GANDIONCO VS.
PENARANDA defendant spouses had to be established by final
G.R. No. 79284, 27 November 1987
An action for legal separation is aimed at the conjugal
rights of the parties, not to recovery civil liability
Facts:
On 29 May 1986, Teresita Gandionco filed before the
RTC of Misamis a complaint for legal separation on the
ground of concubinage against her husband, Froilan
Gandionco. She also filed a complaint against Froilan
for concubinage before the MTC.
Froilan contended the civil action for legal separation
should be suspended in view of the criminal case for
concubinage pending before the MTC. Judge
Penaranda denied Froilan’s motion. Froilan directly
appealed to the Supreme Court, citing Jerusalem vs.
Zurbano, where the SC held that suspension of an
action for legal separation would be proper if an
allegation of concubinage is made, as per Section 1,
Rule 107 of the then Rules of Court on Criminal
Procedure.
Issue(s):
 1. Whether or not RTC Judge Penaranda
erred in not suspending the civil action for legal
separation
pending the criminal case for concubinage before the
MTC. Held:
1. No, Judge Penaranda correctly continued the
civil action for legal separation.
Froilan incorrectly invokes the suspension of civil
actions arising from the same offense charged in a
criminal action that was already commenced. The
governing rule now is Section 3, Rule 111, 1985 Rules
on Criminal Procedure which refers to "civil actions to
enforce the civil liability arising from the offense" as
contemplated in the first paragraph of Section 1 of Rule
111-which is a civil action "for recovery of civil liability
arising from the offense charged."
Sec. 1, Rule 111, (1985) specifically refers to civil
actions for the recovery of civil liability arising from the
offense charged. Whereas, the old Sec. 1 (c), Rule 107
simply referred to "Civil action arising from the offense."
The action for legal separation is not to recover civil
liability, in the main, but is aimed at the conjugal rights
of the spouses and their relations to each other, within
the contemplation of Articles 7 to 108, of the Civil Code.
A decree of legal separation, on the ground of
concubinage, may be issued upon proof by
preponderance of evidence in the action for legal
separation. No criminal proceeding or conviction is
necessary. To this end, the doctrine in Francisco vs.
Tayao has been modified, as that case was decided
under Act. No. 2710, when absolute divorce was then
allowed and had for its grounds the same grounds for
legal separation under the New Civil Code, with the
requirement, under such former law, that the guilt of
judgment in a criminal action. That requirement has not
been reproduced or adopted by the framers of the
present Civil Code, and the omission has been
uniformly accepted as a modification of the stringent
rule in Francisco v. Tayao.
Sabalones VS CA
Facts :
1. Samson Sabalones a diplomatic service
assigned in different countries, left his wife for
15 years.
2. Come back to Philippines in 1985 but not to
his legitimate wife and children.
3. File an action for judicial authorization to sell
conjugal property.
4. In her answer, wife opposed the authorization
and filed a counterclaim for legal separation.
She alleged that the house in Greenhills was
occupied by her and their 6 kids, and that
they were depending for their support on the
rentals from another conjugal property
(building and lot in Forbes Park). She also
informed the court that despite her husband’s
retirement, he had not returned to his
legitimate family and was instead maintaining
a separate residence with another woman
and their 3 kids.
5. Wife asked the court to grant legal separation
and order the liquidation of their conjugal
properties, with forfeiture of her husband’s
share because of his adultery.
Issue :
W/N a preliminary injunction can be issued by the Court
(despite joint administration of conjugal properties)
Ruling :
Let it be stressed that the injunction has not
permanently installed the respondent wife as the
administrator of the whole mass of conjugal assets. It
has merely allowed her to continue administering the
properties in the meantime without interference from
the petitioner, pending the express designation of the
administrator in accordance with Article 61 of the
Family Code.
WHEREFORE, the petition is DENIED for lack of merit.
It is so ordered.
Death Terminates Legal Separation Case
Somosa-Ramos v. Vamenta Jr
Facts:
Lucy filed a case for legal separation against Clemente
on the ground of concubinage and an attempt by him
against her life. She likewise sought the issuance of a
writ of preliminary mandatory injunction for the return to
her of what she claimed to be her paraphernal and
exclusive property, then under the administration and
management of Clemente. Clemente opposed the
motion based on Article 103 of the Civil Code which
provides: "An action for legal separation shall in no
case be tried before six months shall have elapsed
since the filing of the petition” (now Art 58, Family
Code). He manifested that if the motion were heard,
the prospect of the reconciliation of the spouses would
become even more dim. Judge Vamenta granted the
motion of Clemente and suspended the hearing of the
petition for a writ of mandatory preliminary injunction.
Thus, Lucy filed a petition for certiorari.
Issue:
Does the rule prohibiting the hearing of an action for
legal separation before the lapse of six months from the
filing of the petition preclude the court from acting on a
motion for preliminary mandatory injunction applied for
as an ancillaryremedy to such a suit?
Held:
No. Article 103 the Civil Code is not an absolute bar to
the hearing motion for preliminary injunction prior to the
expiration of the six-month period.
