Respondent argues that the provision of Article 40 of the Family
Code does not apply to him considering that his first marriage took
A.M. No. MTJ-92-706 March 29, 1995
LUPO ALMODIEL ATIENZA, complainant,
vs.
JUDGE FRANCISCO F. BRILLANTES, JR., Metropolitan
Trial Court, Branch 28, Manila, respondent.
QUIASON, J.:
This is a complaint by Lupo A. Atienza for Gross Immorality and
Appearance of Impropriety against Judge Francisco Brillantes, Jr.,
Presiding Judge of the Metropolitan Trial Court, Branch 20,
Manila.
Complainant alleges that he has two children with Yolanda De
Castro, who are living together at No. 34 Galaxy Street, Bel-Air
Subdivision, Makati, Metro Manila. He stays in said house, which
he purchased in 1987, whenever he is in Manila.
In December 1991, upon opening the door to his bedroom, he saw
respondent sleeping on his (complainant's) bed. Upon inquiry, he
was told by the houseboy that respondent had been cohabiting with
De Castro. Complainant did not bother to wake up respondent and
instead left the house after giving instructions to his houseboy to
take care of his children.
Thereafter, respondent prevented him from visiting his children
and even alienated the affection of his children for him.
Complainant claims that respondent is married to one Zenaida
Ongkiko with whom he has five children, as appearing in his 1986
and 1991 sworn statements of assets and liabilities. Furthermore,
he alleges that respondent caused his arrest on January 13, 1992,
after he had a heated argument with De Castro inside the latter's
office.
For his part, respondent alleges that complainant was not married
to De Castro and that the filing of the administrative action was
related to complainant's claim on the Bel-Air residence, which was
disputed by De Castro.
Respondent denies that he caused complainant's arrest and claims
that he was even a witness to the withdrawal of the complaint for
Grave Slander filed by De Castro against complainant. According
to him, it was the sister of De Castro who called the police to arrest
complainant.
Respondent also denies having been married to Ongkiko, although
he admits having five children with her. He alleges that while he
and Ongkiko went through a marriage ceremony before a Nueva
Ecija town mayor on April 25, 1965, the same was not a valid
marriage for lack of a marriage license. Upon the request of the
parents of Ongkiko, respondent went through another marriage
ceremony with her in Manila on June 5, 1965. Again, neither party
applied for a marriage license. Ongkiko abandoned respondent 17
years ago, leaving their children to his care and custody as a single
parent.
Respondent claims that when he married De Castro in civil rites in
Los Angeles, California on December 4, 1991, he believed, in all
good faith and for all legal intents and purposes, that he was single
because his first marriage was solemnized without a license.
Under the Family Code, there must be a judicial declaration of the
nullity of a previous marriage before a party thereto can enter into
a second marriage. Article 40 of said Code provides:
The absolute nullity of a previous marriage may
be invoked for the purposes of remarriage on the
basis solely of a final judgment declaring such
previous marriage void.
place in 1965 and was governed by the Civil Code of the
Philippines; while the second marriage took place in 1991 and
governed by the Family Code.
Article 40 is applicable to remarriages entered into after the
effectivity of the Family Code on August 3, 1988 regardless of the
date of the first marriage. Besides, under Article 256 of the Family
Code, said Article is given "retroactive effect insofar as it does not
prejudice or impair vested or acquired rights in accordance with
the Civil Code or other laws." This is particularly true with Article
40, which is a rule of procedure. Respondent has not shown any
vested right that was impaired by the application of Article 40 to
his case.
The fact that procedural statutes may somehow affect the litigants'
rights may not preclude their retroactive application to pending
actions. The retroactive application of procedural laws is not
violative of any right of a person who may feel that he is adversely
affected (Gregorio v. Court of Appeals, 26 SCRA 229 [1968]). The
reason is that as a general rule no vested right may attach to, nor
arise from, procedural laws (Billones v. Court of Industrial
Relations, 14 SCRA 674 [1965]).
Respondent is the last person allowed to invoke good faith. He
made a mockery of the institution of marriage and employed deceit
to be able to cohabit with a woman, who beget him five children.
Respondent passed the Bar examinations in 1962 and was admitted
to the practice of law in 1963. At the time he went through the two
marriage ceremonies with Ongkiko, he was already a lawyer. Yet,
he never secured any marriage license. Any law student would
know that a marriage license is necessary before one can get
married. Respondent was given an opportunity to correct the flaw
in his first marriage when he and Ongkiko were married for the
second time. His failure to secure a marriage license on these two
occasions betrays his sinister motives and bad faith.
It is evident that respondent failed to meet the standard of moral
fitness for membership in the legal profession.
While the deceit employed by respondent existed prior to his
appointment as a Metropolitan Trial Judge, his immoral and illegal
act of cohabiting with De Castro began and continued when he was
already in the judiciary.
The Code of Judicial Ethics mandates that the conduct of a judge
must be free of a whiff of impropriety, not only with respect to his
performance of his judicial duties but also as to his behavior as a
private individual. There is no duality of morality. A public figure
is also judged by his private life. A judge, in order to promote
public confidence in the integrity and impartiality of the judiciary,
must behave with propriety at all times, in the performance of his
judicial duties and in his everyday life. These are judicial
guideposts too self-evident to be overlooked. No position exacts a
greater demand on moral righteousness and uprightness of an
individual than a seat in the judiciary (Imbing v. Tiongzon, 229
SCRA 690 [1994]).
WHEREFORE, respondent is DISMISSED from the service with
forfeiture of all leave and retirement benefits and with prejudice to
reappointment in any branch, instrumentality, or agency of the
government, including government-owned and controlled
corporations. This decision is immediately executory.
SO ORDERED.
G.R. No. 204494 July 27, 2016
JO-ANN DIAZ-SALGADO and husband DR. GERARD C.
SALGADO, Petitioners
vs.
LUIS G. ANSON, Respondent
DECISION
REYES, J.:
Before the Court is the petition for review on certiorari1under Rule
45 of the Rules of Court assailing the Decision2dated August 6,
2012 and the Resolution3 dated November 26, 2012 of the Court of
Appeals (CA) in CA-G.R. CV No. 92989. The CA affirmed the
Decision4 dated July 23, 2007 of the Regional Trial Court (RTC)
of Pasig City, Branch 155, in Civil Case No. 69611.
The Facts
On September 5, 2003, Luis Anson (Luis) filed a
Complaint5 docketed as Civil Case No. 69611 against Jo-Ann
Diaz-Salgado (Jo-Ann) and Gerard Salgado (Gerard) (Spouses
Salgado) along with Maria Luisa Anson-Maya (Maria Luisa) and
Gaston Maya (Spouses Maya), seeking the annulment of the three
Unilateral Deeds of Sale6 dated January 23, 2002 and the Deed of
Extra-Judicial Settlement of Estate of the Deceased Severina De
Asis dated October 25, 2002.7
Luis alleged in his complaint that he is the surv1vmg spouse of the
late Severina de Asis-Anson (Severina). They were married in a
civil ceremony on December 28, 1966. Prior to the celebration of
their marriage, Severina gave birth to their daughter, Maria Luisa
on December 30, 1965 while Jo-Ann is Severina's daughter from a
previous relationship.8
During his marital union with Severina, they acquired several real
properties located in San Juan, Metro Manila, covered by the
following Transfer Certificate of Title/s (TCT/s):
1. TCT No. 20618/T-104 (now TCT No. 11105-R),
2. TCTNo. 60069/T-301(nowTCTNo. 11106-R),
3. TCTNo. 5109/T-26 (nowTCTNo. 11107),
4. TCT No. 8478-R/T-43 (now TCT No. 11076-R),
5. TCT No. 44637/T-224-II (now TCT No. 11078-R), and
6. TCT No. 8003/T-41 (now TCT No. 11077-R).9
According to Luis, because there was no marriage settlement
between him and Severina, the above-listed properties pertain to
their conjugal partnership. But without his knowledge and consent,
Severina executed three separate Unilateral Deeds of Sale on
January 23, 2002 transferring the properties covered by TCT Nos.
20618, 60069 and 5109 in favor of Jo-Ann, who secured new
certificates of title over the said properties.10 When Severina died
on September 21, 2002,11 Maria Luisa executed a Deed of Extra-
Judicial Settlement of Estate of Deceased Severina de Asis on
October 25, 2002, adjudicating herself as Severina's sole heir. She
secured new TCTs over the properties covered by TCT Nos. 8478-
R, 44637 and 8003.12
Luis claimed that because of the preceding acts, he was divested of
his lawful share in the conjugal properties and of his inheritance as
a compulsory heir of Severina.13
In Jo-Ann's Answer with Compulsory Counterclaim,14 which the
trial court considered as the Answer of her husband, Gerard, 15 Jo-
Ann countered that she was unaware of any marriage contracted by
her mother with Luis. She knew however that Luis and Severina
had a common-law relationship which they both acknowledged
and formally terminated through a Partition Agreement16 executed
in November 1980. This was implemented through another
Partition Agreement17 executed in April 1981. Thus, Luis had
already received the properties apportioned to him by virtue of the
said agreement while the properties subject of the Unilateral Deeds
of Sale were acquired exclusively by Severina. The TCTs covering
Severina's properties were under Severina's name only and she was
described therein as single without reference to any husband.18
Meanwhile, the Spouses Maya corroborated the Spouses Salgado's
stance in their Answer,19 stating that Maria Luisa is also not aware
that Luis and Severina were married. She is cognizant of the fact
that Luis and Severina lived together as common-law husband and
wife - a relationship which was terminated upon execution of a
Partition Agreement. In the Partition Agreement, Luis and
Severina were described as single and they acknowledged that they
were living together as common-law spouses. They also mutually
agreed to the partition of the properties they owned in common.
Hence, Luis already received his share in the properties20 and is
estopped from denying the same.21 After the termination of their
cohabitation in 1980, Luis went to United States of America
(USA), married one Teresita Anson and had a son with her; while
Maria Luisa was left under the guardianship and custody of
Severina.22 It was after the death of Severina that Maria Luisa
executed a Deed of Extra-Judicial Settlement of the Estate of the
Deceased Severina de Asis on October 25, 2002. The Spouses
Maya were also able to obtain a Certificate of No Record of
Marriage23 (between Luis and Severina) from the Office the Civil
Registrar General of the National Statistics Office.24
Trial ensued thereafter. After Luis gave his testimony and
presented documentary evidence which included a certified true
copy of his marriage contract with Severina,25 the Spouses Salgado
and Spouses Maya filed their respective Demurrers to
Evidence.26 The Spouses Salgado disputed the validity of Luis and
Severina's marriage on the ground of lack of marriage license as
borne out by the marriage contract. They further claimed that Luis
himself disclosed on cross-examination that he did not procure a
marriage license prior to the alleged marriage.27 Luis had also
admitted the existence, due execution and authenticity of the
Partition Agreement.28 The logical conclusion therefore is that the
properties disposed in favor of Jo-Ann were owned by Severina as
her own, separate and exclusive properties, which she had all the
right to dispose of, without the conformity of Luis. 29
On February 16, 2006, the trial court denied both demurrers,
explaining that the sufficiency of evidence presented by Luis is
evidentiary in nature and may only be controverted by evidence to
the contrary.30 The Spouses Salgado and Spouses Maya filed their
separate motions for reconsideration,31 which the trial court
denied.32 Consequently, both the Spouses Salgado and Spouses
Maya filed their respective petitions for certiorari with the
CA.33 Meanwhile, the Spouses Salgado were deemed to have
waived their presentation of evidence when they failed to attend
the scheduled hearings before the trial court.34
Resolving the petition for certiorari on the demurrer to evidence
filed by the Spouses Salgado, the CA Second Division directed the
trial court "to properly resolve with deliberate dispatch the
demurrer to evidence in accordance with Section 3, Rule 16 of the
1997 Rules of Civil Procedure by stating clearly and distinctly the
reason therefor on the basis of [the Spouses Salgado's] proffered
evidence[,]"35 whereas the CA Ninth Division dismissed the
petition of the Spouses Maya and ordered the trial court to decide
the case with deliberate dispatch.36
In an Order37 dated July 16, 2007, the RTC, in compliance with the
order of the CA to resolve the demurrer to evidence in more
specific terms, denied the twin demurrers to evidence for lack of
merit and held that the totality of evidence presented by Luis has
sufficiently established his right to obtain the reliefs prayed for in
his complaint.
Ruling of the RTC
On July 23, 2007, the RTC rendered its Decision38 in favor of Luis,
holding that the marriage between Luis and Severina was valid. It
noted that the marriage contract, being a public document, enjoys
the presumption of regularity in its execution and is conclusive as
to the fact of marriage.39 The trial court also based its ruling
in Geronimo v. CA40where the validity of marriage was upheld
despite the absence of the marriage license number on the marriage
contract.41 The trial court thus declared that the properties covered
by the Unilateral Deeds of Sale were considered conjugal which
cannot be disposed of by Severina without the consent of her
husband, Luis.42
The dispositive portion of the decision reads as follows:
WHEREFORE, premises considered, judgment is hereby rendered
in favor of [Luis] and against [the Spouses Salgado] ordering as
follows:
1. ANNULMENT, VOIDING, SETTING ASIDE and
DECLARING OF NO FORCE AND EFFECT of the three (3)
Unilateral Deeds of Sale, all dated January 23, 2002 executed by
[Severina] in favor of [Jo-Ann];
2. ANNULMENT, VOIDING, SETTING ASIDE and
DECLARING OF NO FORCE AND EFFECT of the three (3)
[TCT] Nos. 11107-R, 11105-R and 11106-R covering the subject
properties, all issued in the name of [Jo-Ann] by the Registry of
Deeds for San Juan, Metro Manila;
3. RESTITUTION of all properties covered by TCT Nos. 11107-R,
11105-R and 11106-R (formerly TCT Nos. 5109, 20618 and
60069, respectively) to the conjugal community of properties
between [Luis] and [Severina].
No pronouncement as to costs.
SO ORDERED.43
On November 17, 2008, the RTC rendered another
Decision44 which ordered the "ANNULMENT, VOIDING,
SETTING ASIDE and DECLARING OF NO FORCE AND
EFFECT the Deed of Extra-Judicial Settlement of Estate of the
Deceased Severina De Asis executed by [Maria Luisa] dated
October 25, 2002 x x x." 45 The RTC also ordered the cancellation
of new TCTs issued by virtue of the said Deeds.46
The Spouses Salgado and the Spouses Maya filed their respective
motions for reconsideration on September 11, 2007 47 and August
28, 2007,48 respectively, which the RTC denied in the Omnibus
Order49 dated October 30, 2007 for lack of merit. This prompted
the Spouses Salgado and Spouses Maya to file their separate
notices of appeal before the CA on December 13, 2007 50 and April
24, 2009,51 respectively.
Ruling of the CA
The Spouses Maya and Luis thereafter entered into a Compromise
Agreement52 which was approved by the CA in its
Decision53 dated October 26, 2011. This resulted in the termination
of the Spouses Maya's appeal.54
On August 6, 2012, the CA rendered a Decision,55 dismissing the
appeal of the Spouses Salgado. The fallo reads as follows:
WHEREFORE, the appeal interposed by [the Spouses Salgado]
is DISMISSED. The Decision dated July 23, 2007 of the [RTC] of
Pasig is AFFIRMED IN TOTO.
SO ORDERED.56
The CA sustained the ruling of the RTC for the simple reason that
the Spouses Salgado did not present and formally offer any
testimonial and documentary evidence to controvert the evidence
presented by Luis.57 The CA further explained that "the best
evidence to establish the absence of a marriage license is a
certification from the Local Civil Registrar that the parties to the
Marriage Contract did not secure a marriage license or at the very
least a certification from the said office that despite diligent search,
no record of application for or a marriage license was issued on or
before December 28, 1966 in favor of Luis and Severina. Again,
Spouses Salgado failed to prove the same by their failure to secure
the said certification and present evidence during the trial." 58
The Spouses Salgado and Spouses Maya filed a motion for
reconsideration59 which the CA denied through its
Resolution60 dated November 26, 2012.
The Spouses Salgado elevated the matter before the Court raising
the core issue of whether the CA committed reversible error in
affirming the RTC decision which declared the marriage between
Luis and Severina valid and the subject lands as conjugal
properties.
Ruling of the Court
The Spouses Salgado argue that the marriage between Luis and
Severina is null and void for want of marriage license based on the
Marriage Contract61 presented by Luis which has adequately
established its absence.62
Luis, in his Comment,63 opposes the filing of the present petition
on the ground that it raises a question of fact, which cannot be
raised in a petition for review on certiorari. He also countered that
the Spouses Salgado did not present any evidence to support their
theory.64 If the existence of the marriage license is in issue, it is
incumbent upon the Spouses Salgado to show the lack of marriage
license by clear and convincing evidence.65
Before proceeding to the substantive issues brought in this petition,
the Court shall first tackle the procedural issue raised by Luis
which pertains to the propriety of the filing of this petition for
review on certiorari.
Contrary to Luis' contention, the present petition raises a question
of law, mainly, whether the absence of a marriage license may be
proven on the basis of a marriage contract which states that no
marriage license was exhibited to the solemnizing officer on
account of the marriage being of an exceptional character.
In any event, while the jurisdiction of the Court in cases brought
before it from the appellate court is, as a general rule, limited to
reviewing errors of law, there are exceptions66 recognized by the
Court, such as when the CA manifestly overlooked certain relevant
facts not disputed by the parties, which, if properly considered,
would justify a different conclusion.67
Since the marriage between Luis and Severina was solemnized
prior to the effectivity of the Family Code, the applicable law to
determine its validity is the Civil Code, the law in effect at the time
of its celebration68 on December 28, 1966.
A valid marriage license is a requisite of marriage under Article
5369 of the Civil Code, and the absence thereof, save for marriages
of exceptional character,70 renders the marriage void ab
initio pursuant to Article 80(3 ). It sets forth:
Art. 80. The following marriages shall be void from the beginning:
xxxx
(3) Those solemnized without a marriage license, save marriages
of exceptional character;
x x x x. (Emphasis ours)
"Under the Civil Code, marriages of exceptional character are
covered by Chapter 2, Title III, comprising Articles 72 to 79. To
wit, these marriages are: (1) marriages in articulo mortis or at the
point of death during peace or war, (2) marriages in remote places,
(3) consular marriages, (4) ratification of marital cohabitation, (5)
religious ratification of a civil marriage, (6) Mohammedan or
pagan marriages, and (7) mixed marriages." 71 To reiterate, in any
of the aforementioned marriages of exceptional character, the
requirement of a valid marriage license is dispensed with.
The marriage is not of an
exceptional character
A cursory examination of the marriage contract of Luis and
Severina reveals that no marriage license number was indicated
therein. It also appears therein that no marriage license was
exhibited to the solemnizing officer with Article 77 of Republic
Act No. 386 (Civil Code) being cited as the reason therefor. The
pertinent portion of the marriage contract is quoted as follows:
[A]nd I further certify that Marriage License No. x x x issued at x
x x on x x x, 19 x x x in favor of, said parties, was exhibited to me
or no marriage license was exhibited to me, this marriage being of
an exceptional character performed under Art. 77 of Rep. Act 386;
x x x.72
The reference to Article 77 of the Civil Code in the marriage
contract is not dismissible. Being a public document, the marriage
contract is not only a prima facie proof of marriage, but is also
a prima facie evidence of the facts stated therein. This is pursuant
to Section 44, Rule 130 of the 1997 Rules of Court, which reads:
Sec. 44. Entries in official records. - Entries in official records
made in the performance of his duty by a public officer of the
Philippines, or by a person in the performance of a duty specially
enjoined by law, are prima facie evidence of the facts therein
stated.
Consequently, the entries made in Luis and Severina's marriage
contract are prima facie proof that at the time of their marriage, no
marriage license was exhibited to the solemnizing officer for the
reason that their marriage is of an exceptional character under
Article 77 of the Civil Code.
Article 77 of the Civil Code provides:
Art. 77. In case two persons married in accordance with law desire
to ratify their union in conformity with the regulations, rites, or
practices of any church, sect, or religion, it shall no longer be
necessary to comply with the requirements of Chapter 1 of this
Title and any ratification made shall merely be considered as a
purely religious ceremony.
The foregoing provision pertains to a religious ceremony
performed with the purpose of ratifying a marriage which was
solemnized civilly. In the eyes of the law, the marriage already
exists; the subsequent ceremony is undertaken merely to conform
to religious practices. Thus, the parties are exempted from
complying with the required issuance of marriage license insofar
as the subsequent religious ceremony is concerned. For this
exemption to be applicable, it is sine qua non that: (1) the parties to
the religious ceremony must already be married to each other in
accordance with law (civil marriage); and (2) the ratifying
ceremony is purely religious in nature.
Applied to the present case however, it is clear that Luis and
Severina were not married to each other prior to the civil ceremony
officiated on December 28, 1966 - the only date of marriage
appearing on the records. This was also consistently affirmed by
Luis in open court:
A- As far as I can recall it was sometime two (2) days before my
daughter get (sic) one (1) year old. That was 1966 December
something like 28, because she was born December 30, the death
of Jose Rizal. I can remember 1965. So, before she turned one (1)
year old two (2) days before we got married here in San Juan.
Q- So, when was she born if you can recall?
A- Maria Luisa was born on December 30, 1965.
Q- If it is two (2) days before, it should be 1966?
A- Yes, sir.
Q- If you can recall who solemnized the marriage?
A- It was the late Mayor Ebona of San Juan.73
xxxx
[Atty. Valenton:] x x x You alleged during your direct examination
that you were married to [Severina]?
A: Yes sir.
Q: When do you say you marr[ied] her?
A: Two (2) days before our daughter turned one year old, so that is
December 28, 1966.74(Emphasis ours)
Being that the ceremony held on December 28, 1966 was the only
marriage ceremony between the parties and this was not
solemnized pursuant to any ratifying religious rite, practice or
regulation but a civil one officiated by the mayor, this marriage
does not fall under the purview of Article 77 of the Civil Code. It
is evident that the twin requirements of the provision, which
are: prior civil marriage between the parties and a ratifying
religious ceremony, were not complied with. There is no prior
ceremony to ratify. Thus, this marriage is not of an exceptional
character and a marriage license is required for Luis and Severina's
marriage to be valid.
Absence of marriage license
The next issue to be resolved is: who has the burden of proving the
existence or non-existence of the marriage license?
Since there was an unequivocal declaration on the marriage
contract itself that no marriage license was exhibited to the
solemnizing officer at the time of marriage owing to Article 77 of
the Civil Code, when in truth, the said exception does not obtain in
their case, it is the burden of Luis to prove that they secured the
required marriage license.
However, instead of proving that a marriage license was indeed
issued to them at the time of their marriage, Luis relied mainly on
the presumption of validity of marriage. This presumption does not
hold water vis-a-vis a prima facie evidence (marriage contract),
which on its face has established that no marriage license was
presented to the solemnizing officer. If there was a marriage
license issued to Luis and Severina, its absence on the marriage
contract was not explained at all. Neither the original nor a copy of
the marriage license was presented. No other witness also testified
to prove its existence, whereas Luis is not the best witness to
testify regarding its issuance. He admitted that he did not apply for
one, and is uncertain about the documents they purportedly
submitted in the Municipal Hall. As he revealed in his testimony:
A- The Chief of Police whom we get (sic) to be (sic) witness for
our marriage. They let us signed (sic) an application or affidavit. I
cannot recall what it is.77 (Emphasis ours)
In upholding the supposed validity of the marriage, the RTC and
the CA failed to consider the glaring statements in the marriage
contract that no marriage license was exhibited to the solemnizing
officer and that the marriage is of an exceptional character under
Article 77 of the Civil Code, the latter statement being fallacious.
Both the RTC and CA upheld the fact of marriage based on the
marriage contract but simply glossed over the part stating that the
marriage is of an exceptional character. It is inevitable to deduce
that this is not a case of mere non-recording of the marriage license
number on the marriage contract, as was in Geronimo.78
The factual antecedents in Geronimo are not on all fours with the
case under review, hence, inapplicable. In Geronimo, despite the
absence of the marriage license number on the marriage contract
presented by therein petitioner (brother of the deceased), there was
no statement therein that the marriage is of an exceptional
character. Various witnesses also testified that the deceased and
her husband were indeed married. More importantly, the husband
of the deceased was able to produce a copy of the marriage
contract on file with the National Archives and Records Section
where the marriage license number appears.
"[T]o be considered void on the ground of absence of a marriage
license, the law requires that the absence of such marriage license
must be apparent on the marriage contract, or at the very least,
supported by a certification from the local civil registrar that no
such marriage license was issued to the parties." 79 Considering that
the absence of the marriage license is apparent on the marriage
contract itself, with a false statement therein that the marriage is of
an exceptional character, and no proof to the contrary was
presented, there is no other plausible conclusion other than that the
marriage between Luis and Severina was celebrated without a
valid marriage license and is thus, void ab initio.
In Republic of the Philippines v. Dayot,80the Court similarly
declared that a marriage solemnized without a marriage license
based on a fabricated claim of exceptional character, is void. In
lieu of a marriage license, therein parties to the marriage executed
a false affidavit of marital cohabitation. In declaring the marriage
void, the Court rejected the notion that all the formal and essential
requisites of marriage were complied with. The Court held that to
permit a false affidavit to take the place of a marriage license is to
allow an abject circumvention of the law. It was further explained:
We cannot accept the insistence of the Republic that the falsity of
the statements in the parties' affidavit will not affect the validity of
marriage, since all the essential and formal requisites were
complied with. The argument deserves scant merit. Patently, it
cannot be denied that the marriage between Jose and Felisa was
celebrated without the formal requisite of a marriage license.
Neither did Jose and Felisa meet the explicit legal requirement in
Article 76, that they should have lived together as husband and
wife for at least five years, so as to be excepted from the
requirement of a marriage license.
xxxx
Similarly, we are not impressed by the ratiocination of the
Republic that as a marriage under a license is not invalidated by
the fact that the license was wrongfully obtained, so must a
marriage not be invalidated by a fabricated statement that the
parties have cohabited for at least five years as required by law.
The contrast is flagrant. The former is with reference to an
irregularity of the marriage license, and not to the absence of one.
Here, there is no marriage license at all. Furthermore, the falsity of
the allegation in the sworn affidavit relating to the period of Jose
and Felisa's cohabitation, which would have qualified their
marriage as an exception to the requirement for a marriage license,
cannot be a mere irregularity, for it refers to a quintessential fact
that the law precisely required to be deposed and attested to by the
parties under oath. If the essential matter in the sworn affidavit is a
lie, then it is but a mere scrap of paper, without force and effect.
Hence, it is as if there was no affidavit at all.81
The Court cannot turn a blind eye to the statements made in the
marriage contract because these refer to the absence of a formal
requisite of marriage. "The parties should not be afforded any
excuse to not comply with every single requirement and later use
the same missing element as a pre-conceived escape ground to
nullify their marriage. There should be no exemption from
securing a marriage license unless the circumstances clearly fall
within the ambit of the exception." 82 "The requirement and
issuance of marriage license is the State's demonstration of its
involvement and participation in every marriage, in the
maintenance of which the general public is interested. This interest
proceeds from the constitutional mandate that the State recognizes
the sanctity of family life and of affording protection to the family
as a basic 'autonomous social institution."'83
Partition Agreement is Valid
Relative to the properties they amassed during the period of their
cohabitation, Luis and Severina executed a notarized Partition
Agreement84 in November 1980, which divided their properties
between them without court intervention. Luis sought to annul
such agreement on the ground that "the separation of property is
not effected by the mere execution of the contract or agreement of
the parties, but by the decree of the court approving the same. It,
therefore, becomes effective only upon judicial approval, without
which it is void."85
The Court does not subscribe to Luis' posture.
In Valdes v. RTC, Branch 102, Quezon City,86the Court held that
"[i]n 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, such as
the case may be, of the Family Code. Article 147 is a remake of
Article 144 of the Civil Code x x x." 87 It provides:
Art. 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 .ioint 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.88 (Emphasis ours)
As there is no showing that Luis and Severina were incapacitated
to marry each other at the time of their cohabitation and
considering that their marriage is void from the beginning for lack
of a valid marriage license, Article 144 of the Civil Code, 89 in
relation to Article 147 of the Family Code, are the pertinent
provisions of law governing their property relations. Article 147 of
the Family Code "applies to union of parties who are legally
capacitated and not barred by any impediment to contract
marriage, but whose marriage is nonetheless void for other
reasons, like absence of a marriage license." 90 "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."'91
Accordingly, the provisions on co-ownership under the Civil Code
shall apply in the partition of the properties co-owned by Luis and
Severina. It is stated under Article 1079 of the Civil Code that
"partition, in general, is the separation, division and assignment of
a thing held in common among those to whom it may belong. The
thing itself may be divided, or its value." As to how partition may
be validly done, Article 496 of the Civil Code is precise that
"partition may be made by agreement between the parties or by
judicial proceedings x x x." The law does not impose a judicial
approval for the agreement to be valid. Hence, even without the
same, the partition was validly done by Luis and Severina through
the execution of the Partition Agreement.
Moreover, Luis admitted the existence, due execution and
authenticity of the Partition Agreement.92 It also remains
uncontroverted that he already received his share as stipulated in
the Partition Agreement. As such, the Court finds no reason to
have the said agreement declared null and void or annulled, in the
absence of any circumstance which renders such contract invalid
or at least, voidable.
All things considered, the Court holds that although a certification
of no record of marriage license or certification of "due search and
inability to find" a record or entry issued by the local civil registrar
is adequate to prove the non-issuance of the license,93 such
certification is not the only proof that could validate the absence of
a marriage license.
In this case, the categorical statement on Luis and Severina's
marriage contract that no marriage license was exhibited to the
solemnizing officer, coupled with a contrived averment therein that
the marriage is of an exceptional character under Article 77 of the
Civil Code, are circumstances which cannot be disregarded.
Incidentally, it may be well to note that Luis' failure to assert his
marriage to Severina during the latter's lifetime is suspect. Luis left
for the USA in 1981, and until Severina' s death in 2002, he never
saw, much less reconciled with her.94 All those years, he never
presented himself to be the husband of Severina. Not even their
daughter, Maria Luisa, knew of the marriage. During trial, he never
presented any other witness to the marriage. He contends that his
marriage to Severina was valid and subsisting, yet he knowingly
contracted a subsequent marriage abroad. Verily, Luis failed to
prove the validity of their marriage based on the evidence he
himself had presented.
"The solemnization of a marriage without prior license is a clear
violation of the law and would lead or could be used, at least, for
the perpetration of fraud against innocent and unwary parties,
which was one of the evils that the law sought to prevent by
making a prior license a prerequisite for a valid marriage. The
protection of marriage as a sacred institution requires not just the
defense of a true and genuine union but the exposure of an invalid
one as well."95
WHEREFORE, the petition is GRANTED. The Decision dated
August 6, 2012 and the Resolution dated November 26, 2012 of
the Court of Appeals in CA-G.R. CV No. 92989 are
hereby REVERSED and SET ASIDE. The Complaint filed in Civil
Case No. 69611 is DISMISSED.
SO ORDERED.
G. R. No. 183622 February 8, 2012
MEROPE ENRIQUEZ VDA. DE CATALAN, Petitioner,
vs.
LOUELLA A. CATALAN-LEE, Respondent.
RESOLUTION
SERENO, J.:
Before us is a Petition for Review assailing the Court of Appeals
(CA) Decision1 and Resolution2 regarding the issuance of letters of
administration of the intestate estate of Orlando B. Catalan.
The facts are as follows:
Orlando B. Catalan was a naturalized American citizen. After
allegedly obtaining a divorce in the United States from his first
wife, Felicitas Amor, he contracted a second marriage with
petitioner herein.
On 18 November 2004, Orlando died intestate in the Philippines.
Thereafter, on 28 February 2005, petitioner filed with the Regional
Trial Court (RTC) of Dagupan City a Petition for the issuance of
letters of administration for her appointment as administratrix of
the intestate estate of Orlando. The case was docketed as Special
Proceedings (Spec. Proc.) No. 228.
On 3 March 2005, while Spec. Proc. No. 228 was pending,
respondent Louella A. Catalan-Lee, one of the children of Orlando
from his first marriage, filed a similar petition with the RTC
docketed as Spec. Proc. No. 232.
The two cases were subsequently consolidated.
Petitioner prayed for the dismissal of Spec. Proc. No. 232 on the
ground of litis pendentia, considering that Spec. Proc. No. 228
covering the same estate was already pending.
On the other hand, respondent alleged that petitioner was not
considered an interested person qualified to file a petition for the
issuance of letters of administration of the estate of Orlando. In
support of her contention, respondent alleged that a criminal case
for bigamy was filed against petitioner before Branch 54 of the
RTC of Alaminos, Pangasinan, and docketed as Crim. Case No.
2699-A.
Apparently, Felicitas Amor filed a Complaint for bigamy, alleging
that petitioner contracted a second marriage to Orlando despite
having been married to one Eusebio Bristol on 12 December 1959.
On 6 August 1998, the RTC had acquitted petitioner of
bigamy.3 The trial court ruled that since the deceased was a
divorced American citizen, and since that divorce was not
recognized under Philippine jurisdiction, the marriage between him
and petitioner was not valid.
Furthermore, it took note of the action for declaration of nullity
then pending action with the trial court in Dagupan City filed by
Felicitas Amor against the deceased and petitioner. It considered
the pending action to be a prejudicial question in determining the
guilt of petitioner for the crime of bigamy.
Finally, the trial court found that, in the first place, petitioner had
never been married to Eusebio Bristol.
On 26 June 2006, Branch 70 of the RTC of Burgos, Pangasinan
dismissed the Petition for the issuance of letters of administration
filed by petitioner and granted that of private respondent. Contrary
to its findings in Crim. Case No. 2699-A, the RTC held that the
marriage between petitioner and Eusebio Bristol was valid and
subsisting when she married Orlando. Without expounding, it
reasoned further that her acquittal in the previous bigamy case was
fatal to her cause. Thus, the trial court held that petitioner was not
an interested party who may file a petition for the issuance of
letters of administration.4
After the subsequent denial of her Motion for Reconsideration,
petitioner elevated the matter to the Court of Appeals (CA) via her
Petition for Certiorari, alleging grave abuse of discretion on the
part of the RTC in dismissing her Petition for the issuance of
letters of administration.
Petitioner reiterated before the CA that the Petition filed by
respondent should have been dismissed on the ground of litis
pendentia. She also insisted that, while a petition for letters of
administration may have been filed by an "uninterested person,"
the defect was cured by the appearance of a real party-in-interest.
Thus, she insisted that, to determine who has a better right to
administer the decedents properties, the RTC should have first
required the parties to present their evidence before it ruled on the
matter.
On 18 October 2007, the CA promulgated the assailed Decision.
First, it held that petitioner undertook the wrong remedy. She
should have instead filed a petition for review rather than a petition
for certiorari. Nevertheless, since the Petition for Certiorari was
filed within the fifteen-day reglementary period for filing a petition
for review under Sec. 4 of Rule 43, the CA allowed the Petition
and continued to decide on the merits of the case. Thus, it ruled in
this wise:
As to the issue of litis pendentia, we find it not applicable in the
case. For litis pendentia to be a ground for the dismissal of an
action, there must be: (a) identity of the parties or at least such as
to represent the same interest in both actions; (b) identity of rights
asserted and relief prayed for, the relief being founded on the same
acts, and (c) the identity in the two cases should be such that the
judgment which may be rendered in one would, regardless of
which party is successful, amount to res judicata in the other. A
petition for letters of administration is a special proceeding. A
special proceeding is an application or proceeding to establish the
status or right of a party, or a particular fact. And, in contrast to an
ordinary civil action, a special proceeding involves no defendant or
respondent. The only party in this kind of proceeding is the
petitioner of the applicant. Considering its nature, a subsequent
petition for letters of administration can hardly be barred by a
similar pending petition involving the estate of the same decedent
unless both petitions are filed by the same person. In the case at
bar, the petitioner was not a party to the petition filed by the
private respondent, in the same manner that the latter was not made
a party to the petition filed by the former. The first element of litis
pendentia is wanting. The contention of the petitioner must
perforce fail.
Moreover, to yield to the contention of the petitioner would render
nugatory the provision of the Rules requiring a petitioner for letters
of administration to be an "interested party," inasmuch as any
person, for that matter, regardless of whether he has valid interest
in the estate sought to be administered, could be appointed as
administrator for as long as he files his petition ahead of any other
person, in derogation of the rights of those specifically mentioned
in the order of preference in the appointment of administrator
under Rule 78, Section 6 of the Revised Rules of Court, which
provides:
xxx xxx xxx
The petitioner, armed with a marriage certificate, filed her petition
for letters of administration. As a spouse, the petitioner would have
been preferred to administer the estate of Orlando B. Catalan.
However, a marriage certificate, like any other public document, is
only prima facie evidence of the facts stated therein. The fact that
the petitioner had been charged with bigamy and was acquitted has
not been disputed by the petitioner. Bigamy is an illegal marriage
committed by contracting a second or subsequent marriage before
the first marriage has been dissolved or before the absent spouse
has been declared presumptively dead by a judgment rendered in a
proper proceedings. The deduction of the trial court that the
acquittal of the petitioner in the said case negates the validity of
her subsequent marriage with Orlando B. Catalan has not been
disproved by her. There was not even an attempt from the
petitioner to deny the findings of the trial court. There is therefore
no basis for us to make a contrary finding. Thus, not being an
interested party and a stranger to the estate of Orlando B. Catalan,
the dismissal of her petition for letters of administration by the trial
court is in place.
xxx xxx xxx
WHEREFORE, premises considered, the petition
is DISMISSED for lack of merit. No pronouncement as to costs.
SO ORDERED.5 (Emphasis supplied)
Petitioner moved for a reconsideration of this Decision. 6 She
alleged that the reasoning of the CA was illogical in stating, on the
one hand, that she was acquitted of bigamy, while, on the other
hand, still holding that her marriage with Orlando was invalid. She
insists that with her acquittal of the crime of bigamy, the marriage
enjoys the presumption of validity.
On 20 June 2008, the CA denied her motion.
Hence, this Petition.
At the outset, it seems that the RTC in the special proceedings
failed to appreciate the finding of the RTC in Crim. Case No.
2699-A that petitioner was never married to Eusebio Bristol. Thus,
the trial court concluded that, because petitioner was acquitted of
bigamy, it follows that the first marriage with Bristol still existed
and was valid. By failing to take note of the findings of fact on the
nonexistence of the marriage between petitioner and Bristol, both
the RTC and CA held that petitioner was not an interested party in
the estate of Orlando.
Second, it is imperative to note that at the time the bigamy case in
Crim. Case No. 2699-A was dismissed, we had already ruled that
under the principles of comity, our jurisdiction recognizes a valid
divorce obtained by a spouse of foreign nationality. This doctrine
was established as early as 1985 in Van Dorn v. Romillo,
Jr.7 wherein we said:
It is true that owing to the nationality principle embodied in Article
15 of the Civil Code, only Philippine nationals are covered by the
policy against absolute divorces[,] the same being considered
contrary to our concept of public policy and morality. However,
aliens may obtain divorces abroad, which may be recognized in the
Philippines, provided they are valid according to their national
law. In this case, the divorce in Nevada released private respondent
from the marriage from the standards of American law, under
which divorce dissolves the marriage. xxx
We reiterated this principle in Llorente v. Court of Appeals, 8 to
wit:
In Van Dorn v. Romillo, Jr. we held that owing to the nationality
principle embodied in Article 15 of the Civil Code, only Philippine
nationals are covered by the policy against absolute divorces, the
same being considered contrary to our concept of public policy and
morality. In the same case, the Court ruled that aliens may obtain
divorces abroad, provided they are valid according to their national
law.
Citing this landmark case, the Court held in Quita v. Court of
Appeals, that once proven that respondent was no longer a Filipino
citizen when he obtained the divorce from petitioner, the ruling in
Van Dorn would become applicable and petitioner could "very
well lose her right to inherit" from him.
In Pilapil v. Ibay-Somera, we recognized the divorce obtained by
the respondent in his country, the Federal Republic of
Germany. There, we stated that divorce and its legal effects may be
recognized in the Philippines insofar as respondent is concerned in
view of the nationality principle in our civil law on the status of
persons.
For failing to apply these doctrines, the decision of the Court of
Appeals must be reversed. We hold that the divorce obtained by
Lorenzo H. Llorente from his first wife Paula was valid and
recognized in this jurisdiction as a matter of comity. xxx
Nonetheless, the fact of divorce must still first be proven as we
have enunciated in Garcia v. Recio,9 to wit:
Respondent is getting ahead of himself. Before a foreign judgment
is given presumptive evidentiary value, the document must first be
presented and admitted in evidence. A divorce obtained abroad is
proven by the divorce decree itself. Indeed the best evidence of a
judgment is the judgment itself. The decree purports to be a written
act or record of an act of an official body or tribunal of a foreign
country.
Under Sections 24 and 25 of Rule 132, on the other hand, a writing
or document may be proven as a public or official record of a
foreign country by either (1) an official publication or (2) a copy
thereof attested by the officer having legal custody of the
document. If the record is not kept in the Philippines, such copy
must be (a) accompanied by a certificate issued by the proper
diplomatic or consular officer in the Philippine foreign service
stationed in the foreign country in which the record is kept and (b)
authenticated by the seal of his office.
The divorce decree between respondent and Editha Samson
appears to be an authentic one issued by an Australian family
court. However, appearance is not sufficient; compliance with the
aforementioned rules on evidence must be demonstrated.
Fortunately for respondent's cause, when the divorce decree of
May 18, 1989 was submitted in evidence, counsel for petitioner
objected, not to its admissibility, but only to the fact that it had not
been registered in the Local Civil Registry of Cabanatuan City.
The trial court ruled that it was admissible, subject to petitioner's
qualification. Hence, it was admitted in evidence and accorded
weight by the judge. Indeed, petitioner's failure to object properly
rendered the divorce decree admissible as a written act of the
Family Court of Sydney, Australia.
Compliance with the quoted articles (11, 13 and 52) of the Family
Code is not necessary; respondent was no longer bound by
Philippine personal laws after he acquired Australian citizenship in
1992. Naturalization is the legal act of adopting an alien and
clothing him with the political and civil rights belonging to a
citizen. Naturalized citizens, freed from the protective cloak of
their former states, don the attires of their adoptive countries. By
becoming an Australian, respondent severed his allegiance to the
Philippines and the vinculum juris that had tied him to Philippine
personal laws.
Burden of Proving Australian Law
Respondent contends that the burden to prove Australian divorce
law falls upon petitioner, because she is the party challenging the
validity of a foreign judgment. He contends that petitioner was
satisfied with the original of the divorce decree and was cognizant
of the marital laws of Australia, because she had lived and worked
in that country for quite a long time. Besides, the Australian
divorce law is allegedly known by Philippine courts; thus, judges
may take judicial notice of foreign laws in the exercise of sound
discretion.
We are not persuaded. The burden of proof lies with the "party
who alleges the existence of a fact or thing necessary in the
prosecution or defense of an action." In civil cases, plaintiffs have
the burden of proving the material allegations of the complaint
when those are denied by the answer; and defendants have the
burden of proving the material allegations in their answer when
they introduce new matters. Since the divorce was a defense raised
by respondent, the burden of proving the pertinent Australian law
validating it falls squarely upon him.
It is well-settled in our jurisdiction that our courts cannot take
judicial notice of foreign laws.1wphi1 Like any other facts, they
must be alleged and proved. Australian marital laws are not among
those matters that judges are supposed to know by reason of their
judicial function. The power of judicial notice must be exercised
with caution, and every reasonable doubt upon the subject should
be resolved in the negative. (Emphasis supplied)
It appears that the trial court no longer required petitioner to prove
the validity of Orlandos divorce under the laws of the United
States and the marriage between petitioner and the deceased. Thus,
there is a need to remand the proceedings to the trial court for
further reception of evidence to establish the fact of divorce.
Should petitioner prove the validity of the divorce and the
subsequent marriage, she has the preferential right to be issued the
letters of administration over the estate. Otherwise, letters of
administration may be issued to respondent, who is undisputedly
the daughter or next of kin of the deceased, in accordance with
Sec. 6 of Rule 78 of the Revised Rules of Court.
This is consistent with our ruling in San Luis v. San Luis, 10 in
which we said:
Applying the above doctrine in the instant case, the divorce decree
allegedly obtained by Merry Lee which absolutely allowed
Felicisimo to remarry, would have vested Felicidad with the legal
personality to file the present petition as Felicisimo's surviving
spouse. However, the records show that there is insufficient
evidence to prove the validity of the divorce obtained by Merry
Lee as well as the marriage of respondent and Felicisimo under the
laws of the U.S.A. In Garcia v. Recio, the Court laid down the
specific guidelines for pleading and proving foreign law and
divorce judgments. It held that presentation solely of the divorce
decree is insufficient and that proof of its authenticity and due
execution must be presented. Under Sections 24 and 25 of Rule
132, a writing or document may be proven as a public or official
record of a foreign country by either (1) an official publication or
(2) a copy thereof attested by the officer having legal custody of
the document. If the record is not kept in the Philippines, such
copy must be (a) accompanied by a certificate issued by the proper
diplomatic or consular officer in the Philippine foreign service
stationed in the foreign country in which the record is kept and (b)
authenticated by the seal of his office.
With regard to respondent's marriage to Felicisimo allegedly
solemnized in California, U.S.A., she submitted photocopies of the
Marriage Certificate and the annotated text of the Family Law Act
of California which purportedly show that their marriage was done
in accordance with the said law. As stated in Garcia, however, the
Court cannot take judicial notice of foreign laws as they must be
alleged and proved.
Therefore, this case should be remanded to the trial court for
further reception of evidence on the divorce decree obtained by
Merry Lee and the marriage of respondent and Felicisimo.
(Emphasis supplied)
Thus, it is imperative for the trial court to first determine the
validity of the divorce to ascertain the rightful party to be issued
the letters of administration over the estate of Orlando B. Catalan.
WHEREFORE, premises considered, the Petition is
hereby PARTIALLY GRANTED. The Decision dated 18 October
2007 and the Resolution dated 20 June 2008 of the Court of
Appeals are hereby REVERSED and SET ASIDE. Let this case
be REMANDED to Branch 70 of the Regional Trial Court of
Burgos, Pangasinan for further proceedings in accordance with this
Decision.
SO ORDERED.
G.R. No. 124862 December 22, 1998
FE D. QUITA, petitioner,
vs.
COURT OF APPEALS and BLANDINA
DANDAN, * respondents.
BELLOSILLO, J.:
FE D. QUITA and Arturo T. Padlan, both Filipinos, were married
in the Philippines on 18 May 1941. They were not however blessed
with children. Somewhere along the way their relationship soured.
Eventually Fe sued Arturo for divorce in San Francisco, California,
U.S.A. She submitted in the divorce proceedings a private writing
dated 19 July 1950 evidencing their agreement to live separately
from each other and a settlement of their conjugal properties. On
23 July 1954 she obtained a final judgment of divorce. Three (3)
weeks thereafter she married a certain Felix Tupaz in the same
locality but their relationship also ended in a divorce. Still in the
U.S.A., she married for the third time, to a certain Wernimont.
On 16 April 1972 Arturo died. He left no will. On 31 August 1972
Lino Javier Inciong filed a petition with the Regional Trial Court
of Quezon City for issuance of letters of administration concerning
the estate of Arturo in favor of the Philippine Trust Company.
Respondent Blandina Dandan (also referred to as Blandina
Padlan), claiming to be the surviving spouse of Arturo Padlan, and
Claro, Alexis, Ricardo, Emmanuel, Zenaida and Yolanda, all
surnamed Padlan, named in the children of Arturo Padlan opposed
the petition and prayed for the appointment instead of Atty.
Leonardo Casaba, which was resolved in favor of the latter. Upon
motion of the oppositors themselves, Atty. Cabasal was later
replaced by Higino Castillon. On 30 April 1973 the oppositors
(Blandina and Padlan children) submitted certified photocopies of
the 19 July 1950 private writing and the final judgment of divorce
between petitioner and Arturo. Later Ruperto T. Padlan, claiming
to be the sole surviving brother of the deceased Arturo, intervened.
On 7 October 1987 petitioner moved for the immediate declaration
of heirs of the decedent and the distribution of his estate. At the
scheduled hearing on 23 October 1987, private respondent as well
as the six (6) Padlan children and Ruperto failed to appear despite
due notice. On the same day, the trial court required the
submission of the records of birth of the Padlan children within ten
(10) days from receipt thereof, after which, with or without the
documents, the issue on the declaration of heirs would be
considered submitted for resolution. The prescribed period lapsed
without the required documents being submitted.
The trial court invoking Tenchavez v. Escao 1 which held that "a
foreign divorce between Filipino citizens sought and decreed after
the effectivity of the present Civil Code (Rep. Act 386) was not
entitled to recognition as valid in this jurisdiction," 2 disregarded
the divorce between petitioner and Arturo. Consecuently, it
expressed the view that their marriage subsisted until the death of
Arturo in 1972. Neither did it consider valid their extrajudicial
settlement of conjugal properties due to lack of judicial
approval. 3On the other hand, it opined that there was no showing
that marriage existed between private respondent and Arturo, much
less was it shown that the alleged Padlan children had been
acknowledged by the deceased as his children with her. As regards
Ruperto, it found that he was a brother of Arturo. On 27 November
1987 4 only petitioner and Ruperto were declared the intestate heirs
of Arturo. Accordingly, equal adjudication of the net hereditary
estate was ordered in favor of the two intestate heirs. 5
On motion for reconsideration, Blandina and the Padlan children
were allowed to present proofs that the recognition of the children
by the deceased as his legitimate children, except Alexis who was
recognized as his illegitimate child, had been made in their
respective records of birth. Thus on 15 February 1988 6 partial
reconsideration was granted declaring the Padlan children, with the
exception of Alexis, entitled to one-half of the estate to the
exclusion of Ruperto Padlan, and petitioner to the other
half. 7 Private respondent was not declared an heir. Although it was
stated in the aforementioned records of birth that she and Arturo
were married on 22 April 1947, their marriage was clearly void
since it was celebrated during the existence of his previous
marriage to petitioner.
In their appeal to the Court of Appeals, Blandina and her children
assigned as one of the errors allegedly committed by the trial court
the circumstance that the case was decided without a hearing, in
violation of Sec. 1, Rule 90, of the Rules of Court, which provides
that if there is a controversy before the court as to who are the
lawful heirs of the deceased person or as to the distributive shares
to which each person is entitled under the law, the controversy
shall be heard and decided as in ordinary cases.
Respondent appellate court found this ground alone sufficient to
sustain the appeal; hence, on 11 September 1995 it declared null
and void the 27 November 1987 decision and 15 February 1988
order of the trial court, and directed the remand of the case to the
trial court for further proceedings. 8 On 18 April 1996 it denied
reconsideration. 9
Should this case be remanded to the lower court for further
proceedings? Petitioner insists that there is no need because, first,
no legal or factual issue obtains for resolution either as to the
heirship of the Padlan children or as to the decedent; and, second,
the issue as to who between petitioner and private respondent is the
proper hier of the decedent is one of law which can be resolved in
the present petition based on establish facts and admissions of the
parties.
We cannot sustain petitioner. The provision relied upon by
respondent court is clear: If there is a controversy before the court
as to who are the lawful heirs of the deceased person or as to the
distributive shares to which each person is entitled under the law,
the controversy shall be heard and decided as in ordinary cases.
We agree with petitioner that no dispute exists either as to the right
of the six (6) Padlan children to inherit from the decedent because
there are proofs that they have been duly acknowledged by him
and petitioner herself even recognizes them as heirs of Arturo
Padlan; 10 nor as to their respective hereditary shares. But
controversy remains as to who is the legitimate surviving spouse of
Arturo. The trial court, after the parties other than petitioner failed
to appear during the scheduled hearing on 23 October 1987 of the
motion for immediate declaration of heirs and distribution of
estate, simply issued an order requiring the submission of the
records of birth of the Padlan children within ten (10) days from
receipt thereof, after which, with or without the documents, the
issue on declaration of heirs would be deemed submitted for
resolution.
We note that in her comment to petitioner's motion private
respondent raised, among others, the issue as to whether petitioner
was still entitled to inherit from the decedent considering that she
had secured a divorce in the U.S.A. and in fact had twice
remarried. She also invoked the above quoted procedural
rule. 11 To this, petitioner replied that Arturo was a Filipino and as
such remained legally married to her in spite of the divorce they
obtained. 12 Reading between the lines, the implication is that
petitioner was no longer a Filipino citizen at the time of her
divorce from Arturo. This should have prompted the trial court to
conduct a hearing to establish her citizenship. The purpose of a
hearing is to ascertain the truth of the matters in issue with the aid
of documentary and testimonial evidence as well as the arguments
of the parties either supporting or opposing the evidence. Instead,
the lower court perfunctorily settled her claim in her favor by
merely applying the ruling in Tenchavez v. Escao.
Then in private respondent's motion to set aside and/or reconsider
the lower court's decision she stressed that the citizenship of
petitioner was relevant in the light of the ruling in Van Dorn v.
Romillo Jr. 13 that aliens may obtain divorces abroad, which may
be recognized in the Philippines, provided they are valid according
to their national law. She prayed therefore that the case be set for
hearing. 14 Petitioner opposed the motion but failed to squarely
address the issue on her citizenship. 15 The trial court did not grant
private respondent's prayer for a hearing but proceeded to resolve
her motion with the finding that both petitioner and Arturo were
"Filipino citizens and were married in the Philippines." 16 It
maintained that their divorce obtained in 1954 in San Francisco,
California, U.S.A., was not valid in Philippine jurisdiction. We
deduce that the finding on their citizenship pertained solely to the
time of their marriage as the trial court was not supplied with a
basis to determine petitioner's citizenship at the time of their
divorce. The doubt persisted as to whether she was still a Filipino
citizen when their divorce was decreed. The trial court must have
overlooked the materiality of this aspect. Once proved that she was
no longer a Filipino citizen at the time of their divorce, Van
Dorn would become applicable and petitioner could very well lose
her right to inherit from Arturo.
Respondent again raised in her appeal the issue on petitioner's
citizenship; 17 it did not merit enlightenment however from
petitioner. 18 In the present proceeding, petitioner's citizenship is
brought anew to the fore by private respondent. She even furnishes
the Court with the transcript of stenographic notes taken on 5 May
1995 during the hearing for the reconstitution of the original of a
certain transfer certificate title as well as the issuance of new
owner's duplicate copy thereof before another trial court. When
asked whether she was an American citizen petitioner answered
that she was since 1954. 19 Significantly, the decree of divorce of
petitioner and Arturo was obtained in the same year. Petitioner
however did not bother to file a reply memorandum to erase the
uncertainty about her citizenship at the time of their divorce, a
factual issue requiring hearings to be conducted by the trial court.
Consequently, respondent appellate court did not err in ordering
the case returned to the trial court for further proceedings.
We emphasize however that the question to be determined by the
trial court should be limited only to the right of petitioner to inherit
from Arturo as his surviving spouse. Private respondent's claim to
heirship was already resolved by the trial court. She and Arturo
were married on 22 April 1947 while the prior marriage of
petitioner and Arturo was subsisting thereby resulting in a
bigamous marriage considered void from the beginning under Arts.
80 and 83 of the Civil Code. Consequently, she is not a surviving
spouse that can inherit from him as this status presupposes a
legitimate relationship. 20
As regards the motion of private respondent for petitioner and a
her counsel to be declared in contempt of court and that the present
petition be dismissed for forum shopping, 21 the same lacks merit.
For forum shopping to exist the actions must involve the same
transactions and same essential facts and circumstances. There
must also be identical causes of action, subject matter and
issue. 22 The present petition deals with declaration of heirship
while the subsequent petitions filed before the three (3) trial courts
concern the issuance of new owner's duplicate copies of titles of
certain properties belonging to the estate of Arturo. Obviously,
there is no reason to declare the existence of forum shopping.
WHEREFORE, the petition is DENIED. The decision of
respondent Court of Appeals ordering the remand of the case to the
court of origin for further proceedings and declaring null and void
its decision holding petitioner Fe D. Quita and Ruperto T. Padlan
as intestate heirs is AFFIRMED. The order of the appellate court
modifying its previous decision by granting one-half (1/2) of the
net hereditary estate to the Padlan children, namely, Claro,
Ricardo, Emmanuel, Zenaida and Yolanda, with the exception of
Alexis, all surnamed Padlan, instead of Arturo's brother Ruperto
Padlan, is likewise AFFIRMED. The Court however emphasizes
that the reception of evidence by the trial court should he limited to
the hereditary rights of petitioner as the surviving spouse of Arturo
Padlan.
The motion to declare petitioner and her counsel in contempt of
court and to dismiss the present petition for forum shopping is
DENIED.
SO ORDERED.
G.R. No. 150758 February 18, 2004
VERONICO TENEBRO, petitioner
vs.
THE HONORABLE COURT OF APPEALS, respondent.
DECISION
YNARES-SANTIAGO, J.:
We are called on to decide the novel issue concerning the effect of
the judicial declaration of the nullity of a second or subsequent
marriage, on the ground of psychological incapacity, on an
individuals criminal liability for bigamy. We hold that the
subsequent judicial declaration of nullity of marriage on the
ground of psychological incapacity does not retroact to the date of
the celebration of the marriage insofar as the Philippines penal
laws are concerned. As such, an individual who contracts a second
or subsequent marriage during the subsistence of a valid marriage
is criminally liable for bigamy, notwithstanding the subsequent
declaration that the second marriage is void ab initio on the ground
of psychological incapacity.
Petitioner in this case, Veronico Tenebro, contracted marriage with
private complainant Leticia Ancajas on April 10, 1990. The two
were wed by Judge Alfredo B. Perez, Jr. of the City Trial Court of
Lapu-lapu City. Tenebro and Ancajas lived together continuously
and without interruption until the latter part of 1991, when Tenebro
informed Ancajas that he had been previously married to a certain
Hilda Villareyes on November 10, 1986. Tenebro showed Ancajas
a photocopy of a marriage contract between him and Villareyes.
Invoking this previous marriage, petitioner thereafter left the
conjugal dwelling which he shared with Ancajas, stating that he
was going to cohabit with Villareyes.1
On January 25, 1993, petitioner contracted yet another marriage,
this one with a certain Nilda Villegas, before Judge German Lee,
Jr. of the Regional Trial Court of Cebu City, Branch 15.2 When
Ancajas learned of this third marriage, she verified from Villareyes
whether the latter was indeed married to petitioner. In a
handwritten letter,3 Villareyes confirmed that petitioner, Veronico
Tenebro, was indeed her husband.
Ancajas thereafter filed a complaint for bigamy against
petitioner.4 The Information,5 which was docketed as Criminal
Case No. 013095-L, reads:
That on the 10th day of April 1990, in the City of Lapu-lapu,
Philippines, and within the jurisdiction of this Honorable Court,
the aforenamed accused, having been previously united in lawful
marriage with Hilda Villareyes, and without the said marriage
having been legally dissolved, did then and there willfully,
unlawfully and feloniously contract a second marriage with
LETICIA ANCAJAS, which second or subsequent marriage of the
accused has all the essential requisites for validity were it not for
the subsisting first marriage.
CONTRARY TO LAW.
When arraigned, petitioner entered a plea of "not guilty".6
During the trial, petitioner admitted having cohabited with
Villareyes from 1984-1988, with whom he sired two children.
However, he denied that he and Villareyes were validly married to
each other, claiming that no marriage ceremony took place to
solemnize their union.7 He alleged that he signed a marriage
contract merely to enable her to get the allotment from his office in
connection with his work as a seaman.8 He further testified that he
requested his brother to verify from the Civil Register in Manila
whether there was any marriage at all between him and Villareyes,
but there was no record of said marriage.9
On November 10, 1997, the Regional Trial Court of Lapu-lapu
City, Branch 54, rendered a decision finding the accused guilty
beyond reasonable doubt of the crime of bigamy under Article 349
of the Revised Penal Code, and sentencing him to four (4) years
and two (2) months of prision correccional, as minimum, to eight
(8) years and one (1) day of prision mayor, as maximum. 10 On
appeal, the Court of Appeals affirmed the decision of the trial
court. Petitioners motion for reconsideration was denied for lack
of merit.
Hence, the instant petition for review on the following assignment
of errors:
I. THE HONORABLE COURT OF APPEALS
GRAVELY ERRED, AND THIS ERROR IS
CORRECTIBLE IN THIS APPEAL WHEN IT
AFFIRMED THE DECISION OF THE HONORABLE
COURT A QUOCONVICTING THE ACCUSED FOR
(sic) THE CRIME OF BIGAMY, DESPITE THE NON-
EXISTENCE OF THE FIRST MARRIAGE AND
INSUFFICIENCY OF EVIDENCE.
II. THE COURT ERRED IN CONVICTING THE
ACCUSED FOR (sic) THE CRIME OF BIGAMY
DESPITE CLEAR PROOF THAT THE MARRIAGE
BETWEEN THE ACCUSED AND PRIVATE
COMPLAINANT HAD BEEN DECLARED NULL
AND VOID AB INITIO AND WITHOUT LEGAL
FORCE AND EFFECT.11
After a careful review of the evidence on record, we find no cogent
reason to disturb the assailed judgment.
Under Article 349 of the Revised Penal Code, the elements of the
crime of Bigamy are:
(1) that the offender has been legally married;
(2) that the first marriage has not been legally dissolved
or, in case his or her spouse is absent, the absent spouse
could not yet be presumed dead according to the Civil
Code;
(3) that he contracts a second or subsequent marriage; and
(4) that the second or subsequent marriage has all the
essential requisites for validity.12
Petitioners assignment of errors presents a two-tiered defense, in
which he (1) denies the existence of his first marriage to
Villareyes, and (2) argues that the declaration of the nullity of the
second marriage on the ground of psychological incapacity, which
is an alleged indicator that his marriage to Ancajas lacks the
essential requisites for validity, retroacts to the date on which the
second marriage was celebrated.13 Hence, petitioner argues that all
four of the elements of the crime of bigamy are absent, and prays
for his acquittal.14
Petitioners defense must fail on both counts.
First, the prosecution presented sufficient evidence, both
documentary and oral, to prove the existence of the first marriage
between petitioner and Villareyes. Documentary evidence
presented was in the form of: (1) a copy of a marriage contract
between Tenebro and Villareyes, dated November 10, 1986,
which, as seen on the document, was solemnized at the Manila
City Hall before Rev. Julieto Torres, a Minister of the Gospel, and
certified to by the Office of the Civil Registrar of Manila; 15 and (2)
a handwritten letter from Villareyes to Ancajas dated July 12,
1994, informing Ancajas that Villareyes and Tenebro were legally
married.16
To assail the veracity of the marriage contract, petitioner presented
(1) a certification issued by the National Statistics Office dated
October 7, 1995;17 and (2) a certification issued by the City Civil
Registry of Manila, dated February 3, 1997. 18 Both these
documents attest that the respective issuing offices have no record
of a marriage celebrated between Veronico B. Tenebro and Hilda
B. Villareyes on November 10, 1986.
To our mind, the documents presented by the defense cannot
adequately assail the marriage contract, which in itself would
already have been sufficient to establish the existence of a
marriage between Tenebro and Villareyes.
All three of these documents fall in the category of public
documents, and the Rules of Court provisions relevant to public
documents are applicable to all. Pertinent to the marriage contract,
Section 7 of Rule 130 of the Rules of Court reads as follows:
Sec. 7. Evidence admissible when original document is a public
record. When the original of a document is in the custody of a
public officer or is recorded in a public office, its contents may be
proved by a certified copy issued by the public officer in custody
thereof (Emphasis ours).
This being the case, the certified copy of the marriage contract,
issued by a public officer in custody thereof, was admissible as the
best evidence of its contents. The marriage contract plainly
indicates that a marriage was celebrated between petitioner and
Villareyes on November 10, 1986, and it should be accorded the
full faith and credence given to public documents.
Moreover, an examination of the wordings of the certification
issued by the National Statistics Office on October 7, 1995 and that
issued by the City Civil Registry of Manila on February 3, 1997
would plainly show that neither document attests as a positive fact
that there was no marriage celebrated between Veronico B.
Tenebro and Hilda B. Villareyes on November 10, 1986. Rather,
the documents merely attest that the respective issuing offices have
no record of such a marriage. Documentary evidence as to the
absence of a record is quite different from documentary evidence
as to the absence of a marriage ceremony, or documentary
evidence as to the invalidity of the marriage between Tenebro and
Villareyes.
The marriage contract presented by the prosecution serves as
positive evidence as to the existence of the marriage between
Tenebro and Villareyes, which should be given greater credence
than documents testifying merely as to absence of any record of
the marriage, especially considering that there is absolutely no
requirement in the law that a marriage contract needs to be
submitted to the civil registrar as a condition precedent for the
validity of a marriage. The mere fact that no record of a marriage
exists does not invalidate the marriage, provided all requisites for
its validity are present.19 There is no evidence presented by the
defense that would indicate that the marriage between Tenebro and
Villareyes lacked any requisite for validity, apart from the self-
serving testimony of the accused himself. Balanced against this
testimony are Villareyes letter, Ancajas testimony that petitioner
informed her of the existence of the valid first marriage, and
petitioners own conduct, which would all tend to indicate that the
first marriage had all the requisites for validity.
Finally, although the accused claims that he took steps to verify the
non-existence of the first marriage to Villareyes by requesting his
brother to validate such purported non-existence, it is significant to
note that the certifications issued by the National Statistics Office
and the City Civil Registry of Manila are dated October 7, 1995
and February 3, 1997, respectively. Both documents, therefore, are
dated after the accuseds marriage to his second wife, private
respondent in this case.
As such, this Court rules that there was sufficient evidence
presented by the prosecution to prove the first and second
requisites for the crime of bigamy.
The second tier of petitioners defense hinges on the effects of the
subsequent judicial declaration20 of the nullity of the second
marriage on the ground of psychological incapacity.
Petitioner argues that this subsequent judicial declaration retroacts
to the date of the celebration of the marriage to Ancajas. As such,
he argues that, since his marriage to Ancajas was subsequently ensure that each marital contract be flawed in some manner, and to
declared void ab initio, the crime of bigamy was not committed. 21 thus escape the consequences of contracting multiple marriages,
while beguiling throngs of hapless women with the promise of
This argument is not impressed with merit. futurity and commitment.

