Abcen-Void Marriages-obligations of Spouses

Civil Law Review: Void Marriages-Obligation of Spouses 1PRESUMPTION OF MARRIAGE

PERIDO VS. PERIDO Lucio Perido married twice. After the death of his first wife with whom he begot 3 children, he married Marcelina with whom he had 5. The children and grandchildren of both marriages executed a Declaration of heirship and extrajudicial partition. However children of first marriage filed a complaint praying for the annulment of the deed.

Trial court annulled the deed but did not order the partition of the lots. CA affirmed in toto trial court’s decision.

Petitioners raised the issue of the legitimacy of the 5 children. It alleged: As shown in the certificates of title issued to him in 1923, he was still a widower. He only married his second wife in 1925.

WERE THE 5 CHILDREN BORN DURING THE MARRIAGE OF LUCIO AND HIS SECOND WIFE?

YES

The Court of Appeals correctly held that the statement was not conclusive to show that he was not actually married to Marcelina Baguilat. It is weak and insufficient to rebut the presumption that persons living together as husband and wife are married to each other.

This presumption, especially where legitimacy is an issue, may be overcome by cogent proof on the part of those who allege the illegitimacy.

Rationale: Adong v. Cheong Seng GeeThe basis of human society throughout the civilized world is that of marriage. Marriage in this jurisdiction is notonly a civil contract but it is a new relation, an institution in the maintenance of which the public is deeply interested. Consequently every intendment of the law leans toward legalizing matrimony. Persons dwelling together in apparent matrimony are presumed, in the absence of any counter-presumption or evidence special to the case, to be in fact married. The reason is that such is the common order of society and if the parties were not what they thus hold themselves out as being, they would be living in the constant violation of decency and law.

While the alleged marriage ceremony in 1925, if true, might tend to rebut the presumption of marriage arising from previous cohabitation, it is to be noted that both the trial court and the appellate court did not even pass upon the uncorroborated testimony of petitioner Leonora Perido on the matter. Said witness was not even an eyewitness to the ceremony.

VOID MARRIAGES

PEOPLE VS. MENDOZA

Arturo Mendoza was married first to Jovita de Asis. He contracted a second marriage during the subsistence of his first marriage with Olga Lema.

When Jovita died. He contracted a third marriage with Carmencita Panlilio.

This last marriage gave rise to his prosecution for and conviction for bigamy.

IS THE SECOND MARRIAGE VALID TO CONVICT ARTURO OF BIGAMY?

NO

Section 29 of the Marriage Law provides:

Illegal marriages – any marriage subsequently contracted by any person during the lifetime of the first spouse of such person with any person other than such first spouse shall be illegal and void from its performance, unless: a) the first marriage was annulled or dissolved; b) the first spouse had been absent for 7 consecutive years at the time of the second marriage without the spouse present having news of the absentee being alive, or the absentee being generally considered as dead and believed to be so by the spouse present at the time of contracting such subsequent marriage, the marriage so contracted being valid in either case until declared null and void.

This plainly makes a subsequent marriage contracted by any person during the lifetime of his first spouse illegal and void from its performance, and no judicial decree is necessary to establish its invalidity.

There is no pretence that appellant’s second marriage was contracted in the belief that the first spouse has been absent for 7 consecutive years or considered dead as to render the marriage valid until declared null and void by a competent court.

Thus, a prosecution for bigamy based on said void marriage will not lie.

PEOPLE VS. ARAGON The accused contracted two marriages with Maria Gorrea in Cebu and Maria Faicol in IloiloWhen the accused sent Maria Faicol to Iloilo, allegedly for the purpose of undergoing treatment of her eyesight, he contracted a third marriage with a certain Jesusa C. Maglasang in Cebu.

WILL THE ACTION OF THE ALLEGED SECOND WIFE PROSPER?

NO

The very fundamental principle of strict construction of penal laws in favor of the accused, which principle we may not ignore, seems to justify our stand in the case of People vs. Mendoza.

Our Revised Penal Code is of recent enactment and had the rule enunciated in Spain and in America requiring judicial declaration of nullity of ab initio void

BALANE, BERNARDINO, GALVAN, LEYNES, VALDEZUnauthorized distribution & non-submission shall merit expulsion.

Civil Law Review: Void Marriages-Obligation of Spouses 2The accused admitted having contracted marriage with Jesusa C. Maglasang

Court: second marriage was fully established not only by the certificate of the said marriage, but also by the testimony of Maria Faicol and of Eulogio Giroy, one of the sponsors of the wedding

It held: defendant could not legally contract marriage with Jesusa C. Maglasang without the dissolution of his marriage to Maria Faicol, either by the death of the latter or by the judicial declaration of the nullity of such marriage.

Appellant relies on the case of People vs. Mendoza: Section 29 of the Marriage Law or Act No. 3613 plainly makes a subsequent marriage contracted by any person during the lifetime of his first spouse illegal and void from its performance, and no judicial decree is necessary to establish its invalidity, as distinguished from mere annullable marriages. There is here no pretense that appellant's second marriage with Olga Lema was contracted in the belief that the first spouse, Jovita de Asis, had been absent for seven consecutive years or generally considered as dead, so as to render said marriage valid until declared null and void by a subsequent court.

marriages been within the contemplation of the legislature, an express provision to that effect would or should have been inserted in the law. In its absence, we are bound by said rule of strict interpretation already adverted to.

It is to be noted that the action was instituted upon complaint of the second wife, whose marriage with the appellant was not renewed after the death of the first wife and before the third marriage was entered into. Hence, the last marriage was a valid one and appellant's prosecution for contracting this marriage cannot prosper.

TOLENTINO VS. PARAS

Amado Tolentino had contracted a second marriage with private respondent Maria Clemente, at Paombong, Bulacan while his marriage with petitioner, Serafia G. Tolentino, was still subsisting

Serafia Tolentino (petitioner) charged Amado with Bigamy

TC sentenced him to suffer the corresponding penalty.

After Amado had served the prison sentence imposed on him, he continued to live with Maria Clement until his death

His death certificate carried the entry "Name of Surviving Spouse — Maria Clemente."

Petitioner sought to correct the name of the surviving spouse in the death certificate from "Maria Clemente" to "Serafia G. Tolentino", her name.

TC dismissed the petition "for lack of the proper requisites under the law" and indicated the need for a more detailed proceeding.

Petitioner filed this case for her declaration as the lawful surviving spouse, and the correction of the death certificate of Amado.

Respondent Court dismissed the case

Hence, petitioner's present recourse mainly challenging the grounds relied upon by respondent Court in ordering dismissal.

WHETHER THE PETITION MAY BE GRANTED TO RECTIFY THE ERRONEOUS ENTRY AND PETITIONER BE CONSIDERED THE LEGAL WIFE OF DECEASED AMADO?

YES

Considering that Amado, upon his own plea, was convicted for Bigamy, that sentence furnishes the necessary proof of the marital status of petitioner and the deceased.

There is no better proof of marriage than the admission by the accused of the existence of such marriage. The second marriage that he contracted with private respondent during the lifetime of his first spouse is null and void from the beginning and of no force and effect. No judicial decree is necessary to establish the invalidity of a void marriage.

Without need of neither further proof nor remand to the Court below, private respondent is not the surviving spouse of the deceased Amado, but petitioner. Rectification of the erroneous entry in the records of the Local Civil Registrar may, therefore, be validly made.

In fine, since there is no question regarding the invalidity of Amado's second marriage with private respondent and that the entry made in the corresponding local register is thereby rendered false, it may be corrected. While document such as death and birth certificates, are public and entries therein are presumed to be correct, such presumption is merely disputable and will have to yield to more positive evidence establishing their inaccuracy.


Civil Law Review: Void Marriages-Obligation of Spouses 3

WIEGEL VS. SEMPIO DY

Respondent Karl Heinz Wiegel asked for the declaration of Nullity of his marriage with petitioner Lilia Oliva Wiegel (ground: Lilia's previous existing marriage to Maxion). Lilia claimed that said marriage was null and void. She and the first husband Maxion having been allegedly forced to enter said marital union.

In the pre trial, the issue raised: was said prior marriage void or was it merely voidable?

Lilia asked the respondent court for an opportunity to present evidence – but was denied

Hence, the present petition for certiorari assailing the following Orders of the respondent Judge-(1) the Order dated March 17, 1980 in which the parties were compelled to submit the case for resolution based on "agreed facts;" and(2) the Order dated April 14, 1980, denying petitioner's motion to allow her to present evidence in her favor.

IS LILIA STILL VALIDLY MARRIED TO HER FIRST HUSBAND?

YES

There is no need for petitioner to prove that her first marriage was vitiated by force committed against both parties because assuming this to be so, the marriage will not be void but merely voidable (Art. 85, Civil Code), and therefore valid until annulled.

Since no annulment has yet been made, it is clear that when she married respondent she was still validly married to her first husband, consequently, her marriage to respondent is VOID (Art. 80, Civil Code).

There is likewise no need of introducing evidence about the existing prior marriage of her first husband at the time they married each other, for then such a marriage though void still needs according to this Court a judicial declaration of such fact and for all legal intents and purposes she would still be regarded as a married woman at the time she contracted her marriage with respondent Karl Heinz Wiegel); accordingly, the marriage of petitioner and respondent would be regarded VOID under the law.

DONATO VS. LUNA An information for bigamy was filed against Donato

Later, private respondent (PR) filed a civil action for declaration of nullity of her marriage with petitioner. (ground: private respondent consented to entering into the marriage since she had no previous knowledge that he was already married to a certain Rosalinda)

Petitioner’s answer in the civil case: his second marriage was void since it was solemnized without a marriage license and that force, violence, intimidation and undue influence were employed by private respondent

Petitioner and PR had lived together as husband and wife for a period of at least five years, for which reason, the requisite marriage license was dispensed with

Petitioner filed a motion to suspend the proceedings in criminal case contending that Civil Case raises a prejudicial question which must first be determined or decided before the criminal case can proceed.—but was denied

A motion for reconsideration was filed by petitioner - -but was also denied.

Hence, the present petition for certiorari and prohibition with preliminary injunction.

WHETHER OR NOT A CRIMINAL CASE FOR BIGAMY SHOULD BE SUSPENDED IN VIEW OF A CIVIL CASE FOR ANNULMENT OF MARRIAGE ON THE GROUND THAT THE LATTER CONSTITUTES A PREJUDICIAL QUESTION.

The requisites of a prejudicial question do not obtain in the case at bar. The issue before the Juvenile and Domestic Relations Court touching upon the nullity of the second marriage is not determinative of petitioner Donato's guilt or innocence in the crime of bigamy. It was petitioner's second wife, the herein private respondent Paz B. Abayan who filed the complaint for annulment of the second marriage on the ground that her consent was obtained through deceit.

Petitioner calls the attention of this Court to the fact that the case of De la Cruz vs. Ejercito is a later case and as such it should be the one applied to the case at bar. We cannot agree. The situation in the case at bar is markedly different. In the aforecited case it was accused Milagros dela Cruz who was charged with bigamy for having contracted a second marriage while a previous one existed. Likewise, Milagros dela Cruz was also the one who filed an action for annulment on the ground of duress, as contra-distinguished from the present case wherein it was private respondent Paz B. Abayan, petitioner's second wife, who filed a complaint for annulment of the second marriage on the ground that her consent was obtained through deceit since she was not aware that petitioner's marriage was still subsisting. Moreover, in De la Cruz, a judgment was already rendered in the civil case that the second marriage of De la Cruz was null and void, thus determinative of the guilt or innocence of the accused in the criminal case. In the present case, there is as yet no such judgment in the civil case.

Petitioner Donato cannot apply the rule on prejudicial questions since a case for annulment of marriage can be considered as a prejudicial question to the bigamy case against the accused only if it is proved that the petitioner's consent to such marriage was obtained by means of duress, violence and intimidation in order to establish that his act in the subsequent marriage was an involuntary one and as such the same cannot be the basis for conviction. The preceding elements do not exist in the case at bar.

Petitioner merely raised the issue of prejudicial question to evade the prosecution of the criminal case



TERRE VS. TERRE Dorothy Terre was previously married to Merlito Bercenilla. Jordan Terre, then a high school classmate and despite her marriage, courted her. She at first did not entertain him. When Jordan went to law school, he became more persistent. He told Dorothy that her previous marriage was void ab initio as she and Merlito are first cousins and there was no need to go to court to declare it as such. Convinced by his explanations, Jordan and Dorothy contracted marriage in 1977 and despite Dorothy’s objection, he wrote “single” in their marriage license. In 1981, Jordan disappeared until Dorothy found out that he married contracted a subsequent marriage with Helina Malicdem.

Dorothy filed a case for abandonment and a case for bigamy against Jordan. Jordan argues that his subsequent marriage with Malicdem is validly contracted as he believed in good faith that his first marriage with Dorothy was null and void ab initio and that no action for a judicial declaration for nullity was necessary.

WHETHER THE MARRIAGE WITH MALICDEM WAS VALIDLY CONTRACTED?

NO

Jordan was in bad faith. He should have known that for purposes of determining whether a person is legally free to contract a second marriage, a judicial declaration that the first marriage was null and void ab initio is essential. Assuming arguendo that he held that mistaken belief, same conclusion follows that his marriage with Dorothy must be deemed valid with the result that his second marriage to Malicdem must be regarded as bigamous.

SUBSEQUENT APPEARANCE OF ABSENT SPOUSE

JONES VS. HORTIGUELA

December 1914: Marciana Escaño married Arthur W. Jones.

January 10, 1918: Jones secured a passport to go abroad and thereafter nothing was ever heard of him.

October 1919: proceedings were instituted at the instance of Marciana Escaño, to have her husband judicially declared an absentee. On the 25th of said month, the court issued an order declaring Arthur W. Jones an absentee from the Philippine Islands with the proviso that said judicial declaration of absence would not take effect until six months after its publication in the official newspapers. Said order directed the publication thereof in the Official Gazette and in the newspaper. Pursuant thereto, said order was published in the Official Gazette during the month of December, 1919, and January, February, March, April, May and June, 1920.

April 23, 1921: the court issued another order for the taking effect of the declaration of absence, publication thereof having been made in the Official Gazette and in "El Ideal."

May 6, 1927, Felix Hortiguela and Marciana Escaño were married before the justice of the peace of Malitbog, Leyte, and they signed the certificate of marriage.

Marciana Escaño died intestate leaving her widower by second marriage Felix Hortiguela who was appointed judicial administrator of her entire estate and Angelita Jones, then a minor and her daughter by her first marriage as her only heirs.

Angelita Jones filed a motion alleging that she was the only heir of her mother, the deceased Marciana Escaño; that there never was a valid marriage between her mother and Felix or that had

WHETHER FELIX HORTIGUELA'S ALLEGED MARRIAGE TO MARCIANA ESCAÑO WAS CELEBRATED?

