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THIRD DIVISION

[G.R. No. 180226. April 26, 2017.]

DINA MARIE LOMONGO PATERNO,

petitioner, vs. JUDGE EVELYN
ARCAYA-CHUA, PRESIDING JUDGE
OF THE RTC MAKATI, BRANCH 144,
and SIMON PATERNO, respondents.

NOTICE

Sirs/Mesdames :

Please take notice that the Court, Third

Division, issued a Resolution dated April 26, 2017,
which reads as follows: SDAaTC
 "G.R. No. 180226 — DINA MARIE
LOMONGO PATERNO, Petitioner, v. JUDGE
EVELYN ARCAYA-CHUA, PRESIDING JUDGE
OF THE RTC MAKATI, BRANCH 144, and
SIMON PATERNO, Respondents.
This case concerns the rights of former
spouses to property acquired by one or the other
after the declaration of the nullity of their marriage.
The wife hereby appeals the adverse
decision promulgated on August 28, 2007, 1
whereby the Court of Appeals (CA) affirmed the
orders issued on November 22, 2006 and February
9, 2007 by the Regional Trial Court, Branch 144, in
Makati City (RTC) respectively holding that Article
147 of the Family Code only applied to property
acquired during the couple's period of cohabitation,
and denying her motion for reconsideration.
The CA recited the factual and procedural
antecedents of the case as follows:
The spouses Simon Paterno and
Dina Marie Lomongo had been living
together for more or less ten years until
Mr. Paterno left the family home in June
1998, Ms. Lomongo alleging that he
abandoned her for another woman. Two
years after, the husband filed a case for
the declaration of absolute nullity of his
marriage and this was granted on March
11, 2005 by Branch 144 of RTC Makati,
adjudging Simon Paterno and Dina
Marie Lomongo Paterno to be both
psychologically incapacitated to fulfill
their marital obligations to each other.
The decision attained finality, leaving the
issue regarding the liquidation, partition,
and distribution of the properties of the
union as well as the delivery of their
daughters' presumptive legitime to be
tackled.
 While Ms. Lomongo testified on
the assets she and Mr. Paterno had
accumulated during the 10 years that
they were together in one roof, i.e., from
1988 to 1998, she wanted her ex-
husband to testify on his other alleged
possessions and earnings since 1998
until the formal severance of their marital
ties. Thus, she requested the court to
issue a subpoena duces tecum and
subpoena ad testificandum for him to
appear as hostile witness on September
26, 2006, so that he may testify and
present the documents that mostly
reflect his salaries and acquired
properties during the years of their de
facto separation. The court granted this
prayer.
Mr. Paterno absented himself on
the scheduled date claiming that he had
to attend to a work-related matter, and
neither did he produce the documents
sought by his ex-wife. He moved instead
to quash the subpoena averring that his
testimony and the documents demanded
are either inexistent or irrelevant to the
subject of the case. As regards the latter
defense, he mainly posited that the
wages/properties he gained subsequent
to his separation from his former spouse
are not part of the common properties
for liquidation. Ms. Lomongo retaliated
by orally moving for a declaration of
contempt against her ex-husband for not
complying with the subpoena. The court
thereafter required the parties to answer
each other's motions which resulted in
several exchanges of pleadings, citing
and interpreting a catena of cases to
bolster their respective claims on what
properties should be included in the
dissolution.
 Thereafter, RTC Judge Evelyn
Arcaya-Chua issued her November 22,
2006 Order in favor of Mr. Paterno's
stance, holding that Article 147 is only
limited to the couple's period of
cohabitation. She refused to hold Mr.
Paterno in contempt and recalled the
subpoena duces tecum and ad
testificandum. Citing Valdes vs. RTC and
Gomez-Valdes, the court relied on the
principle upheld therein that 'in a void
marriage, regardless of the cause
thereof, the property relations of the
parties during the period of cohabitation
is governed by the provisions of Article
147 or Article 148, as the case may be
of the Family Code,' saying that this
principle has been reiterated in a
subsequent string of cases, namely
Cariño vs. Cariño, Mercado-Fehr vs.
Fehr, Buenaventura vs. CA, and
Gonzales vs. Gonzales.
Finding that Article 147 applies in
the case at bar (the couple being
capacitated to marry at the time they
lived together), which is a remake of
Article 144 of the 1950 Civil Code, the
court found it necessary how Article 144
was applied back then, and found the
ruling in Aznar vs. Garcia as the answer
as to when the cohabitation ceases and
what properties are part of co-ownership
to apply it by analogy to the situation of
the then Paterno spouses. The court,
quoting Aznar, ruled thus that when a
couple who are both capacitated to
marry live together as husband and wife,
an informal civil partnership is formed,
and that 'there being no provision of law
governing the cessation of such informal
civil partnership . . . same may be
considered terminated upon their
separation or desistance to continue
 said relations," and therefore, each of
them has an interest only in the
properties acquired during the union.
Over the vehement objections
and reasonings by Ms. Lomongo in her
Motion for Reconsideration that the
cases relied upon were inappropriately
applied to her circumstance and that
there is a huge difference between the
legal effects of the separation of
common-law spouses as against those
under marriages declared void, the lower
court still remained firm in its judgment
and slapped her with a denial of her
motion dated February 9, 2007. 2
The petitioner filed a petition for certiorari in
the CA in order to annul and set aside the orders of
the RTC, claiming said orders to have been issued
in excess of jurisdiction or with grave abuse of
discretion amounting to lack or excess of
jurisdiction. 3
On August 28, 2007, however, the CA
dismissed the petition for certiorari, disposing: acEHCD

WHEREFORE, premises
considered, the Petition contesting the
Orders dated November 22, 2006 and
February 9, 2007 is accordingly,
DISMISSED. No costs.

