Garcia v Recio - Jimenez v Canizares

8/11/2019 Garcia v Recio - Jimenez v Canizares

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(7) Interpretations given by the National Appellate Matrimonial Tribunal of the Catholic Churchin the Philippines, while not controlling or decisive, should be given great respect by ourcourts. 45

With the foregoing pronouncements as compass, we now resolve the issue of whether or not thetotality of evidence presented is enough to sustain a finding of psychological incapacity againstpetitioner Juanita and/or respondent Manuel.

A. RE: PSYCHOLOGICAL INCAPACITY OF RESPONDENT MANUEL

We reiterate that the state has a high stake in the preservation of marriage rooted in its recognition ofthe sanctity of married life and its mission to protect and strengthen the family as a basic autonomoussocial institution. 46 With this cardinal state policy in mind, we held in Republic v. Court of Appeals 47 thatthe burden of proof to show the nullity of marriage belongs to the plaintiff (respondent Manuel herein).Any doubt should be resolved in favor of the existence and continuation of the marriage and against itsdissolution and nullity.

In herein case, the Court of Appeals committed reversible error in holding that respondent Manuel ispsychologically incapacitated. The psychological report of Dr. Garcia, which is respondent Manuels ownevidence, contains candid admissions of petitioner Juanita, the person in the best position to gaugewhether or not her husband fulfilled the essential marital obligations of marriage:

She talked about her spouse, "My husband is kind, a good provider, cool, intelligent but a liar,masamang magalit at gastador. In spite of what he has done to me, I take care of him wheneverhe is sick. He is having extra marital affairs because he wants to have a child. I believe that ourbiggest problem is not having a child. It is his obsession to have a child with his girl now. Hestarted his relationship with this girl in 1994. I even saw them together in the car. I think that itwas the girl who encouraged him to file the petition." She feels that the problems in the

relationship is [sic] "paulit-ulit," but, that she still is willing to pursue it.

x x x. Overall, she feels that he is a good spouse and that he is not really psychologicallyincapacitated. He apparently told her, "You and Jeremy should give me a chance to have a newfamily." She answered and said, "Ikaw tinuruan mo akong to fight for my right. Ipaglalaban koang marriage natin." 48

What emerges from the psychological report of Dr. Garcia as well as from the testimonies of the partiesand their witnesses is that the only essential marital obligation which respondent Manuel was not ableto fulfill, if any, is the obligation of fidelity. 49 Sexual infidelity, per se, however, does not constitutepsychological incapacity within the contemplation of the Family Code. 50 It must be shown that

respondent Manuels unf aithfulness is a manifestation of a disordered personality which makes himcompletely unable to discharge the essential obligations of the marital state 51 and not merely due to hisardent wish to have a child of his own flesh and blood. In herein case, respondent Manuel has admittedthat: "I had [extra-marital] affairs because I wanted to have a child at that particular point." 52

B. RE: PSYCHOLOGICAL INCAPACITY OF PETITIONER JUANITA


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As aforementioned, the presumption is always in favor of the validity of marriage. Semper praesumiturpro matrimonio. In the case at bar, respondent Manuel failed to prove that his wifes lack of respect forhim, her jealousies and obsession with cleanliness, her outbursts and her controlling nature (especiallywith respect to his salary), and her inability to endear herself to his parents are grave psychologicalmaladies that paralyze her from complying with the essential obligations of marriage. Neither is thereany showing that these "defects" were already present at the inception of the marriage or that they areincurable. 53 In fact, Dr. Maaba, whose expertise as a psychiatrist was admitted by respondent Manuel,reported that petitioner was psychologically capacitated to comply with the basic and essentialobligations of marriage. 54

The psychological report of respondent Manuels witness, Dr. Garcia, on the other hand, does not helphis case any. Nothing in there supports the doctors conclusion that petitioner Juanita is psychologicallyincapacitated. On the contrary, the rep ort clearly shows that the root cause of petitioner Juanitasbehavior is traceable not from the inception of their marriage as required by law but from herexperiences during the marriage, e.g., her in- laws disapproval of her as they wanted their son to enterthe priesthood, 55 her husbands philandering, admitted no less by him, 56 and her inability toconceive. 57 Dr. Garcias report paints a story of a husband and wife who grew professionally during themarriage, who pursued their individual dreams to the hilt, becoming busier and busier, ultimatelysacrificing intimacy and togetherness as a couple. This was confirmed by respondent Manuel himselfduring his direct examination. 58

Thus, from the totality of the evidence adduced by both parties, we have been allowed a window intothe Siayngcoss life and have perceived therefrom a simple case of a married couple drifting apart,becoming strangers to each other, with the husband consequently falling out of love and wanting a wayout.

An unsatisfactory marriage, however, is not a null and void marriage. Mere showing of "irreconcilabledifferences" and "conflicting personalities" in no wise constitutes psychological incapacity. 59 As we

stated in Marcos v. Marcos:60

Article 36 of the Family Code, we stress, is not to be confused with a divorce law that cuts themarital bond at the time the causes therefore manifests themselves. It refers to a seriouspsychological illness afflicting a party even before the celebration of the marriage. It is a maladyso grave and so permanent as to deprive one of awareness of the duties and responsibilities ofthe matrimonial bond one is about to assume.