Petitioner makes much of the judicial declaration of the nullity of
the second marriage on the ground of psychological incapacity,
invoking Article 36 of the Family Code. What petitioner fails to
realize is that a declaration of the nullity of the second marriage on
the ground of psychological incapacity is of absolutely no moment
insofar as the States penal laws are concerned.
As a second or subsequent marriage contracted during the
subsistence of petitioners valid marriage to Villareyes, petitioners
marriage to Ancajas would be null and void ab initio completely
regardless of petitioners psychological capacity or
incapacity.22 Since a marriage contracted during the subsistence of
a valid marriage is automatically void, the nullity of this second
marriage is not per se an argument for the avoidance of criminal
liability for bigamy. Pertinently, Article 349 of the Revised Penal
Code criminalizes "any person who shall contract a second or
subsequent marriage before the former marriage has been legally
dissolved, or before the absent spouse has been declared
presumptively dead by means of a judgment rendered in the proper
proceedings". A plain reading of the law, therefore, would indicate
that the provision penalizes the mere act of contracting a second or
a subsequent marriage during the subsistence of a valid marriage.
Thus, as soon as the second marriage to Ancajas was celebrated on
April 10, 1990, during the subsistence of the valid first marriage,
the crime of bigamy had already been consummated. To our mind,
there is no cogent reason for distinguishing between a subsequent
marriage that is null and void purely because it is a second or
subsequent marriage, and a subsequent marriage that is null and
void on the ground of psychological incapacity, at least insofar as
criminal liability for bigamy is concerned. The States penal laws
protecting the institution of marriage are in recognition of the
sacrosanct character of this special contract between spouses, and
punish an individuals deliberate disregard of the permanent
character of the special bond between spouses, which petitioner
has undoubtedly done.
Moreover, the declaration of the nullity of the second marriage on
the ground of psychological incapacity is not an indicator that
petitioners marriage to Ancajas lacks the essential requisites for
validity. The requisites for the validity of a marriage are classified
by the Family Code into essential (legal capacity of the contracting
parties and their consent freely given in the presence of the
solemnizing officer)23 and formal (authority of the solemnizing
officer, marriage license, and marriage ceremony wherein the
parties personally declare their agreement to marry before the
solemnizing officer in the presence of at least two
witnesses).24 Under Article 5 of the Family Code, any male or
female of the age of eighteen years or upwards not under any of
the impediments mentioned in Articles 3725 and 3826 may contract
marriage.27
As such, we rule that the third and fourth requisites for the crime of
bigamy are present in this case, and affirm the judgment of the
Court of Appeals.
As a final point, we note that based on the evidence on record,
petitioner contracted marriage a third time, while his marriages to
Villareyes and Ancajas were both still subsisting. Although this is
irrelevant in the determination of the accuseds guilt for purposes
of this particular case, the act of the accused displays a deliberate
disregard for the sanctity of marriage, and the State does not look
kindly on such activities. Marriage is a special contract, the key
characteristic of which is its permanence. When an individual
manifests a deliberate pattern of flouting the foundation of the
States basic social institution, the States criminal laws on bigamy
step in.
Under Article 349 of the Revised Penal Code, as amended, the
penalty for the crime of bigamy is prision mayor, which has a
duration of six (6) years and one (1) day to twelve (12) years.
There being neither aggravating nor mitigating circumstance, the
same shall be imposed in its medium period. Applying the
Indeterminate Sentence Law, petitioner shall be entitled to a
minimum term, to be taken from the penalty next lower in degree,
i.e., prision correccional which has a duration of six (6) months
and one (1) day to six (6) years. Hence, the Court of Appeals
correctly affirmed the decision of the trial court which sentenced
petitioner to suffer an indeterminate penalty of four (4) years and
two (2) months of prision correccional, as minimum, to eight (8)
years and one (1) day of prision mayor, as maximum.
WHEREFORE, in view of all the foregoing, the instant petition for
review is DENIED. The assailed decision of the Court of Appeals
in CA-G.R. CR No. 21636, convicting petitioner Veronico
Tenebro of the crime of Bigamy and sentencing him to suffer the
indeterminate penalty of four (4) years and two (2) months of
prision correccional, as minimum, to eight (8) years and one (1)
day of prision mayor, as maximum, is AFFIRMED in toto.
SO ORDERED.

