[G.R. No. 119064.

August 22, 2000]

NENG KAGUI KADIGUIA MALANG, petitioner, vs. HON. COROCOY MOSON,
Presiding Judge of 5th Sharia District Court, Cotabato City, HADJI MOHAMMAD
ULYSSIS MALANG, HADJI ISMAEL MALINDATU MALANG, FATIMA
MALANG, DATULNA MALANG, LAWANBAI MALANG, JUBAIDA KADO
MALANG, NAYO OMAL MALANG and MABAY GANAP
MALANG, respondents.

DECISION
GONZAGA-REYES, J.:

Presented for resolution in this special civil action of certiorari is the issue of whether or not
the regime of conjugal partnership of gains governed the property relationship of two Muslims
who contracted marriage prior to the effectivity of the Code of Muslim Personal Laws of the
Philippines (hereafter, P.D. 1083 or Muslim Code). The question is raised in connection with the
settlement of the estate of the deceased husband.
Hadji Abdula Malang, a Muslim, contracted marriage with Aida (Kenanday) Limba. They
begot three sons named Hadji Mohammad Ulyssis, Hadji Ismael Malindatu and Datulna, and a
daughter named Lawanbai. Hadji Abdula Malang was engaged in farming, tilling the land that
was Aidas dowry (mahr or majar). Thereafter, he bought a parcel of land in Sousa,
Cotabato. Hadji Abdula and Aida already had two children when he married for the second time
another Muslim named Jubaida Kado in Kalumamis, Talayan, Maguindanao. No child was born
out of Hadji Abdulas second marriage. When Aida, the first wife, was pregnant with their fourth
child, Hadji Abdula divorced her.
In 1965, Hadji Abdula married another Muslim, Nayo H. Omar but they were
childless. Thereafter, Hadji Abdula contracted marriage with Hadji Mabai (Mabay) H. Adziz in
Kalumamis, Talayan, Maguindanao and soon they had a daughter named Fatima (Kueng). Hadji
Abdula and Hadji Mabai stayed in that place to farm while Hadji Abdula engaged in the business
of buying and selling of rice, corn and other agricultural products. Not long after, Hadji Abdula
married three other Muslim women named Saaga, Mayumbai and Sabai but he eventually
divorced them.
Hadji Abdula then migrated to Tambunan where, in 1972, he married petitioner Neng Kagui
Kadiguia Malang, his fourth wife, excluding the wives he had divorced. They established
residence in Cotabato City but they were childless. For a living, they relied on farming and on
the business of buying and selling of agricultural products. Hadji Abdula acquired vast tracts of
land in Sousa and Talumanis, Cotabato City, some of which were cultivated by tenants. He
deposited money in such banks as United Coconut Planters Bank, Metrobank and Philippine
Commercial and Industrial Bank.
On December 18, 1993, while he was living with petitioner in Cotabato City, Hadji Abdula
died without leaving a will. On January 21, 1994, petitioner filed with the Sharia District Court
in Cotabato City a petition for the settlement of his estate with a prayer that letters of
administration be issued in the name of her niece, Tarhata Lauban.
Petitioner claimed in that petition that she was the wife of Hadji Abdula; that his other legal
heirs are his three children named Teng Abdula, Keto Abdula and Kueng Malang, and that he
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left seven (7) parcels of land, five (5) of which are titled in Hadji Abdulas name married to Neng
P. Malang, and a pick-up jeepney.
On February 7, 1994, the Sharia District Court ordered the publication of the
petition.[1] After such publication[2] or on March 16, 1994, Hadji Mohammad Ulyssis Malang
(Hadji Mohammad, for brevity), the eldest son of Hadji Abdula, filed his opposition to the
petition. He alleged among other matters that his fathers surviving heirs are as follows: (a)
Jubaida Malang, surviving spouse; (b) Nayo Malang, surviving spouse; (c) Mabay Malang,
surviving spouse; (d) petitioner Neng Malang, surviving spouse; (e) oppositor Hadji Mohammad
Ulyssis Malang who is also known as Teng Abdula, son; (f) Hadji Ismael Malindatu Malang,
also known as Keto Abdula, son, (g) Fatima Malang, also known as Kueng Malang, daughter;
(h) Datulna Malang, son, and (i) Lawanbai Malang, daughter. Oppositor Hadji Mohammad
Ulyssis Malang alleged that since he and his brother, Hadji Ismael Malindatu Malang, had
helped their father in his business, then they were more competent to be administrators of his
estate.[3]
On March 30, 1994, Jubaida Malang, Ismael Malindatu Malang, Nayo Malang, Fatima
Malang, Mabay Malang, Datulna Malang and Lawanbai Malang filed an opposition to the
petition, adopting as their own the written opposition of Hadji Mohammad.[4]
On April 7, 1994, the Sharia District Court issued an Order appointing Hadji Mohammad
administrator of his fathers properties outside Cotabato City. The same order named petitioner
and Hadji Ismael Malindatu Malang as joint administrators of the estate in Cotabato City. Each
administrator was required to post a bond in the amount of P100,000.00.[5] On April 13, 1994,
letters of administration were issued to Hadji Mohammad after he had posted the required
bond. He took his oath on the same day.[6] The following day, Hadji Ismael and petitioner
likewise filed their respective bonds and hence, they were allowed to take their oath as
administrators.[7]
On April 25, 1994 and May 3, 1994, petitioner filed two motions informing the court that
Hadji Abdula had outstanding deposits with nine (9) major banks.[8] Petitioner prayed that the
managers of each of those banks be ordered to submit a bank statement of the outstanding
deposit of Hadji Abdula.[9] The Sharia District Court having granted the motions,[10] Assistant
Vice President Rockman O. Sampuha of United Coconut Planters Bank informed the court that
as of April 24, 1994, the outstanding deposit of Hadji Abdula amounted to one million five
hundred twenty thousand four hundred pesos and forty-eight centavos (P1,520,400.48).[11] The
Senior Manager of the Cotabato branch of Metrobank also certified that as of December 18,
1993, Hadji Abdula Malang or Malindatu Malang had on savings deposit the balance of three
hundred seventy-eight thousand four hundred ninety-three pesos and 32/100 centavos
(P378,493.32).[12] PCIB likewise issued a certification that Hadji Abdula had a balance of eight
hundred fifty pesos (P850.00) in his current account as of August 11, 1994.[13]
During the pendency of the case, petitioner suffered a congestive heart failure that required
immediate medical treatment. On May 5, 1994, she filed a motion praying that on account of her
ailment, she be allowed to withdraw from UCPB the amount of three hundred thousand pesos
(P300,000.00) that shall constitute her advance share in the estate of Hadji Abdula.[14] After due
hearing, the Sharia District Court allowed petitioner to withdraw the sum of two hundred fifty
thousand pesos (P250,000.00).[15]

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 On May 12, 1994, the Sharia District Court required petitioner and Hadji Ismael as joint
administrators to submit an inventory and appraisal of all properties of Hadji Abdula.[16] In
compliance therewith, Hadji Ismael submitted an inventory showing that in Cotabato City, Hadji
Abdula had seven (7) residential lots with assessed value ranging from P5,020.00 to P25,800.00,
an agricultural land with assessed value of P860.00, three (3) one-storey residential buildings,
and one (1) two-storey residential building.[17] All these properties were declared for taxation
purposes in Hadji Abdulas name.
For her part, petitioner submitted an inventory showing that Hadji Abdula married to Neng
Malang had seven (7) residential lots with a total assessed value of P243,840.00 in Cotabato
City, an Isuzu pick-up jeepney valued at P30,000.00 and bank deposits.[18]
In the Memorandum that she filed with the Sharia District Court, petitioner asserted that all
the properties located in Cotabato City, including the vehicle and bank deposits, were conjugal
properties in accordance with Article 160 of the Civil Code and Article 116 of the Family Code
while properties located outside of Cotabato City were exclusive properties of the decedent.[19]
On the other hand, the oppositors contended in their own Memorandum that all the
properties left by Hadji Abdula were his exclusive properties for various reasons. First, Hadji
Abdula had no conjugal partnership with petitioner because his having contracted eight (8)
marriages with different Muslim women was in violation of the Civil Code that provided for a
monogamous marriage; a conjugal partnership presupposes a valid civil marriage, not a
bigamous marriage or a common-law relationship. Second, the decedent adopted a complete
separation of property regime in his marital relations; while his wives Jubaida
Kado, Nayo Hadji Omal and Mabay Ganap Hadji Adzis contributed to the decedents properties,
there is no evidence that petitioner had contributed funds for the acquisition of such
properties. Third, the presumption that properties acquired during the marriage are conjugal
properties is inapplicable because at the time he acquired the properties, the decedent was
married to four (4) women. Fourth, the properties are not conjugal in nature notwithstanding that
some of these properties were titled in the name of the decedent married to Neng Malang
because such description is not conclusive of the conjugal nature of the property. Furthermore,
because petitioner admitted in her verified petition that the properties belonged to the estate of
decedent, she was estopped from claiming, after formal offer of evidence, that the properties
were conjugal in nature just because some of the properties were titled in Hadji Abdulas name
married to Neng Malang. Fifth, if it is true that the properties were conjugal properties, then
these should have been registered in the names of both petitioner and the decedent.[20]
In its Order of September 26, 1994, the Sharia District Court presided by Judge Corocoy D.
Moson held that there was no conjugal partnership of gains between petitioner and the decedent
primarily because the latter married eight times. The Civil Code provision on conjugal
partnership cannot be applied if there is more than one wife because conjugal partnership
presupposes a valid civil marriage, not a plural marriage or a common-law relationship. The
court further found that the decedent was the chief, if not the sole, breadwinner of his families
and that petitioner did not contribute to the properties unlike the other wives named Jubaida,
Nayo and Mabay. The description married to Neng Malang in the titles to the real properties is
no more than that -- the description of the relationship between petitioner and the decedent. Such
description is insufficient to prove that the properties belong to the conjugal partnership of
gains. The court stated:

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In the instant case, decedent had four (4) wives at the time he acquired the properties in
question. To sustain the contention of the petitioner that the properties are her conjugal property
with the decedent is doing violence to the provisions of the Civil Code. Be it noted that at the
time of the marriage of the petitioner with the decedent, there were already three (3) existing
marriages. Assuming for the moment that petitioner and the decedent had agreed that the
property regime between them will be governed by the regime of conjugal partnership property,
that agreement is null and void for it is against the law, public policy, public order, good moral(s)
and customs.

Under Islamic law, the regime of property relationship is complete separation of property, in the
absence of any stipulation to the contrary in the marriage settlements or any other contract
(Article 38, P.D. 1083). There being no evidence of such contrary stipulation or contract, this
Court concludes as it had begun, that the properties in question, both real and personal, are not
conjugal, but rather, exclusive property of the decedent.[21]

Thus, the Sharia District Court held that the Islamic law should be applied in the distribution
of the estate of Hadji Abdula and accordingly disposed of the case as follows:

WHEREFORE, premises considered, the Court orders the following:

1) That the estate shall pay the corresponding estate tax, reimburse the funeral expenses
in the amount of P50,000.00, and the judicial expenses in the amount of P2,040.80;
2) That the net estate, consisting of real and personal properties, located in Talayan,
Maguindanao and in Cotabato City, is hereby ordered to be distributed and
adjudicated as follows:

a) Jubaida Kado Malang ------------------------- 2/64 of the estate

b) Nayo Omar Malang ------------------------- 2/64 - do -

c) Mabai Aziz Malang ------------------------- 2/64 - do -

d) Neng Kagui Kadiguia Malang ------------------- 2/64 - do -

e) Mohammad Ulyssis Malang-------------------------14/64 - do -

f) Ismael Malindatu Malang---------------------------14/64 - do -

g) Datulna Malang ------------------------- 14/64 - do -

h) Lawanbai Malang ------------------------- 7/64 - do -

i) Fatima (Kueng) Malang ------------------------- 7/64 - do -

Total------------------------ 64/64

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 3) That the amount of P250,000.00 given to Neng Kagui Kadiguia Malang by way of
advance be charged against her share and if her share is not sufficient, to return the
excess; and
4) That the heirs are hereby ordered to submit to this court their Project of Partition for
approval, not later than three (3) months from receipt of this order.

SO ORDERED.

On October 4, 1994, petitioner filed a motion for the reconsideration of that Order. The
oppositors objected to that motion. On January 10, 1995, the Sharia District Court denied
petitioners motion for reconsideration.[22] Unsatisfied, petitioner filed a notice of
appeal.[23] However, on January 19, 1995, she filed a manifestation withdrawing the notice of
appeal on the strength of the following provisions of P.D. No. 1083:

Art. 145. Finality of Decisions The decisions of the Sharia District Courts whether on appeal
from the Sharia Circuit Court or not shall be final. Nothing herein contained shall affect the
original and appellate jurisdiction of the Supreme Court as provided in the Constitution.

Petitioner accordingly informed the court that she would be filing an original action
of certiorari with the Supreme Court.[24]
On March 1, 1995, petitioner filed the instant petition for certiorari with preliminary
injunction and/or restraining order. She contends that the Sharia District Court gravely erred
in: (a) ruling that when she married Hadji Abdula Malang, the latter had three existing marriages
with Jubaida Kado Malang, Nayo Omar Malang and Mabay Ganap Malang and therefore the
properties acquired during her marriage could not be considered conjugal, and (b) holding that
said properties are not conjugal because under Islamic Law, the regime of relationship is
complete separation of property, in the absence of stipulation to the contrary in the marriage
settlement or any other contract.[25]
As petitioner sees it, the law applicable on issues of marriage and property regime is the
New Civil Code, under which all property of the marriage is presumed to belong to the conjugal
partnership. The Sharia Court, meanwhile, viewed the Civil Code provisions on conjugal
partnership as incompatible with plural marriage, which is permitted under Muslim law, and held
the applicable property regime to be complete separation of property under P.D. 1083.
Owing to the complexity of the issue presented, and the fact that the case is one of first
impression --- this is a singular situation where the issue on what law governs the property
regime of a Muslim marriage celebrated prior to the passage of the Muslim Code has been
elevated from a Sharia court for the Courts resolution --- the Court decided to solicit the opinions
of two amici curiae, Justice Ricardo C. Puno[26] and former Congressman Michael O.
Mastura[27]. The Court extends its warmest thanks to the amici curiae for their valuable inputs in
their written memoranda[28] and in the hearing of June 27, 2000.
Resolution of the instant case is made more difficult by the fact that very few of the
pertinent dates of birth, death, marriage and divorce are established by the record. This is
because, traditionally, Muslims do not register acts, events or judicial decrees affecting civil
status.[29] It also explains why the evidence in the instant case consisted substantially of oral
testimonies.
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 What is not disputed is that: Hadji Abdula contracted a total of eight marriages, counting the
three which terminated in divorce; all eight marriages were celebrated during the effectivity of
the Civil Code and before the enactment of the Muslim Code; Hadji Abdula divorced four wives
--- namely, Aida, Saaga, Mayumbai and Sabai --- all divorces of which took place before the
enactment of the Muslim Code; and, Hadji Abdula died on December 18, 1993, after the Muslim
Code and Family Code took effect, survived by four wives (Jubaida, Nayo, Mabay and Neng)
and five children, four of whom he begot with Aida and one with Mabay. It is also clear that the
following laws were in force, at some point or other, during the marriages of Hadji Abdula: the
Civil Code, which took effect on August 30, 1950; Republic Act No. 394 (R.A. 394), authorizing
Muslim divorces, which was effective from June 18, 1949 to June 13, 1969; the Muslim Code,
which took effect February 4, 1977; and the Family Code, effective August 3, 1988.
Proceeding upon the foregoing, the Court has concluded that the record of the case is simply
inadequate for purposes of arriving at a fair and complete resolution of the petition. To our mind,
any attempt at this point to dispense with the basic issue given the scantiness of the evidence
before us could result in grave injustice to the parties in this case, as well as cast profound
implications on Muslim families similarly or analogously situated to the parties herein. Justice
and accountability dictate a remand; trial must reopen in order to supply the factual gaps or, in
Congressman Masturas words, missing links, that would be the bases for judgment and
accordingly, allow respondent court to resolve the instant case. In ordering thus, however, we
take it as an imperative on our part to set out certain guidelines in the interpretation and
application of pertinent laws to facilitate the task of respondent court.
It will also be recalled that the main issue presented by the petition --- concerning the
property regime applicable to two Muslims married prior to the effectivity of the Muslim Code --
- was interposed in relation to the settlement of the estate of the deceased husband. Settlement of
estates of Muslims whose civil acts predate the enactment of the Muslim Code may easily result
in the application of the Civil Code and other personal laws, thus convincing the Court that it is
but propitious to go beyond the issue squarely presented and identify such collateral issues as are
required to be resolved in a settlement of estate case. As amicus curiae Congressman Mastura
puts it, the Court does not often come by a case as the one herein, and jurisprudence will be
greatly enriched by a discussion of the watershed of collateral issues that this case presents.[30]
The Court has identified the following collateral issues, which we hereby present in question
form: (1) What law governs the validity of a Muslim marriage celebrated under Muslim rites
before the effectivity of the Muslim Code? (2) Are multiple marriages celebrated before the
effectivity of the Muslim Code valid? (3) How do the Courts pronouncements in People vs.
Subano, 73 Phil. 692 (1942), and People vs. Dumpo, 62 Phil. 246 (1935), affect Muslim
marriages celebrated before the effectivity of the Muslim Code? (4) What laws govern the
property relationship of Muslim multiple marriages celebrated before the Muslim Code? (5)
What law governs the succession to the estate of a Muslim who died after the Muslim Code and
the Family Code took effect? (6) What laws apply to the dissolution of property regimes in the
cases of multiple marriages entered into before the Muslim Code but dissolved (by the husbands
death) after the effectivity of the Muslim Code? and (7) Are Muslim divorces effected before the
enactment of the Muslim Code valid?
The succeeding guidelines, which derive mainly from the Compliance of amicus
curiae Justice Puno, are hereby laid down by the Court for the reference of respondent court, and
for the direction of the bench and bar:

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First Collateral Issue: The Law(s) Governing Validity of Muslim Marriages Celebrated Before
the Muslim Code

The time frame in which all eight marriages of Hadji Abdula were
celebrated was during the effectivity of the Civil Code which, accordingly, governs the
marriages. Article 78 of the Civil Code[31]recognized the right of Muslims to contract marriage in
accordance with their customs and rites, by providing that ---

Marriages between Mohammedans or pagans who live in the non-Christian provinces may be
performed in accordance with their customs, rites or practices. No marriage license or formal
requisites shall be necessary. Nor shall the persons solemnizing these marriages be obliged to
comply with article 92.

However, thirty years after the approval of this Code, all marriages performed between Muslims
or other non-Christians shall be solemnized in accordance with the provisions of this Code. But
the President of the Philippines, upon recommendation of the Commissioner of National
Integration, may at any time before the expiration of said period, by proclamation, make any of
said provisions applicable to the Muslims and non-Christian inhabitants of any of the non-
Christian provinces.

Notably, before the expiration of the thirty-year period after which Muslims are enjoined to
solemnize their marriages in accordance with the Civil Code, P.D. 1083 or the Muslim Code was
passed into law. The enactment of the Muslim Code on February 4, 1977 rendered nugatory the
second paragraph of Article 78 of the Civil Code which provides that marriages between
Muslims thirty years after the approval of the Civil Code shall be solemnized in accordance with
said Code.

Second and Third Collateral Issues: The Validity of Muslim Multiple Marriages Celebrated
Before the Muslim Code; The Effect of People vs. Subano and People vs. Dumpo

Prior to the enactment of P.D. 1083, there was no law in this jurisdiction which sanctioned
multiple marriages.[32] It is also not to be disputed that the only law in force governing marriage
relations between Muslims and non-Muslims alike was the Civil Code of 1950.
The Muslim Code, which is the first comprehensive codification[33] of Muslim personal
laws,[34] also provides in respect of acts that transpired prior to its enactment:

Art. 186. Effect of code on past acts. --- (1) Acts executed prior to the effectivity of this Code
shall be governed by the laws in force at the time of their execution, and nothing herein except as
otherwise specifically provided, shall affect their validity or legality or operate to extinguish any
right acquired or liability incurred thereby.

The foregoing provisions are consistent with the principle that all laws operate prospectively,
unless the contrary appears or is clearly, plainly and unequivocably expressed or necessarily
implied;[35]accordingly, every case of doubt will be resolved against the retroactive opertion of
laws.[36] Article 186 aforecited enunciates the general rule of the Muslim Code to have its
7|Page
provisions applied prospectively, and implicitly upholds the force and effect of a pre-existing
body of law, specifically, the Civil Code --- in respect of civil acts that took place before the
Muslim Codes enactment.
Admittedly, an apparent antagonism arises when we consider that what the provisions of the
Civil Code contemplate and nurture is a monogamous marriage. Bigamous or polygamous
marriages are considered void and inexistent from the time of their performance.[37] The Family
Code which superseded the Civil Code provisions on marriage emphasizes that a subsequent
marriage celebrated before the registration of the judgment declaring a prior marriage void shall
likewise be void.[38] These provisions illustrate that the marital relation perceived by the Civil
Code is one that is monogamous, and that subsequent marriages entered into by a person with
others while the first one is subsisting is by no means countenanced.
Thus, when the validity of Muslim plural marriages celebrated before the enactment of the
Muslim Code was touched upon in two criminal cases, the Court applied the perspective in the
Civil Code that only one valid marriage can exist at any given time.
In People vs. Subano, supra, the Court convicted the accused of homicide, not parricide,
since ---

(f)rom the testimony of Ebol Subano, father of the deceased, it appears that the defendant
has three wives and that the deceased was the last in point of time. Although the practice of
polygamy is approved by custom among these non-Christians, polygamy, however, is not
sanctioned by the Marriage Law[39], which merely recognizes tribal marriage rituals. The
deceased, under our law, is not thus the lawful wife of the defendant and this precludes
conviction for the crime of parricide.