The court where the action is pending according to
Article 103 is to remain passive. It must let the
parties alone in the meanwhile. It is precluded from
hearing the suit. That the law, however, remains
cognizant of the need in certain cases for judicial power
to assert itself is discernible from what is set forth in the
following article. It reads thus: "After the filing of the
petition for legal separation, the spouse shall be entitled
to live separately from each other and manage their
respective property. The husband shall continue to
manage the conjugal partnership property but if the
court deems it proper, it may appoint another to
manage said property, in which case the administrator
shall have the same rights and duties as a guardian
and shall not be allowed to dispose of the income or of
the capital except in accordance with the orders of the
court." (now Art. 61, Family Code)
There would appear to be then a recognition that the
question of management of their respective property
need not be left unresolved even during such six-month
period. An administrator may even be appointed for the
management of the property of
the conjugal partnership. The absolute limitation from
which the court suffers under the preceding article is
thereby eased. The parties may in the meanwhile be
heard. There is justification then for the petitioner's
insistence that her motion for preliminary mandatory
injunction should not be ignored by the lower court.
There is all the more reason for this response from
respondent Judge, considering that the husband whom
she accused of concubinage and an attempt against
her life would in the meanwhile continue in the
management of what she claimed to be her
paraphernal property, an assertion that was not
specifically denied by him.
What was held by this Court in Araneta v. Concepcion,
thus possesses relevance: It is conceded that the
period of six months fixed therein is evidently intended
as a cooling off period to make possible a reconciliation
between the spouses. The recital of their grievances
against each other in court may only fan their already
inflamed passions against one another, and the
lawmaker has imposed the period to give them
opportunity for dispassionate reflection. But this
practical expedient, necessary to carry out legislative
policy, does not have the effect of overriding other
provisions such as the determination of the custody of
the children and alimony and support pendente lite
according to the circumstances. (Article 105, Civil
Code, now Art. 49, Family Code.) The law expressly
enjoins that these should be determined by the court
according to the circumstances. If these are ignored or
the courts close their eyes to actual facts, rank injustice
may be caused.
Ong Eng Kiam v. Ong
FACTS:
William Ong and Lucita Ong have been married for
more than 20 years when Lucita filed a complaint for
Legal separation under Article 55 par. (1) of the Family
Code.
Lucita alleged that since their third year of marriage, her
husband William subjected her to physical violence
like slapping, kicking and pulling her hair and bang her
head against the concrete wall.and been violent
towards their three children. He would scold them
using his belt buckle to beat them. One day after a
violent quarrel wherein William hit Lucita on several
different parts of her body, pointed a gun at her and
asked her to leave the house which she did.
Lucita’s statements about William’s abusive behavior
were corroborated by her sister Linda Lim. Dr. Vicente
Elinzan whom Lucita consulted the day after she
left her conjugal home also testified about her injuries.
The trial court granted Lucitas petition for legal
separation which the CA affirmed
William then filed this petition for review on certiorari
-On the decision denying all of Lucita’s allegations and
that he never inflicted physical harm on her or their
children.
-He also argued that the real motive of Lucita and
her family in filing the complaint is to deprive him of his
control and ownership over his conjugal properties with
Lucita.
-That the CA overlooked some facts of the case which
warrant an exception to the general rule that questions
of fact cannot be the subject for review under Rule 45
of the Rules of Court.
-The CA erred in relying on the testimonies of Lucita
her sister and their parents’ doctor Dr. ElinZano since
their testimonies are tainted with relationship and
fraud and since Lucita abandoned the family home she
has also given a ground for legal separation and
therefore should NOT- be granted one pursuant to Art.
56 par. 4 of The family code – Where both parties have
given ground for legal separation
ISSUE: WON Lucita Ong should be granted a decree
on legal separation
HELD:
The claim that the real motive of Lucita in filing the case
is for her family to take control of the
conjugal properties is absurd. Lucita left because of her
husband’s repeated physical violence and grossly
abusive conduct. That the physical violence and grossly
abusive conduct were brought to bear upon Lucita have
been duly established. He can derive no personal gain
from pushing for the financial interests of her family
at the expense of her marriage of 20 years and
the companionship of her husband and children
The assessment of the trial court regarding the
credibility of witnesses is given great respect.
Relationship alone is not enough to discredit and
label a witness’ testimony as biased and unworthy of
credence. Witnesses Linda Lim and Dr. Elinzano gave
detailed and straightforward testimonies the court finds
that their testimonies are not tainted with bias.
The abandonment referred to by the Family Code is
abandonment without justifiable cause for more than
one year. Lucita left William due to his abusive conduct,
such does not constitute abandonment contemplated in
the said provision
PETITION DENIED: Lucita should be granted a decree
of legal separation
BUGAYONG VS. GINEZ
Facts:
Benjamin Bugayong, a US Navy serviceman, married
Leonila Ginez on 27 August 1949 in Pangasinan. They
lived together with their sisters in Sampaloc, Manila.
Sometime in July 1951, Ginez left the dwelling of her
sister-in-law and wrote to her husband, informing him
that she had gone to live with her mother in Pangasinan
and later moved to Dagupan City to study in a local
college.
In July 1951, Bugayong received letters from Valeriana
Polangco, his sister-in-law, and anonymous persons
informing him of Ginez’s acts of infidelity. Allegedly,
Ginez wrote to Bugayong, informing him that another
man kissed her.