In this case, all the essential and formal requisites for the validity
of marriage were satisfied by petitioner and Ancajas. Both were
over eighteen years of age, and they voluntarily contracted the
second marriage with the required license before Judge Alfredo B.
Perez, Jr. of the City Trial Court of Lapu-lapu City, in the presence
of at least two witnesses.

Although the judicial declaration of the nullity of a marriage on the

ground of psychological incapacity retroacts to the date of the
celebration of the marriage insofar as the vinculum between the
spouses is concerned, it is significant to note that said marriage is
not without legal effects. Among these effects is that children
conceived or born before the judgment of absolute nullity of the
marriage shall be considered legitimate.28 There is therefore a
recognition written into the law itself that such a marriage,
although void ab initio, may still produce legal consequences.
Among these legal consequences is incurring criminal liability for
bigamy. To hold otherwise would render the States penal laws on
bigamy completely nugatory, and allow individuals to deliberately
G.R. No. 164435 June 29, 2010
VICTORIA S. JARILLO, Petitioner,
vs.
PEOPLE OF THE PHILIPPINES, Respondent.
RESOLUTION
PERALTA, J.:
This resolves petitioner's Motion for Reconsideration1 dated
November 11, 2009 and respondent's Comment2thereto dated
March 5, 2010.
In the Decision dated September 29, 2009, the Court affirmed
petitioner's conviction for bigamy. Petitioner is moving for
reconsideration of the Decision, arguing that since petitioner's
marriages were entered into before the effectivity of the Family
Code, then the applicable law is Section 29 of the Marriage Law
(Act 3613), instead of Article 40 of the Family Code, which
requires a final judgment declaring the previous marriage void
before a person may contract a subsequent marriage.
Petitioner's argument lacks merit.
As far back as 1995, in Atienza v. Brillantes, Jr.,3 the Court already
made the declaration that Article 40, which is a rule of procedure,
should be applied retroactively because Article 256 of the Family
Code itself provides that said "Code shall have retroactive effect
insofar as it does not prejudice or impair vested or acquired rights."
The Court went on to explain, thus:
The fact that procedural statutes may somehow affect the litigants'
rights may not preclude their retroactive application to pending
actions. The retroactive application of procedural laws is not
violative of any right of a person who may feel that he is adversely
affected. The reason is that as a general rule, no vested right may
attach to, nor arise from, procedural laws.4
In Marbella-Bobis v. Bobis,5 the Court pointed out the danger of
not enforcing the provisions of Article 40 of the Family Code, to
wit:
In the case at bar, respondent's clear intent is to obtain a judicial
declaration of nullity of his first marriage and thereafter to invoke
that very same judgment to prevent his prosecution for bigamy. He
cannot have his cake and eat it too. Otherwise, all that an
adventurous bigamist has to do is disregard Article 40 of the
Family Code, contract a subsequent marriage and escape a bigamy
charge by simply claiming that the first marriage is void and that
the subsequent marriage is equally void for lack of a prior judicial
declaration of nullity of the first. A party may even enter into a
marriage aware of the absence of a requisite usually the marriage
license and thereafter contract a subsequent marriage without
obtaining a declaration of nullity of the first on the assumption that
the first marriage is void. Such scenario would render nugatory the
provision on bigamy. x x x 6lawphil
The foregoing scenario is what petitioner seeks to obtain in her
case, and this, the Court shall never sanction. Clearly, therefore,
petitioner's asseveration, that Article 40 of the Family Code should
not be applied to her case, cannot be upheld.
IN VIEW OF THE FOREGOING, the Motion for Reconsideration
dated November 11, 2009 is DENIED with FINALITY.
SO ORDERED.
G.R. No. L-53703 August 19, 1986
LILIA OLIVA WIEGEL, petitioner,
vs.
THE HONORABLE ALICIA V. SEMPIO-DIY (as presiding
judge of the Juvenile and Domestic Relations Court of
Caloocan City) and KARL HEINZ WIEGEL, respondents.
Dapucanta, Dulay & Associates for petitioner.
Siguion Reyna, Montecillo and Ongsiako Law Office for private
respondent.
PARAS, J.:
In an action (Family Case No. 483) filed before the erstwhile
Juvenile and Domestic Relations Court of Caloocan City, herein
respondent Karl Heinz Wiegel (plaintiff therein) asked for the
declaration of Nullity of his marriage (celebrated on July, 1978 at
the Holy Catholic Apostolic Christian Church Branch in Makati,
Metro Manila) with herein petitioner Lilia Oliva Wiegel (Lilia, for
short, and defendant therein) on the ground of Lilia's previous
existing marriage to one Eduardo A. Maxion, the ceremony having
been performed on June 25, 1972 at our Lady of Lourdes Church
in Quezon City. Lilia, while admitting the existence of said prior
subsisting marriage claimed that said marriage was null and void,
she and the first husband Eduardo A. Maxion having been
allegedly forced to enter said marital union. In the pre-trial that
ensued, the issue agreed upon by both parties was the status of the
first marriage (assuming the presence of force exerted against both
parties): was said prior marriage void or was it merely voidable?
Contesting the validity of the pre-trial order, Lilia asked the
respondent court for an opportunity to present evidence-
(1) that the first marriage was vitiated by force exercised upon both
her and the first husband; and
(2) that the first husband was at the time of the marriage in 1972
already married to someone else.
Respondent judge ruled against the presentation of evidence
because the existence of force exerted on both parties of the first
marriage had already been agreed upon. Hence, the present petition
for certiorari assailing the following Orders of therespondent
Judge-
(1) the Order dated March 17, 1980 in which the parties were
compelled to submit the case for resolution based on "agreed
facts;" and
(2) the Order dated April 14, 1980, denying petitioner's motion to
allow her to present evidence in her favor.
We find the petition devoid of merit.
There is no need for petitioner to prove that her first marriage was
vitiated by force committed against both parties because assuming
this to be so, the marriage will not be void but merely viodable
(Art. 85, Civil Code), and therefore valid until annulled. Since no
annulment has yet been made, it is clear that when she married
respondent she was still validly married to her first husband,
consequently, her marriage to respondent is VOID (Art. 80, Civil
Code).
There is likewise no need of introducing evidence about the
existing prior marriage of her first husband at the time they
married each other, for then such a marriage though void still
needs according to this Court a judicial declaration 1 of such fact
and for all legal intents and purposes she would still be regarded as
a married woman at the time she contracted her marriage with
respondent Karl Heinz Wiegel); accordingly, the marriage of
petitioner and respondent would be regarded VOID under the law.
WHEREFORE, this petition is hereby DISMISSED, for lack of
merit, and the Orders complained of are hereby AFFIRMED. Costs
against petitioner.
SO ORDERED.
G.R. No. 209741, April 15, 2015
SOCIAL SECURITY COMMISSION, Petitioner, v. EDNA A.
AZOTE, Respondent.
DECISION
MENDOZA, J.:
This petition for review on certiorari1 under Rule 45 of the Rules
of Court filed by petitioner Social Security Commission (SSC)
assails the August 13, 2013 Decision2 of the Court of Appeals
(CA), and its October 29, 2013 Resolution3 in CA-G.R. SP No.
122933, allowing respondent Edna A. Azote (Edna) to claim the
death benefits of her late husband, Edgardo Azote (Edgardo).
The Antecedents:
On June 19, 1992, respondent Edna and Edgardo, a member of the
Social Security System (SSS), were married in civil rites at the
Regional Trial Court, Branch 9, Legazpi City, Albay (RTC). Their
union produced six children4 born from 1985 to 1999. On April
27, 1994, Edgardo submitted Form E-4 to the SSS with Edna and
their three older children as designated beneficiaries. Thereafter or
on September 7, 2001, Edgardo submitted another Form E-4 to the
SSS designating his three younger children as additional
beneficiaries.5
On January 13, 2005, Edgardo passed away. Shortly thereafter,
Edna filed her claim for death benefits with the SSS as the wife of
a deceased-member. It appeared, however, from the SSS records
that Edgardo had earlier submitted another Form E-4 on November
5, 1982 with a different set of beneficiaries, namely: Rosemarie
Azote (Rosemarie), as his spouse; and Elmer Azote (Elmer), as
dependent, born on October 9, 1982. Consequently, Ednas claim
was denied. Her children were adjudged as beneficiaries and she
was considered as the legal guardian of her minor children. The
benefits, however, would be stopped once a child would attain the
age of 21.6
On March 13, 2007, Edna filed a petition with the SSC to claim the
death benefits, lump sum and monthly pension of Edgardo. 7 She
insisted that she was the legitimate wife of Edgardo. In its answer,
the SSS averred that there was a conflicting information in the
forms submitted by the deceased. Summons was published in a
newspaper of general circulation directing Rosemarie to file her
answer. Despite the publication, no answer was filed and
Rosemarie was subsequently declared in default.8
In the Resolution,9 dated December 8, 2010, the SSC dismissed
Ednas petition for lack of merit. Citing Section 24(c) of the SS
Law, it explained that although Edgardo filed the Form E-4
designating Edna and their six children as beneficiaries, he did not
revoke the designation of Rosemarie as his wife-beneficiary, and
Rosemarie was still presumed to be his legal wife.
The SSC further wrote that the National Statistics Office (NSO)
records revealed that the marriage of Edgardo to one Rosemarie
Teodora Sino was registered on July 28, 1982. Consequently, it
opined that Edgardos marriage to Edna was not valid as there was
no showing that his first marriage had been annulled or dissolved.
The SSC stated that there must be a judicial determination of
nullity of a previous marriage before a party could enter into a
second marriage.10
In an order,11 dated June 8, 2011, the SSC denied Ednas motion
for reconsideration. It explained that it was incumbent upon Edna
to prove that her marriage to the deceased was valid, which she
failed to do. It further opined that Rosemarie could not be merely
presumed dead, and that death benefits under the SSS could not be
considered properties which may be disposed of in a holographic
will.12
In the assailed August 13, 2013 Decision, the CA reversed and set
aside the resolution and the order of the SSC. It held that the SSC
could not make a determination of the validity or invalidity of the
marriage of Edna to Edgardo considering that no contest came
from either Rosemarie or Elmer.13
The CA explained that Edna had established her right to the
benefits by substantial evidence, namely, her marriage certificate
and the baptismal certificates of her children.14 It ruled that
Edgardo made a deliberate change of his wife-beneficiary in his
1994 E-4 form, as such was clearly his voluntary act manifesting
his intention to revoke his former declaration in the 1982 E-4
form.15 The 1994 E-4 form submitted by Edgardo, designating
Edna as his wife, superseded his former declaration in his 1982 E-4
form.16
It further opined that the Davac case cited by the SSC was not
applicable because there were two conflicting claimants in that
case, both claiming to be wives of the deceased, while in this case,
Edna was the sole claimant for the death benefits, and that her
designation as wife-beneficiary remained valid and
unchallenged. It was of the view that Rosemaries non-appearance
despite notice could be deemed a waiver to claim death benefits
from the SSS, thereby losing whatever standing she might have
had to dispute Ednas claim.17
In the assailed October 29, 2013 Resolution,18 the CA denied the
SSCs motion for reconsideration.19
Hence, the present petition.
GROUNDS
RESPONDENT COURT OF APPEALS GRAVELY ERRED IN
RULING THAT THE COMMISSION IS BEREFT OF
AUTHORITY TO DETERMINE THE VALIDITY OR
INVALIDITY OF THE MARRIAGE OF THE PRIVATE
RESPONDENT AND MEMBER EDGARDO AZOTE.
RESPONDENT COURT OF APPEALS GRAVELY ERRED IN
GRANTING THE PETITION OF THE PRIVATE
RESPONDENT AND FINDING HER ENTITLED TO THE SS
BENEFITS.
THE HONORABLE COURT OF APPEALS GRAVELY ERRED
IN RULING THAT THE DESIGNATION OF THE PRIVATE
RESPONDENT AS WIFE-BENEFICIARY IS VALID.20
The SSC argues that the findings of fact of the CA were not
supported by the records. It submits that under Section 5 of the SS
Law, it is called upon to determine the rightful beneficiary in the
performance of its quasi-judicial function of adjudicating SS
benefits. In fact, it cited a number of cases,21 where the SSC had
passed upon the validity of marriages for the purpose of
determining who were entitled to SS benefits.22
The SSC contends that Edna was not the legitimate spouse of
deceased member Edgardo as the CA failed to consider the NSO
certification showing that Edgardo was previously married to
Rosemarie. With the death certificate of Rosemarie showing that
she died only on November 6, 2004, it proved that she was alive at
the time Edna and Edgardo were married, and, therefore, there
existed a legal impediment to his second marriage, rendering it
void. Edna is, therefore, not a legitimate spouse who is entitled to
the death benefits of Edgardo.23
The SSC claims that the right to designate a beneficiary is subject
to the SS Law. The designation of a wife-beneficiary merely
creates a disputable presumption that they are legally married and
may be overthrown by evidence to the contrary. Ednas
designation became invalid with the determination of the
subsistence of a previous marriage. The SSC posits that even
though Edgardo revoked and superseded his earlier designation of
Rosemarie as beneficiary, his designation of Edna was still not
valid considering that only a legitimate spouse could qualify as a
primary beneficiary.24
The Courts Ruling
The petition is meritorious.

The law in force at the time of Edgardos death was Republic Act
(R.A.) No. 8282,25 the amendatory law of R.A. No. 1161 or the
Social Security Law. It is a tax-exempt social security service
designed to promote social justice and provide meaningful
protection to members and their beneficiaries against the hazards
of disability, sickness, maternity, old age, death, and other
contingencies resulting in loss of income or financial burden. 26 As
a social security program of the government, Section 8 (e) and (k)
of the said law expressly provides who would be entitled to receive
benefits from its deceased-member, to wit:
SEC. 8. Terms Defined. - For purposes of this Act, the following
terms shall, unless the context indicates otherwise, have the
following meanings:
xxxx
(e) Dependents - The dependents shall be the following:
(1) The legal spouse entitled by law to receive support from the
member;
(2) The legitimate, legitimated or legally adopted, and illegitimate
child who is unmarried, not gainfully employed, and has not
reached twenty-one (21) years of age, or if over twenty-one (21)
years of age, he is congenitally or while still a minor has been
permanently incapacitated and incapable of self-support,
physically or mentally; and
(3) The parent who is receiving regular support from the member.
xxxx
(k) Beneficiaries - The dependent spouse until he or she remarries,
the dependent legitimate, legitimated or legally adopted, and
illegitimate children, who shall be the primary beneficiaries of the
member: Provided, That the dependent illegitimate children shall
be entitled to fifty percent (50%) of the share of the legitimate,
legitimated or legally adopted children: Provided, further, That in
the absence of the dependent legitimate, legitimated children of the
member, his/her dependent illegitimate children shall be entitled to
one hundred percent (100%) of the benefits. In their absence, the
dependent parents who shall be the secondary beneficiaries of the
member. In the absence of all the foregoing, any other person
designated by the member as his/her secondary beneficiary.
(Emphasis supplied)
Applying Section 8(e) and (k) of R. A. No. 8282, it is clear that
only the legal spouse of the deceased-member is qualified to be the
beneficiary of the latters SS benefits. In this case, there is a
concrete proof that Edgardo contracted an earlier marriage with
another individual as evidenced by their marriage
contract. Edgardo even acknowledged his married status when he
filled out the 1982 Form E-4 designating Rosemarie as his
spouse.27
It is undisputed that the second marriage of Edgardo with Edna
was celebrated at the time when the Family Code was already in
force. Article 41 of the Family Code expressly states:
Art. 41. A marriage contracted by any person during subsistence
of a previous marriage shall be null and void, unless before the
celebration of the subsequent marriage, the prior spouse had been
absent for four consecutive years and the spouse present has a
well-founded belief that the absent spouse was already dead. In
case of disappearance where there is danger under the
circumstances set forth in the provisions of Article 391 of the Civil
Code, an absence of only two years shall be sufficient.
For the purpose of contracting a subsequent marriage under the
preceding paragraph, the spouse present must institute a summary
proceeding as provided in this Code for the declaration of
presumptive death of the absentee, without prejudice to the effect
of reappearance of the absent spouse. (Emphasis and underscoring
supplied)
Using the parameters outlined in Article 41 of the Family Code,
Edna, without doubt, failed to establish that there was no
impediment or that the impediment was already removed at the
time of the celebration of her marriage to Edgardo. Settled is the
rule that whoever claims entitlement to the benefits provided by
law should establish his or her right thereto by substantial
evidence.28 Edna could not adduce evidence to prove that the
earlier marriage of Edgardo was either annulled or dissolved or
whether there was a declaration of Rosemaries presumptive death
before her marriage to Edgardo. What is apparent is that Edna was
the second wife of Edgardo. Considering that Edna was not able to
show that she was the legal spouse of a deceased-member, she
would not qualify under the law to be the beneficiary of the death
benefits of Edgardo.
The Court does not subscribe to the disquisition of the CA that the
updated Form E-4 of Edgardo was determinative of Ednas status
and eligibility to claim the death benefits of deceased-member.
Although an SSS member is free to designate a beneficiary, the
designation must always conform to the statute. To blindly rely on
the form submitted by the deceased-member would subject the
entire social security system to the whims and caprices of its
members and would render the SS Law inutile.
Although the SSC is not intrinsically empowered to determine the
validity of marriages, it is required by Section 4(b) (7) of R.A. No.
828229 to examine available statistical and economic data to ensure
that the benefits fall into the rightful beneficiaries. As held
in Social Security Commission vs. Favila,30
SSS, as the primary institution in charge of extending social
security protection to workers and their beneficiaries is mandated
by Section 4(b)(7) of RA 8282 to require reports, compilations and
analyses of statistical and economic data and to make an
investigation as may be needed for its proper administration and
development. Precisely, the investigations conducted by SSS are
appropriate in order to ensure that the benefits provided under the
SS Law are received by the rightful beneficiaries. It is not hard to
see that such measure is necessary for the systems proper
administration, otherwise, it will be swamped with bogus claims
that will pointlessly deplete its funds. Such scenario will certainly
frustrate the purpose of the law which is to provide covered
employees and their families protection against the hazards of
disability, sickness, old age and death, with a view to promoting
their well-being in the spirit of social justice. Moreover and as
correctly pointed out by SSC, such investigations are likewise
necessary to carry out the mandate of Section 15 of the SS Law
which provides in part, viz:
Sec. 15. Non-transferability of Benefits. The SSS shall pay the
benefits provided for in this Act to such [x x x] persons as may be
entitled thereto in accordance with the provisions of this Act x x x.
(Emphasis supplied.)
The existence of two Form E-4s designating, on two different
dates, two different women as his spouse is already an indication
that only one of them can be the legal spouse. As can be gleaned
from the certification issued by the NSO,31 there is no doubt that
Edgardo married Rosemarie in 1982. Edna cannot be considered
as the legal spouse of Edgardo as their marriage took place during
the existence of a previously contracted marriage. For said reason,
the denial of Ednas claim by the SSC was correct. It should be
emphasized that the SSC determined Ednas eligibility on the basis
of available statistical data and documents on their database as
expressly permitted by Section 4(b) (7) of R.A. No. 8282.
It is of no moment that the first wife, Rosemarie, did not
participate or oppose Ednas claim. Rosemaries non-participation
or her subsequent death on November 11, 2004 32 did not cure or
legitimize the status of Edna.
WHEREFORE, the petition is GRANTED. The August 13, 2013
Decision and the October 29, 2013 Resolution of the Court of
Appeals in CA-G.R. SP No. 122933 are REVERSED and SET
ASIDE. Accordingly, the petition for entitlement of SS death
benefits filed by respondent Edna Azote is DENIEDfor lack of
merit.
SO ORDERED.
G.R. No. 94053 March 17, 1993
REPUBLIC OF THE PHILIPPINES, petitioner,
vs.
GREGORIO NOLASCO, respondent.
The Solicitor General for plaintiff-appellee.
Warloo G. Cardenal for respondent.
RESOLUTION
FELICIANO, J.:
On 5 August 1988, respondent Gregorio Nolasco filed before the
Regional Trial Court of Antique, Branch 10, a petition for the
declaration of presumptive death of his wife Janet Monica Parker,
invoking Article 41 of the Family Code. The petition prayed that
respondent's wife be declared presumptively dead or, in the
alternative, that the marriage be declared null and void.1
The Republic of the Philippines opposed the petition through the
Provincial Prosecutor of Antique who had been deputized to assist
the Solicitor-General in the instant case. The Republic argued,
first, that Nolasco did not possess a "well-founded belief that the
absent spouse was already dead,"2 and second, Nolasco's attempt to
have his marriage annulled in the same proceeding was a "cunning
attempt" to circumvent the law on marriage.3
During trial, respondent Nolasco testified that he was a seaman and
that he had first met Janet Monica Parker, a British subject, in a bar
in England during one of his ship's port calls. From that chance
meeting onwards, Janet Monica Parker lived with respondent
Nolasco on his ship for six (6) months until they returned to
respondent's hometown of San Jose, Antique on 19 November
1980 after his seaman's contract expired. On 15 January 1982,
respondent married Janet Monica Parker in San Jose, Antique, in
Catholic rites officiated by Fr. Henry van Tilborg in the Cathedral
of San Jose.
Respondent Nolasco further testified that after the marriage
celebration, he obtained another employment contract as a seaman
and left his wife with his parents in San Jose, Antique. Sometime
in January 1983, while working overseas, respondent received a
letter from his mother informing him that Janet Monica had given
birth to his son. The same letter informed him that Janet Monica
had left Antique. Respondent claimed he then immediately asked
permission to leave his ship to return home. He arrived in Antique
in November 1983.
Respondent further testified that his efforts to look for her himself
whenever his ship docked in England proved fruitless. He also
stated that all the letters he had sent to his missing spouse at No. 38
Ravena Road, Allerton, Liverpool, England, the address of the bar
where he and Janet Monica first met, were all returned to him. He
also claimed that he inquired from among friends but they too had
no news of Janet Monica.
On cross-examination, respondent stated that he had lived with and
later married Janet Monica Parker despite his lack of knowledge as
to her family background. He insisted that his wife continued to
refuse to give him such information even after they were married.
He also testified that he did not report the matter of Janet Monica's
disappearance to the Philippine government authorities.
Respondent Nolasco presented his mother, Alicia Nolasco, as his
witness. She testified that her daughter-in-law Janet Monica had
expressed a desire to return to England even before she had given
birth to Gerry Nolasco on 7 December 1982. When asked why her
daughter-in-law might have wished to leave Antique, respondent's
mother replied that Janet Monica never got used to the rural way of
life in San Jose, Antique. Alicia Nolasco also said that she had
tried to dissuade Janet Monica from leaving as she had given birth
to her son just fifteen days before, but when she (Alicia) failed to
do so, she gave Janet Monica P22,000.00 for her expenses before
she left on 22 December 1982 for England. She further claimed
that she had no information as to the missing person's present
whereabouts.
The trial court granted Nolasco's petition in a Judgment dated 12
October 1988 the dispositive portion of which reads:
Wherefore, under Article 41, paragraph 2 of the
Family Code of the Philippines (Executive Order
No. 209, July 6, 1987, as amended by Executive
Order No. 227, July 17, 1987) this Court hereby
declares as presumptively dead Janet Monica
Parker Nolasco, without prejudice to her
reappearance.4
The Republic appealed to the Court of Appeals contending that the
trial court erred in declaring Janet Monica Parker presumptively
dead because respondent Nolasco had failed to show that there
existed a well founded belief for such declaration.
The Court of Appeals affirmed the trial court's decision, holding
that respondent had sufficiently established a basis to form a belief
that his absent spouse had already died.
The Republic, through the Solicitor-General, is now before this
Court on a Petition for Review where the following allegations are
made:
1. The Court of Appeals erred in affirming the
trial court's finding that there existed a well-
founded belief on the part of Nolasco that Janet
Monica Parker was already dead; and
2. The Court of Appeals erred in affirming the
trial Court's declaration that the petition was a
proper case of the declaration of presumptive
death under Article 41, Family Code.5
The issue before this Court, as formulated by petitioner is
"[w]hether or not Nolasco has a well-founded belief that his wife is
already dead."6
The present case was filed before the trial court pursuant to Article
41 of the Family Code which provides that:
Art. 41. A marriage contracted by any person
during the subsistence of a previous marriage
shall be null and void, unless before the
celebration of the subsequent marriage, the prior
spouse had been absent for four consecutive
years and the spouse present had a well-founded
belief that the absent spouse was already
dead. In case of disappearance where there is
danger of death under the circumstances set forth
in the provision of Article 391 of the Civil Code,
an absence of only two years shall be sufficient.
For the purpose of contracting the subsequent
marriage under the preceding paragraph, the
spouse present must institute a summary
proceeding as provided in this Code for the
declaration of presumptive death of the absentee,
without prejudice to the effect of reappearance of
the absent spouse. (Emphasis supplied).
When Article 41 is compared with the old provision of the Civil
Code, which it superseded,7 the following crucial differences
emerge. Under Article 41, the time required for the presumption to
arise has been shortened to four (4) years; however, there is need
for a judicial declaration of presumptive death to enable the spouse
present to remarry.8 Also, Article 41 of the Family Code imposes a
stricter standard than the Civil Code: Article 83 of the Civil Code
merely requires either that there be no news that such absentee is
still alive; or the absentee is generally considered to be
dead and believed to be so by the spouse present, or is presumed
dead under Article 390 and 391 of the Civil Code.9 The Family
Code, upon the other hand, prescribes as "well founded belief" that
the absentee is already dead before a petition for declaration of
presumptive death can be granted.
As pointed out by the Solicitor-General, there are four (4)
requisites for the declaration of presumptive death under Article 41
of the Family Code:
1. That the absent spouse has been missing for
four consecutive years, or two consecutive years
if the disappearance occurred where there is
danger of death under the circumstances laid
down in Article 391, Civil Code;
2. That the present spouse wishes to remarry;
3. That the present spouse has a well-founded
belief that the absentee is dead; and
4. That the present spouse files a summary
proceeding for the declaration of presumptive
death of the absentee. 10
Respondent naturally asserts that he had complied with all these
requirements.11
Petitioner's argument, upon the other hand, boils down to this: that
respondent failed to prove that he had complied with the third
requirement, i.e., the existence of a "well-founded belief" that the
absent spouse is already dead.
The Court believes that respondent Nolasco failed to conduct a
search for his missing wife with such diligence as to give rise to a
"well-founded belief" that she is dead.
United States v. Biasbas, 12 is instructive as to degree of diligence
required in searching for a missing spouse. In that case, defendant
Macario Biasbas was charged with the crime of bigamy. He set-up
the defense of a good faith belief that his first wife had already
died. The Court held that defendant had not exercised due
diligence to ascertain the whereabouts of his first wife, noting that:
While the defendant testified that he had made
inquiries concerning the whereabouts of his wife,
he fails to state of whom he made such inquiries.
He did not even write to the parents of his first
wife, who lived in the Province of Pampanga, for
the purpose of securing information concerning
her whereabouts. He admits that he had a
suspicion only that his first wife was dead. He
admits that the only basis of his suspicion was
the fact that she had been absent. . . . 13
In the case at bar, the Court considers that the investigation
allegedly conducted by respondent in his attempt to ascertain Janet
Monica Parker's whereabouts is too sketchy to form the basis of a
reasonable or well-founded belief that she was already dead. When
he arrived in San Jose, Antique after learning of Janet Monica's
departure, instead of seeking the help of local authorities or of the
British Embassy, 14 he secured another seaman's contract and went
to London, a vast city of many millions of inhabitants, to look for
her there.
Q After arriving here in San Jose, Antique, did
you exert efforts to inquire the whereabouts of
your wife?
A Yes, Sir.
Court:How did you do that?
A I secured another contract with the ship and
we had a trip to London and I went to London to
look for her I could not find
her (sic). 15 (Emphasis supplied)
Respondent's testimony, however, showed that he confused
London for Liverpool and this casts doubt on his supposed efforts
to locate his wife in England. The Court of Appeal's justification of
the mistake, to wit:
. . . Well, while the cognoscente (sic) would
readily know the geographical difference
between London and Liverpool, for a humble
seaman like Gregorio the two places could mean
one place in England, the port where his ship
docked and where he found Janet. Our own
provincial folks, every time they leave home to
visit relatives in Pasay City, Kalookan City, or
Paraaque, would announce to friends and
relatives, "We're going to Manila." This apparent
error in naming of places of destination does not
appear to be fatal. 16
is not well taken. There is no analogy between Manila and its
neighboring cities, on one hand, and London and Liverpool, on the
other, which, as pointed out by the Solicitor-General, are around
three hundred fifty (350) kilometers apart. We do not consider that
walking into a major city like Liverpool or London with a simple
hope of somehow bumping into one particular person there
which is in effect what Nolasco says he did can be regarded as a
reasonably diligent search.
The Court also views respondent's claim that Janet Monica
declined to give any information as to her personal background
even after she had married respondent 17 too convenient an excuse
to justify his failure to locate her. The same can be said of the loss
of the alleged letters respondent had sent to his wife which
respondent claims were all returned to him. Respondent said he
had lost these returned letters, under unspecified circumstances.
Neither can this Court give much credence to respondent's bare
assertion that he had inquired from their friends of her
whereabouts, considering that respondent did not identify those
friends in his testimony. The Court of Appeals ruled that since the
prosecutor failed to rebut this evidence during trial, it is good
evidence. But this kind of evidence cannot, by its nature, be
rebutted. In any case, admissibility is not synonymous with
credibility. 18 As noted before, there are serious doubts to
respondent's credibility. Moreover, even if admitted as evidence,
said testimony merely tended to show that the missing spouse had
chosen not to communicate with their common acquaintances, and
not that she was dead.
Respondent testified that immediately after receiving his mother's
letter sometime in January 1983, he cut short his employment
contract to return to San Jose, Antique. However, he did not
explain the delay of nine (9) months from January 1983, when he
allegedly asked leave from his captain, to November 1983 when be
finally reached San Jose. Respondent, moreover, claimed he
married Janet Monica Parker without inquiring about her parents
and their place of residence. 19 Also, respondent failed to explain
why he did not even try to get the help of the police or other
authorities in London and Liverpool in his effort to find his wife.
The circumstances of Janet Monica's departure and respondent's
subsequent behavior make it very difficult to regard the claimed
belief that Janet Monica was dead a well-founded one.
In Goitia v. Campos-Rueda, 20 the Court stressed that:
. . . Marriage is an institution, the maintenance of
which in its purity the public is deeply
interested. It is a relationship for life and the
parties cannot terminate it at any shorter period
by virtue of any contract they make. . . .
. 21 (Emphasis supplied)
By the same token, the spouses should not be allowed, by the
simple expedient of agreeing that one of them leave the conjugal
abode and never to return again, to circumvent the policy of the
laws on marriage. The Court notes that respondent even tried to
have his marriage annulled before the trial court in the same
proceeding.
In In Re Szatraw, 22 the Court warned against such collusion
between the parties when they find it impossible to dissolve the
marital bonds through existing legal means.
While the Court understands the need of respondent's young son,
Gerry Nolasco, for maternal care, still the requirements of the law
must prevail. Since respondent failed to satisfy the clear
requirements of the law, his petition for a judicial declaration of
presumptive death must be denied. The law does not view
marriage like an ordinary contract. Article 1 of the Family Code
emphasizes that.
. . . Marriage is a special contract of permanent
union between a man and a woman entered into
in accordance with law for the establishment of
conjugal and family life. It is the foundation of
the familyand an inviolable social
institution whose nature, consequences,
and incidents are governed by law and not
subject to stipulation, except that marriage
settlements may fix the property relations during
the marriage within the limits provided by this
Code. (Emphasis supplied)
In Arroyo, Jr. v. Court of Appeals, 23 the Court stressed strongly
the need to protect.
. . . the basic social institutions of marriage and
the family in the preservation of which the State
bas the strongest interest; the public policy here
involved is of the most fundamental kind. In
Article II, Section 12 of the Constitution there is
set forth the following basic state policy:
The State recognizes the
sanctity of family life and shall
protect and strengthen the
family as a basic autonomous
social institution. . . .
The same sentiment bas been expressed in the
Family Code of the Philippines in Article 149:
The family, being the
foundation of the nation, is a
basic social institution which
public policy cherishes and
protects. Consequently, family
relations are governed by law
and no custom, practice or
agreement destructive of the
family shall be recognized or
given effect. 24
In fine, respondent failed to establish that he had the well-founded
belief required by law that his absent wife was already dead that
would sustain the issuance of a court order declaring Janet Monica
Parker presumptively dead.
WHEREFORE, the Decision of the Court of Appeals dated 23
February 1990, affirming the trial court's decision declaring Janet
Monica Parker presumptively dead is hereby REVERSED and
both Decisions are hereby NULLIFIED and SET ASIDE. Costs
against respondent.
REPUBLIC OF THE PHILIPPINES, G.R. No. 159614
Petitioner,
- versus - PUNO, J., Chairman,
AUSTRIA-MARTINEZ,
CALLEJO, SR.,
THE HONORABLE COURT OF TINGA, and
APPEALS (TENTH DIVISION) CHICO-NAZARIO, JJ.
and ALAN B. ALEGRO,
Respondents.
December 9, 2005
x---------------------------------------------
-----x
DECISION
CALLEJO, SR., J.:
On March 29, 2001, Alan B. Alegro filed a petition in the Regional
Trial Court (RTC) of Catbalogan, Samar, Branch 27, for the
declaration of presumptive death of his wife, Rosalia (Lea) A.
Julaton.
In an Order[1] dated April 16, 2001, the court set the petition for
hearing on May 30, 2001 at 8:30 a.m. and directed that a copy of
the said order be published once a week for three (3) consecutive
weeks in the Samar Reporter, a newspaper of general circulation in
the Province of Samar, and
that a copy be posted in the courts bulletin board for at least three
weeks before the next scheduled hearing. The court also directed
that copies of the order be served on the Solicitor General, the
Provincial Prosecutor of Samar, and Alan, through counsel, and
that copies be sent to Lea by registered mail. Alan complied with
all the foregoing jurisdictional requirements.[2]
On May 28, 2001, the Republic of the Philippines, through the
Office of the Solicitor General (OSG), filed a Motion to
Dismiss[3] the petition, which was, however, denied by the court
for failure to comply with Rule 15 of the Rules of Court. [4]
At the hearing, Alan adduced evidence that he and Lea were
married on January 20, 1995 in Catbalogan, Samar. [5] He testified
that, on February 6, 1995, Lea arrived home late in the evening and
he berated her for being always out of their house. He told her that
if she enjoyed the life of a single person, it would be better for her
to go back to her parents.[6] Lea did not reply. Alan narrated that,
when he reported for work the following day, Lea was still in the
house, but when he arrived home later in the day, Lea was nowhere
to be found.[7] Alan thought that Lea merely went to her parents
house in Bliss, Sto. Nio, Catbalogan, Samar.[8] However, Lea did
not return to their house anymore.
Alan further testified that, on February 14, 1995, after his work, he
went to the house of Leas parents to see if she was there, but he
was told that she was not there. He also went to the house of Leas
friend, Janeth Bautista, at Barangay Canlapwas, but he was
informed by Janettes brother-in-law, Nelson Abaenza, that Janeth
had left for Manila.[9] When Alan went back to the house of his
parents-in-law, he learned from his father-in-law that Lea had been
to their house but that she left without notice.[10] Alan sought the
help of Barangay Captain Juan Magat, who promised to help him
locate his wife. He also inquired from his friends of Leas
whereabouts but to no avail.[11]
Sometime in June 1995, he decided to go to Manila to look for
Lea, but his mother asked him to leave after the town fiesta of
Catbalogan, hoping that Lea may come home for the fiesta. Alan
agreed.[12] However, Lea did not show up. Alan then left for
Manila on August 27, 1995. He went to a house in Navotas where
Janeth, Leas friend, was staying. When asked where Lea was,
Janeth told him that she had not seen her.[13] He failed to find out
Leas whereabouts despite his repeated talks with Janeth. Alan
decided to work as a part-time taxi driver. On his free time, he
would look for Lea in the malls but still to no avail. He returned to
Catbalogan in 1997 and again looked for his wife but failed. [14]
On June 20, 2001, Alan reported Leas disappearance to the local
police station.[15] The police authorities issued an Alarm Notice on
July 4, 2001.[16] Alan also reported Leas disappearance to the should have been denied by the trial court and
National Bureau of Investigation (NBI) on July 9, 2001. [17] the Honorable Court of Appeals.[24]

