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Republic of the Philippines

SUPREME COURT
Manila

EN BANC

A.M. No. 02-11-11-SC March 4, 2003

RE: PROPOSED RULE ON LEGAL SEPARATION

RESOLUTION

Acting on the letter of the Chairman of the Committee on Revision of the Rules of Court submitting for this
Court's consideration and approval the Proposed Rule on Legal Separation, the Court Resolved to APPROVED the
same.

The Rule shall take effect on March 15, 2003 following its publication in a newspaper of general circulation not
later than March 7, 2003

March 4, 2003

Davide Jr. C.J., Bellosillo, Puno, Vitug, Mendoza, Panganiban, Quisumbing, Sandoval Gutierrez, Carpio, Austria-
Martinez, Carpio-Morales, Callejo, Sr. and Azcuna, JJ.
Ynares-Santiago, on leave,
Corona, officially on leave.

RULE ON LEGAL SEPARATION

Section 1. Scope. - This Rule shall govern petitions for legal separation under the Family Code of the Philippines.

The Rules of Court shall apply suppletorily.

Section 2. Petition. - (a) Who may and when to file. - (1) A petition for legal separation may be filed only by the
husband or the wife, as the case may be within five years from the time of the occurrence of any of the following
causes:

(a) Repeated physical violence or grossly abusive conduct directed against the petitioner, a common
child, or a child of the petitioner;

(b) Physical violence or moral pressure to compel the petitioner to change religious or political
affiliation;

(c) Attempt of respondent to corrupt or induce the petitioner, a common child, or a child of the
petitioner, to engage in prostitution, or connivance in such corruption or inducement;

(d) Final judgment sentencing the respondent to imprisonment of more than six years, even if
pardoned;

(e) Drug addiction or habitual alcoholism of the respondent;

(f) Lesbianism or homosexuality of the respondent;

(g) Contracting by the respondent of a subsequent bigamous marriage, whether in or outside the
Philippines;

(h) Sexual infidelity or perversion of the respondent;

(i) Attempt on the life of petitioner by the respondent; or


(j) Abandonment of petitioner by respondent without justifiable cause for more than one year.

(b) Contents and form. - The petition for legal separation shall:

(1) Allege the complete facts constituting the cause of action.

(2) State the names and ages of the common children of the parties, specify the regime governing
their property relations, the properties involved, and creditors, if any. If there is no adequate
provision in a written agreement between the parties, the petitioner may apply for a provisional order
for spousal support, custody and support of common children, visitation rights, administration of
community or conjugal property, and other similar matters requiring urgent action,

(3) Be verified and accompanied by a certification against forum shopping. The verification and
certification must be personally signed by the petitioner. No petition may be filed solely by counsel or
through an attorney-in-fact. If the petitioner is in a foreign country, the verification and certification
against forum shopping shall be authenticated by the duly authorized officer of the Philippine
embassy or legation, consul general, consul or vice-consul or consular agent in said country

(4) Be filed in six copies. The petitioner shall, within five days from such filing, furnish a copy of the
petition to the City or Provincial Prosecutor and the creditors, if any, and submit to the court proof of
such service within the same period.

Failure to comply with the preceding requirements may be a ground for immediate dismissal of
the petition.

(c) Venue. - The petition shall be filed in the Family Court of the province or city where the petitioner or the
respondent has been residing for at least six months prior to the date of filing "or in The case of a non-
resident respondent, where he may be found in the Philippines, at the election of the petitioner.

Section 3. Summons. - The service of summons shall be governed by Rule 14 of the Rules of Court and by the
following rules:

(a) Where the respondent cannot be located at his given address or his whereabouts are unknown and cannot
be ascertained by diligent inquiry, service of summons may, by leave of court, be effected upon him by
publication once a week for two consecutive weeks in a newspaper of general circulation in the Philippines
and in such place as the court may order. In addition, a copy of the summons shall be served on respondent
at his last known address by registered mail or by any other means the court may deem sufficient.

(b) The summons to be published shall be contained in an order of the court with the following data; (1) title
of the case; (2) docket number; (3) nature of the petition; (4) principal grounds of the petition and the reliefs
prayed for, and (5) a directive for respondent to answer within thirty days from the last issue of publication.

Section 4. Motion to Dismiss. - No motion to dismiss the petition shall be allowed except on the ground of lack of
jurisdiction over the subject matter or over the parties; provided, however, that any other ground that might warrant
a dismissal of the case may be raised as an affirmative defense in an answer.

Section 5. Answer. - (a) The respondent shall file his answer within fifteen days from receipt of summons, or within
thirty days from the last issue of publication in case of service of summons by publication. The answer must be
verified by respondent himself and not by counsel or attorney-in-fact.

(b) If the respondent fails to file an answer, the court shall not declare him in default.

(c) Where no answer is filed/or if the answer does not tender an issue the court shall order the public
prosecutor to investigate whether collusion exists between the parties.

Section 6. Investigation Report of Public Prosecutor. - (a) Within one one month after receipt of the court order
mentioned in paragraph (c) of the preceeding section, the public prosecutor shall submit a report to the court on
whether the parties are in collusion and serve copies on the parties and their respective counsels, if any.

(b) If the public prosecutor finds that collusion exists, he shall state the basis thereof in his report. The
parties shall file their respective comments on the finding of collusion within ten days from receipt of copy of
the report. The court shall set the report for hearing and if convinced that parties are in collusion,-it shall
dismiss the petition.
(c) If the public prosecutor reports that no collusion exists, the court shall set the case for pre-trial. It shall be
the duty of the public prosecutor to appear for the State at the pre-trial.

Section 7. Social Worker. - The court may require a social worker to conduct a case study and to submit the
corresponding report at least three days before the pre-trial. The court may also require a case study at any stage of
the case whenever necessary,

Section 8. Pre-trial. -

(a) Pre-trial mandatory.-A pre-trial is mandatory. On motion or motu proprio, the court shall set the pre-trial
after the last pleading has been served and filed, or upon receipt of the report of the public prosecutor that
no collusion exists between the parties on a date not earlier than six months from date of the filing of the
petition.

(b) Notice of Pre-trial.-(1) The notice of pre-trial shall contain:

(a) the date of pre-trial conference; and

(b) an order directing the parties to file and serve their respective pre-trial briefs in such
manner as shall ensure the receipt thereof by the adverse party at least three days before the
date of pre-trial.

(2) The notice shall be served separately on the parties and their respective counsels as well as on
the public prosecutor. It shall be their duty to appear personally at the pre-trial.

(3) Notice of pre-trial shall be sent to the respondent even if he fails to file an answer. In case of
summons by publication and the respondent failed to file his answer, notice of pre-trial shall be sent
to respondent at his last known address.

Section 9. Contents of pre-trial brief. - The pre-trial brief shall contain the following:

(1) A statement of the willingness of the parties to enter into agreements as may be allowed by law,
indicating the desired terms thereof;

(2) A concise statement of their respective claims together with the applicable laws and authorities;

(3) Admitted facts and proposed stipulations of facts, as well as the disputed factual and legal issues;

(4) All the evidence to be presented, including expert opinion, if any, briefly stating or describing the nature
and purpose thereof;

(5) The number and names of the witnesses and their respective affidavits; and

(6) Such other matters as the court may require.

Failure to file the pre-trial brief or to comply with its required contents shall have the same effect as failure to
appear at the pre-trial under the succeeding section.

Section 10. Effect of failure to appear at the pre-trial. - (1) If the petitioner fails to appear personally, the case shall
be dismissed unless his counsel or a duly authorized representative appears in court and proves a valid excuse for
the non-appearance of the petitioner.

(2) If the respondent filed his answer but fails to appear, the court shall proceed with the pre-trial and require
the public prosecutor to investigate the non-appearance of the respondent and submit within fifteen days a
report to the court stating whether his non-appearance is due to any collusion between the parties/ If there is
no collusion the court shall require the public prosecutor to intervene for the State during the trial on
the.merits to prevent suppression or fabrication of evidence.

Section 11. Pre-trial conference. - At the pre-trial conference, the court may refer the issues to a mediator who shall
assist the parties in reaching an agreement on matters not prohibited by law.
The mediator shall render a report within one month from referral which, for good reasons, the court may
extend for a period not exceeding one month.

In case mediation is not availed of or where it fails, the court shall proceed with the pre-trial conference, on
which occasion it shall consider the advisability of receiving expert testimony and such other matters as may aid in
the prompt disposition of the petition.

Section 12. Pre-trial order. - (a) The proceedings in the pre-trial shall be recorded. Upon termination of the pre-trial,
the court shall issue a pre-trial order which shall recite in detail the matters taken up in the conference, the action
taken thereon, the amendments allowed on the pleadings, and, except as to the ground of legal separation, the
agreements or admissions made by the parties on any of the matters considered, including any provisional order that
may be necessary or agreed upon by the parties.

(b) Should the action proceed to trial, the order shall contain a recital of the following:

(1) Facts undisputed, admitted, and those which need not be proved subject to Section 13 of this
Rule;

(2) Factual and legal issues to be litigated;

(3) Evidence, including objects and documents, that have been marked and will be presented;

(4) Names of witnesses who will be presented and their testimonies in the form of affidavits; and

(5) Schedule of the presentation of evidence.

The pre-trial order shall also contain a directive to the public prosecutor to appear for the State and
take steps to prevent collusion between the parties at any stage of the proceedings and fabrication or
suppression of evidence during the trial on the merits.

(c) The parties shall not be allowed to raise issues or present witnesses and evidence other than those stated
in the pre-trial order. The order shall control the trial of the case unless modified by the court to prevent
manifest injustice.

(d) The parties shall have five days from receipt of the pre-trial order to propose corrections or modifications.

Section 13. Prohibited compromise. - The court shall not allow compromise on prohibited matters, such as the
following:

(1) The civil status of persons;

(2) The validity of a marriage or of a legal separation;

(3) Any ground lor legal separation;

(4) Future support;

(5) The jurisdiction of courts; and

(6) Future legitime.

Section 14. Trial. - (a) The presiding judge shall personally conduct the trial of the case. No delegation of the
reception of evidence to a commissioner shall be allowed except as to matters involving property relations of the
spouses.

(b) The grounds for legal separation must be proved. No judgment on the pleadings, summary judgment, or
confession of judgment shall be allowed.

(c) The court may order the exclusion from the courtroom of all persons, including members of the press,
who do not have a direct interest in the case. Such an order may be made if the court determines on the
record othat requiring a party to testify in open court would not enhance the ascertainment of truth; would
cause to the party psychological harm or inability to effectively communicate due to embarrassment, fear, or
timidity; would violate the party's right to privacy; or would be offensive to decency

(d) No copy shall be taken nor any examination or perusal of the records of the case or parts thereof be made
by any person other than a party or counsel of a party, except by order of the court.

Section 15. Memoranda. - The court may require the parties and the public prosecutor to file their respective
memoranda in support of their claims within fifteen days from the date the trial is terminated. No other pleadings or
papers may be submitted without leave of court. After the lapse of the period herein provided, the case will be
considered submitted for decision, with or without the memoranda.

Section 16. Decision. - (a) The court shall deny the petition on any of the following grounds:

(1) The aggrieved party has condoned the offense or act complained of or has consented to the
commission of the offense or act complained of;

(2) There is connivance in the commission of the offense-or act constituting the ground for legal
separation;

(3) Both parties have given ground for legal separation;

(4) There is collusion between the parties to obtain the decree of legal separation; or

(5) The action is barred by prescription.

(b) If the court renders a decision granting the petition, it shall declare therein that the Decree of Legal
Separation shall be issued by the court only after full compliance with liquidation under the Family Code.

However, in the absence of any property of.the parties, the court shall forthwith issue a Decree of
Legal Separation which shall be registered in the Civil Registry where the marriage was recorded and in the
Civil Registry where the Family Court granting the legal separation is located.

(c) The decision shall likewise declare that:

(1) The spouses are entitled to live separately from each other but the marriage bond is not severed;

(2) The obligation of mutual support between the spouses ceases; and

(3) The offending spouse is disqualified from inheriting from the innocent spouse by intestate
succession, and provisions in favor of the offending spouse made in the will of the innocent spouse
are revoked by operation of law.

(d) The parties, including the Solicitor General and the public prosecutor, shall be served with copies of the
decision personally or by registered mail. If the respondent summoned by publication failed to appear in the
action, the dispositive part of the decision shall also be published once in a newspaper of general circulation.

Section 17. Appeal. -

(a) Pre-condition. - No appeal from the decision shall be allowed unless the appellant has filed a motion for
reconsideration or new trial within fifteen days from notice of judgment.

(b) Notice of Appeal - An aggrieved party or the Solicitor General may appeal from the decision by filing a
Notice of Appeal within fifteen days from notice of denial of the motion for reconsideration or new trial. The
appellant shall serve a copy of the notice of appeal upon the adverse parties.

Section 18. Liquidation, partition and distribution, custody, and support of minor children. - Upon entry of the
judgment granting the petition, or, in case of appeal, upon receipt of the entry of judgment of the appellate court
granting the petition, the Family Court, on motion of either party, shall proceed with the liquidation, partition and
distribution of the properties of the spouses, including custody and support of common children, under the Family
Code unless such matters had been adjudicated in previous judicial proceedings.
Section 19. Issuance of Decree of Legal Separation. - (a) The court shall issue the Decree of Legal Separation after:

(1) registration of the entry of judgment granting the petition tor legal separation in the Civil Registry
where the marriage was celebrated and in the Civil Registry where the Family Court is located; and

(2) registration of the approved partition and distribution of the properties of the spouses, in the
proper Register of Deeds where the real properties are located.

(b) The court shall quote in the Decree the dispositive portion of the judgment entered and attach to the
Decree the approved deed of partition.

Section 20. Registration and publication of the Decree of Legal Separation; decree as best evidence. -

(a) Registration of decree.-The prevailing party shall cause the registration of the Decree in the Civil Registry
where the marriage was registered, in the Civil Registry of the place where the Family Court is situated, and
in the National Census and Statistics Office. He shall report to the court compliance with this requirement
within thirty days iron receipt of the copy of the Decree.

(b) Publication of decree.-- In case service of summons was made by publication, the parties shall cause the
publication of the Decree once in a newspaper of general circulation.

(c) Best evidence.-The registered Decree shall be the best evidence to prove the legal separation of the
parties and shall serve as notice to third persons concerning the properties of petitioner and respondent.

Section 21. Effect of death of a party; duty of the Family Court or Appellate Court. - (a) In case a party dies at any
stage of me proceedings before the entry of judgment, the court shall order the case closed and terminated without
prejudice to the settlement of estate proper proceedings in the regular courts.

(b) If the party dies after the entry of judgment, the same shall be binding upon the parties and their
successors in interest in the settlement of the estate in the regular courts.

Section 22. Petition for revocation of donations. - (a) Within five (5) years from the date the decision granting the
petition for legal separation has become final, the innocent spouse may file a petition under oath the same
proceeding for legal separation to revoke the donations in favor of the offending spouse.

(b)The revocation of the donations shall be recorded in the Register of Deeds of Deeds in the places where
the properties are located.

(c)Alienations, liens, and encumbrances registered in good faith. before the recording of the petition for
revocation in the registries of property shall be respected.

(d)After the issuance of the Decree of Legal Separation, the innocent spouse may revoke the designation of
the offending spouse as a beneficiary in any insurance policy even if such designation be stipulated as
irrevocable. The revocation or change shall take effect upon written notification thereof to the insurer.

Section 23. Decree of Reconciliation. - (a) If the spouses had reconciled, a joint manifestation under oath, duly
signed by the spouses, may be filed in the same proceeding for legal separation.

(b) If the reconciliation occurred while the proceeding for legal separation is pending, the court shall
immediately issue an order terminating the proceeding.

(c) If the reconciliation occurred after the rendition of the judgment granting the petition for legal separation
but before the issuance of the Decree, the spouses shall express in their manifestation whether or not they
agree to revive the former regime of their property relations or choose a new regime.

The court shall immediately issue a Decree of Reconciliation declaring that the legal separation
proceeding is set aside and specifying the regime of property relations under which the spouses shall be
covered.

(d) If the spouses reconciled after the issuance of the Decree, the court, upon proper motion, shall issue a
decree of reconciliation declaring therein that the Decree is set aside but the separation of property and any
forfeiture of the share of the guilty spouse already effected subsists, unless the spouses have agreed to revive
their former regime of property relations or adopt a new regime.

(e) In case of paragraphs (b), (c), and (d). if the reconciled spouses choose to adopt a regime of property
relations different from that which they had prior to the filing of the petition for legal separation, the spouses
shall comply with Section 24 hereof.

(f) The decree of reconciliation shall be recorded in the Civil Registries where the marriage and the Decree
had been registered.