We are not downplaying the frustration and misery respondent Manuel might be experiencingin being shackled, so to speak, to a marriage that is no longer working. Regrettably, there aresituations like this one, where neither law nor society can provide the specific answers to everyindividual problem. 61

WHEREFORE, the petition for review is hereby GRANTED. The Decision dated 01 July 2003 of the Courtof Appeals is hereby REVERSED and SET ASIDE. The Decision dated 31 January 2001 of the Regional TrialCourt of Quezon City, Branch 102 is reinstated and given full force and effect. No costs.

SO ORDERED.


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Republic of the PhilippinesSUPREME COURT

Manila

SECOND DIVISION

G.R. No. 119190 January 16, 1997

CHI MING TSOI,petitioner,vs.COURT OF APPEALS and GINA LAO-TSOI,respondents.

TORRES, JR., J.:

Man has not invented a reliable compass by which to steer a marriage in its journey over troubledwaters. Laws are seemingly inadequate. Over time, much reliance has been placed in the works of theunseen hand of Him who created all things.

Who is to blame when a marriage fails?

This case was originally commenced by a distraught wife against her uncaring husband in the RegionalTrial Court of Quezon City (Branch 89) which decreed the annulment of the marriage on the ground ofpsychological incapacity. Petitioner appealed the decision of the trial court to respondent Court ofAppeals (CA-G.R. CV No. 42758) which affirmed the Trial Court's decision November 29, 1994 and

correspondingly denied the motion for reconsideration in a resolution dated February 14, 1995.

The statement of the case and of the facts made by the trial court and reproduced by the Court ofAppeals 1 its decision are as follows:

From the evidence adduced, the following acts were preponderantly established:

Sometime on May 22, 1988, the plaintiff married the defendant at the Manila Cathedral, . . .Intramuros Manila, as evidenced by their Marriage Contract. (Exh. "A")

After the celebration of their marriage and wedding reception at the South Villa, Makati, they

went and proceeded to the house of defendant's mother.

There, they slept together on the same bed in the same room for the first night of their marriedlife.

It is the version of the plaintiff, that contrary to her expectations, that as newlyweds they weresupposed to enjoy making love, or having sexual intercourse, with each other, the defendant just went to bed, slept on one side thereof, then turned his back and went to sleep . There was


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no sexual intercourse between them during the first night. The same thing happened on thesecond, third and fourth nights.

In an effort to have their honeymoon in a private place where they can enjoy together duringtheir first week as husband and wife, they went to Baguio City. But, they did so together withher mother, an uncle, his mother and his nephew. They were all invited by the defendant to jointhem. [T]hey stayed in Baguio City for four (4) days. But, during this period, there was no sexualintercourse between them, since the defendant avoided her by taking a long walk during siestatime or by just sleeping on a rocking chair located at the living room. They slept together in thesame room and on the same bed since May 22, 1988 until March 15, 1989. But during thisperiod, there was no attempt of sexual intercourse between them. [S]he claims, that she didnot: even see her husband's private parts nor did he see hers.

Because of this, they submitted themselves for medical examinations to Dr. Eufemio Macalalag,a urologist at the Chinese General Hospital, on January 20, 1989.

The results of their physical examinations were that she is healthy, normal and still a virgin,while that of her husband's examination was kept confidential up to this time. While nomedicine was prescribed for her, the doctor prescribed medications for her husband which wasalso kept confidential. No treatment was given to her. For her husband, he was asked by thedoctor to return but he never did.

The plaintiff claims, that the defendant is impotent, a closet homosexual as he did not show hispenis. She said, that she had observed the defendant using an eyebrow pencil and sometimesthe cleansing cream of his mother. And that, according to her, the defendant married her, aFilipino citizen, to acquire or maintain his residency status here in the country and to publiclymaintain the appearance of a normal man.

The plaintiff is not willing to reconcile with her husband.

On the other hand, it is the claim of the defendant that if their marriage shall be annulled byreason of psychological incapacity, the fault lies with his wife.

But, he said that he does not want his marriage with his wife annulled for several reasons, viz:(1) that he loves her very much; (2) that he has no defect on his part and he is physically andpsychologically capable; and, (3) since the relationship is still very young and if there is anydifferences between the two of them, it can still be reconciled and that, according to him, ifeither one of them has some incapabilities, there is no certainty that this will not be cured. Hefurther claims, that if there is any defect, it can be cured by the intervention of medical

technology or science.

The defendant admitted that since their marriage on May 22, 1988, until their separation onMarch 15, 1989, there was no sexual contact between them. But, the reason for this, accordingto the defendant, was that everytime he wants to have sexual intercourse with his wife, shealways avoided him and whenever he caresses her private parts, she always removed his hands.The defendant claims, that he forced his wife to have sex with him only once but he did notcontinue because she was shaking and she did not like it. So he stopped.


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There are two (2) reasons, according to the defendant , why the plaintiff filed this case againsthim, and these are: (1) that she is afraid that she will be forced to return the pieces of jewelry ofhis mother, and, (2) that her husband, the defendant, will consummate their marriage.

The defendant insisted that their marriage will remain valid because they are still very youngand there is still a chance to overcome their differences.