Barangay Captain Juan Magat corroborated the testimony of Alan. The petition is meritorious.
He declared that on February 14, 1995, at 2:00 p.m., Alan inquired
from him if Lea passed by his house and he told Alan that she did
not. Alan also told him that Lea had disappeared. He had not seen Article 41 of the Family Code of the Philippines reads:
Lea in the barangay ever since.[18] Leas father, who was Art. 41. A marriage contracted by any person
his compadre and the owner of Radio DYMS, told him that he did during the subsistence of a previous marriage
not know where Lea was.[19] shall be null and void, unless before the
celebration of the subsequent marriage, the prior
After Alan rested his case, neither the Office of the Provincial spouse had been absent for four consecutive
Prosecutor nor the Solicitor General adduced evidence in years and the spouse present had a well-founded
opposition to the petition. belief that the absent spouse was already dead. In
case of disappearance where there is danger
under the circumstances set forth in the
On January 8, 2002, the court rendered judgment granting provisions of Article 391 of the Civil Code, an
absence of only two years shall be sufficient.
the petition. The fallo of the decision reads:
For the purpose of contracting the subsequent
WHEREFORE, and in view of all the marriage under the preceding paragraph, the
foregoing, petitioners absent spouse ROSALIA spouse present must institute a summary
JULATON is hereby declared proceeding as provided in this Code for the
PRESUMPTIVELY DEAD for the purpose of declaration of presumptive death of the absentee,
the petitioners subsequent marriage under Article without prejudice to the effect of reappearance
41 of the Family Code of the Philippines, of the absent spouse.[25]
without prejudice to the effect of reappearance of
the said absent spouse.
The spouse present is, thus, burdened to prove that his spouse has
SO ORDERED.[20] been absent and that he has a well-founded belief that the absent
spouse is already dead before the present spouse may contract a
subsequent marriage. The law does not define what is meant by a
The OSG appealed the decision to the Court of Appeals (CA)
well-grounded belief. Cuello Callon writes that es menester que su
which rendered judgment on August 4, 2003, affirming the
creencia sea firme se funde en motivos racionales.[26]
decision of the RTC.[21] The CA cited the ruling of this Court
in Republic v. Nolasco.[22]
Belief is a state of the mind or condition prompting the doing of an
overt act. It may be proved by direct evidence or circumstantial
The OSG filed a petition for review on certiorari of the CAs
evidence which may tend, even in a slight degree, to elucidate the
decision alleging that respondent Alan B. Alegro failed to prove
inquiry or assist to a determination probably founded in truth. Any
that he had a well-founded belief that Lea was already dead.[23] It
fact or circumstance relating to the character, habits, conditions,
averred that the respondent failed to exercise reasonable and
attachments, prosperity and objects of life which usually control
diligent efforts to locate his wife. The respondent even admitted
the conduct of men, and are the motives of their actions, was, so
that Leas father told him on February 14, 1995 that Lea had been
far as it tends to explain or characterize their disappearance or
to their house but left without notice. The OSG pointed out that the
throw light on their intentions,[27] competence evidence on the
respondent reported his wifes disappearance to the local police and
ultimate question of his death.
also to the NBI only after the petitioner filed a motion to dismiss
the petition. The petitioner avers that, as gleaned from the
The belief of the present spouse must be the result of proper and
evidence, the respondent did not really want to find and locate Lea.
honest to goodness inquiries and efforts to ascertain the
Finally, the petitioner averred:
whereabouts of the absent spouse and whether the absent spouse is
still alive or is already dead. Whether or not the spouse present
In view of the summary nature of
acted on a well-founded belief of death of the absent spouse
proceedings under Article 41 of the Family Code
depends upon the inquiries to be drawn from a great many
for the declaration of presumptive death of ones
circumstances occurring before and after the disappearance of the
spouse, the degree of due diligence set by this
absent spouse and the nature and extent of the inquiries made by
Honorable Court in the above-mentioned cases
present spouse.[28]
in locating the whereabouts of a missing spouse
must be strictly complied with. There have been
Although testimonial evidence may suffice to prove the well-
times when Article 41 of the Family Code had
founded belief of the present spouse that the absent spouse is
been resorted to by parties wishing to remarry
already dead, in Republic v. Nolasco,[29] the Court warned against
knowing fully well that their alleged missing
collusion between the parties when they find it impossible to
spouses are alive and well. It is even possible
dissolve the marital bonds through existing legal means. It is also
that those who cannot have their marriages x x x
the maxim that men readily believe what they wish to be true.
declared null and void under Article 36 of the
Family Code resort to Article 41 of the Family
In this case, the respondent failed to present a witness other
Code for relief because of the x x x summary
than Barangay Captain Juan Magat. The respondent even failed to
nature of its proceedings.
present Janeth Bautista or Nelson Abaenza or any other person
from whom he allegedly made inquiries about Lea to corroborate
It is the policy of the State to protect
his testimony. On the other hand, the respondent admitted that
and strengthen the family as a basic social
when he returned to the house of his parents-in-law on February
institution. Marriage is the foundation of the
14, 1995, his father-in-law told him that Lea had just been there
family. Since marriage is an inviolable social
but that she left without notice.
institution that the 1987 Constitution seeks to
The respondent declared that Lea left their abode on February 7,
protect from dissolution at the whim of the
1995 after he chided her for coming home late and for being
parties. For respondents failure to prove that he
always out of their house, and told her that it would be better for
had a well-founded belief that his wife is already
her to go home to her parents if she enjoyed the life of a single
dead and that he exerted the required amount of
person. Lea, thus, left their conjugal abode and never returned.
diligence in searching for his missing wife, the
Neither did she communicate with the respondent after leaving the
petition for declaration of presumptive death
conjugal abode because of her resentment to the chastisement she
received from him barely a month after their marriage. What is so
worrisome is that, the respondent failed to make inquiries from his
parents-in-law regarding Leas whereabouts before filing his
petition in the RTC. It could have enhanced the credibility of the
respondent had he made inquiries from his parents-in-law about
Leas whereabouts considering that Leas father was the owner of
Radio DYMS.
The respondent did report and seek the help of the local police
authorities and the NBI to locate Lea, but it was only an
afterthought. He did so only after the OSG filed its notice to
dismiss his petition in the RTC.
In sum, the Court finds and so holds that the respondent failed to
prove that he had a well-founded belief, before he filed his petition
in the RTC, that his spouse Rosalia (Lea) Julaton was already
dead.
IN LIGHT OF ALL THE FOREGOING, the petition
is GRANTED. The Decision of the Court of Appeals in CA-G.R.
CV No. 73749 is REVERSED and SET ASIDE. Consequently, the
Regional Trial Court of Catbalogan, Samar, Branch 27,
is ORDERED to DISMISS the respondents petition.
SO ORDERED.
G.R. No. 111717 October 24, 1994
NENITA BIENVENIDO, petitioner,
vs.
HON. COURT OF APPEALS, LUISITA CAMACHO and
LUIS FAUSTINO C. CAMACHO, respondents.
Abbas and Associates for petitioner.
Rolfando P. Quimbo for private respondents.
MENDOZA, J.:
This is a petition for review of the decision1 of the Court of
Appeals in CA-G.R. CV No. 24893, the dispositive portion of
which reads:
WHEREFORE, and upon all the foregoing, the
decision of the court below dated August 29,
1989 is REVERSED. The deed of sale executed
by the late Aurelio Camacho in favor of
defendant Nenita T. Bienvenido and Transfer
Certificate of Title No. 326681 of the Register of
Deeds of Quezon City issued in her name are
ANNULLED and in lieu thereof, a new transfer
certificate of title in the name of the spouses
Aurelio P. Camacho and Luisita C. Camacho
shall ISSUE, herein declaring said spouses the
owners of the property described in par. 8. of the
complaint and DISMISSING the other prayers in
the complaint as well as the defendant's
counterclaim as baseless or without sufficient
evidence in support thereof. With costs against
the appellee. 2
Petitioner filed a motion for reconsideration but her motion was
denied in a resolution of the Court of Appeals promulgated on
August 19, 1993. 3
The background of this case is as follows:
Aurelio P. Camacho married Consejo Velasco in Manila on
October 3, 1942. On February 6, 1962, without his marriage to
Consejo Velasco being dissolved, Aurelio P. Camacho contracted
another marriage with respondent Luisita C. Camacho (Luisita)
with whom he had been living since 1953 and by whom he begot a
child, respondent Aurelio Luis Faustino C. Camacho (Chito) born
on May 22, 1961. The marriage was solemnized in Tokyo, Japan
where Aurelio and Luisita had been living since 1958.
There were instances during Luisita and Aurelio's marriage when,
because of their quarrels, one or the other left the dwelling place
for long periods of time. In her case Luisita stayed on those
occasions at various times in Davao City, Hongkong or Japan.
In 1967 Aurelio met petitioner Nenita T. Bienvenido, who had
been estranged from her husband, Luis Rivera. Aurelio courted her
and apparently won her heart because from June 1968 until
Aurelio's death on May 28, 1988, he lived with her, the last time in
a duplex apartment on 84 Scout Delgado Street, Quezon City.
Petitioner's daughter, Nanette, stayed with them as did Aurelio's
son, Chito, who lived with them for about a year in 1976.
On April 30, 1982, Aurelio bought the house and the lot on
Delgado Street in which they were staying from the owners, Paz
Lorenzo Infante and Suzette Infante-Moozca. In the deed of sale
and Transfer Certificate of Title No. 288350 of the Registry of
Deeds of Quezon City, issued in his name, Aurelio was described
as single.
On November 26, 1984, Aurelio executed a deed of sale of the
property in favor of petitioner Nenita in consideration of the sum
of P250,000.00, by virtue of which Transfer Certificate of Title
No. 326681 was issued in petitioner's name on January 11, 1985.
Between 1985 and 1987 Nenita and Luisita came to know each
other. How they did is the subject of conflicting versions. Luisita
claims that Nenita called her (Luisita's) residence several times,
looking for Aurelio because the latter had allegedly left their
dwelling place. Petitioner, according to Luisita, introduced herself
as Mrs. Nenita Camacho.
On the other hand petitioner claims it was the other way around
that it was respondent Luisita who had called up their residence
many times, also looking for Aurelio to urge him to file an
application for American citizenship.
On May 28, 1988, Aurelio died. Petitioner, using her Loyola Life
Plan and Aurelio's account in the PCI Bank, took care of the
funeral arrangements. Respondent Luisita was then in the United
States with respondent Chito, having gone there, according to her,
at the instance of Aurelio in order to look for a house in San
Francisco so that Aurelio could follow and rejoin them. Upon
learning of the death of Aurelio she and her son Chito came home
on May 30, 1988. She had the remains of Aurelio transferred from
the Loyola Memorial Chapels, first to the St. Ignatius Church and
later to the Arlington Memorial Chapels. Luisita paid for the
funeral services.
Respondent Luisita was granted dealt benefits by the Armed
Forces of the Philippines as the surviving spouse of Aurelio. Soon
she also claimed ownership of the house and lot on Scout Delgado
Street in which Nenita had been living. The two met at a barangay
conciliation meeting but efforts to settle their dispute failed.
On September 7, 1988, Luisita and her son Chito brought this case
in the Regional Trial Court of Quezon City, seeking the
annullment of the sale of the property to petitioner and the
payment to them of damages. Luisita alleged that the deed of sale
was a forgery and that in any event it was executed in fraud of her
as the legitimate wife of Aurelio.
In answer petitioner claimed that she and the late Aurelio had
purchased the property in question using their joint funds which
they had accumulated after living together for fourteen years, that
the sale of the property by the late Aurelio to her was with
respondent Luisita's consent; and that she was a purchaser in good
faith.
On August 29, 1989, the trial court rendered a decision upholding
the sale of the property to petitioner and dismissing the complaint
of Luisita. It found the deed of sale in favor of petitioner to be
genuine and respondents Luisita and Chito to be in estoppel in not
claiming the property until 1988 despite knowledge of the sale by
the late Aurelio who had represented himself to be single.
Respondents moved for a reconsideration but the trial court denied
their motion.
On appeal the respondents prevailed. On June 4, 1993, the Court of
Appeals reversed the decision of the trial court and declared
respondents to be the owners of the house and lot in dispute.
Although Luisita had admitted that as early as 1985 she knew that
Nenita had been staying in the premises, the appellate court held
that respondents' action was not barred by laches because Luisita
allegedly did not know that Nenita had obtained title to the
property. On the merit, the Court of Appeals ruled that in the
absence of proof to the contrary, Aurelio's first wife must be
presumed to have been absent for seven years without Aurelio
having news of her being alive when Aurelio contracted a second
marriage. On this premise, it held (1) that the property in dispute
belonged to the conjugal partnership of Aurelio and Luisita and (2)
that the sale of the property to Nenita was void for the same reason
that donations between persons who are guilty of concubinage or
adultery are declared void under
Art. 739 of the Civil Code.
Hence this petition for review of the decision of the Court of
Appeals. Petitioner claims that
I THE COURT ERRED IN PRESUMING THE
VALIDITY OF THE MARRIAGE BETWEEN
AURELIO AND LUISITA [RESPONDENT
HEREIN];
II THE COURT ERRED IN APPLYING
ARTICLE 739 OF THE NCC AND
DECLARING INVALID THE DEED OF SALE
BETWEEN AURELIO AND NENITA
[PETITIONER HEREIN];
III THE COURT ERRED IN RULING THAT
THE SUBJECT PROPERTY FORMS PART OF
THE CONJUGAL PROPERTIES OF AURELIO
AND LUISITA.
IV THE COURT ERRED IN NOT FINDING
THAT PETITIONER IS NOT (sic) A
PURCHASER IN GOOD FAITH AND
LAWFUL OWNER OF SUBJECT PROPERTY.
We find the petition to be meritorious.
The resolution of this case hinges on the validity of Aurelio's
marriage to respondent Luisita. If that marriage was valid then the
property was property of their conjugal partnership and Luisita is
the proper party to question the validity of the sale to Nenita.
Otherwise, if the marriage is not valid, Luisita can not bring this
suit.
On the question of validity of Luisita's marriage to Aurelio, the
Court of Appeals ruled:
There is no dispute on the fact of appellant
Luisita's marriage in 1962 to Aurelio. What is in
question is the validity of that marriage
considering Aurelio's purported previous
marriage to Consejo Velasco. The appellee had
attacked the validity of appellant's marriage in
the trial below, on account of the previous
marriage of Aurelio to Consejo Velasco,
presenting evidence to that effect (Exhs. 43 and
44) to bolster her claim. Appellee likewise
proved that Consejo Velasco although then a
resident of Australia, is still alive.
The burden of proof on the legality of appellant's
marriage with Aurelio must rest on the appellee
as the party who stands to benefit from a
declaration of its invalidity. But appellee failed
to prove that such second marriage (appellant's)
was not valid because it was contracted at a time
and on the assumption that the first spouse had
been absent for seven years without the spouse
present having news of the absentee being alive.
This Court finds that the presumption of the
validity of the marriage between Aurelio and
Luisita has not been successfully assailed by
appellee.
The Court of Appeals thus presumed the validity of Aurelio's
second marriage from the failure of petitioner to prove that at the
time of such marriage Aurelio's first wife, Consejo, had not been
absent for at least seven years and that Aurelio did not have news
that his first wife was still alive.
Petitioner had shown that on February 6, 1962, when Aurelio
married Luisita, Aurelio's previous marriage to Consejo Velasco
was still subsisting and, therefore, his second marriage was
bigamous. It was the burden of herein respondents to prove that, at
the time of his second marriage to respondent Luisita, Aurelio's
first wife, Consejo Velasco, had been absent for at least seven
years and that Aurelio had no news that she was alive. To assume
these facts because petitioner has not disproved them would be to
stand the principle on its head.
Thus, Art. 83 of the Civil Code provides:
Art. 83. Any marriage subsequently contracted
by any person during the lifetime of the first
spouse of such person with any person other than
such first spouse shall be illegal and void from
its performance, unless:
(1) the first marriage was annulled or dissolved;
or
(2) the first spouse had been absent for seven
consecutive years at the time of the second
marriage without the spouse present having news
of the absentee being alive, or if the absentee,
though he has been absent for less than seven
years, is generally considered as dead and
believed to be so by the spouse present at the
time of contracting such subsequent marriage, or
if the absentee is presumed dead according to
articles 390 and 391. The marriage so contracted
shall be valid in any of the three cases until
declared null and void by a competent court.
As this Court has already explained, the general rule is that stated
in the first sentence of this provision: "Any marriage subsequently
contracted by any person during the lifetime of the first spouse of
such person with any person other than such first spouse shall be
illegal and void from its performance." The exceptions are those
stated in paragraphs 1 and 2. The burden is on the party invoking
any of the exceptions. 4
Paragraph 2 mentions three cases when the subsequent marriage
will not be considered void: (1) when the absent spouse has not
been heard from for seven consecutive years and the present
spouse has no news that he/she is alive; (2) when, although he/she
has been absent for less than seven years, the absent spouse is
generally considered to be dead and believed to be by the spouse
present; and (3) when he/she is presumed to be dead after four
years from the occurrence of any of the events enumerated in art.
3915 of the Civil Code.
In the case at bar, the burden of proof was on respondents to show
that Luisita and Aurelio's marriage falls under any of these
exceptions in order to be considered valid. They failed to discharge
this burden. Instead the contrary appears.
It has been held that the first exception refers to the subsequent
marriage of the abandoned spouse and not the remarriage of the
deserting spouse, after the period of seven years had lapsed. 6 This
exception cannot be invoked in this case in order to sustain the
validity of Aurelio's marriage to Luisita because apparently it was
Aurelio who had left his first wife. At the time of his second
marriage to Luisita, he and Luisita had already been living together
as husband and wife for five years. In fact the couple begot a child,
in 1961, even before their marriage in 1962.
What applies in this case, therefore, is the general rule, i.e., since
Aurelio had a valid, subsisting marriage to Consejo Velaso, his
subsequent marriage to respondent Luisita was void for being
bigamous.
Consequently, there is no basis for holding that the property in
question was property of the conjugal partnership of Luisita and
the late Aurelio because there was no such partnership in the first
place.
The Court of Appeals held that the sale of the property to Nenita is
void on the principle embodied in Art. 739(1) of the Civil Code
which declares donations made between persons who are guilty of
adultery or concubinage at the time of the donation to be void. In
the first place, an action for declaration of the nullity of such
donations can only be brought by the innocent spouse, perhaps in
this case by the first wife, but certainly not by Luisita whose
marriage to Aurelio is itself void. The last paragraph of Art. 739
clearly provides:
In the case referred to in No. 1, the action for
declaration of nullify may be brought by the
spouse of the donor or donee; and the guilt of the
donor and donee may be proved by
preponderance of evidence in the same action.
In the second place, until otherwise shown in an appropriate action,
the sale to petitioner must be presumed. Petitioner's ownership is
evidenced by a deed of absolute sale7 executed with all the
solemnity of a public document and by Transfer Certificate of Title
No. 326681 issued in due course in her name.8 Petitioner is in
possession of the property. It was error for the Court of Appeals to
annul petitioner's title at the instance of one whose marriage to the
seller is void.
Indeed, the property in question was acquired by Aurelio during a
long period of cohabitation with petitioner which lasted for twenty
years (1968-1988). While petitioner knew respondent Chito to be
Aurelio's son way back in 1976, there is nothing to show that she
knew Aurelio to be married to Luisita. To the contrary, Aurelio
represented himself to be single. As far as petitioner was
concerned, Chito could have been Aurelio's child by a woman not
his wife. There was, therefore, no basis for the Court of Appeals'
ruling that Nenita was not a buyer in good faith of the property
because she ought to have known that Aurelio was married to
Luisita.
WHEREFORE, the decision appealed from is REVERSED and
another one is entered, DISMISSING the complaint against
petitioner and DECLARING the deed of sale executed in her favor
and Transfer Certificate of Title
No. 326681 of the Register of Deeds of Quezon City issued in her
name to be VALID.
SO ORDERED.
G.R. No. 165842 November 29, 2005
EDUARDO P. MANUEL, Petitioner,
vs.
PEOPLE OF THE PHILIPPINES, Respondent.
DECISION
CALLEJO, SR., J.:
Before us is a petition for review on certiorari of the Decision1 of
the Court of Appeals (CA) in CA-G.R. CR No. 26877, affirming
the Decision2 of the Regional Trial Court (RTC) of Baguio City,
Branch 3, convicting Eduardo P. Manuel of bigamy in Criminal
Case No. 19562-R.
Eduardo was charged with bigamy in an Information filed on
November 7, 2001, the accusatory portion of which reads:
That on or about the 22nd day of April, 1996, in the City of
Baguio, Philippines, and within the jurisdiction of this Honorable
Court, the above-named accused EDUARDO P. MANUEL, being
then previously and legally married to RUBYLUS [GAA] and
without the said marriage having been legally dissolved, did then
and there willfully, unlawfully and feloniously contract a second
marriage with TINA GANDALERA-MANUEL, herein
complainant, who does not know the existence of the first marriage
of said EDUARDO P. MANUEL to Rubylus [Gaa].
CONTRARY TO LAW. 3
The prosecution adduced evidence that on July 28, 1975, Eduardo
was married to Rubylus Gaa before Msgr. Feliciano Santos in
Makati, which was then still a municipality of the Province of
Rizal.4 He met the private complainant Tina B. Gandalera in
Dagupan City sometime in January 1996. She stayed in Bonuan,
Dagupan City for two days looking for a friend. Tina was then 21
years old, a Computer Secretarial student, while Eduardo was 39.
Afterwards, Eduardo went to Baguio City to visit her. Eventually,
as one thing led to another, they went to a motel where, despite
Tinas resistance, Eduardo succeeded in having his way with her.
Eduardo proposed marriage on several occasions, assuring her that
he was single. Eduardo even brought his parents to Baguio City to
meet Tinas parents, and was assured by them that their son was
still single.
Tina finally agreed to marry Eduardo sometime in the first week of
March 1996. They were married on April 22, 1996 before Judge
Antonio C. Reyes, the Presiding Judge of the RTC of Baguio City,
Branch 61.5 It appeared in their marriage contract that Eduardo
was "single."
The couple was happy during the first three years of their married
life. Through their joint efforts, they were able to build their home
in Cypress Point, Irisan, Baguio City. However, starting 1999,
Manuel started making himself scarce and went to their house only
twice or thrice a year. Tina was jobless, and whenever she asked
money from Eduardo, he would slap her.6 Sometime in January
2001, Eduardo took all his clothes, left, and did not return. Worse,
he stopped giving financial support.
Sometime in August 2001, Tina became curious and made
inquiries from the National Statistics Office (NSO) in Manila
where she learned that Eduardo had been previously married. She
secured an NSO-certified copy of the marriage contract.7 She was
so embarrassed and humiliated when she learned that Eduardo was
in fact already married when they exchanged their own vows.8
For his part, Eduardo testified that he met Tina sometime in 1995
in a bar where she worked as a Guest Relations Officer (GRO). He
fell in love with her and married her. He informed Tina of his
previous marriage to Rubylus Gaa, but she nevertheless agreed to
marry him. Their marital relationship was in order until this one
time when he noticed that she had a "love-bite" on her neck. He
then abandoned her. Eduardo further testified that he declared he
was "single" in his marriage contract with Tina because he
believed in good faith that his first marriage was invalid. He did
not know that he had to go to court to seek for the nullification of
his first marriage before marrying Tina.
Eduardo further claimed that he was only forced to marry his first
wife because she threatened to commit suicide unless he did so.
Rubylus was charged with estafa in 1975 and thereafter
imprisoned. He visited her in jail after three months and never saw
her again. He insisted that he married Tina believing that his first
marriage was no longer valid because he had not heard from
Rubylus for more than 20 years.
After trial, the court rendered judgment on July 2, 2002 finding
Eduardo guilty beyond reasonable doubt of bigamy. He was
sentenced to an indeterminate penalty of from six (6) years and ten
(10) months, as minimum, to ten (10) years, as maximum, and
directed to indemnify the private complainant Tina Gandalera the
amount of 200,000.00 by way of moral damages, plus costs of
suit.9
The trial court ruled that the prosecution was able to prove beyond
reasonable doubt all the elements of bigamy under Article 349 of
the Revised Penal Code. It declared that Eduardos belief, that his
first marriage had been dissolved because of his first wifes 20-
year absence, even if true, did not exculpate him from liability for
bigamy. Citing the ruling of this Court in People v. Bitdu,10 the
trial court further ruled that even if the private complainant had
known that Eduardo had been previously married, the latter would
still be criminally liable for bigamy.
Eduardo appealed the decision to the CA. He alleged that he was
not criminally liable for bigamy because when he married the
private complainant, he did so in good faith and without any
malicious intent. He maintained that at the time that he married the
private complainant, he was of the honest belief that his first
marriage no longer subsisted. He insisted that conformably to
Article 3 of the Revised Penal Code, there must be malice for one
to be criminally liable for a felony. He was not motivated by
malice in marrying the private complainant because he did so only
out of his overwhelming desire to have a fruitful marriage. He
posited that the trial court should have taken into account Article
390 of the New Civil Code. To support his view, the appellant
cited the rulings of this Court in United States v.
Pealosa11 and Manahan, Jr. v. Court of Appeals.12
The Office of the Solicitor General (OSG) averred that Eduardos
defense of good faith and reliance on the Courts ruling in United
States v. Enriquez13 were misplaced; what is applicable is Article
41 of the Family Code, which amended Article 390 of the Civil
Code. Citing the ruling of this Court in Republic v. Nolasco,14 the
OSG further posited that as provided in Article 41 of the Family
Code, there is a need for a judicial declaration of presumptive
death of the absent spouse to enable the present spouse to marry.
Even assuming that the first marriage was void, the parties thereto
should not be permitted to judge for themselves the nullity of the
marriage;
the matter should be submitted to the proper court for resolution.
Moreover, the OSG maintained, the private complainants
knowledge of the first marriage would not afford any relief since
bigamy is an offense against the State and not just against the
private complainant.
However, the OSG agreed with the appellant that the penalty
imposed by the trial court was erroneous and sought the affirmance
of the decision appealed from with modification.
On June 18, 2004, the CA rendered judgment affirming the
decision of the RTC with modification as to the penalty of the
accused. It ruled that the prosecution was able to prove all the
elements of bigamy. Contrary to the contention of the appellant,
Article 41 of the Family Code should apply. Before Manuel could
lawfully marry the private complainant, there should have been a
judicial declaration of Gaas presumptive death as the absent
spouse. The appellate court cited the rulings of this Court
in Mercado v. Tan15 and Domingo v. Court of Appeals16 to support
its ruling. The dispositive portion of the decision reads:
WHEREFORE, in the light of the foregoing, the Decision
promulgated on July 31, 2002 is hereby MODIFIED to reflect, as it
hereby reflects, that accused-appellant is sentenced to an
indeterminate penalty of two (2) years, four (4) months and one (1)
day of prision correccional, as minimum, to ten (10) years
of prision mayor as maximum. Said Decision is AFFIRMED in all
other respects.
SO ORDERED.17
Eduardo, now the petitioner, filed the instant petition for review on
certiorari, insisting that:
I
THE COURT OF APPEALS COMMITTED REVERSIBLE
ERROR OF LAW WHEN IT RULED THAT PETITIONERS
FIRST WIFE CANNOT BE LEGALLY PRESUMED DEAD
UNDER ARTICLE 390 OF THE CIVIL CODE AS THERE WAS
NO JUDICIAL DECLARATION OF PRESUMPTIVE DEATH
AS PROVIDED FOR UNDER ARTICLE 41 OF THE FAMILY
CODE.
II
THE COURT OF APPEALS COMMITTED REVERSIBLE
ERROR OF LAW WHEN IT AFFIRMED THE AWARD OF
PHP200,000.00 AS MORAL DAMAGES AS IT HAS NO BASIS
IN FACT AND IN LAW.18
The petitioner maintains that the prosecution failed to prove the
second element of the felony, i.e., that the marriage has not been
legally dissolved or, in case his/her spouse is absent, the absent
spouse could not yet be presumed dead under the Civil Code. He
avers that when he married Gandalera in 1996, Gaa had been
"absent" for 21 years since 1975; under Article 390 of the Civil
Code, she was presumed dead as a matter of law. He points out
that, under the first paragraph of Article 390 of the Civil Code, one
who has been absent for seven years, whether or not he/she is still
alive, shall be presumed dead for all purposes except for
succession, while the second paragraph refers to the rule on legal
presumption of death with respect to succession.
The petitioner asserts that the presumptive death of the absent
spouse arises by operation of law upon the satisfaction of two
requirements: the
specified period and the present spouses reasonable belief that the
absentee is dead. He insists that he was able to prove that he had
not heard from his first wife since 1975 and that he had no
knowledge of her whereabouts or whether she was still alive;
hence, under Article 41 of the Family Code, the presumptive death
of Gaa had arisen by operation of law, as the two requirements of
Article 390 of the Civil Code are present. The petitioner concludes
that he should thus be acquitted of the crime of bigamy.
The petitioner insists that except for the period of absences
provided for in Article 390 of the Civil Code, the rule therein on
legal presumptions remains valid and effective. Nowhere under
Article 390 of the Civil Code does it require that there must first be
a judicial declaration of death before the rule on presumptive death
would apply. He further asserts that contrary to the rulings of the
trial and appellate courts, the requirement of a judicial declaration
of presumptive death under Article 41 of the Family Code is only a
requirement for the validity of the subsequent or second marriage.
The petitioner, likewise, avers that the trial court and the CA erred
in awarding moral damages in favor of the private complainant.
The private complainant was a "GRO" before he married her, and
even knew that he was already married. He genuinely loved and
took care of her and gave her financial support. He also pointed out
that she had an illicit relationship with a lover whom she brought
to their house.
In its comment on the petition, the OSG maintains that the decision
of the CA affirming the petitioners conviction is in accord with
the law, jurisprudence and the evidence on record. To bolster its
claim, the OSG cited the ruling of this Court in Republic v.
Nolasco.19
The petition is denied for lack of merit.
Article 349 of the Revised Penal Code, which defines and
penalizes bigamy, reads:
Art. 349. Bigamy. The penalty of prision mayor shall be imposed
upon any person who shall contract a second or subsequent
marriage before the former marriage has been legally dissolved, or
before the absent spouse has been declared presumptively dead by
means of a judgment rendered in the proper proceedings.
The provision was taken from Article 486 of the Spanish Penal
Code, to wit:
El que contrajere Segundo o ulterior matrimonio sin hallarse
legtimamente disuelto el anterior, ser castigado con la pena de
prision mayor. xxx
The reason why bigamy is considered a felony is to preserve and
ensure the juridical tie of marriage established by law.20 The
phrase "or before the absent spouse had been declared
presumptively dead by means of a judgment rendered in the proper
proceedings" was incorporated in the Revised Penal Code because
the drafters of the law were of the impression that "in consonance
with the civil law which provides for the presumption of death
after an absence of a number of years, the judicial declaration of
presumed death like annulment of marriage should be a
justification for bigamy."21
For the accused to be held guilty of bigamy, the prosecution is
burdened to prove the felony: (a) he/she has been legally married;
and (b) he/she contracts a subsequent marriage without the former
marriage having been lawfully dissolved. The felony is
consummated on the celebration of the second marriage or
subsequent marriage.22 It is essential in the prosecution for bigamy
that the alleged second marriage, having all the essential
requirements, would be valid were it not for the subsistence of the
first marriage.23 Viada avers that a third element of the crime is
that the second marriage must be entered into with fraudulent
intent (intencion fraudulente) which is an essential element of a
felony by dolo.24 On the other hand, Cuello Calon is of the view
that there are only two elements of bigamy: (1) the existence of a
marriage that has not been lawfully dissolved; and (2) the
celebration of a second marriage. It does not matter whether the
first marriage is void or voidable because such marriages have
juridical effects until lawfully dissolved by a court of competent
jurisdiction.25 As the Court ruled in Domingo v. Court of
Appeals26 and Mercado v. Tan,27 under the Family Code of the
Philippines, the judicial declaration of nullity of a previous
marriage is a defense.
In his commentary on the Revised Penal Code, Albert is of the
same view as Viada and declared that there are three (3) elements
of bigamy: (1) an undissolved marriage; (2) a new marriage; and
(3) fraudulent intention constituting the felony of the act. 28 He
explained that:
This last element is not stated in Article 349, because it is
undoubtedly incorporated in the principle antedating all codes, and,
constituting one of the landmarks of our Penal Code, that, where
there is no willfulness there is no crime. There is no willfulness if
the subject
believes that the former marriage has been dissolved; and this must
be supported by very strong evidence, and if this be produced, the
act shall be deemed not to constitute a crime. Thus, a person who
contracts a second marriage in the reasonable and well-founded
belief that his first wife is dead, because of the many years that
have elapsed since he has had any news of her whereabouts, in
spite of his endeavors to find her, cannot be deemed guilty of the
crime of bigamy, because there is no fraudulent intent which is one
of the essential elements of the crime.29
As gleaned from the Information in the RTC, the petitioner is
charged with bigamy, a felony by dolo (deceit). Article 3,
paragraph 2 of the Revised Penal Code provides that there is deceit
when the act is performed with deliberate intent. Indeed, a felony
cannot exist without intent. Since a felony by dolo is classified as
an intentional felony, it is deemed voluntary.30 Although the words
"with malice" do not appear in Article 3 of the Revised Penal
Code, such phrase is included in the word "voluntary." 31
Malice is a mental state or condition prompting the doing of an
overt act without legal excuse or justification from which another
suffers injury.32 When the act or omission defined by law as a
felony is proved to have been done or committed by the accused,
the law presumes it to have been intentional.33 Indeed, it is a legal
presumption of law that every man intends the natural or probable
consequence of his voluntary act in the absence of proof to the
contrary, and such presumption must prevail unless a reasonable
doubt exists from a consideration of the whole evidence.34
For one to be criminally liable for a felony by dolo, there must be a
confluence of both an evil act and an evil intent. Actus non facit
reum, nisi mens sit rea.35
In the present case, the prosecution proved that the petitioner was
married to Gaa in 1975, and such marriage was not judicially
declared a nullity; hence, the marriage is presumed to
subsist.36 The prosecution also proved that the petitioner married
the private complainant in 1996, long after the effectivity of the
Family Code.
The petitioner is presumed to have acted with malice or evil intent
when he married the private complainant. As a general rule,
mistake of fact or good faith of the accused is a valid defense in a
prosecution for a felony by dolo; such defense negates malice or
criminal intent. However, ignorance of the law is not an excuse
because everyone is presumed to know the law. Ignorantia legis
neminem excusat.
It was the burden of the petitioner to prove his defense that when
he married the private complainant in 1996, he was of the well-
grounded belief
that his first wife was already dead, as he had not heard from her
for more than 20 years since 1975. He should have adduced in
evidence a decision of a competent court declaring the presumptive
death of his first wife as required by Article 349 of the Revised
Penal Code, in relation to Article 41 of the Family Code. Such
judicial declaration also constitutes proof that the petitioner acted
in good faith, and would negate criminal intent on his part when he
married the private complainant and, as a consequence, he could
not be held guilty of bigamy in such case. The petitioner, however,
failed to discharge his burden.
The phrase "or before the absent spouse has been declared
presumptively dead by means of a judgment rendered on the
proceedings" in Article 349 of the Revised Penal Code was not an
aggroupment of empty or useless words. The requirement for a
judgment of the presumptive death of the absent spouse is for the
benefit of the spouse present, as protection from the pains and the
consequences of a second marriage, precisely because he/she could
be charged and convicted of bigamy if the defense of good faith
based on mere testimony is found incredible.
The requirement of judicial declaration is also for the benefit of the
State. Under Article II, Section 12 of the Constitution, the "State
shall protect and strengthen the family as a basic autonomous
social institution." Marriage is a social institution of the highest
importance. Public policy, good morals and the interest of society
require that the marital relation should be surrounded with every
safeguard and its severance only in the manner prescribed and the
causes specified by law.37 The laws regulating civil marriages are
necessary to serve the interest, safety, good order, comfort or
general welfare of the community and the parties can waive
nothing essential to the validity of the proceedings. A civil
marriage anchors an ordered society by encouraging stable
relationships over transient ones; it enhances the welfare of the
community.
In a real sense, there are three parties to every civil marriage; two
willing spouses and an approving State. On marriage, the parties
assume new relations to each other and the State touching nearly
on every aspect of life and death. The consequences of an invalid
marriage to the parties, to innocent parties and to society, are so
serious that the law may well take means calculated to ensure the
procurement of the most positive evidence of death of the first
spouse or of the presumptive death of the absent spouse 38 after the
lapse of the period provided for under the law. One such means is
the requirement of the declaration by a competent court of the
presumptive death of an absent spouse as proof that the present
spouse contracts a subsequent marriage on a well-grounded belief
of the death of the first spouse. Indeed, "men readily believe what
they wish to be true," is a maxim of the old jurists. To sustain a
second marriage and to vacate a first because one of the parties
believed the other to be dead would make the existence of the
marital relation determinable, not by certain extrinsic facts, easily
capable of forensic ascertainment and proof, but by the subjective
condition of individuals.39 Only with such proof can marriage be
treated as so dissolved as to permit second marriages.40 Thus,
Article 349 of the Revised Penal Code has made the dissolution of
marriage dependent not only upon the personal belief of parties,
but upon certain objective facts easily capable of accurate judicial
cognizance,41 namely, a judgment of the presumptive death of the
absent spouse.
The petitioners sole reliance on Article 390 of the Civil Code as
basis for his acquittal for bigamy is misplaced.
Articles 390 and 391 of the Civil Code provide
Art. 390. After an absence of seven years, it being unknown
whether or not, the absentee still lives, he shall be presumed dead
for all purposes, except for those of succession.
The absentee shall not be presumed dead for the purpose of
opening his succession till after an absence of ten years. If he
disappeared after the age of seventy-five years, an absence of five
years shall be sufficient in order that his succession may be
opened.
Art. 391. The following shall be presumed dead for all purposes,
including the division of the estate among the heirs:
(1) A person on board a vessel lost during a sea voyage, or an
aeroplane which is missing, who has not been heard of for four
years since the loss of the vessel or aeroplane;
(2) A person in the armed forces who has taken part in war, and
has been missing for four years;
(3) A person who has been in danger of death under other
circumstances and his existence has not been known for four years.
The presumption of death of the spouse who had been absent for
seven years, it being unknown whether or not the absentee still
lives, is created by law and arises without any necessity of judicial
declaration.42 However, Article 41 of the Family Code, which
amended the foregoing rules on presumptive death, reads:
Art. 41. A marriage contracted by any person during the
subsistence of a previous marriage shall be null and void, unless
before the celebration of the subsequent marriage, the prior spouse
had been absent for four consecutive years and the spouse present
had a well-founded belief that the absent spouse was already dead.
In case of disappearance where there is danger of death under the
circumstances set forth in the provisions of Article 391 of the Civil
Code, an absence of only two years shall be sufficient.
For the purpose of contracting the subsequent marriage under the
preceding paragraph, the spouse present must institute a summary
proceeding as provided in this Court for the declaration of
presumptive death of the absentee, without prejudice to the effect
of reappearance of the absent spouse.43
With the effectivity of the Family Code,44 the period of seven years
under the first paragraph of Article 390 of the Civil Code was
reduced to four consecutive years. Thus, before the spouse present
may contract a subsequent marriage, he or she must institute
summary proceedings for the declaration of the presumptive death
of the absentee spouse,45 without prejudice to the effect of the
reappearance of the absentee spouse. As explained by this Court
in Armas v. Calisterio:46
In contrast, under the 1988 Family Code, in order that a subsequent
bigamous marriage may exceptionally be considered valid, the
following conditions must concur, viz.: (a) The prior spouse of the
contracting party must have been absent for four consecutive years,
or two years where there is danger of death under the
circumstances stated in Article 391 of the Civil Code at the time of
disappearance; (b) the spouse present has a well-founded belief
that the absent spouse is already dead; and (c) there is, unlike the
old rule, a judicial declaration of presumptive death of the absentee
for which purpose the spouse present can institute a summary
proceeding in court to ask for that declaration. The last condition is
consistent and in consonance with the requirement of judicial
intervention in subsequent marriages as so provided in Article 41,
in relation to Article 40, of the Family Code.
The Court rejects petitioners contention that the requirement of
instituting a petition for declaration of presumptive death under
Article 41 of the Family Code is designed merely to enable the
spouse present to contract a valid second marriage and not for the
acquittal of one charged with bigamy. Such provision was
designed to harmonize civil law and Article 349 of the Revised
Penal Code, and put to rest the confusion spawned by the rulings
of this Court and comments of eminent authorities on Criminal
Law.
As early as March 6, 1937, this Court ruled in Jones v.
Hortiguela47 that, for purposes of the marriage law, it is not
necessary to have the former spouse judicially declared an
absentee before the spouse present may contract a subsequent
marriage. It held that the declaration of absence made in
accordance with the provisions of the Civil Code has for its sole
purpose the taking of the necessary precautions for the
administration of the estate of the absentee. For the celebration of
civil marriage, however, the law only requires that the former
spouse had been absent for seven consecutive years at the time of
the second marriage, that the spouse present does not know his or
her former spouse to be living, that such former spouse is generally
reputed to be dead and the spouse present so believes at the time of
the celebration of the marriage.48 In In Re Szatraw,49 the Court
declared that a judicial declaration that a person is presumptively
dead, because he or she had been unheard from in seven years,
being a presumption juris tantum only, subject to contrary proof,
cannot reach the stage of finality or become final; and that proof of
actual death of the person presumed dead being unheard from in
seven years, would have to be made in another proceeding to have
such particular fact finally determined. The Court ruled that if a
judicial decree declaring a person presumptively dead because he
or she had not been heard from in seven years cannot become final
and executory even after the lapse of the reglementary period
within which an appeal may be taken, for such presumption is still
disputable and remains subject to contrary proof, then a petition for
such a declaration is useless, unnecessary, superfluous and of no
benefit to the petitioner. The Court stated that it should not waste
its valuable time and be made to perform a superfluous and
meaningless act.50 The Court also took note that a petition for a
declaration of the presumptive death of an absent spouse may even
be made in collusion with the other spouse.
In Lukban v. Republic of the Philippines,51 the Court declared that