In August 1952, Bugayong went to be with Ginez in
Pangasinan. He asked her the truth of her adultery, but
Ginez didn’t answer and simply packed up and left.
Bugayong took this an admission of Ginez’s adultery.
Despite this, Bugayong went looking for her.
On 18 November 1952, Bugayong filed with the CFI of
Pangasinan a complaint for legal separation against
Ginez, who moved to dismiss the complaint, claiming
that Bugayong had condoned Ginez’s adultery.
The CFI denied Ginez’s motion to dismiss, thus she
appealed to the Court of Appeals, which certified the
case to the Supreme Court on a pure question of law.
Issue(s):
 1. Whether or not Bugayong condoned
Ginez’s adultery.
Held:
1. Yes, Bugayong’s act of cohabiting with Ginez
despite knowing her infidelity amounts to
condonation.
Condonation is the forgiveness of a marital offense
constituting a ground for legal separation.
Article 97 of the Civil Code provides that adultery by the
wife is a ground for legal separation. Article 100
provides that the innocent spouse may file a complaint
for legal separation, provided there has been no
consent or condonation of the adultery. Article 102
provides that an action for legal separation must be
filed within 1 year from and after the date the innocent
spouse learned of the cause, but must be within 5 years
from and after the date such cause occurred.
The Court considered Bugayong’s line of conduct under
the assumption that he really believed his wife guilty of
adultery. What did he do in such state of mind. In
August, 1952, he went to Pangasinan and looked for
his wife and after finding her they lived together as
husband and wife for 2 nights and 1 day, after which he
says that he tried to verify from her the truth of the news
he had about her infidelity, but failed to attain his
purpose because his wife, instead of answering his
query on the matter, preferred to desert him, probably
enraged for being subjected to such humiliation. And
yet he tried to locate her, though in vain. Now, do the
husband's attitude of sleeping with his wife for 2 nights
despite his alleged belief that she was unfaithful to him,
amount to a condonation of her previous and supposed
adulterous acts?
The only general rule in American jurisprudence is that
any cohabitation with the guilty party, after the
commission of the offense, and with the knowledge or
belief on the part of the injured party of its commission,
will amount to conclusive evidence of condonation; but
this presumption may be rebutted by evidence. Single
voluntary act of marital intercourse between the parties
ordinarily is sufficient to constitute condonation, and
where the parties live in the same house, it is presumed
that they live on terms of matrimonial cohabitation
BUSUEGO VS OFFICE OF THE OMBUDSMAN
MINDANAO GR 196842
 9 October 2013
The Ombudsman has full discretionary authority in the
determination of probable cause during a preliminary
investigation.
FACTS:
Private respondent Rosa S. Busuego (Rosa) filed a
complaint for: (1) Concubinage under Article 334 of the
Revised Penal Code; (2) violation of Republic Act No.
9262 (Anti-Violence Against Women and Their
Children); and (3) Grave Threats under Article 282 of
the Revised Penal Code, before the Office of the
Ombudsman against her husband, Alfredo. Alfredo is
the Chief of Hospital, Davao Regional Hospital. They
have 2 children. However, their marriage turned sour.
She saw photographs of, and love letters addressed to
Alfredo from, other women. She confronted her
husband but he claimed ignorance of the existence of
such letters.
An opportunity to work as nurse in N.Y. USA. Alfredo
opposed. Nonetheless, Rosa completed the
requirements. However, before leaving, furious with
Rosa’s pressing, Alfredo took his gun and pointed it at
Rosa’s temple. Alfredo was only staved off because
Rosa’s mother arrived at the couple’s house.
Rosa went to the US and was eventually joined by her
2 children, Alfred and Robert. Robert eventually
returned to Davao City to study medicine. Sometime in
1997, Rosa learned that a certain Emy Sia (Sia) was
living at their conjugal home. When Rosa asked
Alfredo, he said that Sia, nurse at the Regional
Hospital, was just in a sorry plight and was allegedly
raped by Rosa’s brother-in-law so he allowed her to
sleep at the maids’ quarters.
In October 2005, Rosa finally learned of Alfredo’s extra-
marital relationships. Robert and the housekeepers
executed a joint affidavit to support Rosa’s allegations.
Rosa and the other son Alfred flew to Davao without
informing Alfredo. She gathererd and consolidated
information of her husband’s sexual affairs. She also
averred that during the course of the marriage, Alfredo
physically and verbally abused her and her family.
Alfredo denied all accusations. In their subsequent
exchange of responsive pleadings, Rosa maintained
Alfredo’s culpability, and naturally, Alfredo claimed
innocence.
In the course thereof, the procedural issue of Rosa’s
failure to implead Sia and de Leon as respondents
cropped up. Alfredo insisted that Rosa’s complaint
ought to be dismissed for failure to implead his alleged
concubines as respondents.
Specifically to dispose of that issue, the Ombudsman
scheduled a clarificatory hearing where both Rosa and
Alfredo were represented by their respective counsels.
The office of the Ombudsman explained that the
position of Alfredo would just prolong the conduct of the
preliminary investigation since Rosa can just re-file her
complaint. The doctrine of res judicata does not apply in
the preliminary investigation stage. Hence, the counsel
for Rosa was directed to submit to this Office the
addresses of the alleged mistresses so that they could
be served with the Order directing them to file their
counter-affidavits. Rosa submitted an Ex-Parte
Manifestation on the last known addresses of Julie de
Leon and Emy Sia (alleged mistresses.)