The defendant submitted himself to a physical examination. His penis was examined by Dr.Sergio Alteza, Jr., for the purpose of finding out whether he is impotent . As a result thereof, Dr.Alteza submitted his Doctor's Medical Report. (Exh. "2"). It is stated there, that there is noevidence of impotency (Exh. "2-B"), and he is capable of erection. (Exh. "2-C")

The doctor said, that he asked the defendant to masturbate to find out whether or not he hasan erection and he found out that from the original size of two (2) inches, or five (5)centimeters, the penis of the defendant lengthened by one (1) inch and one centimeter. Dr.Alteza said, that the defendant had only a soft erection which is why his penis is not in its fulllength. But, still is capable of further erection, in that with his soft erection, the defendant iscapable of having sexual intercourse with a woman.

In open Court, the Trial Prosecutor manifested that there is no collusion between the partiesand that the evidence is not fabricated." 2

After trial, the court rendered judgment, the dispositive portion of which reads:

ACCORDINGLY, judgment is hereby rendered declaring as VOID the marriage entered into by theplaintiff with the defendant on May 22, 1988 at the Manila Cathedral, Basilica of the ImmaculateConception, Intramuros, Manila, before the Rt. Rev. Msgr. Melencio de Vera. Without costs. Leta copy of this decision be furnished the Local Civil Registrar of Quezon City. Let another copy be

furnished the Local Civil Registrar of Manila.

SO ORDERED.

On appeal, the Court of Appeals affirmed the trial court's decision.

Hence, the instant petition.

Petitioner alleges that the respondent Court of Appeals erred:

I

in affirming the conclusions of the lower court that there was no sexual intercourse between theparties without making any findings of fact.

II

in holding that the refusal of private respondent to have sexual communion with petitioner is apsychological incapacity inasmuch as proof thereof is totally absent.


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III

in holding that the alleged refusal of both the petitioner and the private respondent to have sexwith each other constitutes psychological incapacity of both.

IV

in affirming the annulment of the marriage between the parties decreed by the lower courtwithout fully satisfying itself that there was no collusion between them.

We find the petition to be bereft of merit.

Petitioner contends that being the plaintiff in Civil Case No. Q-89-3141, private respondent has theburden of proving the allegations in her complaint; that since there was no independent evidence toprove the alleged non-coitus between the parties, there remains no other basis for the court'sconclusion except the admission of petitioner; that public policy should aid acts intended to validatemarriage and should retard acts intended to invalidate them; that the conclusion drawn by the trialcourt on the admissions and confessions of the parties in their pleadings and in the course of the trial ismisplaced since it could have been a product of collusion; and that in actions for annulment of marriage,the material facts alleged in the complaint shall always be proved. 3

Section 1, Rule 19 of the Rules of Court reads:

Section 1. Judgment on the pleadings. Where an answer fails to tender an issue, or otherwiseadmits the material allegations of the adverse party's pleading, the court may, on motion of thatparty, direct judgment on such pleading. But in actions for annulment of marriage or for legalseparation the material facts alleged in the complaint shall always be proved.

The foregoing provision pertains to a judgment on the pleadings. What said provision seeks to prevent isannulment of marriage without trial. The assailed decision was not based on such a judgment on thepleadings. When private respondent testified under oath before the trial court and was cross-examinedby oath before the trial court and was cross-examined by the adverse party, she thereby presentedevidence in form of a testimony. After such evidence was presented, it be came incumbent uponpetitioner to present his side. He admitted that since their marriage on May 22, 1988, until theirseparation on March 15, 1989, there was no sexual intercourse between them.

To prevent collusion between the parties is the reason why, as stated by the petitioner, the Civil Codeprovides that no judgment annulling a marriage shall be promulgated upon a stipulation of facts or byconfession of judgment (Arts. 88 and 101[par. 2]) and the Rules of Court prohibit such annulment

without trial (Sec. 1, Rule 19).

The case has reached this Court because petitioner does not want their marriage to be annulled. Thisonly shows that there is no collusion between the parties. When petitioner admitted that he and hiswife (private respondent) have never had sexual contact with each other, he must have been only tellingthe truth. We are reproducing the relevant portion of the challenged resolution denying petitioner'sMotion for Reconsideration, penned with magisterial lucidity by Associate Justice Minerva Gonzaga-Reyes, viz:


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The judgment of the trial court which was affirmed by this Court is not based on a stipulation offacts. The issue of whether or not the appellant is psychologically incapacitated to discharge abasic marital obligation was resolved upon a review of both the documentary and testimonialevidence on record. Appellant admitted that he did not have sexual relations with his wife afteralmost ten months of cohabitation, and it appears that he is not suffering from any physicaldisability. Such abnormal reluctance or unwillingness to consummate his marriage is stronglyindicative of a serious personality disorder which to the mind of this Court clearly demonstratesan 'utter insensitivity or inability to give meaning and significance to the marriage' within themeaning of Article 36 of the Family Code (See Santos vs. Court of Appeals, G.R. No. 112019,January 4, 1995). 4

Petitioner further contends that respondent court erred in holding that the alleged refusal of both thepetitioner and the private respondent to have sex with each other constitutes psychological incapacityof both. He points out as error the failure of the trial court to make "a categorical finding about thealleged psychological incapacity and an in-depth analysis of the reasons for such refusal which may notbe necessarily due to physchological disorders" because there might have been other reasons, i .e .,physical disorders, such as aches, pains or other discomforts, why private respondent would not wantto have sexual intercourse from May 22, 1988 to March 15, 1989, in a short span of 10 months.

First, it must be stated that neither the trial court nor the respondent court made a finding on whobetween petitioner and private respondent refuses to have sexual contact with the other. The factremains, however, that there has never been coitus between them. At any rate, since the action todeclare the marriage void may be filed by either party, i .e ., even the psychologically incapacitated, thequestion of who refuses to have sex with the other becomes immaterial.

