Under the circumstances recited in the decision,
I am not convinced of the presence of the special circumstance of use of deadly weapon under Article 335 of the
Revised Penal Code, as amended, which would warrant the imposition of the supreme penalty of death and I
therefore grant the accused the benefit of the doubt. The crime committed is therefore simply rape for which is
imposed the single and indivisible penalty of reclusion perpetua and the aggravating circumstances cited by the trial
court cannot be appreciated.

Fernando, C.J., concur.

Separate Opinions

TEEHANKEE, J., dissenting:

I vote for the imposition of the lesser penalty of reclusion perpetua. Under the circumstances recited in the decision,
I am not convinced of the presence of the special circumstance of use of deadly weapon under Article 335 of the
Revised Penal Code, as amended, which would warrant the imposition of the supreme penalty of death and I
therefore grant the accused the benefit of the doubt. The crime committed is therefore simply rape for which is
imposed the single and indivisible penalty of reclusion perpetua and the aggravating circumstances cited by the trial
court cannot be appreciated.

Fernando, C.J., concur.

 LIM PANG VS. UY PIAN

G.R. No. L-29236 December 29, 1928

Estate of the deceased Lim Tingco. FELIPE ALKUINO LIM PANG, petitioner,

vs.

UY PIAN NG SHUN and ORENCIO RAMON LIM TINGCO, appellant;

JUSTINA OLONDRES, ET AL., appellees.

Domingo and Lim Reyes for appellants.

Filemon Saavedra for Balbina Lim Tingco and Benigno Barnes.

No appearance for other appellees.

STREET, J.:

This appeal is prosecuted on behalf of Uy Pian Ng Shun and her minor son, Ramon Lim Tingco, in the matter of the will of
Mateo Lim Tingco, deceased, for the purpose of reversing an order of the Court of First Instance of Leyte, dated October
29, 1927, excluding the appellant Uy Pian Ng Shun from sharing in the estate of the testator, and declaring that Ramon,
as an illegitimate child, is entitled only to support from the estate and that the appellees, Justina Olondres and Balbina
Lim Tingco, are entitled to share in the same estate respectively as widow and recognized natural daughter of the
testator.

The testator, Mateo Lim Tingco, of Chinese nationality, came to the Philippine Island some forty-five or fifty years ago,
making his home in the municipality of Baybay, Province of Leyte, where he lived until his death on April 18, 1927. In the
early years of his abode in Baybay he became the father of a daughter, Balbina Lim Tingco, now married to Benigno
Barnes, and sometimes called Imbina Barnes. This daughter, as the trial court found was recognized in life by Lim Tingco
as his natural daughter.

On November 27, 1886, a marriage was duly celebrated by Mateo Lim Tingco and Justina Olondres, otherwise known in
the record as Angela Olondres and Martina Londres. The pair lived together for many years as husband and wife, but no
children resulted from the union; and in course of time Lim Tingco formed an irregular connection with a Chinese
woman, the appellant, Uy Pian Ng Shun, who usurped the place of the lawful wife, Justina Olondres. Thereupon Justina,
becoming disgusted with her husband's infidelity, abandoned the conjugal hearth and went to live elsewhere. As a result
of the irregular connection between Lim Tingco and Uy Pian a son, named Ramon, was born. This boy is now some 8 or 9
years of age and is the minor appellant in this case.

On October 2, 1925, Lim Tingco executed a will in due form of Law at Baybay, Leyte, in which he stated that he was
married to Uy Pian Ng Shun, and declared that he wanted his property to be shared by her and their son Ramon as his
only heirs. After Lim Tingco's death this will was duly admitted to probate on July 5, 1927, without opposition from any
source.

The fact that no opposition was interposed to the probate of this will by Justina Olondres or Balbina Barnes finds its
explanation, no doubt, in the fact that, a few days before the petition for the probate of the will was filed, the adult
parties interested in the division of Lim Tingco's property had gotted together and compromised their claims to said
estate. For the effectuation of this purpose formal documents were drawn up and acknowledged before a notary public
by Uy Pian Ng Shun, acting upon her own account and as representative of her son Ramon, and by Justina Olondres and
Balbina Lim Tingco, with whom was joined the latter's husband, Benigno Barnes. The general purport of these
documents is that Uy Pian Ng Shun assigned a part of the property belonging to the estate of Mateo Lim Tingco to
Justina Olondres and another part to Balbina (or Imbina), wife of Benigno Barnes. In consideration of the portions so
received Justina Olondres and Balbina Lim Tingco in turn renounced whatever rights they might have had in the estate
of the deceased, and they agreed to make no claim in court with respect thereto. The portions conceded to Justina
Olondres and Balbina Lim Tingco by this agreement were of respectable size, amounting together to more than P3,000.

Notwithstanding the making of this compromise and the acceptance by Justina Olondres and Balbina Lim Tingco of the
portions assigned to them respectively, Balbina and her husband appeared in court on July 6, 1927, and filed what may
be described as an opposition, or intervention, in which they impugned the intrinsic provisions of the will with respect to
the right of Uy Pian Ng Shun, as widow, and Ramon Lim Tingco, as heir, and asked the court to ascertain who were the
true heirs of Mateo Lim Tingco, regardless of the statements contained in the will, and to make declaration accordingly.
To this opposition, or intervention, a reply was interposed by Uy Pian Ng Shun, in which she relied upon the compromise
agreement, already mentioned. The cause was then set for hearing upon the matter of the determination of heirs,
whereupon Justina Olondres intervened, making common cause with Balbina. In her reply to this intervention Uy Pian
Ng Shun again set up the compromise agreement. Upon hearing the cause the trial court, as stated in the first paragraph
of this opinion, found that Justina Olondres, as the widow of the deceased, and Balbina Lim Tingco, as a recognized
natural daughter, were alone entitled to share in the inheritance of the deceased.

We note that no extrinsic proof was introduced by the appellant Uy Pian Ng Shun for the purpose of establishing her
status as wife. Upon this point reliance is placed by her exclusively on the declaration of the testator, contained in his
will, that she was his wife at the time the will was made. But while admissible as prima facie proof in favor of the
appellant, this statement is not conclusive; and when it is demostrated, as in this case, that Justina Olondres was the
true of the decedent by virtue of an undissolved canonical marriage, of date anterior to the creation of the relation
between Uy Pian and the decedent, the statement in the will must be considered rebutted. The circustance that the will
had been admitted to probate is conclusive only of the due execution of the will; and the disposition of the property
made in the will is always open to question with respect to the intrinsic legality of the disposition (Ramirez vs. Gmur, 42
Phil., 855).

But although Uy Pian Ng Shun and her son Ramon are thus excluded from taking under the will in so far as the
disposition in their favor would prejudice the rights of the widow and the recognized daughter, it should not escape
notice that the testamentary provision would have complete efficacy in so far of the court to declare that Uy Pian Ng
Shun and her son could not take anything under the will.1awphi1.net

But consideration of the relative proportions in which the four litigants would have been entitled to share under the will
of Lim Tingco becomes an academic question, in view of the compromise agreement to which reference has already
been made.

The effect of this agreement undoubtedly is to estop Justina Olondres and Balbina Lim Tingco from claiming any further
share in the estate of the deceased. The trial court appears to have been of the opinion that the time had not yet come
to consider the effect of this agreement. But it is never too soon for the court to give effect to binding contracts when
issues are properly raised with respect thereto. In the case before us the appellants rely upon said agreement; and it
cannot be disposed of by merely ignoring it. The appellees were competent to bind themselves by said agreement, in
conformity with its provisions they accepted a fair share of the estate in full satisfaction of their claims, and no
suggestion has been made that the contract was vitiated by fraud or error. The consequence is that the appellees must
be excluded from further participation in the property. Whatever weakness may have been inherent in the appellants'
title, that defect has been cured, as against the appellees, by said agreement.

It becomes our duty therefore to reverse the appealed decision and to declare that the appellant Uy Pian Ng Shun and
her son, Ramon Lim Tingco, are the only persons entitled to participate in the testate estate of Mateo Lim Tingco, the
same to be shared by them in the proportions contemplated in the will. So ordered, without pronouncement as to costs.
 BULABOG VS. COURT OF APPEALS

DOMINGO VS. COURT OF APPEALS

ROBERTO DOMINGO, petitioner,

vs.

COURT OF APPEALS and DELIA SOLEDAD AVERA represented by her Attorney-in-Fact MOISES R. AVERA, respondents.

Jose P.O. Aliling IV for petitioner.

De Guzman, Meneses & Associates for private respondent.

ROMERO, J.:

The instant petition seeks the reversal of respondent court's ruling finding no grave abuse of discretion in the lower
court's order denying petitioner's motion to dismiss the petition for declaration of nullity of marriage and separation of
property.

On May 29, 1991, private respondent Delia Soledad A. Domingo filed a petition before the Regional Trial Court of Pasig
entitled "Declaration of Nullity of Marriage and Separation of Property" against petitioner Roberto Domingo. The
petition which was docketed as Special Proceedings No. 1989-J alleged among others that: they were married on
November 29, 1976 at the YMCA Youth Center Bldg., as evidenced by a Marriage Contract Registry No. 1277K-76 with
Marriage License No. 4999036 issued at Carmona, Cavite; unknown to her, he had a previous marriage with one
Emerlina dela Paz on April 25, 1969 which marriage is valid and still existing; she came to know of the prior marriage
only sometime in 1983 when Emerlina dela Paz sued them for bigamy; from January 23 1979 up to the present, she has
been working in Saudi Arabia and she used to come to the Philippines only when she would avail of the one-month
annual vacation leave granted by her foreign employer since 1983 up to the present, he has been unemployed and
completely dependent upon her for support and subsistence; out of her personal earnings, she purchased real and
personal properties with a total amount of approximately P350,000.00, which are under the possession and
administration of Roberto; sometime in June 1989, while on her one-month vacation, she discovered that he was
cohabiting with another woman; she further discovered that he had been disposing of some of her properties without
her knowledge or consent; she confronted him about this and thereafter appointed her brother Moises R. Avera as her
attorney-in-fact to take care of her properties; he failed and refused to turn over the possession and administration of
said properties to her brother/attorney-in-fact; and he is not authorized to administer and possess the same on account
of the nullity of their marriage. The petition prayed that a temporary restraining order or a writ of preliminary injunction
be issued enjoining Roberto from exercising any act of administration and ownership over said properties; their
marriage be declared null and void and of no force and effect; and Delia Soledad be declared the sole and exclusive
owner of all properties acquired at the time of their void marriage and such properties be placed under the proper
management and administration of the attorney-in-fact.

Petitioner filed a Motion to Dismiss on the ground that the petition stated no cause of action. The marriage being void
ab initio, the petition for the declaration of its nullity is, therefore, superfluous and unnecessary. It added that private
respondent has no property which is in his possession.

On August 20, 1991, Judge Maria Alicia M. Austria issued an Order denying the motion to dismiss for lack of merit. She
explained:

Movant argues that a second marriage contracted after a first marriage by a man with another woman is illegal and void
(citing the case of Yap v. Court of Appeals, 145 SCRA 229) and no judicial decree is necessary to establish the invalidity of
a void marriage (citing the cases of People v. Aragon, 100 Phil. 1033; People v. Mendoza, 95 Phil. 845). Indeed, under the
Yap case there is no dispute that the second marriage contracted by respondent with herein petitioner after a first
marriage with another woman is illegal and void. However, as to whether or not the second marriage should first be
judicially declared a nullity is not an issue in said case. In the case of Vda. de Consuegra v. GSIS, the Supreme Court ruled
in explicit terms, thus:

And with respect to the right of the second wife, this Court observed that although the second marriage can be
presumed to be void ab initio as it was celebrated while the first marriage was still subsisting, still there is need for
judicial declaration of its nullity. (37 SCRA 316, 326)

The above ruling which is of later vintage deviated from the previous rulings of the Supreme Court in the aforecited
cases of Aragon and Mendoza.