In People vs. Dumpo, supra, Mora Dumpo was prosecuted for bigamy when, legally married
to Moro Hassan, she allegedly contracted a second marriage with Moro Sabdapal. The Court
acquitted her on the ground that it was not duly proved that the alleged second marriage had all
the essential requisites to make it valid were it not for the subsistence of the first marriage. As it
appears that the consent of the brides father is an indispensable requisite to the validity of a
Muslim marriage, and as Mora Dumpos father categorically affirmed that he did not give his
consent to her union with Moro Sabdapal, the Court held that such union could not be a marriage
otherwise valid were it not for the existence of the first one, and resolved to acquit her of the
charge of bigamy.
The ruling in Dumpo indicates that, had it been proven as a fact that the second marriage
contained all the essential requisites to make it valid, a conviction for bigamy would have
prospered. [40]

Fourth Collateral Issue: Law(s) Governing Property Relations of Muslim Marriages Celebrated
Before the Muslim Code

This is the main issue presented by the instant petition. In keeping with our holding that the
validity of the marriages in the instant case is determined by the Civil Code, we hold that it is the
same Code that determines and governs the property relations of the marriages in this case, for
the reason that at the time of the celebration of the marriages in question the Civil Code was the
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only law on marriage relations, including property relations between spouses, whether Muslim or
non-Muslim. Inasmuch as the Family Code makes substantial amendments to the Civil Code
provisions on property relations, some of its provisions are also material, particularly to property
acquired from and after August 3, 1988.
Which law would govern depends upon: (1) when the marriages took place; (2) whether the
parties lived together as husband and wife; and (3) when and how the subject properties were
acquired.
Following are the pertinent provisions of the Civil Code:

Art. 119. The future spouses may in the marriage settlements agree upon absolute or relative
community of property, or upon complete separation of property, or upon any other regime. In
the absence of marriage settlements, or when the same are void, the system of relative
community or conjugal partnership of gains as established in this Code shall govern the property
relations between husband and wife.

Art. 135. All property brought by the wife to the marriage, as well as all property she acquires
during the marriage, in accordance with article 148, is paraphernal.

Art. 136. The wife retains the ownership of the paraphernal property.

Art. 142. By means of the conjugal partnership of gains the husband and wife place in a common
fund the fruits of their separate property and the income from their work or industry, and divide
equally, upon the dissolution of the marriage or of the partnership, the net gains or benefits
obtained indiscriminately by either spouse during the marriage.

Art. 143. All property of the conjugal partnership of gains is owned in common by the husband
and wife.

The Civil Code also provides in Article 144:

When a man and a woman live together as husband and wife, but they are not married, or their
marriage is void from the beginning, the property acquired by either or both of them through
their work or industry or their wages and salaries shall be governed by the rules on co-
ownership.

In a long line of cases, this Court has interpreted the co-ownership provided in Article 144
of the Civil Code to require that the man and woman living together as husband and wife without
the benefit of marriage or under a void marriage must not in any way be incapacitated to
marry.[41] Situating these rulings to the instant case, therefore, the co-ownership contemplated in
Article 144 of the Civil Code cannot apply to Hadji Abdulas marriages celebrated subsequent to
a valid and legally existing marriage, since from the point of view of the Civil Code Hadji
Abdula is not capacitated to marry. However, the wives in such marriages are not precluded from
proving that property acquired during their cohabitation with Hadji Abdula is
their exclusive property, respectively.[42] Absent such proof, however, the presumption is that
property acquired during the subsistence of a valid marriage --- and in the Civil Code, there can

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only be one validly existing marriage at any given time --- is conjugal property of such subsisting
marriage. [43]
With the effectivity of the Family Code on August 3, 1988, the following provisions of the
said Code are pertinent:

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 joint efforts, work or industry, and shall be owned by
them in equal shares. For purposes of this Article, a party who did not participate in the
acquisition of the other party of any property shall be deemed to have contributed jointly in the
acquisition thereof if the formers 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 the 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
or of 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.

Art. 148. In cases of cohabitation not falling under the preceding Article, only the properties
acquired by both of the parties through their actual joint contribution of money, property, or
industry shall be owned by them in common in proportion to their respective contributions. In
the absence of proof to the contrary, their contributions and corresponding shares are presumed
to be equal. The same rule and presumption shall apply to joint deposits of money and evidences
of credit.

If one of the parties is validly married to another, his or her share in the co-ownership shall
accrue to the absolute community or conjugal partnership existing in such valid marriage. If the
party who acted in bad faith is not validly married to another, his or her share shall be forfeited in
the manner provided in the last paragraph of the preceding Article.

The foregoing rules on forfeiture shall likewise apply even if both parties are in bad faith.

It will be noted that while the Civil Code merely requires that the parties live together as
husband and wife the Family Code in Article 147 specifies that they live exclusively with each
other as husband and wife. Also, in contrast to Article 144 of the Civil Code as interpreted by
jurisprudence, Article 148 of the Family Code allows for co-ownership in cases of cohabitation
where, for instance, one party has a pre-existing valid marriage, provided that the parties prove
10 | P a g e
their actual joint contribution of money, property, or industry and only to the extent of their
proportionate interest therein. The rulings in Juaniza vs. Jose, 89 SCRA 306, Camporodendo vs.
Garcia, 102 Phil. 1055, and related cases are embodied in the second paragraph of Article 148,
which declares that the share of the party validly married to another shall accrue to the property
regime of such existing marriage.

Fifth and Sixth Collateral Issues: Law(s) on Succession and Dissolution of Property Regimes

Hadji Abdula died intestate on December 16, 1993. Thus, it is the Muslim Code which
should determine the identification of the heirs in the order of intestate succession and the
respective shares of the heirs.
Meanwhile, the status and capacity to succeed on the part of the individual parties who
entered into each and every marriage ceremony will depend upon the law in force at the time of
the performance of the marriage rite.
The status and capacity to succeed of the children will depend upon the law in force at the
time of conception or birth of the child. If the child was conceived or born during the period
covered by the governance of the Civil Code, the Civil Code provisions on the determination of
the legitimacy or illegitimacy of the child would appear to be in point. Thus, the Civil Code
provides:

Art. 255. Children born after one hundred and eighty days following the celebration of the
marriage, and before three hundred days following its dissolution or the separation of the spouses
shall be presumed to be legitimate.

Against this presumption no evidence shall be admitted other than that of the physical
impossibility of the husbands having access to his wife within the first one hundred and twenty
days of the three hundred which preceded the birth of the child.

This physical impossibility may be caused:

(1) By the impotence of the husband;

(2) By the fact that the husband and wife were living separately, in such a way
that access was not possible;
(3) By the serious illness of the husband.

Art. 256. The child shall be presumed legitimate, although the mother may have declared against
its legitimacy or may have been sentenced as an adulteress.

If the child was conceived or born during the period covered by the governance of the
Muslim Code, i.e., from February 4, 1977 up to the death of Hadji Abdula on December 18,
1993, the Muslim Code determines the legitimacy or illegitimacy of the child. Under the Muslim
Code:

11 | P a g e
Art. 58. Legitimacy, how established. --- Legitimacy of filiation is established by the evidence of
valid marriage between the father and the mother at the time of the conception of the child.

Art. 59. Legitimate children. ---

(1) Children conceived in lawful wedlock shall be presumed to be legitimate. Whoever

claims illegitimacy of or impugns such filiation must prove his allegation.
(2) Children born after six months following the consummation of marriage or within
two years after the dissolution of the marriage shall be presumed to be
legitimate. Against this presumption no evidence shall be admitted other than that of
physical impossibility of access between the parents at or about the time of the
conception of the child.

Art. 60. Children of subsequent marriage. --- Should the marriage be dissolved and the wife
contracts another marriage after the expiration of her idda, the child born within six months from
the dissolution of the prior marriage shall be presumed to have been conceived during the former
marriage, and if born thereafter, during the latter.

Art. 61. Pregnancy after dissolution. --- If, after the dissolution of marriage, the wife believes
that she is pregnant by her former husband, she shall, within thirty days from the time she
became aware of her pregnancy, notify the former husband or his heirs of that fact. The husband
or his heirs may ask the court to take measures to prevent a simulation of birth.

Upon determination of status and capacity to succeed based on the foregoing provisions, the
provisions on legal succession in the Muslim Code will apply. Under Article 110 of the said
Code, the sharers to an inheritance include:
(a) The husband, the wife;
(b) The father, the mother, the grandfather, the grandmother;
(c) The daughter and the sons daughter in the direct line;
(d) The full sister, the consanguine sister, the uterine sister and the uterine brother.
When the wife survives with a legitimate child or a child of the decedents son, she is entitled
to one-eighth of the hereditary estate; in the absence of such descendants, she shall inherit one-
fourth of the estate.[44] The respective shares of the other sharers, as set out in Article 110
abovecited, are provided for in Articles 113 to 122 of P.D. 1083.

Seventh Collateral Issue: Muslim Divorces Before the Effectivity of the Muslim Code

R.A. 394 authorized absolute divorce among Muslims residing in non-Christian provinces,
in accordance with Muslim custom, for a period of 20 years from June 18, 1949 (the date of
approval of R.A. 394) to June 13, 1969.[45] Thus, a Muslim divorce under R.A. 394 is valid if it
took place from June 18, 1949 to June 13, 1969.

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 From the seven collateral issues that we discussed, we identify four corollary issues as to
further situate the points of controversy in the instant case for the guidance of the lower
court. Thus:
1. Which of the several marriages was validly and legally existing at the time of the opening
of the succession of Hadji Abdula when he died in 1993? The validly and legally existing
marriage would be that marriage which was celebrated at a time when there was no other
subsisting marriage standing undissolved by a valid divorce or by death. This is because all of
the marriages were celebrated during the governance of the Civil Code, under the rules of which
only one marriage can exist at any given time.
Whether or not the marriage was validly dissolved by a Muslim divorce depends upon the
time frame and the applicable law. A Muslim divorce under R.A. No. 394 is valid if it took place
from June 18, 1949 to June 13, 1969, and void if it took place from June 14, 1969. [46]
2. There being a dispute between the petitioner and the oppositors as regards the heirship of
the children begotten from different marriages, who among the surviving children are legitimate
and who are illegitimate? The children conceived and born of a validly existing marriage as
determined by the first corollary issue are legitimate. The fact and time of conception or birth
may be determined by proof or presumption depending upon the time frame and the applicable
law.
3. What properties constituted the estate of Hadji Abdula at the time of his death on
December 18, 1993? The estate of Hadji Abdula consists of the following:
a. Properties acquired during the existence of a valid marriage as determined by the first
corollary issue are conjugal properties and should be liquidated and divided between the spouses
under the Muslim Code, this being the law in force at the time of Hadji Abdulas death.
b. Properties acquired under the conditions prescribed in Article 144 of the Civil Code
during the period August 30, 1950 to August 2, 1988 are conjugal properties and should be
liquidated and divided between the spouses under the Muslim Code. However, the wives other
than the lawful wife as determined under the first corollary issue may submit their respective
evidence to prove that any of such property is theirs exclusively.
c. Properties acquired under the conditions set out in Articles 147 and 148 of the Family
Code during the period from and after August 3, 1988 are governed by the rules on co-
ownership.
d. Properties acquired under conditions not covered by the preceding paragraphs and
obtained from the exclusive efforts or assets of Hadji Abdula are his exclusive properties.
4. Who are the legal heirs of Hadji Abdula, and what are their shares in intestacy? The
following are Hadji Abdulas legal heirs: (a) the lawful wife, as determined under the first
corollary issue, and (2) the children, as determined under the second corollary issue. The Muslim
Code, which was already in force at the time of Hadji Abdulas death, will govern the
determination of their respective shares.
As we have indicated early on, the evidence in this case is inadequate to resolve in its
entirety the main, collateral and corollary issues herein presented and a remand to the lower court
is in order. Accordingly, evidence should be received to supply the following proofs: (1) the
exact dates of the marriages performed in accordance with Muslim rites or practices; (2) the

13 | P a g e
exact dates of the dissolutions of the marriages terminated by death or by divorce in accordance
with Muslim rites and practices, thus indicating which marriage resulted in a conjugal
partnership under the criteria prescribed by the first, second, and third collateral issues and the
first corollary issue; (3) the exact periods of actual cohabitation (common life under a common
roof) of each of the marriages during which time the parties lived together; (4) the identification
of specific properties acquired during each of the periods of cohabitation referred to in paragraph
3 above, and the manner and source of acquisition, indicating joint or individual effort, thus
showing the asset as owned separately, conjugally or in co-ownership; and (5) the identities of
the children (legitimate or illegitimate) begotten from the several unions, the dates of their
respective conceptions or births in relation to paragraphs 1 and 2 above, thereby indicating their
status as lawful heirs.
Amicus curiae Congressman Mastura agrees that since the marriage of petitioner to decedent
took place in 1972 the Civil Code is the law applicable on the issue of marriage
settlement, [47] but espouses that customs or established practices among Muslims in Mindanao
must also be applied with the force of law to the instant case.[48] Congressman Masturas
disquisition has proven extremely helpful in impressing upon us the background in which
Islamic law and the Muslim Code need to be interpreted, particularly the interconnectedness of
law and religion for Muslims[49] and the impracticability of a strict application of the Civil Code
to plural marriages recognized under Muslim law.[50] Regrettably, the Court is duty-bound to
resolve the instant case applying such laws and rights as are in existence at the time the pertinent
civil acts took place. Corollarily, we are unable to supplant governing law with customs, albeit
how widely observed. In the same manner, we cannot supply a perceived hiatus in P.D. 1083
concerning the distribution of property between divorced spouses upon one of the spouses
death.51
WHEREFORE, the decision dated September 26, 1994 of the Fifth Sharia District Court of
Cotabato City in Special Proceeding No. 94-40 is SET ASIDE, and the instant petition is
REMANDED for the reception of additional evidence and the resolution of the issues of the case
based on the guidelines set out in this Decision.
SO ORDERED.
Davide, Jr., C.J., Bellosillo, Melo, Puno, Vitug, Kapunan, Mendoza, Panganiban,
Quisumbing, Purisima, Pardo, Buena, Ynares-Santiago, and De Leon, Jr., JJ., concur.

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G.R. No. L-45870 May 11, 1984

MARGARET MAXEY assisted by Santiago Magbanua; FLORENCE MAXEY assisted by

Ofrecinio Santos; and LUCILLE MAXEY, petitioners,
vs.
THE HONORABLE COURT OF APPEALS and THE SPOUSES BEATO C. MACAYRA
and ALACOPUE MONDAY, respondents.

Jose B. Guyo for petitioners.

Epifanio Estrellado for private respondents.

GUTIERREZ, JR., J.:

This petition for review involves the rights of a woman over properties acquired in 1912
principally through the efforts of the man she was living with and at a time when the two were
not yet legally married.

The facts of the case are briefly stated in the decision of the Court of Appeals as follows:

The record reveals that Melbourne Maxey and Regina Morales (both deceased)
lived together as husband and wife in Banganga, Davao; that out of said union
were born six (6) children, among them are the herein plaintiffs, namely: John or
Carlos, Lucille, Margaret, Florence, Fred and George, all surnamed Maxey; that
during the period of their (Melbourne and Regina) cohabitation, or in 1911 and
1912, respectively, the late Melbourne Maxey acquired the parcels of land
described under Par. 4 of the com;plaint as evidenced by the documents of sale
marked as Exhibits 4-a and 5-1 (same as Exhibits Facts), Melbourne Maxey,
through his attorney-in-fact Julia Pamatluan Maxey, sold in favor of the
defendants-spouses in 1953 the parcels of land under litigation which fact of sale
was not controverted by the perties (Par. 1, /stipulation of Facts); that since
thereof, the defendants-spouses have taken immediate possession thereof
continuously up to the present.

Plaintiffs instituted the present case on January 26, 1962, before the Court of First
Instance of Davao, praying for the annulment of the documents of sale covering
the subject parcels of land and to recover possession thereof with damages from
the herein defendants-spouses, alleging, among others, that the aforesaid realties
were common properties of their parents, having been acquired during their
lifetime and through their joint effort and capital; and that the sales of the of the
said lands in favor of the defendants-spouses in 1953, after the death of their
mother, Regina Morales, was executed by their father, Melbourne Maxey, without
their knowledge and consent; and that they came to know of the above mentioned
sales only in 1961.

15 | P a g e
 On the other hand, defendants-spouses deny the material allegations of the
complaint and assert by way of affirmative defenses that they are the true and
lawful owners and possessors of the properties 'm question having purchased the
same in good faith and for value from Melbourne Maxey during his lifetime in
1953, based upon the reasonable belief that the latter is the me and exclusive
owner of the said parcels of land and that since then, they have been in possession
thereof openly, exclusively and continuously in concept of owners. Defendants -
spouses further counter for damages and attorney's fees and in the alternative, for
the value of the improvements they have introduced in the premises.

Melbourne Maxey and Regina Morales started living together in 1903. Their children claim that
their parents were united in 1903 in a marriage performed "in the military fashion". Both the trial
court and the appellate court rejected this claim of a "military fashion" marriage.

The couple had several children. John Carlos was born in 1903, followed by Lucille, Margaret,
Florence, Fred, and George. Except for the youngest son, all the children were born before the
disputed properties were acquired. The father, Melbourne Maxey, was a member of the 1899
American occupation forces who afterwards held high positions in the provincial government
and in the Philippine public schools system.

As earlier mentioned in the cited statement of facts, the disputed properties were acquired in
1911 and 1912 before the 1919 church marriage. Regina Morales Maxey died in 1919 sometime
after the church wedding. The husband remarried and in 1953, his second wife Julia Pamatluan
Maxey, using a power of attorney, sold the properties to the respondent spouses, Mr. and Mrs.
Beato C. Macayra.

The trial court applied Article 144 of the Civil Code which provides:

When a man and a woman live together as husband and wife, but they are not
married, or their marriage is void from the beginning, the property acquired by
either or both of them through their work or industry or their wages and salaries
shall be governed by the rules on co-ownership.

The court stated that "when a man and a woman lived together as husband and wife, justice
demands that the woman should be entitled to the share of the property. Certainly she cannot be
considered mere adornment or only for man's comfort and passion." The dispositive portion of
the decision reads:

Evidence, testimonial and document considered the Court hereby rendered

judgment in favor of the plaintiffs and against defendant declaring that:

1. Declaring the abovementioned sales as null and void;

2. Ordering defendant-spouses to return the said lands, and to pay for the value of
the use of the same at the rate of P1,000.00 a year from 1953 until delivered,
together with interests corresponding thereto at the legal rate;

16 | P a g e
 3. Ordering defendant-spouses to pay to plaintiff actual damages in the sum of
P500.00 and attorney fees in the sum of P3,000.00.

Defendants counterclaim is hereby ordered dismissed.

The Court of Appeals, however, found the parcels of, land to be exclusive properties of the late
Melbourne Maxey. It set aside the decision of the trial court, decease valid the deeds of sale, and
ruled that the appellants are the absolute owners of the properties in question.

The appellate decision sustained the following arguments of the respondent spouses:

Plaintiffs' evidence is completely devoid of any showing that these properties in

question were acquired through the joint efforts of Melbourne Maxey and Regina
Morales. Indeed, if at all, plaintiffs' evidence tend to establish the fact that
Melbourne Maxey by virtue of his positions as Deputy Governor of Zamboanga
(p. 36, t.s.n. de la Victoria) School Supervisor in the East Coast of Davao (p. 36,
t.s.n., Id.) was more than in a position to purchase these properties by his own
efforts, his own earnings and without the help of Regina Morales. On the other
hand, we have the declaration of Juana A. Morales, a widow of 68 years of age
when she testified, the sister-in-law of Regina Morales — Juana A. Morales
confirmed the fact that Melbourne Maxey held the positions of teacher, provincial
treasurer, deputy governor, district supervisor and lastly superintendent of
schools, respectively (p. 203, t.s.n., de la Victoria). But more important is her
declaration that her sister-in-law Regina Morales had no property of her own
whence she could have derived any income nor was Regina gainfully employed.
(pp. 203-204, t.s.n., Id.) It must be remembered that the showing must be CLEAR
that Regina Morales contributed to the acquisition of these properties. Here the
evidence is not only NOT CLEAR, indeed, there is no evidence at all that Regina
Morales contributed to the acquisition of the properties in question. In the case
of Aznar, et al vs. Garcia, et al, supra, the Supreme Court had before it the
common-law wife's own testimony — claiming that the properties in controversy
were the product of their joint industry. Her assertions however, were completely
brushed aside because aside from her claim that she took a hand in the
management and/or acquisition of the same, "there appears no evidence to prove
her alleged contribution or participation in the, acquisition of the properties
involved therein." (Id. p. 1069). In the case at bar, besides the absence of any
evidence showing that Regina Morales contributed by her efforts to the
acquisition of these properties in controversy, both plaintiffs and defendants'
evidence show that it was through Melbourne Maxey's efforts alone that these
properties were acquired. Indeed, that Regina Morales had no means at all to have
contributed in any manner to all its acquisition.