YES

The absence of Marciana Escaño's former husband should be counted from January 10, 1918, the date on which the last news concerning Arthur W. Jones was received, and from said date to May 6, 1927, more than nine years elapsed. Said marriage is, therefore, valid and lawful.

For the purposes of the civil marriage law, it is not necessary to have the former spouse judicially declared an absentee. The declaration of absence made in accordance with the provisions of the Civil Code has for its sole purpose to enable the taking of the necessary precautions for the administration of the estate of the absentee. For the celebration of civil marriage, however, the law only requires that the former spouse has been absent for seven consecutive years at the time of the second marriage, that the spouse present does not know his or her former spouse to be living, that such former spouse is generally reputed to be dead and the spouse present so believe at the time of the celebration of the marriage (section III, paragraph 2, General orders, No. 68).

Section VIII of General Orders, No. 68, as amended, provides that the person solemnizing the marriage must transmit the marriage certificate and it does not provide that failure to transmit such certificate to the municipal secretary annuls the marriage.

Inasmuch as Felix Hortiguela was lawfully married to Marciana Escaño and was divorced from her at the time of her death there is no doubt that he is entitled to inherit in usufruct, not only in testate but also in intestate succession, as in the present case


Civil Law Review: Void Marriages-Obligation of Spouses 5such marriage been celebrated, it was null and void; and even granting that it were valid, Felix was not entitled to a share in usufruct of one-third of the inheritance.

Angelita Jones contends that the declaration of absence must be understood to have been made not in the order of October 25, 1919, but in that of April 23, 1921, and that from the latter date to May 6, 1927, the date of the celebration of the marriage, only 6 years and 14 days elapsed; and in accordance with section III, paragraph 2, of General Orders, No. 68, the marriage so contracted by Felix Hortiguela and Marciana Escaño is null and void.

PSYCHOLOGICAL INCAPACITY

REPUBLIC VS. CA A petition for declaration of nullity was filed by Roridel Molina against Reynaldo on the ground of psychological incapacity. Roridel alleges that during their marriage Reynaldo showed signs of “immaturity and irresponsibility” as a husband and a father since he preferred to spend more time with his peers and friends on whom he squandered his money; that he depended on his parents for aid and assistance, and was never honest with his wife in regard to their finances, resulting in frequent quarrels between them; that Roridel had been the sole breadwinner of the family; that the couple had a very intense quarrel, as a result of which their relationship was estranged; Roridel resigned from her job in Manila and went to live with her parents in Baguio City and a few weeks later, Reynaldo left Roridel and their child, and had since then abandoned them.

RTC and CA: declared marriage void because of their opposing and conflicting personalities.

WHETHER “OPPOSING AND CONFLICTING PERSONALITIES” IS EQUIVALENT TO PSYCHOLOGICAL INCAPACITY?

NO

Psychological incapacity should refer to no less than a mental (not physical) incapacity and that there is hardly any doubt that the intendment of the law has been to confine the meaning of ‘psychological incapacity’ to the most serious cases of personality disorders clearly demonstrative of an utter insensitivity or inability to give meaning and significance to the marriage. This psychologic condition must exist at the time the marriage is celebrated.In this case, there is no clear showing to us that the psychological defect spoken of is an incapacity. It appears to us to be more of a “difficulty,” if not outright “refusal” or “neglect” in the performance of some marital obligations. Mere showing of “irreconciliable differences” and “conflicting personalities” in no wise constitutes psychological incapacity. It is not enough to prove that the parties failed to meet their responsibilities and duties as married persons; it is essential that they must be shown to be incapable of doing so, due to some psychological (not physical) illness. No showing of gravity, juridicial antecedence nor its incurability.

The following guidelines in the interpretation and application of Art. 36 of the Family Code are hereby handed down for the guidance of the bench and the bar:(1) The burden of proof to show the nullity of the marriage belongs to the plaintiff. Any doubt should be resolved in favor of the existence and continuation of the marriage and against its dissolution and nullity. Our Constitution decrees marriage as legally “inviolable,” thereby protecting it from dissolution at the whim of the parties. Both the family and marriage are to be “protected” by the state. The Family Code echoes this constitutional edict on marriage and the family and emphasizes their permanence, inviolability and solidarity.(2) The root cause of the psychological incapacity must be (a) medically or clinically identified, (b) alleged in the complaint, (c) sufficiently proven by experts and (d) clearly explained in the decision. Article 36 of the Family Code requires that the incapacity must be psychological -- not physical, although its manifestations and/or symptoms may be physical. The evidence must convince the court that the parties, or one of them, was mentally or psychically ill to such an extent that the person could not have known the obligations he was assuming, or knowing them, could not have given valid assumption thereof. Such root cause must be identified as a psychological illness and its incapacitating nature fully explained. Expert evidence may be given by qualified psychiatrists and clinical psychologists.(3) The incapacity must be proven to be existing at “the time of the celebration” of the marriage. The manifestation of the illness need not be perceivable at such time, but the illness itself must have attached at such moment, or prior thereto.(4) Such incapacity must also be shown to be medically or clinically permanent or incurable. Such incurability may be absolute or even relative only in regard to the other spouse, not necessarily absolutely against everyone of the same sex. It must be relevant to the assumption of marriage obligations, not necessarily to those not related to marriage, like the exercise of a profession or employment in a job. (5) Such illness must be grave enough to bring about the disability of the party to


Civil Law Review: Void Marriages-Obligation of Spouses 6assume the essential obligations of marriage. The illness must be shown as downright incapacity or inability, not a refusal, neglect or difficulty, much less ill will. In other words, there is a natal or supervening disabling factor in the person, an adverse integral element in the personality structure that effectively incapacitates the person from really accepting and thereby complying with the obligations essential to marriage.(6) The essential marital obligations must be those embraced by Articles 68 up to 71 of the Family Code as regards the husband and wife as well as Articles 220, 221 and 225 of the same Code in regard to parents and their children. Such non-complied marital obligation(s) must also be stated in the petition, proven by evidence and included in the text of the decision.(7) Interpretations given by the National Appellate Matrimonial Tribunal of the Catholic Church in the Philippines, while not controlling or decisive, should be given great respect by our courts. It is clear that Article 36 was taken by the Family Code Revision Committee from Canon 1095 of the New Code of Canon Law, which became effective in 1983 and which provides:“The following are incapable of contracting marriage: Those who are unable to assume the essential obligations of marriage due to causes of psychological nature.”Since the purpose of including such provision in our Family Code is to harmonize our civil laws with the religious faith of our people, it stands to reason that to achieve such harmonization, great persuasive weight should be given to decisions of such appellate tribunal. Ideally -- subject to our law on evidence -- what is decreed as canonically invalid should also be decreed civilly void.(8) The trial court must order the prosecuting attorney or fiscal and the Solicitor General to appear as counsel for the state. No decision shall be handed down unless the Solicitor General issues a certification, which will be quoted in the decision, briefly stating therein his reasons for his agreement or opposition, as the case may be, to the petition. The Solicitor General, along with the prosecuting attorney, shall submit to the court such certification within fifteen (15) days from the date the case is deemed submitted for resolution of the court. The Solicitor General shall discharge the equivalent function of the defensor vinculi contemplated under Canon 1095.

CHOA VS. CHOA Alfonso Ochoa filed a complaint for the declaration of nullity of his marriage to Leni Ochoa on the ground of psychological incapacity. Prior to the filing of such complaint, Leni filed cases of perjury, false testimony, concubinage and deportation against Alfonso.

During the trial Alfonso showed as evidence: filing and the prosecution of the cases clearly showed that Leni wanted not only to put him behind bars but also to banish him from the country. He also alleged that while being pregnant, Leni wanted to abort her pregnancy by taking pills. He contends that this constitutes a very abnormal behaviour of a wife. After presenting evidence during the trial of the complaint for declaration of nullity, Leni filed demurrer to evidence. The court denied the demurrer as it held that Alfonso was able to establish a quantum of evidence.

WHETHER THE DENIAL OF THE DEMURRER WAS PROPER?

NO

The evidence presented is grossly insufficient to support psychological incapacity.It is the height of absurdity and inequity to condemn her as psychologically incapacitated to fulfill her marital obligations, simply because she filed cases against him. The evidence presented, even if taken as true, merely establishes the prosecution of the cases against him. The testimony of his witness likewise failed to identify and prove the root cause of the alleged psychological incapacity.

Psychological incapacity must be characterized by (a) gravity, (b) juridical antecedence and (c) incurability. It should be obvious, looking at all the foregoing disquisitions, including, and most importantly, the deliberations of the Family Code Revision Committee itself, that the use of the phrase ‘psychological incapacity’ under Article 36 of the Code has not been meant to comprehend all such possible cases of psychoses as, likewise mentioned by some ecclesiastical authorities, extremely low intelligence, immaturity, and like circumstances. Article 36 of the Code has not been meant to comprehend all such possible cases of psychoses. psychological incapacity’ should refer to no less than a mental (not physical) incapacity that causes a party to be truly incognitive of the basic marital covenants that concomitantly must be assumed and discharged by the parties to the marriage which, as so expressed by Article 68 of the Family Code, include their mutual obligations to live together, observe love, respect and fidelity and render help and support. There is hardly any doubt that the intendment of the law has been to confine the meaning of ‘psychological incapacity’ to the most serious cases of personality disorders clearly demonstrative of an utter insensitivity or inability to give


Civil Law Review: Void Marriages-Obligation of Spouses 7meaning and significance to the marriage.

A medical examination is not a condition sine qua non to a finding of psychological incapacity, so long as the totality of evidence presented is enough to establish the incapacity adequately.52 Here, however, the totality of evidence presented by respondent was completely insufficient to sustain a finding of psychological incapacity -- more so without any medical, psychiatric or psychological examination.

BARCELONA VS. COURT OF APPEALS

Tadeo Bengzon filed a petition for annulment of marriage against Diana based on Art. 36, FC. He alleges that Diana during their marriage, they had frequent quarrels due to their varied upbringing. Respondent, coming from a rich family, was a disorganized housekeeper and was frequently out of the house. When the family had crisis due to several miscarriages suffered by respondent and the sickness of a child, respondent withdrew to herself and eventually refused to speak to her husband.

Diana, who was five months pregnant with Cristina Maria and on the pretext of re-evaluating her feelings with petitioner, requested the latter to temporarily leave their conjugal dwelling. She further insisted that she wanted to feel a little freedom from petitioner’s marital authority and influences. The petitioner argued that he could occupy another room in their conjugal dwelling to accommodate respondent’s desire, but no amount of plea and explanation could dissuade her from demanding that the petitioner leave their conjugal dwelling. In his desire to keep peace in the family and to safeguard the respondent’s pregnancy, the petitioner was compelled to leave their conjugal dwelling and reside in a condominium.

She filed a motion to dismiss on the ground of failure to state a cause of action for failure to allege the root cause of the alleged psychological incapacity.

WHETHER TADEO HAS SUFFICIENT CAUSE OF ACTION AGAINST DIANA?

YES

The petition states a cause of action since it states the legal right of respondent Tadeo, the correlative obligation of petitioner Diana, and the act or omission of petitioner Diana in violation of the legal right. The complaint does not have to establish or allege the facts proving the existence of a cause of action at the outset; this will have to be done at the trial on the merits of the case. If the allegations in a complaint can furnish a sufficient basis by which the complaint can be maintained, the same should not be dismissed regardless of the defenses that may be assessed by the defendants.

The Court adopted the new Rules on Declaration of Absolute Nullity of Void Marriages and Annulment of Voidable Marriages. The complete facts should allege the physical manifestations, if any, as are indicative of psychological incapacity at the time of the celebration of the marriage but expert opinion need not be alleged.

The obvious effect of the new Rules providing that “expert opinion need not be alleged” in the petition is that there is also no need to allege the root cause of the psychological incapacity. Only experts in the fields of neurological and behavioral sciences are competent to determine the root cause of psychological incapacity. Since the new Rules do not require the petition to allege expert opinion on the psychological incapacity, it follows that there is also no need to allege in the petition the root cause of the psychological incapacity.

REPUBLIC VS. QUINTERO-HAMANO

Lolita fled a complaint for declaration of nullity of her marriage with Toshio, a Japanese citizen. It was alleged that Toshio and Lolita contracted a civil wedding in the Philippines. One month after their marriage, Toshio left for Japan with the promise to support his family and take steps to make them Japanese citizens. But except for 2 months, he never sent any support nor communicated with them despite letters sent. Lolita likewise found out that Toshio visited the Philippines but did not bother to see her or their child.

WHETHER MERE ABANDONMENT AND INSENSITIVITY CONSTITUTES PSYCHOLOGICAL INCAPACITY?

NO

The totality of evidence presented fell short of proving that Toshio was psychologically incapacitated to assume his marital responsibilities. Toshio’s act of abandonment was doubtlessly irresponsible but it was never alleged nor proven to be due to some kind of psychological illness. After respondent testified on how Toshio abandoned his family, no other evidence was presented showing that his behavior was caused by a psychological disorder. Although, as a rule, there was no need for an actual medical examination, it would have greatly helped respondent’s case had she presented evidence that medically or clinically identified his illness. This could have been done through an expert witness. Psychological defect cannot be inferred from the mere fact that Toshio abandoned his family immediately after the celebration of the marriage.

The policy of the 1987 Constitution is to protect and strengthen the family as the basic autonomous social institution and marriage as the foundation of the family. Thus, any doubt should be resolved in favor of the validity of the marriage. The guidelines incorporate the three basic requirements earlier mandated by the Court in Santos: "psychological incapacity must be characterized by (a) gravity (b) juridical antecedence and (c) incurability."14 The foregoing guidelines do not require that a physician examine the person to be declared psychologically incapacitated. In fact, the root cause may be "medically or clinically identified." What is important is the presence of evidence that can adequately establish the party’s psychological


Civil Law Review: Void Marriages-Obligation of Spouses 8condition.

MORIGO VS. PEOPLE Lucio and Lucia became sweethearts while she was in Singapore. When she came back to the Philippines the decided to get married. A week after their marriage, Lucia had to leave for work in Canada and Lucio was left behind. A year after, Lucia filed a petition for divorce against Lucio which was granted by the Ontario Court.

Lucio contracted a subsequent marriage with Lumbago. He filed a complaint for judicial declaration of nullity of marriage with Lucia on the ground that no marriage ceremony actually took place. Lucia charged Lucio with the crime of bigamy.