the words "proper proceedings" in Article 349 of the Revised Penal
Code can only refer to those authorized by law such as Articles
390 and 391 of the Civil Code which refer to the administration or
settlement of the estate of a deceased person. In Gue v. Republic of
the Philippines,52 the Court rejected the contention of the petitioner
therein that, under Article 390 of the Civil Code, the courts are
authorized to declare the presumptive death of a person after an
absence of seven years. The Court reiterated its rulings in Szatraw,
Lukban and Jones.
Former Chief Justice Ramon C. Aquino was of the view that "the
provision of Article 349 or "before the absent spouse has been
declared presumptively dead by means of a judgment reached in
the proper proceedings" is erroneous and should be considered as
not written. He opined that such provision presupposes that, if the
prior marriage has not been legally dissolved and the absent first
spouse has not been declared presumptively dead in a proper court
proceedings, the subsequent marriage is bigamous. He maintains
that the supposition is not true.53 A second marriage is bigamous
only when the circumstances in paragraphs 1 and 2 of Article 83 of
the Civil Code are not present.54 Former Senator Ambrosio Padilla
was, likewise, of the view that Article 349 seems to require judicial
decree of dissolution or judicial declaration of absence but even
with such decree, a second marriage in good faith will not
constitute bigamy. He posits that a second marriage, if not illegal,
even if it be annullable, should not give rise to bigamy. 55 Former
Justice Luis B. Reyes, on the other hand, was of the view that in
the case of an absent spouse who could not yet be presumed dead
according to the Civil Code, the spouse present cannot be charged
and convicted of bigamy in case he/she contracts a second
marriage.56
The Committee tasked to prepare the Family Code proposed the
amendments of Articles 390 and 391 of the Civil Code to conform
to Article 349 of the Revised Penal Code, in that, in a case where a
spouse is absent for the requisite period, the present spouse may
contract a subsequent marriage only after securing a judgment
declaring the presumptive death of the absent spouse to avoid
being charged and convicted of bigamy; the present spouse will
have to adduce evidence that he had a well-founded belief that the
absent spouse was already dead.57 Such judgment is proof of the
good faith of the present spouse who contracted a subsequent
marriage; thus, even if the present spouse is later charged with
bigamy if the absentee spouse reappears, he cannot be convicted of
the crime. As explained by former Justice Alicia Sempio-Diy:
Such rulings, however, conflict with Art. 349 of the Revised
Penal Code providing that the present spouse must first ask for a
declaration of presumptive death of the absent spouse in order not
to be guilty of bigamy in case he or she marries again.
The above Article of the Family Code now clearly provides that
for the purpose of the present spouse contracting a second
marriage, he or she must file a summary proceeding as provided in
the Code for the declaration of the presumptive death of the
absentee, without prejudice to the latters reappearance. This
provision is intended to protect the present spouse from a criminal
prosecution for bigamy under Art. 349 of the Revised Penal Code
because with the judicial declaration that the missing spouses
presumptively dead, the good faith of the present spouse in
contracting a second marriage is already established.58
Of the same view is former Dean Ernesto L. Pineda (now
Undersecretary of Justice) who wrote that things are now clarified.
He says judicial declaration of presumptive death is now
authorized for purposes of
remarriage. The present spouse must institute a summary
proceeding for declaration of presumptive death of the absentee,
where the ordinary rules of procedure in trial will not be followed.
Affidavits will suffice, with possible clarificatory examinations of
affiants if the Judge finds it necessary for a full grasp of the facts.
The judgment declaring an absentee as presumptively dead is
without prejudice to the effect of reappearance of the said
absentee.
Dean Pineda further states that before, the weight of authority is
that the clause "before the absent spouse has been declared
presumptively dead x x x" should be disregarded because of
Article 83, paragraph 3 of the Civil Code. With the new law, there
is a need to institute a summary proceeding for the declaration of
the presumptive death of the absentee, otherwise, there is
bigamy.59
According to Retired Supreme Court Justice Florenz D. Regalado,
an eminent authority on Criminal Law, in some cases where an
absentee spouse is believed to be dead, there must be a judicial
declaration of presumptive death, which could then be made only
in the proceedings for the settlement of his estate.60 Before such
declaration, it was held that the remarriage of the other spouse is
bigamous even if done in good faith.61 Justice Regalado opined
that there were contrary views because of the ruling in Jones and
the provisions of Article 83(2) of the Civil Code, which, however,
appears to have been set to rest by Article 41 of the Family Code,
"which requires a summary hearing for the declaration of
presumptive death of the absent spouse before the other spouse can
remarry."
Under Article 238 of the Family Code, a petition for a declaration
of the presumptive death of an absent spouse under Article 41 of
the Family Code may be filed under Articles 239 to 247 of the
same Code.62
On the second issue, the petitioner, likewise, faults the trial court
and the CA for awarding moral damages in favor of the private
complainant. The petitioner maintains that moral damages may be
awarded only in any of the cases provided in Article 2219 of the
Civil Code, and bigamy is not one of them. The petitioner asserts
that the appellate court failed to apply its ruling in People v.
Bondoc,63 where an award of moral damages for bigamy was
disallowed. In any case, the petitioner maintains, the private
complainant failed to adduce evidence to prove moral damages.
The appellate court awarded moral damages to the private
complainant on its finding that she adduced evidence to prove the
same. The appellate court ruled that while bigamy is not included
in those cases enumerated in Article 2219 of the Civil Code, it is
not proscribed from awarding moral damages against the
petitioner. The appellate court ruled that it is not bound by the
following ruling in People v. Bondoc:
The OSG posits that the findings and ruling of the CA are based on
the evidence and the law. The OSG, likewise, avers that the CA
was not bound by its ruling in People v. Rodeo.
The Court rules against the petitioner.
Moral damages include physical suffering, mental anguish, fright,
serious anxiety, besmirched reputation, wounded feelings, moral
shock, social humiliation, and similar injury. Though incapable of
pecuniary computation, moral damages may be recovered if they
are the proximate result of the defendants wrongful act or
omission.65 An award for moral damages requires the confluence
of the following conditions: first, there must be an injury, whether
physical, mental or psychological, clearly sustained by the
claimant; second, there must be culpable act or omission factually
established; third, the wrongful act or omission of the defendant is
the proximate cause of the injury sustained by the claimant;
and fourth, the award of damages is predicated on any of the cases
stated in Article 2219 or Article 2220 of the Civil Code.66
Moral damages may be awarded in favor of the offended party
only in criminal cases enumerated in Article 2219, paragraphs 1, 3,
4, 5 and 7 of the Civil Code and analogous cases, viz.:
Art. 2219. Moral damages may be recovered in the following and
analogous cases.
(1) A criminal offense resulting in physical injuries;
(2) Quasi-delicts causing physical injuries;
(3) Seduction, abduction, rape, or other lascivious acts;
(4) Adultery or concubinage;
(5) Illegal or arbitrary detention or arrest;
(6) Illegal search;
(7) Libel, slander or any other form of defamation;
(8) Malicious prosecution;
(9) Acts mentioned in article 309;
(10) Acts and actions referred to in articles 21, 26, 27, 28, 29, 30,
32, 34 and 35.
The parents of the female seduced, abducted, raped, or abused,
referred to in No. 3 of this article, may also recover moral
damages.
The spouse, descendants, ascendants, and brothers and sisters may
bring the action mentioned in No. 9 of this article in the order
named.
Thus, the law does not intend that moral damages should be
awarded in all cases where the aggrieved party has suffered mental
anguish, fright, moral anxieties, besmirched reputation, wounded
feelings, moral shock, social humiliation and similar injury arising
out of an act or omission of another, otherwise, there would not
have been any reason for the inclusion of specific acts in Article
221967 and analogous cases (which refer to those cases bearing
analogy or resemblance, corresponds to some others or resembling,
in other respects, as in form, proportion, relation, etc.) 68
Indeed, bigamy is not one of those specifically mentioned in
Article 2219 of the Civil Code in which the offender may be
ordered to pay moral damages to the private complainant/offended
party. Nevertheless, the petitioner is liable to the private
complainant for moral damages under Article 2219 in relation to
Articles 19, 20 and 21 of the Civil Code.
According to Article 19, "every person must, in the exercise of his
rights and in the performance of his act with justice, give everyone
his due, and observe honesty and good faith." This provision
contains what is commonly referred to as the principle of abuse of
rights, and sets certain standards which must be observed not only
in the exercise of ones rights but also in the performance of ones
duties. The standards are the following: act with justice; give
everyone his due; and observe honesty and good faith. The
elements for abuse of rights are: (a) there is a legal right or duty;
(b) exercised in bad faith; and (c) for the sole intent of prejudicing
or injuring another.69
Article 20 speaks of the general sanctions of all other provisions of
law which do not especially provide for its own sanction. When a
right is exercised in a manner which does not conform to the
standards set forth in the said provision and results in damage to
another, a legal wrong is thereby committed for which the
wrongdoer must be responsible.70 If the provision does not provide
a remedy for its violation, an action for damages under either
Article 20 or Article 21 of the Civil Code would be proper. Article
20 provides that "every person who, contrary to law, willfully or
negligently causes damage to another shall indemnify the latter for
the same." On the other hand, Article 21 provides that "any person
who willfully causes loss or injury to another in a manner that is
contrary to morals, good customs or public policy shall
compensate the latter for damages." The latter provision
is adopted to remedy "the countless gaps in the statutes which
leave so many victims of moral wrongs helpless, even though they
have actually suffered material and moral injury should vouchsafe
adequate legal remedy for that untold number of moral wrongs
which it is impossible for human foresight to prove for specifically
in the statutes." Whether or not the principle of abuse of rights has
been violated resulting in damages under Article 20 or Article 21
of the Civil Code or other applicable provisions of law depends
upon the circumstances of each case.71
In the present case, the petitioner courted the private complainant
and proposed to marry her. He assured her that he was single. He
even brought his parents to the house of the private complainant
where he and his parents made the same assurance that he was
single. Thus, the private complainant agreed to marry the
petitioner, who even stated in the certificate of marriage that he
was single. She lived with the petitioner and dutifully performed
her duties as his wife, believing all the while that he was her lawful
husband. For two years or so until the petitioner heartlessly
abandoned her, the private complainant had no inkling that he was
already married to another before they were married.
Thus, the private complainant was an innocent victim of the
petitioners chicanery and heartless deception, the fraud consisting
not of a single act alone, but a continuous series of acts. Day by
day, he maintained the appearance of being a lawful husband to the
private complainant, who
changed her status from a single woman to a married woman, lost
the consortium, attributes and support of a single man she could
have married lawfully and endured mental pain and humiliation,
being bound to a man who it turned out was not her lawful
husband.72
The Court rules that the petitioners collective acts of fraud and
deceit before, during and after his marriage with the private
complainant were willful, deliberate and with malice and caused
injury to the latter. That she did not sustain any physical injuries is
not a bar to an award for moral damages. Indeed, in Morris v.
Macnab,73 the New Jersey Supreme Court ruled:
xxx The defendant cites authorities which indicate that, absent
physical injuries, damages for shame, humiliation, and mental
anguish are not recoverable where the actor is simply negligent.
See Prosser, supra, at p. 180; 2 Harper & James, Torts, 1031
(1956). But the authorities all recognize that where the wrong is
willful rather than negligent, recovery may be had for the ordinary,
natural, and proximate consequences though they consist of shame,
humiliation, and mental anguish. See Spiegel v. Evergreen
Cemetery Co., 117 NJL 90, 94, 186 A 585 (Sup. Ct. 1936); Kuzma
v. Millinery Workers, etc., Local 24, 27 N.J. Super, 579, 591, 99
A.2d 833 (App. Div. 1953); Prosser, supra, at p. 38. Here the
defendants conduct was not merely negligent, but was willfully
and maliciously wrongful. It was bound to result in shame,
humiliation, and mental anguish for the plaintiff, and when such
result did ensue the plaintiff became entitled not only to
compensatory but also to punitive damages. See Spiegel v.
Evergreen Cemetery Co., supra; Kuzma v Millinery Workers, etc.,
Local 24, supra. CF. Note, "Exemplary Damages in the Law of
Torts," 70 Harv. L. Rev. 517 (1957). The plaintiff testified that
because of the defendants bigamous marriage to her and the
attendant publicity she not only was embarrassed and "ashamed to
go out" but "couldnt sleep" but "couldnt eat," had terrific
headaches" and "lost quite a lot of weight." No just basis appears
for judicial interference with the jurys reasonable allowance of
$1,000 punitive damages on the first count. See Cabakov v.
Thatcher, 37 N.J. Super 249, 117 A.2d 298 (App. Div. 74 1955).
The Court thus declares that the petitioners acts are against public
policy as they undermine and subvert the family as a social
institution, good morals and the interest and general welfare of
society.
Because the private complainant was an innocent victim of the
petitioners perfidy, she is not barred from claiming moral
damages. Besides, even considerations of public policy would not
prevent her from recovery. As held in Jekshewitz v. Groswald:75
Where a person is induced by the fraudulent representation of
another to do an act which, in consequence of such
misrepresentation, he believes to be neither illegal nor immoral,
but which is in fact a criminal offense, he has a right of action
against the person so inducing him for damages sustained by him
in consequence of his having done such act. Burrows v. Rhodes,
[1899] 1 Q.B. 816. In Cooper v. Cooper, 147 Mass. 370, 17 N.E.
892, 9 Am. St. Rep. 721, the court said that a false representation
by the defendant that he was divorced from his former wife,
whereby the plaintiff was induced to marry him, gave her a remedy
in tort for deceit. It seems to have been assumed that the fact that
she had unintentionally violated the law or innocently committed a
crime by cohabiting with him would be no bar to the action, but
rather that it might be a ground for enhancing her damages. The
injury to the plaintiff was said to be in her being led by the promise
to give the fellowship and assistance of a wife to one who was not
her husband and to assume and act in a relation and condition that
proved to be false and ignominious. Damages for such an injury
were held to be recoverable in Sherman v. Rawson, 102 Mass. 395
and Kelley v. Riley, 106 Mass. 339, 343, 8 Am. Rep. 336.
Furthermore, in the case at bar the plaintiff does not base her cause
of action upon any transgression of the law by herself but upon the
defendants misrepresentation. The criminal relations which
followed, innocently on her part, were but one of the incidental
results of the defendants fraud for which damages may be
assessed.
[7] Actions for deceit for fraudulently inducing a woman to enter
into the marriage relation have been maintained in other
jurisdictions. Sears v. Wegner, 150 Mich. 388, 114 N.W. 224, 17
L.R. A. (N.S.) 819; Larson v. McMillan, 99 Wash. 626, 170 P.
324; Blossom v. Barrett, 37 N.Y. 434, 97 Am. Dec. 747; Morril v.
Palmer, 68 Vt. 1, 33 A. 829, 33 L.R.A. 411. Considerations of
public policy would not prevent recovery where the circumstances
are such that the plaintiff was conscious of no moral turpitude, that
her illegal action was induced solely by the defendants
misrepresentation, and that she does not base her cause of action
upon any transgression of the law by herself. Such considerations
distinguish this case from cases in which the court has refused to
lend its aid to the enforcement of a contract illegal on its face or to
one who has consciously and voluntarily become a party to an
illegal act upon which the cause of action is founded. Szadiwicz v.
Cantor, 257 Mass. 518, 520, 154 N.E. 251, 49 A. L. R. 958. 76
Considering the attendant circumstances of the case, the Court
finds the award of 200,000.00 for moral damages to be just and
reasonable.
IN LIGHT OF ALL THE FOREGOING, the petition
is DENIED. The assailed decision of the Court of Appeals
isAFFIRMED. Costs against the petitioner.
SO ORDERED.
G.R. No. 136467 April 6, 2000
ANTONIA ARMAS Y CALISTERIO, petitioner,
vs.
MARIETTA CALISTERIO, respondent.
VITUG, J.:
On 24 April 1992, Teodorico Calisterio died intestate, leaving
several parcels of land with an estimated value of P604,750.00.
Teodorico was survived by his wife, herein respondent Marietta
Calisterio.
Teodorico was the second husband of Marietta who had previously
been married to James William Bounds on 13 January 1946 at
Caloocan City. James Bounds disappeared without a trace on 11
February 1947. Teodorico and Marietta were married eleven years
later, or on 08 May 1958, without Marietta having priorly secured
a court declaration that James was presumptively dead.
On 09 October 1992, herein petitioner Antonia Armas y Calisterio,
a surviving sister of Teodorico, filed with the Regional Trial Court
("RTC") of Quezon City, Branch 104, a petition entitled, "In the
Matter of Intestate Estate of the Deceased Teodorico Calisterio y
Cacabelos, Antonia Armas, Petitioner," claiming to be inter alia,
the sole surviving heir of Teodorico Calisterio, the marriage
between the latter and respondent Marietta Espinosa Calisterio
being allegedly bigamous and thereby null and void. She prayed
that her son Sinfroniano C. Armas, Jr., be appointed administrator,
without bond, of the estate of the deceased and that the inheritance
be adjudicated to her after all the obligations of the estate would
have been settled.
Respondent Marietta opposed the petition. Marietta stated that her
first marriage with James Bounds had been dissolved due to the
latter's absence, his whereabouts being unknown, for more than
eleven years before she contracted her second marriage with
Teodorico. Contending to be the surviving spouse of Teodorico,
she sought priority in the administration of the estate of the
decedent.
On 05 February 1993, the trial court issued an order appointing
jointly Sinfroniano C. Armas, Jr., and respondent Marietta
administrator and administratrix, respectively, of the intestate
estate of Teodorico.
On 17 January 1996, the lower court handed down its decision in
favor of petitioner Antonia; it adjudged:
WHEREFORE, judgment is hereby rendered finding for
the petitioner and against the oppositor whereby herein
petitioner, Antonia Armas y Calisterio, is declared as the
sole heir of the estate of Teodorico Calisterio y
Cacabelos. 1
Respondent Marietta appealed the decision of the trial court to the
Court of Appeals, formulating that
1. The trial court erred in applying the provisions of the
Family Code in the instant case despite the fact that the
controversy arose when the New Civil Code was the law
in force.
2. The trial court erred in holding that the marriage
between oppositor-appellant and the deceased Teodorico
Calisterio is bigamous for failure of the former to secure a
decree of the presumptive death of her first spouse.
3. The trial court erred in not holding that the property
situated at No. 32 Batangas Street, San Francisco del
Monte, Quezon City, is the conjugal property of the
oppositor-appellant and the deceased Teodorico
Calisterio.
 4. The trial court erred in holding that oppositor-appellant
is not a legal heir of deceased Teodorico Calisterio.
5. The trial court erred in not holding that letters of
administration should be granted solely in favor of
oppositor-appellant. 2
On 31 August 1998, the appellate court, through Mr. Justice
Conrado M. Vasquez, Jr., promulgated its now assailed decision,
thus:
IN VIEW OF ALL THE FOREGOING, the Decision
appealed from is REVERSED AND SET ASIDE, and a
new one entered declaring as follows:
(a) Marietta Calisterio's marriage to Teodorico
remains valid;
(b) The house and lot situated at #32 Batangas
Street, San Francisco del Monte, Quezon City,
belong to the conjugal partnership property with
the concomitant obligation of the partnership to
pay the value of the land to Teodorico's estate as
of the time of the taking;
(c) Marietta Calisterio, being Teodorico's
compulsory heir, is entitled to one half of her
husband's estate, and Teodorico's sister, herein
petitioner Antonia Armas and her children, to the
other half;
(d) The trial court is ordered to determine the
competence of Marietta E. Calisterio to act as
administrator of Teodorico's estate, and if so
found competent and willing, that she be
appointed as such; otherwise, to determine who
among the deceased's next of kin is competent
and willing to become the administrator of the
estate. 3
On 23 November 1998, the Court of Appeals denied
petitioner's motion for reconsideration, prompting her to
interpose the present appeal. Petitioner asseverates:
It is respectfully submitted that the decision of the Court
of Appeals reversing and setting aside the decision of the
trial court is not in accord with the law or with the
applicable decisions of this Honorable Court. 4
It is evident that the basic issue focuses on the validity of the
marriage between the deceased Teodorico and respondent
Marietta, that, in turn, would be determinative of her right as a
surviving spouse.
The marriage between the deceased Teodorico and respondent
Marietta was solemnized on 08 May 1958. The law in force at that
time was the Civil Code, not the Family Code which took effect
only on 03 August 1988. Article 256 of the Family Code 5 itself
limited its retroactive governance only to cases where it thereby
would not prejudice or impair vested or acquired rights in
accordance with the Civil Code or other laws.
Verily, the applicable specific provision in the instant controversy
is Article 83 of the New Civil Code which provides:
Art. 83. Any marriage subsequently contracted by any
person during the lifetime of the first spouse of such
person with any person other than such first spouse shall
be illegal and void from its performance, unless:
(1) The first marriage was annulled or dissolved; or
(2) The first spouse had been absent for seven consecutive
years at the time of the second marriage without the
spouse present having news of the absentee being alive, or
if the absentee, though he has been absent for less than
seven years, is generally considered as dead and believed
to be so by the spouse present at the time of contracting
such subsequent marriage, or if the absentee is presumed
dead according to articles 390 and 391. The marriage so
contracted shall be valid in any of the three cases until
declared null and void by a competent court.
Under the foregoing provisions, a subsequent marriage contracted
during the lifetime of the first spouse is illegal and void ab
initio unless the prior marriage is first annulled or dissolved.
Paragraph (2) of the law gives exceptions from the above rule. For
the subsequent marriage referred to in the three exceptional cases
therein provided, to be held valid, the spouse present (not the
absentee spouse) so contracting the later marriage must have done
so in good faith. 6 Bad faith imports a dishonest purpose or some
moral obliquity and conscious doing of wrong it partakes of the
nature of fraud, a breach of a known duty through some motive of
interest or ill will. 7 The Court does not find these circumstances to
be here extant.
A judicial declaration of absence of the absentee spouse is not
necessary8 as long as the prescribed period of absence is met. It is
equally noteworthy that the marriage in these exceptional cases
are, by the explicit mandate of Article 83, to be deemed valid
"until declared null and void by a competent court." It follows that
the burden of proof would be, in these cases, on the party assailing
the second marriage.
In contrast, under the 1988 Family Code, in order that a subsequent
bigamous marriage may exceptionally be considered valid, the
following conditions must concur; viz.: (a) The prior spouse of the
contracting party must have been absent for four consecutive years,
or two years where there is danger of death under the
circumstances stated in Article 391 of the Civil Code at the time of
disappearance; (b) the spouse present has a well-founded belief
that the absent spouse is already dead; and (c) there is, unlike the
old rule, a judicial declaration of presumptive death of the absentee
for which purpose the spouse present can institute a summary
proceeding in court to ask for that declaration. The last condition is
consistent and in consonance with the requirement of judicial
intervention in subsequent marriages as so provided in Article
41 9 , in relation to Article 40, 10 of the Family Code.
In the case at bar, it remained undisputed that respondent
Marietta's first husband, James William Bounds, had been absent
or had disappeared for more than eleven years before she entered
into a second marriage in 1958 with the deceased Teodorico
Calisterio. This second marriage, having been contracted during
the regime of the Civil Code, should thus be deemed valid
notwithstanding the absence of a judicial declaration of
presumptive death of James Bounds.
The conjugal property of Teodorico and Marietta, no evidence
having been adduced to indicate another property regime between
the spouses, pertains to them in common. Upon its dissolution with
the death of Teodorico, the property should rightly be divided in
two equal portions one portion going to the surviving spouse
and the other portion to the estate of the deceased spouse. The
successional right in intestacy of a surviving spouse over the net
estate 11 of the deceased, concurring with legitimate brothers and
sisters or nephews and nieces (the latter by right of representation),
is one-half of the inheritance, the brothers and sisters or nephews
and nieces, being entitled to the other half. Nephews and nieces,
however, can only succeed by right of representation in the
presence of uncles and aunts; alone, upon the other hand, nephews
and nieces can succeed in their own right which is to say that
brothers or sisters exclude nephews and nieces except only in
representation by the latter of their parents who predecease or are
incapacitated to succeed. The appellate court has thus erred in
granting, in paragraph (c) of the dispositive portion of its
judgment, successional rights, to petitioner's children, along with
their own mother Antonia who herself is invoking successional
rights over the estate of her deceased brother.1wphi1
WHEREFORE, the assailed judgment of the Court of Appeals in
CA G.R. CV No. 51574 is AFFIRMED except insofar only as it
decreed in paragraph (c) of the dispositive portion thereof that the
children of petitioner are likewise entitled, along with her, to the
other half of the inheritance, in lieu of which, it is hereby
DECLARED that said one-half share of the decedent's estate
pertains solely to petitioner to the exclusion of her own children.
No costs.
SO ORDERED.
G.R. No. 187512 June 13, 2012
REPUBLIC OF THE PHILIPPINES, Petitioner,
vs.
YOLANDA CADACIO GRANADA, Respondent.
DECISION
SERENO, J.:
This is a Rule 45 Petition seeking the reversal of the Resolutions
dated 23 January 20091 and 3 April 20092 issued by the Court of
Appeals (CA), which affirmed the grant by the Regional Trial
Court (RTC) of the Petition for Declaration of Presumptive Death
of the absent spouse of respondent.
In May 1991, respondent Yolanda Cadacio Granada (Yolanda) met
Cyrus Granada (Cyrus) at Sumida Electric Philippines, an
electronics company in Paranaque where both were then working.
The two eventually got married at the Manila City Hall on 3 March
1993. Their marriage resulted in the birth of their son, Cyborg
Dean Cadacio Granada.
Sometime in May 1994, when Sumida Electric Philippines closed
down, Cyrus went to Taiwan to seek employment. Yolanda
claimed that from that time, she had not received any
communication from her husband, notwithstanding efforts to locate
him. Her brother testified that he had asked the relatives of Cyrus
regarding the latters whereabouts, to no avail.
After nine (9) years of waiting, Yolanda filed a Petition to have
Cyrus declared presumptively dead. The Petition was raffled to
Presiding Judge Avelino Demetria of RTC Branch 85, Lipa City,
and was docketed as Sp. Proc. No. 2002-0530.
On 7 February 2005, the RTC rendered a Decision declaring Cyrus
as presumptively dead.
On 10 March 2005, petitioner Republic of the Philippines,
represented by the Office of the Solicitor General (OSG), filed a
Motion for Reconsideration of this Decision. Petitioner argued that
Yolanda had failed to exert earnest efforts to locate Cyrus and thus
failed to prove her well-founded belief that he was already dead.
However, in an Order dated 29 June 2007, the RTC denied the
motion.
Petitioner filed a Notice of Appeal to elevate the case to the CA,
presumably under Rule 41, Section 2(a) of the Rules of Court.
Yolanda filed a Motion to Dismiss on the ground that the CA had
no jurisdiction over the appeal. She argued that her Petition for
Declaration of Presumptive Death, based on Article 41 of the
Family Code, was a summary judicial proceeding, in which the
judgment is immediately final and executory and, thus, not
appealable.
In its 23 January 2009 Resolution, the appellate court granted
Yolandas Motion to Dismiss on the ground of lack of jurisdiction.
Citing Republic v. Bermudez-Lorino,3 the CA ruled that a petition
for declaration of presumptive death under Rule 41 of the Family
Code is a summary proceeding. Thus, judgment thereon is
immediately final and executory upon notice to the parties.
Petitioner moved for reconsideration, but its motion was likewise
denied by the CA in a Resolution dated 3 April 2009. 4
Hence, the present Rule 45 Petition.
Issues
1. Whether the CA seriously erred in dismissing the
Petition on the ground that the Decision of the RTC in a
summary proceeding for the declaration of presumptive
death is immediately final and executory upon notice to
the parties and, hence, is not subject to ordinary appeal
2. Whether the CA seriously erred in affirming the RTCs
grant of the Petition for Declaration of Presumptive Death
under Article 41 of the Family Code based on the
evidence that respondent presented
Our Ruling
1. On whether the CA seriously erred in dismissing the Petition on
the ground that the Decision of the RTC in a summary proceeding
for the declaration of presumptive death is immediately final and
executory upon notice to the parties and, hence, is not subject to
ordinary appeal
In the assailed Resolution dated 23 January 2009, the CA
dismissed the Petition assailing the RTCs grant of the Petition for
Declaration of Presumptive Death of the absent spouse under
Article 41 of the Family Code. Citing Republic v. Bermudez-
Lorino,5 the appellate court noted that a petition for declaration of
presumptive death for the purpose of remarriage is a summary
judicial proceeding under the Family Code. Hence, the RTC
Decision therein is immediately final and executory upon notice to
the parties, by express provision of Article 247 of the same Code.
The decision is therefore not subject to ordinary appeal, and the
attempt to question it through a Notice of Appeal is unavailing.
We affirm the CA ruling.
Article 41 of the Family Code provides:
Art. 41. A marriage contracted by any person during the
subsistence of a previous marriage shall be null and void, unless
before the celebration of the subsequent marriage, the prior spouse
had been absent for four consecutive years and the spouse present
has a well-founded belief that the absent spouse was already dead.
In case of disappearance where there is danger of death under the
circumstances set forth in the provisions of Article 391 of the Civil
Code, an absence of only two years shall be sufficient.
For the purpose of contracting the subsequent marriage under the
preceding paragraph the spouse present must institute a summary
proceeding as provided in this Code for the declaration of
presumptive death of the absentee, without prejudice to the effect
of reappearance of the absent spouse. (Underscoring supplied.)
Clearly, a petition for declaration of presumptive death of an
absent spouse for the purpose of contracting a subsequent marriage
under Article 41 of the Family Code is a summary proceeding "as
provided for" under the Family Code.
Further, Title XI of the Family Code is entitled "Summary Judicial
Proceedings in the Family Law." Subsumed thereunder are Articles
238 and 247, which provide:
Art. 238. Until modified by the Supreme Court, the procedural
rules in this Title shall apply in all cases provided for in this Code
requiring summary court proceedings. Such cases shall be decided
in an expeditious manner without regard to technical rules.
xxx xxx xxx
Art. 247. The judgment of the court shall be immediately final and
executory.
Further, Article 253 of the Family Code reads:
ART. 253. The foregoing rules in Chapters 2 and 3 hereof shall
likewise govern summary proceedings filed under Articles 41, 51,
69, 73, 96, 124 and 217, insofar as they are applicable.
Taken together, Articles 41, 238, 247 and 253 of the Family Code
provide that since a petition for declaration of presumptive death is
a summary proceeding, the judgment of the court therein shall be
immediately final and executory.
In Republic v. Bermudez-Lorino,6 the Republic likewise appealed
the CAs affirmation of the RTCs grant of respondents Petition
for Declaration of Presumptive Death of her absent spouse. The
Court therein held that it was an error for the Republic to file a
Notice of Appeal when the latter elevated the matter to the CA, to
wit:
In Summary Judicial Proceedings under the Family Code, there is
no reglementary period within which to perfect an appeal,
precisely because judgments rendered thereunder, by express
provision of Section 247, Family Code, supra, are "immediately
final and executory."
xxx xxx xxx
But, if only to set the records straight and for the future guidance
of the bench and the bar, let it be stated that the RTCs decision
dated November 7, 2001, was immediately final and executory
upon notice to the parties. It was erroneous for the OSG to file a
notice of appeal, and for the RTC to give due course thereto. The
Court of Appeals acquired no jurisdiction over the case, and should
have dismissed the appeal outright on that ground.
Justice (later Chief Justice) Artemio Panganiban, who concurred in
the result reached by the Court in Republic v. Bermudez-Lorino,
additionally opined that what the OSG should have filed was a
petition for certiorari under Rule 65, not a petition for review under
Rule 45.
In the present case, the Republic argues that Bermudez-Lorino has
been superseded by the subsequent Decision of the Court in
Republic v. Jomoc,7 issued a few months later.
In Jomoc, the RTC granted respondents Petition for Declaration of
Presumptive Death of her absent husband for the purpose of
remarriage. Petitioner Republic appealed the RTC Decision by
filing a Notice of Appeal. The trial court disapproved the Notice of
Appeal on the ground that, under the Rules of Court, 8 a record on
appeal is required to be filed when appealing special proceedings
cases. The CA affirmed the RTC ruling. In reversing the CA, this
Court clarified that while an action for declaration of death or
absence under Rule 72, Section 1(m), expressly falls under the
category of special proceedings, a petition for declaration of
presumptive death under Article 41 of the Family Code is a
summary proceeding, as provided for by Article 238 of the same
Code. Since its purpose was to enable her to contract a subsequent
valid marriage, petitioners action was a summary proceeding
based on Article 41 of the Family Code, rather than a special
proceeding under Rule 72 of the Rules of Court. Considering that
this action was not a special proceeding, petitioner was not
required to file a record on appeal when it appealed the RTC
Decision to the CA.
We do not agree with the Republics argument that Republic v.
Jomoc superseded our ruling in Republic v. Bermudez-Lorino. As
observed by the CA, the Supreme Court in Jomoc did not expound
on the characteristics of a summary proceeding under the Family
Code. In contrast, the Court in Bermudez-Lorino expressly stated
that its ruling on the impropriety of an ordinary appeal as a vehicle
for questioning the trial courts Decision in a summary proceeding
for declaration of presumptive death under Article 41 of the Family
Code was intended "to set the records straight and for the future
guidance of the bench and the bar."
At any rate, four years after Jomoc, this Court settled the rule
regarding appeal of judgments rendered in summary proceedings
under the Family Code when it ruled in Republic v. Tango:9
This case presents an opportunity for us to settle the rule on appeal
of judgments rendered in summary proceedings under the Family
Code and accordingly, refine our previous decisions thereon.
Article 238 of the Family Code, under Title XI: SUMMARY
JUDICIAL PROCEEDINGS IN THE FAMILY LAW, establishes
the rules that govern summary court proceedings in the Family
Code:
ART. 238. Until modified by the Supreme Court, the procedural
rules in this Title shall apply in all cases provided for in this Code
requiring summary court proceedings. Such cases shall be decided
in an expeditious manner without regard to technical rules.
In turn, Article 253 of the Family Code specifies the cases covered
by the rules in chapters two and three of the same title. It states:
ART. 253. The foregoing rules in Chapters 2 and 3 hereof shall
likewise govern summary proceedings filed under Articles 41, 51,
69, 73, 96, 124 and 217, insofar as they are applicable. (Emphasis
supplied.)
In plain text, Article 247 in Chapter 2 of the same title reads:
ART 247. The judgment of the court shall be immediately final
and executory.
By express provision of law, the judgment of the court in a
summary proceeding shall be immediately final and executory. As
a matter of course, it follows that no appeal can be had of the trial
court's judgment in a summary proceeding for the declaration of
presumptive death of an absent spouse under Article 41 of the
Family Code. It goes without saying, however, that an aggrieved
party may file a petition for certiorari to question abuse of
discretion amounting to lack of jurisdiction. Such petition should
be filed in the Court of Appeals in accordance with the Doctrine of
Hierarchy of Courts. To be sure, even if the Court's original
jurisdiction to issue a writ of certiorari is concurrent with the RTCs
and the Court of Appeals in certain cases, such concurrence does
not sanction an unrestricted freedom of choice of court forum.
From the decision of the Court of Appeals, the losing party may
then file a petition for review on certiorari under Rule 45 of the
Rules of Court with the Supreme Court. This is because the errors
which the court may commit in the exercise of jurisdiction are
merely errors of judgment which are the proper subject of an
appeal.
In sum, under Article 41 of the Family Code, the losing party in a
summary proceeding for the declaration of presumptive death may
file a petition for certiorari with the CA on the ground that, in
rendering judgment thereon, the trial court committed grave abuse
of discretion amounting to lack of jurisdiction. From the decision
of the CA, the aggrieved party may elevate the matter to this Court
via a petition for review on certiorari under Rule 45 of the Rules of
Court.
Evidently then, the CA did not commit any error in dismissing the
Republics Notice of Appeal on the ground that the RTC judgment
on the Petition for Declaration of Presumptive Death of
respondents spouse was immediately final and executory and,
hence, not subject to ordinary appeal.
2. On whether the CA seriously erred in affirming the RTCs grant
of the Petition for Declaration of Presumptive Death under Article
41 of the Family Code based on the evidence that respondent had
presented
Petitioner also assails the RTCs grant of the Petition for
Declaration of Presumptive Death of the absent spouse of
respondent on the ground that she had not adduced the evidence
required to establish a well-founded belief that her absent spouse
was already dead, as expressly required by Article 41 of the Family
Code. Petitioner cites Republic v. Nolasco,10 United States v.
Biasbas11 and Republic v. Court of Appeals and Alegro 12 as
authorities on the subject.
In Nolasco, petitioner Republic sought the reversal of the CAs
affirmation of the RTCs grant of respondents Petition for
Declaration of Presumptive Death of his absent spouse, a British
subject who left their home in the Philippines soon after giving
birth to their son while respondent was on board a vessel working
as a seafarer. Petitioner Republic sought the reversal of the ruling
on the ground that respondent was not able to establish his "well-
founded belief that the absentee is already dead," as required by
Article 41 of the Family Code. In ruling thereon, this Court
recognized that this provision imposes more stringent requirements
than does Article 83 of the Civil Code.13 The Civil Code provision
merely requires either that there be no news that the absentee is
still alive; or that the absentee is generally considered to be dead
and is believed to be so by the spouse present, or is presumed dead
under Articles 390 and 391 of the Civil Code. In comparison, the
Family Code provision prescribes a "well-founded belief" that the
absentee is already dead before a petition for declaration of
presumptive death can be granted. As noted by the Court in that
case, the four requisites for the declaration of presumptive death
under the Family Code are as follows:
1. That the absent spouse has been missing for four
consecutive years, or two consecutive years if the
disappearance occurred where there is danger of death
under the circumstances laid down in Article 391, Civil
Code;
2. That the present spouse wishes to remarry;
3. That the present spouse has a well-founded belief that
the absentee is dead; and
4. That the present spouse files a summary proceeding for
the declaration of presumptive death of the absentee.
In evaluating whether the present spouse has been able to prove the
existence of a "well-founded belief" that the absent spouse is
already dead, the Court in Nolasco cited United States v.
Biasbas,14 which it found to be instructive as to the diligence
required in searching for a missing spouse.
In Biasbas, the Court held that defendant Biasbas failed to exercise
due diligence in ascertaining the whereabouts of his first wife,
considering his admission that that he only had a suspicion that she
was dead, and that the only basis of that suspicion was the fact of
her absence.
Similarly, in Republic v. Court of Appeals and Alegro, petitioner
Republic sought the reversal of the CA ruling affirming the RTCs
grant of the Petition for Declaration of Presumptive Death of the
absent spouse on the ground that the respondent therein had not
been able to prove a "well-founded belief" that his spouse was
already dead. The Court reversed the CA, granted the Petition, and
provided the following criteria for determining the existence of a
"well-founded belief" under Article 41 of the Family Code:
For the purpose of contracting the subsequent marriage under the
preceding paragraph, the spouse present must institute a summary
proceeding as provided in this Code for the declaration of
presumptive death of the absentee, without prejudice to the effect
of reappearance of the absent spouse.
The spouse present is, thus, burdened to prove that his spouse has
been absent and that he has a well-founded belief that the absent
spouse is already dead before the present spouse may contract a
subsequent marriage. The law does not define what is meant by a
well-grounded belief. Cuello Callon writes that "es menester que
su creencia sea firme se funde en motivos racionales."
Belief is a state of the mind or condition prompting the doing of an
overt act.1wphi1 It may be proved by direct evidence or
circumstantial evidence which may tend, even in a slight degree, to
elucidate the inquiry or assist to a determination probably founded
in truth. Any fact or circumstance relating to the character, habits,
conditions, attachments, prosperity and objects of life which
usually control the conduct of men, and are the motives of their
actions, was, so far as it tends to explain or characterize their
disappearance or throw light on their intentions, competence [sic]
evidence on the ultimate question of his death.
The belief of the present spouse must be the result of proper and
honest to goodness inquiries and efforts to ascertain the
whereabouts of the absent spouse and whether the absent spouse is
still alive or is already dead. Whether or not the spouse present
acted on a well-founded belief of death of the absent spouse
depends upon the inquiries to be drawn from a great many
circumstances occurring before and after the disappearance of the
absent spouse and the nature and extent of the inquiries made by
present spouse. (Footnotes omitted, underscoring supplied.)
Applying the foregoing standards to the present case, petitioner
points out that respondent Yolanda did not initiate a diligent search
to locate her absent husband. While her brother Diosdado Cadacio
testified to having inquired about the whereabouts of Cyrus from
the latters relatives, these relatives were not presented to
corroborate Diosdados testimony. In short, respondent was
allegedly not diligent in her search for her husband. Petitioner
argues that if she were, she would have sought information from
the Taiwanese Consular Office or assistance from other
government agencies in Taiwan or the Philippines. She could have
also utilized mass media for this end, but she did not. Worse, she
failed to explain these omissions.
The Republics arguments are well-taken. Nevertheless, we are
constrained to deny the Petition.
The RTC ruling on the issue of whether respondent was able to
prove her "well-founded belief" that her absent spouse was already
dead prior to her filing of the Petition to declare him presumptively
dead is already final and can no longer be modified or reversed.
Indeed, "[n]othing is more settled in law than that when a
judgment becomes final and executory, it becomes immutable and
unalterable. The same may no longer be modified in any respect,
even if the modification is meant to correct what is perceived to be
an erroneous conclusion of fact or law." 15
WHEREFORE, premises considered, the assailed Resolutions of
the Court of Appeals dated 23 January 2009 and 3 April 2009 in
CA-G.R. CV No. 90165 are AFFIRMED.
SO ORDERED.
G.R. No. 182760 April 10, 2013
REPUBLIC OF THE PHILIPPINES, Petitioner,
vs.
ROBERT P. NARCEDA, Respondent.
RESOLUTION
SERENO, CJ.:
1
The present case stems from a Petition for Review filed by the
Republic of the Philippines (petitioner), praying for the reversal of
the Decision2 of the Court of Appeals (CA) dated 14 November
2007 and its subsequent Resolution3dated 29 April 2008. The CA
dismissed the appeal of petitioner, because it supposedly lacked
jurisdiction to decide the matter. It held that the Decision4 of the
Regional Trial Court of Balaoan, La Union (RTC) declaring the
presumptive death of Marina B. Narceda (Marina) was
immediately final and executory, "because by express provision of
law, the judgment of the RTC is not appealable."5
Robert P. Narceda (respondent) married Marina on 22 July 1987.
A reading of the Marriage Contract6 he presented will reveal that at
the time of their wedding, Marina was only 17 years and 4 months
old.
According to respondent, Marina went to Singapore sometime in
1994 and never returned since.7 There was never any
communication between them. He tried to look for her, but he
could not find her. Several years after she left, one of their town