Section 24. Revival of property regime or adoption of another. -

(a) In case of reconciliation under Section 23, paragraph (c) above, the parties shall file a verified motion for
revival of regime of property relations or the adoption of another regime of property relations in the same
proceeding for legal separation attaching to said motion their agreement for the approval of the court.

(b) The agreement which shall be verified shall specify the following:

(1) The properties to be contributed to the restored or new regime;

(2) Those to be retained as separate properties of each spouse; and

(3) The names of all their known creditors, their addresses, and the amounts owing to each.

(c) The creditors shall be furnished with copies of the motion and the agreement.

(d) The court shall require the spouses to cause the publication of their verified motion for two consecutive
weeks in a newspaper of general circulation.

(e) After due hearing, and the court decides to grant the motion, it shall issue an order directing the parties
to record the order in the proper registries of property within thirty days from receipt of a copy of the order
and submit proof of compliance within the same period.

Section 25. Effectivity. - This Rule shall take effect on March 15,2003 following its publication in a newspaper of
general circulation not later than March 7, 2003.
Supreme Court of the Philippines children within 15 days from receipt of the decision.

SECOND DIVISION Thereafter, petitioner filed an urgent ex-parte motion


to modify said decision, while respondent filed a
G.R. No. 132592, January 23, 2002 Notice of Appeal.

AIDA P. BAÑEZ, PETITIONER, VS. GABRIEL B. The trial court granted petitioner Aida Banez’ urgent
BAÑEZ, RESPONDENT. ex-parte motion to modify the decision on October 1,
1996 by approving the Commitment of Fees dated
[G.R. No. 133628. January 23, 2002] December 22, 1994; obliging petitioner to pay as
attorney’s fees the equivalent of 5% of the total value
AIDA P. BAÑEZ, PETITIONER, VS. GABRIEL B. of respondent’s ideal share in the net conjugal assets;
BAÑEZ, RESPONDENT. and ordering the administrator to pay petitioner’s
counsel, Atty. Adelino B. Sitoy, the sum of P100,000 as
DECISION advance attorney’s fees chargeable against the
aforecited 5%.[4]
QUISUMBING, J.:

In another motion to modify the decision, petitioner


These two petitions stem from the decision[1] dated
Aida Bañez sought moral and exemplary damages, as
September 23, 1996 of the Regional Trial Court of
well as litigation expenses. On October 9, 1996, she
Cebu, Branch 20, in Civil Case No. CEB-16765. The
filed a motion for execution pending appeal.
first[2] seeks the reversal of the Court of Appeals’
Respondent Gabriel Bañez filed a consolidated written
decision dated March 21, 1997, setting aside the
opposition to the two motions, and also prayed for the
orders dated October 1 and November 22, 1996 of the
reconsideration of the October 1, 1996 order.
Regional Trial Court. The second[3] prays for the
reversal of the resolution dated February 10, 1998, of
On November 22, 1996, the trial court denied Aida’s
the Court of Appeals in CA-G.R. No. CV-56265,
motion for moral and exemplary damages and
denying the motion to dismiss.
litigation expenses but gave due course to the
execution pending appeal. Thus:
The antecedent facts, as gathered from the parties’
WHEREFORE, in view of all the foregoing premises,
pleadings, are as follows:
the petitioner’s motion to modify decision is hereby
ordered denied. But, petitioner’s motion for execution
On September 23, 1996, the Regional Trial Court of
of decision pending appeal is hereby granted.
Cebu, Branch 20, decided Civil Case No. CEB-16765,
Consequently, let a writ of execution be issued in this
decreeing among others the legal separation between
case to enforce the decision for (1) respondent to
petitioner Aida Bañez and respondent Gabriel Bañez
vacate the premises of the small residential house
on the ground of the latter’s sexual infidelity; the
situated in Maria Luisa Estate Park Subdivision,
dissolution of their conjugal property relations and the
Lahug, Cebu City and for (2) respondent to surrender
division of the net conjugal assets; the forfeiture of
the use and possession of said Mazda motor vehicle
respondent’s one-half share in the net conjugal assets
together with its keys and accessories thereof to
in favor of the common children; the payment to
petitioner.
petitioner’s counsel of the sum of P100,000 as
attorney’s fees to be taken from petitioner’s share in
Atty. Edgar Gica, the Special Administrator, appointed
the net assets; and the surrender by respondent of
in this case, is hereby ordered to make the necessary
the use and possession of a Mazda motor vehicle and
computation of the value of the one-half (1/2) share of
the smaller residential house located at Maria Luisa
petitioner in the net remaining conjugal assets of the
Estate Park Subdivision to petitioner and the common
spouses within 10 days from receipt of this order.
failed to file with the appellate court a Record on
The petitioner is hereby ordered to post a bond in the Appeal. On February 10, 1998, the Court of Appeals
amount of P1,500,000.00 to answer for all the decided the motion, thus:
damages that respondent may suffer arising from the WHEREFORE, premises considered, the petitioner–
issuance of said writ of execution pending appeal and appellant’s motion to dismiss filed on November 3,
to further answer for all the advances that petitioner 1997 is hereby DENIED. The appointment of the
may have received from the Special Administrator in petitioner-appellee as administratix of the conjugal
this case pending final termination of this present properties is hereby AFFIRMED.
[5]
case.
In view of petitioner’s Motion to Withdraw her own
In turn, in a petition for certiorari, Gabriel Bañez
appeal filed on November 27, 1997, and for failing to
elevated the case to the Court of Appeals. On March
pay the required docket fee within the prescribed
21, 1997, the appellate court rendered its decision,
period under Rule 41, Section 4 of the 1997 Rules of
thus:
Civil Procedure, the appeal instituted by the petitioner
WHEREFORE, the Order dated October 1, 1996 and
Aida P. Bañez is hereby DISMISSED.
the Omnibus Order dated November 22, 1996, insofar
as (1) it authorized the release of the sum of
In continuance of the appeal of respondent-appellant
P100,000.00 to private respondent’s counsel as the
[Gabriel Bañez], he is hereby ordered to file his brief
advanced share of private respondent [Aida Bañez] in
with the court within 45 days from receipt of this
the net remaining conjugal assets, and (2) granted the
resolution. The petitioner-appellee [Aida Bañez] shall
motion for execution pending appeal by ordering
file her own brief with the court within 45 days from
petitioner [Gabriel Bañez] to vacate the premises of
receipt of the petitioner-appellant’s [Gabriel Bañez]
the small residential house situated in Maria Luisa
brief.
Estate Park Subdivision, Lahug, Cebu City, and to
surrender the use and possession of the Mazda Motor
SO ORDERED.[7]
vehicle to private respondent are hereby SET ASIDE.
The writ of execution dated December 2, 1996 and the The appellate court also denied herein petitioner’s
Order dated December 10, 1996 granting the motion motion for reconsideration, hence, the petition in G.R.
filed by the sheriff to make symbolic delivery of the No. 133628.
subject house and motor vehicle to the administrator
of the partnership are also SET ASIDE. On January 19, 2000, we consolidated the two
petitions. Petitioner Aida Bañez now avers that the
As prayed for by petitioner, the Administrator of the Court of Appeals erred:
conjugal partnership is hereby ordered to cause the I. G.R. No. 132592
reimbursement by counsel for the private respondent
[Aida Bañez] of the amount of P100,000.00 released to ... IN SETTING ASIDE THE GRANT OF EXECUTION
him as advance payment of attorney’s fees. PENDING APPEAL BY THE TRIAL COURT OF THE
PORTIONS OF ITS DECISION ORDERING
[6]
SO ORDERED. RESPONDENT TO VACATE THE SMALLER
RESIDENTIAL HOUSE LOCATED AT THE MARIA
On February 10, 1998, the Court of Appeals denied
LUISA ESTATE PARK SUBDIVISION, CEBU CITY, AND
Aida’s motion for reconsideration. Hence, the petition
TO PAY P100,000.00 TO PETITIONER’S COUNSEL AS
in G.R. No. 132592, filed by herein petitioner.
ATTORNEY’S FEES TO BE TAKEN FROM HER SHARE
IN THE NET CONJUGAL ASSETS.[8]
In the meantime, the trial court gave due course to
Gabriel’s Notice of Appeal and elevated on April 15,
II. G.R. No. 133628:
1997 the entire case records to the Court of Appeals.
Aida filed with the Court of Appeals a motion to
... IN NOT GRANTING PETITIONER’S MOTION TO
dismiss the appeal on the ground that Gabriel had
DISMISS RESPONDENT’S ORDINARY APPEAL In this case, considering the reasons cited by
AND/OR NOT RETURNING THE RECORDS OF CIVIL petitioner, we are of the view that there is no superior
CASE NO. CEB-16765 TO THE REGIONAL TRIAL or urgent circumstance that outweighs the damage
[9]
COURT OF CEBU. which respondent would suffer if he were ordered to
vacate the house. We note that petitioner did not
In G.R. No. 132592, petitioner manifested that she
refute respondent’s allegations that she did not intend
no longer questions the Court of Appeals’ decision on
to use said house, and that she has two (2) other
the Mazda vehicle because respondent repossessed it.
houses in the United States where she is a permanent
As to the residential house, she claimed that being
resident, while he had none at all. Merely putting up
conjugal in nature, justice requires that she and her
a bond is not sufficient reason to justify her plea for
children be allowed to occupy and enjoy the house
execution pending appeal. To do so would make
considering that during the entire proceedings before
execution routinary, the rule rather than the
the trial court, she did not have the chance to occupy
exception.[12]
it. Further, she posted a bond of P1,500,000 for the
damages which respondent may suffer.[10] For these
Similarly, we are not persuaded that the P100,000
reasons, she asked for execution pending appeal. The
advance payment to petitioner’s counsel was properly
amount of P100,000 as advance payment to her
granted. We see no justification to pre-empt the
counsel was a “drop in the bucket” compared to the
judgment by the Court of Appeals concerning said
bond she posted, according to her. She also suggested
amount of P100,000 at the time that the trial court’s
as an alternative that she simply be required to put up
judgment was already on appeal.
an additional bond. She also agreed to submit to an
accounting as regular administratrix and the advance
In G.R. No. 133628, petitioner Aida Bañez contends
attorney’s fees be charged to her share in the net
that an action for legal separation is among the cases
conjugal assets.
where multiple appeals may be taken. According to
her, the filing of a record on appeal, pursuant to
In his comment, respondent denied petitioner’s
Section 2(a), Rule 41 of the Rules of Court,[13] is
allegation that she did not have the chance to occupy
required in this case. She concludes that respondent’s
the residential house. He averred that she could have,
appeal should have been dismissed for his failure to
had she chosen to. According to him, as the inventory
file the record on appeal within the reglementary
of the couple’s properties showed, petitioner owned
period, as provided under Section 1-b, Rule 50 of the
two houses and lots and two motor vehicles in the
Rules of Court.[14]
United States, where she is a permanent resident.
Respondent contended that there was no compelling
Petitioner likewise prays that, in the event that we do
reason for petitioner to have the judgment executed
not dismiss Gabriel Bañez’ appeal, we should direct
pending appeal.
the appellate court to return the records of the case to
the RTC of Cebu. Thereafter, according to her,
Essentially, the core issue in G.R. No. 132592 is
respondent should file his record on appeal for
whether execution of judgment pending appeal was
approval and transmittal to the Court of Appeals. In
justified.
the alternative, she prays that the appellate court
retain only the pleadings and evidence necessary to
As held in Echaus vs. Court of Appeals, 199 SCRA 381,
resolve respondent’s appeal pursuant to Section 6,
386 (1991), execution pending appeal is allowed when
Rule 44[15] and Section 6, Rule 135[16] of the Rules of
superior circumstances demanding urgency outweigh
Court, and return the rest of the case records to the
the damages that may result from the issuance of the
RTC.
writ. Otherwise, instead of being an instrument of
solicitude and justice, the writ may well become a tool
In turn, respondent argues that Section 39 of B.P.
of oppression and inequity.[11]
129[17] expressly abolished the requirement of a record
on appeal, except in appeals in special proceedings in
accordance with Rule 109,[18] and other cases wherein effectively saying that the instant case is one involving
multiple appeals are allowed. An action for legal multiple appeals, which it is not. If we allow the
separation, he avers, is neither a special proceeding second, we are effectively applying by analogy, Section
nor one where multiple appeals are allowed. 6, Rule 44 and Section 6, Rule 135 of the Rules of
Court, without petitioner showing support therefor in
Now, is an action for legal separation one where law or jurisprudence.[21]
multiple appeals are allowed? We do not think so.
WHEREFORE, the instant petitions are DENIED for
In Roman Catholic Archbishop of Manila v. Court of lack of merit. The decision and resolution of the Court
Appeals, 258 SCRA 186, 194 (1996), this Court held: of Appeals in CA-G.R. SP No. 42663 and CA-G.R. No.
xxx Multiple appeals are allowed in special CV-56265, respectively, are hereby AFFIRMED, so
proceedings, in actions for recovery of property with that the Order dated October 1, 1996, of the Regional
accounting, in actions for partition of property with Trial Court authorizing the release of P100,000 to
accounting, in the special civil actions of eminent petitioner’s counsel; the Omnibus Order dated
domain and foreclosure of mortgage. The rationale November 22, 1996 granting the motion pending
behind allowing more than one appeal in the same appeal; the writ of execution dated December 2, 1996;
case is to enable the rest of the case to proceed in the and the Order dated December 10, 1996 granting the
event that a separate and distinct issue is resolved by motion by the sheriff to make symbolic delivery of the
the court and held to be final. house and vehicle are SET ASIDE. Further, the
Administrator of the conjugal partnership is
In said case, the two issues raised by therein
ORDERED to cause the reimbursement by
petitioner that may allegedly be the subject of multiple
petitioner’s counsel of the released amount of
appeals arose from the same cause of action, and the
P100,000. The Court of Appeals is hereby DIRECTED
subject matter pertains to the same lessor-lessee
to give due course to respondent’s appeal, and the
relationship between the parties. Hence, splitting the
Division Clerk of Court of this Court is likewise
appeals in that case would only be violative of the rule
DIRECTED to promptly remand the record of these
against multiplicity of appeals.
cases to the Court of Appeals.

The same holds true in an action for legal separation.


Costs against petitioner.
The issues involved in the case will necessarily relate
to the same marital relationship between the parties.
SO ORDERED.
The effects of legal separation, such as entitlement to
live separately, dissolution and liquidation of the
Bellosillo, (Chairman), Mendoza, Buena, and De Leon,
absolute community or conjugal partnership, and
Jr., JJ., concur.
custody of the minor children, follow from the decree
of legal separation.[19] They are not separate or distinct
matters that may be resolved by the court and become
final prior to or apart from the decree of legal
separation. Rather, they are mere incidents of legal
separation.[20] Thus, they may not be subject to
multiple appeals.