Bigamy Case: Lucio moved for suspension of the arraignment on the ground of prejudicial question- denied and was convicted of the crime of bigamy. The court ruled that want of valid marriage ceremony is not a defense in a charge of bigamy. The parties to a marriage should not be allowed to assume that their marriage is void even if such be the fact but must first secure a judicial declaration of the nullity of their marriage before they can be allowed to marry again.

Nullity Case: Subsequently, a decision was rendered in the civil case declaring that the marriage to Lucia was null and void ab initio. No appeal- final and executory.

CA, bigamy: the subsequent declaration of nullity of Lucio’s marriage to Lucia could not acquit Lucio. The reason is that what is sought to be punished by Article 349[12] of the Revised Penal Code is the act of contracting a second marriage before the first marriage had been dissolved. Hence, the fact that the first marriage was void from the beginning is not a valid defense in a bigamy case.

WHETHER LUCIO COMMITTED BIGAMY?

NO

One element of bigamy is absent (the offender has been legally married).The trial court found that there was no actual marriage ceremony performed between Lucio and Lucia by a solemnizing officer. Instead, what transpired was a mere signing of the marriage contract without the presence of a solemnizing officer. Thus the marriage is void ab initio. There was no marriage to begin with and that declaration of nullity retroacts to the date of the first marriage. For all intents and purposes, reckoned from the date of the declaration of the first marriage as void ab initio to the date of the celebration of the first marriage, the accused was, under the eyes of the law, never married.

Thus, there is no first marriage to speak of. Under the principle of retroactivity of a marriage being declared void ab initio, the two were never married “from the beginning.” The contract of marriage is null; it bears no legal effect. Taking this argument to its logical conclusion, for legal purposes, petitioner was not married to Lucia at the time he contracted the marriage with Maria Jececha. The present case is analogous to, but must be distinguished from Mercado v. Tan. In the latter case, the judicial declaration of nullity of the first marriage was likewise obtained after the second marriage was already celebrated. We held therein that:

A judicial declaration of nullity of a previous marriage is necessary before a subsequent one can be legally contracted. One who enters into a subsequent marriage without first obtaining such judicial declaration is guilty of bigamy. This principle applies even if the earlier union is characterized by statutes as “void.”

The first marriage in Mercado was actually solemnized not just once, but twice: first before a judge and then again later before a priest in religious rites. Ostensibly, at least, the first marriage appeared to have transpired, although later declared void ab initio.In the instant case, however, no marriage ceremony at all was performed by a duly authorized solemnizing officer. The mere private act of signing a marriage contract bears no semblance to a valid marriage and thus, needs no judicial declaration of nullity. Such act alone, without more, cannot be deemed to constitute an ostensibly valid marriage for which petitioner might be held liable for bigamy unless he first secures a judicial declaration of nullity before he contracts a subsequent marriage.

TENEBRO VS. COURT OF APPEALS

1986 – Veronico Tenebro married Hilda Villareyes

1990 – Veronico married Leticia Ancajas in the TC of Lapu-Lapu City. They lived together for a year until when Veronico informed Leticia of his previous marriage, showing a photocopy of the marriage contract. Invoking this past marriage, Veronico left Leticia to cohabit with Hilda. 1993 – Veronico married Nilda Villegas in the RTC of Cebu City.

When Leticia learned of this 3rd marriage, filed a complaint for bigamy. Veronico denied marrying Hilda (1st) and that the subsequent declaration of the nullity of his marriage to Leticia (due to psychological incapacity) retroacts to the date the 2nd

marriage was celebrated.

TC & CA – Tenebro is GUILTY of BIGAMY

WHETHER THE SUBSEQUENT DECLARATION OF NULLITY ABSOLVES TENEBRO OF THE CRIME OF BIGAMY?

NO

The 1st marriage was duly proved --- copy of a marriage contract and a handwritten letter from Hilda to Leticia that she and Veronico were legally married. The defense’s certification that there was no record of marriage cannot adequately assail the marriage contract, which in itself is sufficient to establish the existence of marriage.

The declaration of the nullity of the 2nd marriage on the ground of psychological incapacity is of absolutely no moment insofar as the State's penal laws are concerned. As subsequent marriage contracted during the subsistence of Hilda's valid marriage, his marriage to Leticia would be null and void ab initio completely regardless of Leticia's psychological incapacity. Since a marriage contracted during the subsistence of a valid marriage is automatically void, the nullity of this 2nd

marriage is not per se an argument for the avoidance of criminal liability for bigamy. As soon as the 2nd marriage to Leticia was celebrated, the crime of bigamy had already been consummated. The declaration of the nullity of the 2nd marriage on the ground of psychological incapacity is not an indicator that Veronico's marriage to Leticia lacks the essential requisites for validity.


http://sc.judiciary.gov.ph/jurisprudence/2004/feb2004/145226.htm#_ftn12

http://sc.judiciary.gov.ph/jurisprudence/2000/aug2000/137110.htm

Civil Law Review: Void Marriages-Obligation of Spouses 9EFFECT OF NULLITY

YAPTINCHAY VS. TORRES

Teresita Yaptinchay, upon her petition, was appointed Special Administratrix of Isidro Yaptinchay’s P500,000 estate. She claimed they had lived continuously and publicly as husband and wife for 19 years. Josefina Yaptinchay, the alleged legitimate wife, and their children, opposed and prayed that Virginia, Isidro’s daughter, be special administratrix and Josefina be regular administratrix. Virginia was appointed as special administratrix. So Teresa filed in another branch an action for replevin and for liquidation of the partnership supposedly formed during the period of her cohabitation with Isidro and for damages.

Meanwhile, Judge Torres temporarily restrained Josefina, et.al. from disposing any of the properties. However, upon realizing that another probate court had taken cognizance thereof, he lifted the order.

Teresita lays claim on the Forbes Park house built on Isidro’s property, arguing its construction was undertaken jointly by them and that she even contributed exclusive funds therefor. She showed loans from the Republic Bank but failed to prove these were for the North Forbes Park home since these contained loans for fish pond and agricultural development.

WHETHER TERESITA CAN CLAIM THE PROPERTY?

NO

Since the cohabitation would be governed by the rules on co-ownership, there must be a clear showing Teresita really contributed to the acquisition of the property involved. Until such right to co-ownership is duly established, her interests in the property cannot be considered the "present right" or title that would make available the protection or aid afforded by a writ of injunction.

REQUISITE FOR VALID REMARRIAGE

WIEGEL VS. SEMPIO-DY

Karl Heinz Wiegel asked for the declaration of Nullity of his marriage celebrated on July, 1978 with Lilia Oliva Wiegel on the ground of Lilia's previous existing marriage to Eduardo A. Maxion, the ceremony having been performed on June 25, 1972. Lilia, while admitting the existence of said prior subsisting marriage claimed that said marriage was null and void, she and the first husband Eduardo having been allegedly forced to enter said marital union. Contesting the validity of the pre-trial order, Lilia asked the respondent court for an opportunity to present evidence:

(1) that the first marriage was vitiated by force exercised upon both her and the first husband; and

(2) that the first husband was at the time of the marriage in 1972 already married to someone else.

Judge Sempio-Diy ruled against the presentation of evidence because the existence of force exerted on both parties of the first marriage had already been agreed upon.

WAS THERE A VALID REMARRIAGE BETWEEN KARL AND LILIA?

NO

There is no need for Lilia to prove that her first marriage was vitiated by force committed against both parties because assuming this to be so, the marriage will not be void but merely viodable (Art. 85, Civil Code), and therefore valid until annulled. Since no annulment has yet been made, it is clear that when she married respondent she was still validly married to her first husband, consequently, her marriage to respondent is VOID (Art. 80, Civil Code).

There is likewise no need of introducing evidence about the existing prior marriage of her first husband at the time they married each other, for then such a marriage though void still needs according to this Court a judicial declaration of such fact and for all legal intents and purposes she would still be regarded as a married woman at the time she contracted her marriage with Karl Heinz Wiegel; accordingly, the marriage of Lilia and Karl would be regarded VOID under the law.

TERRE VS. TERRE Dorothy B. Terre charged Jordan Terre, a member of the Philippine Bar with "grossly immoral conduct," consisting of contracting a second marriage and living with another woman, while his prior marriage with Dorothy remained subsisting.

Atty. Terre averred that he had contracted marriage with Dorothy on 14 June 1977 upon her representation that she was single. He subsequently learned that Dorothy was married to a

COULD ATTY. TERRE HAVE VALIDLY REMARRIED HELINA?

NO

There is no dispute over the fact that Dorothy and Atty. Terre contracted marriage on 14 July 1977. There is further no dispute over the fact that on 3 May 1981, Atty. Terre married Helina. When the second marriage was entered into, Atty. Terre’s prior marriage with Dorothy was subsisting, no judicial action having been initiated or any judicial declaration obtained as to the nullity of such prior marriage of Atty. Terre with Dorothy.

Atty. Terre sought to defend himself by claiming that he had believed in good faith


Civil Law Review: Void Marriages-Obligation of Spouses 10certain Merlito A. Bercenilla sometime in 1968. When he confronted Dorothy about her prior marriage, Dorothy drove him out of their conjugal residence. Dorothy had mockingly told him of her private meetings with Merlito and that the child she was then carrying (Jason Terre) was the son of Merlito. Believing in good faith that his marriage to complainant was null and void ab initio, he contracted marriage with Helina Malicdem

According to Dorothy, she had then already been abandoned by Atty. Terre, leaving her penniless and without means to pay for the medical and hospital bills arising by reason of her pregnancy.

that his prior marriage with Dorothy was null and void ab initio and that no action for a judicial declaration of nullity was necessary.

The Court considers this claim on the part of Atty. Terre as a spurious defense. He has not rebutted Dorothy's evidence as to the basic facts which underscores his bad. That pretended defense is the same argument by which he had inveigled Dorothy into believing that her prior marriage to Merlito, being incestuous and void ab initio (Dorothy and Merlito being allegedly first cousins to each other), she was free to contract a second marriage with him. Atty. Terre, being a lawyer, knew or should have known that such an argument ran counter to the prevailing case law of this court which holds that for purposes of determining whether a person is legally free to contract a second marriage, a judicial declaration that the first marriage was null and void ab initio is essential. Even if we were to assume, arguendo merely, that Atty. Terre held that mistaken belief in good faith, the same result will follow. For if we are to hold Atty. Terre to his own argument, his first marriage to Dorothy must be deemed valid, with the result that his second marriage to Helina must be regarded as bigamous and criminal in character.

After Atty. Terre had finished his law course and gotten Dorothy pregnant, he abandoned Dorothy without support and without the wherewithal for delivering his own child safely in a hospital. We believe and so hold that the conduct of Atty. Terre in inveigling Dorothy to contract a second marriage with him; in abandoning Dorothy after she had cared for him and supported him through law school, leaving her without means for the safe delivery of his own child; in contracting a second marriage with Helina while his first marriage with Dorothy was subsisting, constituted "grossly immoral conduct" under Section 27 of Rule 138 of the Rules of Court, affording more than sufficient basis for disbarment of respondent Jordan Terre. He was unworthy of admission to the Bar in the first place. Atty. Terre is disbarred and his name is stricken out from the Roll of Attorneys.

NO CONFESSION OF JUDGMENT

JOCSON VS. ROBLES 1958 - Ricardo Robles allegedly married Josefina Fausto.

Without having the 1st marriage annulled, Ricardo married Gloria Jocson. When Gloria found out about Josefina, she filed an action for annulment because of bigamy and for damages arising from maltreatment that resulted to the premature birth of their 1st child, who died 3 days later.

Ricardo answered, charging Gloria's parents with having compelled him by force, threat and intimidation, to marry Gloria, notwithstanding their knowledge that he was married and that such threat persisted until 1963, when he was finally able to get away. Ricardo moved for summary judgment since no genuine issue was raised and that Gloria’s parents admitted to the threat in a joint affidavit while Gloria prayed for judgment on the pleadings.

Court of Domestic Relations – DENIED summary judgment for annulment.

WHETHER THE 2ND

MARRIAGE SHOULD BE ANNULLED BASED ON THE MOTION FOR SUMMARY JUDGMENT?

NO

Art. 88 and 101, CC expressly prohibits the rendition of a decree of annulment of a marriage upon a stipulation of facts or a confession of judgment. The affidavits annexed to the petition for summary judgment practically amount to these methods --- that is, collusion between the parties.

TOLENTINO VS. VILLANUEVA

Romulo Tolentino filed for annulment, alleging his consent was obtained thru fraud because immediately after the marriage celebration, he discovered Helen Villanueva was pregnant and they had no premarital sexual relations. Immediately, Helen left his house and her whereabouts remained unknown until 1962

WHETHER THE ANNULMENT SHOULD BE GRANTED?

NO

Articles 88 and 101 of the Civil Code of the Philippines expressly prohibit the rendition of a decision in suits for annulment of marriage and legal separation based on a stipulation of facts or by confession of judgment and direct that in case of non-appearance of defendant, the court shall order the prosecuting attorney to inquire whether or not collusion between the parties exists, and if none, said prosecuting


Civil Law Review: Void Marriages-Obligation of Spouses 11when he discovered that she is residing in Cebu. Despite being served with summons, Helen failed to file a responsive pleading, so Romulo moved to declare her in default and to set the date for the presentation of his evidence.

LC – DECLARED Helen in default, but, pursuant to Art. 88 and 101, CC referred the case to the City Fiscal for investigation to determine the existence of collusion. The fiscal summoned Romulo and ordered him to bring documents regarding the annulment. Romulo declined because it would expose his evidence.

LC – DISMISSED complaint because Romulo was unwilling to submit to interrogation

attorney shall intervene for the State to prevent fabrication of evidence for the plaintiff.

The prohibition is predicated on the fact that the institutions of marriage and of the family are sacred and therefore are as much the concern of the State as of the spouses; because the State and the public have vital interest in the maintenance and preservation of these social institutions against desecration by collusion between the parties or by fabricated evidence. The prohibition against annulling a marriage based on the stipulation of facts or by confession of judgment or by non-appearance of the defendant stresses the fact that marriage is more than a mere contract between the parties; and for this reason, when the defendant fails to appear, the law enjoins the court to direct the prosecuting officer to intervene for the State in order to preserve the integrity and sanctity of the marital bonds.

VOIDABLE MARRIAGES: FRAUD

BUCCAT VS. BUCCAT At the time of the marriage, Mrs. Buccat was already 6 months pregnant. After giving birth 3 months into the marriage, Mr. Buccat claims that there was concealment on the part of his wife regarding her pregnancy and further alleges she was impregnated by another man.

WHETHER THERE WAS CONCEALMENT OF PREGNANCY?

NO

Even assuming that the annulment is based on the fact that at the time of the marriage, Mrs. Bucat was pregnant by a man other than her husband, there would still be no ground. There should have been a concealment of such fact. Mrs. Buccat was already about 6 months pregnant at the time of marriage, there can be no possibility of concealment. At such an advanced stage of pregnancy, concealment would be impossible.