Petitioner claims that there is no independent evidence on record to show that any of the parties issuffering from phychological incapacity. Petitioner also claims that he wanted to have sex with privaterespondent; that the reason for private respondent's refusal may not be psychological but physical

disorder as stated above.

We do not agree. Assuming it to be so, petitioner could have discussed with private respondent or askedher what is ailing her, and why she balks and avoids him everytime he wanted to have sexual intercoursewith her. He never did. At least, there is nothing in the record to show that he had tried to find out ordiscover what the problem with his wife could be. What he presented in evidence is his doctor's MedicalReport that there is no evidence of his impotency and he is capable of erection. 5 Since it is petitioner'sclaim that the reason is not psychological but perhaps physical disorder on the part of privaterespondent, it became incumbent upon him to prove such a claim.

If a spouse, although physically capable but simply refuses to perform his or her essentialmarriage obligations, and the refusal is senseless and constant, Catholic marriage tribunalsattribute the causes to psychological incapacity than to stubborn refusal. Senseless andprotracted refusal is equivalent to psychological incapacity. Thus, the prolonged refusal of aspouse to have sexual intercourse with his or her spouse is considered a sign of psychologicalincapacity. 6

Evidently, one of the essential marital obligations under the Family Code is "To procreate children basedon the universal principle that procreation of children through sexual cooperation is the basic end ofmarriage." Constant non- fulfillment of this obligation will finally destroy the integrity or wholeness of


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the marriage. In the case at bar, the senseless and protracted refusal of one of the parties to fulfill theabove marital obligation is equivalent to psychological incapacity.

As aptly stated by the respondent court,

An examination of the evidence convinces Us that the husband's plea that the wife did not wantcarnal intercourse with him does not inspire belief. Since he was not physically impotent, but herefrained from sexual intercourse during the entire time (from May 22, 1988 to March 15, 1989)that he occupied the same bed with his wife, purely out of symphaty for her feelings, hedeserves to be doubted for not having asserted his right seven though she balked (Tompkins vs.Tompkins, 111 Atl. 599, cited in I Paras, Civil Code, at p. 330). Besides, if it were true that it is thewife was suffering from incapacity, the fact that defendant did not go to court and seek thedeclaration of nullity weakens his claim. This case was instituted by the wife whose normalexpectations of her marriage were frustrated by her husband's inadequacy. Considering theinnate modesty of the Filipino woman, it is hard to believe that she would expose her private lifeto public scrutiny and fabricate testimony against her husband if it were not necessary to puther life in order and put to rest her marital status.

We are not impressed by defendant's claim that what the evidence proved is the unwillingnessor lack of intention to perform the sexual act, which is not phychological incapacity, and whichcan be achieved "through proper motivation." After almost ten months of cohabitation, theadmission that the husband is reluctant or unwilling to perform the sexual act with his wifewhom he professes to love very dearly, and who has not posed any insurmountable resistanceto his alleged approaches, is indicative of a hopeless situation, and of a serious personalitydisorder that constitutes psychological incapacity to discharge the basic marital covenantswithin the contemplation of the Family Code. 7

While the law provides that the husband and the wife are obliged to live together, observe mutual love,

respect and fidelity (Art. 68, Family Code), the sanction therefor is actually the "spontaneous, mutualaffection between husband and wife and not any legal mandate or court order" (Cuaderno vs. Cuaderno120 Phil. 1298). Love is useless unless it is shared with another. Indeed, no man is an island, the cruelestact of a partner in marriage is to say "I could not have cared less." This is so because an ungiven self is anunfulfilled self. The egoist has nothing but himself. In the natural order, it is sexual intimacy which bringsspouses wholeness and oneness. Sexual intimacy is a gift and a participation in the mystery of creation.It is a function which enlivens the hope of procreation and ensures the continuation of family relations.

It appears that there is absence of empathy between petitioner and private respondent. That is ashared feeling which between husband and wife must be experienced not only by having spontaneoussexual intimacy but a deep sense of spiritual communion. Marital union is a two-way process. Anexpressive interest in each other's feelings at a time it is needed by the other can go a long way indeepening the marital relationship. Marriage is definitely not for children but for two consenting adultswho view the relationship with love amor gignit amorem , respect, sacrifice and a continuingcommitment to compromise, conscious of its value as a sublime social institution.

This Court, finding the gravity of the failed relationship in which the parties found themselves trapped inits mire of unfulfilled vows and unconsummated marital obligations, can do no less but sustain thestudied judgment of respondent appellate court.


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IN VIEW OF THE FOREGOING PREMISES , the assailed decision of the Court of Appeals dated November29, 1994 is hereby AFFIRMED in all respects and the petition is hereby DENIED for lack of merit.


Manila

THIRD DIVISION

G.R. No. 167109 February 6, 2007

FELICITAS AMOR-CATALAN,Petitioner,vs.COURT OF APPEALS, MANILA, ORLANDO B. CATALAN and MEROPE E. BRAGANZA, Respondents.