The petitioners raise the following issues in this petition:

1. THE COURT OF APPEALS ERRED IN DECLARING THAT THE LATE

SPOUSES MELBOURNE MAXEY AND REGINA MORALES WERE

17 | P a g e
 MARRIED ONLY IN 1919, BECAUSE THE TRUTH IS THAT THEY
MARRIED AS EARLY AS 1903.

2. THE COURT OF APPEALS, LIKEWISE, ERRED IN DECLARING THE

PROPERTIES IN QUESTION AS THE EXCLUSIVE PROPERTIES OF THE
LATE MELBOURNE MAXEY, TO THE EXCLUSION OF HIS WIFE REGINA
MORALES, BECAUSE THE MENTIONED PROPERTIES WERE
ACTUALLY ACQUIRED BY THE JOINT EFFORTS AND INDUSTRY OF
BOTH OF THEM AND THEREFORE, THESE PROPERTIES ARE COMMON
PROPERTIES.

3. THE COURT OF APPEALS FINALLY ERRED IN UNREASONABLY

GIVING THE TERM "JOINT EFFORTS" NOT ONLY A VERY, VERY
LIMITED MEANING BUT A CONCEPT WHICH IS ENTIRELY ABSURD
AND UNREALISTIC BECAUSE IN CONSTRUING THE TERM, THE
COURT OF APPEALS HAS REFUSED TO ACCEPT AN INTERPRETATION
WHICH IS MOST CONSISTENT WITH COMMON PRACTICE AND
CUSTOMS AS WELL AS IN ACCORD WITH THE BEST TRADITION OF
THE FILIPINO WAY OF LIFE.

The Court of First Instance and the Court of Appeals correctly rejected the argument that Act
No. 3613, the Revised Marriage Law, recognized "military fashion" marriages as legal. Maxey
and Morales were legally married at a church wedding solemnized on February 16, 1919. Since
Act No. 3613 was approved on December 4, 1929 and took effect six months thereafter, it could
not have applied to a relationship commenced in 1903 and legitimized in 1919 through a
marriage performed according to law. The marriage law in 1903 was General Order No. 70.
There is no provision in General Order No. 68 as amended nor in Act No. 3613 which would
recognize as an exception to the general rule on valid marriages, a so called "Military fashion"
ceremony or arrangement.

The Court of First Instance and the Court of Appeals both ruled that Melbourne Maxey and
Regina Morales were married only in 1919. This is a finding of fact which we do not disturb at
this stage of the case. There is no showing that this factual finding is totally devoid of or
unsupported by evidentiary basis or that it is inconsistent with the evidence of record.

The other issue raised in this Petition questions the Court of Appeals' finding that the parcels of
land in question were exclusive properties of the late Melbourne Maxey.

The petitioners argue that even assuming that the marriage of Melbourne Maxey and Regina
Morales took place only in February 17, 1919, still the properties legally and rightfully belonged
in equal share to the two because the acquisition of the said properties was through their joint
efforts and industry. The second and third errors mentioned by the petitioners are grounded on
the alleged wrong interpretation given by the Court of Appeals to the phrase "joint efforts". The
petitioners suggest that their mother's efforts in performing her role as mother to them and as
wife to their father were more than sufficient contribution to constitute the parcels of land in
question as common properties acquired through the joint efforts to their parents.

18 | P a g e
The Court of Appeals, however, was of the opinion that Article 144 of the Civil Code is not
applicable to the properties in question citing the case of Aznar et al. v. Garcia (102 Phil. 1055)
on non-retroactivity of codal provisions where vested rights may be prejudiced or impaired. And,
assuming that Article 144 of the Civil Code is applicable, the Court of Appeals held that the
disputed properties were exclusively those of the petitioner's father because these were not
acquired through the joint efforts of their parents. This conclusion stems from the interpretation
given by the Court of Appeals to the phrase "joint efforts" to mean "monetary contribution".
According to the Court

... This view with which this ponente personally wholeheartedly agrees for some
time now has been advocated by sympathizers of equal rights for women, notably
in the Commission on the Status of Women of the United Nations. In our very
own country there is strong advocacy for the passage of a presidential decree
providing that "the labors of a spouse in managing the affairs of the household
shall be credited with compensation." Unfortunately, until the happy day when
such a proposal shall have materialized into law, Courts are bound by existing
statutes and jurisprudence, which rigidly interpret the phrase "joint efforts"
as monetary contributions of the man and woman living together without benefit
of marriage, and to date, the drudgery of a woman's lifetime dedication to the
management of the household goes unremunerated, and has no monetary value.
Thus, in the case of Aznar vs. Garcia(supra) the Supreme Court held that the man
and the woman have an equal interest in the properties acquired during the union
and each would be entitled to participate therein if said properties were the
product of their joint effort. In the same case it was stated that aside` from the
observation of the trial court that the appellee was an illiterate woman, there
appears no evidence to prove appellee's contribution (in terms of pesos and
centavos) or participation in the acquisition of the properties involved; therefore,
following the aforecited ruling of the Court, appellee's claim for one-half (1/2) of
the properties cannot be granted.

In so concluding, the respondent Court of Appeals accepted the private respondents' argument
that it was unlikely for the petitioners' mother to have materially contributed in the acquisition of
the questioned properties since she had no property of her own nor was she gainfully engaged in
any business or profession from which she could derive income unlike their father who held the
positions of teacher deputy governor, district supervisor, and superintendent of schools.

We are constrained to adopt a contrary view. Considerations of justice dictate the retroactive
application of Article 144 of the Civil Code to the case at bar. Commenting on Article 2252 of
the Civil Code which provides that changes made and new provisions and rules laid down by the
Code which may prejudice or impair vested or acquired rights in accordance with the old
legislation shall have no retroactive effect, the Code Commission stated:

Laws shall have no retroactive effect, unless the contrary is provided. The
question of how far the new Civil Code should be made applicable to past acts
and events is attended with the utmost difficulty. It is easy enough to understand
the abstract principle that laws have no retroactive effect because vested or
acquired rights should be respected. But what are vested or acquired rights? The

19 | P a g e
 Commission did not venture to formulate a definition of a vested or acquired right
seeing that the problem is extremely committed.

What constitutes a vested or acquired right well be determined by the courts as

each particular issue is submitted to them, by applying the transitional provisions
set forth, and in case of doubt, by observing Art. 9 governing the silence or
obscurity of the law. In this manner, the Commission is confident that the
judiciary with its and high sense of justice will be able to decide in what cases the
old Civil Code would apply and in what cases the new one should be binding This
course has been preferred by the Commission, which did not presume to be able
to foresee and adequately provide for each and every question that may arise.
(Report of the Code Commission, pp. 165-166).

Similarly, with respect to Article 2253 which provides inter alia that if a right should be declared
for the first tune in the Code, it shall be effective at once, even though the act or event which
gives rise thereto may have been done or may have occurred under the prior legislation, provided
said new right does not prejudice or impair any vested or acquired right, of the same origin, the
Code Commission commented:

... But the second sentence gives a retroactive effect to newly created rights
provided they do not prejudice or impair any vested or acquired right. The
retroactive character of the new right is the result of the exercise of the sovereign
power of legislation, when the lawmaking body is persuaded that the new right is
called for by considerations of justice and public policy. But such new right most
not encroach upon a vested right. (Report of the Code Commission, p. 167).

The requirement of non-impairment of vested rights is clear. It is the opinion of the Court of
Appeals that vested rights were prejudiced. We do not think so.

Prior to the effectivity of the present Civil Code on August 30, 1950, the formation of an
informal civil partnership between a man and wife not legally married and their corresponding
right to an equal share in properties acquired through their joint efforts and industry during
cohabitation was recognized through decisions of this Court. (Aznar et al. vs. Garcia, 102 Phil.
1055; Flores vs. Rehabilitation Finance Corporation, 94 Phil. 451; Marata vs. Dionio, L-24449,
December 31, 1925; Lesaca v. Lesaca, 91 Phil. 135.)

With the enactment of the new Civil Code, Article 144 codified the law established through
judicial precedents but with the modification that the property governed by the rules on co-
ownership may be acquired by either or both of them through their work or industry. Even if it is
only the man who works, the property acquired during the man and wife relationship belongs
through a fifty-fifty sharing to the two of them.

This new article in the Civil Code recognizes that it would be unjust and abnormal if a woman
who is a wife in all aspects of the relationship except for the requirement of a valid marriage
must abandon her home and children, neglect her traditional household duties, and go out to earn
a living or engage in business before the rules on co-ownership would apply. This article is

20 | P a g e
particularly relevant in this case where the "common-law" relationship was legitimated through a
valid marriage 34 years before the properties were sold.

The provisions of the Civil Code are premised on the traditional and existing, the normal and
customary gender roles of Filipino men and women. No matter how large the income of a
working wife compared to that of her husband, the major, if not the full responsibility of running
the household remains with the woman. She is the administrator of the household. The fact that
the two involved in this case were not legally married at the time does not change the nature of
their respective roles. It is the woman who traditionally holds the family purse even if she does
not contribute to filling that purse with funds. As pointed out by Dean Irene R. Cortes of the
University of the Philippines, "in the Filipino family, the wife holds the purse, husbands hand
over their pay checks and get an allowance in return and the wife manages the affairs of the
household. . . . And the famous statement attributed to Governor General Leonard Wood is
repeated: In the Philippines, the best man is the woman." (Cortes, "Womens Rights Under the
New Constitution". WOMAN AND THE LAW, U.P. Law Center, p. 10.)

The "real contribution" to the acquisition of property mentioned in Yaptinchay vs. Torres (28
SCRA 489) must include not only the earnings of a woman from a profession, occupation, or
business but also her contribution to the family's material and spiritual goods through caring for
the children, administering the household, husbanding scarce resources, freeing her husband
from household tasks, and otherwise performing the traditional duties of a housewife.

Should Article 144 of the Civil Code be applied in this case? Our answer is "Yes" because there
is no showing that vested rights would be impaired or prejudiced through its application.

A vested right is defined by this Court as property which has become fixed and established, and
is no longer open to doubt or controversy; an immediately fixed right of present or future
enjoyment as distinguished from an expectant or contingent right (Benguet Consolidated Mining
Co. vs. Pineda, 98 Phil. 711; Balbao vs. Farrales, 51 Phil. 498). This cannot be said of the
"exclusive" right of Melbourne Maxey over the properties in question when the present Civil
Code became effective for standing against it was the concurrent right of Regina Morales or her
heirs to a share thereof. The properties were sold in 1953 when the new Civil Code was already
in full force and effect. Neither can this be said of the rights of the private respondents as
vendees insofar as one half of the questioned properties are concerned as this was still open to
controversy on account of the legitimate claim of Regina Morales to a share under the applicable
law.

The disputed properties were owned in common by Melbourne Maxey and the estate of his late
wife, Regina Morales, when they were sold. Technically speaking, the petitioners should return
one-half of the P1,300.00 purchase price of the land while the private respondents should pay
some form of rentals for their use of one-half of the properties. Equitable considerations,
however, lead us to rule out rentals on one hand and return of P650.00 on the other.

WHEREFORE, the petition for review on certiorari is hereby granted. The judgment of the Court
of Appeals is reversed and set aside insofar as one-half of the disputed properties are concerned.
The private respondents are ordered to return one-half of said properties to the heirs of Regina
Morales. No costs.

21 | P a g e
SO ORDERED.

Teehankee (Chairman), Escolin, Relova and De la Fuente, JJ., concur.

Melencio-Herrera, J., took no part.

Plana, J., I reserve my vote.

22 | P a g e
 [G.R. No. 122749. July 31, 1996]

ANTONIO A. S. VALDES, petitioner, vs. REGIONAL TRIAL COURT, BRANCH 102,

QUEZON CITY, and CONSUELO M. GOMEZ-VALDES, respondents.

DECISION
VITUG, J.:

The petition for review bewails, purely on a question of law, an alleged error committed by
the Regional Trial Court in Civil Case No. Q-92-12539. Petitioner avers that the court a quo has
failed to apply the correct law that should govern the disposition of a family dwelling in a
situation where a marriage is declared void ab initio because of psychological incapacity on the
part of either or both of the parties to the contract.
The pertinent facts giving rise to this incident are, by and large, not in dispute.
Antonio Valdes and Consuelo Gomez were married on 05 January 1971. Begotten during
the marriage were five children. In a petition, dated 22 June 1992, Valdes sought the declaration
of nullity of the marriage pursuant to Article 36 of the Family Code (docketed Civil Case No. Q-
92-12539, Regional Trial Court of Quezon City, Branch 102). After hearing the parties following
the joinder of issues, the trial court,[1] in its decision of 29 July 1994, granted the petition; viz:

"WHEREFORE, judgment is hereby rendered as follows:

"(1) The marriage of petitioner Antonio Valdes and respondent Consuelo Gomez-Valdes is
hereby declared null and void under Article 36 of the Family Code on the ground of their mutual
psychological incapacity to comply with their essential marital obligations;

"(2) The three older children, Carlos Enrique III, Antonio Quintin and Angela Rosario shall
choose which parent they would want to stay with.

"Stella Eloisa and Joaquin Pedro shall be placed in the custody of their mother, herein
respondent Consuelo Gomez-Valdes.

"The petitioner and respondent shall have visitation rights over the children who are in the
custody of the other.

"(3) The petitioner and respondent are directed to start proceedings on the liquidation of their
common properties as defined by Article 147 of the Family Code, and to comply with the
provisions of Articles 50, 51 and 52 of the same code, within thirty (30) days from notice of this
decision.

"Let a copy of this decision be furnished the Local Civil Registrar of Mandaluyong, Metro
Manila, for proper recording in the registry of marriages."[2] (Italics ours)

23 | P a g e
 Consuelo Gomez sought a clarification of that portion of the decision directing compliance
with Articles 50, 51 and 52 of the Family Code. She asserted that the Family Code contained no
provisions on the procedure for the liquidation of common property in "unions without
marriage." Parenthetically, during the hearing on the motion, the children filed a joint affidavit
expressing their desire to remain with their father, Antonio Valdes, herein petitioner.
In an Order, dated 05 May 1995, the trial court made the following clarification:

"Consequently, considering that Article 147 of the Family Code explicitly provides that the
property acquired by both parties during their union, in the absence of proof to the contrary, are
presumed to have been obtained through the joint efforts of the parties and will be owned by
them in equal shares, plaintiff and defendant will own their 'family home' and all their other
properties for that matter in equal shares.

"In the liquidation and partition of the properties owned in common by the plaintiff and
defendant, the provisions on co-ownership found in the Civil Code shall apply."[3] (Italics
supplied)

In addressing specifically the issue regarding the disposition of the family dwelling, the trial
court said:

"Considering that this Court has already declared the marriage between petitioner and respondent
as null and void ab initio, pursuant to Art. 147, the property regime of petitioner and respondent
shall be governed by the rules on co-ownership.

"The provisions of Articles 102 and 129 of the Family Code finds no application since Article
102 refers to the procedure for the liquidation of the conjugal partnership property and Article
129 refers to the procedure for the liquidation of the absolute community of property."[4]

Petitioner moved for a reconsideration of the order. The motion was denied on 30 October
1995.
In his recourse to this Court, petitioner submits that Articles 50, 51 and 52 of the Family
Code should be held controlling; he argues that:
"I

"Article 147 of the Family Code does not apply to cases where the parties are psychological
incapacitated.

"II

"Articles 50, 51 and 52 in relation to Articles 102 and 129 of the Family Code govern the
disposition of the family dwelling in cases where a marriage is declared void ab initio, including
a marriage declared void by reason of the psychological incapacity of the spouses.

"III

24 | P a g e
"Assuming arguendo that Article 147 applies to marriages declared void ab initio on the ground
of the psychological incapacity of a spouse, the same may be read consistently with Article 129.

"IV

"It is necessary to determine the parent with whom majority of the children wish to stay."[5]

The trial court correctly applied the law. In a void marriage, regardless of the cause thereof,
the property relations of the parties during the period of cohabitation is governed by the
provisions of Article 147 or Article 148, such as the case may be, of the Family Code. Article
147 is a remake of Article 144 of the Civil Code as interpreted and so applied in previous
cases;[6] 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 joint efforts, work or industry, and shall be owned by
them in equal shares. For purposes of this Article, a party who did not participate in the
acquisition by the other party of any property shall be deemed to have contributed jointly in the
acquisition thereof if the former's efforts consisted in the care and maintenance of the family and
of the household.

"Neither party can encumber or dispose by acts inter vivos of his or her share in the property
acquired during cohabitation and owned in common, without the consent of the other, until after
the termination of their cohabitation.

"When only one of the parties to a void marriage is in good faith, the share of the party in bad
faith in the co-ownership shall be forfeited in favor of their common children. In case of default
of or waiver by any or all of the common children or their descendants, each vacant share shall
belong to the respective surviving descendants. In the absence of descendants, such share shall
belong to the innocent party. In all cases, the forfeiture shall take place upon termination of the
cohabitation."

This peculiar kind of co-ownership applies when a man and a woman, suffering no legal
impediment to marry each other, so exclusively live together as husband and wife under a void
marriage or without the benefit of marriage. The term "capacitated" in the provision (in the first
paragraph of the law) refers to the legal capacity of a party to contract marriage, i.e., any "male
or female of the age of eighteen years or upwards not under any of the impediments mentioned
in Articles 37 and 38"[7] of the Code.
Under this property regime, property acquired by both spouses through
their work and industry shall be governed by the rules on equal co-ownership. Any property
acquired during the union is prima facie presumed to have been obtained through their joint
efforts. A party who did not participate in the acquisition of the property shall still be considered
as having contributed thereto jointly if said party's "efforts consisted in the care and maintenance
25 | P a g e
of the family household."[8] Unlike the conjugal partnership of gains, the fruits of the couple's
separate property are not included in the co-ownership.
Article 147 of the Family Code, in substance and to the above extent, has clarified Article
144 of the Civil Code; in addition, the law now expressly provides that
(a) Neither party can dispose or encumber by act inter vivos his or her share in co-ownership
property, without the consent of the other, during the period of cohabitation; and
(b) In the case of a void marriage, any party in bad faith shall forfeit his or her share in the
co-ownership in favor of their common children; in default thereof or waiver by any or all of the
common children, each vacant share shall belong to the respective surviving descendants, or still
in default thereof, to the innocent party. The forfeiture shall take place upon the termination of
the cohabitation[9] or declaration of nullity of the marriage.[10]
When the common-law spouses suffer from a legal impediment to marry or when they do not
live exclusively with each other (as husband and wife ),only the property acquired by both of
them through their actual joint contribution of money, property or industry shall be owned in
common and in proportion to their respective contributions. Such contributions and
corresponding shares, however, are prima facie presumed to be equal. The share of any party
who is married to another shall accrue to the absolute community or conjugal partnership, as the
case may be, if so existing under a valid marriage. If the party who has acted in bad faith is not
validly married to another, his or her share shall be forfeited in the manner already heretofore
expressed.[11]
In deciding to take further cognizance of the issue on the settlement of the parties' common
property, the trial court acted neither imprudently nor precipitately; a court which has jurisdiction
to declare the marriage a nullity must be deemed likewise clothed with authority to resolve
incidental and consequential matters. Nor did it commit a reversible error in ruling that petitioner
and private respondent own the "family home" and all their common property in equal shares, as
well as in concluding that, in the liquidation and partition of the property owned in common by
them, the provisions on co-ownership under the Civil Code, not Articles 50, 51 and 52, in
relation to Articles 102 and 129,[12] of the Family Code, should aptly prevail. The rules set up to
govern the liquidation of either the absolute community or the conjugal partnership of gains, the
property regimes recognized for valid and voidable marriages (in the latter case until the contract
is annulled ),are irrelevant to the liquidation of the co-ownership that exists between common-
law spouses. The first paragraph of Article 50 of the Family Code, applying paragraphs (2 ),(3
),(4) and (5) of Article 43,[13] relates only, by its explicit terms, to voidable marriages and,
exceptionally, to void marriages under Article 40[14] of the Code, i.e., the declaration of nullity of
a subsequent marriage contracted by a spouse of a prior void marriage before the latter is
judicially declared void. The latter is a special rule that somehow recognizes the philosophy and
an old doctrine that void marriages are inexistent from the very beginning and no judicial decree
is necessary to establish their nullity. In now requiring for purposes of remarriage, the
declaration of nullity by final judgment of the previously contracted void marriage, the present
law aims to do away with any continuing uncertainty on the status of the second marriage. It is
not then illogical for the provisions of Article 43, in relation to Articles 41[15] and 42,[16] of the
Family Code, on the effects of the termination of a subsequent marriage contracted during the
subsistence of a previous marriage to be made applicable pro hac vice. In all other cases, it is not
to be assumed that the law has also meant to have coincident property relations, on the one hand,
between spouses in valid and voidable marriages (before annulment) and, on the other, between
26 | P a g e
common-law spouses or spouses of void marriages, leaving to ordain, in the latter case, the
ordinary rules on co-ownership subject to the provision of Article 147 and Article 148 of the
Family Code. It must be stressed, nevertheless, even as it may merely state the obvious, that the
provisions of the Family Code on the "family home," i.e., the provisions found in Title V,
Chapter 2, of the Family Code, remain in force and effect regardless of the property regime of
the spouses.
WHEREFORE, the questioned orders, dated 05 May 1995 and 30 October 1995, of the
trial court are AFFIRMED. No costs.
SO ORDERED.
Padilla, Kapunan, and Hermosisima, Jr., JJ., concur.
Bellosillo, J., on leave.