mates in Luna, La Union came home from Singapore and told him
that the last time she saw his wife, the latter was already living
with a Singaporean husband.8
In view of her absence and his desire to remarry,9 respondent filed
with the RTC on 16 May 2002 a Petition for a judicial declaration
of the presumptive death and/or absence of Marina. 10
The RTC granted respondents Petition in a Decision11 dated 5
May 2005, the dispositive portion of which reads:
WHEREFORE, premises considered, the Court hereby renders
judgment declaring the PRESUMPTIVE DEATH of MARINA B.
NARCEDA for all legal intents and purposes of law as provided
for in Rule 131, Sec. 3(w-4), Rules of Court, without prejudice to
the effect of re-appearance of the absent spouse.
SO ORDERED.12
Petitioner, through the Office of the Solicitor General (OSG),
appealed the foregoing Decision to the CA. According to
petitioner, respondent failed to conduct a search for his missing
wife with the diligence required by law and enough to give rise to
a "well-founded" belief that she was dead.13
The CA dismissed the appeal ruling that the hearing of a petition
for the declaration of presumptive death is a summary proceeding
under the Family Code and is thus governed by Title XI
thereof.14 Article 247 of the Family Code provides that the
judgment of the trial court in summary court proceedings shall be
immediately final and executory. The dispositive portion of the CA
Decision reads:
WHEREFORE, premises considered, the instant appeal is hereby
DISMISSED OUTRIGHT on the GROUND OF LACK OF
JURISDICTION, and this Court hereby reiterates the fact that the
RTC Decision is immediately final and executory because by
express provision of law, the judgment of the RTC is not
appealable.
SO ORDERED.15
The OSG filed a Motion for Reconsideration, but it was likewise
denied through the CAs 29 April 2008 Resolution. 16
Petitioner now comes to this Court, through Rule 45, alleging as
follows:
1. The Court of Appeals erred in dismissing the Petition
on the ground of lack of jurisdiction.17
2. Respondent has failed to establish a well-founded
belief that his absentee spouse is dead.18
The OSG insists that the CA had jurisdiction to entertain the
Petition, because respondent had failed to establish a well-founded
belief that his absentee spouse was dead.19 The OSG cites Republic
v. CA (Jomoc),20 in which this Court ruled:
By the trial courts citation of Article 41 of the Family Code, it is
gathered that the petition of Apolinaria Jomoc to have her absent
spouse declared presumptively dead had for its purpose her desire
to contract a valid subsequent marriage. Ergo, the petition for that
purpose is a "summary proceeding," following above-quoted Art.
41, paragraph 2 of the Family Code.
xxxx
there is no doubt that the petition of Apolinaria Jomoc required,
and is, therefore, a summary proceeding under the Family Code,
not a special proceeding under the Revised Rules of Court appeal
for which calls for the filing of a Record on Appeal. It being a
summary ordinary proceeding, the filing of a Notice of Appeal
from the trial court's order sufficed. (Emphasis in the original)21
The CA points out, however, that because the resolution of a
petition for the declaration of presumptive death requires a
summary proceeding, the procedural rules to be followed are those
enumerated in Title XI of the Family Code. Articles 238, 247, and
253 thereof read:
Art. 238. Until modified by the Supreme Court, the procedural
rules provided for in this Title shall apply as regards separation in
fact between husband and wife, abandonment by one of the other,
and incidents involving parental authority.
xxxx
Art. 247. The judgment of the court shall be immediately final and
executory.
xxxx
ART. 253. The foregoing rules in Chapters 2 and 3 hereof shall
likewise govern summary proceedings filed under Articles 41, 51,
69, 73, 96, 124 and 217, insofar as they are applicable.
The appellate court argues that there is no reglementary period
within which to perfect an appeal in summary judicial proceedings
under the Family Code, because the judgments rendered
thereunder, by express provision of Article 247, are immediately
final and executory upon notice to the parties.22 In support of its
stance, it cited Republic v. Bermudez-Lorino (Bermudez-
Lorino),23 in which this Court held:
In Summary Judicial Proceedings under the Family Code, there is
no reglementary period within which to perfect an appeal,
precisely because judgments rendered thereunder, by express
provision of Section 247, Family Code, supra, are "immediately
final and executory." It was erroneous, therefore, on the part of the
RTC to give due course to the Republic's appeal and order the
transmittal of the entire records of the case to the Court of Appeals.
An appellate court acquires no jurisdiction to review a judgment
which, by express provision of law, is immediately final and
executory. As we have said in Veloria vs. Comelec, "the right to
appeal is not a natural right nor is it a part of due process, for it is
merely a statutory privilege." Since, by express mandate of Article
247 of the Family Code, all judgments rendered in summary
judicial proceedings in Family Law are "immediately final and
executory," the right to appeal was not granted to any of the parties
therein. The Republic of the Philippines, as oppositor in the
petition for declaration of presumptive death, should not be treated
differently. It had no right to appeal the RTC decision of
November 7, 2001.24
We agree with the CA.
Article 41 of the Family Code provides:
Art. 41. A marriage contracted by any person during the
subsistence of a previous marriage shall be null and void, unless
before the celebration of the subsequent marriage, the prior spouse
had been absent for four consecutive years and the spouse present
has a well-founded belief that the absent spouse was already dead.
In case of disappearance where there is danger of death under the
circumstances set forth in the provisions of Article 391 of the Civil
Code, an absence of only two years shall be sufficient.
For the purpose of contracting the subsequent marriage under the
preceding paragraph, the spouse present must institute a summary
proceeding as provided in this Code for the declaration of
presumptive death of the absentee, without prejudice to the effect
of reappearance of the absent spouse.
This Court has already declared in Republic v. Granda25 that
Jomoc cannot be interpreted as having superseded our
pronouncements in Bermudez-Lorino, because Jomoc does not
expound on the characteristics of a summary proceeding under the
Family Code; Bermudez-Lorino, however, squarely touches upon
the impropriety of an ordinary appeal as a vehicle for questioning a
trial courts decision in a summary proceeding for the declaration
of presumptive death under Article 41 of the Family Code. 26
As explained in Republic v. Tango,27 the remedy of a losing party
in a summary proceeding is not an ordinary appeal, but a petition
for certiorari, to wit:
By express provision of law, the judgment of the court in a
summary proceeding shall be immediately final and executory. As
a matter of course, it follows that no appeal can be had of the trial
court's judgment in a summary proceeding for the declaration of
presumptive death of an absent spouse under Article 41 of the
Family Code. It goes without saying, however, that an aggrieved
party may file a petition for certiorari to question abuse of
discretion amounting to lack of jurisdiction. Such petition should
be filed in the Court of Appeals in accordance with the Doctrine of
Hierarchy of Courts. To be sure, even if the Court's original
jurisdiction to issue a writ of certiorari is concurrent with the RTCs
and the Court of Appeals in certain cases, such concurrence does
not sanction an unrestricted freedom of choice of court forum.
From the decision of the Court of Appeals, the losing party may
then file a petition for review on certiorari under Rule 45 of the
Rules of Court with the Supreme Court. This is because the errors
which the court may commit in the exercise of jurisdiction are
merely errors of judgment which are the proper subject of an
appeal.
When the OSG filed its notice of appeal under Rule 42, it availed
itself of the wrong remedy.1wphi1 As a result, the running of the
period for filing of a Petition for Certiorari continued to run and
was not tolled. Upon lapse of that period, the Decision of the RTC
could no longer be questioned. Consequently, petitioner's
contention that respondent has failed to establish a well-founded
belief that his absentee spouse is dead28 may no longer be
entertained by this Court.
WHEREFORE, the instant Petition is DENIED. The 14 November
2007 Decision of the Court Appeals and its subsequent 29 April
2008 Resolution in CA-G.R. CV No. 85704, dismissing the appeal
of the Republic of the Philippines are AFFIRMED.
The Decision of the Regional Trial Court of Balaoan, La Union in
Special Proceeding No. 622 dated 5 May 2005 declaring the
presumptive death of Marina B. Narceda is hereby declared
FINAL and EXECUTORY. SO ORDERED.
G.R. No. 184621 December 10, 2013
REPUBLIC OF THE PHILIPPINES, Petitioner,
vs.
MARIA FE ESPINOSA CANTOR, Respondent.
DECISION
BRION, J.:
The petition for review on certiorari1 before us assails the
decision2 dated August 27, 2008 of the Court of Appeals (CA) in
CA-G.R. SP No. 01558-MIN which affirmed be order3 dated
December 15, 2006 of the Regional Trial Court (RTC), Branch 25,
Koronadal City, South Cotabato, in SP Proc. Case No. 313-25,
declaring Jerry F. Cantor, respondent Maria Fe Espinosa Cantors
husband, presumptively dead under Article 41 of the Family Code.
The Factual Antecedents
The respondent and Jerry were married on September 20, 1997.
They lived together as husband and wife in their conjugal dwelling
in Agan Homes, Koronadal City, South Cotabato. Sometime in
January 1998, the couple had a violent quarrel brought about by:
(1) the respondents inability to reach "sexual climax" whenever
she and Jerry would have intimate moments; and (2) Jerrys
expression of animosity toward the respondents father.
After their quarrel, Jerry left their conjugal dwelling and this was
the last time that the respondent ever saw him. Since then, she had
not seen, communicated nor heard anything from Jerry or about his
whereabouts.
On May 21, 2002, or more than four (4) years from the time of
Jerrys disappearance, the respondent filed before the RTC a
petition4for her husbands declaration of presumptive death,
docketed as SP Proc. Case No. 313-25. She claimed that she had a
well-founded belief that Jerry was already dead. She alleged that
she had inquired from her mother-in-law, her brothers-in-law, her
sisters-in-law, as well as her neighbors and friends, but to no avail.
In the hopes of finding Jerry, she also allegedly made it a point to
check the patients directory whenever she went to a hospital. All
these earnest efforts, the respondent claimed, proved futile,
prompting her to file the petition in court.
The Ruling of the RTC
After due proceedings, the RTC issued an order granting the
respondents petition and declaring Jerry presumptively dead. It
concluded that the respondent had a well-founded belief that her
husband was already dead since more than four (4) years had
passed without the former receiving any news about the latter or
his whereabouts. The dispositive portion of the order dated
December 15, 2006 reads:
WHEREFORE, the Court hereby declares, as it hereby declared
that respondent Jerry F. Cantor is presumptively dead pursuant to
Article 41 of the Family Code of the Philippines without prejudice
to the effect of the reappearance of the absent spouse Jerry F.
Cantor.5
The Ruling of the CA
The case reached the CA through a petition for certiorari6filed by
the petitioner, Republic of the Philippines, through the Office of
the Solicitor General (OSG). In its August 27, 2008 decision, the
CA dismissed the petitioners petition, finding no grave abuse of
discretion on the RTCs part, and, accordingly, fully affirmed the
latters order, thus:
WHEREFORE, premises foregoing (sic), the instant petition is
hereby DISMISSED and the assailed Order dated December 15,
2006 declaring Jerry F. Cantor presumptively dead is hereby
AFFIRMED in toto.7
The petitioner brought the matter via a Rule 45 petition before this
Court. The Petition The petitioner contends that certiorari lies to
challenge the decisions, judgments or final orders of trial courts in
petitions for declaration of presumptive death of an absent spouse
under Rule 41 of the Family Code. It maintains that although
judgments of trial courts in summary judicial proceedings,
including presumptive death cases, are deemed immediately final
and executory (hence, not appeal able under Article 247 of the
Family Code), this rule does not mean that they are not subject to
review on certiorari.
The petitioner also posits that the respondent did not have a well-
founded belief to justify the declaration of her husbands
presumptive death. It claims that the respondent failed to conduct
the requisite diligent search for her missing husband. Likewise, the
petitioner invites this Courts attention to the attendant
circumstances surrounding the case, particularly, the degree of
search conducted and the respondents resultant failure to meet the
strict standard under Article 41 of the Family Code.
The Issues
The petition poses to us the following issues:
(1) Whether certiorarilies to challenge the decisions,
judgments or final orders of trial courts in petitions for
declaration of presumptive death of an absent spouse
under Article 41 of the Family Code; and
(2) Whether the respondent had a well-founded belief that
Jerry is already dead.
The Courts Ruling
We grant the petition.
a. On the Issue of the Propriety of Certiorari as a Remedy
Courts Judgment in the Judicial
Proceedings for Declaration of
Presumptive Death Is Final and
Executory, Hence, Unappealable
The Family Code was explicit that the courts judgment in
summary proceedings, such as the declaration of presumptive
death of an absent spouse under Article 41 of the Family Code,
shall be immediately final and executory.
Article 41,in relation to Article 247, of the Family Code provides:
Art. 41. A marriage contracted by any person during subsistence of
a previous marriage shall be null and void, unless before the
celebration of the subsequent marriage, the prior spouse had been
absent for four consecutive years and the spouse present has a
well-founded belief that the absent spouse was already dead. In
case of disappearance where there is danger of death under the
circumstances set forth in the provisions of Article 391 of the Civil
Code, an absence of only two years shall be sufficient.
For the purpose of contracting the subsequent marriage under the
preceding paragraph the spouse present must institute a summary
proceeding as provided in this Code for the declaration of
presumptive death of the absentee, without prejudice to the effect
of reappearance of the absent spouse.
Art. 247. The judgment of the court shall be immediately final and
executory. [underscores ours]
With the judgment being final, it necessarily follows that it is no
longer subject to an appeal, the dispositions and conclusions
therein having become immutable and unalterable not only as
against the parties but even as against the courts.8 Modification of
the courts ruling, no matter how erroneous is no longer
permissible. The final and executory nature of this summary
proceeding thus prohibits the resort to appeal. As explained
in Republic of the Phils. v. Bermudez-Lorino,9 the right to appeal is
not granted to parties because of the express mandate of Article
247 of the Family Code, to wit:
In Summary Judicial Proceedings under the Family Code, there is
no reglementary period within which to perfect an appeal,
precisely because judgments rendered thereunder, by express
provision of [Article] 247, Family Code, supra, are "immediately
final and executory." It was erroneous, therefore, on the part of the
RTCto give due course to the Republics appeal and order the
transmittal of the entire records of the case to the Court of Appeals.
An appellate court acquires no jurisdiction to review a judgment
which, by express provision of law, is immediately final and
executory. As we have said in Veloria vs. Comelec, "the right to
appeal is not a natural right nor is it a part of due process, for it is
merely a statutory privilege." Since, by express mandate of Article
247 of the Family Code, all judgments rendered in summary
judicial proceedings in Family Law are "immediately final and
executory," the right to appeal was not granted to any of the parties
therein. The Republic of the Philippines, as oppositor in the
petition for declaration of presumptive death, should not be treated
differently. It had no right to appeal the RTC decision of
November 7, 2001. [emphases ours; italics supplied]
Certiorari Lies to Challenge the
Decisions, Judgments or Final
Orders of Trial Courts in a Summary
Proceeding for the Declaration of Presumptive
Death Under the Family Code
A losing party in this proceeding, however, is not entirely left
without a remedy. While jurisprudence tells us that no appeal can
be made from the trial court's judgment, an aggrieved party may,
nevertheless, file a petition for certiorari under Rule 65 of the
Rules of Court to question any abuse of discretion amounting to
lack or excess of jurisdiction that transpired.
As held in Delos Santos v. Rodriguez, et al.,10 the fact that a
decision has become final does not automatically negate the
original action of the CA to issue certiorari, prohibition and
mandamus in connection with orders or processes issued by the
trial court. Certiorari may be availed of where a court has acted
without or in excess of jurisdiction or with grave abuse of
discretion, and where the ordinary remedy of appeal is not
available. Such a procedure finds support in the case of Republic v.
Tango,11 wherein we held that:
This case presents an opportunity for us to settle the rule on appeal
of judgments rendered in summary proceedings under the Family
Code and accordingly, refine our previous decisions thereon.
Article 238 of the Family Code, under Title XI: SUMMARY
JUDICIAL PROCEEDINGS IN THE FAMILY LAW, establishes
the rules that govern summary court proceedings in the Family
Code:
"ART. 238. Until modified by the Supreme Court, the procedural
rules in this Title shall apply in all cases provided for in this Code
requiring summary court proceedings. Such cases shall be decided
in an expeditious manner without regard to technical rules."
In turn, Article 253 of the Family Code specifies the cases covered
by the rules in chapters two and three of the same title. It states:
"ART. 253. The foregoing rules in Chapters 2and 3 hereof shall
likewise govern summary proceedings filed under Articles 41, 51,
69, 73, 96, 124 and 217, insofar as they are applicable."(Emphasis
supplied.)
In plain text, Article 247 in Chapter 2 of the same title reads:
"ART.247. The judgment of the court shall be immediately final
and executory."
By express provision of law, the judgment of the court in a
summary proceeding shall be immediately final and executory. As
a matter of course, it follows that no appeal can be had of the trial
court's judgment ina summary proceeding for the declaration of
presumptive death of an absent spouse under Article 41 of the
Family Code. It goes without saying, however, that an aggrieved
party may file a petition for certiorari to question abuse of
discretion amounting to lack of jurisdiction. Such petition should
be filed in the Court of Appeals in accordance with the Doctrine of
Hierarchy of Courts. To be sure, even if the Court's original
jurisdiction to issue a writ of certiorari is concurrent with the RTCs
and the Court of Appeals in certain cases, such concurrence does
not sanction an unrestricted freedom of choice of court forum.
[emphasis ours]
Viewed in this light, we find that the petitioners resort
to certiorari under Rule 65 of the Rules of Court to question the
RTCs order declaring Jerry presumptively dead was proper.
b. On the Issue of the Existence of Well-Founded Belief
The Essential Requisites for the
Declaration of Presumptive Death
Under Article 41 of the Family Code
Before a judicial declaration of presumptive death can be obtained,
it must be shown that the prior spouse had been absent for four
consecutive years and the present spouse had a well-founded belief
that the prior spouse was already dead. Under Article 41 of the
Family Code, there are four (4) essential requisites for the
declaration of presumptive death:
1. That the absent spouse has been missing for four
consecutive years, or two consecutive years if the
disappearance occurred where there is danger of death
under the circumstances laid down in Article 391, Civil
Code;
2. That the present spouse wishes to remarry;
3. That the present spouse has a well-founded belief that
the absentee is dead; and
4. That the present spouse files a summary proceeding for
the declaration of presumptive death of the absentee. 12
The Present Spouse Has the Burden
of Proof to Show that All the
Requisites Under Article 41 of the
Family Code Are Present
The burden of proof rests on the present spouse to show that all the
requisites under Article 41 of the Family Code are present. Since it
is the present spouse who, for purposes of declaration of
presumptive death, substantially asserts the affirmative of the
issue, it stands to reason that the burden of proof lies with him/her.
He who alleges a fact has the burden of proving it and mere
allegation is not evidence.13
Declaration of Presumptive Death
Under Article 41 of the Family Code
Imposes a Stricter Standard
Notably, Article 41 of the Family Code, compared to the old
provision of the Civil Code which it superseded, imposes a stricter
standard. It requires a "well-founded belief " that the absentee is
already dead before a petition for declaration of presumptive death
can be granted. We have had occasion to make the same
observation in Republic v. Nolasco,14 where we noted the crucial
differences between Article 41 of the Family Code and Article 83
of the Civil Code, to wit:
Under Article 41, the time required for the presumption to arise has
been shortened to four (4) years; however, there is need for a
judicial declaration of presumptive death to enable the spouse
present to remarry. Also, Article 41 of the Family Code imposes a
stricter standard than the Civil Code: Article 83 of the Civil Code
merely requires either that there be no news that such absentee is
still alive; or the absentee is generally considered to be dead and
believed to be so by the spouse present, or is presumed dead under
Articles 390 and 391 of the Civil Code. The Family Code, upon the
other hand, prescribes as "well founded belief" that the absentee is
already dead before a petition for declaration of presumptive death
can be granted.
Thus, mere absence of the spouse (even for such period required
by the law), lack of any news that such absentee is still alive,
failure to communicate or general presumption of absence under
the Civil Code would not suffice. This conclusion proceeds from
the premise that Article 41 of the Family Code places upon the
present spouse the burden of proving the additional and more
stringent requirement of "well-founded belief" which can only be
discharged upon a showing of proper and honest-to-goodness
inquiries and efforts to ascertain not only the absent spouses
whereabouts but, more importantly, that the absent spouse is still
alive or is already dead.15
The Requirement of Well-Founded Belief
The law did not define what is meant by "well-founded belief." It
depends upon the circumstances of each particular case. Its
determination, so to speak, remains on a case-to-case basis. To be
able to comply with this requirement, the present spouse must
prove that his/her belief was the result of diligent and reasonable
efforts and inquiries to locate the absent spouse and that based on
these efforts and inquiries, he/she believes that under the
circumstances, the absent spouseis already dead. It requires
exertion of active effort (not a mere passive one).
To illustrate this degree of "diligent and reasonable search"
required by the law, an analysis of the following relevant cases is
warranted:
i. Republic of the Philippines v. Court of Appeals (Tenth Div.)16
In Republic of the Philippines v. Court of Appeals (Tenth
Div.),17 the Court ruled that the present spouse failed to prove that
he had a well-founded belief that his absent spouse was already
dead before he filed his petition. His efforts to locate his absent
wife allegedly consisted of the following:
(1) He went to his in-laws house to look for her;
(2) He sought the barangay captains aid to locate her;
(3) He went to her friends houses to find her and inquired
about her whereabouts among his friends;
(4) He went to Manila and worked as a part-time taxi
driver to look for her in malls during his free time;
(5) He went back to Catbalogan and again looked for her;
and
(6) He reported her disappearance to the local police
station and to the NBI.
Despite these alleged "earnest efforts," the Court still ruled against
the present spouse. The Court found that he failed to present the
persons from whom he allegedly made inquiries and only reported
his wifes absence after the OSG filed its notice to dismiss his
petition in the RTC.
The Court also provided the following criteria for determining the
existence of a "well-founded belief" under Article 41 of the Family
Code:
The belief of the present spouse must be the result of proper and
honest to goodness inquiries and efforts to ascertain the
whereabouts of the absent spouse and whether the absent spouse is
still alive or is already dead. Whether or not the spouse present
acted on a well-founded belief of death of the absent spouse
depends upon the inquiries to be drawn from a great many
circumstances occurring before and after the disappearance of the
absent spouse and the nature and extent of the inquiries made by
[the] present spouse.18
ii. Republic v. Granada19
Similarly in Granada, the Court ruled that the absent spouse failed
to prove her "well-founded belief" that her absent spouse was
already dead prior to her filing of the petition. In this case, the
present spouse alleged that her brother had made inquiries from
their relatives regarding the absent spouses whereabouts. The
present spouse did not report to the police nor seek the aid of the
mass media. Applying the standards in Republic of the Philippines
v. Court of Appeals (Tenth Div.),20 the Court ruled against the
present spouse, as follows:
Applying the foregoing standards to the present case, petitioner
points out that respondent Yolanda did not initiate a diligent search
to locate her absent husband. While her brother Diosdado Cadacio
testified to having inquiredabout the whereabouts of Cyrus from
the latters relatives, these relatives were not presented to
corroborate Diosdados testimony. In short, respondent was
allegedly not diligent in her search for her husband. Petitioner
argues that if she were, she would have sought information from
the Taiwanese Consular Office or assistance from other
government agencies in Taiwan or the Philippines. She could have
also utilized mass media for this end, but she did not. Worse, she
failed to explain these omissions.
iii.Republic v. Nolasco21
In Nolasco, the present spouse filed a petition for declaration of
presumptive death of his wife, who had been missing for more than
four years. He testified that his efforts to find her consisted of:
(1) Searching for her whenever his ship docked in
England;
(2) Sending her letters which were all returned to him;
and
(3) Inquiring from their friends regarding her
whereabouts, which all proved fruitless. The Court ruled
that the present spouses investigations were too sketchy
to form a basis that his wife was already dead and ruled
that the pieces of evidence only proved that his wife had
chosen not to communicate with their common
acquaintances, and not that she was dead.
iv.The present case
In the case at bar, the respondents "well-founded belief" was
anchored on her alleged "earnest efforts" to locate Jerry, which
consisted of the following:
(1) She made inquiries about Jerrys whereabouts from
her in-laws, neighbors and friends; and
(2) Whenever she went to a hospital, she saw to it that she
looked through the patients directory, hoping to find
Jerry.
These efforts, however, fell short of the "stringent standard" and
degree of diligence required by jurisprudence for the following
reasons:
First, the respondent did not actively look for her missing
husband.1wphi1 It can be inferred from the records that her
hospital visits and her consequent checking of the patients
directory therein were unintentional. She did not purposely
undertake a diligent search for her husband as her hospital visits
were not planned nor primarily directed to look for him. This Court
thus considers these attempts insufficient to engender a belief that
her husband is dead.
Second, she did not report Jerrys absence to the police nor did she
seek the aid of the authorities to look for him. While a finding of
well-founded belief varies with the nature of the situation in which
the present spouse is placed, under present conditions, we find it
proper and prudent for a present spouse, whose spouse had been
missing, to seek the aid of the authorities or, at the very least,
report his/her absence to the police.
Third, she did not present as witnesses Jerrys relatives or their
neighbors and friends, who can corroborate her efforts to locate
Jerry. Worse, these persons, from whom she allegedly made
inquiries, were not even named. As held in Nolasco, the present
spouses bare assertion that he inquired from his friends about his
absent spouses whereabouts is insufficient as the names of the
friends from whom he made inquiries were not identified in the
testimony nor presented as witnesses.
Lastly, there was no other corroborative evidence to support the
respondents claim that she conducted a diligent search. Neither
was there supporting evidence proving that she had a well-founded
belief other than her bare claims that she inquired from her friends
and in-laws about her husbands whereabouts. In sum, the Court is
of the view that the respondent merely engaged in a "passive
search" where she relied on uncorroborated inquiries from her in-
laws, neighbors and friends. She failed to conduct a diligent search
because her alleged efforts are insufficient to form a well-founded
belief that her husband was already dead. As held in Republic of
the Philippines v. Court of Appeals (Tenth Div.),22 "[w]hether or
not the spouse present acted on a well-founded belief of death of
the absent spouse depends upon the inquiries to be drawn from a
great many circumstances occurring before and after the
disappearance of the absent spouse and the natureand extent of the
inquiries made by [the] present spouse."
Strict Standard Approach Is
Consistent with the States Policy
to Protect and Strengthen Marriage
In the above-cited cases, the Court, fully aware of the possible
collusion of spouses in nullifying their marriage, has consistently
applied the "strictstandard" approach. This is to ensure that a
petition for declaration of presumptive death under Article 41 of
the Family Code is not used as a tool to conveniently circumvent
the laws. Courts should never allow procedural shortcuts and
should ensure that the stricter standard required by the Family
Code is met. In Republic of the Philippines v. Court of Appeals
(Tenth Div.),23 we emphasized that:
In view of the summary nature of proceedings under Article 41 of
the Family Code for the declaration of presumptive death of ones
spouse, the degree of due diligence set by this Honorable Court in
the above-mentioned cases in locating the whereabouts of a
missing spouse must be strictly complied with. There have been
times when Article 41 of the Family Code had been resorted to by
parties wishing to remarry knowing fully well that their alleged
missing spouses are alive and well. It is even possible that those
who cannot have their marriages xxx declared null and void under
Article 36 of the Family Code resort to Article 41 of the Family
Code for relief because of the xxx summary nature of its
proceedings.
The application of this stricter standard becomes even more
imperative if we consider the States policy to protect and
strengthen the institution of marriage.24 Since marriage serves as
the familys foundation25 and since it is the states policy to protect
and strengthen the family as a basic social institution,26 marriage
should not be permitted to be dissolved at the whim of the parties.
In interpreting and applying Article 41, this is the underlying
rationale to uphold the sanctity of marriage. Arroyo, Jr.v. Court of
Appeals27 reflected this sentiment when we stressed:
[The]protection of the basic social institutions of marriage and the
family in the preservation of which the State has the strongest
interest; the public policy here involved is of the most fundamental
kind. In Article II, Section 12 of the Constitution there is set forth
the following basic state policy:
The State recognizes the sanctity of family life and shall protect
and strengthen the family as a basic autonomous social institution.
Strict Standard Prescribed Under
Article 41 of the Family Code
Is for the Present Spouses Benefit
The requisite judicial declaration of presumptive death of the
absent spouse (and consequently, the application of a stringent
standard for its issuance) is also for the present spouse's benefit. It
is intended to protect him/her from a criminal prosecution of
bigamy under Article 349 of the Revised Penal Code which might
come into play if he/she would prematurely remarry sans the
court's declaration.
Upon the issuance of the decision declaring his/her absent spouse
presumptively dead, the present spouse's good faith in contracting
a second marriage is effectively established. The decision of the
competent court constitutes sufficient proof of his/her good faith
and his/her criminal intent in case of remarriage is effectively
negated.28 Thus, for purposes of remarriage, it is necessary to
strictly comply with the stringent standard and have the absent
spouse judicially declared presumptively dead.
Final Word
As a final word, it has not escaped this Court's attention that the
strict standard required in petitions for declaration of presumptive
death has not been fully observed by the lower courts. We need
only to cite the instances when this Court, on review, has
consistently ruled on the sanctity of marriage and reiterated that
anything less than the use of the strict standard necessitates a
denial. To rectify this situation, lower courts are now expressly put
on notice of the strict standard this Court requires in cases under
Article 41 of the Family Code.
WHEREFORE, in view of the foregoing, the assailed decision
dated August 27, 2008 of the Court of Appeals, which affirmed the
order dated December 15, 2006 of the Regional Trial Court,
Branch 25, Koronadal City, South Cotabato, declaring Jerry F.
Cantor presumptively dead is hereby REVERSED and SET
ASIDE.
SO ORDERED.
G.R. No. 187061, October 08, 2014
CELERINA J. SANTOS, Petitioner, v. RICARDO T.
SANTOS, Respondent.
DECISION
LEONEN, J.:
The proper remedy for a judicial declaration of presumptive death
obtained by extrinsic fraud is an action to annul the judgment. An
affidavit of reappearance is not the proper remedy when the person
declared presumptively dead has never been absent.
This is a petition for review on certiorari filed by Celerina J.
Santos, assailing the Court of Appeals' resolutions dated November
28, 2008 and March 5, 2009. The Court of Appeals dismissed the
petition for the annulment of the trial court's judgment declaring
her presumptively dead.
On July 27, 2007, the Regional Trial Court of Tarlac City declared
petitioner Celerina J. Santos (Celerina) presumptively dead after
her husband, respondent Ricardo T. Santos (Ricardo), had filed a
petition for declaration of absence or presumptive death for the
purpose of remarriage on June 15, 2007.1 Ricardo remarried on
September 17, 2008.2chanrobleslaw
In his petition for declaration of absence or presumptive death,
Ricardo alleged that he and Celerina rented an apartment
somewhere in San Juan, Metro Manila; after they had gotten
married on June 18, 1980.3 After a year, they moved to Tarlac
City. They were engaged in the buy and sell
business.4chanrobleslaw
Ricardo claimed that their business did not prosper.5 As a result,
Celerina convinced him to allow her to work as a domestic helper
in Hong Kong.6 Ricardo initially refused but because of Celerina's
insistence, he allowed her to work abroad.7 She allegedly applied
in an employment agency in Ermita, Manila, in February 1995.
She left Tarlac two months after and was never heard from
again.8chanrobleslaw
Ricardo further alleged that he exerted efforts to locate
Celerina.9 He went to Celerina's parents in Cubao, Quezon City,
but they, too, did not know their daughter's whereabouts. 10 He also
inquired about her from other relatives and friends, but no one
gave him any information.11chanrobleslaw
Ricardo claimed that it was almost 12 years from the date of his
Regional Trial Court petition since Celerina left. He believed that
she had passed away.12chanrobleslaw
Celerina claimed that she learned about Ricardo's petition only
sometime in October 2008 when she could no longer avail the
remedies of new trial, appeal, petition for relief, or other
appropriate remedies.13chanrobleslaw
On November 17, 2008, Celerina filed a petition for annulment of
judgment14 before the Court of Appeals on the grounds of extrinsic
fraud and lack of jurisdiction. She argued that she was deprived her
day in court when Ricardo, despite his knowledge of her true
residence, misrepresented to the court that she was a resident of
Tarlac City.15 According to Celerina, her true residence was in
Neptune Extension, Congressional Avenue, Quezon City.16 This
residence had been her and Ricardo's conjugal dwelling since 1989
until Ricardo left in May 2008.17 As a result of Ricardo's
misrepresentation, she was deprived of any notice of and
opportunity to oppose the petition declaring her presumptively
dead.18chanrobleslaw
Celerina claimed that she never resided in Tarlac. She also never
left and worked as a domestic helper abroad.20 Neither did she go
to an employment agency in February 1995.21 She also claimed
that it was not true that she had been absent for 12 years. Ricardo
was aware that she never left their conjugal dwelling in Quezon
City.22 It was he who left the conjugal dwelling in May 2008 to
cohabit with another woman.23 Celerina referred to a joint affidavit
executed by their children to support her contention that Ricardo
made false allegations in his petition.24chanrobleslaw
Celerina also argued that the court did not acquire jurisdiction over
Ricardo's petition because it had never been published in a
newspaper.25 She added that the Office of the Solicitor General and
the Provincial Prosecutor's Office were not furnished copies of
Ricardo's petition.26chanrobleslaw
The Court of Appeals issued the resolution dated November 28,
2008, dismissing Celerina's petition for annulment of judgment for
being a wrong mode of remedy.27 According to the Court of
Appeals, the proper remedy was to file a sworn statement before
the civil registry, declaring her reappearance in accordance with
Article 42 of the Family Code.28chanrobleslaw
Celerina filed a motion for reconsideration of the Court of Appeals'
resolution dated November 28, 2008.29 The Court of Appeals
denied the motion for reconsideration in the resolution dated
March 5, 2009.30chanrobleslaw
Hence, this petition was filed.
The issue for resolution is whether the Court of Appeals erred in
dismissing Celerina's petition for annulment of judgment for being
a wrong remedy for a fraudulently obtained judgment declaring
presumptive death.
Celerina argued that filing an affidavit of reappearance under
Article 42 of the Family Code is appropriate only when the spouse
is actually absent and the spouse seeking the declaration of
presumptive death actually has a well-founded belief of the
spouse's death.31 She added that it would be inappropriate to file an
affidavit of reappearance if she did not disappear in the first
place.32 She insisted that an action for annulment of judgment is
proper when the declaration of presumptive death is obtained
fraudulently.33chanrobleslaw
Celerina further argued that filing an affidavit of reappearance
under Article 42 of the Family Code would not be a sufficient
remedy because it would not nullify the legal effects of the
judgment declaring her presumptive death.34chanrobleslaw
In Ricardo's comment,35 he argued that a petition for annulment of
judgment is not the proper remedy because it cannot be availed
when there are other remedies available. Celerina could always file
an affidavit of reappearance to terminate the subsequent marriage.
Ricardo iterated the Court of Appeals' ruling that the remedy
afforded to Celerina under Article 42 of the Family Code is the
appropriate remedy.
The petition is meritorious.
Annulment of judgment is the remedy when the Regional Trial
Court's judgment, order, or resolution has become final, and the
"remedies of new trial, appeal, petition for relief (or other
appropriate remedies) are no longer available through no fault of
the petitioner."36chanrobleslaw
The grounds for annulment of judgment are extrinsic fraud and
lack of jurisdiction.37 This court defined extrinsic fraud
in Stilianopulos v. City of Legaspi:38chanrobleslaw
For fraud to become a basis for annulment of judgment, it has to be
extrinsic or actual. It is intrinsic when the fraudulent acts pertain to
an issue involved in the original action or where the acts
constituting the fraud were or could have been litigated, It is
extrinsic or collateral when a litigant commits acts outside of the
trial which prevents a parly from having a real contest, or from
presenting all of his case, such that there is no fair submission of
the controversy.39 (Emphasis supplied)
Celerina alleged in her petition for annulment of judgment that
there was fraud when Ricardo deliberately made false allegations
in the court with respect to her residence.40 Ricardo also falsely
claimed that she was absent for 12 years. There was also no
publication of the notice of hearing of Ricardo's petition in a
newspaper of general circulation.41 Celerina claimed that because
of these, she was deprived of notice and opportunity to oppose
Ricardo's petition to declare her presumptively
dead.42chanrobleslaw
Celerina alleged that all the facts supporting Ricardo's petition for
declaration of presumptive death were false.43 Celerina further
claimed that the court did not acquire jurisdiction because the
Office of the Solicitor General and the Provincial Prosecutor's
Office were not given copies of Ricardo's petition.44chanrobleslaw
These are allegations of extrinsic fraud and lack of jurisdiction.
Celerina alleged in her petition with the Court of Appeals
sufficient ground/s for annulment of judgment.
Celerina filed her petition for annulment of judgment45 on
November 17, 2008. This was less than two years from the July 27,
2007 decision declaring her presumptively dead and about a month
from her discovery of the decision in October 2008. The petition
was, therefore, filed within the four-year period allowed by law in
case of extrinsic fraud, and before the action is barred by laches,
which is the period allowed in case of lack of
jurisdiction.46chanrobleslaw
There was also no other sufficient remedy available to Celerina at
the time of her discovery of the fraud perpetrated on her.
The choice of remedy is important because remedies carry with
them certain admissions, presumptions, and conditions.
The Family Code provides that it is the proof of absence of a
spouse for four consecutive years, coupled with a well-founded
belief by the present spouse that the absent spouse is already dead,
that constitutes a justification for a second marriage during the
subsistence of another marriage.47chanrobleslaw
The Family Code also provides that the second marriage is in
danger of being terminated by the presumptively dead spouse
when he or she reappears. Thus:chanRoblesvirtualLawlibrary
Article 42. The subsequent marriage referred to in the preceding
Article shall be automatically terminated by the recording of the
affidavit of reappearance of the absent spouse, unless there is a
judgment annulling the previous marriage or declaring it void ab
initio.
A sworn statement of the fact and circumstances of reappearance
shall be recorded in the civil registry of the residence of the parties
to the subsequent marriage at the instance of any interested person,
with due notice to the spouses of the subsequent marriage and
without prejudice to the fact of reappearance being judicially
determined in case such fact is disputed. (Emphasis supplied)
In other words, the Family Code provides the presumptively dead
spouse with the remedy of terminating the subsequent marriage by
mere reappearance.
The filing of an affidavit of reappearance is an admission on the
part of the first spouse that his or her marriage to the present
spouse was terminated when he or she was declared absent or
presumptively dead.
Moreover, a close reading of the entire Article 42 reveals that the
termination of the subsequent marriage by reappearance is subject
to several conditions: (1) the non-existence of a judgment
annulling the previous marriage or declaring it void ab initio; (2)
recording in the civil registry of the residence of the parties to the
subsequent marriage of the sworn statement of fact and
circumstances of reappearance; (3) due notice to the spouses of the
subsequent marriage of the fact of reappearance; and (4) the fact of
reappearance must either be undisputed or judicially determined.
The existence of these conditions means that reappearance does
not always immediately cause the subsequent marriage's
termination. Reappearance of the absent or presumptively dead
spouse will cause the termination of the subsequent marriage only
when all the conditions enumerated in the Family Code are
present.
Hence, the subsequent marriage may still subsist despite the absent
or presumptively dead spouse's reappearance (1) if the first
marriage has already been annulled or has been declared a nullity;
(2) if the sworn statement of the reappearance is not recorded in
the civil registry of the subsequent spouses' residence; (3) if there
is no notice to the subsequent spouses; or (4) if the fact of
reappearance is disputed in the proper courts of law, and no
judgment is yet rendered confirming, such fact of reappearance.
When subsequent marriages are contracted after a judicial
declaration of presumptive death, a presumption arises that the first
spouse is already dead and that the second marriage is legal. This
presumption should prevail over the continuance of the marital
relations with the first spouse.48 The second marriage, as with all
marriages, is presumed valid.49 The burden of proof to show that
the first marriage was not properly dissolved rests on the person
assailing the validity of the second marriage.50chanrobleslaw
This court recognized the conditional nature of reappearance as a
cause for terminating the subsequent marriage in Social Security
System v. Vda. de Bailon.51 This court noted52 that mere
reappearance will not terminate the subsequent marriage even if
the parties to the subsequent marriage were notified if there was
"no step . . . taken to terminate the subsequent marriage, either by
[filing an] affidavit [of reappearance] or by court
action[.]"53 "Since the second marriage has been contracted
because of a presumption that the former spouse is dead, such
presumption continues inspite of the spouse's physical
reappearance, and by fiction of law, he or she must still be
regarded as legally an absentee until the subsequent marriage is
terminated as provided by law."54chanrobleslaw
action in court to prove the reappearance of the absentee and
obtain a declaration of dissolution or termination of the subsequent
marriage."60chanrobleslaw
Celerina does not admit to have been absent. She also seeks not
merely the termination of the subsequent marriage but also the
nullification of its effects. She contends that reappearance is not a
sufficient remedy because it will only terminate the subsequent
marriage but not nullify the effects of the declaration of her
presumptive death and the subsequent marriage.
Celerina is correct. Since an undisturbed subsequent marriage
under Article 42 of the Family Code is valid until terminated, the
"children of such marriage shall be considered legitimate, and the
property relations of the spouse[s] in such marriage will be the
same as in valid marriages."61 If it is terminated by mere
reappearance, the children of the subsequent marriage conceived
before the termination shall still be considered
legitimate.62 Moreover, a judgment declaring presumptive death is
a defense against prosecution for bigamy.63chanrobleslaw
It is true that in most cases, an action to declare the nullity of the
subsequent marriage may nullify the effects of the subsequent
marriage, specifically, in relation to the status of children and the
prospect of prosecuting a respondent for bigamy.
However, "a Petition for Declaration of Absolute Nullity of Void
Marriages may be filed solely by the husband or wife." 64 This
means that even if Celerina is a real party in interest who stands to
be benefited or injured by the outcome of an action to nullify the
second marriage,65 this remedy is not available to her.