Ombudsman issued a Joint Order4 impleading Sia and
de Leon as party-respondents in the complaint for
Concubinage and directing them to submit their
respective counter-affidavits within a period of time. Sia
and de Leon did not submit their respective counter-
affidavits.
Alfredo opposed the Ombudsman’s ruling to simply
amend the complaint and implead the alleged
mistresses. He filed his Comment to the Provincial
Prosecutor praying for the dismissal of the complaint for
failure to implead the two mistresses.
Ombudsman issued herein assailed Resolution,
disposing of the procedural issues, which states that
the short cut procedure would delay the proceedings is
misplaced, since Rosa could still amend her complaint
and re-file the case for the doctrine of res judicata will
not apply. Alfredo filed a Motion for Reconsideration
excepting to the Ombudsman’s ruling on the automatic
inclusion of Sia as respondent in the complaint and
their indictment for the crime of Concubinage.
Nonetheless, the Ombudsman stood pat on its ruling,
declared that the Partial Motion for Reconsideration
was filed out of time. Alfredo now comes to us on
petition for certiorari alleging grave abuse of discretion
in the Ombudsman’s finding of probable cause to indict
him and Sia for Concubinage.
ISSUE:
 Whether or not the Ombudsman has full
discretionary authority in the determination of probable
cause
during a preliminary investigation.
RULING:
Yes. Therefore the Court sustain the Ombudsman’s
decision.
The Ombudsman has full discretionary authority in the
determination of probable cause during a preliminary
investigation. This is the reason why judicial review of
the resolution of the Ombudsman in the exercise of its
power and duty to investigate and prosecute felonies
and/or offenses of public officers is limited to a
determination of whether there has been a grave abuse
of discretion amounting to lack or excess of jurisdiction.
Courts are not empowered to substitute their judgment
for that of the Ombudsman.
By grave abuse of discretion is meant such capricious
and whimsical exercise of judgment tantamount to lack
of jurisdiction. The abuse of discretion must be so
patent and gross as to amount to an evasion of a
positive duty or a virtual refusal to perform a duty
enjoined by law, or to act at all in contemplation of law,
as where the power is exercised in an arbitrary and
despotic manner by reason of passion or hostility. In
this regard, petitioner failed to demonstrate the
Ombudsman's abuse, much less grave abuse, of
discretion.
The Ombudsman merely followed the provisions of its
Rules of Procedure. No information may be filed and no
complaint may be dismissed without the written
authority or approval of the ombudsman in cases falling
within the jurisdiction of the Sandiganbyan, or of the
proper Deputy Ombudsman in all other cases.
Notably, Rosa’s complaint contained not just the
Concubinage charge, but other charges: violation of
Republic Act No. 9262 and Grave Threats. Upon the
Ombudsman’s perusal, the complaint was supported by
affidavits corroborating Rosa’s accusations. Thus, at
that stage, the Ombudsman properly referred the
complaint to Alfredo for comment. Nonetheless, while
the Ombudsman found no reason for outright dismissal,
it deemed it fit to hold a clarificatory hearing to discuss
the applicability of Article 344 of the Revised Penal
Code, the issue having been insisted upon by Alfredo.
Surely the procedural sequence of referral of the
complaint to respondent for comment and thereafter the
holding of a clarificatory hearing is provided for in
paragraph b, Section 2 and paragraphs d and f, Section
4 of Rule II, which the Court have at the outset
underscored. The Ombudsman merely facilitated the
amendment of the complaint to cure the defect pointed
out by Alfredo. The Ombudsman’s primary jurisdiction,
albeit concurrent with the DOJ, to conduct preliminary
investigation of crimes involving public officers, without
regard to its commission in relation to office, had long
been settled in Sen. Honasan II v. The Panel of
Investigating Prosecutors of DOJ.
The Constitution, Section 15 of the Ombudsman Act of
1989 and Section 4 of the Sandiganbayan Law, as
amended, do not give to the Ombudsman exclusive
jurisdiction to investigate offenses committed by public
officers or employees. The authority of the Ombudsman
to investigate offenses involving public officers or
employees is concurrent with other government
investigating agencies such as provincial, city and state
prosecutors. However, the Ombudsman, in the exercise
of its primary jurisdiction over cases cognizable by the
Sandiganbayan, may take over, at any stage, from any
investigating agency of the government, the
investigation of such cases.
In other words, respondent DOJ Panel is not precluded
from conducting any investigation of cases against
public officers involving violations of penal laws but if
the cases fall under the exclusive jurisdiction of the
Sandiganbayan, the respondent Ombudsman may, in
the exercise of its primary jurisdiction take over at any
stage.
Thus, with the jurisprudential declarations that the
Ombudsman and the DOJ have concurrent jurisdiction
to conduct preliminary investigation, the respective
heads of said offices came up with OMB-DOJ Joint
Circular No. 95- 001 for the proper guidelines of their
respective prosecutors in the conduct of their
investigations.
WHEREFORE the petition is DISMISSED.