Petitioner’s alternative prayers that in case we do not


dismiss the appeal, we return the records to the trial
court and require respondent to file a record on
appeal, or we return the records to the trial court and
retain only the pleadings and orders relevant to the
appeal, are untenable. If we grant the first, we are
Supreme Court of the Philippines claims involving money and other properties,
counterclaimed for the declaration of nullity ab initio
G.R. No. L-30977, January 31, 1972 of his marriage with Carmen O. Lapuz Sy, on the
ground of his prior and subsisting marriage,
CARMEN LAPUZ SY, REPRESENTED BY HER celebrated according to Chinese law and customs,
SUBSTITUTE MACARIO LAPUZ, PETITIONER with one Go Hiok, alias Ngo Hiok.
AND APPELLANT, VS. EUFEMIO S. EUFEMIO
ALIAS EUFEMIO SY UY, RESPONDENT AND Issues having been joined, trial proceeded and the
APPELLEE. parties adduced their respective evidence. But before
the trial could be completed (the respondent was
DECISION already scheduled to present surrebuttal evidence on
9 and 18 June 1969), petitioner Carmen O. Lapuz Sy
REYES, J.B.L., J.: died in a vehicular accident on 31 May 1969. Counsel
for petitioner duly notified the court of her death.
Petition, filed after the effectivity of Republic Act
5440, for review by certiorari of an order, dated 29 On 9 June 1969, respondent Eufemio moved to dismiss
July 1969, of the Juvenile and Domestic Relations the "petition for legal separation"[1] on two (2)
Court of Manila, in its Civil Case No. 20387, grounds, namely: that the petition for legal separation
dismissing said case for legal separation on the was filed beyond the one-year period provided for in
ground that the death of the therein plaintiff, Carmen Article 102 of the Civil Code; and that the death of
O. Lapuz Sy, which occurred during the pendency of Carmen abated the action for legal separation.
the case, abated the cause of action as well as the
action itself. The dismissal order was issued over the On 26 June 1969, counsel for deceased petitioner
objection of Macario Lapuz, the heir of the deceased moved to substitute the deceased Carmen by her
plaintiff (and petitioner herein) who sought to father, Macario Lapuz. Counsel for Eufemio opposed
substitute the deceased and to have the case the motion.
prosecuted to final judgment.
On 29 July 1969, the court issued the order under
On 18 August 1953, Carmen O. Lapuz Sy filed a review, dismissing the case.[2] In the body of the order,
petition for legal separation against Eufemio S. the court stated that the motion to dismiss and the
Eufemio, alleging, in the main, that they were married motion for substitution had to be resolved on the
civilly on 21 September 1934 and canonically on 30 question of whether or not the plaintiff's cause of
September 1934; that they had lived together as action has survived, which the court resolved in the
husband and wife continuously until 1943 when her negative. Petitioner's counsel moved to reconsider but
husband abandoned her, that they had no child; that the motion was denied on 15 September 1969.
they acquired properties during their marriage; and
that she discovered her husband cohabiting with a After first securing an extension of time to file a
Chinese woman named Go Hiok at 1319 Sisa Street, petition for review of the order of dismissal issued by
Manila, on or about March 1949. She prayed for the the juvenile and domestic relations court, the
issuance of a decree of legal separation, which, among petitioner filed the present petition on 14 October
others, would order that the defendant Eufemio S. 1969. The same was given due course and answer
Eufemio should be deprived of his share of the thereto was filed by respondent, who prayed for the
conjugal partnership profits. affirmance of the said order.[3]

In his second amended answer to the petition, herein Although the defendant below, the herein respondent
respondent Eufemio S. Eufemio alleged affirmative Eufemio S. Eufemio, filed counterclaims, he did not
and special defenses, and, along with several other pursue them after the court below dismissed the case.
He acquiesced in the dismissal of said counterclaims Being personal in character, it follows that the death
by praying for the affirmance of the order that of one party to the action causes the death of the
dismissed not only the petition for legal separation but action itself – actio personalis moritur cum persona.
also his counterclaim to declare the Eufemio-Lapuz
marriage to be null and void ab initio. * * * When one of the spouses is dead, there is no need
for divorce, because the marriage is dissolved. The
But petitioner Carmen O. Lapuz Sy (through her self- heirs cannot even continue the suit, if the death of the
assumed substitute – for the lower court did not act on spouse takes place during the course of the suit
the motion for substitution) stated the principal issue (Article 244, Section 3). The action is absolutely dead
to be as follows: (Cass., July 27, 1871, D. 71. 1. 81; Cass. req., May 8,
1933, D.H. 1933, 332."[4]
"When an action for legal separation is converted by
the counterclaim into one for a declaration of nullity of "Marriage is a personal relation or status, created
a marriage, does the death of a party abate the under the sanction of law, and an action for divorce is
proceedings?" a proceeding brought for the purpose of effecting a
dissolution of that relation. The action is one of a
The issue as framed by petitioner injects into it a personal nature. In the absence of a statute to the
supposed conversion of a legal separation suit to one contrary, the death of one of the parties to such action
for declaration of nullity of a marriage, which is abates the action, for the reason that death has settled
without basis, for even petitioner asserted that "the the question of separation beyond all controversy and
respondent has acquiesced to the dismissal of his deprived the court of jurisdiction, both over the
counterclaim" (Petitioner's Brief, page 22). Not only persons of the parties to the action and of the subject-
this. The petition for legal separation and the matter of the action itself. For this reason the courts
counterclaim to declare the nullity of the self same are almost unanimous in holding that the death of
marriage can stand independent and separate either party to a divorce proceeding, before final
adjudication. They are not inseparable nor was the decree, abates the action. 1 Corpus Juris, 208; Wren
action for legal separation converted into one for a vs. Moss, 2 Gilman, 72; Danforth vs. Danforth, 111 III.
declaration of nullity by the counterclaim, for legal 236; Matter of Grandall, 196 N.Y. 127, 89 N.E. 578,
separation presupposes a valid marriage, while the 134 Am St. Rep. 830, 17 Ann. Cas. 874; Wilcon vs.
petition for nullity has a voidable marriage as a Wilson, 73 Mich. 620, 41 N.W. 817; Strickland vs.
precondition. Strickland, 80 Ark. 452, 97 S. W. 659; McCurley vs.
McCurley, 60 Md. 185, 45 Am. Rep. 717; Begbie vs.
The first real issue in this case is: Does the death of Begbie, 128 Cal. 155, 60 Pac. 667, 49 L. R. A. 141." [5]
the plaintiff before final decree, in an action for legal
separation, abate the action? If it does, will The same rule is true of causes of action and suits for
abatement also apply if the action involves property separation and maintenance (Johnson vs. Bates, Ark.
rights? 101 SW 412; 1 Corpus Juris 208).

An action for legal separation which involves nothing A review of the resulting changes in property relations
more than the bed-and-board separation of the between spouses shows that they are solely the effect
spouses (there being no absolute divorce in this of the decree of legal separation; hence, they can not
jurisdiction) is purely personal. The Civil Code of the survive the death of the plaintiff if it occurs prior to
Philippines recognizes this in its Article 100, by the decree. On this point, Article 106 of the Civil Code
allowing only the innocent spouse (and no one else) to provides:
claim legal separation; and in its Article 108, by
providing that the spouses can, by their "Art. 106. The decree of legal separation shall have
reconciliation, stop or abate the proceedings and even the following effects:
rescind a decree of legal separation already rendered.
"(1) The spouses shall be entitled to live separately The same result flows from a consideration of the
from each other, but the marriage bonds shall not be enumeration of the actions that survive for or against
severed; administrators in Section 1, Rule 87, of the Revised
Rules of Court:
"(2) The conjugal partnership of gains or the absolute
conjugal community of property shall be dissolved and "SECTION 1. Actions which may and which may not
liquidated, but the offending spouse shall have no be brought against executor or administrator. No
right to any share of the profits earned by the action upon a claim for the recovery of money or debt
partnership or community, without prejudice to the or interest thereon shall be commenced against the
provisions of article 176; executor or administrator; but actions to recover real
or personal property, or an interest therein, from the
"(3) The custody of the minor children shall be estate, or to enforce a lien thereon, and actions to
awarded to the innocent spouse, unless otherwise recover damages for an injury to person or property,
directed by the court in the interest of said minors, for real or personal, may be commenced against him."
whom said court may appoint a guardian;
Neither actions for legal separation or for annulment
"(4) The offending spouse shall be disqualified from of marriage can be deemed fairly included in the
inheriting from the innocent spouse by intestate enumeration.
succession. Moreover, provisions in favor of the
offending spouse made in the will of the innocent one A further reason why an action for legal separation is
shall be revoked by operation of law." * * * abated by the death of the plaintiff, even if property
rights are involved, is that these rights are mere
From this article it is apparent that the right to the effects of a decree of separation, their source being
dissolution of the conjugal partnership of gains (or of the decree itself; without the decree such rights do
the absolute community of property), the loss of right not come into existence, so that before the finality of a
by the offending spouse to any share of the profits decree, these claims are merely rights in expectation.
earned by the partnership or community, or his If death supervenes during the pendency of the action,
disqualification to inherit by intestacy from the no decree can be forthcoming, death producing a
innocent spouse as well as the revocation of more radical and definitive separation; and the
testamentary provisions in favor of the offending expected consequential rights and claims would
spouse made by the innocent one, are all rights and necessarily remain unborn.
disabilities that, by the very terms of the Civil Code
article, are vested exclusively in the persons of the As to the petition of respondent-appellee Eufemio for a
spouses; and by their nature and intent, such claims declaration of nullity ab initio of his marriage to
and disabilities are difficult to conceive as assignable Carmen Lapuz, it is apparent that such action became
or transmissible. Hence, a claim to said rights is not a moot and academic upon the death of the latter, and
claim that "is not thereby extinguished" after a party there could be no further interest in continuing the
dies, under Section 17, Rule 3, of the Rules of Court, same after her demise, that automatically dissolved
to warrant continuation of the action through a the questioned union. Any property rights acquired by
substitute of the deceased party. either party as a result of Article 144 of the Civil Code
of the Philippines[6] could be resolved and determined
"Sec. 17. Death of party. After a party dies and the in a proper action for partition by either the appellee
claim is not thereby extinguished, the court shall or by the heirs of the appellant.
order, upon proper notice, the legal representative of
the deceased to appear and to be substituted for the In fact, even if the bigamous marriage had not been
deceased, within a period of thirty (30) days, or within void ab initio but only voidable under Article 83,
such time as may be granted. * * *." paragraph 2, of the Civil Code, because the second
marriage had been contracted with the first wife
having been an absentee for seven consecutive years,
or when she had been generally believed dead, still
the action for annulment became extinguished as soon
as one of the three persons involved had died, as
provided in Article 87, paragraph 2, of the Code,
requiring that the action for annulment should be
brought during the lifetime of any one of the parties
involved. And furthermore, the liquidation of any
conjugal partnership that might have resulted from
such voidable marriage must be carried out "in the
testate or intestate proceedings of the deceased
spouse," as expressly provided in Section 2 of the
Revised Rule 73, and not in the annulment
proceeding.

ACCORDINGLY , the appealed judgment of the


Manila Court of Juvenile and Domestic Relations is
hereby affirmed. No special pronouncement as to
costs.

Concepcion, C.J., Makalintal, Zaldivar, Castro,


Fernando, Teehankee, Barredo, Villamor, and
Makasiar, JJ., concur.
Supreme Court of the Philippines The respondent judge resolved the omnibus petition,
granting the custody of the children to defendant and
G.R. No. L-9667, July 31, 1956 a monthly allowance of P2,300 for support for her
and the children, P300 for a house and P2,000 as
LUIS MA. ARANETA, PETITIONER, VS. attorney's fees. Upon refusal of the judge to
HONORABLE HERMOGENES CONCEPCION, AS reconsider the order, petitioner filed the present
JUDGE OF THE COURT OF FIRST INSTANCE OF petition for certiorari against said order and for
MANILA, BRANCH VI AND EMMA BENITEZ mandamus to compel the respondent judge to require
ARANETA, RESPONDENTS. the parties to submit evidence before deciding the
omnibus petition. We granted a writ of preliminary
DECISION injunction against the order.

LABRADOR, J.: The main reason given by the judge, for refusing
plaintiff's request that evidence be allow«d to be
The main action was brought by petitioner against his introduced on the issues, is the prohibition contained
wife, one of the respondent herein, for legal in Article 103 of the Civil Code, which reads as
separation on the ground of adultery. After the follows:
issues were joined defendant therein filed an omnibus
petition to secure custody of their three minor "ART. 103. An action for legal separation shall in no
children, a monthly support of P5,000 for herself and case be tried before six months shall have elapsed
said children, and the return of her passport, to enjoin since the filing of the petition."
plaintiff from ordering his hirelings from harassing
and molesting her, and to have plaintiff therein pay Interpreting the spirit and policy of the provision the
for the fees of her attorney in the action. The trial judge says:
petition is supported by her affidavit. Plaintiff
opposed the petition, denying the misconduct imputed "This provision of the code is mandatory. This case
to him and alleging that defendant had abandoned the cannot be tried within the period of six months from
children; alleging that conjugal properties were worth the filing of the complaint The court understands that
only P80,000, not one million pesos as alleged by the introduction of any evidence, be it on the merits of
defendant; denying the taking of her passport or the the case or on any incident, is prohibited. The law,
supposed vexation, and contesting her right to up to the last minute, exerts efforts at preserving the
attorney's fees. Plaintiff prayed that as the petition family and the home from utter ruin. Interpreting the
for custody and support cannot be determined intent of said article, the court understands that
without evidence, the parties be required to submit every step it should take within the period of six
their respective evidence. He also contended that months above stated should be taken toward
defendant is not entitled to the custody of the reconciling the parties. Admitting evidence now will
children as she had abandoned them and had make reconciliation difficult if not impossible. In this
committed adultery, that by her conduct she had case the court should act as if nothing yet had
become unfit to educate her children, being unstable happened. The children must be given for custody to
in her emotions and unable to give the children the him or her who by family custom and tradition is the
love, respect and care of a true mother and without custodian of the children. The court should ignore
means to educate them. As to the claim for support, that defendant had committed any act of adultery
plaintiff claims that there are no conjugal assets and or the plaintiff, any act of cruelty to his wife. The
she is not entitled to support because of her infidelity status quo of the family must be restored as much as
and that she was able to support herself. Affidavits possible. In this country, unlike perhaps in any
and documents were submitted both in support and other country of the globe, a family or a home is a
against the omnibus petition. petite corporation. The father is the administrator who
earns the family funds, dictates rules in the. home for the court as to the custody and alimony pendente lite
all to follow, and protects all members of his family. may be lawfully exercised.
The mother keeps home, keeps children in her
company and custody, and keeps the treasure of that The rule is that all the provisions of the law even if
family. In a typical Filipino family, the wife prepares apparently contradictory, should be allowed to stand
home budget and makes little investment without and given effect by reconciling them if necessary.
the knowledge of her husband. A husband who holds
the purse is un-Filipino. He is shunned in Filipino "The practical inquiry in litigation is usually to
community. The court therefore, in taking action on determine what a particular provision, clause or word
petition No. 1 should be guided by the above means. To answer it one must proceed as he would
considerations." (pp. 116-117, Record on Appeal.) with any other composition—construe it with
reference to the leading idea or purpose of the
It may be noted that since more than six months have whole instrument. A statute is passed as a whole and
elapsed since the filing of the petition the question not in parts or sections and is animated by one
offered may not be allowed. It is, however, general purpose and intend. Consequently, each part
believed that the reasons for granting the of section should be construed in connection with
preliminary injunction should be given that the scope every other part or section so as to produce a
of the article cited may be explained. It is conceded harmonious whole. Thus it is not proper to confine
that the period of six months fixed therein Article 103 interpretation to the one section to be construed."
(Civil Code) is evidently intended as a cooling off (Southerland, Statutory Construction section 4703,
period to make possible a reconciliation between the pp. 336-337.).
spouses. The recital of their grievances against
each other in court may only fan their already Thus the determination of the custody and alimony
inflamed passions against one another, and the should be given effect and force provided it does not
lawmaker has imposed the period to give them go to the extent of violating the policy of the cooling
opportunity for dispassionate reflection. But this off period. That is, evidence not affecting the cause of
practical expedient, necessary to carry out legislative the separation, like the actual custody of the
policy, does not have the effect of overriding other children, the means conducive to their welfare and
provisions such as the determination of the custody convenience during the pendency of the case, these
of the children and alimony and support pendente should be allowed that the court may determine
lite according to the circumstances. (Article 105, which is best for their custody.
Civil Code.) The law expressly enjoins that these
should be determined by the court according to the The writ prayed for is hereby issued and the

circumstances. If these are ignored or the courts close respondent judge or whosoever takes his place is

their eyes to actual facts, rank in justice may be ordered to proceed on the question of custody and

caused. support pendente lite in accordance with this


opinion. The court's order fixing the alimony and
Take the case at bar, for instance. Why should the requiring payment is reversed. Without costs,.
court ignore the claim of adultery by defendant in the
face of express allegations under oath to that effect, Paras, C. J., Bengzon, Padilla, Montemayor, Reyes A.,

supported by circumstantial evidence consisting of Bautista Angelo, Concepcion, Reyes, J. B. L., and

letter the authenticity of which cannot be denied. Endencia, JJ., concur.

And why assume that the children are in the custody


of the wife, and that the latter is living at the
conjugal dwelling, when ,it is precisely alleged in the
petition and in the affidavits, that she has abandoned
the conjugal abode? Evidence of all these disputed
allegations should be allowed that the discretion of
Republic of the Philippines dated July 3, 1971, based on Article 103 of the Civil
SUPREME COURT Code. It was further manifested by him in a pleading
Manila dated July 16, 1971, that if the motion asking for
preliminary mandatory injunction were heard, the
EN BANC prospect of the reconciliation of the spouses would
become even more dim. Respondent Judge ordered the
parties to submit their respective memoranda on the
matter. Then on September 3, 1971, petitioner
received an order dated August 4, 1971 of respondent
G.R. No. L-34132 July 29, 1972 Judge granting the motion of respondent Ramos to
suspend the hearing of the petition for a writ of
LUCY SOMOSA-RAMOS, petitioner, mandatory preliminary injunction. That is the order
vs. complained of in this petition for certiorari.
THE HONORABLE CIPRIANO VAMENTA, JR., Respondents were required to answer according to
Presiding Judge of the Court of First Instance of our resolution of October 5, 1971. The answer was
Negros Oriental and CLEMEN G. filed December 2 of that year. Then on January 12,
RAMOS, respondents. 1972 came a manifestation from parties in the case
submitting the matter without further arguments.

T. R. Reyes & Associates for petitioner.


After a careful consideration of the legal question
presented, it is the holding of this Court that Article
Soleto J. Erames for respondents. 103 the Civil Code is not an absolute bar to the
hearing motion for preliminary injunction prior to the
expiration of the six-month period.