Finally, the contention of respondent movant that petitioner has no property in his possession is an issue that may be
determined only after trial on the merits.

A motion for reconsideration was filed stressing the erroneous application of Vda. de Consuegra v. GSIS2 and the
absence of justiciable controversy as to the nullity of the marriage. On September 11, 1991, Judge Austria denied the
motion for reconsideration and gave petitioner fifteen (15) days from receipt within which to file his answer.

Instead of filing the required answer, petitioner filed a special civil action of certiorari and mandamus on the ground that
the lower court acted with grave abuse of discretion amounting to lack of jurisdiction in denying the motion to dismiss.

On February 7, 1992, the Court of Appeals3 dismissed the petition. It explained that the case of Yap v. CA4 cited by
petitioner and that of Consuegra v. GSIS relied upon by the lower court do not have relevance in the case at bar, there
being no identity of facts because these cases dealt with the successional rights of the second wife while the instant case
prays for separation of property corollary with the declaration of nullity of marriage. It observed that the separation and
subsequent distribution of the properties acquired during the union can be had only upon proper determination of the
status of the marital relationship between said parties, whether or not the validity of the first marriage is denied by
petitioner. Furthermore, in order to avoid duplication and multiplicity of suits, the declaration of nullity of marriage may
be invoked in this proceeding together with the partition and distribution of the properties involved. Citing Articles 48,
50 and 52 of the Family Code, it held that private respondent's prayer for declaration of absolute nullity of their
marriage may be raised together with other incidents of their marriage such as the separation of their properties. Lastly,
it noted that since the Court has jurisdiction, the alleged error in refusing to grant the motion to dismiss is merely one of
law for which the remedy ordinarily would have been to file an answer, proceed with the trial and in case of an adverse
decision, reiterate the issue on appeal. The motion for reconsideration was subsequently denied for lack of merit.5

Hence, this petition.

The two basic issues confronting the Court in the instant case are the following.

First, whether or not a petition for judicial declaration of a void marriage is necessary. If in the affirmative, whether the
same should be filed only for purposes of remarriage.

Second, whether or not SP No. 1989-J is the proper remedy of private respondent to recover certain real and personal
properties allegedly belonging to her exclusively.

Petitioner, invoking the ruling in People v. Aragon6 and People v. Mendoza,7 contends that SP. No. 1989-J for
Declaration of Nullity of Marriage and Separation of Property filed by private respondent must be dismissed for being
unnecessary and superfluous. Furthermore, under his own interpretation of Article 40 of the Family Code, he submits
that a petition for declaration of absolute nullity of marriage is required only for purposes of remarriage. Since the
petition in SP No. 1989-J contains no allegation of private respondent's intention to remarry, said petition should
therefore, be dismissed.
On the other hand, private respondent insists on the necessity of a judicial declaration of the nullity of their marriage,
not for purposes of remarriage, but in order to provide a basis for the separation and distribution of the properties
acquired during coverture.

There is no question that the marriage of petitioner and private respondent celebrated while the former's previous
marriage with one Emerlina de la Paz was still subsisting, is bigamous. As such, it is from the beginning.8 Petitioner
himself does not dispute the absolute nullity of their marriage.9

The cases of People v. Aragon and People v. Mendoza relied upon by petitioner are cases where the Court had earlier
ruled that no judicial decree is necessary to establish the invalidity of a void, bigamous marriage. It is noteworthy to
observe that Justice Alex Reyes, however, dissented on these occasions stating that:

Though the logician may say that where the former marriage was void there would be nothing to dissolve, still it is not
for the spouses to judge whether that marriage was void or not. That judgment is reserved to the courts. . . . 10

This dissenting opinion was adopted as the majority position in subsequent cases involving the same issue. Thus, in
Gomez v. Lipana, 11 the Court abandoned its earlier ruling in the Aragon and Mendoza cases. In reversing the lower
court's order forfeiting the husband's share of the disputed property acquired during the second marriage, the Court
stated that "if the nullity, or annulment of the marriage is the basis for the application of Article 1417, there is need for a
judicial declaration thereof, which of course contemplates an action for that purpose."

Citing Gomez v. Lipana, the Court subsequently held in Vda. de Consuegra v. Government Service Insurance System, that
"although the second marriage can be presumed to be void ab initio as it was celebrated while the first marriage was
still subsisting, still there is need for judicial declaration of such nullity."

In Tolentino v. Paras,12 however, the Court turned around and applied the Aragon and Mendoza ruling once again. In
granting the prayer of the first wife asking for a declaration as the lawful surviving spouse and the correction of the
death certificate of her deceased husband, it explained that "(t)he second marriage that he contracted with private
respondent during the lifetime of his first spouse is null and void from the beginning and of no force and effect. No
judicial decree is necessary to establish the invalidity of a void marriage."

However, in the more recent case of Wiegel v. Sempio-Diy 13 the Court reverted to the Consuegra case and held that
there was "no need of introducing evidence about the existing prior marriage of her first husband at the time they
married each other, for then such a marriage though void still needs according to this Court a judicial declaration of such
fact and for all legal intents and purposes she would still be regarded as a married woman at the time she contracted
her marriage with respondent Karl Heinz Wiegel."

Came the Family Code which settled once and for all the conflicting jurisprudence on the matter. A declaration of the
absolute nullity of a marriage is now explicitly required either as a cause of action or a ground for defense. 14 Where the
absolute nullity of a previous marriage is sought to be invoked for purposes of contracting a second marriage, the sole
basis acceptable in law for said projected marriage be free from legal infirmity is a final judgment declaring the previous
marriage void. 15

The Family Law Revision Committee and the Civil Code Revision Committee 16 which drafted what is now the Family
Code of the Philippines took the position that parties to a marriage should not be allowed to assume that their marriage
is void even if such be the fact but must first secure a judicial declaration of the nullity of their marriage before they can
be allowed to marry again. This is borne out by the following minutes of the 152nd Joint Meeting of the Civil Code and
Family Law Committees where the present Article 40, then Art. 39, was discussed.

B. Article 39. —

The absolute nullity of a marriage may be invoked only on the basis of a final judgment declaring the marriage void,
except as provided in Article 41.
Justice Caguioa remarked that the above provision should include not only void but also voidable marriages. He then
suggested that the above provision be modified as follows:

The validity of a marriage may be invoked only . . .

Justice Reyes (J.B.L. Reyes), however, proposed that they say:

The validity or invalidity of a marriage may be invoked

only . . .

On the other hand, Justice Puno suggested that they say:

The invalidity of a marriage may be invoked only . . .

Justice Caguioa explained that his idea is that one cannot determine for himself whether or not his marriage is valid and
that a court action is needed. Justice Puno accordingly proposed that the provision be modified to read:

The invalidity of a marriage may be invoked only on the basis of a final judgment annulling the marriage or declaring the
marriage void, except as provided in Article 41.

Justice Caguioa remarked that in annulment, there is no question. Justice Puno, however, pointed out that, even if it is a
judgment of annulment, they still have to produce the judgment.

Justice Caguioa suggested that they say:

The invalidity of a marriage may be invoked only on the basis of a final judgment declaring the marriage invalid, except
as provided in Article 41.

Justice Puno raised the question: When a marriage is declared invalid, does it include the annulment of a marriage and
the declaration that the marriage is void? Justice Caguioa replied in the affirmative. Dean Gupit added that in some
judgments, even if the marriage is annulled, it is declared void. Justice Puno suggested that this matter be made clear in
the provision.

Prof. Baviera remarked that the original idea in the provision is to require first a judicial declaration of a void marriage
and not annullable marriages, with which the other members concurred. Judge Diy added that annullable marriages are
presumed valid until a direct action is filed to annul it, which the other members affirmed. Justice Puno remarked that if
this is so, then the phrase "absolute nullity" can stand since it might result in confusion if they change the phrase to
"invalidity" if what they are referring to in the provision is the declaration that the marriage is void.

Prof. Bautista commented that they will be doing away with collateral defense as well as collateral attack. Justice
Caguioa explained that the idea in the provision is that there should be a final judgment declaring the marriage void and
a party should not declare for himself whether or not the marriage is void, while the other members affirmed. Justice
Caguioa added that they are, therefore, trying to avoid a collateral attack on that point. Prof. Bautista stated that there
are actions which are brought on the assumption that the marriage is valid. He then asked: Are they depriving one of the
right to raise the defense that he has no liability because the basis of the liability is void? Prof. Bautista added that they
cannot say that there will be no judgment on the validity or invalidity of the marriage because it will be taken up in the
same proceeding. It will not be a unilateral declaration that, it is a void marriage. Justice Caguioa saw the point of Prof.
Bautista and suggested that they limit the provision to remarriage. He then proposed that Article 39 be reworded as
follows:

The absolute nullity of a marriage for purposes of remarriage may be invoked only on the basis of final judgment . . .

Justice Puno suggested that the above be modified as follows:

The absolute nullity of a previous marriage may be invoked for purposes of establishing the validity of a subsequent
marriage only on the basis of a final judgment declaring such previous marriage void, except as provided in Article 41.
Justice Puno later modified the above as follows:

For the purpose of establishing the validity of a subsequent marriage, the absolute nullity of a previous marriage may
only be invoked on the basis of a final judgment declaring such nullity, except as provided in Article 41.

Justice Caguioa commented that the above provision is too broad and will not solve the objection of Prof. Bautista. He
proposed that they say:

For the purpose of entering into a subsequent marriage, the absolute nullity of a previous marriage may only be invoked
on the basis of a final judgment declaring such nullity, except as provided in Article 41.

Justice Caguioa explained that the idea in the above provision is that if one enters into a subsequent marriage without
obtaining a final judgment declaring the nullity of a previous marriage, said subsequent marriage is void ab initio.

After further deliberation, Justice Puno suggested that they go back to the original wording of the provision as follows:

The absolute nullity of a previous marriage may be invoked for purposes of remarriage only on the basis of a final
judgment declaring such previous marriage void, except as provided in Article 41. 17

In fact, the requirement for a declaration of absolute nullity of a marriage is also for the protection of the spouse who,
believing that his or her marriage is illegal and void, marries again. With the judicial declaration of the nullity of his or
her first marriage, the person who marries again cannot be charged with bigamy. 18

Just over a year ago, the Court made the pronouncement that there is a necessity for a declaration of absolute nullity of
a prior subsisting marriage before contracting another in the recent case of Terre v. Terre. 19 The Court, in turning down
the defense of respondent Terre who was charged with grossly immoral conduct consisting of contracting a second
marriage and living with another woman other than complainant while his prior marriage with the latter remained
subsisting, said that "for purposes of determining whether a person is legally free to contract a second marriage, a
judicial declaration that the first marriage was null and void ab initio is essential."

As regards the necessity for a judicial declaration of absolute nullity of marriage, petitioner submits that the same can be
maintained only if it is for the purpose of remarriage. Failure to allege this purpose, according to petitioner's theory, will
warrant dismissal of the same.

Article 40 of the Family Code provides:

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

Crucial to the proper interpretation of Article 40 is the position in the provision of the word "solely." As it is placed, the
same shows that it is meant to qualify "final judgment declaring such previous marriage void." Realizing the need for
careful craftsmanship in conveying the precise intent of the Committee members, the provision in question, as it finally
emerged, did not state "The absolute nullity of a previous marriage may be invoked solely for purposes of remarriage . .
.," in which case "solely" would clearly qualify the phrase "for purposes of remarriage." Had the phraseology been such,
the interpretation of petitioner would have been correct and, that is, that the absolute nullity of a previous marriage
may be invoked solely for purposes of remarriage, thus rendering irrelevant the clause "on the basis solely of a final
judgment declaring such previous marriage void."