D E C I S I O N

YNARES-SANTIAGO, J.:

This petition for review assails the Decision 1 of the Court of Appeals in CA-G.R. CV No. 69875 datedAugust 6, 2004, which reversed the Decisio n 2 of the Regional Trial Court (RTC) of Dagupan City, Branch44, in Civil Case No. D-10636, declaring the marriage between respondents Orlando B. Catalan andMerope E. Braganza void on the ground of bigamy, as well as the Resolution 3 dated January 27, 2005,which denied the motion for reconsideration.

Petitioner Felicitas Amor-Catalan married respondent Orlando on June 4, 1950 in Mabini,Pangasinan .4Thereafter, they migrated to the United States of America and allegedly becamenaturalized citizens thereof. After 38 years of marriage, Felicitas and Orlando divorced in April 1988 .5

Two months after the divorce, or on June 16, 1988, Orlando married respondent Merope in Calasiao,Pangasinan .6 Contending that said marriage was bigamous since Merope had a prior subsisting marriagewith Eusebio Bristol, petitioner filed a petition for declaration of nullity of marriage with damages in theRTC of Dagupan Cit y7 against Orlando and Merope.

Respondents filed a motion to dismis s8 on the ground of lack of cause of action as petitioner wasallegedly not a real party-in-interest, but it was denied .9 Trial on the merits ensued.

On October 10, 2000, the RTC rendered judgment in favor of the petitioner, the dispositive portion ofwhich reads:

WHEREFORE, judgment is declared in favor of plaintiff Felicitas Amor Catalan and against defendantsOrlando B. Catalan and Merope E. Braganza, as follows:

1) The subsequent marriage of Merope Braganza with Orlando B. Catalan is declared null andvoid ab initio ;
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2) The defendants are ordered jointly and severally to pay plaintiff by way of moral damages theamount of P300,000.00, exemplary damages in the amount of P200,000.00 and attorneys feesin the amount of P50,000.00, including costs of this suit; and

3) The donation in consideration of marriage is ordered revoked and the property donated isordered awarded to the heirs of Juliana Braganza.

Furnish copies of this Decision to Atty. Napoleon B. Arenas, Jr. and Atty. Nolan Evangelista.

SO ORDERED.10

Respondents appealed the decision to the Court of Appeals, which reversed the decision of the RTC,thus:

WHEREFORE, premises considered, we hereby GRANT the appeal and consequently REVERSE and SETASIDE the appealed decision. We likewise DISMISS Civil Case No. D-10636, RTC, Branch 44, Dagupan City.No costs.

SO ORDERED.11

After the motion for reconsideration was denied, petitioner filed the instant petition for review raisingthe following issues:

I.

WHETHER PETITIONER HAS THE REQUIRED STANDING IN COURT TO QUESTION THE NULLITY OF THEMARRIAGE BETWEEN RESPONDENTS;

II.

WHETHER THE FAILURE OF THE COURT OF APPEALS TO DECLARE THE QUESTIONED MARRIAGE VOIDCONSTITUTES REVERSIBLE ERROR.12

Petitioner contends that the bigamous marriage of the respondents, which brought embarrassment toher and her children, confers upon her an interest to seek judicial remedy to address her grievances andto protect her family from further embarrassment and humiliation. She claims that the Court of Appealscommitted reversible error in not declaring the marriage void despite overwhelming evidence and thestate policy discouraging illegal and immoral marriages .13

The main issue to be resolved is whether petitioner has the personality to file a petition for thedeclaration of nullity of marriage of the respondents on the ground of bigamy. However, this issue maynot be resolved without first determining the corollary factual issues of whether the petitioner andrespondent Orlando had indeed become naturalized American citizens and whether they had actuallybeen judicially granted a divorce decree.

While it is a settled rule that the Court is not a trier of facts and does not normally undertake the re-examination of the evidence presented by the contending parties during the trial of the case ,14 there
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are, however, exceptions to this rule, like when the findings of facts of the RTC and the Court of Appealsare conflicting, or when the findings are conclusions without citation of specific evidence on which theyare based .15

Both the RTC and the Court of Appeals found that petitioner and respondent Orlando were naturalizedAmerican citizens and that they obtained a divorce decree in April 1988. However, after a careful reviewof the records, we note that other than the allegations in the complaint and the testimony during thetrial, the records are bereft of competent evidence to prove their naturalization and divorce.

The Court of Appeals therefore had no basis when it held:

In light of the allegations of Felicitas complaint and the documentary and testimonial evidence shepresented, we deem it undisputed that Orlando and Felicitas are American citizens and had thiscitizenship status when they secured their divorce decree in April 1988. We are not therefore dealing inthis case with Filipino citizens whose marital status is governed by the Family Code and our Civil Code,but with American citizens who secured their divorce in the U.S. and who are considered by theirnational law to be free to contract another marriage. x x x16

Further, the Court of Appeals mistakenly considered the failure of the petitioner to refute or contest theallegation in respondents brief, that she and respondent Orlando were American citizens at the timethey secured their divorce in April 1988, as sufficient to establish the fact of naturalization anddivorce .17 We note that it was the petitioner who alleged in her complaint that they acquired Americancitizenship and that respondent Orlando obtained a judicial divorce decree .18 It is settled rule that onewho alleges a fact has the burden of proving it and mere allegation is not evidence .19