SO ORDERED. 4
The CA later denied the petitioner's motion
for reconsideration.
Hence, this appeal, with the petitioner
maintaining that the CA erred: (a) in refusing to
acknowledge that all properties acquired by the
spouses prior to the judicial declaration of the
nullity of the marriage under Article 36 of the
Family Code were co-owned by them pursuant to
Article 147 of the Family Code; (b) in holding that
properties acquired by the spouses in a void
marriage under Article 36 of the Family Code after
their separation de facto were solely owned by the
earning spouse; (c) in applying the ruling in Aznar
v. Garcia to marriages declared void under Article
36 of the Family Code; and (d) in failing to require
the respondent to expose the truth regarding the
properties acquired prior to the judicial declaration
of nullity of their marriage under Article 36 of the
Family Code. 5
The respondent counters in his comment 6
that the CA correctly dismissed the petition for
certiorari. He denies the petitioner's claim that the
properties acquired by the spouses subsequent to
their separation de facto and prior to the judicial
declaration of nullity of their marriage under Article
36 of the Family Code were owned in common by
them. He posits that the doctrine of operative fact
had no application to cases of declaration of nullity
of marriage; that the Family Code Committee
deliberations pointed to the inescapable and
glaring fact that the co-ownership under Article 147
of the Family Code was intended to apply only to
properties acquired by the parties during their
cohabitation or the period of living together; that
the opinions of prominent authorities and authors
in family law were to the effect that in the
application of Article 147 of the Family Code, only
wages and salaries and properties acquired by the
spouses during the period of their cohabitation or
living together were to be considered as co-owned;
and that no error or abuse of discretion could be
imputed to the RTC's quashal of the subpoena
duces tecum and ad testificandum, and to the
upholding by the CA of the quashal, which were in
accord with law, the rules of procedure and
jurisprudence. 7
The petitioner's reply essentially reiterates
the arguments of her petition. 8
Ruling of the Court
The appeal lacks merit.
Article 147 of the Family Code provides:
 Article 147. When a man and
a woman who are capacitated to marry
each other, live exclusively with each
other as husband and wife without the
benefit of marriage or under a void
marriage, their wages and salaries shall
be owned by them in equal shares and
the property acquired by both of them
through their work or industry shall be
governed by the rules on co-ownership.
In the absence of proof to the
contrary, properties acquired while they
lived together shall be presumed to have
been obtained by their joint efforts, work
or industry, and shall be owned by them
in equal shares. For purposes of this
Article, a party who did not participate in
the acquisition by the other party of any
property shall be deemed to have
contributed jointly in the acquisition
thereof if the former's efforts consisted in
the care and maintenance of the family
and of the household.
Neither party can encumber or
dispose by acts inter vivos of his or her
share in the property acquired during
cohabitation and owned in common,
without the consent of the other, until
after the termination of their
cohabitation.
When only one of the parties to a
void marriage is in good faith, the share
of the party in bad faith in the co-
ownership shall be forfeited in favor of
their common children. In case of default
of or waiver by any or all of the common
children or their descendants, each
vacant share shall belong to the
respective surviving descendants. In the
absence of descendants, such share
shall belong to the innocent party. In all
 cases, the forfeiture shall take place
upon termination of the cohabitation.
(144a)
The petitioner did not discharge her burden
of showing in this appeal that the CA committed
reversible error in applying Article 147 of the
Family Code to the case. In disposing of the issues
raised for its consideration and resolution, the CA
correctly applied the law and its relevant
jurisprudence, as the following exposition clearly
indicates:
The parties do not argue that co-
ownership of properties acquired during
the union governs them under Article
147 of the Family Code. This was
declared in the Valdes case. As
explained in that case:
This peculiar kind of
co-ownership applies when
a man and a woman,
suffering no legal
impediment to marry each
other, so exclusively live
together as husband and
wife under a void marriage
or without the benefit of
marriage. The term
"capacitated" in the
provision (in the first
paragraph of the law)
refers to the legal capacity
of a party to contract
marriage, i.e., any "male or
female of the age of
eighteen years or upwards
not under any of the
impediments mentioned in
Articles 37 and 38" of the
Code.
Under this property
regime, property acquired
by both spouses through
 their work and industry
shall be governed by the
rules on equal co-
ownership. Any property
acquired during the union
is prima facie presumed to
have been obtained
through their joint efforts. A
party who did not
participate in the
acquisition of the property
shall still be considered as
having contributed thereto
jointly if said party's
"efforts" consisted in the
care and maintenance of
the family household."
So what are the common
properties included in the dissolution of
the co-ownership?
Petitioner's argument implies that
despite already being separated de
facto, as long as a couple remains
married (in paper), pending a court
declaration of nullity of their union, all the
properties gained by each in the
meantime before the judicial declaration
will be included in the co-ownership
regime.
Petitioner however should be
reminded of the legal effect of a
confirmation of a void ab initio marriage:
it is retroactive to the time when the
marriage ceremony transpired. In short,
after the trial court declared her marriage
to Mr. Paterno void in 2005 because of
both parties' psychological incapacity,
the marriage ceremony on December
27, 1987 was invalidated as if no
marriage took place. This means then
that during their ten-year cohabitation,
Ms. Lomongo and Mr. Paterno lived
together merely as common-law
spouses. This is where Article 147
comes in, dealing with those "properties
acquired while they lived together . . .
obtained by their joint efforts, work or
industry. . ." and the joint effort includes
"the care and maintenance of the family
and of the household." SDHTEC