That Article 40 as finally formulated included the significant clause denotes that such final judgment declaring the
previous marriage void need not be obtained only for purposes of remarriage. Undoubtedly, one can conceive of other
instances where a party might well invoke the absolute nullity of a previous marriage for purposes other than
remarriage, such as in case of an action for liquidation, partition, distribution and separation of property between the
erstwhile spouses, as well as an action for the custody and support of their common children and the delivery of the
latters' presumptive legitimes. In such cases, evidence needs must be adduced, testimonial or documentary, to prove
the existence of grounds rendering such a previous marriage an absolute nullity. These need not be limited solely to an
earlier final judgment of a court declaring such previous marriage void. Hence, in the instance where a party who has
previously contracted a marriage which remains subsisting desires to enter into another marriage which is legally
unassailable, he is required by law to prove that the previous one was an absolute nullity. But this he may do on the
basis solely of a final judgment declaring such previous marriage void.

This leads us to the question: Why the distinction? In other words, for purposes of remarriage, why should the only
legally acceptable basis for declaring a previous marriage an absolute nullity be a final judgment declaring such previous
marriage void? Whereas, for purposes other than remarriage, other evidence is acceptable?

Marriage, a sacrosanct institution, declared by the Constitution as an "inviolable social institution, is the foundation of
the family;" as such, it "shall be protected by the State."20 In more explicit terms, the Family Code characterizes it as "a
special contract of permanent union between a man and a woman entered into in accordance with law for the
establishment of conjugal, and family life." 21 So crucial are marriage and the family to the stability and peace of the
nation that their "nature, consequences, and incidents are governed by law and not subject to stipulation . . ." 22 As a
matter of policy, therefore, the nullification of a marriage for the purpose of contracting another cannot be
accomplished merely on the basis of the perception of both parties or of one that their union is so defective with respect
to the essential requisites of a contract of marriage as to render it void ipso jure and with no legal effect — and nothing
more. Were this so, this inviolable social institution would be reduced to a mockery and would rest on very shaky
foundations indeed. And the grounds for nullifying marriage would be as diverse and far-ranging as human ingenuity and
fancy could conceive. For such a social significant institution, an official state pronouncement through the courts, and
nothing less, will satisfy the exacting norms of society. Not only would such an open and public declaration by the courts
definitively confirm the nullity of the contract of marriage, but the same would be easily verifiable through records
accessible to everyone.

That the law seeks to ensure that a prior marriage is no impediment to a second sought to be contracted by one of the
parties may be gleaned from new information required in the Family Code to be included in the application for a
marriage license, viz, "If previously married, how, when and where the previous marriage was dissolved and annulled."
23

Reverting to the case before us, petitioner's interpretation of Art. 40 of the Family Code is, undoubtedly, quite
restrictive. Thus, his position that private respondent's failure to state in the petition that the same is filed to enable her
to remarry will result in the dismissal of SP No. 1989-J is untenable. His misconstruction of Art. 40 resulting from the
misplaced emphasis on the term "solely" was in fact anticipated by the members of the Committee.

Dean Gupit commented the word "only" may be misconstrued to refer to "for purposes of remarriage." Judge Diy stated
that "only" refers to "final judgment." Justice Puno suggested that they say "on the basis only of a final judgment." Prof.
Baviera suggested that they use the legal term "solely" instead of "only," which the Committee approved. 24 (Emphasis
supplied)

Pursuing his previous argument that the declaration for absolute nullity of marriage is unnecessary, petitioner suggests
that private respondent should have filed an ordinary civil action for the recovery of the properties alleged to have been
acquired during their union. In such an eventuality, the lower court would not be acting as a mere special court but
would be clothed with jurisdiction to rule on the issues of possession and ownership. In addition, he pointed out that
there is actually nothing to separate or partition as the petition admits that all the properties were acquired with private
respondent's money.

The Court of Appeals disregarded this argument and concluded that "the prayer for declaration of absolute nullity of
marriage may be raised together with the other incident of their marriage such as the separation of their properties."

When a marriage is declared void ab initio, the law states that the final judgment therein shall provide for "the
liquidation, partition and distribution of the properties of the spouses, the custody and support of the common children,
and the delivery of their presumptive legitimes, unless such matters had been adjudicated in previous judicial
proceedings." 25 Other specific effects flowing therefrom, in proper cases, are the following:

Art. 43. xxx xxx xxx

(2) The absolute community of property or the conjugal partnership, as the case may be, shall be dissolved and
liquidated, but if either spouse contracted said marriage in bad faith, his or her share of the net profits of the community
property or conjugal partnership property shall be forfeited in favor of the common children or, if there are none, the
children of the guilty spouse by a previous marriage or, in default of children, the innocent spouse;

(3) Donations by reason of marriage shall remain valid, except that if the donee contracted the marriage in bad
faith, such donations made to said donee are revoked by operation of law;

(4) The innocent spouse may revoke the designation of the other spouse who acted in bad faith as a beneficiary in
any insurance policy, even if such designation be stipulated as irrevocable; and

(5) The spouse who contracted the subsequent marriage in bad faith shall be disqualified to inherit from the
innocent spouse by testate and intestate succession. (n)

Art. 44. If both spouses of the subsequent marriage acted in bad faith, said marriage shall be void ab initio and all
donations by reason of marriage and testamentary disposition made by one in favor of the other are revoked by
operation of law. (n) 26

Based on the foregoing provisions, private respondent's ultimate prayer for separation of property will simply be one of
the necessary consequences of the judicial declaration of absolute nullity of their marriage. Thus, petitioner's suggestion
that in order for their properties to be separated, an ordinary civil action has to be instituted for that purpose is
baseless. The Family Code has clearly provided the effects of the declaration of nullity of marriage, one of which is the
separation of property according to the regime of property relations governing them. It stands to reason that the lower
court before whom the issue of nullity of a first marriage is brought is likewise clothed with jurisdiction to decide the
incidental questions regarding the couple's properties. Accordingly, the respondent court committed no reversible error
in finding that the lower court committed no grave abuse of discretion in denying petitioner's motion to dismiss SP No.
1989-J

WHEREFORE, the instant petition is hereby DENIED. The decision of respondent Court dated February 7, 1992 and the
Resolution dated March 20, 1992 are AFFIRMED.

SO ORDERED.

Bidin and Melo, JJ., concur.

Feliciano, J., is on leave.

Separate Opinions

VITUG, J., concurring:

I concur with the opinion so well expressed by Mme. Justice Flerida Ruth P. Romero. I should like, however, to put in a
modest observation.

Void marriages are inexistent from the very beginning and, I believe, no judicial decree is required to establish their
nullity, except in the following instances:

(a) For purposes of remarriage pursuant to the provision of Article 40 of the Family Code; viz.:
The absolute nullity of a previous marriage may be invoked for purposes of remarriage on the basis solely of a final
judgment declaring such previous marriage void. (n)

(b) A marriage celebrated prior to the effectivity of the Family Code in case a party thereto was psychologically
incapacitated to comply with the essential marital obligations of marriage (Article 36, Family Code), where an action or
defense for the declaration of nullity prescribes ten (10) years after the Family Code took effect (Article 39, Family
Code); otherwise, the marriage is deemed unaffected by the Family Code.

A void marriage, even without its being judicially declared a nullity, albeit the preferability for, and justiciability (fully
discussed in the majority opinion) of, such a declaration, will not give it the status or the consequences of a valid
marriage, saving only specific instances where certain effects of a valid marriage can still flow from the void marriage.
Examples of these cases are children of void marriages under Article 36 (due to psychological incapacity) and Article 53,
in relation to Article 52 (due to failure of partition, delivery of presumptive legitimes of children and recording thereof
following the annulment or declaration of nullity a prior marriage), conceived or born before the judicial declaration of
nullity of such void marriages, who the law deems as legitimate (Article 54, Family Code).

In most, if not in all, other cases, a void marriage is to be considered extant per se. Neither the conjugal, partnership of
gain under the old regime nor the absolute community of property under the new Code (absent a marriage settlement),
will apply; instead, their property relations shall be governed by the co-ownership rules under either Article 147 or
Article 148 of the Family Code. I must hasten to add as a personal view, however, that the exceptional effects on
children of a void marriage because of the psychological incapacity of a party thereto should have been extended to
cover even the personal and property relations of the spouses. Unlike the other cases of void marriages where the
grounds therefor may be established by hard facts and with little uncertainty, the term "psychological incapacity" is so
relative and unsettling that until a judicial declaration of nullity is made its interim effects can long and literally hang on
the balance not only insofar as the spouses themselves are concerned but also as regards third persons with whom the
spouses deal.

# Separate Opinions

VITUG, J., concurring:

I concur with the opinion so well expressed by Mme. Justice Flerida Ruth P. Romero. I should like, however, to put in a
modest observation.

Void marriages are inexistent from the very beginning and, I believe, no judicial decree is required to establish their
nullity, except in the following instances:

(a) For purposes of remarriage pursuant to the provision of Article 40 of the Family Code; viz.:

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

(b) A marriage celebrated prior to the effectivity of the Family Code in case a party thereto was psychologically
incapacitated to comply with the essential marital obligations of marriage (Article 36, Family Code), where an action or
defense for the declaration of nullity prescribes ten (10) years after the Family Code took effect (Article 39, Family
Code); otherwise, the marriage is deemed unaffected by the Family Code.

A void marriage, even without its being judicially declared a nullity, albeit the preferability for, and justiciability (fully
discussed in the majority opinion) of, such a declaration, will not give it the status or the consequences of a valid
marriage, saving only specific instances where certain effects of a valid marriage can still flow from the void marriage.
Examples of these cases are children of void marriages under Article 36 (due to psychological incapacity) and Article 53,
in relation to Article 52 (due to failure of partition, delivery of presumptive legitimes of children and recording thereof
following the annulment or declaration of nullity a prior marriage), conceived or born before the judicial declaration of
nullity of such void marriages, who the law deems as legitimate (Article 54, Family Code).

In most, if not in all, other cases, a void marriage is to be considered extant per se. Neither the conjugal, partnership of
gain under the old regime nor the absolute community of property under the new Code (absent a marriage settlement),
will apply; instead, their property relations shall be governed by the co-ownership rules under either Article 147 or
Article 148 of the Family Code. I must hasten to add as a personal view, however, that the exceptional effects on
children of a void marriage because of the psychological incapacity of a party thereto should have been extended to
cover even the personal and property relations of the spouses. Unlike the other cases of void marriages where the
grounds therefor may be established by hard facts and with little uncertainty, the term "psychological incapacity" is so
relative and unsettling that until a judicial declaration of nullity is made its interim effects can long and literally hang on
the balance not only insofar as the spouses themselves are concerned but also as regards third persons with whom the
spouses deal.

JONES VS. HORTIGUELA

In re Instate of the deceased Marciana Escaño.

ANGELITA JONES., petitioner-appellant-appellee,

vs.

FELIX HORTIGUELA, as administrator, widower and heir, oppositor-appellant-appellee.

Salvador E. Imperial for petitioner-appellant-appellee.

Vicente L. Faelnar , Hipolito Alo and Ciriaco S. Salazar for oppositor-appellant-appellee.

CONCEPCION, J.:

This is an appeal taken from the order issued by the Court of First Instance of Cebu on March 14, 1935 , in the intestate
proceedings of the deceased Marciana Escaño, denying thereby: (1) the motion to appoint a new administrator and (2)
to set aside the order of May 9, 1932, declaring the heirs of said deceased; (3) holding it unwarranted to declare that the
properties of the intestate estate are paraphernal properties of said deceased, but reserving to the parties the right to
discuss which of said properties are paraphernal and which are conjugal; (4)setting aside the order of January 10, 1933.
granting to the administrator fees in the sum of P10,000, and that of June 26, 1933, approving the project of portion and
the final account; and (5) ordering the presentation of another project of partition and final account.

As Marciana Escaño had died intestate, her widower Felix Hortiguela was appointed judicial administrator of her entire
estate, and in an order issued on May 9, 1932, Angelita Jones, her daughter by her first marriage, and Felix Hortiguela,
her widower by her second marriage, were declared her only heirs. In a motion filed with the conformity of the guardian
of the heiress Angelita Jones, Felix Hortiguela, as administrator, prayed that his fees, as such, be fixed at P10,000 which
was granted by the court in its order of January 10, 1933. The administrator later presented an inventory of the
properties left by said deceased Marciana Escaño, a final account of his administration, and a project of partition of the
intestate estate wherein he adjudicated to himself a part of the estate in payment of his share of the conjugal properties
and his usufructuary right, and the remaining part to Angelita Jones. The latter, who was a minor, was represented in
the proceedings by her guardian Paz Escaño de Corominas. The project of partition and final account were approved in
an order of June 26, 1933, and the properties were turned over to the respective grantees by virtue thereof.