Divorce means the legal dissolution of a lawful union for a cause arising after marriage. But divorces areof different types. The two basic ones are (1) absolute divorce or a vinculo matrimonii and (2) limiteddivorce or a mensa et thoro . The first kind terminates the marriage, while the second suspends it and

leaves the bond in full force .20

A divorce obtained abroad by an alien may be recognized in our jurisdiction, provided such decree is valid according to the national law of the foreigner .21 However,before it can be recognized by our courts, the party pleading it must prove the divorce as a fact anddemonstrate its conformity to the foreign law allowing it, which must be proved considering that ourcourts cannot take judicial notice of foreign laws .22

Without the divorce decree and foreign law as part of the evidence, we cannot rule on the issue ofwhether petitioner has the personality to file the petition for declaration of nullity of marriage. After all,she may have the personality to file the petition if the divorce decree obtained was a limited divorceor a mensa et thoro ; or the foreign law may restrict remarriage even after the divorce decree becomesabsolute .23 In such case, the RTC would be correct to declare the marriage of the respondents void for

being bigamous, there being already in evidence two existing marriage certificates, which were bothobtained in the Philippines, one in Mabini, Pangasinan dated December 21, 1959 between EusebioBristol and respondent Merope ,24 and the other, in Calasiao, Pangasinan dated June 16, 1988 betweenthe respondents .25

However, if there was indeed a divorce decree obtained and which, following the national law ofOrlando, does not restrict remarriage, the Court of Appeals would be correct in ruling that petitioner hasno legal personality to file a petition to declare the nullity of marriage, thus:
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Freed from their existing marital bond, each of the former spouses no longer has any interest nor shouldeach have the personality to inquire into the marriage that the other might subsequently contract. x x xViewed from another perspecti ve, Felicitas has no existing interest in Orlandos subsequent marriagesince the validity, as well as any defect or infirmity, of this subsequent marriage will not affect thedivorced status of Orlando and Felicitas. x x x26

True, under the New Civil Code which is the law in force at the time the respondents were married, oreven in the Family Code, there is no specific provision as to who can file a petition to declare the nullityof marriage; however, only a party who can demonstrate " proper interest " can file the same. A petitionto declare the nullity of marriage, like any other actions, must be prosecuted or defended in the name ofthe real party in interes t 27 and must be based on a cause of action .28 Thus, in Nial v. Bayadog ,29 theCourt held that the children have the personality to file the petition to declare the nullity of themarriage of their deceased father to their stepmother as it affects their successional rights. 1awphi1.net

Significantly, Section 2(a) of The Rule on Declaration of Absolute Nullity of Void Marriages and Annulment of Voidable Marriages , which took effect on March 15, 2003, now specifically provides:

SECTION 2. Petition for declaration of absolute nullity of void marriages.

(a) Who may file. A petition for declaration of absolute nullity of void marriage may be filed solely bythe husband or the wife.

x x x x

In fine, petitioners personality to file the petition to declare the nullity of marriage cannot beascertained because of the absence of the divorce decree and the foreign law allowing it. Hence, aremand of the case to the trial court for reception of additional evidence is necessary to determinewhether respondent Orlando was granted a divorce decree and whether the foreign law which granted

the same allows or restricts remarriage. If it is proved that a valid divorce decree was obtained and thesame did not allow respondent Orlandos remarriage, then the trial court should declare respondentsmarriage as bigamous and void ab initio but reduce the amount of moral damages from P300,000.00to P50,000.00 and exemplary damages from P200,000.00 to P25,000.00. On the contrary, if it is provedthat a valid divorce decree was obtained which allowed Orlando to remarry, then the trial court mustdismiss the instant petition to declare nullity of marriage on the ground that petitioner Felicitas Amor-Catalan lacks legal personality to file the same.

WHEREFORE, in view of the foregoing, let this case be REMANDED to the trial court for its properdisposition. No costs.

SO ORDERED.
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Manila

THIRD DIVISION

G.R. No. 94053 March 17, 1993

REPUBLIC OF THE PHILIPPINES,petitioner,vs.GREGORIO NOLASCO,respondent.

The Solicitor General for plaintiff-appellee.

Warloo G. Cardenal for respondent.

R E S O L U T I O N

FELICIANO, J.:

On 5 August 1988, respondent Gregorio Nolasco filed before the Regional Trial Court of Antique, Branch10, a petition for the declaration of presumptive death of his wife Janet Monica Parker, invoking Article41 of the Family Code. The petition prayed that respondent's wife be declared presumptively dead or, inthe alternative, that the marriage be declared null and void. 1

The Republic of the Philippines opposed the petition through the Provincial Prosecutor of Antique whohad been deputized to assist the Solicitor-General in the instant case. The Republic argued, first, thatNolasco did not possess a "well-founded belief that the absent spouse was already dead," 2 and second,Nolasco's attempt to have his marriage annulled in the same proceeding was a "cunning attempt" tocircumvent the law on marriage. 3

During trial, respondent Nolasco testified that he was a seaman and that he had first met Janet MonicaParker, a British subject, in a bar in England during one of his ship's port calls. From that chance meetingonwards, Janet Monica Parker lived with respondent Nolasco on his ship for six (6) months until theyreturned to respondent's hometown of San Jose, Antique on 19 November 1980 after his seaman's

contract expired. On 15 January 1982, respondent married Janet Monica Parker in San Jose, Antique, inCatholic rites officiated by Fr. Henry van Tilborg in the Cathedral of San Jose.