Where there has been no misrepresentation or fraud, that is, when the husband at the time of the marriage knew that the wife was pregnant, the marriage cannot be annulled. Here, the child was born less than 3 months after the celebration of the marriage.

ANNULMENT DENIED.

AQUINO VS. DELIZO Fernando Aquino filed a complaint for annulment on the ground of fraud, alleging that his wife, Conchita Delizo, at the date of their marriage, concealed the fact that she was impregnated by another man. 4 mos. into the marriage, she gave birth to a child. He failed to present a birth certificate to show that the child was born within 180 days after their marriage but he explains that it was due to excusable negligence.

CFI & CA – DISMISSED complaint for annulment of his marriage. The CA found that it wasn’t impossible for Conchita and Fernando to have pre-marital sex.

WHETHER THERE WAS CONCEALMENT?

YES

Conchita was 4 mos. pregnant at the time of her marriage to Fernando. At this stage, her pregnancy wasn’t readily apparent since she was "naturally plump" or fat. Even on the 5th mo., the enlargement of a woman's abdomen is still below the umbilicus (lower part of the abdomen), which can be attributed to fat formation. It is only on the 6th mo. that the enlargement of the abdomen reaches a height above the umbilicus, making the roundness of the abdomen more general and apparent. The appellate court’s finding was purely conjectural and unsupported by the record.

ANAYA VS. PALAROAN

Fernando Palaroan filed for annulment because his consent was obtained thru force and intimidation. The action was dismissed and when Aurora Anaya’s counterclaim of support was being negotiated, Fernando divulged his pre-marital relationship with a close relative prior to his marriage. Because of such concealment, Aurora filed for annulment. In addition, Aurora claimed that from the very beginning Fernando had no intention of performing his marital obligations and he fraudulently led her to believe that he would be a caring husband to her.

CFI – DISMISSED action

WHETHER THE NON-DISCLOSURE OF A PRE-MARITAL RELATIONSHIP WITH ANOTHER WOMAN IS A GROUND FOR ANNULMENT OF MARRIAGE?

NO

WHETHER A SECRET

Non-disclosure of a husband's pre-marital relationship with another woman is not one of the enumerated circumstances for annulment. While a woman may detest such non-disclosure of premarital lewdness or feel having been thereby cheated into giving her consent to the marriage, nevertheless the law does not assuage her grief after her consent was solemnly given, for upon marriage she entered into an institution in which society, and not herself alone, is interested.

On the 2nd fraud charge, it is enough to point out that any secret intention on the husband's part not to perform his marital duties must have been discovered by the


Civil Law Review: Void Marriages-Obligation of Spouses 12INTENTION NOT TO PERFORM MARITAL OBLIGATIONS CONSTITUTES AS FRAUD?

YES

wife soon after the marriage: hence her action for annulment based on that fraud should have been brought within 4 years after the marriage. Since their wedding was celebrated in December 1953, and this ground was only pleaded in 1966, it must be declared already barred.

VOIDABLE MARRIAGES: FORCE, INTIMIDATION & UNDUE INFLUENCEVOIDABLE MARRIAGES: IMPOTENCE

SARAO VS. GUEVARA In the afternoon of their wedding, Sarao tried to have carnal knowledge of Pilar Guevarra, but the latter showed reluctance and begged him to wait until the evening. When night time came, he again approached his wife, however, she complained of pains in her private parts and as a result, he was not successful. After the first night, every attempt on the plaintiff’s part to have a carnal act with his wife proved a failure, because she complained of pains in her genital organs and he did not want her to suffer. Upon the advice of a physician and with the plaintiff’s consent, an operation was performed in which the uterus and ovaries were removed. The surgery rendered her incapable of procreation, but she could copulate. Plaintiff, however, since witnessing the operation, lost all desire to have access with his wife. Now, he asks for annulment.

WHETHER THEIR MARRIAGE CAN BE ANNULLED BASED ON THE DEFENDANT’S INCAPACITY TO PROCREATE?

NO

The incapacity for copulation was only temporary. The defect must be lasting to be aground for annulment, because the test of impotence is not the capacity to reproduce, but the capacity to copulate.

JIMENEZ VS. CANIZARES

Joel Jimenez filed for annulment because the orifice of his wife’s genitals or vagina was too small to allow the penetration or copulation. He left the conjugal home 2 ½ days after they had been married. Remedios Cañizares did not answer and did not submit to a physical examination.

LC – GRANTED the annulment

WHETHER THE MARRIAGE MAY BE ANNULLED BASED ON THE LONE TESTIMONY OF THE HUSBAND ABOUT HER IMPOTENCY?

NO

The refusal to be examined is because women are by nature coy, bashful and shy and would not submit to a physical examination unless compelled by competent authority. Impotency being an abnormal condition should not be presumed. The presumption is in favor of potency. The lone testimony of the husband is insufficient to tear asunder the ties that have bound them together as husband and wife.

PROCEDURE ON ANNULMENT: NO CONFESSION OF JUDGMENT

JOCSON VS. ROBLES Gloria G. Jocson commenced an action for the annulment of her marriage to Ricardo R. Robles on the ground that it was bigamous. Previous to his marriage to Gloria on May 27, 1958, Robles had contracted a first marriage with Josefina Fausto, who had instituted a criminal action for Bigamy against him. Robles also assailed the validity of the marriage. But he charged Gloria's parents with having compelled him by force, threat and intimidation, to contract that marriage with her, notwithstanding their knowledge that he is a married man; and that said threat and intimidation allegedly persisted until January, 1963 when he was finally able to get away and live apart from Gloria

Robles filed a motion for summary judgment, on the ground that no genuine issue of fact is involved in the case. It was claimed that Robles’ contention, that his consent to the marriage was secured by force and intimidation employed upon his person by the relatives of Gloria, was allegedly supported by the joint affidavit of Gloria's father and brother, dated October 28, 1963,

DID THE COURT PROPERLY DENY THE MOTION FOR SUMMARY JUDGMENT?

YES

On the merits, we are satisfied that the Court of Domestic Relations correctly denied the motion for summary judgment in view of the first paragraph of Articles 88 and 101 of the Civil Code of the Philippines, that expressly prohibit the rendition of a decree of annulment of a marriage upon a stipulation of facts or a confession of judgment. The affidavits annexed to the petition for summary judgment practically amount to these methods not countenanced by the Civil Code. This proceeding is hereby dismissed.


Civil Law Review: Void Marriages-Obligation of Spouses 13attached to the motion.

Robles’ motion for summary judgment was denied, the court ruling that before it can pass upon his prayer for the declaration of nullity of her marriage to defendant, there is necessity for proof that when he contracted marriage with Gloria, Robles had a previous and subsisting valid marriage. The evidentiary requirement to establish these facts, according to the court, was not met in the motion for summary judgment. Robles’ plea to have his marriage declared as having been brought about by force and intimidation, was denied, the court finding indications of collusion between the parties in their attempt to secure the nullification of said marriage.

TOLENTINO VS. VILLANUECA

Romulo Tolentino filed a suit for annulment of his marriage to Helen Villanueva, alleging that his consent was obtained through fraud because immediately after the marriage celebration, he discovered that Helen was pregnant despite the fact that he had no sexual relations with her prior to the marriage ceremony; and that they did not live as husband and wife as immediately after the marriage celebration, Helen left his house and her whereabouts remained unknown to him.

Judge Agrava declared Helen in default, but, pursuant to the provision of Articles 88 and 101 of the Civil Code of the Philippines, referred the case to the City Fiscal of Manila for investigation to determine whether collusion exists between the parties, directing the City Fiscal to submit his report within sixty (60) days from receipt thereof, and, in the event of a negative finding, to represent the State at the trial of the case to prevent fabrication of evidence.

Tolentino, prayed that Agrava set the date for the reception of his evidence on the ground that the City Fiscal had not submitted a report of his findings despite the lapse of sixty (60) days. Agrava denied the aforesaid motion of Tolentino unless he submits himself for interrogation by the City Fiscal to enable the latter to report whether or not there is collusion between the parties. Agrava dismissed the complaint in view of the fact that Tolentino is not willing to submit himself for interrogation. Tolentino now files his petition to annul said order and to compel Judge Agrava to receive his evidence.

DID THE JUDGE CORRECTLY DISMISS TOLENTINO’S COMPLAINT?

YES

Articles 88 and 101 of the Civil Code of the Philippines expressly prohibit the rendition of a decision in suits for annulment of marriage and legal separation based on a stipulation of facts or by confession of judgment and direct that in case of non-appearance of defendant, the court shall order the prosecuting attorney to inquire whether or not collusion between the parties exists, and if none, said prosecuting attorney shall intervene for the State to prevent fabrication of evidence for the plaintiff.

ART. 88. No judgment annulling a marriage shall be promulgated upon a stipulation of facts or by confession of judgment.

In case of non-appearance of the defendant, the provisions of article 101, paragraph 2, shall be observed.

ART. 101. No decree of legal separation shall be promulgated upon a stipulation of facts or by confession of judgment.

In case of non-appearance of the defendant, the court shall order the prosecuting attorney to inquire whether or not a collusion between the parties exists. If there is no collusion, the prosecuting attorney shall intervene for the State in order to take care that the evidence for the plaintiff is not fabricated.

The prohibition expressed in the aforesaid laws and rules is predicated on the fact that the institutions of marriage and of the family are sacred and therefore are as much the concern of the State as of the spouses; because the State and the public have vital interest in the maintenance and preservation of these social institutions against desecration by collusion between the parties or by fabricated evidence. The prohibition against annulling a marriage based on the stipulation of facts or by confession of judgment or by non-appearance of the defendant stresses the fact that marriage is more than a mere contract between the parties; and for this reason, when the defendant fails to appear, the law enjoins the court to direct the prosecuting officer to intervene for the State in order to preserve the integrity and sanctity of the marital bonds.

MARRIAGE WHEN 1 SPOUSE IS ABSENT



JONES VS. HORTIGUELA

For the purposes of the civil marriage law, it is not necessary to have the former spouse judicially declared an absentee. The declaration of absence made in accordance with the provisions of the Civil Code has for its sole purpose to enable the taking of the necessary precautions for the administration of the estate of the absentee. For the celebration of civil marriage, however, the law only requires that the former spouse has been absent for seven consecutive years at the time of the second marriage, the spouse present does not know his or her former spouse to be living, that such former spouse is generally reputed to be dead and the spouse present so believes at the time of the celebration of the marriage (section III, paragraph 2, General Orders, NO. 68).

In accordance with the foregoing legal provision, the absence of Marciana Escaño former husband should be counted from January 10, 1918, the date on which the last news concerning Arthur W. Jones was received, and from said date to May 6, 1927, more than nine years elapsed. Said marriage is, therefore, valid and lawful.

LUKBAN VS. REPUBLIC

This is a petition filed by Lourdes G. Lukban for a declaration that she is a widow of her husband Francisco Chuidian who is presumed to be dead and has no legal impediment to contract a subsequent marriage.

Lourdes contracted marriage with Francisco Chuidian on December 10, 1933 in Manila. On December 27, Francisco left Lourdes after a violent quarrel and since then he has not been heard from despite diligent search made by her. She has no knowledge if he is still alive and believes that he is already dead because he had been absent for more than twenty years, and because she intends to marry again, she desires that her civil status be defined in order that she may be relieved of any liability under the law.

The Solicitor General opposed the petition on the ground that the same is not authorized by law. After petitioner had presented her evidence, the court sustained the opposition and dismissed the petition. Hence this appeal.

WHETHER THE PETITION OF LOURDES SHOULD BE GRANTED?

The SC has held in the case of Nicolai Szatraw, 48 Off. Gaz., 1st Sup. 243, that a petition for judicial declaration that petitioner's husband is presumed to be dead cannot be entertained because it is not authorized by law, and if such declaration cannot be made in a special proceedings similar to the present, much less can the court determine the status of petitioner as a widow since this matter must of necessity depend upon the fact of death of the husband. This the court can declare upon proper evidence, but not to decree that he is merely presumed to be dead.

The philosophy behind the ruling that such judicial pronouncement cannot be made in a proceeding of this nature is well expressed in the case above-cited. Thus, we there said that "A judicial pronouncement to that effect, even if final and executory, would still be a prima facie presumption only. It is still disputable. It is for that reason that it cannot be the subject of a judicial pronouncement or declaration, if it is the only question or matter involved in a case, or upon which a competent court has to pass .. It is, therefore, clear that a judicial declaration that a person is presumptively dead, because he had been unheard from in seven years, being a presumption juris tantum only, subject to contrary proof, cannot reach the stage of finality or become final."

GUE VS. REPUBLIC In 1957, Angelina L. Gue filed a petition in the CFI for the declaration of the presumption of death of her husband, William Gue.

Petitioner and her husband were married in 1944 in the City of Manila. Her husband, a Chinese citizen, left the Philippines for Shanghai on in 1946. Petitioner joined him there later that year. In January, 1949, the petitioner came back to the Philippines alone with her children, on which occasion her husband promised to follow her. However, William Gue did not return to the Philippines. From January, 1949, the petitioner had sent letters to her husband but never received any reply. Despite her efforts and diligence, she failed to locate him.

The trial court dismissed the petition on the ground that no right had been established by the petitioner upon which a judicial decree may be predicated.

WHETHER THE PETITION OF ANGELINA TO DECLARE HER HUSBAND PRESUMPTIVELY DEAD SHOULD BE GRANTED?

Angelina contends that under Article 390 of the New Civil Code, the Courts are now authorized to declare persons presumptively dead.

Reiterating the doctrine laid down in Nicolai Szatraw, it has been held that a petition for judicial declaration that petitioner's husband is presumed to be dead cannot be entertained because it is not authorized by law, and if such declaration cannot be made in a special proceedings similar to the present, much less can the court determine the status of petitioner as a widow since this matter must of necessity depend upon the fact of death of the husband. This the court can declare upon proper evidence, but not to decree that he is merely presumed to be dead.

A judicial pronouncement to that effect, even if final and executory, would still be a prima facie presumption only. It is still disputable. It is for that reason that it cannot be the subject of a judicial pronouncement or declaration, if it is the only question or matter involved in a case, or upon which a competent court has to pass. It is, therefore, clear that a judicial declaration that a person is presumptively dead, because he had been unheard from in seven years, being a presumption juris tantum only, subject to contrary proof, cannot reach the stage of finality or become final."