27 | P a g e
MARY JOSEPHINE GOMEZ and G.R. No. 132537
EUGENIA SOCORRO C. GOMEZ-
SALCEDO, P e t i t i o n e r s, Present:

PUNO,
Chairman,
- versus - AUSTRIA-MARTINEZ,
CALLEJO, SR.,
TINGA, and
CHICO-NAZARIO, JJ.
ROEL, NOEL and JANNETTE
BEVERLY STA. INES and
HINAHON STA. INES, Promulgated:
R e s p o n d e n t s.
October 14, 2005
x- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -x

DECISION
CHICO-NAZARIO, J.:

Before Us is a Petition for Review on Certiorari of the Decision[1] of the Court of

Appeals reversing the Order[2] of the Regional Trial Court (RTC) of Bayombong, Nueva

Vizcaya, Branch 27, dismissing the complaint of herein respondents for lack of jurisdiction.

The pertinent facts are as follows:

On 17 June 1986, Mary Josephine C. Gomez (Mary Josephine) and Eugenia Socorro C.

Gomez-Salcedo (Socorro) filed a complaint for damages before the RTC of Pasig against

Marietta dela Cruz Sta. Ines (Marietta) alleging that they are the children of the deceased

Purificacion dela Cruz Gomez who, during her lifetime, entrusted her rice land with an area of

25,087 square meters located at Bayombong, Nueva Vizcaya, to Marietta, together with the

Transfer Certificate of Title (TCT) No. 47082 covering said land, for the latter to manage and

supervise. Mary Josephine and Socorro further alleged that they have demanded for an

28 | P a g e
accounting of the produce of said rice land while under the management of Marietta, and for the

return of the TCT to the property, but the latter refused, thus compelling the sisters to file a civil

case[3] before the Pasig RTC.

During the pre-trial conference of the case, both Marietta and her counsel failed to

appear, thus, by motion of counsel for Mary Josephine and Socorro, the trial court declared

Marietta in default.

On 24 January 1989, the trial court rendered judgment against Marietta ordering her to

deliver to Mary Josephine and Socorro the owners copy of TCT No. 47082 and to

pay P40,000.00 as moral damages, P20,000.00 as actual or compensatory damages, P30,000.00

as exemplary or corrective damages, and P15,000.00 as attorneys fees.

After said judgment became final and executory, a writ of execution was issued by the

Pasig RTC, by virtue of which, a parcel of land (with improvements) located in Bayombong,

Nueva Vizcaya, with an area of 432 square meters, covered by TCT No. T-55314 registered in

the name of Marietta dela Cruz Sta. Ines, was levied upon by Flaviano Balgos, Jr., then

Provincial Sheriff of Nueva Vizcaya, to satisfy the damages awarded in the civil case. Said

property was sold at a public auction on 25 August 1992 to Mary Josephine as the highest bidder.

The sale was registered with the Register of Deeds of Nueva Vizcaya on 17 September 1992.

On 12 July 1993, a complaint[4] for annulment of said sale was filed before the RTC of

Bayombong, Nueva Vizcaya, by Hinahon Sta. Ines together with Noel, Roel, and Jannette, all

29 | P a g e
named Sta. Ines, husband and children of Marietta, respectively, against Mary Josephine and

Sheriff Flaviano Balgos, Jr. on the ground that said house and lot sold during the public auction

is their family residence, and is thus exempt from execution under Section 12(a), Rule 39 of the

Rules of Court, and under Article 155 of the Family Code.

Mary Josephine moved to dismiss the complaint on the following grounds: 1) the Nueva

Vizcaya RTC has no jurisdiction over the case; 2) the plaintiffs have no legal capacity to sue;

and 3) the complaint does not state a cause of action.

Acting on the Motion to Dismiss, the Nueva Vizcaya RTC issued an Order on 10 November

1993 denying said motion. According to the court a quo:

After studying the law, rules and jurisprudence, the Court is convinced
that the motion to dismiss has no legal basis.

On the claim that this court has no jurisdiction over the case, inasmuch as this
case involves proceedings to execute the decision of the Pasig RTC, it must be
noted that the petitioners are not parties to the Pasig case. They are third-party
claimants who became such only after trial in the previous (the Pasig) case has
been terminated and the judgment therein has become final and executory. They
are not indispensable nor necessary parties in the Pasig case and they could not,
therefore, even intervene in the said case.

Execution proceedings are entirely a different proceedings from the trial proper of
a case inasmuch as trial proper is conducted by the Court while execution
proceedings are conducted by the Sheriff after the judgment in a trial proper has
become final and executory. The petitioners, therefore, could not, even if they
wanted to, intervene in the trial proper because they are neither indispensable nor
necessary parties and because, precisely, the trial was already over and the
judgment has become final and executory.

But they could, as they have done, intervene in the execution stage because their
rights have been violated by the action of the sheriff. Under Section 17 of Rule
39, of the Rules of Court, the petitioners could, as they have done, file an
independent action to protect their rights. Under the Judiciary Reorganization Act

30 | P a g e
and Section 2, paragraph a, of Rule 4, Rules of Court, this Court can take
cognizance of the action. There is, therefore, no doubt that this court has
jurisdiction over this case.

It must be mentioned that there are legal obstacles for the petitioners to seek
remedy from the Pasig Court.

Firstly, they are not indispensable nor necessary parties to the Pasig case.
Secondly, the judgment therein has become final and executory. Thirdly, under
paragraph a, Section 2 of Rule 4 of the Rules of Court, cases involving real
properties must be filed in the province where the property or any part thereof
lies. The property levied upon is located in the province of Nueva Vizcaya.
Fourthly, as the judgment in the Pasig case has become final and executory, the
said Pasig court has already lost jurisdiction over the said case except in some
instances and the exception does not apply to this case.

While it is, therefore, true that conflicts of jurisdiction should be avoided,

nonetheless, there can be no conflict of jurisdiction in this case because there is no
concurrent jurisdiction between the Pasig court and this court for reasons already
set forth above.

On the allegation that the petitioners have no legal capacity to sue, the court
believes that they have, in fact, that capacity to sue. Under Article 154 of the
Family Code of the Philippines, the petitioner Hinahon Sta. Ines and the other
petitioners are beneficiaries of the Family home. Any one or all of them can,
therefore, legally question the execution, forced sale or attachment which is
prohibited under Article 155 thereof. It should be noted that, as already pointed
out, the right of the petitioners as beneficiaries of the family home has been
violated when the said family home was levied upon on execution and sold in
violation of the law.

As for lack of cause of action, the Court has already stated above that the right of
the petitioners as beneficiaries of the family home has been transgressed. They,
therefore, have a cause of action against the sheriffs act of unlawfully levying
upon and selling the rights, interests, title and participation in the land in question
and its improvement of Marietta dela Cruz-Sta. Ines.

Pertinently, it may be asked whether an undivided interest of the owner of the

family home like Marietta Sta. Ines can be levied upon on execution and this fact
will not violate the prohibition on such levy found in the Family Code.

The court believes that this can not be done.

Article 154 of the Family Code expressly enumerates the beneficiaries of a family
home. If a person other than any of those enumerated in Article 154 would be
allowed to have an undivided interest in the family home, then he becomes a
beneficiary of such property in violation of the said provision under the principle
of expressio unius est exclusio alterius.
31 | P a g e
 Moreover, Article 152 of the Family Code provides that the family home,
constituted jointly by the husband and the wife x x x, is the dwelling house where
they and their family reside, and the land on which it is situated.

The family home as defined by the said article can not be split in such a way that
part of it, albeit undivided, is owned by a non-beneficiary. To allow this would be
to diminish the family home which can be used and enjoyed by those entitled
thereto under the law. This is so because whoever buys the undivided portion
belonging to one of the owners, as in this case, can demand an equal exercise of
the right of co-ownership from the other beneficiaries thereof. To the extent that
such demand can be made effective, the full enjoyment of the property by the
beneficiaries thereof will be correspondingly diminished. The court believes that
when the Family Code allows the constitution of a family home, it does so with
the idea that the beneficiaries thereof can have untrammelled use and enjoyment
thereof; hence, the express prohibition to levy on such property.

WHEREFORE, for lack of basis, the motion to dismiss is hereby DENIED. The
respondent is hereby directed to file her answer within 15 days from receipt of
this Order.[5]

On 01 December 1993, herein petitioners filed a Motion for Reconsideration, which was

then granted by the Nueva Vizcaya RTC in an Order dated 28 January 1994. The trial court

reasoned thus:

After restudying the jurisprudence involved in the motion for

reconsideration impinging [sic] on the jurisdiction of this court in relation to the
execution of a judgment rendered by another Regional Trial Court (in Pasig,
Metro Manila), indeed, the only conclusion that can be honestly reached is that
this court has no jurisdiction over the nature of the herein action.

As correctly posited by the defendants counsel, it is the Pasig Regional

Trial Court that should still exercise jurisdiction over execution of its judgments,
a power that carries with it the right to determine every question of fact and law
which may be involved in the execution. (see GSIS vs. Guines, 219 SCRA 724;
Darwin vs. Takonaza, 197 SCRA 442). In fine, plaintiffs should have challenged
the action of the Sheriffs in the civil case wherein the judgment being executed
was promulgated, and not in an independent action filed with a different or even
the same court.

WHEREFORE, for this courts lack of jurisdiction to hear and decide this
case, the instant action is hereby DISMISSED, with costs de officio.[6]

32 | P a g e
 Herein respondents filed a Motion for Reconsideration of said Order of dismissal which

was denied by the lower court in an Order dated 15 March 1994.

Aggrieved, respondents appealed said Order to the Court of Appeals raising the following

errors: 1) the lower court erred in holding that it lacks jurisdiction for the question presented in

this case should have been brought in the Pasig Court as a part of the proceedings therein and not

as a separate case; and 2) the lower court erred in holding that plaintiffs (herein respondents)

cannot be considered third-party claimants.

In their Appellees Brief, herein petitioners assailed the jurisdiction of the appellate court

to entertain the said appeal arguing that the issues raised were purely questions of law which the

Supreme Court has exclusive appellate jurisdiction.

On 29 March 1996, the Court of Appeals rendered a Decision reversing the Order of

dismissal. According to the appellate court:

Section 17, Rule 39 of the Revised Rules of Court provides:

Proceedings where property claimed by third person - If

property levied on be claimed by any other person than the
judgment debtor or his agent, and such person make an affidavit of
his title thereto or right to the possession thereof, stating the
grounds of such right or title, and served the same upon the officer
making the levy, and a copy thereof upon the judgment creditor,
the officer shall not be bound to keep the property, unless such
judgment creditor or his agent, on demand of the officer,
indemnify the officer against such claim by a bond in a sum not

33 | P a g e
 greater than the value of the property levied on. xxx xxx xxx
(Italics supplied)

To fall within the ambit of a third-party claimant within the contemplation

of the foregoing, it is not required that one must claim title to the property levied
upon, a claim to the right to the possession thereof being enough, provided that
the grounds of such right are amply explained.

The plaintiffs-appellants in this case claim in their complaint that they

have occupied the house and lot subject of the levy as a family residence since
1972 and that, under Articles 153 and 155 of the Family Code, the same is exempt
from execution. Additionally, if indeed the house and lot subject of this suit are
components of a family home, under Article 154 of the same Code, the plaintiffs
are the beneficiaries thereof.

As such third-party claimants, plaintiffs-appellants may avail of the

remedy known as terceria provided in Section 17 above quoted, by serving upon
the sheriff and the judgment creditor their affidavit attesting to their right of
possession of the property under the Family Code. Also, the plaintiffs-appellants,
as third-party claimants, may invoke the supervisory power of the Pasig Court, as
explained in Ong vs. Tating, et al., 149 SCRA 265, and after a summary hearing,
the Pasig Court may command that the house and lot be released from the
mistaken levy and restored to the rightful possessors or owners. But, as held
in Ong vs. Tating, supra, the Pasig Court is limited merely to the determination
of whether the sheriff has acted rightly or wrongly in the performance of his
duties in the execution of judgment. The Pasig Court cannot pass upon the
question of title to or right to the possession of the property subject of the levy
with any character of finality and this question has to be resolved in a proper
action entirely separate and distinct from that in which the execution was issued,
if instituted by a stranger to the latter suit (Sy vs. Discaya, 181 SCRA 378).
Plaintiffs-appellants are not impleaded as parties in the case decided by the Pasig
Court. While, as previously stated, plaintiffs-appellants may avail of the terceria,
or may apply for a summary hearing with the Pasig Court as contemplated in Ong
vs. Tating, supra, or may file an independent proper action to assert their right of
possession to the house and lot levied upon, such remedies are not comulative and
may be resorted to by them independent of or separately from and without need of
availing of the others (Sy vs. Discaya, supra).

...

Given the foregoing premises, the Nueva Vizcaya Court was therefore in
error in ousting itself of jurisdiction to try Civil Case No. 5853 on the submission
that it is only the Pasig Court, which decided Civil Case No. 53555, that has
general supervisory control over the execution of the judgment in said case, which
carries with it, the right to determine every question of fact and law which may be
involved in the execution process.

Coming now to the issue of whether this Court has jurisdiction over this appeal.
34 | P a g e
The defendant-appellee maintains that since the issue raised in this appeal is
purely a question of law, which is, whether the Nueva Vizcaya Court erred in
dismissing plaintiffs-appellants complaint, the latter should have taken their case
directly to the Supreme Court.

True it is, that it has been held in a number of cases, that there is a question of law
when there is doubt or difference of opinion as to what the law is on a certain
state of facts and which does not call for an examination of the probative value of
the evidence presented by the litigants and that there is a question of fact when the
doubt or controversy arises as to the truth or falsity of the alleged facts (Far East
Marble [Phils.], Inc. vs. Court of Appeals, 225 SCRA 249 [1993]; Caia vs.
People, 213 SCRA 309 [1992]; Cheesman vs. Intermediate Appellate Court, 193
SCRA 93 [1991]). But a reading of defendant-appellees Motion to Dismiss dated
October 1, 1993 filed with the Nueva Vizcaya Court shows that she raised
questions of fact in asserting that plaintiffs have no legal capacity to sue, claiming
that Marietta Dela Cruz Sta-Ines is not a party plaintiff in Civil Case No. 5853
and that the other plaintiffs are not real parties in interest. The determination of
whether plaintiffs-appellants are real parties in interest hinges on the factual issue
of whether or not they are beneficiaries of a family home within the
contemplation of Article 154 of the Family Code and this would require the
reception of factual evidence as to whether said plaintiffs are really the husband
and children of Marietta Sta. Ines and whether they actually reside in the house
and lot subject of Civil Case No. 5853 as to qualify said properties to be
considered a family home within the contemplation of Article 153 of the same
Code. Moreover, defendant-appellee argues that the complaint is premature as
there is no Sheriffs Final Deed of Sale yet. This, again is a factual issue. There is
likewise the question of whether the house and lot exclusively belong to Marietta
Dela Cruz Sta. Ines or whether they are conjugal properties, and if they are
conjugal properties, whether they could be levied upon to satisfy the personal
liability of the defendant Marietta Sta. Ines in Civil Case No. 53555 of the Pasig
Court. Again, in the Order dated March 15, 1994 of the Nueva Vizcaya Court, it
expressed doubts whether plaintiffs-appellants are really third-party claimants in
the legal sense of the word because the house and lot levied upon in Civil Case
No. 53555 exclusively belong to Marietta Dela Cruz Sta. Ines and the plaintiffs-
appellants seem to have no right thereto. As to whether the latter have a right to
the house and lot is a question that has to be resolved factually. The dispute or
controversy in this case, therefore, would inevitably raise a question of fact, and
accordingly, the appeal to this Court is proper.

But prescinding from the question of whether the issue raised herein is purely one
of law, it seems odd that if the Nueva Vizcaya Court had ruled that it had
jurisdiction over Civil Case No. 5853 and defendant-appellee would seek to
forthwith assail assumption of jurisdiction. She could do so only by way
of certiorari filed with this Court, and not with the Supreme Court, considering
the prevailing principle upholding the so-called hierarchy of courts. But since the
Nueva Vizcaya Court dismissed the complaint on ground of lack of jurisdiction,
defendant-appellee now vehemently argues that this Court has no jurisdiction to
35 | P a g e
 resolve the same issue which could have been raised by her before this same
Court had the ruling of the Nueva Vizcaya Court been different.

IN VIEW OF THE FOREGOING, the Order of the Court a quo dated January 28,
1994, dismissing plaintiffs-appellants complaint for lack of jurisdiction, and the
Order of the same Court dated March 15, 1994, denying plaintiffs-appellants
motion for reconsideration, are both REVERSED AND SET ASIDE. The Court a
quo is directed to proceed with the hearing of its Civil Case No. 5853 until its
termination, and to thereafter decide the case accordingly, as the evidence may
warrant.[7]

Petitioners Motion for Reconsideration was subsequently denied by the Court of Appeals.

Claiming that the appellate court committed serious and reversible errors of law in issuing its 29

March 1996 decision, petitioners filed before this Court a Petition for Review on Certiorari,

raising the following assignment of errors[8]:

I.

The Court of Appeals committed serious error of law and grave abuse of
discretion in ruling that the RTC of Nueva Vizcaya had jurisdiction over the
respondents petition.

II.

The Court of Appeals committed serious error of law and grave abuse of
discretion in finding respondents as proper third-party claimants.

III.

The Court of Appeals committed serious error of law and grave abuse of
discretion in assuming jurisdiction of the appeal of respondents that involves only
questions of law; and in reversing the RTC of Nueva Vizcaya.

Ruling of the Court

36 | P a g e
 First, we shall endeavor to dispose of the issue of whether or not the appellate court has

jurisdiction to entertain the appeal from the Order of dismissal.

Petitioners maintain that the question of whether or not the dismissal by the Nueva

Vizcaya RTC of the complaint filed by respondents due to lack of jurisdiction, lack of capacity

to sue, and failure to state a cause of action is a pure question of law which does not require

evidence and should be resolved on the basis of the allegations in the complaint alone.

Petitioners further argue that the case involves only two issues: 1) whether or not the Nueva

Vizcaya RTC can annul and set aside an execution sale made by the sheriff pursuant to a writ of

execution issued by the Pasig RTC; and 2) whether or not the beneficiaries of a family home can

claim exemption from the execution under Art. 155 of the Family Code for wrongful acts

committed by Marietta from 1977 up to 1986 before the effectivity of the Family Code on 03

August 1988. Petitioners conclude that the disposition of these two issues does not necessitate

the reception of factual evidence, thus, are clearly questions of law.

We agree with petitioners that the appeal of respondents to the Court of Appeals raises

only questions of law. It must be stressed at this point that the appeal of respondents to the

appellate court stemmed from the Order of the Nueva Vizcaya RTC dated 28 January 1994

dismissing the complaint for lack of jurisdiction to hear and decide the case. Whether or not such

dismissal is correct is neither a question of fact nor of fact and law; it involves a pure question of

law because what is to be resolved is whether, admitting the facts alleged in the complaint to be

true, the trial court has jurisdiction over it in the light of the laws governing jurisdiction.[9]

37 | P a g e
 There is a question of law when the issue does not call for an examination of the

probative value of evidence presented, the truth or falsehood of facts being admitted and the

doubt concerns the correct application of law and jurisprudence on the matter.[10] On the other

hand, there is a question of fact when the doubt or controversy arises as to the truth or falsity of

the alleged facts. When there is no dispute as to fact, the question of whether or not the

conclusion drawn therefrom is correct is a question of law.[11] In cases of motions to dismiss on

ground of lack of jurisdiction, the allegations in the complaint are deemed admitted. [12] Thus, the

hypothetical admission in a motion to dismiss of the facts alleged in the complaint renders them

beyond dispute and forecloses any issue of fact for purposes of the motion.[13] And the question

of whether the conclusion drawn therefrom for purposes of applying the law on jurisdiction is

accurate or correct is a question of law.[14]

Therefore, respondents appeal having been improperly brought before the Court of

Appeals, it should have been dismissed by the appellate court pursuant to Sec. 2, Rule 50 of the

Rules of Court, which provides:

Sec. 2. Dismissal of improper appeal to the Court of Appeals. An appeal

under Rule 41 taken from the Regional Trial Court to the Court of Appeals raising
only questions of law shall be dismissed, issues purely of law not being
reviewable by the said court. . . .