LAPUZ SY VS. UY
Facts:
Carmen Lapuz and Eufemio Eufemio alias Eufemio Uy
married on 21 September 1934 civilly and canonically
on 30 September 1934. On 18 August 1953, Carmen
filed a petition for legal separation, alleging she had
discovered Eufemio cohabitating with a Chinese
woman named Go Hiok at 1319 Sisa Street, Manila
sometime in March 1949. Eufemio filed a counter-claim
for the declaration of nullity of his marriage to Carmen
on the ground that he has a prior, subsisting marriage
with Go Hiok according to Chinese law and customs.
Unfortunately, before trial Carmen died in a car
accident on 31 May 1969. Eufemio moved to dismiss
the petition for legal separation on two grounds: (1) the
one-year prescriptive period provided in Article 102 0f
the Civil Code had lapsed; and (2) Carmen’s death
abated the petition. Carmen’s father, Macario, opposed
the motion.
The Trial Court dismissed the case and Macario filed a
petition for review by certiorari before the Supreme
Court.
Issue(s):
1. Whether or not Carmen’s death before final
decree in an action for legal separation
abates the 
 action. 
 price of 18 million pesos. Mario pays the partial
2. Whether or not such an abatement applies if
the action involves property rights. 
 the property.
Held:
1. Yes, an action for legal separation is a purely
personal right as recognized by Art. 100 of the Civil
Code.
An action for legal separation which involves nothing
more than the bed-and-board separation of the spouses
(there being no absolute divorce in this jurisdiction) is
purely personal. The Civil Code of the Philippines
recognizes this in its Article 100, by allowing only the
innocent spouse (and no one else) to claim legal
separation; and in its Article 108, by providing that the
spouses can, by their reconciliation, stop or abate the
proceedings and even rescind a decree of legal
separation already rendered. Being personal in
character, it follows that the death of one party to the
action causes the death of the action itself — actio
personalis moritur cum persona.
When one of the spouses is dead, there is no need for
divorce, because the marriage is dissolved. The heirs
cannot even continue the suit, if the death of the
spouse takes place during the course of the suit (Article
244, Section 3). The action is absolutely dead
Marriage is a personal relation or status, created under
the sanction of law, and an action for divorce is a
proceeding brought for the purpose of effecting a
dissolution of that relation. The action is one of a
personal nature. In the absence of a statute to the
contrary, the death of one of the parties to such action
abates the action, for the reason that death has settled
the question of separation beyond all controversy and
deprived the court of jurisdiction, both over the persons
of the parties to the action and of the subject- matter of
the action itself. For this reason the courts are almost
unanimous in holding that the death of either party to a
divorce proceeding, before final decree, abates the
action.
2. Yes, death also abates the actions involving
property rights.
Article 106 of the Civil Code implies the right to the
dissolution of the conjugal partnership of gains (or of
the absolute community of property), the loss of right by
the offending spouse to any share of the profits earned
by the partnership or community, or his disqualification
to inherit by intestacy from the innocent spouse as well
as the revocation of testamentary provisions in favor of
the offending spouse made by the innocent one, are all
rights and disabilities that, by the very terms of the Civil
Code article, are vested exclusively in the persons
of the spouses; and by their nature and intent, such
claims and disabilities are difficult to conceive as
assignable or transmissible. Hence, a claim to said
rights is not a claim that "is not thereby extinguished"
after a party dies, under Section 17, Rule 3, of the
Rules of Court, to warrant continuation of the action
through a substitute of the deceased party.
MARIO SIOCHI, Petitioner, vs. ALFREDO GOZON,
Facts:
Elvira Gozon filed with the RTC Cavite a petition for
legal separation against her husband Alfredo Gozon.
Then, while the pending case of Legal Separation of
both parties, Alfredo and Mario entered into Agreement
of Buy and Sell involving their conjugal property for the
payment of the said price and he took the possession of
When the Court granted the legal separation of Elvira
and Mario, their property was dissolved and liquidated.
Being the offending spouse, Alfredo is deprived of his
share in the net profits and the same is awarded to their
child Winifred R. Gozon whose custody is awarded to
Elvira.
On Oct, 26, 1994 Alfredo sold that property into Inter
Dimensional Realty Inc. for 18 million pesos in his favor
by Winnifred. And the IDRI paid it in full payment.
Because of that Mario, filed a complaint with RTC
Malabon for specific performance and damages,
annulment of donation and sale, with preliminary
mandatory and prohibitory injunction and/or temporary
restraining order.
The Court held, the agreement between Alfredo and
IDRI is null and void for their attempt of commission or
continuance of their wrongful acts, further alienating or
disposing of the subject property. Also the agreement of
Alfredo and Mario is null and void, for the absence of
written consent of Elvira Gozon for her property rights
to the undivided one-half share in the conjugal property
of this case.
Issue:
Whether or not the offending spouse, Alfredo Gozon
has right to sell their conjugal partnership without the
consent of the other spouse, and share of the net
profits earned by the conjugal partnership.
Held:
No,
The absence of the consent of one of the spouse
renders the entire sale void, including the portion of the
conjugal property pertaining to the spouse who
contracted the sale. Even if the other spouse actively
participated in negotiating for the sale of the property,
that other spouse’s written consent to the sale is still
required by law for its validity. And the offending spouse
in an action for legal separation is deprived of his share
in the net profits of the conjugal properties.