Civil Law Review: Void Marriages-Obligation of Spouses 15In the case of "Petition for the Presumption of Death of Nicolai Szatraw", 81 Phil., 461, a case similar to the present, the Supreme Court held that a judicial declaration that a person is presumptively dead, because he had been unheard from in seven years, being a presumption juris tantum only, subject to contrary proof cannot reach the state of finality or become final. Proof of actual death of the person presumed dead because he had been unheard from in seven years, would have to be made in another proceeding to have such particular fact finally determined.

ILLEGAL MARRIAGESLEGAL SEPARATION & DIVORCE: CONCEPT & HISTORICAL BACKGROUND

BENEDICTO VS. DELA RAMA

This is an action for divorce. The complaint was filed on the grounds of

abandonment and adultery. The answer charged the plaintiff with adultery. Judgment rendered granting the divorce. Defendant excepted to the judgment and moved for

new trial on the ground that the facts found were not justified by the evidence.

WHETHER THE COURTS OF FIRST INSTANCE NOW HAVE JURISDICTION OF DIVORCE CASES?

YES

Law 1, title 10 of the 4th partida defines divorce as follows:Divortium means separation and is the means by which the wife is separated from the husband and the husband from the wife on account of some impediment existing between them, when it is properly proved in court.

Law 2, title 10: Two forms of separation to which name of divorce may be given and two reason therefor: One is religion and the other is sin of fornication.

RELIGION FORNICATIONGround: any person who should desire to take holy orders

- Divorce must be made by order of the bishop or some other prelates of the holy church

Ground: spiritual Fornication or adultery

- Be brought before the judge of the holy church

In distinction from SEPARATION which results from other impediments, is that, although it separates those who were married, the marriage nevertheless subsists, and thus it is that neither of them can contract a second marriage at any time excepting in the case of a separation granted by reason of adultery in which the surviving spouse may remarry after the death of the other.

The partidas recognized adultery as a ground for divorce. According to the civil as well as canonical law in force here on August 13, 1898, the commission of that offense gave the injured party the right to a divorce. That provision of the substantive civil law was not repealed by the change in sovereignty. The complete separation under the American Government of church and state while it changed the tribunal in which this right should be enforced, could not affect the right itself. The jurisdiction formerly possessed by the ecclesiastical courts during the Spanish Regime is now vested in the Court of first Instance by virtue of Act No. 136.

Governor – General of the PI suspended titles 4 and 12 of the Civil Code shortly after the extension of the Civil Code to the Archipelago. The Law of Civil Marriage of 1870 was never extended to the PI with exceptions of Articles 44-78 which were promulgated in the archipelago in 1883. The canon law had no binding force outside of the church except as to such parts thereof as by the action of the civil authorities became part of the civil law of Spain. The decrees of the council of trent have the force of law in Spain and determine the requisites, form and solemnities for the celebration of canonical marriage. Although the Decretal Law allowed the ecclesiastical courts to continue taking cognizance of matrimonial and eleemosynary causes and of the canon laws and also jurisdiction over causes of divorce and annulment of marriage, this did not have the effect of making the


Civil Law Review: Void Marriages-Obligation of Spouses 16canons civil laws. It simply declared that the church might try the cases referred to according to its own laws in its own courts and that the State would enforce the decrees of the latter.

LEGAL SEPARATION & DIVORCE: AGREEMENT TO SEPARATE

ALANO VS. GAPUSAN

1. Redentor Albano charged Municipal Judge Gapusan with incompetence and ignorance of law for having prepared and notarized a document providing for the personal separation of husband and wife and the extrajudicial liquidation of their conjugal partnership

2. In the document, it was stipulated that if either spouse should commit adultery or concubinage, the other should refrain from filing an action against the other.

WHETHER THE SEPARATION AGREEMENT IS VALID?

NO

WHETHER GAPUSAN SHOULD BE CENSORED?

YES

There is no question that the covenants in the separation agreement are contrary to law, morals and good customs. Those stipulations undermine the institutions of marriage and the family.Marriage is not a mere contract but an inviolable social institution. The family is a basic social institution which public policy cherishes and protects. Marriage and family are the bases of human society throughout the civilized world. The Law considers as void any contract for personal separation between husband and wife and every extrajudicial agreement, during the marriage, for the dissolution of the conjugal partnership.

A notary should not facilitate the disintegration of a marriage and the family by encouraging the separation of the spouses and extrajudicially dissolving the conjugal partnership. Notaries were severely censured by the Court for notarizing documents which subvert the institutions of marriage and family.

IN RE ATTY. RUFILLO BUCENA

1. Spouses Gonzalo Baltazar and Luisa Sorongon executed an agreement wherein they agreed that in case anyone of them will remarry both parties offer no objection and waive all civil and criminal actions against them.

- purpose of the agreement was to allow each and every one of them to remarry without objection or reservation.

2. Respondent Notary Public notarized the agreement3. Respondent admitted that he notarized but in mitigation,

he asserted that the document was prepared by his clerk

WHETHER THE AGREEMENT IS VOID?

YES

There is no question that the agreement is contrary to law, morals and good customs. Marriage is an inviolable social institution, in the maintenance of which in its purity the public is deeply interested for it is the foundation of the family and of society, without which there could be neither civilization nor progress.

The contract purports to formulate an agreement between husband and wife to take unto himself a concubine and the wife to live in adulterous relations with another man without opposition from either one and what is more, it induces each party to commit bigamy. This is not only immoral but abets the commission of a crime. Judgment: Guilty of malpractice

LEGAL SEPARATION & DIVORCE: DIVORCE DECREED ABROAD

TENCHAVES VS. ESCANO

February 24, 1958 : Vicenta Escano exchanged marriage vows with Pastor Tenchavez before a Catholic chaplain, Lt. Moises Lavares.

The parents of Vicenta were surprised about the said matrimony and sought priestly advice from Fr. Reynes.

Fr. Reynes suggested a recelebration to validate what they believed an invalid marriage due to the lack of authority from the Archbishop or parish priest.

The recelebration did not take place because on February 26, 1948, Mamerto Escano (father of Vicenta) received a letter disclosing an amorous relationship between Pastor and Pacita Noel.

AS of June 1948, the newlyweds were already estranged. A Lawyer filed for a petition to annul Vicenta’s marriage.

However, she did not sign it. The case was dismissed without prejudiced because of her non-appearance at the hearing.

Vicenta left for the US. Aug 22, 1950, she filed a verified complaint for divorce in

Nevada on the ground of extreme cruelty, entirely mental in character.

IS TENCHAVEZ ENTITLED TO A DECREE OF LEGAL SEPARATION?

YES

The valid marriage between Pastor and Vicenta remained subsisting and undissolved under Philippine law, notwithstanding the decree of absolute divorce that the wife sought and obtained. At the time the divorce decree was issued, Vicenta Escaño, like her husband, was still a Filipino citizen. She was then subject to Philippine law, and Article 15 of the Civil Code of the Philippines (Rep. Act No. 386), already in force at the time, expressly provided: Laws relating to family rights and duties or to the status, condition and legal capacity of persons are binding upon the citizens of the Philippines, even though living abroad.

Civil Code of the Philippines, now in force, does not admit absolute divorce and does not even use that term, to further emphasize its restrictive policy on the matter, in contrast to the preceding legislation that admitted absolute divorce on grounds of adultery of the wife or concubinage of the husband (Act 2710).

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".

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


Civil Law Review: Void Marriages-Obligation of Spouses 17 Oct 21, 1950 : a decree of divorce was issued. In 1951, parents of Vicenta filed a petition with the

Archbishop of Cebu to annul their daughter’s marriage Sept 13 1954: Vicenta married an American in Nevada. July 30, 1955, Tenchavez initiated a complaint against

Vicenta’s parents asking for legal separation and one million pesos in damage.

Appealed judgment did not decree a legal separation but freed Tenchavez from supporting his wife and to acquire property to the exclusion of his wife.

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 .

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" (Revised Penal Code, Art. 333).

VAN DORN VS. ROMMILLO

Petitioner is a Filipino citizen; Private respondent is a US citizen.

They were married in Hongkong in 1972 and got divorced in 1982, in Nevada.

Petitioner got married also in Nevada to Theodore Van Dorn.

June 8, 1983: Private respondent filed a suit against petitioner stating that petitioner’s business in Ermita is conjugal property of the parties and asked that petitioner be ordered to render an accounting of that business and private respondent be declared with right to manage the conjugal property.

Petitioner moved to dismiss the case on the ground that the cause of action is barred by previous judgment in the divorce proceedings before the Nevada Court wherein respondent had acknowledged that he and petitioner had "no community property" as of June 11, 1982.

Court denied the Motion to Dismiss on the ground that the property involved is located in the Philippines so that the Divorce Decree has no bearing in the case.

WHAT IS THE EFFECT OF THE FOREIGN DIVORCE ON THE PARTIES?

It is true that owing to the nationality principle embodied in Article 15 of the Civil Code, only Philippine nationals are covered by the policy against absolute divorces the same being considered contrary to our concept of public policy and morality. However, aliens may obtain divorces abroad, which may be recognized in the Philippines, provided they are valid according to their national law.

In this case, the divorce in Nevada released private respondent from the marriage from the standards of American law, under which divorce dissolves the marriage .

The purpose and effect of a decree of divorce are to change the existing status or domestic relation of husband and wife and to free them both from the bond.

Pursuant to his national law, private respondent is no longer the husband of petitioner. He would have no standing to sue in the case below as petitioner's husband entitled to exercise control over conjugal assets. As he is bound by the Decision of his own country's Court, which validly exercised jurisdiction over him, and whose decision he does not repudiate, he is estopped by his own representation before said Court from asserting his right over the alleged conjugal property.

PILAPIL VS. SOMERA Sept 7, 1979 : Petitioner Pilapil, a Filipino citizen, married Geiling a german national in the Federal Republic in Germany

After 3 1/2 years, Geiling initiated a divorce proceeding against Piliapil in Germany. He claimed that there was failure of their marriage and that they had been living apart since April 1982.

Jan 23,1983: Pilapil filed an action for legal separation, support and separation of property

Jan 15, 1986: Schoneberg Local Court promulgated a decree of divorce.

June 27, 1986: Geiling filed two complaints before the City Fiscal of Manila alleging that while still married, Pilapil had an affair with a certain William Chia and with Jesus Chua.

Asst. Fiscal dismissed it, however, upon review; the city fiscal approved a resolution.

Two complaints for adultery were filed (docketed as Crim Case No. 87-52434 and 87-52435)

Sec of Justice directed the city fiscal to elevate the entire records to his office for review.

Crim case 87-52434 was suspended while the other case, the judge merely reset the arraignment.

Piliapil filed a motion to quash in Crim case 87-52435 on the ground of lack of jurisdiction which motion was denied

CAN THE ACTION FILED BY GEILING AFFECT PILAPIL?

NO

The law specifically provides that in prosecutions for adultery and concubinage the person who can legally file the complaint should be the offended spouse, and nobody else.The status of the complainant vis-a-vis the accused must be determined as of the time the complaint was filed.

In the present case, the fact that private respondent obtained a valid divorce in his country, the Federal Republic of Germany, is admitted. Said divorce and its legal effects may be recognized in the Philippines insofar as private respondent is concerned in view of the nationality principle in our civil law on the matter of status of persons.

Private respondent, being no longer the husband of petitioner, had no legal standing to commence the adultery case under the imposture that he was the offended spouse at the time he filed suit.

Since there would be no spousal relationship to speak of, the severance of the marital bond had the effect of dissociating the former spouses from each other; hence the actuations of one would not affect or cast obloquy on the other.


Civil Law Review: Void Marriages-Obligation of Spouses 18 Oct 27 1987: petitioner filed this special civil action on the

ground that the court is without jurisdiction "to try and decide the charge of adultery, which is a private offense that cannot be prosecuted de officio (sic), since the purported complainant, a foreigner, does not qualify as an offended spouse having obtained a final divorce decree under his national law prior to his filing the criminal complaint

LEGAL SEPARATION & DIVORCE: GROUNDS FOR LEGAL SEPARATION: SEXUAL INFIDELITY OR PERVERSION

GOITIA VS. CAMPOS-RUEDA

1. Eloisa Goitia and Jose Campos-Rueda were legally married in the city of Manila on January 7, 1915, and immediately thereafter established their residence at 115 Calle San Marcelino, where they lived together for about a month. During such time, Jose forced Eloisa to perform unchaste and lascivious acts on his genital organs. When Eloisa refused, she was physically-maltreated. On account of this, Eloisa returned to her parents’ home.

2. Thereafter, Eloisa filed an action against Jose for support outside of the conjugal domicile. From a judgment sustaining Jose’s demurrer upon the ground that the facts alleged in the complaint do not state a cause of action, followed by an order dismissing the case after Eloisa declined to amend, the latter appealed. The trial court gave credence to Jose’s theory that he cannot be compelled to support Eloisa, except in his own house, unless it be by virtue of a judicial decree granting her a divorce or separation from him.

WHETHER A JUDICIAL DECREE OF DIVORCE IS NECESSARY TO COMPEL THE HUSBAND TO SUPPORT THE WIFE OUTSIDE THE CONJUGAL DOMICILE.

NO

The doctrine that neither spouse can be compelled to support the other outside of the conjugal abode, unless it be by virtue of a final judgment granting the injured one a divorce or separation from the other, while it applies in the Spanish Peninsula, would not necessarily control in this jurisdiction for the reason that the substantive law is not in every particular the same here as it is in Spain. Articles 42 to 107 of the Civil Code in force in the Peninsula are not in force in the Philippine Islands. The law governing the duties and obligations of husband and wife in this country are articles 44 to 78 of the Law of Civil Marriage of 1870 . In Spain the complaining spouse has, under article 105 of the Civil Code, various causes for divorce, such as adultery on the part of the wife in every case and on the part of the husband when public scandal or disgrace of the wife results therefrom; personal violence actually inflicted or grave insults: violence exercised by the husband toward the wife in order to force her to change her religion; the proposal of the husband to prostitute his wife; the attempts of the husband or wife to corrupt their sons or to prostitute their daughters; the connivance in their corruption or prostitution; and the condemnation of a spouse to perpetual chains or hard labor, while in this jurisdiction the only ground for a divorce is adultery.

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 laws will not permit him to terminate it by his own wrongful acts in driving his wife to seek protection in the parental home. A judgment for separate maintenance is not due and payable either as damages or as a penalty; nor is it a debt in the strict legal sense of the term, but rather a judgment calling for the performance of a duty made specific by the mandate of the sovereign.

A husband cannot, by his own wrongful acts, relieve himself from the duty to support his wife imposed by law; and where a husband, by wrongful, illegal, and unbearable conduct, drives his wife from the domicile fixed by him, he cannot take advantage of her departure to abrogate the law applicable to the marital relation and repudiate his duties thereunder.