Nonetheless, in order to put to rest this case involving the execution of the house and lot

in the name of Marietta dela Cruz Sta. Ines, the Court deems it proper to discuss the issue of

whether or not herein respondents, husband and children of the owner of the levied property,

may validly seek the annulment of the sale of said property.[15]

38 | P a g e
 It is a basic principle of law that money judgments are enforceable only against property

unquestionably belonging to the judgment debtor, and any third person adversely affected by the

mistaken levy of his property to answer for another mans debt may validly assail such levy

through the remedies provided for by Rule 39 of the Rules of Court. Under said rule, a third

person may avail himself of the remedies of (1) terceria[16] to determine whether the sheriff has

rightly or wrongly taken hold of the property not belonging to the judgment debtor or obligor;

and (2) independent separate action to vindicate their claim of ownership and/or possession over

the foreclosed property.[17] If a separate action is the recourse, the third-party claimant must

institute in a forum of competent jurisdiction an action, distinct and separate from the action in

which the judgment is being enforced, even before or without need of filing a claim in the court

that issued the writ.[18]

In the case at bar, herein respondents are strangers to the action where the writ of

execution was issued. As pointed out by the Nueva Vizcaya RTC in its original Order denying

the motion to dismiss, the husband and children of Marietta were not parties to the Pasig RTC

case and are third-party claimants who became such only after trial in the previous case had been

terminated and the judgment therein had become final and executory. Neither are they

indispensable nor necessary parties in the Pasig RTC case, and they could not, therefore,

intervene in said case. As strangers to the original case, respondents cannot be compelled to

present their claim with the Pasig RTC which issued the writ of execution.[19] In choosing to

institute a separate action before a competent court in the province where the levied property is

located (Nueva Vizcaya RTC), respondents correctly exercised a remedy provided for in the

39 | P a g e
Rules of Court in order that they may vindicate their alleged claim to the levied house and lot. It

was, therefore, erroneous for the trial court to dismiss the complaint based on lack of jurisdiction.

Nevertheless, respondents complaint for annulment of sale of the levied property must

still be dismissed. In their petition before Nueva Vizcaya RTC, herein respondents aver that the

property is exempt from execution under Section 12, Rule 39 of the 1988 Rules on Civil

Procedure as said property is the judgment debtors duly constituted family home under the

Family Code. According to respondents, the house and lot was constituted jointly by Hinahon

and Marietta as their family home from the time they occupied the same as a family residence in

1972 and that under Section 153 of the Family Code, there is no longer any need to constitute the

said property as family home, whether judicially or extrajudicially, because it became such by

operation of law. Furthermore, respondents assert that the money judgment against Marietta was

rendered by the trial court in January 1989 long after the constitution of the said family home.

Such contentions are erroneous. Under Article 155 of the Family Code, the family home

shall be exempt from execution, forced sale, or attachment except for, among other things, debts

incurred prior to the constitution of the family home. In the case at bar, the house and lot of

respondents was not constituted as a family home, whether judicially or extrajudicially, at the

time Marietta incurred her debts. Under prevailing jurisprudence, it is deemed constituted as

such only upon the effectivity of the Family Code on 03 August 1988, thus, the debts were

incurred before the constitution of the family home. As stated in the case of Modequillo v.

Breva[20]:

40 | P a g e
 . . . Under Article 162 of the Family Code, it is provided that the
provisions of this Chapter shall also govern existing family residences insofar as
said provisions are applicable. It does not mean that Articles 152 and 153 of said
Code have a retroactive effect such that all existing family residences are deemed
to have been constituted as family homes at the time of their occupation prior to
the effectivity of the Family Code and are exempt from execution for the payment
of obligations incurred before the effectivity of the Family Code. Article 162
simply means that all existing family residences at the time of the effectivity of
the Family Code, are considered family homes and are prospectively entitled to
the benefits accorded to a family home under the Family Code. Article 162 does
not state that the provisions of Chapter 2, Title V have a retroactive effect.

Neither is it correct to say that the obligation sought to be satisfied by the levy of the
property was incurred only upon the issuance of the judgment in the original case in January of
1989. As stated by herein petitioners, the complaint against Marietta was instituted on 17 June
1986 to seek redress for damages suffered by them due to acts and omissions committed by
Marietta as early as 1977 when she assumed management and supervision of their deceased
mothers rice land. This means to say that Mariettas liability, which was the basis of the
judgment, arose long before the levied property was constituted as a family home by operation of
law in August 1988. Under the circumstances, it is clear that the liability incurred by Marietta
falls squarely under one of the instances when a family home may be the subject of execution,
forced sale, or attachment, as provided for by Article 155 of the Family Code, particularly, to
answer for debts incurred prior to the constitution of the family home.

WHEREFORE, premises considered, the petition is hereby GRANTED. The Decision of

the Court of Appeals is REVERSED and SET ASIDE. Special Civil Action No. 5853 entitled,
Roel Sta. Ines, et al. v. Mary Josephine Gomez, et al., filed before the Regional Trial Court of
Bayombong, Nueva Vizcaya, is hereby DISMISSED. No Costs.

SO ORDERED.

MINITA V. CHICO-NAZARIO
Associate Justice

41 | P a g e
 [G.R. NO. 161533 : June 5, 2009]

FILOMENA SONEJA, Petitioner, v. HONORABLE COURT OF APPEALS (2nd Division)

and RAMON SAURA, JR., Respondents.

DECISION

NACHURA, J.:

Before us is a petition for certiorari challenging the Resolution1 promulgated by the Court of
Appeals (CA) in CA-G.R. SP No. 75669 dated November 19, 2003 which denied petitioner's
motion for reconsideration of the Resolution2 promulgated on March 3, 2003 dismissing her
petition for certiorari .

The facts are undisputed.3

On July 1, 1995, petitioner Filomena Soneja, as lessee, and respondent Ramon Saura, Jr., as
lessor, entered into a lease contract over a property located at 966-F A.H. Lacson Street,
Sampaloc, Manila. The rent was fixed at P5,500.00 per month for a period of three (3) years
from July 1, 1995 to July 1, 1998. Later on, Filomena's daughter, Renee Soneja, occupied the
premises.

In August 1998, the lease contract expired but petitioner remained in the premises without
paying the rent. Because of this, respondent sent a letter to petitioner demanding payment
of P185,280.00, corresponding to the rentals in arrears, and to vacate the said apartment not later
than January 31, 2001. When petitioner failed to pay, respondent filed a complaint for ejectment
against petitioner and her daughter. The case was referred to the Lupong Tagapamayapa, which
issued the necessary certification after the parties failed to settle the controversy amicably.

On December 5, 2001, the Metropolitan Trial Court rendered a decision on the ejectment case
against petitioner. The fallo reads:

WHEREFORE, judgment is rendered in favor of plaintiff and against defendants ordering

defendants and all other persons claiming rights under them to vacate the premises located at
966-F A.H. Lacson Street, Sampaloc, Manila, and to pay plaintiffs the following sums:

1. Php185,280.00 representing unpaid rentals from August, 1998 until 31 January 2001, and
Php5,500.00 per month thereafter until defendants actually vacate the subject premises; [and]

2. Php10,000.00 representing attorney's fees.

SO ORDERED.4

Aggrieved, petitioner appealed to the Regional Trial Court (RTC) on January 30, 2002. While
the appeal was pending, respondent filed a motion for execution on May 23, 2002, which was
granted through an Order5 dated May 29, 2002. Pursuant thereto, a property owned by petitioner
and her deceased spouse situated at Tominawog, San Andres, Catanduanes was levied upon.

42 | P a g e
Petitioner immediately filed a motion6 to lift or revoke the levy made upon her property alleging
that the same is her family home and should, therefore, be exempt from levy or execution based
on the provisions of the Family Code.

On August 6, 2002, however, the RTC resolved to deny petitioner's motion to lift or revoke
levy.7 A motion for reconsideration8 was filed but was denied for lack of merit.9 The order,
denying petitioner's motion for reconsideration, was received by petitioner on December 9,
2002.10

Meanwhile, on January 20, 2003, the RTC issued an Order dismissing petitioner's appeal for her
failure to file the required memorandum. Petitioner, thereafter, filed a Petition for Review under
Rule 42 before the CA on March 12, 2003. The case was docketed as CA-G.R. SP No. 75669.11

On February 10, 2003, petitioner also filed a Rule 65 petition with the CA, challenging the
RTC's denial of her motion for reconsideration with respect to the levy on her property in
Catanduanes. The case was initially docketed as CA-G.R. UDK SP No. 4783 and was assigned
to the Second Division. Later on, the case was docketed as CA-G.R. SP No. 75669, apparently
the same docket number given to the Rule 42 petition earlier filed by petitioner.

On March 3, 2003, the CA resolved to dismiss the Rule 65 petition for being filed three (3) days
beyond the reglementary period.12 Petitioner immediately filed a Manifestation13 dated March
11, 2003 explaining that the apparent delay was brought about by the confusion in the CA's
docket section. The CA acceded and allowed petitioner to file a motion for reconsideration.14

Subsequently, a Decision15 was reached by the CA on September 18, 2006 also denying the Rule
42 petition filed by Soneja. The decision, in effect, upheld the RTC's order, which dismissed
petitioner's appeal following her failure to file the required memorandum. Judgment thereto was
entered on October 29, 2006.

Meanwhile, earlier, on November 19, 2003, a Resolution16 was promulgated by the CA denying
the Rule 65 petition for two reasons; namely: no prima facie error had been committed by the
RTC, and the petition was filed three (3) days late. Undaunted, petitioner elevated the matter
before this Court via a Rule 65 petition.

The sole issue is whether the CA acted without or in excess of its jurisdiction or with grave abuse
of discretion in upholding the RTC's decision denying petitioner's motion to lift or revoke the
levy on her property argued to be a family home.

Petitioner maintains that the levied property is a family home acquired and constituted as their
family's residence in 1950. She also claims that her temporary sojourn in respondent's apartment
unit in Manila, following her husband's demise, should not be construed as having terminated the
nature of the property as a family home, pursuant to the provisions of the Family Code.
Moreover, petitioner's married son also stayed in the said family residence while she was
temporarily staying in Manila.17

The petition has no merit.

43 | P a g e
Settled is the rule that a petition for certiorari is proper to correct only errors of jurisdiction
committed by respondent court, tribunal or administrative agency.18 Public respondent acts
without jurisdiction if it does not have the legal power to determine the case, or in excess of
jurisdiction if it oversteps its authority as determined by law. Grave abuse of discretion is
committed when respondent acts in a capricious, whimsical, arbitrary, or despotic manner in the
exercise of its judgment as to be equivalent to lack of jurisdiction.19 In a petition for certiorari,
the jurisdiction of the court is narrow in scope as it is limited to resolving only cases of
jurisdiction.20

Here, petitioner argues that the CA gravely abused its discretion in affirming the denial of
petitioner's motion to lift or revoke levy without even passing upon the substantive issue on the
propriety of levying her family home. She insists that the levied property in Catanduanes should
have been exempt from execution pursuant to Article 155 of the Family Code21 in relation to
Articles 152 to 154 thereof,22 which she maintains she could have proven had she been accorded
the opportunity to present evidence to this effect.

The contention must fall. The appellate court, in its assailed resolution, amply explained the
reason for the affirmance of the RTC's decision:

[E]ven upon the allegations in the petition vis-a-vis the assailed Order dated August 6, 2002, We
find no prima facie error committed by the court a quo in denying herein petitioner's Motion to
Lift or Revoke Levy dated June 27, 2002.23 ςηαñrοblεš νιr� υαl lαω lιbrαrÿ

There is also no truth to petitioner's allegation that she was never afforded any opportunity to
present evidence to substantiate her claim. A careful perusal of the records of the case shows that
the issue of whether the levied property is a family home has been squarely passed upon by the
RTC. When the motion to lift or revoke levy was filed on June 28, 2002, it was set for hearing on
July 5, 2002, but neither Filomena nor her counsel appeared on said date.24 Despite this, the RTC
notified petitioner's counsel of the time to file a reply following respondent's request to file an
opposition to Filomena's motion.25 When petitioner still failed to file a reply, the RTC issued an
Order dated August 6, 2002 denying the motion to lift or revoke levy.26 The court ratiocinated
thus:

The Court agrees with the contention of the plaintiff. Defendant failed to substantiate her claim
that the levied property is a family home. She cannot avoid liability under the contract of lease
which she entered into by claiming that the lease was passed to defendant Renee Soneja in 1995.

WHEREFORE, in view of the foregoing consideration, the motion to lift or revoke levy made
upon the property of defendant Filomena Soneja is hereby denied.

SO ORDERED.27

The RTC also found, through Filomena's own admission, that she had not been actually residing
in the levied property but in the apartment unit she had leased from respondent, and that it was
her married son who was occupying the said property in her stead.28

44 | P a g e
All these support our view that no abuse of discretion has been committed by public respondent
in sustaining the RTC's decision. A determination of the merits of petitioner's contention would
reveal that whatever mistake may have been committed in the appraisal of the case - although we
do not see any - would, at best, constitute merely errors of judgment and not errors of
jurisdiction. The proper recourse should have been an appeal, not a petition for certiorari .

Petitioner should have zealously raised the matter during the appeals proceeding before the RTC.
Sadly, she allowed the case to be dismissed following her failure to file the required
memorandum. Still, she could have insisted on the resolution of the said issue in her Petition for
Review had she not allowed the decision of the CA to lapse without filing a motion for
reconsideration. Petitioner therefore has nobody to blame but herself.

WHEREFORE, premises considered, the petition is DENIED for lack of merit.

45 | P a g e
 G.R. No. 180587 March 20, 2009

SIMEON CABANG, VIRGINIA CABANG and VENANCIO CABANG ALIAS

"DONDON", Petitioners,
vs.
MR. & MRS. GUILLERMO BASAY, Respondents.

DECISION

YNARES-SANTIAGO, J.:

This petition for review on certiorari under Rule 45 of the Rules of Court seeks to annul and set
aside the Decision of the Court of Appeals in CA-G.R. CV No. 767551 dated May 31,
20072 which reversed the Order3 of the Regional Trial Court of Molave, Zamboanga Del Sur,
Branch 23 in Civil Case No. 99-20-127 which denied respondents’ motion for execution on the
ground that petitioners’ family home was still subsisting. Also assailed is the Resolution dated
September 21, 2007 denying the motion for reconsideration.

The facts as summarized by the appellate court:

Deceased Felix Odong was the registered owner of Lot No. 7777, Ts- 222 located in Molave,
Zamboanga del Sur. Said lot was covered by Original Certificate of Title No. 0-2,768 pursuant to
Decree No. N-64 and issued on March 9, 1966. However, Felix Odong and his heirs never
occupied nor took possession of the lot.

On June 16, 1987, plaintiff-appellants bought said real property from the heirs of Felix Odong
for P8,000.00. Consequently, OCT No. 0-2,768 was cancelled and in its stead, Transfer
Certificate of Title No. T-22,048 was issued on August 6, 1987 in the name of plaintiff-
appellants. The latter also did not occupy the said property.

Defendant-appellees, on the other hand, had been in continuous, open, peaceful and adverse
possession of the same parcel of land since 1956 up to the present. They were the awardees in
the cadastral proceedings of Lot No. 7778 of the Molave Townsite, Ts-222. During the said
cadastral proceedings, defendant-appellees claimed Lot No. 7778 on the belief that the area they
were actually occupying was Lot No. 7778. As it turned out, however, when the Municipality of
Molave relocated the townsite lots in the area in 1992 as a big portion of Lot No. 7778 was used
by the government as a public road and as there were many discrepancies in the areas occupied,
it was then discovered that defendant-appellees were actually occupying Lot No. 7777.

On June 23, 1992, plaintiff-appellants filed a Complaint docketed as Civil Case No. 92-20-127
for Recovery of Property against defendant-appellees.

On July 19, 1996, the trial court rendered its decision, the dispositive portion of which reads,
thus:

WHEREFORE, judgment is hereby rendered in favor of the defendants and against the plaintiff
–

46 | P a g e
 1. Holding that the rights of the plaintiffs to recover the land registered in their names,
have been effectively barred by laches; and

2. Ordering the dismissal of the above-entitled case.

No pronouncement as to cost.

SO ORDERED.

Aggrieved, plaintiff-appellants filed an appeal before the Court of Appeals assailing the above-
decision. Said appeal was docketed as CA-G.R. CV No. 55207.

On December 23, 1998, the Court of Appeals, through the then Second Division, rendered a
Decision reversing the assailed decision and decreed as follows:

WHEREFORE, the judgment herein appealed from is hereby REVERSED, and judgment is
hereby rendered declaring the plaintiffs-appellants to be entitled to the possession of Lot No.
7777 of the Molave Townsite, subject to the rights of the defendants-appellees under Article (sic)
448, 546, 547 and 548 of the New Civil Code.

The records of this case are hereby ordered remanded to the court of origin for further
proceedings to determine the rights of the defendants-appellees under the aforesaid article (sic)
of the New Civil Code, and to render judgment thereon in accordance with the evidence and this
decision.

No pronouncement as to costs.

SO ORDERED.

Defendant-appellees thereafter filed a petition for review on certiorari under Rule 45 of the Rules
of Court before the Supreme Court docketed as G.R. No. 139601. On October 18, 1999, the
Supreme Court issued a Resolution denying the petition for late filing and lack of appropriate
service.

Subsequently, or on February 15, 2000, the Supreme Court Resolution had become final and
executory.

Consequently, the case was remanded to the court a quo and the latter commissioned the
Municipal Assessor of Molave, Zamboanga del Sur to determine the value of the improvements
introduced by the defendant-appellees.

The Commissioner’s Report determined that at the time of ocular inspection, there were three (3)
residential buildings constructed on the property in litigation. During the ocular inspection,
plaintiff-appellants’ son, Gil Basay, defendant-appellee Virginia Cabang, and one Bernardo
Mendez, an occupant of the lot, were present. In the report, the following appraised value of the
improvements were determined, thus:

47 | P a g e
 lawphil.net
Owner Lot No. Area (sq.m.) Improvement Appraised Value
Virginia Cabang 7777 32.55 Building P21,580.65
Jovencio Capuno 7777 15.75 Building 18,663.75
Amelito Mata 7777 14.00 Building 5,658.10
Toilet 1,500.00
Plants & Trees 2,164.00

TOTAL P49,566.50

Thereafter, upon verbal request of defendant-appellees, the court a quo in its Order declared that
the tie point of the survey should be the BLLM (Bureau of Lands Location Monument) and
authorized the official surveyor of the Bureau of Lands to conduct the survey of the litigated
property.

Pursuant to the above Order, the Community Environment and Natural Resources Office
(CENRO) of the Department of Environment and Natural Resources (DENR)-Region XI
designated Geodetic Engineer Diosdado L. de Guzman to [act] as the official surveyor. On
March 2002, Engr. De Guzman submitted his survey report which stated, inter alia:

1. That on September 18, 2001, the undersigned had conducted verification survey of Lot
7777, Ts-222 and the adjacent lots for reference purposes-with both parties present on the
survey;

2. That the survey was started from BLLM #34, as directed by the Order, taking sideshots
of lot corners, existing concrete fence, road and going back to BLLM #34, a point of
reference;

3. Considering that there was only one BLLM existing on the ground, the undersigned
conducted astronomical observation on December 27, 2001 in order to check the carried
Azimuth of the traverse;

4. That per result of the survey conducted, it was found out and ascertained that the area
occupied by Mrs. Virginia Cabang is a portion of Lot 7777, with lot assignment to be
known as Lot 7777-A with an area of 303 square meters and portion of Lot 7778 with lot
assignment to be known as Lot 7778-A with an area of 76 square meters. On the same
lot, portion of which is also occupied by Mr. Bernardo Mendez with lot assignment to be
known as Lot 7777-B with an area of 236 square meters and Lot 7778-B with an area of
243 square meters as shown on the attached sketch for ready reference;

5. That there were three (3) houses made of light material erected inside Lot No. 7777-A,
which is owned by Mrs. Virginia Cabang and also a concrete house erected both on

48 | P a g e
 portion of Lot No. 7777-B and Lot No. 7778-B, which is owned by Mr. Bernardo
Mendez. x x x;

6. That the existing road had been traversing on a portion of Lot 7778 to be know (sic) as
Lot 7778-CA-G.R. SP No. with an area of 116 square meters as shown on attached sketch
plan.

During the hearing on May 10, 2002, plaintiff-appellants’ offer to pay P21,000.00 for the
improvement of the lot in question was rejected by defendant-appellees. The court a quo
disclosed its difficulty in resolving whether or not the houses may be subject of an order of
execution it being a family home.

On June 18, 2002, plaintiff-appellants filed their Manifestation and Motion for Execution
alleging therein that defendant-appellees refused to accept payment of the improvements as
determined by the court appointed Commissioner, thus, they should now be ordered to remove
said improvements at their expense or if they refused, an Order of Demolition be issued.

On September 6, 2002, the court a quo issued the herein assailed Order denying the motion for
execution.4

Respondents thereafter elevated their cause to the appellate court which reversed the trial court in
its May 31, 2007 Decision in CA-G.R. CV No. 76755. Petitioners’ Motion for Reconsideration
was denied by the Court of Appeals in its Resolution5 dated September 21, 2007.