Respondent Nolasco further testified that after the marriage celebration, he obtained anotheremployment contract as a seaman and left his wife with his parents in San Jose, Antique. Sometime inJanuary 1983, while working overseas, respondent received a letter from his mother informing him thatJanet Monica had given birth to his son. The same letter informed him that Janet Monica had left


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Antique. Respondent claimed he then immediately asked permission to leave his ship to return home.He arrived in Antique in November 1983.

Respondent further testified that his efforts to look for her himself whenever his ship docked in Englandproved fruitless. He also stated that all the letters he had sent to his missing spouse at No. 38 RavenaRoad, Allerton, Liverpool, England, the address of the bar where he and Janet Monica first met, were allreturned to him. He also claimed that he inquired from among friends but they too had no news of JanetMonica.

On cross-examination, respondent stated that he had lived with and later married Janet Monica Parkerdespite his lack of knowledge as to her family background. He insisted that his wife continued to refuseto give him such information even after they were married. He also testified that he did not report thematter of Janet Monica's disappearance to the Philippine government authorities.

Respondent Nolasco presented his mother, Alicia Nolasco, as his witness. She testified that herdaughter-in-law Janet Monica had expressed a desire to return to England even before she had givenbirth to Gerry Nolasco on 7 December 1982. When asked why her daughter-in-law might have wished toleave Antique, respondent's mother replied that Janet Monica never got used to the rural way of life inSan Jose, Antique. Alicia Nolasco also said that she had tried to dissuade Janet Monica from leaving asshe had given birth to her son just fifteen days before, but when she (Alicia) failed to do so, she gaveJanet Monica P22,000.00 for her expenses before she left on 22 December 1982 for England. She furtherclaimed that she had no information as to the missing person's present whereabouts.

The trial court granted Nolasco's petition in a Judgment dated 12 October 1988 the dispositive portionof which reads:

Wherefore, under Article 41, paragraph 2 of the Family Code of the Philippines(Executive Order No. 209, July 6, 1987, as amended by Executive Order No. 227, July 17,

1987) this Court hereby declares as presumptively dead Janet Monica Parker Nolasco,without prejudice to her reappearance. 4

The Republic appealed to the Court of Appeals contending that the trial court erred in declaring JanetMonica Parker presumptively dead because respondent Nolasco had failed to show that there existed awell founded belief for such declaration.

The Court of Appeals affirmed the trial court's decision, holding that respondent had sufficientlyestablished a basis to form a belief that his absent spouse had already died.

The Republic, through the Solicitor-General, is now before this Court on a Petition for Review where the

following allegations are made:

1. The Court of Appeals erred in affirming the trial court's finding that there existed awell-founded belief on the part of Nolasco that Janet Monica Parker was already dead;and


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2. The Court of Appeals erred in affirming the trial Court's declaration that the petitionwas a proper case of the declaration of presumptive death under Article 41, FamilyCode. 5

The issue before this Court, as formulated by petitioner is "[w]hether or not Nolasco has a well-foundedbelief that his wife is already dead." 6

The present case was filed before the trial court pursuant to Article 41 of the Family Code whichprovides that:

Art. 41. A marriage contracted by any person during the subsistence of a previousmarriage shall be null and void, unless before the celebration of the subsequentmarriage, the prior spouse had been absent for four consecutive years and the spouse

present had a well-founded belief that the absent spouse was already dead. In case ofdisappearance where there is danger of death under the circumstances set forth in theprovision of Article 391 of the Civil Code, an absence of only two years shall besufficient.

For the purpose of contracting the subsequent marriage under the preceding paragraph,the spouse present must institute a summary proceeding as provided in this Code forthe declaration of presumptive death of the absentee, without prejudice to the effect ofreappearance of the absent spouse. (Emphasis supplied).

When Article 41 is compared with the old provision of the Civil Code, which it superseded, 7 thefollowing crucial differences emerge. Under Article 41, the time required for the presumption to arisehas been shortened to four (4) years; however, there is need for a judicial declaration of presumptivedeath to enable the spouse present to remarry. 8 Also, Article 41 of the Family Code imposes a stricterstandard than the Civil Code: Article 83 of the Civil Code merely requires either that there be no news

that such absentee is still alive ; or the absentee is generally considered to be dead and believed to be soby the spouse present , or is presumed dead under Article 390 and 391 of the Civil Code. 9 The FamilyCode, upon the other hand, prescribes as "well founded belief" that the absentee is already dead beforea petition for declaration of presumptive death can be granted.

As pointed out by the Solicitor-General, there are four (4) requisites for the declaration of presumptivedeath under Article 41 of the Family Code:

1. That the absent spouse has been missing for four consecutive years, or twoconsecutive years if the disappearance occurred where there is danger of death underthe circumstances laid down in Article 391, Civil Code;

2. That the present spouse wishes to remarry;

3. That the present spouse has a well-founded belief that the absentee is dead; and

4. That the present spouse files a summary proceeding for the declaration ofpresumptive death of the absentee. 10


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Respondent naturally asserts that he had complied with all these requirements. 11

Petitioner's argument, upon the other hand, boils down to this: that respondent failed to prove that hehad complied with the third requirement, i.e ., the existence of a "well-founded belief" that the absentspouse is already dead.

The Court believes that respondent Nolasco failed to conduct a search for his missing wife with suchdiligence as to give rise to a "well-founded belief" that she is dead.