FERNANDO, J.:p 1. It is understandable why there should be a period


during which the court is precluded from acting.
The question raised in this petition for certiorari is Ordinarily of course, no such delay is permissible.
whether or not Article 103 of the Civil Code Justice to parties would not thereby be served. The
prohibiting the hearing of an action for legal sooner the dispute is resolved, the better for all
separation before the lapse of six months from the concerned. A suit for legal separation, however, is
filing of the petition, would likewise preclude the court something else again. It involves a relationship on
from acting on a motion for preliminary mandatory which the law for the best reasons would attach the
injunction applied for as an ancillary remedy to such a quality of permanence. That there are times when
suit. Respondent Cipriano Vamenta, Jr., of the Court of domestic felicity is much less than it ought to be is not
First Instance of Negros Oriental, answered the of course to be denied. Grievances, whether fancied or
question in the affirmative, in view of the absolute real, may be entertained by one or both of the
tenor of such Civil Code provision, which reads thus: spouses. There may be constant bickering. The loss
"An action for legal separation shall in no case be tried affection on the part of one or both may be
before six months shall have elapsed since the filing of discernible. Nonetheless, it will not serve public
the petition." He therefore ordered the suspension, interest, much less the welfare of the husband or the
upon the plea of the other respondent the husband wife, to allow them to go their respective ways. Where
Clemente G. Ramos, of the hearing on a motion for a there are offspring, the reason for maintaining the
writ of preliminary mandatory injunction filed by conjugal union is even more imperative. It is a mark of
petitioner at the same time the suit for legal realism of the law that for certain cases, adultery on
separation was instituted. Petitioner, Lucy Somosa- the part of the wife and concubinage on the part of the
Ramos, the wife who brought the action for legal husband, or an attempt of one spouse against the life
separation would dispute such a ruling. Hence, of the other,1 it recognizes, albeit reluctantly, that the
this certiorari proceeding. As will be shown later there couple is better off apart. A suit for legal separation
is justification for such a move on the part of lies. Even then, the hope that the parties may settle
petitioner. The respondent Judge ought to have acted their differences is not all together abandoned. The
differently. The plea for a writ of certiorari must be healing balm of time may aid in the process. Hopefully,
granted. the guilty parties may mend his or her ways, and the
offended party may in turn exhibit magnanimity.
Hence, the interposition of a six-month period before
The pleadings show that on June 18, 1971, petitioner an action for legal separation is to be tried.
filed Civil Case No. 5274 in the sala of respondent
Judge against respondent Clemente Ramos for legal
separation, on concubinage on the respondent's part The court where the action is pending according to
and an attempt by him against her life being alleged. Article 103 is to remain passive. It must let the parties
She likewise sought the issuance of a writ of alone in the meanwhile. It is precluded from hearing
preliminary mandatory injunction for the return to her the suit. There is then some plausibility for the view of
of what she claimed to be her paraphernal and the lower court that an ancillary motion such as one
exclusive property, then under the administration and for preliminary mandatory injunction is not to be acted
management of respondent Clemente Ramos. There on. If it were otherwise, there would be a failure to
was an opposition to the hearing of such a motion, abide by the literal language of such codal provision.
That the law, however, remains cognizant of the need
in certain cases for judicial power to assert itself is
discernible from what is set forth in the following
article. It reads thus: "After the filing of the petition
for legal separation, the spouse shall be entitled to live
separately from each other and manage their
respective property. The husband shall continue to
manage the conjugal partnership property but if the
court deems it proper, it may appoint another to
manage said property, in which case the administrator
shall have the same rights and duties as a guardian
and shall not be allowed to dispose of the income or of
the capital except in accordance with the orders of the
court."2 There would appear to be then a recognition
that the question of management of their respective
property need not be left unresolved even during such
six-month period. An administrator may even be
appointed for the management of the property of the
conjugal partnership. The absolute limitation from
which the court suffers under the preceding article is
thereby eased. The parties may in the meanwhile be
heard. There is justification then for the petitioner's
insistence that her motion for preliminary mandatory
injunction should not be ignored by the lower court.
There is all the more reason for this response from
respondent Judge, considering that the husband whom
she accused of concubinage and an attempt against
her life would in the meanwhile continue in the
management of what she claimed to be her
paraphernal property, an assertion that was not
specifically denied by him. What was held by this
Court in Araneta v. Concepcion,3 thus possesses
relevance: "It is conceded that the period of six
months fixed therein Article 103 (Civil Code) is
evidently intended as a cooling off period to make
possible a reconciliation between the spouses. The
recital of their grievances against each other in court
may only fan their already inflamed passions against
one another, and the lawmaker has imposed the period
to give them opportunity for dispassionate reflection.
But this practical expedient, necessary to carry out
legislative policy, does not have the effect of
overriding other provisions such as the determination
of the custody of the children and alimony and support
pendente lite according to the circumstance ... The
law expressly enjoins that these should be determined
by the court according to the circumstances. If these
are ignored or the courts close their eyes to actual
facts, rank injustice may be caused."4 At any rate, from
the time of the issuance of the order complained of on
August 4, 1971, more than six months certainly had
elapsed. Thus there can be no more impediment for
the lower court acting on the motion of petitioner for
the issuance of a writ of preliminary mandatory
injunction.

WHEREFORE, the plea of petitioner for a writ


of certiorari is granted, and the order of respondent
Court of August 4, 1971, suspending the hearing on
the petition for a writ of preliminary mandatory
injunction is set aside. Respondent Judge is directed to
proceed without delay to hear the motion for
preliminary mandatory injunction. Costs against
respondent Clemente G. Ramos.

Concepcion, C.J., Makalintal, Zaldivar, Castro,


Teehankee, Barredo, Makasiar, Antonio and Esguerra,
JJ., concur.
Supreme Court of the Philippines pieces of property either in his name and Clarita or in
the names of his children with Clarita and other
THIRD DIVISION "dummies;" that Pacete ignored overtures for an
amicable settlement; and that reconciliation between
G.R. No. 53880, March 17, 1994 her and Pacete was impossible since he evidently
preferred to continue living with Clarita.
ENRICO L. PACETE, CLARITA DE LA
CONCEPCION, EMELDA C. PACETE, EVELINA C. The defendants were each served with summons on 15
PACETE AND EDUARDO C. PACETE, November 1979. They filed a motion for an extension
PETITIONERS, VS. HON. GLICERIO V. of twenty (20) days from 30 November 1979 within
CARRIAGA, JR. AND CONCEPCION (CONCHITA) which to file an answer. The court granted the motion.
ALANIS PACETE RESPONDENTS. On 18 December 1979, appearing through a new
counsel, the defendants filed a second motion for an
DECISION extension of another thirty (30) days from 20
December 1979. On 07 January 1980, the lower court
VITUG, J.: granted the motion but only for twenty (20) days to be
counted from 20 December 1979 or until 09 January
The issue in this petition for certiorari is whether or 1980. The Order of the court was mailed to
not the Court of First Instance (now Regional Trial defendants' counsel on 11 January 1980. Likely still
Court) of Cotabato, Branch I, in Cotabato City, gravely unaware of the court order, the defendants, on 05
abused its discretion in denying petitioners’ motion for February 1980, again filed another motion (dated 18
extension of time to file their answer in Civil Case No. January 1980) for an extension of "fifteen (15) days
2518, in declaring petitioners in default and in counted from the expiration of the 30-day period
rendering its decision of 17 March 1980 which, among previously sought" within which to file an answer. The
other things, decreed the legal separation of petitioner following day, or on 06 February 1980, the court
Enrico L. Pacete and private respondent Concepcion denied this last motion on the ground that it was "filed
Alanis and held to be null and void ab initio the after the original period given x x x as first extension
marriage of Enrico L. Pacete to Clarita de la had expired."[1]
Concepcion.

The plaintiff thereupon filed a motion to declare the


On 29 October 1979, Concepcion Alanis filed with the defendants in default, which the court forthwith
court below a complaint for the declaration of nullity granted. The plaintiff was then directed to present her
of the marriage between her erstwhile husband Enrico evidence.[2] The court received plaintiff's evidence
L. Pacete and one Clarita de la Concepcion, as well as during the hearings held on 15, 20, 21 and 22
for legal separation (between Alanis and Pacete), February 1980.
accounting and separation of property. In her
complaint, she averred that she was married to Pacete On 17 March 1980, the court[3] promulgated the herein
on 30 April 1938 before the Justice of the Peace of questioned decision, disposing of the case, thus -
Cotabato, Cotabato; that they had a child named
Consuelo who was born on 11 March 1943; that “WHEREFORE, order is hereby issued ordering:
Pacete subsequently contracted (in 1948) a second
"1. The issuance of a Decree of Legal Separation of
marriage with Clarita de la Concepcion in Kidapawan,
the marriage between, the plaintiff, Concepcion
North Cotabato; that she learned of such marriage
(Conchita) Alanis Pacete and the herein defendants,
only on 01 August 1979; that during her marriage to
Enrico L. Pacete, in accordance with the Philippine
Pacete, the latter acquired vast property consisting of
laws and with consequences, as provided for by our
large tracts of land, fishponds and several motor
laws;
vehicles; that he fraudulently placed the several
"2. That the following properties are hereby declared Pacete which Enrico L. Pacete acquired from Sancho
as the conjugal properties of the partnership of the Balingcos last October 22, 1962, as shown by Exhibit
plaintiff, Concepcion (Conchita) Alanis Pacete and the ‘L-1’ and which parcel of land is situated at (Kialab),
defendant, Enrico L. Pacete, half and half, to wit: Kiab, Matalam, North Cotabato.

"1. The parcel of land covered by TCT No. V-815 which “7. A parcel of land covered by Transfer Certificate of
is a parcel of land situated in the barrio of Langcong, Title No. T-9227, situated at Kiab, Matalam, North
Municipality of Matanog (previously of Parang), Cotabato, with an area of 12.04339 hectares, more or
province of Maguindanao (previously of Cotabato less, and also covered by Tax Declaration No. 8607(74)
province) with an area of 45,256 square meters both in the name of the defendant Enrico L. Pacete
registered in the name of Enrico Pacete, Filipino, of which he acquired last October 15, 1962 from Minda
legal age, married to Conchita Alanis as shown in Bernardino, as shown by Exhibit 'M-1'.
Exhibits 'B' and 'B-1' for the plaintiff.
“8. A parcel of land covered by Transfer Certificate of
"2. A parcel of land covered by Transfer Certificate of Title No. T-9228, situated at Kiab, Matalam, North
Title No. T-20442, with an area of 538 square meters Cotabato, with an area of 10.8908 hectares, registered
and covered by Tax Declaration No. 2650 (74) in the in the name of Enrico Pacete and also covered by Tax
name of Enrico Pacete, situated in the Poblacion of Declaration No. 5781 (74) in the name of Enrico
Kidapawan, North Cotabato, together with all its Pacete and which parcel of land he acquired last
improvements, which parcel of land, as shown by September 25, 1962 from Conchita dela Torre, as
Exhibits ‘K-1’ was acquired by way of absolute deed of shown by Exhibit 'P-1'.
sale executed by Amrosio Mondog on January 14,
“9. A parcel of land covered by Transfer Certificate of
1965.
Title No. T-10301, situated at Linao, Matalam, North
"3. A parcel of land covered by Transfer Certificate of Cotabato, with an area of 7.2547 hectares, registered
Title No. T-20424 and covered by Tax Declaration No. in the name of Enrico Pacete and also covered by Tax
803 (74), with an area of 5.1670 hectares, more or Declaration No. 8716(74) also in the name of Enrico
less, as shown by Exhibit 'R', the same was registered Pacete which Enrico Pacete acquired from Agustin
in the name of Enrico Pacete and the same was Bijo last July 16, 1963, as shown by Exhibit 'N-1'.
acquired by Enrico Pacete last February 17, 1967 from
"10. A parcel of land covered by Transfer Certificate of
Ambag Ampoy, as shown by Exhibit 'R-1’, situated at
Title No. 12728 in the name of the defendant, Enrico
Musan, Kidapawan, North Cotabato.
L. Pacete, with an area of 10.9006 hectares, situated
“4. A parcel of land situated at Lanao, Kidapawan, at Linao, Matalam, North Cotabato and is also covered
North Cotabato, with an area of 5.0567 hectares, by Tax Declaration No. 5745(74) in the name of Enrico
covered by Tax Declaration No. 4332 (74), as shown Pacete, as shown on Exhibit ‘O’ and which Enrico
by Exhibit ‘S’, and registered in the name of Enrico Pacete acquired last December 31, 1963 from Eliseo
Pacete. Pugni, as shown on Exhibit 'O-1'.

“5. A parcel of land covered by Transfer Certificate of “3. Ordering the Cancellation of Original Certificate of
Title No. T-9750, situated at Lika, Mlanng, North Title No. P-34243 covering Lot No. 1066, issued in the
Cotabato, with an area of 4.9841 hectares and the name of Evelina Pacete, situated at Kiab, Matalam,
same is covered by Tax Declaration No. 803 (74) and North Cotabato, and ordering the registration of the
registered in the name of Enrico Pacete and which same in the joint name of Concepcion (Conchita)
land was acquired by Enrico Pacete from Salvador Alanis Pacete and Enrico L. Pacete as their conjugal
Pacete on September 24, 1962, as shown by Exhibit property, with address on the part of Concepcion
'Q-1’. (Conchita) Alanis Pacete at Parang, Maguindanao and
on the part of Enrico L. Pacete at Kidapawan, North
"6. A parcel of land covered by Transfer Certificate of
Cotabato.
Title No. T-9944, with an area of 9.9566 and also
covered by Tax Declaration No. 8608(74) and "4. Ordering likewise the cancellation of Original
registered in the name of the defendant Enrico L. Certificate of Title No. V-20101, covering Lot No. 77,
in the name of Eduardo C. Pacete, situated at New the plaintiff in the unaccounted income of the ricemill
Lawaan, Mlang, North Cotabato, and the issuance of a and corn sheller for three years from 1971 to 1973.
new Transfer Certificate of Title in the joint name of
“8. Ordering the defendant, Enrico L. Pacete, to
(half and half) Concepcion (Conchita) Alanis Pacete
reimburse the plaintiff the monetary equivalent of 30%
and Enrico L. Pacete.
of whatever the plaintiff has recovered as attorney’s
“5. Ordering likewise the cancellation of Original fees;
Certificate of Title No. P-29890, covering Lot 1068,
“9. Declaring the subsequent marriage between
situated at Kiab, Matalam, North Cotabato, with an
defendant Enrico L. Pacete and Clarita de la
area of 12.1031 hectares, in the name of Emelda C.
Concepcion to be void ab initio; and
Pacete, and the issuance of a new Transfer Certificate
“10. Ordering the defendants to pay the costs of this
of Title in the joint name (half and half) of Concepcion
suit."[4]
(Conchita) Alanis Pacete and Enrico L. Pacete; and
declaring that the fishpond situated at Barrio
Hence, the instant special civil action of certiorari.
Tumanan, Bislig, Surigao Del Sur, with an area of 48
hectares and covered by Fishpond Lease Agreement of
Under ordinary circumstances, the petition would
Emelda C. Pacete, dated July 29, 1977 be cancelled
have outrightly been dismissed, for, as also pointed
and in lieu thereof, the joint name of Concepcion
out by private respondents, the proper remedy of
(Conchita) Alanis Pacete and her husband, Enrico L.
petitioners should have instead been either to appeal
Pacete, be registered as their joint property, including
from the judgment by default or to file a petition for
the 50 hectares fishpond situated in the same place,
relief from judgment.[5] This rule, however, is not
Barrio Timanan, Bislig, Surigao del Sur.
inflexible; a petition for certiorari is allowed when the
"6. Ordering the following motor vehicles to be the default order is improperly declared, or even when it
joint properties of the conjugal partnership of is properly declared, where grave abuse of discretion
Concepcion (Conchita) Alanis Pacete and Enrico L. attended such declaration.[6] In these exceptional
Pacete, viz: instances, the special civil action of certiorari to
"a. Motor vehicle with Plate No. T-RG?783; Make, declare the nullity of a judgment by default is
Dodge; Motor No. T137-20561; Chassis No. 83920393, available.[7] In the case at bench, the default order
and Type, Mcarrier; unquestionably is not legally sanctioned. The Civil
Code provides:
"b. Motor vehicle with Plate No. T-RG?784; Make,
Dodge; Motor No. T214-229547; Chassis No. 10D-
"Art. 101. No decree of legal separation shall be
1302-C; and Type, Mcarrier;
promulgated upon a stipulation of facts or by
"c. Motor vehicle with Plate No. J-PR-818; Make, Ford; confession of judgment.
Motor No. GPW-116188; Chassis No. HOCC-GPW-
"In case of non-appearance of the defendant, the court
1161-88-C; Type, Jeep;
shall order the prosecuting attorney to inquire
"d. Motor vehicle with Plate No. TH-5J?583; Make, whether or not a collusion between the parties exists.
Ford; Motor No. F70MU5-11111; Chassis No. HOCC- If there is no collusion, the prosecuting attorney shall
GPW-116188-G; Type, Stake; intervene for the State in order to take care that the

"e. Motor vehicle with Plate No. TH-5J?584; Make, evidence for the plaintiff is not fabricated."