The choice of the proper remedy is also important for purposes of
determining the status of the second marriage and the liabilities of
the spouse who, in bad faith, claimed that the other spouse was
absent.
A second marriage is bigamous while the first subsists. However,
a bigamous subsequent marriage may be considered valid when the
following are present:chanRoblesvirtualLawlibrary
1) The prior spouse had been absent for four consecutive years;
2) The spouse present has a well-founded belief that the absent
spouse was already dead;
3) There must be a summary proceeding for the declaration of
presumptive death of the absent spouse; and
4) There is a court declaration of presumptive death of the absent
spouse.55
Therefore, for the purpose of not only terminating the subsequent
marriage but also of nullifying the effects of the declaration of
presumptive death and the subsequent marriage, mere filing of an
affidavit of reappearance would not suffice. Celerina's choice to
file an action for annulment of judgment will, therefore, lie.
WHEREFORE, the case is REMANDED to the Court of Appeals
for determination of the existence of extrinsic fraud, grounds for
nullity/annulment of the first marriage, and the merits of the
petition.
SO ORDERED.cralawlawlibrary

A subsequent marriage contracted in bad faith, even if it was

contracted after a court declaration of presumptive death, lacks the
requirement of a well-founded belief56 that the spouse is already
dead. The first marriage will not be considered as. validly
terminated. Marriages contracted prior to the valid termination of a
subsisting marriage are generally considered bigamous and
void.57 Only a subsequent marriage contracted in good faith is
protected by law.