Hence, this petition.

Petitioners insist that the property subject of the controversy is a duly constituted family home
which is not subject to execution, thus, they argue that the appellate tribunal erred in reversing
the judgment of the trial court.

The petition lacks merit.

It bears stressing that the purpose for which the records of the case were remanded to the court of
origin was for the enforcement of the appellate court’s final and executory judgment6 in CA-G.R.
CV No. 55207 which, among others, declared herein respondents entitled to the possession of
Lot No. 7777 of the Molave Townsite subject to the provisions of Articles 448,7 546,8 5479 an
54810 of the Civil Code. Indeed, the decision explicitly decreed that the remand of the records of
the case was for the court of origin "[t]o determine the rights of the defendants-appellees under
the aforesaid article[s] of the New Civil Code, and to render judgment thereon in accordance
with the evidence and this decision."

A final and executory judgment may no longer be modified in any respect, even if the
modification is meant to correct erroneous conclusions of fact or law and whether it will be made
by the court that rendered it or by the highest court in the land.11 The only exceptions to this rule
are the correction of (1) clerical errors; (2) the so-called nunc pro tunc entries which cause no
prejudice to any party, and (3) void judgments.12

49 | P a g e
Well-settled is the rule that there can be no execution until and unless the judgment has become
final and executory, i.e. the period of appeal has lapsed without an appeal having been taken, or,
having been taken, the appeal has been resolved and the records of the case have been returned to
the court of origin, in which event, execution shall issue as a matter of right.13 In short, once a
judgment becomes final, the winning party is entitled to a writ of execution and the issuance
thereof becomes a court’s ministerial duty.14

Furthermore, as a matter of settled legal principle, a writ of execution must adhere to every
essential particulars of the judgment sought to be executed.15 An order of execution may not vary
or go beyond the terns of the judgment it seeks to enforce.16 A writ of execution must conform to
the judgment and if it is different from, goes beyond or varies the tenor of the judgment which
gives it life, it is a nullity.17 Otherwise stated, when the order of execution and the corresponding
writ issued pursuant thereto is not in harmony with and exceeds the judgment which gives it life,
they have pro tanto no validity18 – to maintain otherwise would be to ignore the constitutional
provision against depriving a person of his property without due process of law.19

As aptly pointed out by the appellate court, from the inception of Civil Case No. 99-20-127, it
was already of judicial notice that the improvements introduced by petitioners on the litigated
property are residential houses not family homes. Belatedly interposing such an extraneous issue
at such a late stage of the proceeding is tantamount to interfering with and varying the terms of
the final and executory judgment and a violation of respondents’ right to due process because –

As a general rule, points of law, theories and issues not brought to the attention of the trial court
cannot be raised for the first time on appeal. For a contrary rule would be unfair to the adverse
party who would have no opportunity to present further evidence material to the new theory,
which it could have done had it been aware of if at the time of the hearing before the trial
court.20lawphil.net

The refusal, therefore, of the trial court to enforce the execution on the ground that the
improvements introduced on the litigated property are family homes goes beyond the pale of
what it had been expressly tasked to do, i.e. its ministerial duty of executing the judgment in
accordance with its essential particulars. The foregoing factual, legal and jurisprudential scenario
reduces the raising of the issue of whether or not the improvements introduced by petitioners are
family homes into a mere afterthought.

Even squarely addressing the issue of whether or not the improvements introduced by petitioners
on the subject land are family homes will not extricate them from their predicament.

As defined, "[T]he family home is a sacred symbol of family love and is the repository of
cherished memories that last during one’s lifetime.21 It is the dwelling house where the husband
and wife, or an unmarried head of a family reside, including the land on which it is situated.22 It
is constituted jointly by the husband and the wife or by an unmarried head of a family."23 Article
153 of the Family Code provides that –

The family home is deemed constituted from the time it is occupied as a family residence. From
the time of its constitution and so long as any of its beneficiaries actually resides therein, the

50 | P a g e
family home continues to be such and is exempt from execution, forced sale or attachment
except as hereinafter provided and to the extent of the value allowed by law.

The actual value of the family home shall not exceed, at the time of its constitution, the amount
of P300,000.00 in urban areas and P200,000.00 in rural areas.24 Under the afore-quoted
provision, a family home is deemed constituted on a house and a lot from the time it is occupied
as a family residence. There is no need to constitute the same judicially or extra-judicially.25

There can be no question that a family home is generally exempt from execution,26 provided it
was duly constituted as such. It is likewise a given that the family home must be constituted on
property owned by the persons constituting it. Indeed as pointed out in Kelley, Jr. v. Planters
Products, Inc.27 "[T]he family home must be part of the properties of the absolute community or
the conjugal partnership, or of the exclusive properties of either spouse with the latter’s consent,
or on the property of the unmarried head of the family."28 In other words:

The family home must be established on the properties of (a) the absolute community, or (b) the
conjugal partnership, or (c) the exclusive property of either spouse with the consent of the other.
It cannot be established on property held in co-ownership with third persons. However, it can be
established partly on community property, or conjugal property and partly on the exclusive
property of either spouse with the consent of the latter.1avvphi1

If constituted by an unmarried head of a family, where there is no communal or conjugal

property existing, it can be constituted only on his or her own property.29 (Emphasis and italics
supplied)

Therein lies the fatal flaw in the postulate of petitioners. For all their arguments to the contrary,
the stark and immutable fact is that the property on which their alleged family home stands is
owned by respondents and the question of ownership had been long laid to rest with the finality
of the appellate court’s judgment in CA-G.R. CV No. 55207. Thus, petitioners’ continued stay
on the subject land is only by mere tolerance of respondents.

All told, it is too late in the day for petitioners to raise this issue. Without doubt, the instant case
where the family home issue has been vigorously pursued by petitioners is but a clear-cut ploy
meant to forestall the enforcement of an otherwise final and executory decision. The execution of
a final judgment is a matter of right on the part of the prevailing party whose implementation is
mandatory and ministerial on the court or tribunal issuing the judgment.30

The most important phase of any proceeding is the execution of judgment.31 Once a judgment
becomes final, the prevailing party should not, through some clever maneuvers devised by an
unsporting loser, be deprived of the fruits of the verdict.32 An unjustified delay in the
enforcement of a judgment sets at naught the role of courts in disposing of justiciable
controversies with finality.33 Furthermore, a judgment if not executed would just be an empty
victory for the prevailing party because execution is the fruit and end of the suit and very aptly
called the life of the law.34

The issue is moreover factual and, to repeat that trite refrain, the Supreme Court is not a trier of
facts. It is not the function of the Court to review, examine and evaluate or weigh the probative

51 | P a g e
value of the evidence presented. A question of fact would arise in such event. Questions of fact
cannot be raised in an appeal via certiorari before the Supreme Court and are not proper for its
consideration.35 The rationale behind this doctrine is that a review of the findings of fact of the
appellate tribunal is not a function this Court normally undertakes. The Court will not weigh the
evidence all over again unless there is a showing that the findings of the lower court are totally
devoid of support or are clearly erroneous so as to constitute serious abuse of
discretion.36 Although there are recognized exceptions37to this rule, none exists in this case to
justify a departure therefrom.

WHEREFORE, the petition is DENIED. The Decision of the Court of Appeals dated May 31,
2007 in CA-G.R. CV No. 76755 declaring respondents entitled to the writ of execution and
ordering petitioners to vacate the subject property, as well as the Resolution dated September 21,
2007 denying the motion for reconsideration, are AFFIRMED. Costs against petitioners.

SO ORDERED.

CONSUELO YNARES-SANTIAGO
Associate Justice

52 | P a g e
 [G.R. No. 123450. August 31, 2005]

GERARDO B. CONCEPCION, petitioner, vs. COURT OF APPEALS and MA. THERESA

ALMONTE, respondents.

DECISION
CORONA, J.:

The child, by reason of his mental and physical immaturity, needs special safeguard and
care, including appropriate legal protection before as well as after birth.[1] In case of assault on
his rights by those who take advantage of his innocence and vulnerability, the law will rise in his
defense with the single-minded purpose of upholding only his best interests.
This is the story of petitioner Gerardo B. Concepcion and private respondent Ma. Theresa
Almonte, and a child named Jose Gerardo. Gerardo and Ma. Theresa were married on December
29, 1989.[2] After their marriage, they lived with Ma. Theresas parents in Fairview, Quezon
City.[3] Almost a year later, on December 8, 1990, Ma. Theresa gave birth to Jose Gerardo.[4]
Gerardo and Ma. Theresas relationship turned out to be short-lived, however. On December
19, 1991, Gerardo filed a petition to have his marriage to Ma. Theresa annulled on the ground of
bigamy.[5] He alleged that nine years before he married Ma. Theresa on December 10, 1980, she
had married one Mario Gopiao, which marriage was never annulled.[6] Gerardo also found out
that Mario was still alive and was residing in Loyola Heights, Quezon City.[7]
Ma. Theresa did not deny marrying Mario when she was twenty years old. She, however,
averred that the marriage was a sham and that she never lived with Mario at all.[8]
The trial court ruled that Ma. Theresas marriage to Mario was valid and subsisting when she
married Gerardo and annulled her marriage to the latter for being bigamous. It declared Jose
Gerardo to be an illegitimate child as a result. The custody of the child was awarded to Ma.
Theresa while Gerardo was granted visitation rights.[9]
Ma. Theresa felt betrayed and humiliated when Gerardo had their marriage annulled. She
held him responsible for the bastardization of Gerardo. She moved for the reconsideration of the
above decision INSOFAR ONLY as that portion of the decision which grant(ed) to the petitioner
so-called visitation rights between the hours of 8 in the morning to 12:00 p.m. of any
Sunday.[10] She argued that there was nothing in the law granting visitation rights in favor of the
putative father of an illegitimate child.[11] She further maintained that Jose Gerardos surname
should be changed from Concepcion to Almonte, her maiden name, following the rule that an
illegitimate child shall use the mothers surname.
Gerardo opposed the motion. He insisted on his visitation rights and the retention of
Concepcion as Jose Gerardos surname.
Applying the best interest of the child principle, the trial court denied Ma. Theresas motion
and made the following observations:

53 | P a g e
It is a pity that the parties herein seem to be using their son to get at or to hurt the other,
something they should never do if they want to assure the normal development and well-being of
the boy.

The Court allowed visitorial rights to the father knowing that the minor needs a father, especially
as he is a boy, who must have a father figure to recognize something that the mother alone
cannot give. Moreover, the Court believes that the emotional and psychological well-being of the
boy would be better served if he were allowed to maintain relationships with his father.

There being no law which compels the Court to act one way or the other on this matter, the Court
invokes the provision of Art. 8, PD 603 as amended, otherwise known as the Child and Youth
Welfare Code, to wit:

In all questions regarding the care, custody, education and property of the child, his welfare shall
be the paramount consideration.

WHEREFORE, the respondents Motion for Reconsideration has to be, as it is hereby

DENIED.[12]

Ma. Theresa elevated the case to the Court of Appeals, assigning as error the ruling of the
trial court granting visitation rights to Gerardo. She likewise opposed the continued use of
Gerardos surname (Concepcion) despite the fact that Jose Gerardo had already been declared
illegitimate and should therefore use her surname (Almonte). The appellate court denied the
petition and affirmed in toto the decision of the trial court.[13]
On the issue raised by Ma. Theresa that there was nothing in the law that granted a putative
father visitation rights over his illegitimate child, the appellate court affirmed the best interest of
the child policy invoked by the court a quo. It ruled that [a]t bottom, it (was) the childs welfare
and not the convenience of the parents which (was) the primary consideration in granting
visitation rights a few hours once a week.[14]
The appellate court likewise held that an illegitimate child cannot use the mothers
surname motu proprio. The child, represented by the mother, should file a separate proceeding
for a change of name under Rule 103 of the Rules of Court to effect the correction in the civil
registry.[15]
Undaunted, Ma. Theresa moved for the reconsideration of the adverse decision of the
appellate court. She also filed a motion to set the case for oral arguments so that she could better
ventilate the issues involved in the controversy.
After hearing the oral arguments of the respective counsels of the parties, the appellate court
resolved the motion for reconsideration. It reversed its earlier ruling and held that Jose Gerardo
was not the son of Ma. Theresa by Gerardo but by Mario during her first marriage:

It is, therefore, undeniable established by the evidence in this case that the appellant [Ma.
Theresa] was married to Mario Gopiao, and that she had never entered into a lawful marriage
with the appellee [Gerardo] since the so-called marriage with the latter was void ab initio. It was
[Gerardo] himself who had established these facts. In other words, [Ma. Theresa] was
legitimately married to Mario Gopiao when the child Jose Gerardo was born on December 8,

54 | P a g e
1990. Therefore, the child Jose Gerardo under the law is the legitimate child of the legal and
subsisting marriage between [Ma. Theresa] and Mario Gopiao; he cannot be deemed to be the
illegitimate child of the void and non-existent marriage between [Ma. Theresa] and [Gerardo],
but is said by the law to be the child of the legitimate and existing marriage between [Ma.
Theresa] and Mario Gopiao (Art. 164, Family Code). Consequently, [she] is right in firmly
saying that [Gerardo] can claim neither custody nor visitorial rights over the child Jose Gerardo.
Further, [Gerardo] cannot impose his name upon the child. Not only is it without legal basis
(even supposing the child to be his illegitimate child [Art. 146, The Family Code]); it would tend
to destroy the existing marriage between [Ma. Theresa] and Gopiao, would prevent any possible
rapproachment between the married couple, and would mean a judicial seal upon an illegitimate
relationship.[16]

The appellate court brushed aside the common admission of Gerardo and Ma. Theresa that
Jose Gerardo was their son. It gave little weight to Jose Gerardos birth certificate showing that he
was born a little less than a year after Gerardo and Ma. Theresa were married:

We are not unaware of the movants argument that various evidence exist that appellee and the
appellant have judicially admitted that the minor is their natural child. But, in the same vein, We
cannot overlook the fact that Article 167 of the Family Code mandates:

The child shall be considered legitimate although the mother may have declared against its
legitimacy or may have been sentenced as an adulteress. (underscoring ours)

Thus, implicit from the above provision is the fact that a minor cannot be deprived of his/her
legitimate status on the bare declaration of the mother and/or even much less, the supposed
father. In fine, the law and only the law determines who are the legitimate or illegitimate
children for ones legitimacy or illegitimacy cannot ever be compromised. Not even the birth
certificate of the minor can change his status for the information contained therein are merely
supplied by the mother and/or the supposed father. It should be what the law says and not
what a parent says it is.[17] (Emphasis supplied)

Shocked and stunned, Gerardo moved for a reconsideration of the above decision but the
same was denied.[18] Hence, this appeal.
The status and filiation of a child cannot be compromised.[19] Article 164 of the Family Code
is clear. A child who is conceived or born during the marriage of his parents is legitimate.[20]
As a guaranty in favor of the child[21] and to protect his status of legitimacy, Article 167 of
the Family Code provides:

Article 167. The child shall be considered legitimate although the mother may have declared
against its legitimacy or may have been sentenced as an adulteress.

The law requires that every reasonable presumption be made in favor of legitimacy.[22] We
explained the rationale of this rule in the recent case of Cabatania v. Court of Appeals[23]:

55 | P a g e
The presumption of legitimacy does not only flow out of a declaration in the statute but is based
on the broad principles of natural justice and the supposed virtue of the mother. It is grounded on
the policy to protect the innocent offspring from the odium of illegitimacy.

Gerardo invokes Article 166 (1)(b)[24] of the Family Code. He cannot. He has no standing in
law to dispute the status of Jose Gerardo. Only Ma. Theresas husband Mario or, in a proper
case,[25]his heirs, who can contest the legitimacy of the child Jose Gerardo born to his
wife.[26] Impugning the legitimacy of a child is a strictly personal right of the husband or, in
exceptional cases, his heirs.[27]Since the marriage of Gerardo and Ma. Theresa was void from the
very beginning, he never became her husband and thus never acquired any right to impugn the
legitimacy of her child.
The presumption of legitimacy proceeds from the sexual union in marriage, particularly
during the period of conception.[28] To overthrow this presumption on the basis of Article 166
(1)(b) of the Family Code, it must be shown beyond reasonable doubt that there was no access
that could have enabled the husband to father the child.[29] Sexual intercourse is to be presumed
where personal access is not disproved, unless such presumption is rebutted by evidence to the
contrary.[30]
The presumption is quasi-conclusive and may be refuted only by the evidence of physical
impossibility of coitus between husband and wife within the first 120 days of the 300 days which
immediately preceded the birth of the child.[31]
To rebut the presumption, the separation between the spouses must be such as to make
marital intimacy impossible.[32] This may take place, for instance, when they reside in different
countries or provinces and they were never together during the period of conception.[33] Or, the
husband was in prison during the period of conception, unless it appears that sexual union took
place through the violation of prison regulations.[34]
Here, during the period that Gerardo and Ma. Theresa were living together in Fairview,
Quezon City, Mario was living in Loyola Heights which is also in Quezon City. Fairview and
Loyola Heights are only a scant four kilometers apart.
Not only did both Ma. Theresa and Mario reside in the same city but also that no evidence at
all was presented to disprove personal access between them. Considering these circumstances,
the separation between Ma. Theresa and her lawful husband, Mario, was certainly not such as to
make it physically impossible for them to engage in the marital act.
Sexual union between spouses is assumed. Evidence sufficient to defeat the assumption
should be presented by him who asserts the contrary. There is no such evidence here. Thus, the
presumption of legitimacy in favor of Jose Gerardo, as the issue of the marriage between Ma.
Theresa and Mario, stands.
Gerardo relies on Ma. Theresas statement in her answer[35] to the petition for annulment of
marriage[36] that she never lived with Mario. He claims this was an admission that there was
never any sexual relation between her and Mario, an admission that was binding on her.
Gerardos argument is without merit.
First, the import of Ma. Theresas statement is that Jose Gerardo is not her legitimate son
with Mario but her illegitimate son with Gerardo. This declaration ― an avowal by the mother

56 | P a g e
that her child is illegitimate ― is the very declaration that is proscribed by Article 167 of the
Family Code.
The language of the law is unmistakable. An assertion by the mother against the legitimacy
of her child cannot affect the legitimacy of a child born or conceived within a valid marriage.
Second, even assuming the truth of her statement, it does not mean that there was never an
instance where Ma. Theresa could have been together with Mario or that there occurred
absolutely no intercourse between them. All she said was that she never lived with Mario. She
never claimed that nothing ever happened between them.
Telling is the fact that both of them were living in Quezon City during the time material to
Jose Gerardos conception and birth. Far from foreclosing the possibility of marital intimacy,
their proximity to each other only serves to reinforce such possibility. Thus, the impossibility of
physical access was never established beyond reasonable doubt.
Third, to give credence to Ma. Theresas statement is to allow her to arrogate unto herself a
right exclusively lodged in the husband, or in a proper case, his heirs.[37] A mother has no right to
disavow a child because maternity is never uncertain.[38] Hence, Ma. Theresa is not permitted by
law to question Jose Gerardos legitimacy.
Finally, for reasons of public decency and morality, a married woman cannot say that she
had no intercourse with her husband and that her offspring is illegitimate. [39] The proscription is
in consonance with the presumption in favor of family solidarity. It also promotes the intention
of the law to lean toward the legitimacy of children.[40]
Gerardos insistence that the filiation of Jose Gerardo was never an issue both in the trial
court and in the appellate court does not hold water. The fact that both Ma. Theresa and Gerardo
admitted and agreed that Jose Gerardo was born to them was immaterial. That was, in effect, an
agreement that the child was illegitimate. If the Court were to validate that stipulation, then it
would be tantamount to allowing the mother to make a declaration against the legitimacy of her
child and consenting to the denial of filiation of the child by persons other than her husband.
These are the very acts from which the law seeks to shield the child.
Public policy demands that there be no compromise on the status and filiation of a
child.[41] Otherwise, the child will be at the mercy of those who may be so minded to exploit his
defenselessness.
The reliance of Gerardo on Jose Gerardos birth certificate is misplaced. It has no evidentiary
value in this case because it was not offered in evidence before the trial court. The rule is that the
court shall not consider any evidence which has not been formally offered.[42]
Moreover, the law itself establishes the status of a child from the moment of his
birth.[43] Although a record of birth or birth certificate may be used as primary evidence of the
filiation of a child,[44]as the status of a child is determined by the law itself, proof of filiation is
necessary only when the legitimacy of the child is being questioned, or when the status of a child
born after 300 days following the termination of marriage is sought to be established.[45]
Here, the status of Jose Gerardo as a legitimate child was not under attack as it could not be
contested collaterally and, even then, only by the husband or, in extraordinary cases, his heirs.
Hence, the presentation of proof of legitimacy in this case was improper and uncalled for.