GANDIONCO VS. PENARANDA

1. Teresita Gandionco, the legal wife of Froilan Gandionco, filed with the Regional Trial Court of Misamis Oriental, a complaint against Froilan for legal separation, on the ground of concubinage, with a petition for support and payment of damages. Teresita also filed with the Municipal Trial Court, General Santos City, a complaint against petitioner for concubinage, which was docketed as a Criminal Case.

2. Thereafter, application for the provisional remedy of support pendente lite, pending a decision in the action for legal separation, was filed by Teresita in the civil case for legal separation. The trial court ruled in her favor.

WHETHER THE ACTION FOR LEGAL SEPARATION AND SUPPORT CAN SUBSIST INDEPENDENTLY OF THE CRIMINAL CASE FOR CONCUBINAGE

YES

In view of the amendment under the 1985 Rules on Criminal Procedure, a civil action for legal separation, based on concubinage, may proceed ahead of, or simultaneously with, a criminal action for concubinage, because said civil action is not one “to enforce the civil liability arising from the offense” even if both the civil and criminal actions arise from or are related to the same offense. Such civil action is one intended to obtain the right to live separately, with the legal consequences thereof, such as, the dissolution of the conjugal partnership of gains, custody of offsprings, support, and disqualification from inheriting from the innocent spouse, among others.

The case of JERUSALEM vs. Hon. Roberto Zurbano, Judge of CFI of Antique, et al., is not controlling. It applied paragraph C of Sec. 1, of then Rule 107 of the Rules


Civil Law Review: Void Marriages-Obligation of Spouses 193. Froilan filed a petition for certiorari, contending that the civil

action for legal separation and the incidents consequent thereto, such as, application for support pendente lite, should be suspended in view of the criminal case for concubinage filed against him by Teresita.

of Court, which reads:After a criminal action has been commenced, no civil action arising from the same offense can be prosecuted and the same shall be suspended, in whatever stage it may be found, until final judgment in the criminal proceeding has been rendered.

The governing rule is now Sec. 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) is specific that it refers to civil action 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.”

Moreover, 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. Hence, Froilan’s argument that his conviction for concubinage will have to be first secured before the action for legal separation can prosper or succeed, as the basis of the action for legal separation is his alleged offense of concubinage, is erroneous.

LEGAL SEPARATION & DIVORCE: GROUNDS FOR LEGAL SEPARATION: ATTEMPT ON THE LIFE OF THE OTHER SPOUSELEGAL SEPARATION & DIVORCE: WHEN MAY PETITION BE FILED

CONTRERAS VS. MACARAIG

1. Elena Contreras instituted an action for legal separation against her husband Cesar Macaraig. The complaint alleged that Cesar maintained a concubine, Lily Ann Alcala, in Singalong. Indications that Cesar was having an affair started as early as 1961 when the family driver informed Elena that her husband was living in Singalong with a lady who subsequently became pregnant with his child. However, Elena deferred confronting Cesar for fear of driving him away. It was only in 1963 when she decided to confront Cesar and asked him to stay with his legitimate family.

2. The complaint was dismissed by the Court upon the ground that the same was filed more than one year from and after the date on which she had become cognizant of the cause for legal separation. The Trial Court held, citing Art. 102 of the Civil Code, that at the time a wife acquired information, which can be reasonably relied upon as true, that her husband is living in concubinage with another woman, the one-year period should be deemed to have started even if the wife shall not then be in possession of proof sufficient to establish the concubinage before a court of law.

WHETHER THE PERIOD OF ONE YEAR PROVIDED FOR IN ARTICLE 102 OF THE CIVIL CODE SHOULD BE COUNTED, AS FAR AS THE INSTANT CASE IS CONCERNED FROM SEPTEMBER 1962 OR FROM DECEMBER 1963.

(UPSHOT: COMPUTING THE PERIOD OF ONE YEAR FROM THE FORMER DATE, IT IS CLEAR THAT PLAINTIFF’S COMPLAINT FILED ON DECEMBER 14, 1963 CAME A LITTLE TOO LATE, WHILE THE REVERSE WOULD BE TRUE IF SAID PERIOD IS DEEMED TO HAVE COMMENCED ONLY IN THE MONTH OF DECEMBER 1963.)

In the month of September 1962, whatever knowledge appellant had acquired regarding the infidelity of her husband, that is, of the fact that he was then living in Singalong with Lily Ann Alcala, was only through the information given to her by Avelino Lubos, driver of the family car. Much as such hearsay information had pained and anguished her, she apparently thought it best (and no reasonable person may justifiably blame her for it) not to go deeper into the matter herself because in all probability even up to that time, notwithstanding her husband’s obvious neglect of his entire family, appellant still cherished the hope - however forlorn - of his coming back home to them.

We are persuaded that, in the eyes of the law, the only time when appellant really became cognizant of the infidelity of her husband was in the early part of December 1963 when, quoting from the appealed decision, the following happened: In the early part of December, 1963, plaintiff, accompanied by her two children, Victoria and Alexander, and by Mrs. Leticia Lagronio went to talk to defendant at his place of work on España Extension in front of Quezon Institute. They repaired to Victoria Peak, a nearby restaurant, where plaintiff pleaded with defendant to give up Lily Ann Alcala and to return to the conjugal home, assuring him that she was willing to forgive him. Defendant informed plaintiff that he could no longer leave Lily Ann and refused to return to his legitimate family.

From all the foregoing We conclude that it was only on the occasion mentioned in the preceding paragraph when her husband admitted to her that he was living with and would no longer leave Lily Ann to return to his legitimate family that appellant must be deemed to be under obligation to decide whether to sue or not to sue for legal separation, and it was only then that the legal period of one year must be deemed to have commenced.

LAPUZ VS. EUFEMIO 1. On 18 August 1953, Carmen O. Lapuz Sy filed a petition for legal separation against Eufemio S. Eufemio, alleging, in the main, that they were married civilly on 21 September 1934 and canonically on 30 September 1934; that they had lived together as husband and wife continuously until

DOES THE DEATH OF THE PLAINTIFF BEFORE FINAL DECREE, IN AN ACTION FOR LEGAL SEPARATION, ABATE

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


Civil Law Review: Void Marriages-Obligation of Spouses 201943 when her husband abandoned her; and that she discovered her husband cohabiting with a Chinese woman named Go Hiok at 1319 Sisa Street, Manila, on or about March 1949. She prayed for the issuance of a decree of legal separation.

2. Eufemio counter-claimed for the declaration of nullity ab initio of his marriage with Carmen O. Lapuz Sy, on the ground of his prior and subsisting marriage, celebrated according to Chinese law and customs, with one Go Hiok, alias Ngo Hiok.

3. Before the trial could be completed Carmen O. Lapuz Sy died in a vehicular accident on 31 May 1969. Eufemio moved to dismiss the “petition for legal separation” 1 on two (2) grounds, namely: that the petition for legal separation was filed beyond the one-year period provided for in Article 102 of the Civil Code; and that the death of Carmen abated the action for legal separation. A dismissal order was issued over the objection of Macario Lapuz, the heir of Carmen (and petitioner herein) who sought to substitute her and to have the case prosecuted to final judgment.

THE ACTION? IF IT DOES, WILL ABATEMENT ALSO APPLY IF THE ACTION INVOLVES PROPERTY RIGHTS?

YES

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.

A further reason why an action for legal separation is abated by the death of the plaintiff, even if property rights are involved, is that these rights are mere effects of decree of separation, their source being the decree itself; without the decree such rights do not come into existence, so that before the finality of a decree, these claims are merely rights in expectation. If death supervenes during the pendency of the action, no decree can be forthcoming, death producing a more radical and definitive separation; and the expected consequential rights and claims would necessarily remain unborn.

MATUBIS VS. PRAXEDES

10 Jan 1943: Plaintiff Socorro Matubis and Defendant Zoila Praxedes were married in Iriga, Camarines Sur. Since they failed to agree on how to live as H & W, they agreed to live separately from May 30, 1944 up to the institution of the case. They entered into an agreement stating among other things that:

o Both relinquish their right over each other as H & W

o Both are free to get a mate without any interference from each other

o Neither can claim support from each other Jan 1955: Defendant began cohabiting with one Asuncion

Rebulado. They had a child Sept of same year. 24 April 1956: Plaintiff Socorro Matubis files a complaint

for Legal Separation and Change of Name vs husband defendant Zoilo Praxedes. She alleges abandonment and concubinage which he denies.

Lower Court: Dismissed the case on TWO grounds 1st: that the period to bring action has already elapsed because as per then Art 102 of the NCC: an action for legal separation cannot be filed except within one year from and after the date on which the plaintiff became cognizant of the cause AND within 5 years from and after the date when the cause occurred. Since Socorro Matubis became aware of the illegal cohabitation in Jan 1955 but filed a complaint only on April 24, 1056 MORE THAN ONE YEAR HAS LAPSED. 2nd: as per then Art 100 of the NCC, legal separation may be claimed only by the innocent spouse, provided there

WAS THE PETITION FILED ON TIME?

NO

While defendant's act of cohabiting with a woman other than his wife constituted concubinage, a ground for legal separation, nevertheless, the complaint should be dismissed, because it was not filed within one year from and after the date on which the plaintiff became cognizant of the cause and within five years from and after the date when such cause occurred (Art. 102, new Civil Code).

Court gave credence to the reasoning of the lower court. Further, the condonation and consent were express as evidenced by the agreement.

Complaint is dismissed. Both are still married to each other.


Civil Law Review: Void Marriages-Obligation of Spouses 21has been no condonation of or consent to the adultery or concubinage. IN THIS CASE, PLAINTIFF THOUGH INNOCENT, CONDONED / CONSENTED TO THE AFFAIR AS EVIDENCED BY THE AGREEMENT.

BUGAYONG VS. GINEZ

Benjamin Bugayong (a United States Navy Serviceman) and Leonila Ginez were married on August 27, 1949.

Benjamin Bugayong left for duty and while away, he and Leonila agreed that Leonila will stay with Benjamin’s sisters. She later left her in-laws home to live with her mother in Pangasinan and to study in a local college.

As early as June 1951, however, Benjamin began receiving letters his sister-in-law and from anonymous writers about his wife’s alleged acts of infidelity (i.e. that a certain Eliong kissed her etc…)

August of 1952: Benjamin went to Pangasinan and sought his wife. She came along with him. Both proceeded to the house of Pedryo Bugayong (a cousin of Benjamin) where they stayed for 2 nights and 1 day as H & W. When asked about her infidelity, Leonila never answered Benjamin’s inquiry. She merely packed up and left which HE TOOK AS CONFIRMATION OF HER ACTS OF INFIDELITY.

Nov 18, 1952: Benjamin filed a complaint for legal separation but such complaint was dismissed on the ff grounds:

1 – Cause of action is barred by the statute of limitations2 – The acts charged have been condoned by the plaintiff husband3 – The complaint failed to state a cause of action…

Benjamin questions such decision

WAS THE DISMISSAL PROPER?

YES

There was condonation on the part of Benjamin.

Art 100 of the NCC, legal separation may be claimed only by the innocent spouse, provided there has been no condonation of or consent to the adultery or concubinage. Condonation is the forgiveness of a marital offense constituting a ground for legal separation. The husband’s act of sleeping with his wife for 2 nights despite his alleged belief that she was unfaithful to him, amounts to a condonation of her previous and supposed adulterous act. The act of the latter in persuading her to come along with him, and the fact that she went with him and consented to be brought to the house of his cousin Pedro Bugayong and together, sleeping there as H & W, have no other meaning other than that a reconciliation took place…

Although no acts of infidelity might have been committed by the wife, the court agrees that the conduct of the husband, despite his belief that his wife was unfaithful, deprives him of any action for legal separation x x x because his conduct comes within the restriction of Art 100.

LEGAL SEPARATION & DIVORCE: EFFECT OF PUNGENCY OF THE PETITION: SUPPORT & CUSTODY PENDENTE LITE

YANGCO VS. ROHDE Couple is alleged to have entered in a MUTUAL AGREEMENT to be husband and wife in the presence of witnesses.

Victorina Obin now prays that she be declared the lawful wife of Luis R. Yangco. She also wants to be granted a divorce, an allowance for alimony, and attorney’s fees during the pendency of the suit.

Judge declared Victorina Obin as entitled to all conjugal rights (allowance pendent lite) despite absence of proof that a marriage existed

Previously, Yangco was ordered to pay his wife a monthly allowance of hp 250 Mexican pesos (from March 11 to August 1). Since he claims that he does not own property and that the judge did not require security from Victorina Obin, he now prays that Judge William Rohde of CFI Manila be declared as acting in excess of his jurisdiction.

SHOULD THE COURT GRANT ALIMONY TO VICTORINA?

NO

The court had jurisdiction tot ry the divorce suit but was without jurisdiction o grant alimony when the right to claim alimony had not accrued in accordance with the provisions of the Civil Code. The Code only grants the right to alimony to a WIFE. This status not appearing by final judgment, the court is without jurisdiction to make any order …

Further, the right of a wife to support depends upon her status as such, and where the existence of the status is put in issue by the pleading, it CANNOT be presumed to exist for the purpose of granting alimony.

LEGAL SEPARATION & DIVORCE: COOLING OFF PERIOD

DELA VINA VS. VILLAREAL

Respondent Narcisa Geopano filed for a complaint in the CFI of Iloilo vs husband Diego de la Viña Alleging that:

o She is a resident of Iloilo and that defendant was a resident of Negros Oriental

MAY A MARRIED WOMAN ACQUIRE RESIDENCE OR DOMICILE SEPARATE

If the wife can acquire residence when her husband consent or acquiesces, the court sees no reason why the law will not allow her to do so when, the husband unlawfully ejects her from the conjugal home in order that he may freely indulge in his illicit relations with another woman.


Civil Law Review: Void Marriages-Obligation of Spouses 22o She was Diego’s legitimate wife (married in

1888)o They have 9 childreno All property acquired was under the

administration of the defendanto Since 1913 up to the time of the complaint,

Diego had been committing acts of adultery with Ana Calod

o Because of such illicit relations, she was ejected by Diego from the conjugal home

o She had no means of support She now request for a partition of the conjugal property

and alimony pendente lite of Php 400 per month Diego de la Viña demurred that the court had no

jurisdiction to take cognizance of the case nor over the person of Narcisa.

Lower Court = granted preliminary injunction by Diego

FROM HER HUSBAND DURING THE EXISTENCE OF THE MARRIAGE?

YES

IN AN ACTION FOR DIVORCE BY THE WIFE, MAY THE WIFE OBTAIN A PRELIMINARY INJUNCTION RESTRAINING HUSBAND AND PROHIBITING HIM FROM ALIENATING OR ENCUMBERING ANY PART OF THE CONJUGAL PROPERTY DURING THE PENDENCY OF THE ACTION?