On May 3, 1934, the heiress Angelita Jones, then married to Ernesto Lardizabal, filed a motion alleging that she was the
only heir of her mother, the deceased Marciana Escaño; that there never was a valid marriage between her mother and
Felix Hortiguela or that had such marriage been celebrated, it was null and void; and even granting that it were valid,
Felix Hortiguela was not entitled to a share in usufruct of one-third of the inheritance; that the petitioner was a minor
and that during the hearing of the intestate proceedings she had not been assisted by counsel but was represent by the
same attorney of Felix Hortiguela; that during said proceedings there had been committed many errors and inaccuracies
which impaired her rights and that the fees of P10,000 charged by the administrator were highly unreasonable and
unconscionable. She prayed: (a) for the reopening of the proceedings; (b) that her husband appointed special
administrator without bond; (c) that her mother's alleged marriage to Felix Hortiguela be declared null and void; (d) that
the partition of the properties made by administrator or Hortiguela be declared null and void that petitioner be declared
the only universal heir of her deceased mother; and (e) that in case there was a valid marriage between Felix Hortiguela
and Marciana Escaño, Hortiguela be declared not entitled to the widower's usufruct; the errors in the administrator's
account be corrected; the latter be granted a remuneration of only P4 a day, and new partition of the properties be
made.

After Hortiguela's answer had been filed and the evidence for both parties received, the court issued the order of March
14, 1935, the provisions of which are stated in the first paragraph of this decision. Both parties appealed therefrom.

The principal question upon the resolution of which depends that of the others, is whether or not Felix Hortiguela's
alleged marriage to Marciana Escaño was celebrated.

It is a fact that in December, 1914, Marciana Escaño married Arthur W. Jones in the suburban catholic church of San
Nicolas, Province of Cebu. On January 10, 1918, Jones secured a passport to go abroad and thereafter nothing was ever
heard of him. In October, 1919, proceedings were institute in the Court of First Instance of Maasin, Leyte, at the instance
of Marciana Escaño, to have her husband judicially declared an absentee. On the 25th of said month, the court issued an
order declaring Arthur W. Jones an absentee from the Philippine Islands pursuant to the provisions of article 186 of the
Civil Code, with the proviso that said judicial declaration of absence would not take effect until six months after its
publication in the official newspapers. Said order directed the publication thereof in the Official Gazette and in the
newspaper "El Ideal". Pursuant thereto, said order was published in the Official Gazette during the month of December,
1919, and January, February, March, April, May and June, 1920. On April 23, 1921, the court issued another order for the
taking effect of the declaration of absence, publication thereof having been made in the Official Gazette and in "El
Ideal." On May 6, 1927, Felix Hortiguela and Marciana Escaño were married before the justice of the peace of Malitbog,
Leyte, and they signed the certificate of marriage.

Now, Angelita Jones contends that the declaration of absence must be understood to have been made not in the order
of October 25, 1919, but in that of April 23, 1921, and that from the latter date to May 6, 1927, the date of the
celebration of the marriage, only 6 years and 14 days elapsed; and in accordance with section III, paragraph 2, of
General Orders, No. 68, the marriage so contracted by Felix Hortiguela and Marciana Escaño is null and void. This court
does not believe so. For the purposes of the civil marriage law, it is not necessary to have the former spouse judicially
declared an absentee. The declaration of absence made in accordance with the provisions of the Civil Code has for its
sole purpose to enable the taking of the necessary precautions for the administration of the estate of the absentee. For
the celebration of civil marriage, however, the law only requires that the former spouse has been absent for seven
consecutive years at the time of the second marriage, that the spouse present does not know his or her former spouse
to be living, that such former spouse is generally reputed to be dead and the spouse present so believe at the time of
the celebration of the marriage (section III, paragraph 2, General orders, No. 68).

In accordance with the foregoing legal provision, the absence of Marciana Escaño's former husband should be counted
from January 10, 1918, the date on which the last news concerning Arthur W. Jones was received, and from said date to
May 6, 1927, more than nine years elapsed. Said marriage is, therefore, valid and lawful.

For some unknown reason not attributable, of course, to the fault or negligence of Felix Hortiguela or Marciana Escaño,
the marriage contracted does not appear recorded in the marriage register of the municipality of Malitbog. Angelita
Jones assigns as one of the errors of the court its having declared that failure to record said marriage does not affect the
efficacy and validity thereof.

On this point, the court a quo very correctly stated as follows:

Section VIII of General Orders, No. 68, as amended, provides that the person solemnizing the marriage must transmit
the marriage certificate to the municipal secretary, and failure to transmit such certificate shall be fined not less than
twenty-five and not more than fifty dollars; but does not provide that failure to transmit such certificate to the
municipal secretary annuls the marriage. Interpreting this legal provision, the Supreme Court, in its decision of
September 5, 1931 (Madridejo vs. De Leon, 55 Phil., 1 ) said:

"The mere fact that the parish priest who married the plaintiff's natural father and mother, while the latter was in
articulo mortis failed to send a copy of the marriage certificate to the municipal secretary, does not invalidate said
marriage, since it does not appear that in the celebration thereof all requisites for its validity were not present, the
forwarding of a copy of the marriage certificate not being one said requisites."

In another case (U. S. vs. De Vera, 28 Phil., 105), the court said:

"Certificate issued pursuant the provisions of section 20 of the Municipal Code by municipal secretaries, marriages
recorded in their respective registers, are not the only ones that can attest and prove such facts to such an extent that
other proofs established by law may not be presented or admitted at trial, when through the omission or fault either of
the municipal secretary himself or of the person who solemnized the marriage, it was not duly entered or recorded in
the municipal register."

Furthermore, Marciana Escaño believed Arthur W. Jones to be dead when she contracted her second marriage. Her
daughter Angelita Jones herself was of the same belief, since she lived with her mother after the latter had married
Hortiguela, treated Hortiguela as her true stepfather, and lived and traveled with him together with her mother. She
certainly would not have behaved so if she had not believed her father to be dead. Still furthermore, according to
section 334, No. 24, of the Code of Civil Procedure, a person not heard from in seven years is presumed to be dead.

Since Felix Hortiguela was lawfully married to Marciana Escaño and was divorced from her at the time of her death there
is no doubt that he is entitled to inherit in usufruct, not only in testate but also in intestate succession, as in the present
case (6 and 7 Manresa, pages 497-499 and 134-141, respectively).

Therefore, there is no reason to annul the order of May 9, 1932, declaring that the heirs of the deceased were her
widower and her daughter Angelita Jones. Neither is there any reason to annul the order of June 26, 1933, approving
the partition of the properties of the intestate estate.

The inaccuracies and error attributed to the administrator Felix Hortiguela in Angelita Jones' motion and alleged therein
as one of the grounds for asking for the reopening of any assignment of error. It should, therefore, be considered that
the petitioner has desisted from her intention relative to this alleged ground for the nullity of the proceedings.

As to the administrator's fees, the evidence shows that of the P10,000 granted by the court to Hortiguela as his own sum
of P8,000 for the latter's professional services in this as well as in other cases affecting the estate of his deceased wife.
Taking into consideration the nature of and the amount involved in this and in the other cases wherein Attorney Faelnar
has rendered his services this court is of the opinion that the sum of P8,000 paid by the administrator is a reasonable
and moderate compensation. Angelita Jones' objection to the effect that she had no reason to contribute to the
payment of Faelnar's fees is untenable, considering the fact that said attorney's professional services were rendered for
the benefit of the administration of the estate of the deceased Escaño prior to the controversy provoked by said heiress.
As to the remainder of P2,000, said administrator is entitled to collect the sum of P4 for every day employed by him as
such, and considering the importance of the inheritance in question and the time elapsed since the inception of the
administration proceedings this court is of the opinion that the sum of P2,000 is an adequate compensation for said
administrator's services.

Lastly, had the court jurisdiction to set aside, as it did, the order of January 10, 1933, approving the administrator's fees
and the order of June 26, 1933, approving the partition and the final account? Had the court jurisdiction to order the
presentation of another project of partition and final account? These are the questions raised by Felix Hortiguela and
this court is of the opinion that said orders having therefrom, the court has lost jurisdiction that no appeal was ever
taken therefrom, the court has lost jurisdiction over the case and it could not resume it under section 113 of the Code of
Civil Procedure or under section 598 thereof because the above-cited section refer to grounds other than those upon
which Angelita Jones' motion of May 3, 1934, is based.

For all the foregoing consideration this court reverses the appealed order of March 14, 1935, in so far as it set aside the
order of January 10, 1933, relative to the administrator's fees and the order of June 26, 1933, approving the final
account and the project of portion, and in so far as said order of March 14, 1935, required the presentation of a new
project of partition; denied the appointment of Angelita Jones husband as administrator; affirms the order of May 9,
1932, relative to declaration of heirs; and holds it unwarranted to make a finding as to whether or not the properties of
this intestate estate are paraphernal properties of the deceased Marciana Escaño reserving to the parties the right to
discuss which are paraphernal and which are conjugal properties. So ordered.

Avanceña, C.J., Villa-Real, Abad Santos, Diaz and Laurel, JJ., concur.

PEOPLE VS. SANTIAGO

THE PEOPLE OF THE PHILIPPINE ISLANDS, plaintiff-appellee,

vs.

FELIPE SANTIAGO, defendant-appellant.

Fausto C. Cuizon for appellant.

Attorney-General Jaranilla for appellee.

STREET, J.:

This appeal has been brought to reverse a judgment of the Court of First Instance of the Province of Nueva Ecija, finding
the appellant, Felipe Santiago, guilty of the offense of rape and sentencing him to undergo imprisonment for fourteen
years, eight months and one day, reclusion temporal, with the accessories prescribed by law, requiring him to endow
the offended party, Felicita Masilang, in the amount of P500, without subsidiary imprisonment in case of insolvency,
requiring him also to recognize and maintain, at P15 per month, the offspring, if there should be any, as consequence of
the rape, and requiring him further to pay the costs.

The deceased wife of the appellant was the aunt of Felicita Masilang, aged 18, who was the injured girl in this case. She
is therefore appellant's niece by marriage, and she calls him uncle. Both are residents of the municipality of Gapan, in
the Province of Nueva Ecija. On November 23, 1926, the appellant asked Felicita, who was them about 18 years of age,
to accompany him across the river on some errand. The girl agreed and they went over the river together into the
municipality of San Leonardo. After crossing the river, the appellant conducted the girl to a place about twenty paces
from the highway where tall grass and other growth hid them public view. In this spot the appellant manifested a desire
to have sexual intercourse with the girl, but she refused to give her consent, and he finally notwithstanding her
resistance, accomplished his purpose by force and against her will.

After the deed had been done the appellant conducted the girl to the house of his uncle, Agaton Santiago, who lived not
far away. They arrived here about 11 a. m., and remained for several hours. In the course of the afternoon Agaton
Santiago brought in a protestant minister who went through the ceremony of marrying the couple. After this was over
the appellant gave the girl a few pesos and sent her home. Her father happened to be away that night, but upon his
return the next day, she told him what had happened, a this prosecution for rape was started.

The trial court found that the offense of rape had been committed, as above stated, and the marriage ceremony was a
mere ruse by which the appellant hoped to escape from the criminal consequences of his act. We concur in this view of
the case. The manner in which the appellant death with the girl after the marriage, as well as before, shows that he had
no bona fide intention of making her his wife, and the ceremony cannot be considered binding on her because of duress.
The marriage was therefore void for lack of essential consent, and it supplies no impediment to the prosecution of the
wrongdoer.