Under Article 63 (2) of the Family Code, the absolute
community or the conjugal partnership shall be
dissolved and liquidated but the offending spouse shall
have no right to any share of the net profits earned by
the absolute community or the conjugal partnership,
which shall be forfeited in accordance with the
provisions of article
Maquilan v. Maquilan
Virgilio and Dita were spouses. Their relationship
turned bitter when Virgilio discovered that Dita had a
paramour. Virgilio filed a case of adultery against Dita
and her paramour. The two were convicted of the crime
charged. Subsequently, Virgilio filed a Petition for
Declaration of Nullity of Marriage, Dissolution and
Liquidation of Conjugal Partnership of Gains and
Damages before the RTC, imputing psychological
incapacity on Dita. During the pre-trial, Virgilio and Dita
entered into a Compromise Agreement wherein they
agreed to partially separate their conjugal properties
without prejudice to the outcome of the pending case of
declaration of nullity of marriage. The RTC approved
the compromise agreement.
Virgilio, however, later filed an Omnibus Motion, praying
for the repudiation of the Compromise Agreement and
the reconsideration of the Judgment on Compromise
Agreement by the respondent judge on the grounds
that his previous lawyer did not intelligently and
judiciously apprise him of the consequential effects of
the Compromise Agreement. The respondent Judge
denied the motion.
Virgilio appealed, contending that the Compromise
Agreement is void because it circumvents the law that
prohibits the guilty spouse, who was convicted of either
adultery or concubinage, from sharing in
the conjugal property. Since the respondent was
convicted of adultery, the petitioner argues that her
share should be forfeited in favor of the common child
under Articles 43(2) and 63 of the Family Code.
To the petitioner, it is the clear intention of the law to
disqualify the spouse convicted of adultery from sharing
in the conjugal property; and because the Compromise
Agreement is void, it never became final and executory.
Moreover, the petitioner cites Article 2035 of the Civil
Code and argues that since adultery is a ground for
legal separation, the Compromise Agreement is
therefore void. He also argued that since the
proceedings before the RTC were void in the absence
of the participation of the provincial prosecutor or
solicitor, the voluntary separation made during the
pendency of the case is also void.
Issues:
1. Do Articles 43 and 63 of the Family code applies to
the instant case?
2. Does Article 2035 of the Civil Code also apply to the
instant case?
3. Does the Compromise Agreement circumvent the
law prohibiting the guilty spouse from sharing in
the conjugalproperties?
4. Does the absence of the public prosecutor nullify the
compromise agreement?
5. May the compromise agreement be nullified on the
ground that petitioner was not intelligently and
judiciously informed by his counsel of the consequential
effects of the agreement?
Held:
1. No. The foregoing provisions of the law are
inapplicable to the instant case. Article 43 of the Family
Code refers to a subsequent marriage that is
terminated because of the reappearance of an absent
spouse; while Article 63 applies to the effects of a
decree of legal separation. The present case involves a
proceeding where the nullity of the marriage is sought
to be declared under the ground of psychological
capacity.
2. Article 2035 of the Civil Code is also clearly
inapplicable. The Compromise Agreement partially
divided the properties of the conjugal partnership of
gains between the parties and does not deal with the
validity of a marriage or legal separation. It is not
among those that are expressly prohibited by Article
2035.
3. The contention that the Compromise Agreement is
tantamount to a circumvention of the law prohibiting the
guilty spouse from sharing in the conjugal properties is
misplaced. Existing law and jurisprudence do not
impose such disqualification.
Under Article 143 of the Family Code, separation of
property may be effected voluntarily or for sufficient
cause, subject to judicial approval. The questioned
Compromise Agreement which was judicially approved
is exactly such a separation of property allowed under
the law. This conclusion holds true even if the
proceedings for the declaration of nullity of marriage
was still pending. However, the Court must stress that
this voluntary separation of property is subject to the
rights of all creditors of the conjugal partnership of
gains and other persons with pecuniary interest
pursuant to Article 136 of the Family Code.
4. While the appearances of the Solicitor General
and/or the Public Prosecutor are mandatory, the failure
of the RTC to require their appearance does not per se
nullify the Compromise Agreement. This Court fully
concurs with the findings of the CA:
x x x. It bears emphasizing that the intendment of the
law in requiring the presence of the Solicitor General
and/or State prosecutor in all proceedings of legal
separation and annulment or declaration of nullity of
marriage is to curtail or prevent any possibility of
collusion between the parties and to see to it that their
evidence respecting the case is not fabricated. In the
instant case, there is no exigency for the presence of
the Solicitor General and/or the State prosecutor
because as already stated, nothing in the subject
compromise agreement touched into the very merits of
the case of declaration of nullity of marriage for the
court to be wary of any possible collusion between the
parties. At the risk of being repetitive, the compromise
agreement pertains merely to an agreement between
the petitioner and the private respondent to separate
their conjugal properties partially without prejudice to
the outcome of the pending case of declaration of nullity
of marriage.