57 | P a g e
 In addition, a record of birth is merely prima facie evidence of the facts contained
therein.[46] As prima facie evidence, the statements in the record of birth may be rebutted by
more preponderant evidence. It is not conclusive evidence with respect to the truthfulness of the
statements made therein by the interested parties.[47] Between the certificate of birth which
is prima facie evidence of Jose Gerardos illegitimacy and the quasi-conclusive presumption of
law (rebuttable only by proof beyond reasonable doubt) of his legitimacy, the latter shall prevail.
Not only does it bear more weight, it is also more conducive to the best interests of the child and
in consonance with the purpose of the law.
It perplexes us why both Gerardo and Ma. Theresa would doggedly press for Jose Gerardos
illegitimacy while claiming that they both had the childs interests at heart. The law, reason and
common sense dictate that a legitimate status is more favorable to the child. In the eyes of the
law, the legitimate child enjoys a preferred and superior status. He is entitled to bear the
surnames of both his father and mother, full support and full inheritance.[48] On the other hand,
an illegitimate child is bound to use the surname and be under the parental authority only of his
mother. He can claim support only from a more limited group and his legitime is only half of that
of his legitimate counterpart.[49] Moreover (without unwittingly exacerbating the discrimination
against him), in the eyes of society, a bastard is usually regarded as bearing a stigma or mark of
dishonor. Needless to state, the legitimacy presumptively vested by law upon Jose Gerardo
favors his interest.
It is unfortunate that Jose Gerardo was used as a pawn in the bitter squabble between the
very persons who were passionately declaring their concern for him. The paradox was that he
was made to suffer supposedly for his own sake. This madness should end.
This case has been pending for a very long time already. What is specially tragic is that an
innocent child is involved. Jose Gerardo was barely a year old when these proceedings began. He
is now almost fifteen and all this time he has been a victim of incessant bickering. The law now
comes to his aid to write finis to the controversy which has unfairly hounded him since his
infancy.
Having only his best interests in mind, we uphold the presumption of his legitimacy.
As a legitimate child, Jose Gerardo shall have the right to bear the surnames of his father
Mario and mother Ma. Theresa, in conformity with the provisions of the Civil Code on
surnames.[50] A persons surname or family name identifies the family to which he belongs and is
passed on from parent to child.[51] Hence, Gerardo cannot impose his surname on Jose Gerardo
who is, in the eyes of the law, not related to him in any way.
The matter of changing Jose Gerardos name and effecting the corrections of the entries in
the civil register regarding his paternity and filiation should be threshed out in a separate
proceeding.
In case of annulment or declaration of absolute nullity of marriage, Article 49 of the Family
Code grants visitation rights to a parent who is deprived of custody of his children. Such
visitation rights flow from the natural right of both parent and child to each others company.
There being no such parent-child relationship between them, Gerardo has no legally demandable
right to visit Jose Gerardo.
Our laws seek to promote the welfare of the child. Article 8 of PD 603, otherwise known as
the Child and Youth Welfare Code, is clear and unequivocal:

58 | P a g e
Article 8. Childs Welfare Paramount. In all questions regarding the care, custody, education and
property of the child, his welfare shall be the paramount consideration.

Article 3 (1) of the United Nations Convention on the Rights of a Child of which the
Philippines is a signatory is similarly emphatic:

Article 3

1. In all actions concerning children, whether undertaken by public or private social

welfare institutions, courts of law, administrative authorities or legislative bodies,
the best interests of the child shall be a primary consideration.

The State as parens patriae affords special protection to children from abuse, exploitation
and other conditions prejudicial to their development. It is mandated to provide protection to
those of tender years.[52] Through its laws, the State safeguards them from every one, even their
own parents, to the end that their eventual development as responsible citizens and members of
society shall not be impeded, distracted or impaired by family acrimony. This is especially
significant where, as in this case, the issue concerns their filiation as it strikes at their very
identity and lineage.
WHEREFORE, the petition is hereby DENIED. The September 14, 1995 and January 10,
1996 resolutions of the Court of Appeals in CA-G.R. CV No. 40651 are hereby AFFIRMED.
Costs against petitioner.
SO ORDERED.
Panganiban, (Chairman), Sandoval-Gutierrez, and Garcia, JJ., concur.
Carpio-Morales, J., no part.

59 | P a g e
JENIE SAN JUAN DELA G.R. No. 177728
CRUZ and minor
CHRISTIAN DELA CRUZ Present:
AQUINO, represented by
JENIE SANJUAN DELA CRUZ, QUISUMBING, J., Chairperson,
Petitioners, CARPIO MORALES,
CHICO-NAZARIO,
LEONARDO-DE CASTRO, and
versus PERALTA,* JJ.

RONALD PAUL S. GRACIA, in

his capacity as City Civil Registrar Promulgated:
of Antipolo City, July 31, 2009
Respondent.
x------------------------------------------------x

DECISION

CARPIO MORALES, J.:

For several months in 2005, then 21-year old petitioner Jenie San Juan Dela Cruz (Jenie)
and then 19-year old Christian Dominique Sto. Tomas Aquino (Dominique) lived together as
husband and wife without the benefit of marriage. They resided in the house of Dominiques
parents Domingo B. Aquino and Raquel Sto. Tomas Aquino at Pulang-lupa, Dulumbayan,
Teresa, Rizal.

On September 4, 2005, Dominique died.[1] After almost two months, or on November 2,

2005, Jenie, who continued to live with Dominiques parents, gave birth to her herein co-
petitioner minor child Christian Dela Cruz Aquino at the Antipolo Doctors Hospital, Antipolo
City.

Jenie applied for registration of the childs birth, using Dominiques surname Aquino, with
the Office of the City Civil Registrar, Antipolo City, in support of which she submitted the
childs Certificate of Live Birth,[2] Affidavit to Use the Surname of the Father[3] (AUSF) which
she had executed and signed, and Affidavit of Acknowledgment executed by Dominiques father
Domingo Butch Aquino.[4] Both affidavits attested, inter alia, that during the lifetime of
Dominique, he had continuously acknowledged his yet unborn child, and that his paternity had
never been questioned. Jenie attached to the AUSF a document entitled AUTOBIOGRAPHY
which Dominique, during his lifetime, wrote in his own handwriting, the pertinent portions of
which read:

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 AQUINO, CHRISTIAN DOMINIQUE S.T.

AUTOBIOGRAPHY

IM CHRISTIAN DOMINIQUE STO. TOMAS AQUINO, 19 YEARS OF

AGE TURNING 20 THIS COMING OCTOBER 31, 2005.[5] I RESIDE AT
PULANG-LUPA STREET BRGY. DULUMBAYAN, TERESA, RIZAL. I AM
THE YOUNGEST IN OUR FAMILY. I HAVE ONE BROTHER NAMED
JOSEPH BUTCH STO. TOMAS AQUINO. MY FATHERS NAME IS
DOMINGO BUTCH AQUINO AND MY MOTHERS NAME IS RAQUEL STO.
TOMAS AQUINO. x x x.
xxxx

AS OF NOW I HAVE MY WIFE NAMED JENIE DELA CRUZ. WE

MET EACH OTHER IN OUR HOMETOWN, TEREZA RIZAL. AT FIRST WE
BECAME GOOD FRIENDS, THEN WE FELL IN LOVE WITH EACH
OTHER, THEN WE BECAME GOOD COUPLES. AND AS OF NOW SHE IS
PREGNANT AND FOR THAT WE LIVE TOGETHER IN OUR HOUSE
NOW. THATS ALL.[6] (Emphasis and underscoring supplied)

By letter dated November 11, 2005,[7] the City Civil Registrar of Antipolo City, Ronald
Paul S. Gracia (respondent), denied Jenies application for registration of the childs name in this
wise:

7. Rule 7 of Administrative Order No. 1, Series of 2004 (Implementing Rules

and Regulations of Republic Act No. 9255 [An Act Allowing Illegitimate
Children to Use the Surname of their Father, Amending for the Purpose,
Article 176 of Executive Order No. 209, otherwise Known as the Family Code
of the Philippines]) provides that:

Rule 7. Requirements for the Child to Use the Surname of the Father

7.1 For Births Not Yet Registered

7.1.1 The illegitimate child shall use the surname of the father if a public
document is executed by the father, either at the back of the
Certificate of Live Birth or in a separate document.
7.1.2 If admission of paternity is made through a private handwritten
instrument, the child shall use the surname of the father,
provided the registration is supported by the following
documents:

a. AUSF[8]
b. Consent of the child, if 18 years old and over at the time of the
filing of the document.
61 | P a g e
 c. Any two of the following documents showing clearly the
paternity between the father and the child:

1. Employment records
2. SSS/GSIS records
3. Insurance
4. Certification of membership in any organization
5. Statement of Assets and Liability
6. Income Tax Return (ITR)
In summary, the child cannot use the surname of his father because he was born
out of wedlock and the father unfortunately died prior to his birth and has no more
capacity to acknowledge his paternity to the child (either through the back of
Municipal Form No. 102 Affidavit of Acknowledgment/Admission of Paternity or
the Authority to Use the Surname of the Father). (Underscoring supplied)

Jenie and the child promptly filed a complaint[9] for injunction/registration of name
against respondent before the Regional Trial Court of Antipolo City, docketed as SCA Case No.
06-539, which was raffled to Branch 73 thereof. The complaint alleged that, inter alia, the denial
of registration of the childs name is a violation of his right to use the surname of his deceased
father under Article 176 of the Family Code, as amended by Republic Act (R.A.) No.
9255,[10] which provides:

Article 176. Illegitimate children shall use the surname and shall be under
the parental authority of their mother, and shall be entitled to support in
conformity with this Code. However, illegitimate children may use the surname
of their father if their filiation has been expressly recognized by the father through
the record of birth appearing in the civil register, or when an admission in
a public document or private handwritten instrument is made by the
father. Provided, the father has the right to institute an action before the regular
courts to prove non-filiation during his lifetime. The legitime of each illegitimate
child shall consist of one-half of the legitime of a legitimate child. (Emphasis and
underscoring supplied)

They maintained that the Autobiography executed by Dominique constitutes an admission of

paternity in a private handwritten instrument within the contemplation of the above-quoted
provision of law.

For failure to file a responsive pleading or answer despite service of summons,

respondent was declared in default.

62 | P a g e
 Jenie thereupon presented evidence ex-parte. She testified on the circumstances of her
common-law relationship with Dominique and affirmed her declarations in her AUSF that during
his lifetime, he had acknowledged his yet unborn child.[11] She offered Dominiques handwritten
Autobiography (Exhibit A) as her documentary evidence-in-chief.[12] Dominiques lone brother,
Joseph Butch S.T. Aquino, also testified, corroborating Jenies declarations.[13]
By Decision[14] of April 25, 2007, the trial court dismissed the complaint for lack of cause
of action as the Autobiography was unsigned, citing paragraph 2.2, Rule 2 (Definition of Terms)
of Administrative Order (A.O.) No. 1, Series of 2004 (the Rules and Regulations Governing
the Implementation of R.A. 9255) which defines private handwritten document through which
a father may acknowledge an illegitimate child as follows:

2.2 Private handwritten instrument an instrument executed in the

handwriting of the father and duly signed by him where he expressly recognizes
paternity to the child. (Underscoring supplied)

The trial court held that even if Dominique was the author of the handwritten Autobiography, the
same does not contain any express recognition of paternity.
Hence, this direct resort to the Court via Petition for Review on Certiorari raising this
purely legal issue of:

WHETHER OR NOT THE UNSIGNED HANDWRITTEN

STATEMENT OF THE DECEASED FATHER OF MINOR CHRISTIAN DELA
CRUZ CAN BE CONSIDERED AS A RECOGNITION OF PATERNITY IN A
PRIVATE HANDWRITTEN INSTRUMENT WITHIN THE
CONTEMPLATION OF ARTICLE 176 OF THE FAMILY CODE, AS
AMENDED BY R.A. 9255, WHICH ENTITLES THE SAID MINOR TO USE
HIS FATHERS SURNAME.[15] (Underscoring supplied)

Petitioners contend that Article 176 of the Family Code, as amended, does not expressly
require that the private handwritten instrument containing the putative fathers admission of
paternity must be signed by him. They add that the deceaseds handwritten Autobiography,
though unsigned by him, is sufficient, for the requirement in the above-quoted paragraph 2.2 of
the Administrative Order that the admission/recognition must be duly signed by the father is void
as it unduly expanded the earlier-quoted provision of Article 176 of the Family Code.[16]

Petitioners further contend that the trial court erred in not finding
that Dominiques handwritten Autobiography contains a clear and unmistakable recognition of
the childs paternity.[17]

63 | P a g e
 In its Comment, the Office of the Solicitor General (OSG) submits that respondents
position, as affirmed by the trial court, is in consonance with the law and thus prays for the
dismissal of the petition. It further submits that Dominiques Autobiography merely
acknowledged Jenies pregnancy but not [his] paternity of the child she was carrying in her
womb.[18]

Article 176 of the Family Code, as amended by R.A. 9255, permits an illegitimate child
to use the surname of his/her father if the latter had expressly recognized him/her as his offspring
through the record of birth appearing in the civil register, or through an admission made in a
public or private handwritten instrument. The recognition made in any of these documents is, in
itself, a consummated act of acknowledgment of the childs paternity; hence, no separate action
for judicial approval is necessary.[19]

Article 176 of the Family Code, as amended, does not, indeed, explicitly state that the
private handwritten instrument acknowledging the childs paternity must be signed by the
putative father. This provision must, however, be read in conjunction with related provisions of
the Family Code which require that recognition by the father must bear his signature, thus:

Art. 175. Illegitimate children may establish their illegitimate filiation in

the same way and on the same evidence as legitimate children.

xxxx

Art. 172. The filiation of legitimate children is established by any of the

following:

(1) The record of birth appearing in the civil register or a final

judgment; or

(2) An admission of legitimate filiation in a public document or

a private handwritten instrument and signed by the parent concerned.

x x x x (Emphasis and underscoring supplied)

That a father who acknowledges paternity of a child through a written instrument must
affix his signature thereon is clearly implied in Article 176 of the Family Code. Paragraph 2.2,
Rule 2 of A.O. No. 1, Series of 2004, merely articulated such requirement; it did not unduly
expand the import of Article 176 as claimed by petitioners.

64 | P a g e
 In the present case, however, special circumstances exist to hold that Dominiques
Autobiography, though unsigned by him, substantially satisfies the requirement of the law.

First, Dominique died about two months prior to the childs birth. Second, the relevant
matters in the Autobiography, unquestionably handwritten by Dominique, correspond to the facts
culled from the testimonial evidence Jenie proffered.[20] Third, Jenies testimony
is corroborated by the Affidavit of Acknowledgment of Dominiques father Domingo Aquino and
testimony of his brother Joseph Butch Aquino whose hereditary rights could be affected by the
registration of the questioned recognition of the child. These circumstances indicating
Dominiques paternity of the child give life to his statements in his Autobiography that JENIE
DELA CRUZ is MY WIFE as WE FELL IN LOVE WITH EACH OTHER and NOW SHE IS
PREGNANT AND FOR THAT WE LIVE TOGETHER.

In Herrera v. Alba,[21] the Court summarized the laws, rules, and jurisprudence on
establishing filiation, discoursing in relevant part:

Laws, Rules, and Jurisprudence

Establishing Filiation

The relevant provisions of the Family Code provide as follows:

ART. 175. Illegitimate children may establish their illegitimate filiation in

the same way and on the same evidence as legitimate children.

xxxx

ART. 172. The filiation of legitimate children is established by any of the

following:

(1) The record of birth appearing in the civil register or a final

judgment; or

(2) An admission of legitimate filiation in a public document or a

private handwritten instrument and signed by the parent concerned.

In the absence of the foregoing evidence, the legitimate filiation shall be

proved by:

(1) The open and continuous possession of the status of a legitimate

child; or

65 | P a g e
 (2) Any other means allowed by the Rules of Court and special laws.

The Rules on Evidence include provisions on pedigree. The relevant sections

of Rule 130 provide:

SEC. 39. Act or declaration about pedigree. The act or declaration of a

person deceased, or unable to testify, in respect to the pedigree of another person
related to him by birth or marriage, may be received in evidence where it occurred
before the controversy, and the relationship between the two persons is shown by
evidence other than such act or declaration. The word "pedigree" includes
relationship, family genealogy, birth, marriage, death, the dates when and the
places where these facts occurred, and the names of the relatives. It embraces also
facts of family history intimately connected with pedigree.

SEC. 40. Family reputation or tradition regarding pedigree. The reputation

or tradition existing in a family previous to the controversy, in respect to the
pedigree of any one of its members, may be received in evidence if the witness
testifying thereon be also a member of the family, either by consanguinity or
affinity. Entries in family bibles or other family books or charts, engraving on
rings, family portraits and the like, may be received as evidence of pedigree.

This Court's rulings further specify what incriminating acts are acceptable
as evidence to establish filiation. In Pe Lim v. CA, a case petitioner often cites, we
stated that the issue of paternity still has to be resolved by such conventional
evidence as the relevant incriminating verbal and written acts by the putative
father. Under Article 278 of the New Civil Code, voluntary recognition by a
parent shall be made in the record of birth, a will, a statement before a court of
record, or in any authentic writing. To be effective, the claim of filiation must
be made by the putative father himself and the writing must be the writing of
the putative father. A notarial agreement to support a child whose filiation is
admitted by the putative father was considered acceptable evidence. Letters to the
mother vowing to be a good father to the child and pictures of the putative father
cuddling the child on various occasions, together with the certificate of live birth,
proved filiation. However, a student permanent record, a written consent to a
father's operation, or a marriage contract where the putative father gave consent,
cannot be taken as authentic writing. Standing alone, neither a certificate of
baptism nor family pictures are sufficient to establish filiation. (Emphasis and
underscoring supplied.)

In the case at bar, there is no dispute that the earlier quoted statements in Dominiques
Autobiography have been made and written by him. Taken together with the other relevant facts
extant herein that Dominique, during his lifetime, and Jenie were living together as common-law
spouses for several months in 2005 at his parents house in Pulang-lupa, Dulumbayan, Teresa,
Rizal; she was pregnant when Dominique died on September 4, 2005; and about two months

66 | P a g e
after his death, Jenie gave birth to the child they sufficiently establish that the child of Jenie is
Dominiques.

In view of the pronouncements herein made, the Court sees it fit to adopt the following
rules respecting the requirement of affixing the signature of the acknowledging parent in any
private handwritten instrument wherein an admission of filiation of a legitimate or illegitimate
child is made:

1) Where the private handwritten instrument is the lone piece of evidence submitted to
prove filiation, there should be strict compliance with the requirement that the same must be
signed by the acknowledging parent; and

2) Where the private handwritten instrument is accompanied by other relevant and

competent evidence, it suffices that the claim of filiation therein be shown to have been made
and handwritten by the acknowledging parent as it is merely corroborative of such other
evidence.

Our laws instruct that the welfare of the child shall be the paramount consideration in
resolving questions affecting him.[22] Article 3(1) of the United Nations Convention on the
Rights of a Child of which the Philippines is a signatory is similarly emphatic:

Article 3

1. In all actions concerning children, whether undertaken by public or private

social welfare institutions, courts of law, administrative authorities or legislative
bodies, the best interests of the child shall be a primary
consideration.[23] (Underscoring supplied)

It is thus (t)he policy of the Family Code to liberalize the rule on the investigation of
the paternity and filiation of children, especially of illegitimate children x x x.[24] Too, (t)he State
as parens patriae affords special protection to children from abuse, exploitation and other
conditions prejudicial to their development.[25]

In the eyes of society, a child with an unknown father bears the stigma of dishonor. It is
to petitioner minor childs best interests to allow him to bear the surname of the now deceased
Dominique and enter it in his birth certificate.

67 | P a g e
 WHEREFORE, the petition is GRANTED. The City Civil Registrar of Antipolo City is
DIRECTED to immediately enter the surname of the late Christian Dominique Sto.
Tomas Aquino as the surname of petitioner minor Christian dela Cruz in his Certificate of Live
Birth, and record the same in the Register of Births.

SO ORDERED.

CONCHITA CARPIO MORALES

Associate Justice

68 | P a g e
 G.R. No. 188801, October 15, 2014

ROSARIO MATA CASTRO AND JOANNE BENEDICTA CHARISSIMA M. CASTRO,

A.K.A. "MARIA SOCORRO M. CASTRO" AND "JAYROSE M. CASTRO," Petitioners,
v. JOSE MARIA JED LEMUEL GREGORIO AND ANA MARIA REGINA
GREGORIO, Respondents.

DECISION

LEONEN, J.:

The policy of the law is clear. In order to maintain harmony, there must be a showing of notice
and consent. This cannot be defeated by mere procedural devices. In all instances where it
appears that a spouse attempts to adopt a child out of wedlock, the other spouse and other
legitimate children must be personally notified through personal service of summons. It is not
enough that they be deemed notified through constructive service.

This is a petition for review on certiorari1 assailing the decision2 of the Court of Appeals in CA-
G.R. SP No. 101021, which denied the petition for annulment of judgment filed by petitioners.
The petition before the appellate court sought to annul the judgment of the trial court that granted
respondents' decree of adoption.3chanrobleslaw

The case originally stemmed from the adoption of Jose Maria Jed Lemuel Gregorio (J�d) and
Ana Maria Regina Gregorio (Regina) by Atty. Jose G. Castro (Jose). Jose is the estranged
husband of Rosario Mata Castro (Rosario) and the father of Joanne Benedicta Charissima M.
Castro (Joanne), also known by her baptismal name, "Maria Socorro M. Castro" and her
nickname, "Jayrose."