The Attorney-General suggest that, in fixing the penalty, it would be proper to take into account the aggravating
circumstance that the offense was committed in an uninhabited place. But the evidence fails to show beyond a
reasonable doubt that crime was committed en despoblado. The incident occurred only a few paces from the Manila
North Road, and it appears that there was an unoccupied house nearby to which the girl was taken and where food was
procured from Florentina Cuizon who lived not far away. It is the constant doctrine of the court that an aggravating
circumstance must be as clearly proved as any other element of the crime (U. S. vs. Binayoh, 35 Phil., 23, 31; Albert, Law
on Crimes, pp. 88-89); and we cannot feel certain, upon the proof before us, that the place of the commission of this
offense was remote enough from habitation or possible aid to make appropriate the estimation of the aggravating
circumstance referred to. 1awph!l.net

The judgment appealed from is in accordance with law, and will be affirmed. So ordered, with costs against the
appellant.

Avanceña, C.J., Johnson, Malcolm, Villamor, Ostrand, Johns and Villa-Real, JJ., concur.

JIMENEZ VS. CANIZARES

JOEL JIMENEZ, plaintiff-appellee,

vs.

REMEDIOS CAÑIZARES, defendant.

Republic of the Philippines, intervenor-appellant.

Acting Solicitor General Guillermo E. Torres and Solicitor Pacifico P. de Castro for appellant.

Climaco, Ascarraga and Silang for appellee.

PADILLA, J.:

In a complaint filed on 7 June 1955 in the Court of First Instance of Zamboanga the plaintiff Joel Jimenez prays for a
decree annulling his marriage to the defendant Remedios Cañizares contracted on 3 August 1950 before a judge of the
municipal court of Zamboanga City, upon the ground that the office of her genitals or vagina was to small to allow the
penetration of a male organ or penis for copulation; that the condition of her genitals as described above existed at the
time of marriage and continues to exist; and that for that reason he left the conjugal home two nights and one day after
they had been married. On 14 June 1955 the wife was summoned and served a copy of the complaint. She did not file an
answer. On 29 September 1956, pursuant to the provisions of article 88 of the Civil Code, the Court directed the city
attorney of Zamboanga to inquire whether there was a collusion, to intervene for the State to see that the evidence for
the plaintiff is not a frame-up, concocted or fabricated. On 17 December 1956 the Court entered an order requiring the
defendant to submit to a physical examination by a competent lady physician to determine her physical capacity for
copulation and to submit, within ten days from receipt of the order, a medical certificate on the result thereof. On 14
March 1957 the defendant was granted additional five days from notice to comply with the order of 17 December 1956
with warning that her failure to undergo medical examination and submit the required doctor's certificate would be
deemed lack of interest on her part in the case and that judgment upon the evidence presented by her husband would
be rendered

After hearing, at which the defendant was not present, on 11 April 1957 the Court entered a decree annulling the
marriage between the plaintiff and the defendant. On 26 April 1957 the city attorney filed a motion for reconsideration
of the decree thus entered, upon the ground, among others, that the defendant's impotency has not been satisfactorily
established as required by law; that she had not been physically examined because she had refused to be examined;
that instead of annulling the marriage the Court should have punished her for contempt of court and compelled her to
undergo a physical examination and submit a medical certificate; and that the decree sought to be reconsidered would
open the door to married couples, who want to end their marriage to collude or connive with each other by just alleging
impotency of one of them. He prayed that the complaint be dismissed or that the wife be subjected to a physical
examination. Pending resolution of his motion, the city attorney timely appealed from the decree. On 13 May 1957 the
motion for reconsideration was denied.

The question to determine is whether the marriage in question may be annulled on the strength only of the lone
testimony of the husband who claimed and testified that his wife was and is impotent. The latter did not answer the
complaint, was absent during the hearing, and refused to submit to a medical examination.

Marriage in this country is an institution in which the community is deeply interested. The state has surrounded it with
safeguards to maintain its purity, continuity and permanence. The security and stability of the state are largely
dependent upon it. It is the interest of each and every member of the community to prevent the bringing about of a
condition that would shake its foundation and ultimately lead to its destruction. The incidents of the status are governed
by law, not by will of the parties. The law specifically enumerates the legal grounds, that must be proved to exist by
indubitable evidence, to annul a marriage. In the case at bar, the annulment of the marriage in question was decreed
upon the sole testimony of the husband who was expected to give testimony tending or aiming at securing the
annulment of his marriage he sought and seeks. Whether the wife is really impotent cannot be deemed to have been
satisfactorily established, becase from the commencement of the proceedings until the entry of the decree she had
abstained from taking part therein. Although her refusal to be examined or failure to appear in court show indifference
on her part, yet from such attitude the presumption arising out of the suppression of evidence could not arise or be
inferred because women of this country are by nature coy, bashful and shy and would not submit to a physical
examination unless compelled to by competent authority. This the Court may do without doing violence to and
infringing in this case is not self-incrimination. She is not charged with any offense. She is not being compelled to be a
witness against herself.1 "Impotency being an abnormal condition should not be presumed. The presumption is in favor
of potency."2 The lone testimony of the husband that his wife is physically incapable of sexual intercourse is insufficient
to tear asunder the ties that have bound them together as husband and wife.

The decree appealed from is set aside and the case remanded to the lower court for further proceedings in accordance
with this decision, without pronouncement as to costs.

Paras, C.J., Bengzon, Bautista Angelo, Labrador, Concepcion, Reyes, J.B.L., Barrera, Gutierrez David, and Dizon, JJ. concur.

TOMPKINS VS. TOMPKINS

CATHERINE TOMPKINS, Respondent, v. ELMER E. TOMPKINS, Appellant.

COUNSEL

Jack Flinn for Appellant.

W. Urie Walsh, Hugo P. Correll and Charles J. Barry for Respondent.

OPINION

FINLEY, J. pro tem.

This is an action for divorce wherein plaintiff, the wife, complains in two counts. In the first cause of action she alleges
extreme cruelty; in the second, desertion. In awarding her judgment from the bench the trial court specified that it was
on the ground of defendant's desertion. In its written findings the court found that defendant had been guilty of
extreme cruelty toward plaintiff and also that he had deserted and abandoned plaintiff, which desertion had continued
for more than one year. [83 Cal. App. 2d 74] In the conclusions of law and interlocutory judgment neither ground is
mentioned. In the conclusions of law appears the statement that "Plaintiff is entitled to a decree of this Court ...
dissolving the bonds of matrimony between Plaintiff and Defendant," and in the interlocutory decree it is ordered,
adjudged and decreed "That Plaintiff is entitled to a divorce from Defendant" without specifying the ground. From this
interlocutory judgment, which also awarded plaintiff the major portion of the property owned by the parties, alimony in
the sum of $75 per month, plus an amount sufficient to enable her to keep up the premiums on two insurance policies
on the life of defendant, defendant appeals.

In his opening brief defendant raises five points in support of reversal. Plaintiff has incorporated into her brief a motion
to dismiss on the ground that defendant is in contempt of the trial court's order; has filed no stay bond, and for this
reason this appeal should not be considered. [1] Failure of an appellant to comply with the judgment appealed from is
not a ground for dismissal of the appeal.

No closing brief was filed by defendant. The points upon which he relies will be considered here in the order presented.

The first point is that "there is neither direct evidence nor corroboration sufficient to support the findings that appellant
was guilty of extreme cruelty toward respondent; nor was there sufficient evidence or corroboration to support the
finding that appellant wrongfully inflicted upon respondent 'grievous physical and mental suffering.' " [2] Defendant
argues that nowhere in the testimony of plaintiff is there any evidence of physical abuses, and therefore, the finding of
extreme cruelty must have been based solely on mental cruelty. A review of the testimony demonstrates this contention
to be a fact, but the law does not confine the term "extreme cruelty" to acts of physical violence or bodily injury. Civil
Code, section 94, defines extreme cruelty as "the wrongful infliction of grievious bodily injury, or grievous mental
suffering, upon the other by one party to the marriage." (Emphasis added.) Since the bodily injury or grievous mental
suffering appears in the alternative, it is obvious that either, if proven, would constitute extreme cruelty within the
meaning of the statute.

[3] Conduct that would induce grievous mental suffering sufficient to constitute extreme cruelty depends upon the
circumstances of each particular case, and the finding of a trial [83 Cal. App. 2d 75] court, based upon any reasonable
analysis of the facts and circumstances as reflected by the evidence, will not be disturbed on appeal. (La Mar v. La Mar,
30 Cal. 2d 898 [186 P.2d 678]; Barnes v. Barnes, 95 Cal. 171 [30 P. 298, 16 L.R.A. 660]; Fleming v. Fleming, 95 Cal. 430 [30
P. 566, 29 Am.St.Rep. 124]; Andrews v. Andrews, 120 Cal. 184 [52 P. 298]; Keener v. Keener, 18 Cal. 2d 445 [116 P.2d 1];
see, also, Hansen v. Hansen, 86 Cal. App. 744 [261 P. 503], and McFall v. McFall, 58 Cal. App. 2d 208 [136 P.2d 580].)

At the trial of this action defendant gave no testimony pertaining to the grounds of divorce. At the conclusion of
plaintiff's case, defendant's counsel stated: "I will call the defendant, but we are not making any contention as to the
facts of the divorce. It is only the matter of the property that is in dispute."

[4] This failure did, of course, not relieve plaintiff of the duty of making out her case, for in a divorce action the grounds
for divorce, even though admitted, must still be established by competent evidence. (Civ. Code, § 130; MacDonald v.
MacDonald, 155 Cal. 665 [102 P. 927, 25 L.R.A.N.S. 45]; Avery v. Avery, 148 Cal. 239 [82 P. 967]; Andrews v. Andrews,
supra.)

[5] Plaintiff testified that the defendant "had been staying out nights and not coming in"; that, in the month before the
separation she "found he was with another woman"; that he (defendant) said he wanted a divorce and would leave her
everything if she would let him have a divorce; that she declined; that he continued "staying out"; that she pleaded with
him; that one night in April (1943) he stayed out and she remonstrated with him; that the next day "he went to work
and never came back after that, except two weeks later he came home to get his clothes." The plaintiff further testified
that she had seen defendant with another woman; that two days after defendant left the home, plaintiff went to the
other woman's house at about 6 a. m. and waited outside, and that at 7 a. m. the defendant and the other woman came
out of the house and that the latter waved goodbye to the defendant; that the eldest daughter was with her at the time
and waited with her. When asked how defendant's conduct affected her, the plaintiff said: "Well, after living with
somebody for twenty years, you can imagine." She stated further that she could not sleep or eat and that she lost 30
pounds in weight. [83 Cal. App. 2d 76]
This evidence stands unrefuted. There would be little virtue in discussing its adequacy, for it can be accepted as a matter
of judicial knowledge that any concept of the marriage relationship which would sanction such conduct and attribute to
the offended party no mental suffering and anguish would be callous, indeed, and quite at variance with commonly
accepted standards. We hold this evidence to be substantial and sufficient to constitute extreme cruelty.

[6] Furthermore, it is not necessary that all of the acts of cruelty charged by the aggrieved party be corroborated. Where
a number of charges have been made, corroboration of a single act may be sufficient. (McGann v. McGann, 82 Cal. App.
2d 382 [186 P.2d 424]; Ungemach v. Ungemach, 61 Cal. App. 2d 29 [142 P.2d 99]; Keener v. Keener, supra.) [7]
Moreover, the rule requiring corroboration is not so strictly applied in contested divorce actions as it is in actions where
a decree is sought upon the default of the opposing party. [8] The principal object of the corroboration rule is to prevent
collusion between the parties, and where it is clear from the evidence in a contested action that there is no collusion,
the court is justified in granting the decree upon evidence which is only slightly corroborated if otherwise the court is
satisfied that the prevailing party is entitled to a decree. (McGann v. McGann, supra; Minnich v. Minnich, 127 Cal. App. 1
[15 P.2d 804]; Ungemach v. Ungemach, supra; Serns v. Serns, 70 Cal. App. 2d 527 [161 P.2d 417].) [9] In the present case
the corroborating witness was plaintiff's daughter. She testified that she was with her mother on the occasion when she
saw defendant and the other woman come out of the woman's house together at 7 a. m., at which time the latter
waved goodbye to defendant. We hold this corroboration to be sufficient.