5. It is well-settled that the negligence of counsel binds
the client. This is based on the rule that
any act performed by a lawyer within the scope of his
general or implied authority is regarded as an act of his
client. Consequently, the mistake or negligence of
petitioners' counsel may result in the rendition of an
unfavorable judgment against them. Exceptions to the
foregoing have been recognized by the Court in cases
where reckless or gross negligence of counsel deprives
the client of due process of law, or when its application
"results in the outright deprivation of one's property
through a technicality." None of these exceptions has
been sufficiently shown in the present case.
RIGHTS AND OBLIGATIONS BETWEEN HUSBAND
AND WIFE
GOITIA VS. CAMPO-RUEDA
Facts:
Eloisa Goitia y De La Camara and Jose Rueda we
married in Manila on 7 January 1915. They lived
together for a month until Eloisa returned home to her
parents.
Eloisa claimed that Jose demanded that she “perform
unchaste and lascivious acts on his genital organs,” but
she refused to perform any act other than legal and
valid cohabitation. Jose then beat her. Unable to
convince Jose from desisting from his repugnant
desires, she left their conjugal abode and went back to
live with her parents. She then filed an action against
Jose for support outside of their conjugal home.
The trial court held that Jose cannot be compelled to
support Eloisa except in his own house, except by
virtue of a judicial decree granting divorce or a
separation from him.
Issue(s):
 1. Whether or not Jose can be compelled to
support Eloisa outside the conjugal home.
Held:
1. Yes, Article 49 of the Civil Code obliges Jose to
support Eloisa either by paying a pension or
supporting Eloisa in his own home.
Marriage is something more than a contract, though
founded upon the agreement of the parties. When once
formed a relation is created between the parties which
they cannot change by agreement, and the rights and
obligations of which depend not upon their agreement
but upon the law. The spouses must be faithful to,
assist, support, and live with each other.
The wife, who is forced to leave the conjugal abode by
her husband without fault on her part, may maintain an
action against the husband for separate maintenance
when she has no other remedy, notwithstanding the
provisions of article 149 of the Civil Code giving the
person who is obliged to furnish support the option to
satisfy it either by paying a fixed pension or by receiving
and maintaining in his own home the one having the
right to the same.
Article 152 of the Civil Code gives the instances when
the obligation to give support shall cease. The failure of
the wife to live with her husband is not one of them.
The mere act of marriage creates an obligation on the
part of the husband to support his wife. This obligation
is founded not so much on the express or implied terms
of the contract of marriage as on the natural and legal
duty of the husband; an obligation, the enforcement of
which is of such vital concern to the state itself that the
law will not permit him to terminate it by his own
wrongful acts in driving his wife to seek protection in the
parental home.
Arroya vs. Vazquez de Arroyo
Facts:
Mariano and Dolores were married 1910. They lived
together with a few short intervals of separation. In
1920, Dolores left their common home and decided to
live separately from Mariano. Mariano induced Dolores
to return home but the latter refused. Hence, Mariano
filed a petition for permanent mandatory injunction
requiring the Dolores to return to the conjugal home
and live with him as a wife under pain of contempt. By
way of defense, Dolores claimed that she was
compelled to leave on the basis of cruel treatment on
the part Mariano. She in turn prayed for a decree of
separation, a liquidation of their conjugal partnership,
and an allowance for counsel fees and permanent
separate maintenance. The trial court ruled in favor of
Dolores.
On appeal, the SC ruled that Mariano has done nothing
to forfeit his right to the marital society of Dolores and
that she is under an obligation, both moral and legal, to
return to the common home and cohabit with
Mariano. The only question is whether it is within the
province of the courts to attempt to compel one of the
spouses to cohabit with, and render conjugal rights to,
the other.
Issue:
May the court order Dolores to return to
the conjugal home under pain of contempt?
Held:
No. It is not within the province of the courts of this
country to attempt to compel one of the spouses to
cohabit with, and render conjugal rights to, the
other. Cohabitation is a purely personal obligation - an
obligation to do. To compel the wife to comply with such
obligation would be an infringement of her personal
liberty.
Illusorio v. Bildner
Facts:
On July 11, 1942, Erlinda Kalaw and Potenciano
Ilusorio contracted matrimony and lived together for a
period of 30 years. In 1972, they separated from bed
and board for undisclosed reasons. Potenciano lived at
Urdaneta Condominium, Ayala Ave., Makati City when
he was in Manila and at Ilusorio Penthouse, Baguio
Country Club when he was in Baguio City. On the other
hand, Erlinda lived in Antipolo City. They had six
children: Ramon, Erlinda Ilusorio Bildnera, Maximo,
Sylvia, Marietta, and Shereen.
Sylvia and Erlinda Ilusirio alleged that Potenciano
stayed with their mother for five months in Antipolo City
starting 30 December 1997. During this time, they
alleged that their mother gave Potenciano an overdose
of 200mg (instead of 100mg) of Zoloft, an
antidepressant drug prescribed by his doctor in the US.
Consequently, Potenciano’s health deteriorated.
On 25 February 1998, Erlinda filed before the RTC a
petition for guardianship over the property and person
of Potenciano, due to his advanced age, frail health,
poor eyesight, and impaired judgment. After Potenciano
did not return to Antipolo City after attending a
corporate meeting in Baguio City, Erlinda filed a petition
for habeas corpus with the Court of Appeals. She
alleged that her children prevented her from visiting
Potenciano. Essentially, her petition for habeas corpus
was sought to compel Potenciano to live with her in
Antipolo.