Rosario alleged that she and Jose were married on August 5, 1962 in Laoag City. Their marriage
had allegedly been troubled. They had a child, Rose Marie, who was born in 1963, but
succumbed to congenital heart disease and only lived for nine days. Rosario allegedly left Jose
after a couple of months because of the incompatibilities between them.4chanrobleslaw

Rosario and Jose, however, briefly reconciled in 1969. Rosario gave birth to Joanne a year later.
She and Jose allegedly lived as husband and wife for about a year even if she lived in Manila and
Jose stayed in Laoag City. Jose would visit her in Manila during weekends. Afterwards, they
separated permanently because Rosario alleged that Jose had homosexual tendencies.5 She
insisted, however, that they "remained friends for fifteen (15) years despite their
separation(.)"6chanrobleslaw

On August 1, 2000, Jose filed a petition7 for adoption before the Regional Trial Court of Batac,
Ilocos Norte. In the petition, he alleged that Jed and Regina were his illegitimate children with
Lilibeth Fernandez Gregorio (Lilibeth),8 whom Rosario alleged was his erstwhile
housekeeper.9 At the time of the filing of the petition, Jose was 70 years old.10chanrobleslaw

According to the Home Study Report11 conducted by the Social Welfare Officer of the trial
court, Jose belongs to a prominent and respected family, being one of the three children of

69 | P a g e
former Governor Mauricio Castro.

He was also a well-known lawyer in Manila and Ilocos Norte.12 The report mentioned that he
was once married to Rosario, but the marriage did not produce any children.13 It also stated that
he met and fell in love with Lilibeth in 1985, and Lilibeth was able to bear him two children, Jed
on August 1987, and Regina on March 1989.14 Under "Motivation for Adoption," the social
welfare officer noted:chanRoblesvirtualLawlibrary

Since, he has no child with his marriaged [sic] to Rosario Mata, he was not able to fulfill his
dreams to parent a child. However, with the presence of his 2 illegitimate children will fulfill his
dreams [sic] and it is his intention to legalize their relationship and surname. . . .15

At the time of the report, Jose was said to be living with Jed and Regina temporarily in Batac,
Ilocos Norte.16 The children have allegedly been in his custody since Lilibeth's death in July
1995.17chanrobleslaw

On October 16, 2000, the trial court approved the adoption,18 having ruled that "[n]o opposition
had been received by this Court from any person including the government which was
represented by the Office of the Solicitor General."19 A certificate of finality20 was issued on
February 9, 2006.

Meanwhile, on July 3, 2006, Rosario, through her lawyer, Atty. Rene V. Saguisag, filed a
complaint for disbarment against Jose with the Integrated Bar of the Philippines.21 In her
complaint, she alleged that Jose had been remiss in providing support for their daughter, Joanne,
for the past 36 years.22 She alleged that she single-handedly raised and provided financial
support to Joanne while Jose had been showering gifts to his driver and alleged lover, Larry R.
Rentegrado (Larry), and even went to the extent of adopting Larry's two children, Jed and
Regina, without her and Joanne's knowledge and consent.23She also alleged that Jose made
blatant lies to the trial court by alleging that Jed and Regina were his illegitimate children with
Larry's wife, Lilibeth, to cover up for his homosexual relationship with Larry.24chanrobleslaw

In his answer before the Integrated Bar of the Philippines, Jose denies being remiss in his
fatherly duties to Joanne during her minority. He alleged that he always offered help, but it was
often declined.25 He also alleged that he adopted Jed and Regina because they are his illegitimate
children. He denied having committed any of the falsification alluded to by Rosario. He also
stated that he had suffered a stroke in 1998 that left him paralyzed. He alleged that his income
had been diminished because several properties had to be sold to pay for medical
treatments.26 He then implored the Integrated Bar of the Philippines to weigh on the case with
"justice and equity."27chanrobleslaw

On October 8, 2006, Jose died in Laoag City, Ilocos Norte.28chanrobleslaw

On October 18, 2007, Rosario and Joanne filed a petition for annulment of judgment under Rule
47 of the Rules of Civil Procedure with the Court of Appeals, seeking to annul the October 16,
2000 decision of the trial court approving Jed and Regina's adoption.29chanrobleslaw

In their petition, Rosario and Joanne allege that they learned of the adoption sometime in
2005.30 They allege that Rosario's affidavit of consent, marked by the trial court as "Exh.
70 | P a g e
K,"31 was fraudulent.32 They also allege that Jed and Regina's birth certificates showed different
sets of information, such as the age of their mother, Lilibeth, at the time she gave birth. They
argue that one set of birth certificates states the father to be Jose and in another set of National
Statistic Office certificates shows the father to be Larry, Jose's driver and alleged lover.33 It was
further alleged that Jed and Regina are not actually Jose's illegitimate children but the legitimate
children of Lilibeth and Larry who were married at the time of their birth.34chanrobleslaw

On May 26, 2009, the Court of Appeals denied the petition.

While admittedly, no notice was given by the trial court to Rosario and Joanne of the adoption,
the appellate court ruled that there is "no explicit provision in the rules that the spouse and
legitimate child of the adopter . . . should be personally notified of the hearing."35chanrobleslaw

The appellate court "abhor[red] the mind baffling scheme employed by [Jose] in obtaining an
adoption decree in favor of [his illegitimate children] to the prejudice of the interests of his
legitimate heirs"36 but stated that its hands were bound by the trial court decision that had already
attained "finality and immutability."37chanrobleslaw

The appellate court also ruled that the alleged fraudulent information contained in the different
sets of birth certificates required the determination of the identities of the persons stated therein
and was, therefore, beyond the scope of the action for annulment of judgment. The alleged fraud
was also perpetrated during the trial and could not be classified as extrinsic fraud, which is
required in an action for annulment of judgment.38chanrobleslaw

When Rosario and Joanne's motion for reconsideration was denied on July 10, 2009,39 they filed
this petition.

The issue before this court is whether the Court of Appeals erred in denying the petition for
annulment for failure of petitioners to (1) show that the trial court lacked jurisdiction and (2)
show the existence of extrinsic fraud.

In their petition, petitioners argue that the appellate court erred in its application of the law on
extrinsic fraud as ground to annul a judgment.40 They argue that because of the fabricated
consent obtained by Jose and the alleged false information shown in the birth certificates
presented as evidence before the trial court,41 they were not given the opportunity to oppose the
petition since the entire proceedings were concealed from them.42chanrobleslaw

Petitioners also argue that the appellate court misunderstood and misapplied the law on
jurisdiction despite the denial of due process, notice, and non-inclusion of indispensable
parties.43 They argue that the adoption of illegitimate children requires the consent, not only of
the spouse, but also the legitimate children 10 years or over of the adopter, and such consent was
never secured from Joanne.44chanrobleslaw

Respondents, however, argue in their comment that petitioners could not have been deprived of
their day in court since their interest was "amply protected by the participation and
representation of the Solicitor General through the deputized public prosecutor."45chanrobleslaw

Respondents also argue that there was constructive notice through publication for three
71 | P a g e
consecutive weeks in a newspaper of general circulation, which constitutes not only notice to
them but also notice to the world of the adoption proceedings.46 They argue that since the alleged
fraud was perpetrated during the trial, it cannot be said to be extrinsic fraud but intrinsic fraud,
which is not a ground for annulment of judgment.47 They also argue that petitioners were not
indispensable parties because adoption is an action in rem and, as such, the only indispensable
party is the state.48chanrobleslaw

The petition is granted.

Annulment of judgment under Rule 47

of the Rules of Civil Procedure�

Under Rule 47, Section 1 of the Rules of Civil Procedure, a party may file an action with the
Court of Appeals to annul judgments or final orders and resolutions in civil actions of Regional
Trial Courts. This remedy will only be available if "the ordinary remedies of new trial, appeal,
petition for relief or other appropriate remedies are no longer available through no fault of the
petitioner."49chanrobleslaw

In Dare Adventure Farm Corporation v. Court of Appeals:50chanrobleslaw

A petition for annulment of judgment is a remedy in equity so exceptional in nature that it may be
availed of only when other remedies are wanting, and only if the judgment, final order or final
resolution sought, to be annulled was rendered by a court lacking jurisdiction or through
extrinsic fraud. Yet, the remedy, being exceptional in character, is not allowed to be so easily
and readily abused by parties aggrieved by the final judgments, orders or resolutions. The Court
has thus instituted safeguards by limiting the grounds for the annulment to lack of jurisdiction
and extrinsic fraud, and by prescribing in Section 1 of Rule 47 of the Rules of Court that the
petitioner should show that the ordinary remedies of new trial, appeal, petition for relief or other
appropriate remedies are no longer available through no fault of the petitioner. A petition for
annulment that ignores or disregards any of the safeguards cannot prosper.

The attitude of judicial reluctance towards the annulment of a judgment, final order or final
resolution is understandable, for the remedy disregards the time-honored doctrine of
immutability and unalterability of final judgments, a solid corner stone in the dispensation of
justice by the courts. The doctrine of immutability and unalterability serves a two-fold purpose,
namely: (a) to avoid delay in the administration of justice and thus, procedurally, to make orderly
the discharge of judicial business; and (b) to put an end to judicial controversies, at the risk of
occasional errors, which is precisely why the courts exist. As to the first, a judgment that has
acquired finality becomes immutable and unalterable and is no longer to be modified in any
respect even if the modification is meant to correct an erroneous conclusion of fact or of law, and
whether the modification is made by the court that rendered the decision or by the highest court
of the land. As to the latter, controversies cannot drag on indefinitely because fundamental
considerations of public policy and sound practice demand that the rights and obligations of
every litigant must not hang in suspense for an indefinite period of time.51 (Emphasis supplied)

Because of the exceptional nature of the remedy, there are only two grounds by which annulment
of judgment may be availed of: extrinsic fraud, which must be brought four years from
discovery, and lack of jurisdiction, which must be brought before it is barred by estoppel or
72 | P a g e
laches.52chanrobleslaw

Lack of jurisdiction under this rule means lack of jurisdiction over the nature of the action or
subject matter, or lack of jurisdiction over the parties.53 Extrinsic fraud, on the other hand, is
"[that which] prevents a party from having a trial or from presenting his entire case to the court,
or [that which] operates upon matters pertaining not to the judgment itself but to the manner in
which it is procured."54chanrobleslaw

The grant of adoption over respondents should be annulled as the trial court did not validly
acquire jurisdiction over the proceedings, and the favorable decision was obtained through
extrinsic fraud.

Jurisdiction over adoption proceedings

vis-a-vis the law on adoption

Petitioners argue that they should have been given notice by the trial court of the adoption, as
adoption laws require their consent as a requisite in the proceedings.

Petitioners are correct.

It is settled that "the jurisdiction of the court is determined by the statute in force at the time of
the commencement of the action."55 As Jose filed the petition for adoption on August 1, 2000, it
is Republic Act No. 855256 which applies over the proceedings. The law on adoption requires
that the adoption by the father of a child born out of wedlock obtain not only the consent of his
wife but also the consent of his legitimate children.

Under Article III, Section 7 of Republic Act No. 8552, the husband must first obtain the consent
of his wife if he seeks to adopt his own children born out of
wedlock:chanRoblesvirtualLawlibrary

ARTICLE III
ELIGIBILITY

SEC. 7. Who May Adopt. � The following may adopt:chanroblesvirtuallawlibrary

Husband and wife shall jointly adopt, except in the following cases:chanroblesvirtuallawlibrary

(i) if one spouse seeks to adopt the legitimate son/daughter of the other; or

(ii) if one spouse seeks to adopt his/her own illegitimate son/daughter: Provided, however, That
the other spouse has signified, his/her consent thereto; or

(iii) if the spouses are legally separated from each other. . . (Emphasis supplied)

The provision is mandatory. As a general rule, the husband and wife must file a joint petition for
adoption. The rationale for this is stated in In Re: Petition for Adoption of Michelle P.
Lim:57chanrobleslaw

73 | P a g e
The use of the word "shall" in the above-quoted provision means that joint adoption by the
husband and the wife is mandatory. This is in consonance with the concept of joint parental
authority over the child which is the ideal situation. As the child to be adopted is elevated to the
level of a legitimate child, it is but natural to require the spouses to adopt jointly. The rule also
insures harmony between the spouses.58

The law provides for several exceptions to the general rule, as in a situation where a spouse seeks
to adopt his or her own children born out of wedlock. In this instance, joint adoption is not
necessary. However, the spouse seeking to adopt must first obtain the consent of his or her
spouse.

In the absence of any decree of legal separation or annulment, Jose and Rosario remained legally
married despite their de facto separation. For Jose to be eligible to adopt Jed and Regina, Rosario
must first signify her consent to the adoption. Jose, however, did not validly obtain Rosario's
consent. His submission of a fraudulent affidavit of consent in her name cannot be considered
compliance of the requisites of the law. Had Rosario been given notice by the trial court of the
proceedings, she would have had a reasonable opportunity to contest the validity of the affidavit.
Since her consent was not obtained, Jose was ineligible to adopt.

The law also requires the written consent of the adopter's children if they are 10 years old or
older. In Article III, Section 9 of Republic Act No. 8552:chanRoblesvirtualLawlibrary

SEC. 9. Whose Consent is Necessary to the Adoption. � After being properly counseled and
informed of his/her right to give or withhold his/her approval of the adoption, the written consent
of the following to the adoption is hereby required:chanroblesvirtuallawlibrary

(c) The legitimate and adopted sons/daughters, ten (10) years of age or over, of the adopter(s)
and adoptee, if any; (Emphasis supplied)

The consent of the adopter's other children is necessary as it ensures harmony among the
prospective siblings. It also sufficiently puts the other children on notice that they will have to
share their parent's love and care, as well as their future legitimes, with another person.

It is undisputed that Joanne was Jose and Rosario's legitimate child and that she was over 10
years old at the time of the adoption proceedings. Her written consent, therefore, was necessary
for the adoption to be valid.

To circumvent this requirement, however, Jose manifested to the trial court that he and Rosario
were childless, thereby preventing Joanne from being notified of the proceedings. As her written
consent was never obtained, the adoption was not valid.

For the adoption to be valid, petitioners' consent was required by Republic Act No. 8552.
Personal service of summons should have been effected on the spouse and all legitimate children
to ensure that their substantive rights are protected. It is not enough to rely on constructive notice
as in this case. Surreptitious use of procedural technicalities cannot be privileged over
substantive statutory rights.

Since the trial court failed to personally serve notice on Rosario and Joanne of the proceedings, it
74 | P a g e
never validly acquired jurisdiction.

There was extrinsic fraud

The appellate court, in denying the petition, ruled that while fraud may have been committed in
this case, it was only intrinsic fraud, rather than extrinsic fraud. This is erroneous.

In People v. Court of Appeals and Socorro Florece:59chanrobleslaw

Extrinsic fraud refers to any fraudulent act of the prevailing party in litigation committed outside
of the trial of the case, whereby the defeated party is prevented from fully exhibiting his side of
the case by fraud or deception practiced on him by his opponent, such as by keeping him away
from court, by giving him a false promise of a compromise, or where the defendant never had
the knowledge of the suit, being kept in ignorance by the acts of the plaintiff, or where an
attorney fraudulently or without authority connives at his defeat.60 (Emphasis supplied)

An action for annulment based on extrinsic fraud must be brought within four years from
discovery.61Petitioners alleged that they were made aware of the adoption only in 2005. The
filing of this petition on October 18, 2007 is within the period allowed by the rules.

The badges of fraud are present in this case.

First, the petition for adoption was filed in a place that had no relation to any of the parties. Jose
was a resident of Laoag City, llocos Norte.62 Larry and Lilibeth were residents of Barangay 6,
Laoag City.63 Jed and Regina were born in San Nicolas, Ilocos Norte.64 Rosario and Joanne were
residents of Para�aque City, Manila.65 The petition for adoption, however, was filed in the
Regional Trial Court of Batac, Ilocos Norte.66 The trial court gave due course to the petition on
Jose's bare allegation in his petition that he was a resident of Batac,67 even though it is admitted
in the Home Study Report that he was a practicing lawyer in Laoag City.68chanrobleslaw

Second, using the process of delayed registration,69 Jose was able to secure birth certificates for
Jed and Regina showing him to be the father and Larry as merely the informant.70 Worse still is
that two different sets of fraudulent certificates were procured: one showing that Jose and
Lilibeth were married on December 4, 1986 in Manila,71 and another wherein the portion for the
mother's name was not filled in at all.72 The birth certificates of Jed and Regina from the
National Statistics Office, however, show that their father was Larry R. Rentegrado.73 These
certificates are in clear contradiction to the birth certificates submitted by Jose to the trial court in
support of his petition for adoption.

Third, Jose blatantly lied to the trial court when he declared that his motivation for adoption was
because he and his wife, Rosario, were childless,74 to the prejudice of their daughter, Joanne. The
consent of Rosario to the adoption was also disputed by Rosario and alleged to be
fraudulent.75chanrobleslaw

All these tactics were employed by Jose, not only to induce the trial court in approving his
petition, but also to prevent Rosario and Joanne from participating in the proceedings or
opposing the petition.

75 | P a g e
The appellate court erroneously classified the fraud employed by Jose as intrinsic on the basis
that they were "forged instruments or perjured testimonies"76 presented during the trial. It failed
to understand, however, that fraud is considered intrinsic when the other party was either present
at the trial or was a participant in the proceedings when such instrument or testimony was
presented in court, thus:chanRoblesvirtualLawlibrary

[I]ntrinsic fraud refers to the acts of a party at a trial that prevented a fair and just determination
of the case, but the difference is that the acts or things, like falsification and false testimony,
could have been litigated and determined at the trial or adjudication of the case. In other
words, intrinsic fraud does not deprive the petitioner of his day in court because he can guard
against that kind of fraud through so many means, including a thorough trial preparation, a
skillful, cross-examination, resorting to the modes of discovery, and proper scientific or forensic
applications. Indeed, forgery of documents and evidence for use at the trial and perjury in court
testimony have been regarded as not preventing the participation of any party in the proceedings,
and are not, therefore, constitutive of extrinsic fraud.77 (Emphasis supplied)

When fraud is employed by a party precisely to prevent the participation of any other interested
party, as in this case, then the fraud is extrinsic, regardless of whether the fraud was committed
through the use of forged documents or perjured testimony during the trial.

Jose's actions prevented Rosario and Joanne from having a reasonable opportunity to contest the
adoption. Had Rosario and Joanne been allowed to participate, the trial court would have
hesitated to grant Jose's petition since he failed to fulfill the necessary requirements under the
law. There can be no other conclusion than that because of Jose's acts, the trial court granted the
decree of adoption under fraudulent circumstances.

The law itself provides for penal sanctions for those who violate its provisions. Under Article
VII, Section 21 of Republic Act No. 8552:chanRoblesvirtualLawlibrary

ARTICLE VII
VIOLATIONS AND PENALTIES

SEC. 21. Violations and Penalties. �����

�
(a) The penalty of imprisonment ranging from six (6) years and one (1) day to twelve (12) years
and/or a fine not less than Fifty thousand pesos (P50,000.00), but not more than Two
hundred thousand pesos (P200,000.00) at the discretion of the court shall be imposed on
any person who shall commit any of the following acts:
(i) obtaining consent for an adoption through coercion, undue influence, fraud, improper
material inducement, or other similar acts;
(ii) non-compliance with the procedures and safeguards provided by the law for adoption; or
(iii) subjecting or exposing the child to be adopted to danger, abuse, or exploitation.
(b) Any person who shall cause the fictitious registration of the birth of a child under the
name(s) of a person(s) who is not his/her biological parent(s) shall be guilty of simulation
of birth, and shall be punished by prision mayor in its medium period and a fine not
exceeding Fifty thousand pesos (P50.000.00). (Emphasis supplied)

Unfortunately, Jose's death carried with it the extinguishment of any of his criminal
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liabilities.78 Republic Act No. 8552 also fails to provide any provision on the status of adoption
decrees if the adoption is found to have been obtained fraudulently. Petitioners also cannot
invoke Article VI, Section 19 of Republic Act No. 855279 since rescission of adoption can only
be availed of by the adoptee. Petitioners, therefore, are left with no other remedy in law other
than the annulment of the judgment.

The fraud employed in this case has been to Joanne's prejudice. There is reason to believe that
Joanne has grown up having never experienced the love and care of a father, her parents having
separated a year after her birth. She has never even benefited from any monetary support from
her father. Despite all these adversities, Joanne was able to obtain a medical degree from the
University of the Philippines College of Medicine80 and is now working as a doctor in
Canada.81 These accomplishments, however, are poor substitutes if the injustice done upon her is
allowed to continue.

WHEREFORE, the petition is GRANTED. The decision dated October 16, 2000 of the
Regional Trial Court of Batac, Ilocos Norte, Branch 17 in SP. Proc. No. 3445-17 is
rendered NULL and VOID.

SO ORDERED.

Carpio, (Chairperson), Del Castillo, Mendoza, and Reyes,* JJ., concur.

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 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

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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

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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.

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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
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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

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

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 action in court to prove the reappearance of the
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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.

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

Carpio, (Chairperson), Del Castillo,� Mendoza, and Perlas-Bernabe,* JJ., concur.

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