[10a] The second point raised by defendant is that the division of the community property is contrary to law. In the
findings of fact, the trial court describes certain property as community property and sets the bulk of the same over to
plaintiff. Defendant argues that: "Conceding that plaintiff is entitled to an interlocutory decree on the grounds of
defendant's desertion, it therefore becomes incumbent upon the Court to equally divide the community property of the
parties. (Civil Code, 146, Subd. (2).)" There is no merit to this contention. [11] Regardless of what the court said and of
the minute order made at the time of trial, the formal written [83 Cal. App. 2d 77] findings signed by the court
supersede and control in those cases where such findings are required. (Rules on Appeal, rule 2(b) (2); Pessarra v.
Pessarra, 80 Cal. App. 2d 965 [183 P.2d 279]; Silva v. Mercier, fn. *(Cal.App.) 187 P.2d 60.) [12] Findings are required in a
divorce action. (Civ. Code, § 131; La Mar v. La Mar, supra.)

[10b] The written findings here set forth that defendant is guilty of both extreme cruelty and desertion. The
interlocutory decree itself does not mention or specify either ground but this is unnecessary since the conclusions and
the judgment are predicated upon the written findings of fact and it must be considered that the judgment rests upon
both extreme cruelty and desertion. Where extreme cruelty is a ground, the trial court has the legal right to apportion
the community property between the parties in such manner as under the circumstances it deems just. (Civ. Code, §
146, subd. 1; Tipton v. Tipton, 209 Cal. 443, 444 [288 P. 65]; Quagelli v. Quagelli, 99 Cal. App. 172, 176 [277 P. 1089]; Falk
v. Falk, 48 Cal. App. 2d 762, 770-772 [120 P.2d 714]; Crouch v. Crouch, 63 Cal. App. 2d 747, 756 [147 P.2d 678].) [13] In
the absence of a showing of an abuse of discretion, which we cannot say has been shown here, the trial court's award of
the community property will not be disturbed upon appeal. (Shapiro v. Shapiro, 127 Cal. App. 20, 27 [14 P.2d 1058].)

[14a] Defendant's third point is that the trial court exceeded its jurisdiction in awarding joint tenancy property to
plaintiff as community property. The fact is, however, that even though the real property awarded by the trial court to
plaintiff did stand in the names of the parties as joint tenants, the complaint alleges and the answer admits that it is
community property. There is no evidence in the record to the contrary. [15] If the parties so intend, property taken by a
husband and wife as joint tenants is community property. (La Mar v. La Mar, supra; Tomaier v. Tomaier, 23 Cal. 2d 754,
757 [146 P.2d 905]; Andrews v. Andrews, supra.) In this connection, it is also to be noted that about $2,000 left to
plaintiff by her father was invested by the parties in this property and in the grocery business operated by defendant
during the marriage and which was sold on April 7, 1946.

[14b] Since defendant in his answer to the complaint admits [83 Cal. App. 2d 78] the real property to be community
property its treatment as such by the trial court was proper.

[16a] The fourth point urged by defendant is that the court erred in ordering him to maintain premium payments on two
life insurance policies wherein he is named as the insured and plaintiff as beneficiary. The order made was not that
defendant should pay these amounts directly to the insurance companies, but that he should deliver them to plaintiff
for the purpose of paying the premiums. Defendant cites Gelfand v. Gelfand, 136 Cal. App. 448 [29 P.2d 271] for the
proposition that upon the dissolution of the marriage relation the insurable interest of the wife on the life of the former
husband "does not exist." This does not mean that her rights are absolutely extinguished, for immediately thereafter
appears the following language (p. 455): "This, however, does not foreclose her right or claim to her interest in any
property which may have been used in the payment of premiums, which we think the court is empowered to determine
and may cause a defendant to make compensation out of his separate property for the benefit of the wife to the extent
that her community right has been invaded. ..."

The beneficiary, under the policy referred to in the Gelfand case, was not the wife but a third party. If upon divorce a
wife is entitled to restitution in the amount of her community interest in premiums paid by her husband on a policy
wherein she is not beneficiary, it is only reasonable that a wife should be entitled to protect or salvage her community
interest in a policy on the life of her husband wherein she is named as beneficiary and on which the premiums have
been paid from community funds. In the case of Phoenix Mutual L. Ins. Co. v. Birkelund, 29 Cal. 2d 352 [175 P.2d 5], the
Supreme Court specifically recognizes that the insurable interest of a wife in her husband during the marriage may
continue thereafter to the extent at least of enabling her to protect her existing expectancy as beneficiary at the time of
divorce where this expectancy had been purchased with community funds.

[17] The trial court in a divorce action has broad powers and wide discretion in settling the property rights of the parties.
(Bowman v. Bowman, 29 Cal. 2d 808 [178 P.2d 751]; Scheibe v. Scheibe, 57 Cal. App. 2d 336 [134 P.2d 835].)

[16b] This power is sufficiently extensive to permit an award of alimony within the husband's ability to pay, for the [83
Cal. App. 2d 79] specific purpose of permitting a wife to protect her interest in the community property. This would
encompass the right to protect her expectancy under a life insurance policy wherein her divorced husband is the insured
and she is beneficiary, particularly where the policy has an accrued value purchased by premiums paid from community
funds during the marriage. (Phoenix Mutual L. Ins. Co. v. Birkelund, supra.)

[18] The final point for consideration concerns the trial court's award of alimony in addition to the insurance premium
payments just referred to. This award was in the sum of $75 per month for plaintiff's support and maintenance.
Defendant contends that the trial court abused its discretion in making such an award where the evidence discloses that
the major portion of the community was awarded to plaintiff; that she will have an income of $40 per month from this
property; that she is employed and earns $169 per month; and that defendant is not working and has not worked since
the sale of his grocery business in April, 1946.

According to his own testimony, defendant had only about $500 at the time of trial and had no interest in any property
or estate other than that considered by the trial court here. Plaintiff admitted that she was employed and that her salary
was $169 a month. The fact that she would receive $40 a month as income from the real property awarded by the court
was not disputed. Defendant's position is that in the light of this evidence, the order made by the trial court provided
alimony payments in excess of plaintiff's needs and defendant's ability to pay.

Plaintiff's reply to this contention is that a guilty party cannot avoid the responsibility for payment of alimony by the
simple expedient of avoiding employment, or in other words, refusing to work.

Defendant testified that he was then living in Sonoma and had moved there for his health. He stated that he had
bronchial trouble; that San Francisco was "terrible for it"; and that he had been living in Sonoma for about six months.
He also stated that he was under a doctor's care until he "moved up the country" but had not been since that time and
had only been back to the doctor once. No other showing was made touching upon the state of defendant's health, his
inability to secure employment or to transact business. We must therefore hold that an award of general alimony of $75
per month, plus the additional amounts required to pay the [83 Cal. App. 2d 80] insurance premiums was not an award
in excess of defendant's ability to pay were he to make a reasonable effort. (See Merritt v. Merritt, 220 Cal. 85 [29 P.2d
190].)
There is no testimony in the record directed to plaintiff's need for the alimony award made by the trial court for current
living expenses. There was, however, testimony concerning a balance of $5,814 yet remaining due on the family home in
San Francisco, awarded by the court to plaintiff. In the case of Bowman v. Bowman, supra, the Supreme Court held that
alimony payments ordered to be made for the purpose of paying off a mortgage on a house and lot originally owned by
the husband and wife as joint tenants, but which became the separate property of the wife before divorce by quitclaim
from her husband, were proper. In view of this holding, we cannot say that the testimony here was insufficient to
support an inference that plaintiff was properly in need of the $75 per month awarded for her support and maintenance
which would include safeguarding the real property awarded to her. Such matters rest in the sound discretion of the
trial court. (Scheibe v. Scheibe, supra, Miller v. Superior Court, 9 Cal. 2d 733 [72 P.2d 868]) and will not be disturbed
upon appeal in the absence of a clear showing of an abuse thereof which we hold has not been shown here.

The judgment is affirmed.

Peters, P. J., and Bray, J., concurred.

FN *. Hearing in Supreme Court granted.

SARAO VS. GUEVARRA

Plaintiff and defendant were married and on the same day, plaintiff tried to have carnal knowledge of defendant. The
later showed reluctance and begged him to wait until evening. Although he found the orifice of her vagina sufficiently
large for his organ, she complained of pains in her private part later that night. Plaintiff also noticed oozing of some
purulent matter offensive to the smell coming from defendant’s vagina.

Every attempt to have carnal access to his wife proved to be futile because she always complained of pains in her
genital organs.

Upon the advice of the physician, defendant’s uterus and ovaries were, with consent of the plaintiff removed due to the
presence of a tumor. The removal of said organs rendered defendant incapable of procreation. Plaintiff declared that
from the time he witnessed the operation, he lost all desire to have access with his wife and thus filed this complaint for
annulment of marriage on the ground of impotency.

ISSUE:

WON their marriage can be annulled on the ground of physical impotency.

HELD:

No. Judgment of the Court of First Instance affirmed.

RD:

Plaintiff wants to construe the phrase ‘physically incapable of entering into the married state’ as with the capacity to
procreate. Impotency is not the ability to procreate but the ability to copulate. Defect must be one of copulation and not
of reproduction. Bareness will not invalidate the marriage. The removal of the organs rendered her sterile but it by no
means made her unfit for sexual intercourse. It was the memory of this first unpleasant experience with her that made
him gave up the idea of having carnal knowledge of her. Defendant was not impotent at the time she married the
plaintiff for the existence of tumor did not necessarily render her incapable of copulation. Plaintiff also contends that his
consent of the marriage was procured through fraud in that the defendant did not reveal to him that she was afflicted
with a disease in her sex organs. According to the Court, this contention in untenable since fraud is not alleged in the
complaint and has not been proved at the trial.
 UY VS. MEMORACION

PADILLA VS. HOWARD

VILLANUEVA VS. COURT OF APPEALS

ORLANDO VILLANUEVA, petitioner,

vs.

HON. COURT OF APPEALS and LILIA CANALITA-VILLANUEVA, respondents.

DECISION

YNARES-SANTIAGO, J.:

This petition for review under Rule 45 of the Rules of Court assails the January 26, 1998 Decision1 of the Court of
Appeals in CA-G.R. CV No. 51832, affirming with modification the Decision2 dated January 12, 1996 of the Regional Trial
Court of Valenzuela, Metro Manila, Branch 172 in Civil Case No. 3997-V-92 (a) dismissing petitioner's petition for the
annulment of his marriage to private respondent and (b) ordering him to pay moral and exemplary damages, attorney’s
fees and costs. Also assailed is the March 5, 1998 Resolution3 denying petitioner’s motion for reconsideration.

The antecedent facts are as follows:

Petitioner Orlando Villanueva and private respondent Lilia Canalita-Villanueva got married on April 13, 1988 in Puerto
Princesa, Palawan. On November 17, 1992, Orlando filed with the trial court a petition for annulment of his marriage
alleging that threats of violence and duress forced him into marrying Lilia, who was already pregnant; that he did not get
her pregnant prior to the marriage; that he never cohabited with her after the marriage; and that he later learned that
private respondent's child died during delivery on August 29, 1988.4

In her answer with compulsory counterclaim,5 Lilia prayed for the dismissal of the petition, arguing that petitioner freely
and voluntarily married her; that petitioner stayed with her in Palawan for almost a month after their marriage; that
petitioner wrote letters to her after he returned to Manila, during which private respondent visited him personally; and
that petitioner knew about the progress of her pregnancy, which ended in their son being born prematurely. Private
respondent also prayed for the payment of moral and exemplary damages, attorney’s fees and costs.