The CA dismissed Erlinda’s petition for habeas corpus
holding that there was no actual and effective detention
or deprivation of Potenciano’s liberty, and that he was
of sound and alert mind. Instead, the CA allowed
visitation rights for Erlinda.
Erlinda Ilusirio Bildnera appealed before the Supreme
Court, assailing the CA’s grant of visitation rights in
favor of her mother.
Issue(s):
 1. Whether or not the CA erred in granting
visitation rights to Erlinda, who never even prayed for
such right.
Held:
1. Yes, the CA exceeded its authority when it
awarded visitation rights for Erlinda.
The Court of Appeals missed the fact that the case did
not involve the right of a parent to visit a minor child but
the right of a wife to visit a husband. In case the
husband refuses to see his wife for private reasons, he
is at liberty to do so without threat of any penalty
attached to the exercise of his right.
No court is empowered as a judicial authority to compel
a husband to live with his wife. Coverture cannot be
enforced by compulsion of a writ of habeas corpus
carried out by sheriffs or by any other mesne process.
That is a matter beyond judicial authority and is best left
to the man and womans free choice.
 Verily, marital
rights including coverture and living in conjugal dwelling
may not be enforced by the extra-ordinary writ of
habeas corpus.
TENCHAVEZ VS. ESCANO
Facts:
On 24 February 1948, 27-year-old Vicenta Escano
exchanged marriage vows with 82-year-old Pastor
Tenchavez without knowledge of her parents, before a
Catholic captain in a house in Cebu City. The marriage
was duly registered with the local civil registry. The two
were deeply in love. They planned their marital future
with the help of their friend and matchmaker, Pacita
Noel.
Vicenta’s parents discovered the marriage and were
disgusted. Rather than recelebrate in church, Vicenta’s
mother was given a letter from San Carlos students
disclosing an amorous relationship with Pastor and
Pacita. Vicenta thereafter would not agree to a new
marriage and lived with her parents while Pastor
returned to his job in Manila. Although they continued
correspondence, Vicenta and Pastor became estranged
by June 1948. A lawyer filed for Vicenta a petition to
annul her marriage, but she did not sign it, hence it was
dismissed without prejudice.
On 24 June 1950, Vicenta applied for a passport
without Pastor’s knowledge. She indicated she was
single and that she intended to return to Cebu City after
studying in the United States. On 22 August 1950, she
obtained a final and absolute decree of divorce from
Nevada on the ground of “extreme cruelty, entirely
mental in character.” Meanwhile, her parents filed a
petition with the Archbishop of Cebu to annul Vicenta’s
marriage.
On 13 September 1954, Vicenta married an American,
Russell Moran, in Nevada and started a family. She
became an American citizen on 8 August 1958. On 08
July 1955, Pastor filed a complaint for legal separation
and a million pesos in damages against Vicenta and
her parents. The trial court freed Pastor from supporting
Vicenta and to acquire property to her exclusion, but
also awarded damages against Pastor in favor of
Vicenta’s parents.
Pastro appealed to the Supreme Court and claimed the
trial court erred for not declaring legal separation.
Issue(s)
 1. Whether or not the trial court erred in not
declaring the legal separation of Pastor and Vicenta.
Held:
1. Yes, the trial court erred in no decreeing legal
separation on the ground of adultery due to
Vicenta’s invalid subsequent marriage to Leo
Moran.
The valid marriage between Pastor Tenchavez and
Vicenta Escaño remained subsisting and undissolved
under Philippine law, notwithstanding the decree of
absolute divorce that the wife sought and obtained on
21 October 1950 from Nevada.
At the time the divorce decree was issued, Vicenta
Escaño, like her husband, was still a Filipino citizen.
She was then subject to Philippine Iaw and Article
15 of the Civil Code. The Civil Code of the Philippines,
now in force, does not admit absolute divorce. Instead
of divorce, the present Civil Code only provides for legal
separation and, even in that case, it expressly
prescribes that "the marriage bonds shall not be
severed"
For the Philippine courts to recognize and give
recognition or effect to a foreign decree of absolute
divorce between Filipino citizens would be a patent
violation of the declared public policy of the state,
especially in view of the third paragraph of Article 17 of
the Civil Code.
From this point of view, it is irrelevant that appellant
Pastor Tenchavez should have appeared in the Nevada
divorce court, primarily, because the policy of our law
cannot be nullified by acts of private parties as per
Article 17 of the Civil Code.
There flows as a necessary consequence that in this
jurisdiction Vicenta Escaño's divorce and second
marriage are not entitled to recognition as valid; for her
previous union to plaintiff Tenchavez must be declared
to be existent and undissolved. It follows, likewise, that
her refusal to perform her wifely duties, and her denial
of consortium and her desertion of her husband
constitute in law a wrong caused through her fault, for
which the husband is entitled to the corresponding
indemnity (Civil Code, Art. 2176).
Wherefore, her marriage and cohabitation with Russell
Leo Moran is technically "intercourse with a person not
her husband" from the standpoint of Philippine Law,
and entitles plaintiff-appellant Tenchavez to a decree of
"legal separation under our law, on the basis of
adultery."