YES

The law making the husband the sole administrator of the property of the conjugal partnership is founded upon necessity and convenience as well as upon the presumption that, from the very nature of the relations between husband and wife.

ARANETA VS. CONCEPCION

Petitioner Luis Araneta filed for legal separation against his wife, reponsdent Emma Benitez Araneta on the ground of adultery. Emma thus filed an omnibus petition to secure custody of their 3 minor children, a monthly support of Php 5,000, return of her passport and to enjoin petitioner and his hirelings from harassing her. She also sought her share of the conjugal property.

Respondent judge Hon. Hermogenes Concepcion, granted the omnibus petition and granted custody + of the children to defendant, plus allowance of Php 2,300 for her and the children and PHp 2,000 attorney’s fees.

When petitioner asked that evidence first be allowed, judge refused stating that as per Art 103

Art 103: An action for legal separation shall in no case be tried before 6 months shall have elapsed since the filing of the petition.

Thus, the petitioner filed the present petition for certiorari against the order and for mandamus to compel the judge to require the parties to submit evidence BEFORE deciding on the petition.

SHOULD EVIDENCE BE ALLOWED?

YES

In this case MORE THAN 6 months have elapsed since the filing of the petition. Technically, evidence can now be presented.

The period of 6 months fixed in Art 103 is 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 passion against one another… Up to the last minute, the law encourages parties to exert efforts at preserving the family and the home from utter ruin.

SOMOSA-RAMOS VS. VAMENTA

June 18, 1971: Petitioner Lucy Somosa-Ramos filed for legal separation and concubinage against her husband. She also claims that an attempt against her life was made. She now seeks the issuance of a write of preliminary mandatory injunction to claim her paraphernal and exclusive property, which was then under the administration and management of respondent husband Clemente Ramos.

Respondent husband opposed to the hearing of the motion

MAY A PRELIMINARY INJUNCTION BE ALLOWED BEFORE THE LAPSE OF 6 MONTHS FROM THE FILING OF THE PETITIONER (FOR LEGAL SEPARATION)?

YES

Art 103 is not an absolute bar to the hearing of a motion for preliminary injunction prior to the expiration of the 6-month period.

While the court where the action is pending must let the parties alone in the meanwhile and while it is precluded from hearing the suit, the law remains cognizant of the need of the spouses to live separately from each other and manage their respective property AFTER the filing of the petition for legal separation.


Civil Law Review: Void Marriages-Obligation of Spouses 23based on Art 103 (Art 103: An action for legal separation shall in no case be tried before 6 months shall have elapsed since the filing of the petition.) He further manifested that the prospect of reconciliation of the spouses would become even more dim should the preliminary injunction be allowed.

The husband shall continue to manage the conjugal partnership property but if the court deems it proper, it may appoint anther 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.

LERMA VS. CA Petitioner Teodoro Lerma and Concepcion ere married on May 19, 1951. However on August 22, 1969, Petitioner husband filed a complaint for adultery against his wife and a certain Teodoro Ramirez.

Respondent wife filed for legal separation and separation of properties, custody of their children and support pendente lite for her and the children on Nov 18, 1969. Petitioner opposed, setting up adultery as defense.

Respondent judge granted Concepcion Diaz’s petition for support pendent lite to which the petitioner filed a petition for certiorari and prohibition with preliminary injunction on the ground that they were issued with grave abuse of discretion.

CFI: Convicted wife of adultery.CA: Dismissed petitioner’s petition for certiorari and prohibition with preliminary injunction

IS ADULTERY A GOOD DEFENSE AGAINST THE RESPONDENT’S CLAIM FOR SUPPORT PENDENT LITE?

YES

As per Art 100 of the Civil Code, legal separation may be claimed only by the innocent spouse, provided there has been no condonation of or consent to the adultery or concubinage (and) where both spouses are offenders, a legal separation cannot be claimed by either of them.

The right to separate support or maintenance, even from the conjugal partnership property, presupposes the existence of a justifiable cause for the spouse claiming such right to live separately. This is implicit in Article 104 of the Civil Code, which states that after the filing of the petition for legal separation the spouses shall be entitled to live separately from each other. A petition in bad faith, such as that filed by one who is himself or herself guilty of an act which constitutes a ground for legal separation at the instance of the other spouse, cannot be considered as within the intendment of the law granting separate support. In fact under Article 303 of the same Code the obligation to give support shall cease "when the recipient, be he a forced heir or not, has committed some act which gives rise to disinheritance;" and under Article 921 one of the causes for disinheriting a spouse is "when the spouse has given cause for legal separation." The loss of the substantive right to support in such a situation is incompatible with any claim for support pendente lite.

LEGAL SEPARATION & DIVORCE: DEFENSES: CONSENT

MATUBIS VS. PRAXEDES

The law specifically provides that legal separation may be claimed only by the innocent spouse, provided the latter has not condoned or consented to the adultery or concubinage committed by the other spouse (Art. 100, new Civil Code; and plaintiff (innocent spouse) having condoned and/or consented in writing to the concubinage committed by the defendant husband, she is now underserving of the court's sympathy (People vs. Schneckenburger, 73 Phil., 413).

PEOPLE VS. SANSANO

Ursula Sensano and Mariano Ventura (who were married on April 29, 1919 and had 1 child) where sentenced by CFI Ilocos Norte to 3 yrs, 6 mos and 21 days of prision correccional for the crime of adultery.

They appealed to the SC stating that the court erred in NOT holding that the offended husband CONSENTED to the adultery committed by his wife Ursula Sensano in that he refused to live with her after she extinguished her previous sentence for the SAME offense.

In the facts, it is alleged that shortly after the birth of their child, Mariano Ventura left his wife and remained in Cagayan for 3 years without writing or sending her support. Poor and illiterate, she struggled for a living and was taken in by Marcelo Ramos. Upon his return in 1924 (about after 4-5 years), he charged both with adultery. Both were sentenced to 4 months and 1 day of arresto mayor.

After completing her sentence, the accused left her paramour and begged for pardon but he refused to pardon her or to live with her. He said she could go where she

SHOULD THE SECOND CASE OF ADULTERY PROSPER?

NO

Apart from the fact that the husband in this case was assuming a mere pose when he signed the complaint as the “offended” spouse, the court has come to the conclusion that the evidence and his conduct warrant the inference that he consented to the adulterous relations existing between the accused. Therefore he is not authorized by law to institute the criminal proceeding.

The court did not accept the argument of the Atty-General that the 7 years of acquiescence on his part in the adultery of his wife is explained by his absence from the Philippine Islands during which the period it was impossible for him to take any action against the accused. There is no merit in the argument that it was impossible for the husband to take any action against the accused during the said 7 years.


Civil Law Review: Void Marriages-Obligation of Spouses 24wished and that he would have nothing more to do with her and she could so as she pleased. Abandoned for the second tim, she and her child went back to her coaccused Marcelo Ramos (in 1924) and they lived together ever since.

Mariano Ventura knew about this but did nothing to interfere with their relations. Mariano eventually left for Hawaii where he remained for 7 years completely abandoning his wife and child. When he returned to the Philippines, he presented a 2nd charge of adultery.

PEOPLE VS. SCHNECKENBERGER

Rodolfo Schneckenburger and Elena Ramirez Cartagena were married in March 16, 1926. But after 7 tears of marital life, they agreed to live separately for alleged incompatibility. They executed a document (in Spanish) with regard to such separation.

While still in the Philippines, Rodolfo secured a decree of divorce from the Civil Curt of Mexico on June 15, 1935. And on May 11, 1936, he contracted another marriage with Julie medel in the court of Rizal.

Because the divorce decree by the Mexico court was a nullity, complainant, Elena instituted 2 actions vs Roberto: one for bigamy in the CFI of Rizal and another for concubinage in the CFI of Manila. For bigamy Roberto was sentenced to 2 mos and 1 day of arresto mayor. On concubinage, he interposed the plea of double jeopardy and the case was dismissed. Upon appeal by the fiscal, the accused was convicted of “concubinage through reckless imprudence”. He was sentenced to 2 months and 1 day of arresto mayor.

IS THERE DOUBLE JEOPARDY?

NO

CAN RODOLFO BE CONVICTED OF BIGAMY AND CONCUBINAGE?

There is NO double jeopardy because bigamy and concubinage are different offenses. The celebration of the 2nd marriage while the 1st was still existing characterizes the crime of bigamy. On the other hand, mere cohabitation by the husband with a woman who is not his wife characterizes the crime of concubinage.

Bigamy is an offense against civil status which may be prosecuted at the instance of the state. Concubinage is an offense against chastity and may be prosecuted at the instance of the offended party.

Rodolfo can be convicted for bigamy but not concubinage. The document executed by and between the accused and complainant in which they agreed to be “en completa libertad de accion en cualquier acto y en todos conceptos” while ILLEGAL, constitutes A VALID CONSENT TO THE ACT OF CONCUBINAGE.

Note: Pardon = refers to offense AFTER its commissionConsent = refers to offense PRIOR to its commissions.

No logical difference can be perceived between prior and subsequent consent. The court holds that prior consent is as effective as subsequent consent to bar the offended party from prosecuting the offense.

LEGAL SEPARATION & DIVORCE: DEFENSES: CONDONATION

BUGAYONG VS. GINEZ

Granting that the infidelities amounting to adultery were committed by the wife, the act of the husband in persuading her to come along with him, and the fact that she went with him and together they slept as husband and wife, deprives him, as the alleged offended spouse, of any action for legal separation against the offending wife, because his said conduct comes within the restriction of Article 100 of the Civil Code.

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 (60 L.J. Prob. 73).

LEGAL SEPARATION & DIVORCE: DEFENSES: RECRIMINATION

BROWN VS. YAMBAO Recrimination = a retaliatory accusation,

July 14, 1955: William Brown filed suit in the CFI Manila to obtain legal separation from his wife Juanita Yambao. He alleged that his wife engaged n adulterous relations with Carlos Field while he was interned by Japanese invaders. She bore Carlos Field a baby girl.

He learned about his wife’s misconduct only in 1945 upon

CAN BROWN’S SUIT STILL PROSPER?

NO

In addition to the prohibition provided for in Art 100, the court also held that Brown’s action was already barred because he did not petition for legal separation until 10 years after he learned of his wife’s adultery. (he learned about this in 1945 but filed only in 1955).

Note: The policy of the Civil Code in calling for the intervention of state attorneys in case of uncontested proceedings for legal separation (and for annulment of marriages) is to emphasize that marriage is more than a mere contract; that it is a


Civil Law Review: Void Marriages-Obligation of Spouses 25his release.

After his release, the spouses lived separately, executed a document liquidating a conjugal partnership and assigned certain properties to the erring wife as her share. He also prayed for custody of their children and that she be declared disqualified to succeed him.

Upon Brown’s petition, Juanita was declared in default for failure to answer in due time, despite service of summons. Brown also directed City Fiscal Rafael Jose to investigate whether or not a collusion exists between the parties… Fiscal found out though that Brown ha lived martially with another woman and had begotten children by her. Court Thus DENIED the legal separation that he asked on the ground that, while the wife’s adultery was established, Brown also incurred misconduct similar in nature that barred his right of action under Art 100 which states that Art 100: the legal separation may be claimed only by the innocent spouse, provided there has been no condonation of or consent to the adultery or concubinage. Where both spouses are offenders, a legal separation cannot be claimed by either of them. Collusion between the parties to obtain legal separation shall cause the dismissal of the petition.

social institution in which the state is vitally interested so that its continuation or interruption cannot be made to depend upon the parties themselves.

LEGAL SEPARATION & DIVORCE: DEFENSES: COLLUSION

BROWN VS. YAMBAO Collusion in matrimonial cases is the act of married persons in procuring a divorce by mutual consent, whether by preconcerted commission by one of a matrimonial offense, or by failure, in pursuance of agreement, to defend divorce proceedings"

OCAMPO VS. FLORENCIANO

July 5, 1955: Jose de Ocampo filed an action for legal separation against his wife Serafina Florenciano on the ground of adultery. (they were married in 1938). Since she made no answer, Serafina was put in default and pursuant to the law, the court directed the provincial fiscal to investigate whether or not collusion existed. Fiscal decided that there was no collusion

Previous, plaintiff discovered in March of 1951 that his wife was maintaining illicit relations with Jose Arcalas. Thus he sent her to Manila in June 1951 to study beauty culture for a year. Again he discovered that Serafina was going out with other men aside from Jose Arcalas. Since then (since June 1952), they lived separately.

In June 18, 1955, he again discovered that Serafina was having illicit relations with another man, Nelson Orzame. Jose signified his intention to petition for legal separation and Serafina agreed provided that she is not charged with adultery.

CFI Nueva Ecija: dismissed Jose action for legal separation.

CA: Affirmed the CFI, holding that there was a confession of judgment plus condonation or consent

WAS THERE COLLUSION?

NO

Collusion in divorce or legal separation means the agreement between H & W for 1 of them to commit or to appear to commit or to be represented in court as having committed a matrimonial offense or to suppress evidence of a valid defense for the purpose of enabling a divorce.

In this case, there would be a collusion if the parties had arranged to make it appear that a matrimonial offense had been committed although it was not…

In this case,, the offense of adultery had really taken place, according to the evidence. The defendant could not have falsely told the adulterous acts to the Fiscal because her story might send her to jail the moment her husband requests the Fiscal to prosecute.

Thus, even if she “agreed” to Jose’s action for legal separation, the court did not consider this as collusion because the acts of adultery actually took place.

LEGAL SEPARATION & DIVORCE: DEFENSES: PRESCRIPTION

BROWN VS. YAMBAO Under the Article 102 of the New Civil Code, Action for legal separation cannot be filed except within one (1) year from and after the plaintiff became cognizant of the


Civil Law Review: Void Marriages-Obligation of Spouses 26cause and within five years from and after the date when such cause occurred.

LEGAL SEPARATION & DIVORCE: EFFECT OF DECREE

MATUTE VS. MACADAEG

Rosario Matute was found guilty of adultery in the legal separation action filed by her husband Armando Medel. The adulterous acts were committed by Rosario and her brothers-in-law.

Custody of her 4 minor children (then 12, 10, 8 & 4) were awarded to Armando. Thereafter, Armando went to the US leaving the children with his sister Pilar, in Davao. Rosario subsequently lived with her to be close to her children.

Armando consented to Rosario bringing the children to Manila (to attend the funeral of their maternal grandfather) on the condition that she return them within 2 weeks. Having failed to do so, she also filed a civil case praying that she be awarded custody of the children (already 16, 14, 12 & 8) and to order Armando Medel to give them support. She anchors her arguments on the ff:

o She is their legitimate mother and they wish to stay with her NOT their father

o 3 of the children are above 10 and hence, their wish must be heeded unless the parent so chosen is unfit

o The act of infidelity does not involve moral depravity

o Armando is now unfit to have the children under his care for he is living with another woman by the name of Paz Concepcion (whose marriage to him is void)

WHO SHOULD BE AWARDED CUSTODY?