Hino; Motor No. ED300-45758; Chassis No. KB222-


22044; Type, Stake; and The provision has been taken from Article 30 of the
California Civil Code,[8] and it is, in substance,
"f. Motor vehicle with Plate No. TH-5J?585; Make,
reproduced in Article 60 of the Family Code.[9]
Ford; Motor No. LTC-780-Dv; Chassis No. 10F-13582-
K; Type, Stake.
Article 101 reflects the public policy on marriages,
"7. Ordering the defendant Enrico L. Pacete to pay the and it should easily explain the mandatory tenor of the
plaintiff the sum of P46,950.00 which is the share of law. In Brown v. Yambao,[10] the Court has observed:
"The policy of Article 101 of the new Civil Code, compliance, with any of the statutory requirements
calling for the intervention of the state attorneys in aforequoted.
case of uncontested proceedings for legal separation
(and of annulment of marriages, under Article 88), is WHEREFORE, the petition for certiorari is hereby
to emphasize that marriage is more than a mere GRANTED and the proceedings below, including the
contract; that it is a social institution in which the Decision of 17 March 1980 appealed from, are
state is vitally interested, so that its continuation or NULLIFIED and SET ASIDE. No costs.
interruption can not be made to depend upon the
parties themselves (Civil Code, Article 52; Adong vs. SO ORDERED.
Cheong Gee, 43 Phil. 43; Ramirez v. Gmur, 42 Phil.
855; Goitia v. Campos, 35 Phil. 252). It is consonant Feliciano, (Chairman), Bidin, Romero, and Melo, JJ.,

with this policy that the inquiry by the Fiscal should concur.

be allowed to focus upon any relevant matter that may


indicate whether the proceedings for separation or
annulment are fully justified or not."

Article 103 of the Civil Code, now Article 58 of the


Family Code, further mandates that an action for legal
separation must "in no case be tried before six months
shall have elapsed since the filing of the petition,"
obviously in order to provide the parties a "cooling-off"
period. In this interim, the court should take steps
toward getting the parties to reconcile.

The significance of the above substantive provisions of


the law is further underscored by the inclusion of the
following provision in Rule 18 of the Rules of Court:

"SEC. 6. No defaults in actions for annulments of


marriage or for legal separation. - If the defendant in
an action for annulment of marriage or for legal
separation fails to answer, the court shall order the
prosecuting attorney to investigate whether or not a
collusion between the parties exists, and if there is no
collusion, to intervene for the State in order to see to
it that the evidence submitted is not fabricated."

The special proscriptions on actions that can put the


integrity of marriage to possible jeopardy are impelled
by no less than the State's interest in the marriage
relation and its avowed intention not to leave the
matter within the exclusive domain and the vagaries of
the parties to alone dictate.

It is clear that the petitioner did, in fact, specifically


pray for legal separation.[11] That other remedies,
whether principal or incidental, have likewise been
sought in the same action cannot dispense, nor excuse
Supreme Court of the Philippines legitimate family and was instead maintaining a
separate residence in Don Antonio Heights, Fairview,
FIRST DIVISION Quezon City, with Thelma Cumareng and their three
children.
G.R. No. 106169, February 14, 1994
In her prayer, she asked the court to grant the decree
SAMSON T. SABALONES, PETITIONER, VS. THE of legal separation and order the liquidation of the
COURT OF APPEALS AND REMEDIOS GAVIOLA- conjugal properties, with forfeiture of her husband's
SABALONES, RESPONDENTS. share therein because of his adultery. She also prayed
that it enjoin the petitioner and his agents from a)
DECISION disturbing the occupants of the Forbes Park property
and b) disposing of or encumbering any of the
CRUZ, J.: conjugal properties.

The subject of this petition is the preliminary


After trial, Judge Mariano M. Umali, found that the
injunction issued by the respondent court pending
petitioner had indeed contracted a bigamous marriage
resolution of a case on appeal. We deal only with this
on October 5, 1981, with Thelma Cumareng, to whom
matter and not the merits of the case.
he had returned upon his retirement in 1985 at a
separate residence. The court thus decreed the legal
As a member of our diplomatic service assigned to
separation of the spouses and the forfeiture of the
different countries during his successive tours of
petitioner's share in the conjugal properties, declaring
duties, petitioner Samson T. Sabalones left to his wife,
as well that he was not entitled to support from his
herein respondent Remedios Gaviola-Sabalones, the
respondent wife.[1]
administration of some of their conjugal properties for
fifteen years.
This decision was appealed to the respondent court.
Pendente lite, the respondent wife filed a motion for
Sabalones retired as ambassador in 1985 and came
the issuance of a writ of preliminary injunction to
back to the Philippines but not to his wife and their
enjoin the petitioner from interfering with the
children. Four years later, he filed an action for
administration of their properties in Greenhills and
judicial authorization to sell a building and lot located
Forbes Park. She alleged inter alia that he had
at #17 Eisenhower St., Greenhills, San Juan, Metro
harassed the tenant of the Forbes Park property by
Manila, belonging to the conjugal partnership. He
informing him that his lease would not be renewed.
claimed that he was sixty-eight years old, very sick
She also complained that the petitioner had disposed
and living alone without any income, and that he
of one of their valuable conjugal properties in the
would use his share of the proceeds of the sale to
United States in favor of his paramour, to the
defray the prohibitive cost of his hospitalization and
prejudice of his legitimate wife and children.
medical treatment.

The petitioner opposed this motion and filed his own


In her answer, the private respondent opposed the
motion to prevent his wife from entering into a new
authorization and filed a counterclaim for legal
contract of lease over the Forbes Park property with
separation. She alleged that the house in Greenhills
its present tenant, or with future tenants, without his
was being occupied by her and their six children and
consent.
that they were depending for their support on the
rentals from another conjugal property, a building and
After hearing, the Court of Appeals, in an order dated
lot in Forbes Park which was on lease to Nobumichi
April 7, 1992, granted the preliminary injunction
Izumi. She also informed the court that despite her
prayed for by the wife.[2]
husband's retirement, he had not returned to his
The petitioner now assails this order, arguing that We agree with the respondent court that pending the
since the law provides for a joint administration of the appointment of an administrator over the whole mass
conjugal properties by the husband and wife, no of conjugal assets, the respondent court was justified
injunctive relief can be issued against one or the other in allowing the wife to continue with her
because no right will be violated. In support of this administration. It was also correct, taking into account
contention, he cites Art. 124 of the Family Code, the evidence adduced at the hearing, in enjoining the
reading as follows: petitioner from interfering with his wife's
Art. 124. The administration and enjoyment of the administration pending resolution of the appeal.
conjugal partnership property shall belong to both
spouses jointly. In case of disagreement, the husband's The law does indeed grant to the spouses joint
decision shall prevail, subject to recourse to the court administration over the conjugal properties as clearly
by the wife for proper remedy, which must be availed provided in the above-cited Article 124 of the Family
of within five years from the date of the contract Code. However, Article 61, also above quoted, states
implementing such decision. that after a petition for legal separation has been filed,
the trial court shall, in the absence of a written
In the event that one spouse is incapacitated or agreement between the couple, appoint either one of
otherwise unable to participate in the administration the spouses or a third person to act as the
of the conjugal properties, the other spouse may administrator.
assume sole powers of the administration. These
powers do not include disposition or encumbrance While it is true that no formal designation of the
without authority of the court or the written consent administrator has been made, such designation was
of the other spouse. In the absence of such authority implicit in the decision of the trial court denying the
or consent, the disposition or encumbrance shall be petitioner any share in the conjugal properties (and
void. However, the transaction shall be construed as a thus also disqualifying him as administrator thereof).
continuing offer on the part of the consenting spouse That designation was in effect approved by the Court
and the third person, and may be perfected as a of Appeals when it issued in favor of the respondent
binding contract upon the acceptance by the other wife the preliminary injunction now under challenge.
spouse or the authorization by the court before the
offer is withdrawn by either or both offerors. The primary purpose of the provisional remedy of
injunction is to preserve the status quo of the things
He further notes that the respondent court failed to
subject of the action or the relations between the
appoint an administrator of the conjugal assets as
parties and thus protect the rights of the plaintiff
mandated by Art. 61 of the Code, thus:
respecting these matters during the pendency of the
Art. 61. After the filing of the petition for legal
suit. Otherwise, the defendant may, before final
separation, the spouses shall be entitled to live
judgment, do or continue doing the act which the
separately from each other.
plaintiff asks the court to restrain and thus make
ineffectual the final judgment that may be rendered
The court, in the absence of a written agreement
afterwards in favor of the plaintiff.[3]
between the spouses, shall designate either of them or
a third person to administer the absolute community
As observed by Francisco, "Injunction is primarily a
or conjugal partnership property. The administrator
preventive remedy. Its province is to afford relief
appointed by the court shall have the same powers
against future acts which are against equity and good
and duties as those of a guardian under the Rules of
conscience and to keep and preserve the thing in the
Court.
status quo, rather than to remedy what is past or to
The Court has carefully considered the issues and the
punish for wrongful acts already committed. It may
arguments of the parties and finds that the petition
issue to prevent future wrongs although no right has
has no merit.
yet been violated."[4]
The Court notes that the wife has been administering
the subject properties for almost nineteen years now, Let it be stressed that the injunction has not
apparently without complaint on the part of the permanently installed the respondent wife as the
petitioner. He has not alleged, much less shown, that administrator of the whole mass of conjugal assets. It
her administration has caused prejudice to the has merely allowed her to continue administering the
conjugal partnership. What he merely suggests is that properties in the meantime without interference from
the lease of the Forbes Park property could be the petitioner, pending the express designation of the
renewed on better terms, or he should at least be administrator in accordance with Article 61 of the
given his share of the rentals. Family Code.

In her motion for the issuance of a preliminary WHEREFORE, the petition is DENIED for lack of
injunction, the respondent wife alleged that the merit. It is so ordered.
petitioner's harassment of their tenant at Forbes Park
would jeopardize the lease and deprive her and her Davide, Jr., Bellosillo, Quiason, and Kapunan, JJ.,
children of the income therefrom on which they concur.
depend for their subsistence. She also testified the
numerous other conjugal properties, real and
personal, in the sole custody of the husband,[*]
including various dollar accounts, two houses in
Quezon City and Cebu City, and a Mercedes Benz. The
private respondent also complained that on June 10,
1991, the petitioner executed a quitclaim over their
conjugal property in Apple Valley, San Bernardino,
California, U.S.A., in favor of Thelma Curameng, to
improve his paramour's luxurious lifestyle to the
prejudice of his legitimate family.

These allegations, none of which was refuted by the


husband, show that the injunction is necessary to
protect the interests of the private respondent and her
children and prevent the dissipation of the conjugal
assets.

The twin requirements of a valid injunction are the


existence of a right and its actual or threatened
violation.[5] Regardless of the outcome of the appeal, it
cannot be denied that as the petitioner's legitimate
wife (and the complainant and injured spouse in the
action for legal separation), the private respondent
has a right to a share (if not the whole) of the conjugal
estate. There is also, in our view, enough evidence to
raise the apprehension that entrusting said estate to
the petitioner may result in its improvident disposition
to the detriment of his wife and children. We agree
that inasmuch as the trial court had earlier declared
the forfeiture of the petitioner's share in the conjugal
properties, it would be prudent not to allow him in the
meantime to participate in its management.
Supreme Court of the Philippines spendthrift, buying expensive jewelry and antique
furniture instead of attending to household expenses.
THIRD DIVISION
Instead of giving their marriage a second chance as
G.R. No. 115640, March 15, 1995 allegedly pleaded by Reynaldo, Teresita left Reynaldo
and the children and went back to California. She
REYNALDO ESPIRITU AND GUILLERMA LAYUG, claims, however, that she spent a lot of money on long
PETITIONERS, VS. COURT OF APPEALS, AND distance telephone calls to keep in constant touch with
TERESITA MASAUDING, RESPONDENTS. her children.