On January 12, 1996, the trial court rendered judgment the dispositive portion of which states:

WHEREFORE, judgment is hereby rendered as follows:

1) Dismissing the above-entitled case; and

2) Ordering the plaintiff to pay the defendant moral damages in the amount of P100,000.00, exemplary damages in the
amount of P50,000.00, and attorney's fees in the amount of P20,000.00, plus the costs of suit.

SO ORDERED.6

The Court of Appeals affirmed the trial court’s dismissal of the petition and the award of attorney’s fees and costs, but
reduced the award of moral and exemplary damages to P50,000.00 and P25,000.00, respectively. The Court of Appeals
denied petitioner’s motion for reconsideration, hence, the instant petition for review based on the following assigned
errors:

I. THE RESPONDENT COURT OF APPEALS COMMITTED A GRAVE ABUSE OF DISCRETION IN NOT GRANTING THE
ANNULMENT OF MARRIAGE THE CONSENT OF THE PETITIONER HAVING BEEN OBTAINED BY FRAUD, INTIMIDATION AND
UNDUE AND IMPROPER PRESSURE AND INFLUENCE PLUS THE FACT THAT THERE WAS NO COHABITATION WHATSOEVER
BETWEEN PETITIONER AND PRIVATE RESPONDENT.

II. THE RESPONDENT COURT OF APPEALS COMMITTED GROSS ERROR IN AWARDING MORAL AND EXEMPLARY DAMAGES
AS WELL AS ATTORNEY'S FEES, SAID AWARDS NOT BEING THOSE ALLOWED BY LAW.7

The issues for resolution are (a) whether the subject marriage may be annulled on the ground of vitiated consent; and
(b) whether petitioner should be liable for moral and exemplary damages as well as attorney’s fees and costs.

The petition is partly granted.

Factual findings of the Court of Appeals, especially if they coincide with those of the trial court, as in the instant case, are
generally binding on this Court.8 We affirm the findings of the Court of Appeals that petitioner freely and voluntarily
married private respondent and that no threats or intimidation, duress or violence compelled him to do so, thus –

To begin with, We are at once disturbed by the circumstance that despite the alleged coerced consent which supposedly
characterized his marriage with Lilia on April 13, 1988, it was only on November 17, 1992 or after a span of not less than
four (4) years and eight (8) months when Orlando took serious step to have the same marriage annulled. Unexplained,
the prolonged inaction evidently finds basis in Lilia’s allegation that this annulment suit was filed by Orlando solely in the
hope that a favorable judgment thereon would bolster his defense, if not altogether bring about his acquittal in the
criminal case for bigamy which was then already pending against him. Unfortunately, however, let alone the fact that
the criminal case was admittedly decided ahead with a judgment of conviction against Orlando x x x even the very
outcome of the present case disappointed his expectation. At this late, with his appeal in the bigamy case still pending
with this Court x x x Orlando must be hoping against hope that with a decree of annulment ensuing from this Court, he
may yet secure an acquittal in the same bigamy charge. Viewed in this perspective, the instant appeal is, therefore,
understandable.

But even in terms of merit, the recourse must have to fall.

Appellant anchored his prayer for the annulment of his marriage on the ground that he did not freely consent to be
married to the appellee. He cited several incidents that created on his mind a reasonable and well-grounded fear of an
imminent and grave danger to his life and safety, to wit: the harassing phone calls from the appellee and strangers as
well as the unwanted visits by three men at the premises of the University of the East after his classes thereat, and the
threatening presence of a certain Ka Celso, a supposed member of the New People’s Army whom appellant claimed to
have been hired by appellee and who accompanied him in going to her home province of Palawan to marry her.

The Court is not convinced that appellant’s apprehension of danger to his person is so overwhelming as to deprive him
of the will to enter voluntarily to a contract of marriage. It is not disputed that at the time he was allegedly being
harassed, appellant worked as a security guard in a bank. Given his employment at that time, it is reasonable to assume
that appellant knew the rudiments of self-defense, or, at the very least, the proper way to keep himself out of harm’s
way. For sure, it is even doubtful if threats were indeed made to bear upon appellant, what with the fact that he never
sought the assistance of the security personnel of his school nor the police regarding the activities of those who were
threatening him. And neither did he inform the judge about his predicament prior to solemnizing their marriage.

Appellant also invoked fraud to annul his marriage, as he was made to believe by appellee that the latter was pregnant
with his child when they were married. Appellant’s excuse that he could not have impregnated the appellee because he
did not have an erection during their tryst is flimsy at best, and an outright lie at worst. The complaint is bereft of any
reference to his inability to copulate with the appellee. His counsel also conceded before the lower court that his client
had a sexual relationship with the appellee x x x. He also narrated x x x that sometime in January 1988, he and the
appellee went to a hotel where "the sexual act was consummated, with the defendant on top" x x x.

Instead of providing proofs that he was tricked into marrying his wife, appellant resorted to undermining the credibility
of the latter by citing her testimony that her child was born, and died, on August 29, 1989, a year off from August 29,
1988, the date of fetal death as appearing in the registry of deaths of the Office of the Civil Registrar of Puerto Princesa
City x x x.

To Our mind, appellant cannot make capital of the lapse because it is inconsequential, as there is no controversy
regarding the date of death of appellee’s fetus. Nevertheless, during the continuation of the cross-examination of the
appellee, she declared that her child was prematurely born on August 29, 1988, matching the date in the certification of
the Civil Registrar x x x. The Court is not prepared to disbelieve the appellee and throw overboard her entire testimony
simply on account of her confusion as to the exact date of the death of the fetus, especially when she herself had
presented documentary evidence that put August 29, 1988 as the date her fetus died.

Appellant’s propensity to rely on his perceived weakness of the appellee’s evidence continues in his argument that if
indeed there is truth to her claim that she was impregnated sometime in December 1987, then she could not have a
premature delivery on August 29, 1988, as she had testified during the trial, because the 35-week period of pregnancy is
complete by that time. Whether the appellee’s impression that she had delivered prematurely is correct or not will not
affect the fact that she had delivered a fetus on August 29, 1988. In the light of appellant’s admission that he had a
sexual intercourse with his wife in January 1988, and his failure to attribute the latter’s pregnancy to any other man,
appellant cannot complain that he was deceived by the appellee into marrying her.

Appellant also puts in issue the lower court’s appreciation of the letters allegedly written by him to the appellee. During
his cross-examination, when confronted with thirteen (13) letters, appellant identified the seven (7) letters that he sent
to the appellee, but denied the remaining six (6) x x x. The letters admitted by the appellant contained expressions of
love and concern for his wife, and hardly the rantings of a man under duress. During the re-direct examination, however,
appellant suddenly changed mind and denied authorship of those seven (7) letters, claiming that he was forced to admit
them because he was threatened with harm by the appellee. If he was laboring under duress when he made the
admission, where did he find the temerity to deny his involvement with the remaining six (6) letters? The recantation
can only be motivated by a hindsight realization by the appellant of the evidentiary weight of those letters against his
case.

As to the second assignment of error, appellant cannot claim that his marriage should be annulled due to the absence of
cohabitation between him and his wife. Lack of cohabitation is, per se, not a ground to annul a marriage. Otherwise, the
validity of a marriage will depend upon the will of the spouses who can terminate the marital union by refusing to
cohabitate. The failure to cohabit becomes relevant only if it arises as a result of the perpetration of any of the grounds
for annulling the marriage, such as lack of parental consent, insanity, fraud, intimidation, or undue influence x x x. Since
the appellant failed to justify his failure to cohabit with the appellee on any of those grounds, the validity of his marriage
must be upheld.9

We also agree that private respondent is entitled to attorney’s fees. Article 2208 (11) of the Civil Code provides that
attorney’s may be awarded where the court deems it just and equitable under the circumstances, as in the instant case.

We, however, delete the award of moral and exemplary damages for lack of factual and legal basis. There is nothing in
the records or in the appealed decision that would support an award of moral damages. In justifying the award, the
Court of Appeals merely said thus:

It is not difficult to imagine the suffering of the appellee from the baseless portrayal of her by the appellant as the
perpetrator of fraudulent schemes to trap an unwilling mate. x x x10

However, the aforesaid finding is only a supposition as it has no reference to any testimony of private respondent
detailing her alleged physical suffering, mental anguish, fright, serious anxiety, besmirched reputation, wounded
feelings, moral shock, social humiliation, and similar injury as would entitle her to moral damages.

In Mahinay v. Velasquez, Jr.,11 we held that:

In order that moral damages may be awarded, there must be pleading and proof of moral suffering, mental anguish,
fright and the like. While respondent alleged in his complaint that he suffered mental anguish, serious anxiety, wounded
feelings and moral shock, he failed to prove them during the trial. Indeed, respondent should have taken the witness
stand and should have testified on the mental anguish, serious anxiety, wounded feelings and other emotional and
mental suffering he purportedly suffered to sustain his claim for moral damages. Mere allegations do not suffice; they
must be substantiated by clear and convincing proof. No other person could have proven such damages except the
respondent himself as they were extremely personal to him.

As private respondent is not entitled to moral damages, a fortiori, she is not entitled to exemplary damages. This is clear
in Article 2234 of the Civil Code, which provides:

ART. 2234. While the amount of the exemplary damages need not be proved, the plaintiff must show that he is entitled
to moral, temperate or compensatory damages before the court may consider the question of whether or not
exemplary damages should be awarded. In case liquidated damages have been agreed upon, although no proof of loss is
necessary in order that such liquidated damages may be recovered, nevertheless, before the court may consider the
question of granting exemplary in addition to the liquidated damages, the plaintiff must show that he would be entitled
to moral, temperate or compensatory damages were it not for the stipulation for liquidated damages.

Hence, exemplary damages is allowed only in addition to moral damages such that no exemplary damages can be
awarded unless the claimant first establishes his clear right to moral damages.12 In the instant case, private respondent
failed to satisfactorily establish her claim for moral damages, thus she is not likewise entitled to exemplary damages.

WHEREFORE, the petition is PARTLY GRANTED. The January 26, 1998 Decision of the Court of Appeals in CA-G.R. CV No.
51832 affirming with modification the January 12, 1996 Decision of the Regional Trial Court of Valenzuela, Metro Manila,
Branch 172 in Civil Case No. 3997-V-92 dismissing petitioner’s petition for the annulment of his marriage with private
respondent, is AFFIRMED. However, the award of moral and exemplary damages is DELETED for lack of basis.

SO ORDERED.

DE LORIA VS. FELIX

ARSENIO DE LORIA AND RICARDA DE LORIA, PETITIONERS, VS. FELIPE APELAN FELIX, RESPONDENT.

DECISION

BENGZON, J.:

Review of a decision of the Court of Appeals, involving the central issue of the validity of the marriage in articulo mortis
between. Matea de la Cruz and Felipe Apelan Felix.

It appears that long before, and during the War of the Pacific, these two persons lived together as wife and husband at
Cabrera Street, Pasay City. They acquired properties but had no children. In the early part of the liberation of Manila and
surrounding territory, Matea became seriously ill. Knowing her critical condition, two young ladies of legal age dedicated
to the service of God, named Carmen Ordiales and Judith Vizcarra[1] visited and persuaded her to go to confession. They
fetched Father Gerardo Bautista, Catholic parish priest of Pasay. The latter, upon learning that the penitent had been
living with Felipe Apelan Felix without benefit of marriage, asked both parties to ratify their union according to the rites
of his Church. Both agreed. Whereupon the priest heard the confession of the bedridden old woman, gave her Holy
Communion, administered the Sacrament of Extreme Unction and then solemnized her marriage with Felipe Apelan
Felix in articilo mortis,[2] Carmen Ordiales and Judith Vizcarra acting as sponsors or witnesses. It was then January 29 or
30, 1945.