ARMANDO

It is conceded that children over 10 years of age, whose parents are divorced or living separately, may choose which parent they prefer to live with. Unless the parent chosen is unfit to take charge of their chare by reason or moral depravity, habitual drunkenness, incapacity or poverty x x x (then Rule 100 Sec 6 of the ROC)

However, the fact remains that Rosario is without means of livelihood and according to her own admission, she lives on the charity of her brothers. She has no home of her own to offer to her children, but only she would shelter them under the roof of her brothers.

LEGAL SEPARATION & DIVORCE: USE OF SURNAME

LAPERAL VS. REPUBLIC

Elisea Laperal and husband, Enrique Santamaria, were granted a decree of legal separation. Elisa initiated in the CFI a special proceeding declaring that during her marriage to Enrique, she naturally used “Elisea L. Santamaria” and now petitions to change her name and/or be permitted to resume using her maiden name, Elisea Laperal. The City Attorney of Baguio opposed because it violates Art. 370 (should be 372), CC and it is not sanctioned by ROC.

The LC, treating the petition as “change of name” (Rule 103, ROC), denied the petition because Art. 372, CC requires the wife, even after she is decreed legally separated from her husband, to continue using the name and surname she employed before the legal separation. Upon reconsideration, the LC granted the petition because Elisea’s using a married name, being a businesswoman, would give rise to confusion in her finances and the eventual liquidation of the conjugal assets. Hence, this appeal by the State. The Republic contends that Art. 372, CC is mandatory even after legal separation has been decreed. This is so because her married status is unaffected by the separation, there being no severance of the vinculum. It seems to be the policy of the law that the wife should continue to use the name indicative of her unchanged status for the benefit of all concerned.

WHETHER RULE 103 MAY APPLY WHEN A WIFE WANTS TO REVERT BACK TO HER MAIDEN NAME AFTER THE FINALITY OF THE DECREE OF LEGAL SEPARATION?

NO

Even if Rule 103 is applied, the fact of legal separation alone (which is the only basis for the petition) is not sufficient ground to justify a change of the name because there would be an easy circumvention of the mandatory provisions of Art. 372.

While Elisea owns extensive business interests, the continued used of her husband surname may cause undue confusion in her finances and the eventual liquidation of the conjugal assets. These were not the causes upon which the petition was originally based and no evidence to this effect had been adduced. Also, with the issuance of the decree of legal separation in 1958, the conjugal partnership had automatically been dissolved and liquidated. Consequently, there could be no more occasion for an eventual liquidation of the conjugal assets.

WHEREFORE, the order of the LC, granting the petition, is hereby SET ASIDE and the petition dismissed.



RIGHTS & OBLIGATIONS OF SPOUSES: OBLIGATION TO LIVE TOGETHER

ATILANO VS. CHUA CHING BENG

Chua Ching Beng and Pilar Atilano were joined in lawful wedlock in Zamboanga in 1951. After marriage, the couple sailed for Mla. and established their residence with the parents of the husband. In Oct. 1951, at the husband’s initiative, they went to Zamboanga City to pay wife’s parents a visit, the parents convinced the husband to leave the wife behind, with the understanding that she would follow him later, which apparently she failed to do.

On Sep. 30, 1953, Pilar Atilano filed a complaint for support against her husband, alleging that they had been estranged and living separately since Oct. 1952 because of incessant marital bickerings because of incompatibility of temperament and Chua’s inability to provide for themselves a home separate from his parents. Chua answered that when they were still residing in Mla., their married life was characterized by harmony and understanding and it was only when she was left in Zamboanga that her parents alienated her from him. And when he came to fetch her, she was prevented by her parents by exerting undue pressure and influence. Among other things, Chua claims he had the right to fix the residence of his family, and he would even be willing to establish a conjugal dwelling in Mla. separate from that of his parents.

Meanwhile, Pilar filed a petition for alimony pendente lite baed on the same facts in her complaint. After finding Pilar’s aversion to stay was in-law troubles, and Chua cannot establish their home in Zamboanga because he worked in Mla., the CFI granted P75/mo. Chua filed a petition electing to fulfill his obligation by fixing his residence at Pasay City. As it was denied, Chua appealed to the CA, which transmitted the case to the SC.

WHETHER A WIFE IS ENTITLED TO RECEIVE SUPPORT FROM HER HUSBAND WHERE SHE REFUSED TO LIVE WITH HIM ON ACCOUNT OF SOME MISUNDERSTANDINGS SHE HAD WITH THE HUSBAND'S IMMEDIATE RELATIVES?

NO

Under Art. 299, CC, while physical ill-treatment may be a ground to compel a husband to provide for a separate maintenance for his wife it was not proved during the trial. Instead, the LC found that it was disagreements common among relatives by affinity. Misunderstanding with in-laws, who may be considered third parties to the marriage, is not the moral or legal obstacle that the lawmakers contemplated. Art. 110, CC, in giving the husband authority to fix the conjugal residence does not prohibit him from establishing the same at the patriarchal home, nor is it against any recognized norm of morality, especially if he is not fully capable of meeting his obligation as such head of a family without the aid of his elders. But even granting arguendo that it might be “illegal” for him to persist on living with his parents over the objection of his wife, this argument becomes moot because Chua was willing to establish a residence separate from his parents. Although the husband and the wife are obliged to live together, observe mutual respect and fidelity and render mutual help and assistance (Art. 109), and that the wife is entitled to be supported, the laws contain no provision compelling the wife to live with her husband where even without legal justification she establishes her residence apart from that provided for by the former, yet and in such event there is no plausible reason why she should be allowed any support from the husband.

Wherefore, the decision appealed from is hereby MODIFIED by giving Chua Ching Beng the option of supporting his wife at their conjugal dwelling apart from the home of the parents of the husband. Should Pilar Atilano refuse to abide by the terms of this decision, then Chua shall be considered relieved from the obligation of giving any support to his wife.

GOITA VS. CAMPOS RUEDA

Eloisa Goita and Jose Campos Rueda were legally married in 1915 and immediately thereafter established their residence and they lived together for 1 mo. when the wife returned to her parents’ home. As cited in her complaint for support outside the marital residence, she claims her husband demanded she perform unchaste and lascivious acts on his genital organs and when she refused, he maltreated her physically and verbally so she left.

WHETHER THE HUSBAND SHOULD SUPPORT THE WIFE WHEN HE MADE LEWD DEMANDS FROM HER AND WHEN SHE DECLINED, HE MALTREATED HER?

YES

The mere act of marriage creates an obligation on the part of the husband to support his wife. A judgment for separate maintenance is not due and payable either as damages or as a penalty; nor is it a debt in the strict legal sense of the term, but rather a judgment calling for the performance of a duty made specific by the mandate of the sovereign. This is done from necessity and with a view to preserve the public peace and the purity of the wife; as where the husband makes so base demands upon his wife and indulges in the habit of assaulting her. The pro tanto separation resulting from a decree for separate support is not an impeachment of that public policy by which marriage is regarded as so sacred and inviolable in its nature; it is merely a stronger policy overruling a weaker one; and except in so far only as such separation is tolerated as a means of preserving the public peace and morals may be considered, it does not in any respect whatever impair the marriage contract or for any purpose place the wife in the situation of a feme sole.

The foregoing are the grounds for order for judgment, heretofore filed in this case, REST. MORELAND: A husband cannot, by his own wrongful acts, relieve himself from the duty to support his wife imposed by law; and where a husband, by wrongful, illegal, and unbearable conduct, drives his wife from the domicile fixed by him, he cannot


Civil Law Review: Void Marriages-Obligation of Spouses 28take advantage of her departure to abrogate the law applicable to the marital relation and repudiate his duties thereunder. In law and for all purposes within its purview, the wife still remains an inmate of the conjugal domicile.

ARROYO VS. VASQUEZ DE ARROYO

Mariano Arroyo and Dolores Vazquez de Arroyo married in wedlock in 1910, and since then, with a few short intervals of separation, they lived together as man and wife in Iloilo until 1920, when the wife left their common home. After the husband’s efforts to resume marital relations, he went to court to compel her return to the matrimonial home and live with him as a dutiful wife. The wife averred by way of defense and cross-complaint that she left because of cruel treatment and prayed for affirmative relief: a decree of separation, liquidation of the conjugal partnership, and an allowance for counsel fees and permanent separate maintenance. The LC authorizing the wife to live separately from her husband, granting her alimony of P400/mo.

WHETHER THE HUSBAND CAN COMPEL THE WIFE TO LIVE WITH HIM?

NO

The SC found out that what the wife complained of were typical bickering between couples and that her leaving the domicile was unjustified, but nevertheless, the husband cannot compel her return. The husband’s remedy is a judicial declaration that his wife has absented herself without sufficient cause and that it is her duty to return.

Therefore, REVERSING the judgment appealed from, in respect both to the original complaint and the cross-bill, it is declared that Dolores Vazquez de Arroyo has absented herself from the marital home without sufficient cause; and she is admonished that it is her duty to return. Mariano Arroyo is absolved from the cross-complaint, without special pronouncement as to costs of either instance.

RAMIREZ-CUADERNO VS. CUADERNO

Lourdes Ramirez-Cuaderno and husband, Angel Cuaderno, had been living separately after the husband inflicted bodily injuries on the wife in the course of a quarrel between them. The husband took her to her mother’s house where the latter stayed until her claim for support. The wife claimed maltreatment and abandonment by the husband as basis therefor, whereas the husband, in resisting her demand for maintenance, contended that it was she who left the conjugal dwelling and, consequently, is not entitled thereto.

JDRC, in granting the wife's demand and ordering support of P150, sustained the theory that she was driven out of the dwelling or, at least prevented from returning thereto by reason of the husband’s maltreatment. The CA reversed because it believed the conditions were such that cohabitation between the spouses is not yet impossible.

WHETHER THE CA CAN ADMONISH THE SPOUSES FOR THEM TO LIVE TOGETHER?

NO

While marriage entitles both parties to cohabitation or consortium, the sanction therefore is the spontaneous, mutual affection between husband and wife and not any legal mandate or court order. The infliction of physical injuries on the wife, by the husband, gave rise to their separation. It is likewise shown it was the husband who took his wife to her parents’ home where he left her and was providing for separate maintenance. Considering that the wife has no income, while the husband has an employment, the sum of P150/mo. is reasonable. Especially when the separation has been brought about by the husband.

WHEREFORE, the decision of the CA is SET ASIDE and that of the JDRC is hereby revived.

RIGHTS & OBLIGATIONS OF SPOUSES: FAMILY DOMICILE FIXED JOINTLY

ABELLA VS. COMELEC

In the gubernatorial race in the province of Leyte, Mr. Larrazabal was originally the candidate of Lakas but was declared disqualified for lack of residence. On the day before the election, his wife filed her own cert. of candidacy to replace her husband in the running. A registered voter filed a petition for her disqualification for alleged false statements in her cert. of candidacy regarding her residence. This was immediately transmitted to the main office of COMELEC, which could not function, however, because all but one of its members had not yet been confirmed by the COA. A TRO was issued enjoining the provincial board of canvassers of Leyte from proclaiming her as the winning candidate for the Office of the Governor, in the event that she obtains the winning margin of votes in the canvass of election returns. Adelina Larrazabal obtained the highest number of votes in the election while Benjamin Abella obtained the 2nd highest number of votes.

WHETHER LARRAZABAL POSSESSES THE REQUIRED RESIDENCE QUALIFICATION FOR THE GUBERNATORIAL POSITION?

NO

For the purpose of running for public office, the residence requirement should be read as legal residence or domicile, not any place where a party may have properties and may visit from time to time. The CC is clear that for the exercise of civil rights and the fulfillment of civil obligations, the domicile of natural persons is the place of their habitual residence.

In the absence of any evidence to prove otherwise, the reliance on the provisions of the FC was proper and in consonance with human experience. The petitioner did not present evidence to show that she and her husband maintain separate residences. Husband and wife as a matter of principle live together in one legal residence which is their usual place of abode.

Animus revertendi means that mere absence from one's residence or origin-domicile-to pursue studies, engage in business, or practice his avocation, is not sufficient to constitute abandonment or loss of such residence. The determination of a person’s legal residence or domicile largely depends upon intention which may be



Since the challenges were merely formal and did not affect the validity of the returns or the ballots, the court ordered the proclamation of the winner after completion of the canvass; the disqualification case was also dismissed and the matter was referred to the Law Department for preliminary investigation for possible violation of Sec. 74, OEC.

The COMELEC lifted its TRO against her proclamation while the hearings in the disqualification case continued. The court subsequently rendered a decision disqualifying Larrazabal as governor. COMELEC then issued a resolution disallowing Abella's proclamation as governor.

Despite appeal and during its pendency, the incumbent Vice-Governor Leopoldo Petilla took his oath as Provincial Governor of Leyte and assumed the governorship pursuant to COMELEC resolution.

Larrazabal professes that the COMELEC completely disregarded the decision to proclaim her and instead of acting on preliminary investigation the COMELEC proceeded with a disqualification case not contemplated in the proclamation decision. The court eventually reversed the dismissal order of the disqualification case and ordered to continue the investigation of the Larrazabal’s challenged disqualification even after the election. COMELEC ruled that she lacks the required residence relying on the provisions of the FC.

She opines that under the Election Law, the matter of determination of the residence is more on the principle of intention, the animus revertendi. She maintained that she was a resident and a registered voter of Kananga instead of Ormoc evidenced by: 1) the cancellation of her registration in Ormoc City, and 2) the transfer of her registration to Kananga by registering thereat and 3) she later voted on election day in Kananga. Alternatively, she poses that her being a registered voter in Ormoc was no impediment to her candidacy for the position of governor of the province of Leyte.

inferred from his acts, activities and utterances. The party who claims that a person has abandoned or left his residence or origin must show and prove pre-ponderantly such abandonment or loss.

There is no evidence to prove that she temporarily left her residence in Kananga in 1975 to pursue any calling, profession or business. What is clear is that she established her residence in Ormoc City with her husband and considers herself a resident therein. The intention of animus revertendi not to abandon her residence in Kananga therefore is not present. The fact that she occasionally visits Kananga thru the years does not signify an intention to continue her residence therein.

The fact that the candidate who obtained the highest number of votes is later declared to be disqualified or not eligible for the office to which he was elected does not necessarily entitle the candidate who obtained the 2nd highest number of votes to be declared the winner of the elective office.


Documents

Abcen-Void Marriages-obligations of Spouses