DECISION Reynaldo brought his children home to the


Philippines, but because his assignment in Pittsburgh
MELO, J.: was not yet completed, he was sent back by his
company to Pittsburgh. He had to leave his children
This case concerns a seemingly void marriage and a
with his sister, co-petitioner Guillerma Layug and her
relationship which went sour. The innocent victims are
family.
two children born out of the same union. Upon this
Court now falls the not too welcome task of deciding
Teresita claims that she did not immediately follow her
the issue of who, between the father and mother, is
children because Reynaldo had filed a criminal case
more suitable and better qualified in helping the
for bigamy against her and she was afraid of being
children to grow into responsible, well-adjusted, and
arrested. The judgment of conviction in the bigamy
happy young adulthood.
case was actually rendered only on September 29,
1994. (Per Judge Harriet O. Demetriou, Branch 70,
Petitioner Reynaldo Espiritu and respondent Teresita
RTC, Pasig, pp. 210-222, Rollo ). Teresita, meanwhile,
Masauding first met sometime in 1976 in Iligan City
decided to return to the Philippines and on December
where Reynaldo was employed by the National Steel
8, 1992 and filed the petition for a writ of habeas
Corporation and Teresita was employed as a nurse in a
corpus against herein two petitioners to gain custody
local hospital. In 1977, Teresita left for Los Angeles,
over the children, thus starting the whole proceedings
California to work as a nurse. She was able to acquire
now reaching this Court.
immigrant status sometime later. In 1984, Reynaldo
was sent by his employer, the National Steel
On June 30, 1993, the trial court dismissed the
Corporation, to Pittsburgh, Pennsylvania as its liaison
petition for habeas corpus. It suspended Teresita's
officer and Reynaldo and Teresita then began to
parental authority over Rosalind and Reginald and
maintain a common law relationship of husband and
declared Reynaldo to have sole parental authority over
wife. On August 16, 1986, their daughter, Rosalind
them but with rights of visitation to be agreed upon by
Therese, was born. On October 7, 1987, while they
the parties and to be approved by the Court.
were on a brief vacation in the Philippines, Reynaldo
and Teresita got married, and upon their return to the
On February 16, 1994, the Court of Appeals per
United States, their second child, a son, this time, and
Justice Isnani, with Justices de Pano and Ibay-Somera
given the name Reginald Vince, was born on January
concurring, reversed the trial court's decision. It gave
12, 1988.
custody to Teresita and visitation rights on weekends
to Reynaldo.
The relationship of the couple deteriorated until they
decided to separate sometime in 1990. Teresita
Petitioners now come to this Court on a petition for
blamed Reynaldo for the break-up, stating he was
review, in the main contending that the Court of
always nagging her about money matters. Reynaldo,
Appeals disregarded the factual findings of the trial
on the other hand, contended that Teresita was a
court; that the Court of Appeals further engaged in
speculations and conjectures, resulting in its determination of the age of a minor child. Whether a
erroneous conclusion that custody of the children child is under or over seven years of age, the
should be given to respondent Teresita. paramount criterion must always be the child's
interests. Discretion is given to the court to decide
We believe that respondent court resolved the who can best assure the welfare of the child, and
question of custody over the children through an award the custody on the basis of that consideration.
automatic and blind application of the age proviso of In Unson III vs. Navarro (101 SCRA 183 [1980]), we
Article 363 of the Civil Code which reads: laid down the rule that "in all controversies regarding
the custody of minors, the sole and foremost
Art. 363. In all questions on the care, custody, consideration is the physical, education, social and
education and property of the children, the latter's moral welfare of the child concerned, taking into
welfare shall be paramount. No mother shall be account the respective resources and social and moral
separated from her child under seven years of age, situations of the contending parents" and in Medina
unless the court finds compelling reasons for such vs. Makabali (27 SCRA 502 [1969]), where custody of
measure. the minor was given to a non-relative as against the
mother, then the country's leading civilist, Justice
and of Article 213 of the Family Code which in turn J.B.L. Reyes, explained its basis in this manner:
provides:
... While our law recognizes the right of a parent to the
Art. 213. In case of separation of the parents, parental custody of her child. Courts must not lose sight of the
authority shall be exercised by the parent designated basic principle that "in all questions on the care,
by the Court. The Court shall take into account all custody, education and property of children, the
relevant considerations, especially the choice of the latter's welfare shall be paramount" (Civil Code of the
child over seven years of age, unless the parent Philippines, Art. 363), and that for compelling reasons,
chosen is unfit. even a child under seven may be ordered separated
from the mother (do.). This is as it should be, for in the
The decision under review is based on the report of continual evolution of legal institutions, the patria
the Code Commission which drafted Article 213 that a potestas has been transformed from the jus vitae ac
child below seven years still needs the loving, tender necis (right of life and death) of the Roman law, under
care that only a mother can give and which, which the offspring was virtually a chattel of his
presumably, a father cannot give in equal measure. parents, into a radically different institution, due to
The commentaries of a member of the Code the influence of Christian faith and doctrines. The
Commission, former Court of Appeals Justice Alicia obligational aspect is now supreme. As pointed out by
Sempio-Diy, in a textbook on the Family Code, were Puig Pena, now "there is no power, but a task; no
also taken into account. Justice Diy believes that a complex of rights (of parents) but a sum of duties; no
child below seven years should still be awarded to her sovereignty, but a sacred trust for the welfare of the
mother even if the latter is a prostitute or is unfaithful minor."
to her husband. This is on the theory that moral
dereliction has no effect on a baby unable to As a result, the right of parents to the company and
understand such action. (Handbook on the Family custody of their children is but ancillary to the proper
Code of the Philippines, 1988 Ed., p. 297.) discharge of parental duties to provide the children
with adequate support, education, moral, intellectual
The Court of Appeals was unduly swayed by an and civic training and development (Civil Code, Art.
abstract presumption of law rather than an 356).
appreciation or relevant facts and the law which
should apply to those facts. The task of choosing the (pp. 504-505.)
parent to whom custody shall be awarded is not a
ministerial function to be determined by a simple In ascertaining the welfare and best interests of the
child, courts are mandated by the Family Code to take consideration.
into account all relevant considerations. If a child is
under seven years of age, the law presumes that the We are inclined to sustain the findings and conclusions
mother is the best custodian. The presumption is of the regional trial court because it gave greater
strong but it is not conclusive. It can be overcome by attention to the choice of Rosalind and considered in
"compelling reasons". If a child is over seven, his detail all the relevant factors bearing on the issue of
choice is paramount but, again, the court is not bound custody.
by that choice. In its discretion, the court may find the
chosen parent unfit and award custody to the other When she was a little over 5 years old, Rosalind was
parent, or even to a third party as it deems fit under referred to a child psychologist, Rita Flores
the circumstances. Macabulos, to determine the effects of uprooting her
from the Assumption College where she was studying.
In the present case, both Rosalind and Reginald are Four different tests were administered. The results of
now over seven years of age. Rosalind celebrated her the tests are quite revealing. The responses of
seventh birthday on August 16, 1993 while Reginald Rosalind about her mother were very negative,
reached the same age on January 12, 1995. Both are causing the psychologist to delve deeper into the
studying in reputable schools and appear to be fairly child's anxiety. Among the things revealed by Rosalind
intelligent children, quite capable of thoughtfully was an incident where she saw her mother hugging
determining the parent with whom they would want to and kissing a "bad" man who lived in their house and
live. Once the choice has been made, the burden worked for her father. Rosalind refused to talk to her
returns to the court to investigate if the parent thus mother even on the telephone. She tended to be
chosen is unfit to assume parental authority and emotionally emblazed because of constant fears that
custodial responsibility. she may have to leave school and her aunt's family to
go back to the United States to live with her mother.
Herein lies the error of the Court of Appeals. Instead The 5-1/2 page report deals at length with feelings of
of scrutinizing the records to discover the choice of insecurity and anxiety arising from strong conflict with
the children and rather than verifying whether that the mother. The child tried to compensate by having
parent is fit or unfit, respondent court simply followed fantasy activities. All of the 8 recommendations of the
statutory presumptions and general propositions child psychologist show that Rosalind chooses
applicable to ordinary or common situations. The petitioners over the private respondent and that her
seven-year age limit was mechanically treated as an welfare will be best served by staying with them (pp.
arbitrary cut off period and not a guide based on a 199-205, Rollo ).
strong presumption.
At about the same time, a social welfare case study
A scrutiny of the pleadings in this case indicates that was conducted for the purpose of securing the travel
Teresita, or at least, her counsel are more intent on clearance required before minors may go abroad.
emphasizing the "torture and agony" of a mother Social Welfare Officer Emma D. Estrada Lopez, stated
separated from her children and the humiliation she that the child Rosalind refused to go back to the
suffered as a result of her character being made a key United States and be reunited with her mother. She
issue in court rather than the feelings and future, the felt unloved and uncared for. Rosalind was more
best interests and welfare of her children. While the attached to her Yaya who did everything for her and
bonds between a mother and her small child are Reginald. The child was found suffering from
special in nature, either parent, whether father or emotional shock caused by her mother's infidelity. The
mother, is bound to suffer agony and pain if deprived application for travel clearance was recommended for
of custody. One cannot say that his or her suffering is denial (pp. 206-209, Rollo ).
greater than that of the other parent. It is not so much
the suffering, pride, and other feelings of either parent Respondent Teresita, for her part, argues that the 7-
but the welfare of the child which is the paramount year age reference in the law applies to the date when
the petition for a writ of habeas corpus is filed, not to considered the fact that Reynaldo and his sister,
the date when a decision is rendered. This argument is herein petitioner GuiIlerma Layug, hired the two
flawed. Considerations involving the choice made by a expert witnesses. Actually, this was taken into account
child must he ascertained at the time that either by the trial court which stated that the allegations of
parent is given custody over the child. The matter of bias and unfairness made by Teresita against the
custody is not permanent and unalterable. If the psychologist and social worker were not
parent who was given custody suffers a future substantiated.
character change and becomes unfit, the matter of
custody can always be re-examined and adjusted The trial court stated that the professional integrity
(Unson III v. Navarro supra, at p. 189). To be sure, the and competence of the expert witnesses and the
welfare, the best interests, the benefit, and the good objectivity of the interviews were unshaken and
of the child must be determined as of the time that unimpeached. We might add that their testimony
either parent is chosen to be the custodian. At the remain uncontroverted. We also note that the
present time, both children are over 7 years of age examinations made by the experts were conducted in
and are thus perfectly capable of making a fairly late 1991, well over a year before the filing by Teresita
intelligent choice. of the habeas corpus petition in December, 1992.
Thus, the examinations were at that time not intended
According to respondent Teresita, she and her to support petitioners' position in litigation, because
children had a tearful reunion in the trial court, with there was then not even an impending possibility of
the children crying, grabbing, and embracing her to one. That they were subsequently utilized in the case
prevent the father from taking them away from her. a quo when it did materialize does not change the
We are more inclined to believe the father's contention tenor in which they were first obtained.
that the children ignored Teresita in court because
such an emotional display as described by Teresita in Furthermore, such examinations, when presented to
her pleadings could not have been missed by the trial the court must be construed to have been presented
court. Unlike the Justices of the Court of Appeals not to sway the court in favor of any of the parties, but
Fourth Division, Judge Lucas P. Bersamin personally to assist the court in the determination of the issue
observed the children and their mother in the before it. The persons who effected such examinations
courtroom. What the Judge found is diametrically were presented in the capacity of expert witnesses
opposed to the contentions of respondent Teresita. testifying on matters within their respective
The Judge had this to say on the matter: knowledge and expertise. On this matter, this Court
had occasion to rule in the case of Sali vs. Abukakar
And, lastly, the Court cannot look at petitioner et. al (17 SCRA 988 [1966]).
[Teresita} in similar light, or with more
understanding, especially as her conduct and The fact that, in a particular litigation, an NBI expert
demeanor in the courtroom (during most of the examines certain contested documents, at the request,
proceedings) or elsewhere (but in the presence of the not of a public officer or agency of the Government,
undersigned presiding judge) demonstrated her but of a private litigant, does not necessarily nullify
ebulent temper that tended to corroborate the alleged the examination thus made. Its purpose, presumably,
violence of her physical punishment of the children to assist the court having jurisdiction over said
(even if only for ordinary disciplinary purposes) and litigation, in the performance of its duty to settle
emotional instability, typified by her failure (or correctly the issues relative to said documents. Even a
refusal ?) to show deference and respect to the Court non-expert private individual may examine the same, if
and the other parties (pp. 12-13, RTC Decision) there are facts within his knowledge which may help
the court in the determination of said issue. Such
Respondent Teresita also questions the competence examination, which may properly be undertaken by a
and impartiality of the expert witnesses. Respondent non-expert private individual, does not, certainly
court, in turn, states that the trial court should have
become null and void when the examiner is an expert the interview of minors who leave for abroad with
and/or an officer of the NBI. their parents or other persons. The interview was for
purposes of foreign travel by a 5-year old child and
(pp. 991-992.) had nothing to do with any pending litigation. On
cross-examination, Social Worker Lopez stated that
In regard to testimony of expert witnesses it was held her assessment of the minor's hatred for her mother
in Salomon et. al. vs Intermediate Appellate Court et. was based on the disclosures of the minor. It is
al. (185 SCRA 352 [1990]): inconceivable, much less presumable that Ms. Lopez
would compromise her position, ethics, and the public
... Although courts are not ordinarily bound by expert trust reposed on a person of her position in the course
testimonies, they may place whatever weight they of doing her job by falsely testifying just to support the
choose upon such testimonies in accordance with the position of any litigant.
facts of the case. The relative weight and sufficiency of
expert testimony is peculiarly within the province of The psychologist, Ms. Macabulos, is a B.S. magna cum
the trial court to decide, considering the ability and laude graduate in Psychology and an M.A. degree
character of the witness, his actions upon the witness holder also in Psychology with her thesis graded
stand, the weight and process of the reasoning by "Excellent". She was a candidate for a doctoral degree
which he has supported his opinion, his possible bias at the time of the interview. Petitioner Reynaldo may
in favor of the side for whom he testifies, the fact that have shouldered the cost of the interview but Ms.
he is a paid witness, the relative opportunities for Macabulos' services were secured because
study and observation of the matters about which he Assumption College wanted an examination of the
testifies, and any other matters which reserve to child for school purposes and not because of any
illuminate his statements. The opinion of the expert litigation. She may have been paid to examine the
may not be arbitrarily rejected; it is to be considered child and to render a finding based on her
by the court in view of all the facts and circumstances examination, but she was not paid to fabricate such
in the case and when common knowledge utterly fails, findings in favor of the party who retained her
the expert opinion may be given controlling effect (20 services. In this instance it was not even petitioner
Am. Jur., 1056-1058). The problem of the credibility of Reynaldo but the school authorities who initiated the
the expert witness and the evaluation of his testimony same. It cannot be presumed that a professional of her
is left to the discretion of the trial court whose ruling potential and stature would compromise her
thereupon is not reviewable in the absence of an professional standing.
abuse of that discretion.
Teresita questions the findings of the trial court that:
(p. 359.)
1. Her morality is questionable as shown by her
It was in the exercise of this discretion, coupled with marrying Reynaldo at the time she had a
the opportunity to assess the witnesses' character and subsisting marriage with another man.
to observe their respective demeanor that the trial
court opted to rely on their testimony, and we believe 2. She is guilty of grave indiscretion in carrying
that the trial court was correct in its action. on a love affair with one of the Reynaldo's
fellow NSC employees.
Under direct examination on February 4, 1993, Social
Worker Lopez stated that Rosalind and her aunt were 3. She is incapable of providing the children with
about to board a plane when they were off-loaded necessities and conveniences commensurate
because there was no required clearance. They were to their social standing because she does not
referred to her office, at which time Reginald was also even own any home in the Philippines.
brought along and interviewed. One of the regular
duties of Social Worker Lopez in her job appears to be
4. She is emotionally unstable with ebullient Reynaldo, in Pittsburgh. The two were married on
temper. October 7, 1987. Of course, to dilute this disadvantage
on her part, this matter of her having contracted a
bigamous marriage later with Reynaldo, Teresita tried
It is contended that the above findings do not to picture Reynaldo as a rapist, alleging further that
constitute the compelling reasons under the law which she told Reynaldo about her marriage to Lustado on
would justify depriving her of custody over the the occasion when she was raped by Reynaldo.
children; worse, she claims, these findings are non- Expectedly, Judge Harriet Demetriou of the Pasig RTC
existent and have not been proved by clear and lent no weight to such tale. And even if this story were
convincing evidence. given credence, it adds to and not subtracts from the
conviction of this Court about Teresita's values. Rape
Public and private respondents give undue weight to is an insidious crime against privacy. Confiding to
the matter of a child under 7 years of age not to be one's potential rapist about a prior marriage is not a
separated from the mother, without considering what very convincing indication that the potential victim is
the law itself denominates as compelling reasons or averse to the act. The implication created is that the
relevant considerations to otherwise decree. In the act would be acceptable if not for the prior marriage.
Unson III case, earlier mentioned, this Court stated
that it found no difficulty in not awarding custody to More likely is Reynaldo's story that he learned of the
the mother, it being in the best interest of the child "to prior marriage only much later. In fact, the rape
be freed from the obviously unwholesome, not to say incident itself is unlikely against a woman who had
immoral influence, that the situation where [the driven three days and three nights from California,
mother] had placed herself …might create in the who went straight to the house of Reynaldo in
moral and social outlook of [the child] who was in her Pittsburgh and upon arriving went to bed and, who
formative and most impressionable stage …” immediately thereafter started to live with him in a
relationship which is marital in nature if not in fact.
Then too, it must be noted that both Rosalind and
Reginald are now over 7 years of age. They Judge Bersamin of the court a quo believed the
understand the difference between right and wrong, testimony of the various witnesses that while married
ethical behavior and deviant immorality. Their best to Reynaldo, Teresita entered into an illicit
interests would be better served in an environment relationship with Perdencio Gonzales right there in the
characterized by emotional stability and a certain house of petitioner Reynaldo and respondent Teresita.
degree of material sufficiency. There is nothing in the Perdencio had been assigned by the National Steel
records to show that Reynaldo is an "unfit" person Corporation to assist in the project in Pittsburgh and
under Article 213 of the Family Code. In fact, he has was staying with Reynaldo, his co-employee, in the
been trying his best to give the children the kind of latter's house. The record shows that the daughter
attention and care which the mother is not in a Rosalind suffered emotional disturbance caused by the
position to extend. traumatic effect of seeing her mother hugging and
kissing a boarder in their house. The record also
The argument that the charges against the mother are shows that it was Teresita who left the conjugal home
false is not supported by the records. The findings of and the children, bound for California. When
the trial court are based on evidence. Perdencio Gonzales was reassigned to the Philippines,
Teresita followed him and was seen in his company in
Teresita does not deny that she was legally married to a Cebu hotel, staying in one room and taking breakfast
Roberto Lustado on December 17, 1984 in California together. More significant is that letters and written
(p. 13, Respondent's Memorandum; p. 238, Rollo ; pp. messages from Teresita to Perdencio were submitted
11, RTC Decision). Less than a year later, she had in evidence (p. 12, RTC Decision).
already driven across the continental United States to
commence living with another man, petitioner The argument that moral laxity or the habit of flirting
from one man to another does not fall under stationed in Quezon City and presided over by the
"compelling reasons" is neither meritorious nor Honorable Lucas P. Bersamin in its Civil Case No. Q-
applicable in this case. Not only are the children over 92-14206 awarding custody of the minors Rosalind
seven years old and their clear choice is the father, but and Reginald Espiritu to their father, Reynaldo
the illicit or immoral activities of the mother had Espiritu, is reinstated. No special pronouncement is
already caused emotional disturbances, personality made as to costs.
conflicts, and exposure to conflicting moral values, at
least in Rosalind. This is not to mention her conviction SO ORDERED.
for the crime of bigamy, which from the records
appears to have become final (pp. 210-222, Rollo ). Feliciano, (Chairman), Romero, Vitug, and Francisco,
JJ., concur.
Respondent court's finding that the father could not
very well perform the role of a sole parent and
substitute mother because his job is in the United
States while the children will be left behind with their
aunt in the Philippines is misplaced. The assignment
of Reynaldo in Pittsburgh is or was a temporary one.
He was sent there to oversee the purchase of a steel
mill component and various equipment needed by the
National Steel Corporation in the Philippines. Once
the purchases are completed, there is nothing to keep
him there anymore. In fact, in a letter dated January
30, 1995, Reynaldo informs this Court of the
completion of his assignment abroad and of his
permanent return to the Philippines (ff. p 263, Rollo ).

The law is more than satisfied by the judgment of the


trial court. The children are now both over seven
years old. Their choice of the parent with whom they
prefer to stay is clear from the record. From all
indications, Reynaldo is a fit person, thus meeting the
two requirements found in the first paragraph of
Article 213 of the Family Code. The presumption
under the second paragraph of said article no longer
applies as the children are over seven years. Assuming
that the presumption should have persuasive value for
children only one or two years beyond the age of
seven years mentioned in the statute, there are
compelling reasons and relevant considerations not to
grant custody to the mother. The children understand
the unfortunate shortcomings of their mother and
have been affected in their emotional growth by her
behavior.