Therefore, the party who contracted the subsequent marriage in

bad faith is also not immune from an action to declare his
subsequent marriage void for being bigamous. The prohibition
against marriage during the subsistence of another marriage still
applies.58chanrobleslaw

If, as Celerina contends, Ricardo was in bad faith when he filed his
petition to declare her presumptively dead and when he contracted
the subsequent marriage, such marriage would be considered void
for being bigamous under Article 35(4) of the Family Code. This is
because the circumstances lack the element of "well-founded belief
under Article 41 of the Family Code, which is essential for the
exception to the rule against bigamous marriages to
apply.59chanrobleslaw

The provision on reappearance in the Family Code as a remedy to

effect the termination of the subsequent marriage does not preclude
the spouse who was declared presumptively dead from availing
other remedies existing in law. This court had, in fact, recognized
that a subsequent marriage may also be terminated by filing "an
G.R. No. 210929 July 29, 2015
REPUBLIC OF THE PHILIPPINES, Petitioner,
vs.
EDNA ORCELINO-VILLANUEVA, Respondent.
DISSENTING OPINION
LEONEN, J.:
Edna Orcelino-Villanueva (Edna) was a domestic helper based in
Singapore. In 1993, she came home immediately after she heard
news from her children that her husband, Romeo L. Villanueva
(Romeo), left their conjugal dwelling. She came home, leaving her
work, for the purpose of looking for her husband and taking care of
her children. She had limited resources for her search.
For 15 or 16 years, she endured the absence of her husband. Within
those long years, whether in good times or bad, she never heard
from him. He did not discharge any of his duties as husband.
In ruling against her and concluding that she did not search hard
enough for Romeo, the majority fails to appreciate several crucial
facts:
First, Edna turned away from her livelihood, her modest means of
subsistence, just to search for Romeo.
Second, Edna did not only embark on a token search. She did not
limit herself to her parents-in-law and to common friends in Iligan
City, the . place where she and Romeo were married. Edna went all
the way to Romeo's birthplace, which was Escalante, Negros
Oriental. There, she inquired from Romeo's relatives as to his
whereabouts.
Third, 15 or 16 years had passed since Edna was told that Romeo
had gone missing when she filed her Petition to declare Romeo
presumptively dead. If Edna merely intended to use a petition for
declaration of presumptive death as a convenient means for
circumventing laws that protect the institution of marriage, it is
astounding that she would await the inconvenience of 15 or 16
years.
Edna established a well-founded belief that her husband, Romeo, is
already dead.
I vote to sustain the assailed October 18, 2013 Decision1 and
January 8, 2014 Resolution2 of the Court of Appeals in CA-G.R.
SP No. 03768-MIN, affirming the October 8, 2009 Judgment3 of
the Regional Trial Court, Branch 10, Malaybalay City, Bukidnon,
declaring Romeo presumptively dead pursuant to Article 41 of the
Family Code.
I reiterate the position I articulated in my dissent to Republic of the
Philippines v. Cantor.4 I maintain that a strict standard should not
be used in evaluating the efforts made by a spouse to ascertain the
status and whereabouts of an absent spouse. The marital
obligations provided for by the Family Code require the continuing
presence of each spouse. A spouse is well to suppose that this shall
be resolutely fulfilled by the other spouse. Failure to do so for the
period established by law gives rise to the presumption that the
absent spouse is dead, thereby enabling the spouse present to
remarry.
Article 41 of the Family Code provides:
Art. 41. A marriage contracted by any person during subsistence of
a previous marriage shall be null and void, unless before the
celebration of the subsequent marriage, the prior spouse had been
absent for four consecutive years and the spouse present has a
well-founded belief that the absent spouse was already dead. In
case of disappearance where there is danger of death under the
circumstances set forth in the provisions of Article 391 of the Civil
Code, an absence of only two years shall be sufficient.
For the purpose of contracting the subsequent marriage under the
preceding paragraph the spouse present must institute a summary
proceeding as provided in this Code for the declaration of
presumptive death of the absentee, without prejudice to the effect
of reappearance of the absent spouse.
Article 41s requirement of a "well-grounded belief" calls for an
inquiry into a spouses state of mind.5 Otherwise abstract, ones
state of mind can only be ascertained through overt acts. Article 41
requires this belief to be "well-grounded." It therefore requires
nothing more than for a spouse to have a "reasonable basis for
holding to such belief."6 Article 41 relies on a basic and plain test:
rationality.7
What is rational in each case depends on context. Rationality is not
determined by the blanket imposition of pre-conceived standards.
Rather, it is better determined by an appreciation of a persons
unique circumstances.8
Moreover, all that Article 41 calls to sustain is a presumption. By
definition, there is no need for absolute certainty. A presumption
is, by nature, favorable to a party and dispenses with the burden of
proving. Consequently, neither is there a need for conduct that
establishes such a high degree of cognizance that what is
established is proof, and no longer a presumption:
In declaring a person presumptively dead, a court is called upon to
sustain a presumption, it is not called upon to conclude on verity or
to establish actuality. In so doing, a court infers despite an
acknowledged uncertainty. Thus, to insist on such demanding and
extracting evidence to "show enough proof of a well-founded
belief", is to insist on an inordinate and intemperate standard.9
It is improper for the majority to insist upon the same "strict
standard approach"10 that was relied on in Cantor and conclude that
Ednas efforts "were not diligent and serious enough." 11 The
majority fails to appreciate several crucial facts in this case that
define the limits of her situation.
Ednas lack of resources appears in the records. She only had the
ability to present herself as witness.
Concededly, Edna could have engaged in other effortsasking for
the help of police officers, filing a formal missing-person report,
announcing Romeos absence in radio or television programsas
would show how painstakingly she endeavored to search for
Romeo. Insisting on Edna to have also made these efforts,
however, is to insist that she act in an ideal manner. It takes her
away from her own reality and requires her to fulfill pre-conceived
notions of what satisfies notice. It fails to appreciate the merit of
the lengths she actually went through to search for Romeo.
Unless Edna had the ability to gain access to radio or television
programs with nationwide coverage or ensure that her notices were
posted in all precincts, then requiring this type of search would
have been futile and economically wasteful. If we are to lend truth
to the concept of social justice, we have to make judgments based
on her context. To reiterate, she is one of the millions who had to
go abroad to earn a more prosperous life for herself and her
children. She had to cut short her employment to come home and
make an honest search for her husband. To require her to squander
more time and money to reach media and the police would have
been economically expensive for her. The law should be
interpreted in the context of realityand ours is different from
Ednas.
Edna was an abandoned wife whose husband was missing for 15 or
16 years. Her search for Romeo began more than two decades ago
in a province in Mindanao, far removed from this nations capital.
She was an overseas Filipino worker, a domestic helper, who was
compelled to return to the Philippines to tend to a missing husband.
Twenty-two years ago, when she embarked on her search, she
could not have been aided by the convenience of ready access to
communication networks. To go to her husbands birthplace and
inquire from his relatives, she could not have merely boarded an
hour-long flight; she must have endured hours, even days at sea. It
is in light of these human realities that Ednas efforts must be
appreciated.
This court must realize that insisting upon an ideal will never yield
satisfactory results. A stringent evaluation of a partys efforts made
out of context will always reveal means through which a spouse
could have done more or walked the proverbial extra mile to
ascertain his or her spouses whereabouts. A reason could always
be conceived for concluding that a spouse did not try hard
enough.
So, too, insisting on Ednas perceived shortcomings unjustly puts
the blame on her and undermines the shortcoming that Romeo
himself committed. All marital obligations recognized in the
Family Code are predicated upon each spouses presence. The
primordial marital obligation is "to live together, observe mutual
love, respect and fidelity, and render mutual help and
support."12 As I explained in my dissent in Cantor:
The opinions of a recognized authority in civil law, Arturo M.
Tolentino, are particularly enlightening:
Meaning of "Absent" Spouse. The provisions of this article are of
American origin, and must be construed in the light of American
jurisprudence. An identical provision (except for the period) exists
in the California civil code (section 61); California jurisprudence
should, therefore, prove enlightening. It has been held in that
jurisdiction that, as respects the validity of a husbands subsequent
marriage, a presumption as to the death of his first wife cannot be
predicated upon an absence resulting from his leaving or deserting
her, as it is his duty to keep her advised as to his whereabouts. The
spouse who has been left or deserted is the one who is considered
as the spouse present; such spouse is not required to ascertain the
whereabouts of the deserting spouse, and after the required number
of years of absence of the latter, the former may validly remarry.
without prejudice to the fact of reappearance being judicially
determined in case such fact is disputed. Moreover, in Santos v.
Santos,14 we recognized that in cases where a declaration of
presumptive death was fraudulently obtained, the subsequent
marriage shall not only be terminated, but all other effects of the
declaration nullified by a successful petition for annulment of
judgment:
The proper remedy for a judicial declaration of presumptive death
obtained by extrinsic fraud is an action to annul the judgment. An
affidavit of reappearance is not the proper remedy when the person
declared presumptively dead has never been absent.
....
Therefore, for the purpose of not only terminating the subsequent
marriage but also of nullifying the effects of the declaration of
presumptive death and the subsequent marriage, mere filing of an
affidavit of reappearance would not suffice.15
The majority is gripped with the apprehension that a petition for
declaration of presumptive death may be availed of as a dangerous
expedient. Nothing, in this case, sustains fear. A misplaced anxiety
is all that there is. As things stand, Edna has shown facts that
warrant a declaration that Romeo is presumptively dead.
Proceeding from these merits, this Petition must be denied.
ACCORDINGLY, I vote to DENY the Petition. The Decision of
the Court of Appeals in CA-G.R. SP No. 03768-MIN, affirming
the October 8, 2009 Judgment of the Regional Trial Court, Branch
10, Malaybalay City, Bukidnon, declaring Romeo L. Villanueva
presumptively dead pursuant to Article 41 of the Family Code,
must be affirmed.

Precisely, it is a deserting spouses failure to comply with what is

reasonably expected of him/her and to fulfil the responsibilities
that are all but normal to a spouse which makes reasonable (i.e.,
well-grounded) the belief that should he/she fail to manifest his/her
presence within a statutorily determined reasonable period, he/she
must have been deceased. The law is of the confidence that
spouses will in fact "live together, observe mutual love, respect
and fidelity, and render mutual help and support" such that it is not
the business of the law to assume any other circumstance than that
a spouse is deceased in case he/she becomes absent.13

It is Romeo who has been absent. In so doing, he is rightly

considered to be no longer in a position to perform his marital
obligations to Edna. Having been absent for the statutorily
prescribed period despite his legal obligations as a married spouse,
Romeo should be rightly considered presumptively dead.

The majority burdened itself with ensuring that petitions for

declaration of presumptive death are not used as procedural
shortcuts that undermine the institution of marriage. While this is a
valid concern, the majority goes to unnecessary lengths to
discharge this burden. Article 41 of the Family Code concedes that
there is a degree of risk in presuming a spouse to be dead, as the
absent spouse may, in fact, be alive and well. Thus, Article 41
provides that declarations of presumptive death are "without
prejudice to the reappearance of the absent spouse." The state is
thus not bereft of remedies.

Consistent with this, Article 42 of the Family Code provides for

the automatic termination of the subsequent marriage entered into
by the present spouse should the absent spouse reappear: Art. 42.
The subsequent marriage referred to in the preceding Article shall
be automatically terminated by the recording of the affidavit of
reappearance of the absent spouse, unless there is a judgment
annulling the previous marriage or declaring it void ab nitio.

A sworn statement of the fact and circumstances of reappearance

shall be recorded in the civil registry of the residence of the parties
to the subsequent marriage at the instance of any interested person,
with due notice to the spouses of the subsequent marriage and
February 10, 2016
G.R. No. 199194
REPUBLIC OF THE PHILIPPINES, Petitioner,
vs.
JOSE B. SAREOGON, JR., Respondent.
DECISION
DEL CASTILLO, J.:
A petition for certiorari pursuant to Rule 65 of the Rules of Court
is the proper remedy to challenge a trial court's declaration of
presumptive death under Article 41 ofThe Family Code of the
Philippines1 (Family Code).2
This Petition for Review on Certiorari3assails the October 24,
2011 Decision4 of the Court of Appeals (CA) in CA-GR. SP No.
04158-MIN dismissing the Petition for Certiorari filed by
petitioner Republic of the Philippines (Republic).
Factual Antecedents
On November 4, 2008, respondent Jose B. Sareogon, Jr. (Jose)
filed a Petition5 before the Regional Trial Court (RTC) of
Ozamiz6 City-Branch 15 for the declaration of presumptive death
of his wife, Netchie S.7 Sareogon (Netchie).8
In an Amended Order dated Februrary 11, 2009, the RTC set the
Petition for initial hearing on April 16, 2009. It likewise directed
the publication of said Order in a newspaper of general circulation
in the cities of Tangub, Ozamiz and Oroquieta, all in the province
of Misamis Occidental. Nobody opposed the Petition.9 Trial then
followed.10
Jose testified that he first met Netchie in Clarin, Misamis
Occidental in 1991.11 They later became sweethearts and on
August 10, 1996, they got married in civil rites at the Manila City
Hall.12 However, they lived together as husband and wife for a
month only because he left to work as a seaman while Netchie
went to Hongkong as a domestic helper.13 For three months, he did
not receive any communication from Netchie.14 He likewise had no
idea about her whereabouts.15 While still abroad, he tried to contact
Netchies parents, but failed, as the latter had allegedly left Clarin,
Misamis Occidental.16 He returned home after his contract
expired.17 He then inquired from Netchies relatives and friends
about her whereabouts, but they also did not know where she
was.18 Because of these, he had to presume that his wife Netchie
was already dead.19 He filed the Petition before the RTC so he
could contract another marriage pursuant to Article 41 of the
Family Code.20
Joses testimony was corroborated by his older brother Joel
Sareogon, and by Netchies aunt, Consuelo Sande. 21These two
witnesses testified that Jose and Netchie lived together as husband
and wife only for one month prior to their leaving the Philippines
for separate destinations abroad.22 These two added that they had
no information regarding Netchies location.23
Ruling of the Regional Trial Court
In its Decision24 dated January 31, 2011 in Spec. Proc. No. 045-08,
the RTC held that Jose had established by preponderance of
evidence that he is entitled to the relief prayed for under Article 41
of the Family Code.25 The RTC found that Netchie had
disappeared for more than four years, reason enough for Jose to
conclude that his wife was indeed already dead.26 The dispositive
portion of the Decision reads:
VIEWED IN THE LIGHT OF THE FOREGOING, judgment is
hereby rendered declaring respondent presumptively dead for
purposes of remarriage of petitioner.
SO ORDERED.27
Proceedings before the Court of Appeals
On April 19, 2011, the Republic, through the Office of the
Solicitor General (OSG), elevated the judgment of the RTC to the
CA via a Petition for Certiorari28 under Rule 65 of the Revised
Rules of Court.
In its Decision29 of October 24, 2011, the CA held that the
Republic used the wrong recourse by instituting a petition
for certiorari under Rule 65 of the Revised Rules of Court. The
CA perceived no error at all in the RTCs judgment granting Joses
Petition for the declaration of the presumptive death of his wife,
Netchie. The CA thus held in effect that the Republics appeal
sought to correct or review the RTCs alleged misappreciation of
evidence which could not translate into excess or lack of
jurisdiction amounting to grave abuse of discretion.30 The CA
noted that the RTC properly caused the publication of the Order
setting the case for initial hearing.31 The CA essentially ruled that,
"[a] writ of certiorari may not be used to correct a lower courts
evaluation of the evidence and factual findings. In other words, it
is not a remedy for mere errors of judgment, which are correctible
by an appeal."32 The CA then disposed of the case in this wise:
WHEREFORE, the petition for certiorari is dismissed.
SO ORDERED.33
Issues
The Republic filed the instant Petition34 raising the following
issues:
THE HONORABLE COURT OF APPEALS ERRED ON A
QUESTION OF LAW IN ITS ASSAILED DECISION
BECAUSE:
I
THE HONORABLE COURT OF APPEALS GRAVELY ERRED
ON A QUESTION OF LAW IN DISMISSING THE
REPUBLICS PETITION FOR REVIEW ON CERTIORARI
UNDER RULE 65, ON THE GROUND THAT THE PROPER
REMEDY SHOULD HAVE BEEN TO APPEAL THE RTC
DECISION, BECAUSE IMMEDIATELY FINAL AND
EXECUTORY JUDGMENTS OR DECISIONS ARE NOT
APPEALABLE UNDER THE EXPRESS PROVISION OF LAW.
II
THE ALLEGED EFFORTS OF RESPONDENT IN LOCATING
HIS MISSING WIFE DO NOT SUFFICIENTLY SUPPORT A
"WELLFOUNDED BELIEF" THAT RESPONDENTS ABSENT
WIFE X X X IS PROBABLY DEAD.35
Petitioners Arguments
The Republic insists that a petition for certiorari under Rule 65 of
the Revised Rules of Court is the proper remedy to challenge an
RTCs immediately final and executory Decision on a presumptive
death.36
The Republic claims that based on jurisprudence, Joses alleged
efforts in locating Netchie did not engender or generate a well-
founded belief that the latter is probably dead. 37 It maintains that
even as Jose avowedly averred that he exerted efforts to locate
Netchie, Jose inexplicably failed to enlist the assistance of the
relevant government agencies like the Philippine National Police,
the National Bureau of Investigation, the Department of Foreign
Affairs, the Bureau of Immigration, the Philippine Overseas
Employment Administration, or the Overseas Workers Welfare
Administration.38 It likewise points out that Jose did not present
any disinterested person to corroborate his allegations that the
latter was indeed missing and could not be found.39 It also
contends that Jose did not advert to circumstances, events,
occasions, or situations that would prove that he did in fact make a
comprehensive search for Netchie.40 The Republic makes the plea
that courts should ever be vigilant and wary about the propensity
of some erring spouses in resorting to Article 41 of the Family
Code for the purpose of terminating their marriage. 41
Finally, the Republic submits that Jose did not categorically assert
that he wanted to have Netchie declared presumptively dead
because he intends to get married again, an essential premise of
Article 41 of the Family Code.42
Respondents Arguments
Jose counters that the CA properly dismissed the Republics
Petition because the latters petition is erected upon the ground that
the CA did not correctly weigh or calibrate the evidence on record,
or assigned to the evidence its due worth, import or significance;
and that such a ground does not avail in a petition
for certiorari under Rule 65 of the Revised Rules of Court.43 Jose
also contends that the Republic should have instead filed a motion
for reconsideration44 of the RTCs Decision of January 31, 2011,
reasoning out that a motion for reconsideration is a plain, speedy
and adequate remedy in law. Jose furthermore submits that the
RTC did not act arbitrarily or capriciously in granting his petition
because it even dutifully complied with the publication
requirement.45 He moreover argues that to sustain the present
petition would allow the executive branch to unduly make inroads
into judicial territory.46 Finally, he insists that the trial courts
factual findings are entitled to great weight and respect as these
were arrived after due deliberation.47
This Courts Ruling
This Court finds the Republics petition meritorious.
A petition for certiorari under Rule 65
of the Rules of Court is the proper
remedy to question the RTCs Decision
in a summary proceeding for the
declaration of presumptive death
In the 2005 case of Republic v. Bermudez-Lorino,48 we held that
the RTCs Decision on a Petition for declaration of presumptive
death pursuant to Article 41 of the Family Code is immediately
final and executory. Thus, the CA has no jurisdiction to entertain a
notice of appeal pertaining to such judgment.49 Concurring in the
result, Justice (later Chief Justice) Artemio Panganiban further
therein pointed out that the correct remedy to challenge the RTC
Decision was to institute a petition for certiorari under Rule 65,
and not a petition for review under Rule 45.50
We expounded on this appellate procedure in Republic v. Tango: 51
This case presents an opportunity for us to settle the rule on appeal
of judgments rendered in summary proceedings under the Family
Code and accordingly, refine our previous decisions thereon.
Article 238 of the Family Code, under Title XI: SUMMARY
JUDICIAL PROCEEDINGS IN THE FAMILY LAW, establishes
the rules that govern summary court proceedings in the Family
Code:
ART. 238. Until modified by the Supreme Court, the procedural
rules in this Title shall apply in all cases provided for in this Code
requiring summary court proceedings. Such cases shall be decided
in an expeditious manner without regard to technical rules.
In turn, Article 253 of the Family Code specifies the cases covered
by the rules in chapters two and three of the same title. It states:
ART. 253. The foregoing rules in Chapters 2 and 3 hereof shall
likewise govern summary proceedings filed under Articles 41, 51,
69, 73, 96, 124 and 217, insofar as they are applicable. (Emphasis
supplied.)
In plain text, Article 247 in Chapter 2 of the same title reads:
ART. 247. The judgment of the court shall be immediately final
and executory.
By express provision of law, the judgment of the court in a
summary proceeding shall be immediately final and executory. As
a matter of course, it follows that no appeal can be had of the trial
courts judgment in a summary proceeding for the declaration of
presumptive death of an absent spouse under Article 41 of the
Family Code. It goes without saying, however, that an aggrieved
party may file a petition for certiorari to question abuse of
discretion amounting to lack of jurisdiction. Such petition should
be filed in the Court of Appeals in accordance with the Doctrine of
Hierarchy of Courts. To be sure, even if the Courts original
jurisdiction to issue a writ of certiorari is concurrent with the
RTCs and the Court of Appeals in certain cases, such concurrence
does not sanction an unrestricted freedom of choice of court forum.
x x x52 (Citation omitted; Underscoring supplied)
"In sum, under Article 41 of the Family Code, the losing party in a
summary proceeding for the declaration of presumptive death may
file a petition for certiorari with the CA on the ground that, in
rendering judgment thereon, the trial court committed grave abuse
of discretion amounting to lack of jurisdiction. From the Decision
of the CA, the aggrieved party may elevate the matter to this Court
via a petition for review on certiorari under Rule 45 of the Rules
of Court."53
In fact, in Republic v. Narceda,54 we held that the OSG availed of
the wrong remedy when it filed a notice of appeal under Rule 42
with the CA to question the RTCs Decision declaring the
presumptive death of Marina B. Narceda.55
Above all, this Courts ruling in Republic v. Cantor56 made it
crystal clear that the OSG properly availed of a petition
for certiorari under Rule 65 to challenge the RTCs Order therein
declaring Jerry Cantor as presumptively dead.1wphi1
Based on the foregoing, it is clear that the Republic correctly
availed of certiorari under Rule 65 of the Revised Rules of Court
in assailing before the CA the aforesaid RTCs Decision.
The "well-founded belief" requisite
under Article 41 of the Family Code is
complied with only upon a showing that
sincere honest-to-goodness efforts had
indeed been made to ascertain whether
the absent spouse is still alive or is
already dead
We now proceed to determine whether the RTC properly granted
Joses Petition.
Article 41 of the Family Code pertinently provides that:
Art. 41. A marriage contracted by any person during the
subsistence of a previous marriage shall be null and void, unless
before the celebration of the subsequent marriage, the prior spouse
had been absent for four consecutive years and the spouse present
had a well-founded belief that the absent spouse was already dead.
In case of disappearance where there is danger of death under the
circumstances set forth in the provisions of Article 391 of the Civil
Code, an absence of only two years shall be sufficient.
For the purpose of contracting the subsequent marriage under the
preceding paragraph the spouse present must institute a summary
proceeding as provided in this Code for the declaration of
presumptive death of the absentee, without prejudice to the effect
of reappearance of the absent spouse. (83a)
In Republic v. Cantor,57 we further held that:
Before a judicial declaration of presumptive death can be obtained,
it must be shown that the prior spouse had been absent
for four consecutive years and the present spouse had a well-
founded belief that the prior spouse was already dead. Under
Article 41 of the Family Code, there are four essential requisites
for the declaration of presumptive death:
1. That the absent spouse has been missing for four consecutive
years, or two consecutive years if the disappearance occurred
where there is danger of death under the circumstances laid down
in Article 391 of the Civil Code;
2. That the present spouse wishes to remarry;
3. That the present spouse has a well-founded belief that the
absentee is dead; and,
4. That the present spouse files a summary proceeding for the
declaration of presumptive death of the absentee. 58
(Underscoring supplied)
With respect to the third element (which seems to be the element
that in this case invites extended discussion), the holding is that the
mere absence of the spouse (even for such period required by the
law), or lack of news that such absentee is still alive, failure to
communicate [by the absentee spouse or invocation of the] general
presumption on absence under the Civil Code [would] not suffice.
This conclusion proceeds from the premise that Article 41 of the
Family Code places upon the present spouse the burden of proving
the additional and more stringent requirement of "well-founded
belief" which can only be discharged upon a due showing of
proper and honest-to-goodness inquiries and efforts to ascertain not
only the absent spouses whereabouts but, more importantly, that
the absent spouse is [either] still alive or is already dead.
xxxx
The law did not define what is meant by "well-founded belief." It
depends upon the circumstances of each particular case. Its
determination, so to speak, remains on a case-to-case basis. To be
able to comply with this requirement, the present spouse must
prove that his/her belief was the result of diligent and reasonable
efforts and inquiries to locate the absent spouse and that based on
these efforts and inquiries, he/she believes that under the
circumstances, the absent spouse is already dead. It requires
exertion of active effort (not a mere passive one). 59 (Emphasis
omitted; underscoring supplied)
In the case at bar, the RTC ruled that Jose has "well-founded
belief" that Netchie was already dead upon the following grounds:
(1) Jose allegedly tried to contact Netchies parents while he was
still out of the country, but did not reach them as they had
allegedly left Clarin, Misamis Occidental;
(2) Jose believed/presumed that Netchie was already dead because
when he returned home, he was not able to obtain any information
that Netchie was still alive from Netchies relatives and friends;
(3) Joses testimony to the effect that Netchie is no longer alive,
hence must be presumed dead, was corroborated by Joses older
brother, and by Netchies aunt, both of whom testified that he
(Jose) and Netchie lived together as husband and wife only for one
month and that after this, there had been no information as to
Netchies whereabouts.
In the above-cited case of Republic v. Cantor,60 this Court held that
the present spouse (Maria Fe Espinosa Cantor) merely conducted a
"passive search" because she simply made unsubstantiated
inquiries from her in-laws, from neighbors and friends. For that
reason, this Court stressed that the degree of diligence and
reasonable search required by law is not met (1) when there is
failure to present the persons from whom the present spouse
allegedly made inquiries especially the absent spouses relatives,
neighbors, and friends, (2) when there is failure to report the
missing spouses purported disappearance or death to the police or
mass media, and (3) when the present spouses evidence might or
would only show that the absent spouse chose not to communicate,
but not necessarily that the latter was indeed dead.61 The rationale
for this palpably stringent or rigorous requirement has been
marked out thus:
x x x [T]he Court, fully aware of the possible collusion of spouses
in nullifying their marriage, has consistently applied the "strict
standard" approach. This is to ensure that a petition for declaration
of presumptive death under Article 41 of the Family Code is not
used as a tool to conveniently circumvent the laws. Courts should
never allow procedural shortcuts and should ensure that the stricter
standard required by the Family Code is met. x x x
The application of this stricter standard becomes even more
imperative if we consider the States policy to protect and
strengthen the institution of marriage. Since marriage serves as the
familys foundation and since it is the states policy to protect and
strengthen the family as a basic social institution, marriage should
not be permitted to be dissolved at the whim of the parties. x x x
x x x [I]t has not escaped this Courts attention that the strict
standard required in petitions for declaration of presumptive death
has not been fully observed by the lower courts. We need only to
cite the instances when this Court, on review, has consistently
ruled on the sanctity of marriage and reiterated that anything less
than the use of the strict standard necessitates a denial. To rectify
this situation, lower courts are now expressly put on notice of the
strict standard this Court requires in cases under Article 41 of the
Family Code." (Citations omitted)62
Given the Courts imposition of "strict standard" in a petition for a
declaration of presumptive death under Article 41 of the Family
Code, it must follow that there was no basis at all for the RTCs
finding that Joses Petition complied with the requisites of Article
41 of the Family Code, in reference to the "well-founded belief"
standard. If anything, Joses pathetically anemic efforts to locate
the missing Netchie are notches below the required degree of
stringent diligence prescribed by jurisprudence. For, aside from his
bare claims that he had inquired from alleged friends and relatives
as to Netchies whereabouts, Jose did not call to the witness stand
specific individuals or persons whom he allegedly saw or met in
the course of his search or quest for the allegedly missing Netchie.
Neither did he prove that he sought the assistance of the pertinent
government agencies as well as the media. Nor did he show that he
undertook a thorough, determined and unflagging search for
Netchie, say for at least two years (and what those years were), and
naming the particular places, provinces, cities, barangays or
municipalities that he visited, or went to, and identifying the
specific persons he interviewed or talked to in the course of his
search.
WHEREFORE, the Petition is GRANTED. The Decision dated
October 24, 2011 of the Court of Appeals in CA-G.R. SP No.
04158-MIN is REVERSED AND SET ASIDE. The respondents
Petition in said Spec. Proc. No. 045-08 is
accordingly DISMISSED.
SO ORDERED.
[ G.R. No. 214243, March 16, 2016 ]
REPUBLIC OF PHILIPPINES, THE PETITIONER, VS.
NILDA B. TAMPUS, RESPONDENT.
DECISION
PERLAS-BERNABE, J.:
[1]
Assailed in this petition for review on certiorari are the
Decision[2] dated June 17, 2013 and the Resolution[3] dated
September 2, 2014 rendered by the Court of Appeals (CA) in CA-
G.R. SP No. 04588, which affirmed the Decision[4] dated July 29,
2009 of the Regional Trial Court of Lapu-Lapu City, Branch 54
(RTC) declaring respondent's spouse, Dante L. Del Mundo, as
presumptively dead.
The Facts
Respondent Nilda B. Tampus (Nilda) was married to Dante L. Del
Mundo (Dante) on November 29, 1975 in Cordova, Cebu. The
marriage ceremony was solemnized by Municipal Judge Julian B.
Pogoy of Cordova, Cebu.[5] Three days thereafter, or on December
2, 1975, Dante, a member of the Armed Forces of the Philippines
(AFP), left respondent, and went to Jolo, Sulu where he was
assigned. The couple had no children.[6]
Since then, Nilda heard no news from Dante,. She tried everything
to locate him, but her efforts proved futile.[7] Thus, on April 14,
2009, she filed before the RTC a petition[8] to declare Dante as
presumptively dead for the purpose of remarriage, alleging that
after the lapse of thirty-three (33) years without any kind of
communication from him, she firmly believes that he is already
dead.[9]
Due to the absence of any oppositor, Nilda was allowed to present
her evidence ex parte. She testified on the allegations in her
petition, affirming that she exerted efforts to find Dante by
inquiring from his parents, relatives, and neighbors, who,
unfortunately, were also not aware of his whereabouts. She averred
that she intends to remarry and move on with her life. [10]
The RTC Ruling
In a Decision[11] dated July 29, 2009, the RTC granted Nilda's
petition and declared Dante as presumptively dead for all legal
purposes, without prejudice to the effect of his reappearance. It
found that Dante left the conjugal dwelling sometime in 1975 and
from then on, Nilda never heard from him again despite diligent
efforts to locate him. In this light, she believes that he had passed
away especially since his last assignment was a combat mission.
Moreover, the RTC found that the absence of thirty-three (33)
years was sufficient to give rise to the presumption of death.[12]
Dissatisfied, the Office of the Solicitor General (OSG), on behalf
of petitioner Republic of the Philippines (Republic), filed a petition
for certiorari[13] before the CA assailing the RTC Decision.
The CA Ruling
In a Decision[14] dated June 17, 2013, the CA denied the OSG's
petition and affirmed the RTC Decision declaring Dante as
presumptively dead. The CA gave credence to the RTC's findings
that Nilda had exerted efforts to find her husband by inquiring
from his parents, relatives, and neighbors, who likewise had no
knowledge of his whereabouts. Further, the lapse of thirty-three
(33) years, coupled with the fact that Dante had been sent on a
combat mission to Jolo, Sulu, gave rise to Nilda's well-founded
belief that her husband is already dead.[15]
Moreover, the CA opined that if Dante were still alive after many
years, it would have been easy for him to communicate with Nilda,
taking into consideration the fact that Dante was only 25 years old
when he left and, therefore, would have been still physically able
to get in touch with his wife. However, because neither Nilda nor
his own family has heard from him for several years, it can be
reasonably concluded that Dante is already dead.[16]
The OSG's motion for reconsideration was denied in a Resolution
dated September 2, 2014; hence, this petition.
The Issue Before the Court
The sole issue for the Court's resolution is whether or not the CA
erred in upholding the RTC Decision declaring Dante as
presumptively dead.
The Court's Ruling
The petition has merit.
Before a judicial declaration of presumptive death can be obtained,
it must be shown that the prior spouse had been absent for four
consecutive years and the present spouse had a well-founded
belief that the prior spouse was already dead. Under Article
41[19] of the Family Code of the Philippines (Family Code), there
are four (4) essential requisites for the declaration of presumptive
death: (1) that the absent spouse has been missing for four (4)
consecutive years, or two (2) consecutive years if the
disappearance occurred where there is danger of death under the
circumstances laid down in Article 391 of the Civil Code; (2) that
the present spouse wishes to remarry; (3) that the present spouse
has a well-founded belief that the absentee is dead; and (4) that the
present spouse files a summary proceeding for the declaration of
presumptive death of the absentee.[20]
The burden of proof rests on the present spouse to show that all the
foregoing requisites under Article 41 of the Family Code exist.
Since it is the present spouse who, for purposes of declaration of
presumptive death, substantially asserts the affirmative of the
issue, it stands to reason that the burden of proof lies with him/her.
He who alleges a fact has the burden of proving it and mere
allegation is not evidence.[21]
The "well-founded belief in the absentee's death requires the
present spouse to prove that his/her belief was the result of diligent
and reasonable efforts to locate the absent spouse and that based on
these efforts and inquiries, he/she believes that under the
circumstances, the absent spouse is already dead. It necessitates
exertion of active effort, not a passive one. As such, the mere
absence of the spouse for such periods prescribed under the law,
lack of any news that such absentee spouse is still alive, failure to
communicate, or general presumption of absence under the Civil
Code would not suffice.[22] The premise is that Article 41 of the
Family Code places upon the present spouse the burden of
complying with the stringent requirement of "well-founded belief
which can only be discharged upon a showing of proper and
honest-to-goodness inquiries and efforts to ascertain not only the
absent spouse's whereabouts, but more importantly, whether the
latter is still alive or is already dead.[23]
In this case, Nilda testified that after Dante's disappearance, she
tried to locate him by making inquiries with his parents, relatives,
and neighbors as to his whereabouts, but unfortunately, they also
did not know where to find him. Other than making said inquiries,
however, Nilda made no further efforts to find her husband. She
could have called or proceeded to the AFP headquarters to request
information about her husband, but failed to do so. She did not
even seek the help of the authorities or the AFP itself in finding
him. Considering her own pronouncement that Dante was sent by
the AFP on a combat mission to Jolo, Sulu at the time of his
disappearance, she could have inquired from the AFP on the status
of the said mission, or from the members of the AFP who were
assigned thereto. To the Court's mind, therefore, Nilda failed to
actively look for her missing husband, and her purported earnest
efforts to find him by asking Dante's parents, relatives, and friends
did not satisfy the strict standard and degree of diligence required
to create a "well-founded belief of his death.
Furthermore, Nilda did not present Dante's family, relatives, or
neighbors as witnesses who could have corroborated her
asseverations that she earnestly looked for Dante. These resource
persons were not even named. In Republic v. Nolasco,[24] it was
held that the present spouse's bare assertion that he inquired from
his friends about his absent spouse's whereabouts was found
insufficient as the names of said friends were not identified in the
testimony nor presented as witnesses.[25]

Finally, other than Nilda's bare testimony, no other corroborative

evidence had been offered to support her allegation that she
exerted efforts to find him but was unsuccessful. What appears
from the facts as established in this case was that Nilda simply
allowed the passage of time without actively and diligently
searching for her husband, which the Court cannot accept as
constituting a "well-founded belief that her husband is dead.
Whether or not the spouse present acted on a well-founded belief
of death of the absent spouse depends upon the inquiries to be
drawn from a great many circumstances occurring before and after
the disappearance of the absent spouse and the nature and extent of
the inquiries made by the present spouse.[26]

In fine, having fallen short of the stringent standard and degree of

due diligence required by jurisprudence to support her claim of a
"well-founded belief that her husband Dante is already dead, the
instant petition must be granted.

WHEREFORE, the petition is GRANTED. Accordingly, the

Decision dated June 17, 2013 and the Resolution dated September
2, 2014 rendered by the Court of Appeals in CA-G.R. SP No.
04588 are hereby REVERSED and SET ASIDE. The petition of
respondent Nilda B. Tampus to have her husband, Dante L. Del
Mundo, declared presumptively dead is DENIED.

SO ORDERED.