After a few months, Matea recovered from her sickness; but death was not to be denied, and in January 1946, she was
interred in Pasay, the same Fr. Bautista performing the burial ceremonies
On May 12, 1952, Arsenio de Loria and Ricarda de Loria filed this complaint to compel defendant to render an
accounting and to deliver the properties left by the deceased. They are grandchildren of Adriana de la Cruz, sister of
Matea, and claim to be the only surviving forced heirs of the latter. Felipe Apelan Felix resisted the action, setting up his
rights as widower. They obtained favorable judgment in the court of first instance, but on appeal the Court of Appeals
reversed and dismissed the complaint.

Their request for review here was given due course principally to consider the legal question-which they amply
discussed in their petition and printed brief whether the events which took place in January 1945 constituted, in the
eyes of the law, a valid and binding marriage.

"There is no doubt at all in the mind of this Court, that Fr. Gerardo Bautista, solemnized the marriage in articulo mortis
of Defendant Apelan Felix and Matea de la Cruz, on January 29 and 30, 1945, under the circumstances set forth in the
reverend's testimony in court. Fr. Bautista, a respectable old priest of Pasay City then, had no reason to side one or the
other. * * * Notwithstanding this positive evidence on. the celebration or performance of the marriage in question,
Plaintiffs-Appellees contend that that the same was not in articulo mortis, because Matea de la Cruz was not then on the
point of death. Fr. Bautista clearly testified, however, that her condition at the time was bad; she was bedridden; and
according to his observation, she might die at any moment (Exhibit 1), so apprehensive was he about her condition that
he decided in administering to her the sacrament of extreme unction, after hearing her confession, x x x .The greatest
objection of the Appellees and the trial court against the validity of the marriage tinder consideration, is the admitted
fact that it was not registered.'

The applicable legal provisions are contained in the Marriage Law of 1929 (Act No. 3613) as amended by Commonwealth
Act No. 114 (Nov. 1936) specially sections 1, 3, 20 and 21. There is no question about the officiating priest's authority to
solemnize marriage.

There is also no question that the parties had legal capacity to contract marriage, and that both declared before Fr.
Bautista and Carmen Ordiales and Judith Vizcarra that "they took each other as husband and wife."

The appellants' contention of invalidity rests on these propositions:

(a)

There was no "marriage contract" signed by the wedded couple the witnesses and the priest, as required by section 3 of
the Marriage Law; and

(b)

The priest filed no affidavit, nor recorded the marriage with the local civil registry.

The factual basis of the first proposition no signing may seriously be doubted. The Court of Appeals made no finding
thereon. Indeed if anything, its decision impliedly held such marriage contract to have been executed, since it said "the
marriage in articulo mortis was a fact", and the only question at issue was whether "the failure of Fr. Bautista to send
copies of the certificate of marriage in question to the Local Civil Registrar and to register the said marriage in the
Record of Marriages of the Pasay Catholic Church * * * renders the said marriage invalid." And such was the only issue
tendered in the court of first instance. (See p. 14, 34, Record on Appeal.)

However, we may as well face this second issue: Does the failure to sign the "marriage certificate or contract" constitute
a cause for nullity?

Marriage contract is the "instrument in triplicate" mentioned in sec. 3 of the Marriage Law which provides:

"Sec.3. Mutual Consent. No particular form for the ceremony of marriage is required, but the parties with legal capacity
to contract marriage must declare, in the presence of the person solemnizing the marriage and of two witnesses of legal
age, that they take each other as husband and wife. This declaration shall be set forth in an instrument in triplicate,
signed by signature or mark by the contracting parties and said two witnesses and attested by the person solemnizing
the marriage. * * *." (Italics ours).

In the first place, the Marriage Law itself, in sections 28, 29 and 30 enumerates the causes for annulment of marriage.
Failure to sign the marriage contract is not one of them.

In the second place, bearing in mind that the "essential requisites for marriage are the legal capacity of the contracting
parties and their consent" (section 1), the latter being manifested by the declaration of "the parties" "in the presence of
the person solemnizing the marriage and of two witnesses of legal age that they take each other as husband and wife"
which in this case actually occurred.[3] We think the signing of the marriage contract or certificate was required by the
statute simply for the purpose of evidencing the act.[4] No statutory provision or court ruling has been cited making it
an essential requisite not the formal requirement of evidentiary value, which we believe it is. The fact of marriage is one
thing; the proof by which it may be established is quite another.

"Certificate and Record. Statutes relating to the solemnization of marriage usually provide for the issuance of a
certificate of marriage and for the registration or recording of marriage * * * Generally speaking, the registration or
recording of a marriage is not essential to its validity, the statute being addressed to the officials issuing the license,
certifying the marriage, and making the proper return and registration or recording." (Sec. 27 American Jurisprudence
"Marriage" p. 197-198.)

"Formal Requisites. * * *The general rule, however, is that statutes which direct that a license must be issued and
procured, that only certain persons shall perform the ceremony, that a certain number of witnesses shall be present,
that a certificate of the marriage shall be signed, returned, and recorded, and that persons violating the conditions shall
be guilty of a criminal offense, are addressed to persons in authority to secure publicity and to require a record to be
made of the marriage contract. Such statutes do not void common-law marriages unless they do so expressly, even
where such marriage are entered into without obtaining a license and are not recorded. It is the purpose of these
statutes to discourage deception and seduction, prevent illicit intercourse under the guise of matrimony, and relieve
from doubt the status of parties who live together as man and wife, by providing competent evidence of the marriage. *
* *." (Section 15 American Jurisprudence "Marriage" pp. 188-189.) Italics Ours. (See also Corpus Juris Secundum
"Marriage" Sec. 33.)

And our law says, "no marriage shall be declared invalid because of the absence of one or several formal requirements
of this Act * * *." (Section 27.)

In the third place, the law, imposing on the priest the duty to furnish to the parties copies of such marriage certificate
(section 16) and punishing him for its omission (section 41) implies his obligation to see that such "certificate" is
executed accordingly. Hence, it would not be fair to visit upon the wedded couple in the form of annulment, Father
Bautista's omission, if any, which apparently had been caused by the prevailing disorder during the liberation of Manila
and its environs.

Identical remarks apply to the priest's failure to make and file the affidavit required by sections 20 and 21. It was the
priest's obligation; non-compliance with it, should bring no serious consequences lo the married pair, specially where as
in this case, it was caused by the emergency.

"The mere fact that the parish priest who married the plaintiff's natural father and mother, while the latter was in
articulo mortis, failed to send a copy of the marriage certificate to the municipal secretary, does not invalidate said
marriage, since it does not appear that in the celebration thereof all requisites for its validity were not present, the
forwarding of a copy of the marriage certificate not being one of the requisites." (Jones vs. Hortiguela, 64 Phil. 179.) See
also Madridejo vs. De Leon, 55 Phil. 1.

The law permits in articulo mortis marriages, without marriage license; but it requires the priest to make the affidavit
and file it. Such affidavit contains the data usually required for the issuance of a marriage license. The first practically
substitutes the latter. Now then, if a marriage celebrated without the license is not voidable (under Act 3613),[5] this
marriage should not also be voidable for lack of such affidavit.

In line with the policy to encourage the legalization of the union of men and women who have lived publicly in a state of
concubinage [6], (section 22), we must hold this marriage to be valid.

The widower, needless to add, has better rights to the estate of the deceased than the plaintiffs who are the
grandchildren of her sister Adriana. "In the absence of brothers or sisters and of nephews, children of the former, * * *
the surviving spouse * * * shall succeed to the entire estate of the deceased." (Art 952, Civil Code.)

Wherefore, the Court of Appeals' decision is affirmed, with costs. So ordered.

Paras, C. J., Montemayor, Reyes, A., Bautista Angelo, Concepcion, Reyes, J. B. L., Endencia, and Felix, JJ., concur.

THE FAMILY CODE OF THE PHILIPPINES

TITLE I

MARRIAGE

Chapter 1. Requisites of Marriage

Art. 1. Marriage is a special contract of permanent union between a man and a woman entered in accordance with law
for the establishment of conjugal and family life. It is the foundation of the family and an inviolable social institution
whose nature, consequences, and incidents are governed by law and not subject to stipulation, except that marriage
settlements may fix the property relations during the marriage within the limits provided by this Code. (52a)

Art. 2. No marriage shall be valid, unless these essential requisites are present:

(1) Legal capacity of the contracting parties who must be a male and a female; and

(2) Consent freely given in the presence of the solemnizing officer. (53a)

Art. 5. Any male or female of the age of eighteen years or upwards not under any of the impediments mentioned in
Articles 37 and 38, may contract marriage. (54a)

Art. 6. No prescribed form or religious rite for the solemnization of the marriage is required. It shall be necessary,
however, for the contracting parties to appear personally before the solemnizing officer and declare in the presence of
not less than two witnesses of legal age that they take each other as husband and wife. This declaration shall be
contained in the marriage certificate which shall be signed by the contracting parties and their witnesses and attested by
the solemnizing officer.

Art. 26. All marriages solemnized outside the Philippines, in accordance with the laws in force in the country where they
were solemnized, and valid there as such, shall also be valid in this country, except those prohibited under Articles 35
(1), (4), (5) and (6), 3637 and 38. (17a)

Art. 36. A marriage contracted by any party who, at the time of the celebration, was psychologically incapacitated to
comply with the essential marital obligations of marriage, shall likewise be void even if such incapacity becomes
manifest only after its solemnization. (As amended by Executive Order 227)

Art. 37. Marriages between the following are incestuous and void from the beginning, whether relationship between the
parties be legitimate or illegitimate:

(1) Between ascendants and descendants of any degree; and

(2) Between brothers and sisters, whether of the full or half blood. (81a)
Art. 38. The following marriages shall be void from the beginning for reasons of public policy:

(1) Between collateral blood relatives whether legitimate or illegitimate, up to the fourth civil degree;

(2) Between step-parents and step-children;

(3) Between parents-in-law and children-in-law;

(4) Between the adopting parent and the adopted child;

(5) Between the surviving spouse of the adopting parent and the adopted child;

(6) Between the surviving spouse of the adopted child and the adopter

(7) Between an adopted child and a legitimate child of the adopter;

(8) Between adopted children of the same adopter; and

(9) Between parties where one, with the intention to marry the other, killed that other person's spouse, or his or her
own spouse. (82)

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

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

For the purpose of contracting the subsequent marriage under the preceding paragraph the spouse present must
institute a summary proceeding as provided in this Code for the declaration of presumptive death of the absentee,
without prejudice to the effect of reappearance of the absent spouse. (83a)

Art. 45. A marriage may be annulled for any of the following causes, existing at the time of the marriage:

(1) That the party in whose behalf it is sought to have the marriage annulled was eighteen years of age or over but
below twenty-one, and the marriage was solemnized without the consent of the parents, guardian or person having
substitute parental authority over the party, in that order, unless after attaining the age of twenty-one, such party freely
cohabited with the other and both lived together as husband and wife;

(2) That either party was of unsound mind, unless such party after coming to reason, freely cohabited with the other as
husband and wife;

(3) That the consent of either party was obtained by fraud, unless such party afterwards, with full knowledge of the facts
constituting the fraud, freely cohabited with the other as husband and wife;

(4) That the consent of either party was obtained by force, intimidation or undue influence, unless the same having
disappeared or ceased, such party thereafter freely cohabited with the other as husband and wife;

(5) That either party was physically incapable of consummating the marriage with the other, and such incapacity
continues and appears to be incurable; or

(6) That either party was afflicted with a sexually-transmissible disease found to be serious and appears to be incurable.
(85a)

Art. 46. Any of the following circumstances shall constitute fraud referred to in Number 3 of the preceding Article:

(1) Non-disclosure of a previous conviction by final judgment of the other party of a crime involving moral turpitude;
(2) Concealment by the wife of the fact that at the time of the marriage, she was pregnant by a man other than her
husband;

(3) Concealment of sexually transmissible disease, regardless of its nature, existing at the time of the marriage; or

(4) Concealment of drug addiction, habitual alcoholism or homosexuality or lesbianism existing at the time of the
marriage.

No other misrepresentation or deceit as to character, health, rank, fortune or chastity shall constitute such fraud as will
give grounds for action for the annulment of marriage. (86a)