WHEREFORE, the petition is hereby GRANTED. The


decision of the Court of Appeals is reversed and set
aside, and the decision of Branch 96 of the Regional
Trial Court of the National Capital Judicial Region
Supreme Court of the Philippines claims involving money and other properties,
counterclaimed for the declaration of nullity ab initio
G.R. No. L-30977, January 31, 1972 of his marriage with Carmen O. Lapuz Sy, on the
ground of his prior and subsisting marriage,
CARMEN LAPUZ SY, REPRESENTED BY HER celebrated according to Chinese law and customs,
SUBSTITUTE MACARIO LAPUZ, PETITIONER with one Go Hiok, alias Ngo Hiok.
AND APPELLANT, VS. EUFEMIO S. EUFEMIO
ALIAS EUFEMIO SY UY, RESPONDENT AND Issues having been joined, trial proceeded and the
APPELLEE. parties adduced their respective evidence. But before
the trial could be completed (the respondent was
DECISION already scheduled to present surrebuttal evidence on
9 and 18 June 1969), petitioner Carmen O. Lapuz Sy
REYES, J.B.L., J.: died in a vehicular accident on 31 May 1969. Counsel
for petitioner duly notified the court of her death.
Petition, filed after the effectivity of Republic Act
5440, for review by certiorari of an order, dated 29 On 9 June 1969, respondent Eufemio moved to dismiss
July 1969, of the Juvenile and Domestic Relations the "petition for legal separation"[1] on two (2)
Court of Manila, in its Civil Case No. 20387, grounds, namely: that the petition for legal separation
dismissing said case for legal separation on the was filed beyond the one-year period provided for in
ground that the death of the therein plaintiff, Carmen Article 102 of the Civil Code; and that the death of
O. Lapuz Sy, which occurred during the pendency of Carmen abated the action for legal separation.
the case, abated the cause of action as well as the
action itself. The dismissal order was issued over the On 26 June 1969, counsel for deceased petitioner
objection of Macario Lapuz, the heir of the deceased moved to substitute the deceased Carmen by her
plaintiff (and petitioner herein) who sought to father, Macario Lapuz. Counsel for Eufemio opposed
substitute the deceased and to have the case the motion.
prosecuted to final judgment.
On 29 July 1969, the court issued the order under
On 18 August 1953, Carmen O. Lapuz Sy filed a review, dismissing the case.[2] In the body of the order,
petition for legal separation against Eufemio S. the court stated that the motion to dismiss and the
Eufemio, alleging, in the main, that they were married motion for substitution had to be resolved on the
civilly on 21 September 1934 and canonically on 30 question of whether or not the plaintiff's cause of
September 1934; that they had lived together as action has survived, which the court resolved in the
husband and wife continuously until 1943 when her negative. Petitioner's counsel moved to reconsider but
husband abandoned her, that they had no child; that the motion was denied on 15 September 1969.
they acquired properties during their marriage; and
that she discovered her husband cohabiting with a After first securing an extension of time to file a
Chinese woman named Go Hiok at 1319 Sisa Street, petition for review of the order of dismissal issued by
Manila, on or about March 1949. She prayed for the the juvenile and domestic relations court, the
issuance of a decree of legal separation, which, among petitioner filed the present petition on 14 October
others, would order that the defendant Eufemio S. 1969. The same was given due course and answer
Eufemio should be deprived of his share of the thereto was filed by respondent, who prayed for the
conjugal partnership profits. affirmance of the said order.[3]

In his second amended answer to the petition, herein Although the defendant below, the herein respondent
respondent Eufemio S. Eufemio alleged affirmative Eufemio S. Eufemio, filed counterclaims, he did not
and special defenses, and, along with several other pursue them after the court below dismissed the case.
He acquiesced in the dismissal of said counterclaims Being personal in character, it follows that the death
by praying for the affirmance of the order that of one party to the action causes the death of the
dismissed not only the petition for legal separation but action itself – actio personalis moritur cum persona.
also his counterclaim to declare the Eufemio-Lapuz
marriage to be null and void ab initio. * * * When one of the spouses is dead, there is no need
for divorce, because the marriage is dissolved. The
But petitioner Carmen O. Lapuz Sy (through her self- heirs cannot even continue the suit, if the death of the
assumed substitute – for the lower court did not act on spouse takes place during the course of the suit
the motion for substitution) stated the principal issue (Article 244, Section 3). The action is absolutely dead
to be as follows: (Cass., July 27, 1871, D. 71. 1. 81; Cass. req., May 8,
1933, D.H. 1933, 332."[4]
"When an action for legal separation is converted by
the counterclaim into one for a declaration of nullity of "Marriage is a personal relation or status, created
a marriage, does the death of a party abate the under the sanction of law, and an action for divorce is
proceedings?" a proceeding brought for the purpose of effecting a
dissolution of that relation. The action is one of a
The issue as framed by petitioner injects into it a personal nature. In the absence of a statute to the
supposed conversion of a legal separation suit to one contrary, the death of one of the parties to such action
for declaration of nullity of a marriage, which is abates the action, for the reason that death has settled
without basis, for even petitioner asserted that "the the question of separation beyond all controversy and
respondent has acquiesced to the dismissal of his deprived the court of jurisdiction, both over the
counterclaim" (Petitioner's Brief, page 22). Not only persons of the parties to the action and of the subject-
this. The petition for legal separation and the matter of the action itself. For this reason the courts
counterclaim to declare the nullity of the self same are almost unanimous in holding that the death of
marriage can stand independent and separate either party to a divorce proceeding, before final
adjudication. They are not inseparable nor was the decree, abates the action. 1 Corpus Juris, 208; Wren
action for legal separation converted into one for a vs. Moss, 2 Gilman, 72; Danforth vs. Danforth, 111 III.
declaration of nullity by the counterclaim, for legal 236; Matter of Grandall, 196 N.Y. 127, 89 N.E. 578,
separation presupposes a valid marriage, while the 134 Am St. Rep. 830, 17 Ann. Cas. 874; Wilcon vs.
petition for nullity has a voidable marriage as a Wilson, 73 Mich. 620, 41 N.W. 817; Strickland vs.
precondition. Strickland, 80 Ark. 452, 97 S. W. 659; McCurley vs.
McCurley, 60 Md. 185, 45 Am. Rep. 717; Begbie vs.
The first real issue in this case is: Does the death of Begbie, 128 Cal. 155, 60 Pac. 667, 49 L. R. A. 141." [5]
the plaintiff before final decree, in an action for legal
separation, abate the action? If it does, will The same rule is true of causes of action and suits for
abatement also apply if the action involves property separation and maintenance (Johnson vs. Bates, Ark.
rights? 101 SW 412; 1 Corpus Juris 208).

An action for legal separation which involves nothing A review of the resulting changes in property relations
more than the bed-and-board separation of the between spouses shows that they are solely the effect
spouses (there being no absolute divorce in this of the decree of legal separation; hence, they can not
jurisdiction) is purely personal. The Civil Code of the survive the death of the plaintiff if it occurs prior to
Philippines recognizes this in its Article 100, by the decree. On this point, Article 106 of the Civil Code
allowing only the innocent spouse (and no one else) to provides:
claim legal separation; and in its Article 108, by
providing that the spouses can, by their "Art. 106. The decree of legal separation shall have
reconciliation, stop or abate the proceedings and even the following effects:
rescind a decree of legal separation already rendered.
"(1) The spouses shall be entitled to live separately The same result flows from a consideration of the
from each other, but the marriage bonds shall not be enumeration of the actions that survive for or against
severed; administrators in Section 1, Rule 87, of the Revised
Rules of Court:
"(2) The conjugal partnership of gains or the absolute
conjugal community of property shall be dissolved and "SECTION 1. Actions which may and which may not
liquidated, but the offending spouse shall have no be brought against executor or administrator. No
right to any share of the profits earned by the action upon a claim for the recovery of money or debt
partnership or community, without prejudice to the or interest thereon shall be commenced against the
provisions of article 176; executor or administrator; but actions to recover real
or personal property, or an interest therein, from the
"(3) The custody of the minor children shall be estate, or to enforce a lien thereon, and actions to
awarded to the innocent spouse, unless otherwise recover damages for an injury to person or property,
directed by the court in the interest of said minors, for real or personal, may be commenced against him."
whom said court may appoint a guardian;
Neither actions for legal separation or for annulment
"(4) The offending spouse shall be disqualified from of marriage can be deemed fairly included in the
inheriting from the innocent spouse by intestate enumeration.
succession. Moreover, provisions in favor of the
offending spouse made in the will of the innocent one A further reason why an action for legal separation is
shall be revoked by operation of law." * * * abated by the death of the plaintiff, even if property
rights are involved, is that these rights are mere
From this article it is apparent that the right to the effects of a decree of separation, their source being
dissolution of the conjugal partnership of gains (or of the decree itself; without the decree such rights do
the absolute community of property), the loss of right not come into existence, so that before the finality of a
by the offending spouse to any share of the profits decree, these claims are merely rights in expectation.
earned by the partnership or community, or his If death supervenes during the pendency of the action,
disqualification to inherit by intestacy from the no decree can be forthcoming, death producing a
innocent spouse as well as the revocation of more radical and definitive separation; and the
testamentary provisions in favor of the offending expected consequential rights and claims would
spouse made by the innocent one, are all rights and necessarily remain unborn.
disabilities that, by the very terms of the Civil Code
article, are vested exclusively in the persons of the As to the petition of respondent-appellee Eufemio for a
spouses; and by their nature and intent, such claims declaration of nullity ab initio of his marriage to
and disabilities are difficult to conceive as assignable Carmen Lapuz, it is apparent that such action became
or transmissible. Hence, a claim to said rights is not a moot and academic upon the death of the latter, and
claim that "is not thereby extinguished" after a party there could be no further interest in continuing the
dies, under Section 17, Rule 3, of the Rules of Court, same after her demise, that automatically dissolved
to warrant continuation of the action through a the questioned union. Any property rights acquired by
substitute of the deceased party. either party as a result of Article 144 of the Civil Code
of the Philippines[6] could be resolved and determined
"Sec. 17. Death of party. After a party dies and the in a proper action for partition by either the appellee
claim is not thereby extinguished, the court shall or by the heirs of the appellant.
order, upon proper notice, the legal representative of
the deceased to appear and to be substituted for the In fact, even if the bigamous marriage had not been
deceased, within a period of thirty (30) days, or within void ab initio but only voidable under Article 83,
such time as may be granted. * * *." paragraph 2, of the Civil Code, because the second
marriage had been contracted with the first wife
having been an absentee for seven consecutive years,
or when she had been generally believed dead, still
the action for annulment became extinguished as soon
as one of the three persons involved had died, as
provided in Article 87, paragraph 2, of the Code,
requiring that the action for annulment should be
brought during the lifetime of any one of the parties
involved. And furthermore, the liquidation of any
conjugal partnership that might have resulted from
such voidable marriage must be carried out "in the
testate or intestate proceedings of the deceased
spouse," as expressly provided in Section 2 of the
Revised Rule 73, and not in the annulment
proceeding.

ACCORDINGLY , the appealed judgment of the


Manila Court of Juvenile and Domestic Relations is
hereby affirmed. No special pronouncement as to
costs.

Concepcion, C.J., Makalintal, Zaldivar, Castro,


Fernando, Teehankee, Barredo, Villamor, and
Makasiar, JJ., concur.
Supreme Court of the Philippines provisions of Article 370 (should be 372) of the Civil
Code, and that it is not sanctioned by the Rules of
G. R. No. L-18008, October 30, 1962 Court.

ELISEA LAPERAL, PETITIONER, VS. REPUBLIC In its decision of October 31, 1960, the court denied
OF THE PHILIPPINES, OPPOSITOR the petition for the reason that Article 372 of the Civil
Code requires the wife, even after she is decreed
DECISION legally separated from her husband, to continue using
the name and surname she employed before the legal
BARRERA, J.: separation. Upon petitioner's motion, however, the
court, treating the petition as one for change of name,
On May 10, 1960, Elisea Laperal filed in the Court of reconsidered its decision and granted the petition on
First Instance of Baguio (Sp. Proc. No. 433) a petition the ground that to allow petitioner, who is a
which reads: businesswoman decreed legally separated from her
husband, to continue using her married name would
"1. That petitioner has been a bona fide resident of the give rise to confusion in her finances and the eventual
City of Baguio for the last three years prior to the date liquidation of the conjugal assets. Hence, this appeal
of the filing of this petition; by the State.

"2. That petitioner's maiden name is ELISEA The contention of the Republic finds support in the
LAPERAL; that on March 24, 1939, she married Mr. provisions of Article 372 of the New Civil Code which
Enrique R. Santamaria; that in a partial decision reads:
entered on this Honorable Court on January 18, 1958,
in Civil Case No. 356 of this Court, entitled 'Enrique R. "ART. 372. When legal separation has been granted,
Santamaria vs. Elisea L. Santamaria,' Mr. Enrique the wife shall continue using her name and surname
Santamaria was given a decree of legal separation employed before the legal separation". (Italics
from her; that the said partial decision is now final; supplied)

"3. That during her marriage to Enrique R. Note that the language of the statute is mandatory
Santamaria, she naturally used, instead of her maiden that the wife, even after the legal separation has been
name, that of Elisea L. Santamaria; that aside from decreed, shall continue using her name and surname
her legal separation from Enrique R. Santamaria, she employed before the legal separation. This is so
has also ceased to live with him for many years now; because her married status is unaffected by the
separation, there being no severance of the vinculum.
"4. That in view of the fact that she has been legally It seems to be the policy of the law that the wife
separated from Mr. Enrique R. Santamaria and has should continue to use the name indicative of her
likewise ceased to live with him for many years, it is unchanged status for the benefit of all concerned.
desirable that she be allowed to change her name
and/or be permitted to resume using her maiden The appellee contends, however, that the petition is
name, to wit: ELISEA LAPERAL. substantially for change of her name from Elisea L.
Santa-maria, the one she has been using, since her
"Wherefore, petitioner respectfully prayed that after marriage, to Elisea Laperal, her maiden name, giving
the necessary proceedings are had, she be allowed to as reason or cause therefor her being legally
resume using her maiden name of Elisea Laperal." separated from the husband, Enrique R. Santamaria,
and the fact that they have ceased to live together for
The petition was opposed by the City Attorney of
many years.
Baguio on the ground that the same violates the
There seems to be no dispute that in the institution of
these proceedings, the procedure prescribed in Rule
103 of the Rules of Court for change of name has been
observed. But from the petition quoted in full at the
beginning of this opinion, the only reason relied upon
for the change of name is the fact that petitioner is
legally separated from her husband and has, in fact,
ceased to live with him for many years. It is doubtful,
to say the least, whether Rule 103 which refers to
change of name in general, may prevail over the
specific provisions of Article 372 of the New Civil Code
with regards to married women legally separated from
their husbands. Even, however, applying Rule 103 to
this case, the fact of legal separation alone which is
the only basis for the petition at bar—is, in our
opinion, not a sufficient ground to justify a change of
the name of herein petitioner, for to hold otherwise
would be to provide an easy circumvention of the
mandatory provisions of the said Article 372.

It is true that in the second decision which


reconsidered the first it is stated that as petitioner
owns extensive business interests, the continued use
of her husband's surname may cause undue confusion
in her finances and the eventual liquidation of the
conjugal assets. This finding is however without basis.
In the first place, these were not the causes upon
which the petition was based; hence, obviously no
evidence to this effect had been adduced. Secondly,
with the issuance of the decree of legal separation in
1958, the conjugal partnership between petitioner and
her husband had automatically been dissolved and
liquidated. (Art. 106[2], Civil Code.) Consequently,
there could be no more occasion for an eventual
liquidation of the conjugal assets.

Wherefore, the order of the lower court of December


1, 1960, granting the petition, is hereby set aside and
the petition dismissed. Without costs. So ordered.

Bengzon, C. J., Padilla, Bautista Angelo, Labrador,


Concepcion, Reyes, J. B.L., Paredes, Dizon, Regala and
Makalintal, JJ., concur.
Supreme Court of the Philippines 5357; (2) secure the approval of the Cavite RTC to
exclude the property from the legal separation case;
SECOND DIVISION and (3) secure the removal of the notice of lis pendens
pertaining to the said case and annotated on TCT No.
G.R. No. 169900, March 18, 2010 5357. However, despite repeated demands from
Mario, Alfredo failed to comply with these stipulations.
MARIO SIOCHI, PETITIONER, VS. ALFREDO After paying the P5 million earnest money as partial
GOZON, WINIFRED GOZON, GIL TABIJE, INTER- payment of the purchase price, Mario took possession
DIMENSIONAL REALTY, INC., AND ELVIRA of the property in September 1993. On 6 September
GOZON, RESPONDENTS. 1993, the Agreement was annotated on TCT No. 5357.