Her insistence of the common

ownership of the moneys and properties
accumulated subsequent to the de facto
separation would have been correct if
the properties had to be liquidated (such
as in a spouse's death) and an official
declaration of nullity n of marriage was
never secured. Her stand would have
been supported by the case of Cariño
vs. Cariño wherein two women were
fighting over the government death
benefits of the man they married. The
first wife was married to the deceased in
1969 but in 1992, without having his
previous marriage nullified for lack of a
marriage license, the husband still
married another woman with whom he
cohabited in 1982. The High Court
refused to award the death benefits to
the second wife and gave the monetary
benefits to the first one. Although Article
147 applies to the first wife, the Court
awarded the benefits to her in full
because the presumption of a valid
marriage stood in her favor by reason of
a lack of a judicial declaration of nullity.
To stress, in the case at bar, there was a
judicial declaration of nullity, and Cariño
cannot apply to her.
As adverted to earlier, after the
judicial declaration, Petitioner and
Private respondent's relationship has
relegated to a common-law marriage,
and their cohabitation, i.e., living
together exclusively as husband and
wife, was only for a period of ten years.
Obviously, the 'cohabitation' of the
parties will definitely not include the
years since Mr. Paterno n left Ms.
Lomongo and the family home. The
period of cohabitation of a couple
without the benefit of marriage or under
a void marriage has been sufficiently
explained and has been applied by the
Supreme Court in the case of Aznar, a
case involving a woman who lived
exclusively with a man without marriage
for 30 years and claimed half of the
share of the estate upon his death.
Expounding on Article 144 of the Civil
Code, the provision which Article 147 of
the Family Code is based, the Court
said:
It must be noted that
such form of co-ownership
requires that the man and
the woman thus living
together must not in any
way be incapacitated to
contract marriage and that
the properties realized
during their cohabitation be
acquired through the work,
industry, employment or
occupation of both or either
of them. And the same
thing maybe said of those
whose marriages are by
provision of law declared
void ab initio. While it is
true that these requisites
are fully met and
satisfied in the case at
bar, We must remember
that the deceased and
herein appellee were
already estranged as of
 March, 1950. There being
no provision of law
governing the cessation
of such informal civil
partnership, if it ever
existed, same may be
considered terminated
upon their separation or
desistance to continue
said relations.
Finally, We see no error on the
part of the court a quo when it cited the
cases of Fehr, Buenaventura, and
Gonzales to justify its assailed Orders,
for all these cases exemplify the
application of Article 147 to all properties
that have been acquired during the
period of cohabitation of couples whose
marriages have been declared void
under Article 36. 9
Considering that the issues and arguments
raised in this appeal are a mere rehash of those
raised and already determined by the CA, and
there being nothing new or compelling to justify
varying from the determination by the CA, the
Court affirms the CA's decision.
WHEREFORE, the Court DENIES the
petition for review on certiorari; AFFIRMS the
decision promulgated on August 28, 2007; and
ORDERS the petitioner to pay the costs of suit.
(Jardeleza, J., no part, due to his prior action as
Solicitor General; Peralta, J., designated additional
Member per Raffle dated March 20, 2017)
SO ORDERED."
Very truly
yours,

(SGD.)
WILFREDO V.
 LAPITAN
Division Clerk
of Court
Footnotes

1. Rollo, pp. 46-59; penned by Associate

Justice Mariano C. Del Castillo (now a member
of this Court) with the concurrence of Associate
Justice Arcangelita Romilla Lontok and Associate
Justice Romeo F. Barza.
2. Id. at 48-52.
3. Id. at 107-130.
4. Id. at 58.
5. Id. at 15-16.
6. Id. at 137-213.
7. Id. at 150-153.
8. Id. at 222-258.
9. Id. at 54-58.
n Note from the Publisher: Written as "nullitty"
in the original document.
n Note from the Publisher: Written as "Pateno"
in the original document.

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