[G.R. NO. 169977] Meanwhile, on 29 June 1994, the Cavite RTC rendered
a decision[6] in the legal separation case, the
INTER-DIMENSIONAL REALTY, INC., dispositive portion of which reads:
PETITIONER, VS. MARIO SIOCHI, ELVIRA
GOZON, ALFREDO GOZON, AND WINIFRED WHEREFORE, judgment is hereby rendered decreeing
GOZON, RESPONDENTS. the legal separation between petitioner and
respondent. Accordingly, petitioner Elvira Robles
RESOLUTION Gozon is entitled to live separately from respondent
Alfredo Gozon without dissolution of their marriage
CARPIO, J.: bond. The conjugal partnership of gains of the spouses
is hereby declared DISSOLVED and LIQUIDATED.
This is a consolidation of two separate petitions for
Being the offending spouse, respondent is deprived of
review,[1] assailing the 7 July 2005 Decision[2] and the
his share in the net profits and the same is awarded to
30 September 2005 Resolution[3] of the Court of
their child Winifred R. Gozon whose custody is
Appeals in CA-G.R. CV No. 74447.
awarded to petitioner.

This case involves a 30,000 sq.m. parcel of land


Furthermore, said parties are required to mutually
(property) covered by TCT No. 5357.[4] The property is
support their child Winifred R. Gozon as her needs
situated in Malabon, Metro Manila and is registered in
arises.
the name of "Alfredo Gozon (Alfredo), married to
Elvira Gozon (Elvira)."
SO ORDERED.[7]

On 23 December 1991, Elvira filed with the Cavite


As regards the property, the Cavite RTC held that it is
City Regional Trial Court (Cavite RTC) a petition for
deemed conjugal property.
legal separation against her husband Alfredo. On 2
January 1992, Elvira filed a notice of lis pendens,
On 22 August 1994, Alfredo executed a Deed of
which was then annotated on TCT No. 5357.
Donation over the property in favor of their daughter,
Winifred Gozon (Winifred). The Register of Deeds of
On 31 August 1993, while the legal separation case
Malabon, Gil Tabije, cancelled TCT No. 5357 and
was still pending, Alfredo and Mario Siochi (Mario)
issued TCT No. M-10508[8] in the name of Winifred,
[5]
entered into an Agreement to Buy and Sell
without annotating the Agreement and the notice of
(Agreement) involving the property for the price of
lis pendens on TCT No. M-10508.
P18 million. Among the stipulations in the Agreement
were that Alfredo would: (1) secure an Affidavit from
On 26 October 1994, Alfredo, by virtue of a Special
Elvira that the property is Alfredo's exclusive property
Power of Attorney[9] executed in his favor by Winifred,
and to annotate the Agreement at the back of TCT No.
sold the property to Inter-Dimensional Realty, Inc.
(IDRI) for P18 million.[10] IDRI paid Alfredo P18 Dimensional Realty, Inc. is hereby nullified and voided.
million, representing full payment for the property. [11] 05. Defendant Inter-Dimensional Realty, Inc. is hereby
Subsequently, the Register of Deeds of Malabon ordered to deliver its Transfer Certificate of Title No.
cancelled TCT No. M-10508 and issued TCT No. M- M-10976 to the Register of Deeds of Malabon, Metro
[12]
10976 to IDRI. Manila.
06. The Register of Deeds of Malabon, Metro Manila is
Mario then filed with the Malabon Regional Trial hereby ordered to cancel Certificate of Title Nos.
Court (Malabon RTC) a complaint for Specific 10508 "in the name of Winifred Gozon" and M-10976
Performance and Damages, Annulment of Donation "in the name of Inter-Dimensional Realty, Inc.," and to
and Sale, with Preliminary Mandatory and Prohibitory restore Transfer Certificate of Title No. 5357 "in the
Injunction and/or Temporary Restraining Order. name of Alfredo Gozon, married to Elvira Robles" with
the Agreement to Buy and Sell dated 31 August 1993
On 3 April 2001, the Malabon RTC rendered a fully annotated therein is hereby ordered.
decision,[13] the dispositive portion of which reads: 07. Defendant Alfredo Gozon is hereby ordered to
deliver a Deed of Absolute Sale in favor of plaintiff
WHEREFORE, premises considered, judgment is over his one-half undivided share in the subject
hereby rendered as follows: property and to comply with all the requirements for
registering such deed.
01. On the preliminary mandatory and prohibitory 08. Ordering defendant Elvira Robles-Gozon to sit with
injunction: plaintiff to agree on the selling price of her undivided
one-half share in the subject property, thereafter, to
1.1 The same is hereby made permanent by: execute and deliver a Deed of Absolute Sale over the
same in favor of the plaintiff and to comply with all the
1.1.1 Enjoining defendants Alfredo Gozon, Winifred requirements for registering such deed, within fifteen
Gozon, Inter-Dimensional Realty, Inc. and Gil Tabije, (15) days from the receipt of this DECISION.
their agents, representatives and all persons acting in 09. Thereafter, plaintiff is hereby ordered to pay
their behalf from any attempt of commission or defendant Alfredo Gozon the balance of Four Million
continuance of their wrongful acts of further Pesos (P4,000,000.00) in his one-half undivided share
alienating or disposing of the subject property; in the property to be set off by the award of damages
1.1.2. Enjoining defendant Inter-Dimensional Realty, in plaintiff's favor.
Inc. from entering and fencing the property; 10. Plaintiff is hereby ordered to pay the defendant
1.1.3. Enjoining defendants Alfredo Gozon, Winifred Elvira Robles-Gozon the price they had agreed upon
Gozon, Inter-Dimensional Realty, Inc. to respect for the sale of her one-half undivided share in the
plaintiff's possession of the property. subject property.
11. Defendants Alfredo Gozon, Winifred Gozon and Gil
02. The Agreement to Buy and Sell dated 31 August Tabije are hereby ordered to pay the plaintiff, jointly
1993, between plaintiff and defendant Alfredo Gozon and severally, the following:
is hereby approved, excluding the property and rights
of defendant Elvira Robles-Gozon to the undivided 11.1 Two Million Pesos (P2,000,000.00) as actual and
one-half share in the conjugal property subject of this compensatory damages;
case. 11.2 One Million Pesos (P1,000,000.00) as moral
03. The Deed of Donation dated 22 August 1994, damages;
entered into by and between defendants Alfredo 11.3 Five Hundred Thousand Pesos (P500,000.00) as
Gozon and Winifred Gozon is hereby nullified and exemplary damages;
voided. 11.4 Four Hundred Thousand Pesos (P400,000.00) as
04. The Deed of Absolute Sale dated 26 October 1994, attorney's fees; and
executed by defendant Winifred Gozon, through 11.5 One Hundred Thousand Pesos (P100,000.00) as
defendant Alfredo Gozon, in favor of defendant Inter- litigation expenses.
11.6 The above awards are subject to set off of consideration for the sale of the subject land;
plaintiff's obligation in paragraph 9 hereof. 3. Defendants Alfredo Gozon, Winifred Gozon and Gil
Tabije are hereby ordered to pay plaintiff-appellant
12. Defendants Alfredo Gozon and Winifred Gozon are Siochi jointly and severally, the following:
hereby ordered to pay Inter-Dimensional Realty, Inc.
jointly and severally the following: a) P100,000.00 as moral damages;
b) P100,000.00 as exemplary damages;
12.1 Eighteen Million Pesos (P18,000,000.00) which c) P50,000.00 as attorney's fees;
constitute the amount the former received from the d) P20,000.00 as litigation expenses; and
latter pursuant to their Deed of Absolute Sale dated e) The awards of actual and compensatory damages
26 October 1994, with legal interest therefrom; are hereby ordered deleted for lack of basis.
12.2 One Million Pesos (P1,000,000.00) as moral
damages; 4. Defendants Alfredo Gozon and Winifred Gozon are
12.3 Five Hundred Thousand Pesos (P500,000.00) as hereby ordered to pay defendant-appellant IDRI jointly
exemplary damages; and and severally the following:
12.4 One Hundred Thousand Pesos (P100,000.00) as
attorney's fees. a) P100,000.00 as moral damages;
b) P100,000.00 as exemplary damages; and
13. Defendants Alfredo Gozon and Winifred Gozon are c) P50,000.00 as attorney's fees.
hereby ordered to pay costs of suit.
Defendant Winifred Gozon, whom the undivided one-
SO ORDERED.[14] half share of defendant Alfredo Gozon was awarded, is
hereby given the option whether or not to dispose of
On appeal, the Court of Appeals affirmed the Malabon her undivided share in the subject land.
RTC's decision with modification. The dispositive
portion of the Court of Appeals' Decision dated 7 July The rest of the decision not inconsistent with this
2005 reads: ruling stands.

WHEREFORE, premises considered, the assailed SO ORDERED.[15]


decision dated April 3, 2001 of the RTC, Branch 74,
Malabon is hereby AFFIRMED with MODIFICATIONS, Only Mario and IDRI appealed the decision of the
as follows: Court of Appeals. In his petition, Mario alleges that
the Agreement should be treated as a continuing offer
1. The sale of the subject land by defendant Alfredo which may be perfected by the acceptance of the
Gozon to plaintiff-appellant Siochi is declared null and other spouse before the offer is withdrawn. Since
void for the following reasons: Elvira's conduct signified her acquiescence to the sale,
Mario prays for the Court to direct Alfredo and Elvira
a) The conveyance was done without the consent of to execute a Deed of Absolute Sale over the property
defendant-appellee Elvira Gozon; upon his payment of P9 million to Elvira.
b) Defendant Alfredo Gozon's one-half (½) undivided
share has been forfeited in favor of his daughter, On the other hand, IDRI alleges that it is a buyer in
defendant Winifred Gozon, by virtue of the decision in good faith and for value. Thus, IDRI prays that the
the legal separation case rendered by the RTC, Branch Court should uphold the validity of IDRI's TCT No. M-
16, Cavite; 10976 over the property.

2. Defendant Alfredo Gozon shall return/deliver to We find the petitions without merit.
plaintiff-appellant Siochi the amount of P5 Million
which the latter paid as earnest money in This case involves the conjugal property of Alfredo and
Elvira. Since the disposition of the property occurred regards Mario's contention that the Agreement is a
after the effectivity of the Family Code, the applicable continuing offer which may be perfected by Elvira's
law is the Family Code. Article 124 of the Family Code acceptance before the offer is withdrawn, the fact that
provides: the property was subsequently donated by Alfredo to
Winifred and then sold to IDRI clearly indicates that
Art. 124. The administration and enjoyment of the the offer was already withdrawn.
conjugal partnership property shall belong to both
spouses jointly. In case of disagreement, the husband's However, we disagree with the finding of the Court of
decision shall prevail, subject to the recourse to the Appeals that the one-half undivided share of Alfredo in
court by the wife for a proper remedy, which must be the property was already forfeited in favor of his
availed of within five years from the date of the daughter Winifred, based on the ruling of the Cavite
contract implementing such decision. RTC in the legal separation case. The Court of Appeals
misconstrued the ruling of the Cavite RTC that
In the event that one spouse is incapacitated or Alfredo, being the offending spouse, is deprived of his
otherwise unable to participate in the share in the net profits and the same is awarded to
administration of the conjugal properties, the Winifred.
other spouse may assume sole powers of
administration. These powers do not include the The Cavite RTC ruling finds support in the following
powers of disposition or encumbrance which provisions of the Family Code:
must have the authority of the court or the
written consent of the other spouse. In the Art. 63. The decree of legal separation shall have the
absence of such authority or consent, the following effects:
disposition or encumbrance shall be void.
However, the transaction shall be construed as a (1) The spouses shall be entitled to live separately
continuing offer on the part of the consenting spouse from each other, but the marriage bonds shall not be
and the third person, and may be perfected as a severed;
binding contract upon the acceptance by the other
spouse or authorization by the court before the offer is (2) The absolute community or the conjugal
withdrawn by either or both offerors. (Emphasis partnership shall be dissolved and liquidated but
supplied) the offending spouse shall have no right to any
share of the net profits earned by the absolute
In this case, Alfredo was the sole administrator of the community or the conjugal partnership, which
property because Elvira, with whom Alfredo was shall be forfeited in accordance with the
separated in fact, was unable to participate in the provisions of Article 43(2);
administration of the conjugal property. However, as
sole administrator of the property, Alfredo still cannot (3) The custody of the minor children shall be
sell the property without the written consent of Elvira awarded to the innocent spouse, subject to the
or the authority of the court. Without such consent or provisions of Article 213 of this Code; and
[16]
authority, the sale is void. The absence of the
consent of one of the spouse renders the entire sale The offending spouse shall be disqualified from
void, including the portion of the conjugal property inheriting from the innocent spouse by intestate
pertaining to the spouse who contracted the sale.[17] succession. Moreover, provisions in favor of the
Even if the other spouse actively participated in offending spouse made in the will of the innocent
negotiating for the sale of the property, that other spouse shall be revoked by operation of law.
spouse's written consent to the sale is still required by
law for its validity.[18] The Agreement entered into by Art. 43. The termination of the subsequent marriage
Alfredo and Mario was without the written consent of referred to in the preceding Article shall produce the
Elvira. Thus, the Agreement is entirely void. As following effects:
Presidential Decree No. 1529,[19] the notice of lis
xxx pendens may be cancelled (a) upon order of the court,
or (b) by the Register of Deeds upon verified petition
(2) The absolute community of property or the of the party who caused the registration of the lis
conjugal partnership, as the case may be, shall be pendens. In this case, the lis pendens was cancelled by
dissolved and liquidated, but if either spouse the Register of Deeds upon the request of Alfredo.
contracted said marriage in bad faith, his or her There was no court order for the cancellation of the lis
share of the net profits of the community pendens. Neither did Elvira, the party who caused the
property or conjugal partnership property shall registration of the lis pendens, file a verified petition
be forfeited in favor of the common children or, if for its cancellation.
there are none, the children of the guilty spouse by a
previous marriage or, in default of children, the Besides, had IDRI been more prudent before buying
innocent spouse; (Emphasis supplied) the property, it would have discovered that Alfredo's
donation of the property to Winifred was without the
Thus, among the effects of the decree of legal consent of Elvira. Under Article 125[20] of the Family
separation is that the conjugal partnership is dissolved Code, a conjugal property cannot be donated by one
and liquidated and the offending spouse would have spouse without the consent of the other spouse.
no right to any share of the net profits earned by the Clearly, IDRI was not a buyer in good faith.
conjugal partnership. It is only Alfredo's share in the
net profits which is forfeited in favor of Winifred. Nevertheless, we find it proper to reinstate the order
Article 102(4) of the Family Code provides that "[f]or of the Malabon RTC for the reimbursement of the P18
purposes of computing the net profits subject to million paid by IDRI for the property, which was
forfeiture in accordance with Article 43, No. (2) and inadvertently omitted in the dispositive portion of the
63, No. (2), the said profits shall be the increase in Court of Appeals' decision.
value between the market value of the community
property at the time of the celebration of the marriage WHEREFORE, we DENY the petitions. We AFFIRM
and the market value at the time of its dissolution." the 7 July 2005 Decision of the Court of Appeals in CA-
Clearly, what is forfeited in favor of Winifred is not G.R. CV No. 74447 with the following
Alfredo's share in the conjugal partnership property MODIFICATIONS:
but merely in the net profits of the conjugal
partnership property. (1) We DELETE the portions regarding the forfeiture
of Alfredo Gozon's one-half undivided share in favor of
With regard to IDRI, we agree with the Court of Winifred Gozon and the grant of option to Winifred
Appeals in holding that IDRI is not a buyer in good Gozon whether or not to dispose of her undivided
faith. As found by the RTC Malabon and the Court of share in the property; and
Appeals, IDRI had actual knowledge of facts and
circumstances which should impel a reasonably (2) We ORDER Alfredo Gozon and Winifred Gozon to
cautious person to make further inquiries about the pay Inter-Dimensional Realty, Inc. jointly and severally
vendor's title to the property. The representative of the Eighteen Million Pesos (P18,000,000) which was
IDRI testified that he knew about the existence of the the amount paid by Inter-Dimensional Realty, Inc. for
notice of lis pendens on TCT No. 5357 and the legal the property, with legal interest computed from the
separation case filed before the Cavite RTC. Thus, finality of this Decision.
IDRI could not feign ignorance of the Cavite RTC
decision declaring the property as conjugal. SO ORDERED.

Furthermore, if IDRI made further inquiries, it would Brion, Del Castillo, Abad, and Perez, JJ., concur.
have known that the cancellation of the notice of lis
pendens was highly irregular. Under Section 77 of