United States v. Biasbas , 12 is instructive as to degree of diligence required in searching for a missingspouse. In that case, defendant Macario Biasbas was charged with the crime of bigamy. He set-up thedefense of a good faith belief that his first wife had already died. The Court held that defendant had notexercised due diligence to ascertain the whereabouts of his first wife, noting that:

While the defendant testified that he had made inquiries concerning the whereaboutsof his wife, he fails to state of whom he made such inquiries. He did not even write tothe parents of his first wife, who lived in the Province of Pampanga, for the purpose ofsecuring information concerning her whereabouts. He admits that he had a suspiciononly that his first wife was dead. He admits that the only basis of his suspicion was thefact that she had been absent. . . . 13

In the case at bar, the Court considers that the investigation allegedly conducted by respondent in hisattempt to ascertain Janet Monica Parker's whereabouts is too sketchy to form the basis of a reasonableor well-founded belief that she was already dead. When he arrived in San Jose, Antique after learning ofJanet Monica's departure, instead of seeking the help of local authorities or of the British Embassy, 14 hesecured another seaman's contract and went to London, a vast city of many millions of inhabitants, tolook for her there.

Q After arriving here in San Jose, Antique, did you exert efforts toinquire the whereabouts of your wife?

A Yes, Sir.

Court:

How did you do that?

A I secured another contract with the ship and we had a trip to Londonand I went to London to look for her I could not find

her (sic).15

(Emphasis supplied)

Respondent's testimony, however, showed that he confused London for Liverpool and this casts doubton his supposed efforts to locate his wife in England. The Court of Appeal's justification of the mistake,to wit:

. . . Well, while the cognoscente (sic) would readily know the geographical differencebetween London and Liverpool, for a humble seaman like Gregorio the two places could


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mean one place in England, the port where his ship docked and where he foundJanet. Our own provincial folks, every time they leave home to visit relatives in PasayCity, Kalookan City, or Paraaque, would announce to friends and relatives, "We'regoing to Manila." This apparent error in naming of places of destination does not appearto be fatal. 16

is not well taken. There is no analogy between Manila and its neighboring cities, on one hand, andLondon and Liverpool, on the other, which, as pointed out by the Solicitor-General, are around threehundred fifty (350) kilometers apart. We do not consider that walking into a major city like Liverpool orLondon with a simple hope of somehow bumping into one particular person there which is in effectwhat Nolasco says he did can be regarded as a reasonably diligent search.

The Court also views respondent's claim that Janet Monica declined to give any information as to herpersonal background even after she had married respondent 17 too convenient an excuse to justify hisfailure to locate her. The same can be said of the loss of the alleged letters respondent had sent to hiswife which respondent claims were all returned to him. Respondent said he had lost these returnedletters, under unspecified circumstances.

Neither can this Court give much credence to respondent's bare assertion that he had inquired fromtheir friends of her whereabouts, considering that respondent did not identify those friends in histestimony. The Court of Appeals ruled that since the prosecutor failed to rebut this evidence during trial,it is good evidence. But this kind of evidence cannot, by its nature, be rebutted. In any case, admissibilityis not synonymous with credibility. 18 As noted before, there are serious doubts to respondent'scredibility. Moreover, even if admitted as evidence, said testimony merely tended to show that themissing spouse had chosen not to communicate with their common acquaintances, and not that she wasdead.

Respondent testified that immediately after receiving his mother's letter sometime in January 1983, he

cut short his employment contract to return to San Jose, Antique. However, he did not explain the delayof nine (9) months from January 1983, when he allegedly asked leave from his captain, to November1983 when be finally reached San Jose. Respondent, moreover, claimed he married Janet Monica Parkerwithout inquiring about her parents and their place of residence. 19 Also, respondent failed to explainwhy he did not even try to get the help of the police or other authorities in London and Liverpool in hiseffort to find his wife. The circumstances of Janet Monica's departure and respondent's subsequentbehavior make it very difficult to regard the claimed belief that Janet Monica was dead a well-foundedone.

In Goitia v. Campos-Rueda , 20 the Court stressed that:

. . . Marriage is an institution, the maintenance of which in its purity the public is deeplyinterested. It is a relationship for life and the parties cannot terminate it at any shorter period by virtue of any contract they make . . . . . 21 (Emphasis supplied)

By the same token, the spouses should not be allowed, by the simple expedient of agreeing that one ofthem leave the conjugal abode and never to return again, to circumvent the policy of the laws onmarriage. The Court notes that respondent even tried to have his marriage annulled before the trialcourt in the same proceeding.


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In In Re Szatraw , 22 the Court warned against such collusion between the parties when they find itimpossible to dissolve the marital bonds through existing legal means.

While the Court understands the need of respondent's young son, Gerry Nolasco, for maternal care, stillthe requirements of the law must prevail. Since respondent failed to satisfy the clear requirements ofthe law, his petition for a judicial declaration of presumptive death must be denied. The law does notview marriage like an ordinary contract. Article 1 of the Family Code emphasizes that.

. . . Marriage is a special contract of permanent union between a man and awoman entered into in accordance with law for the establishment of conjugal and familylife. It is the foundation of the family and an inviolable social institution whose nature,consequences , and incidents are governed by law and not subject to stipulation , exceptthat marriage settlements may fix the property relations during the marriage within thelimits provided by this Code. (Emphasis supplied)

In Arroyo, Jr. v. Court of Appeals , 23 the Court stressed strongly the need to protect.

. . . the basic social institutions of marriage and the family in the preservation of whichthe State bas the strongest interest; the public policy here involved is of the mostfundamental kind. In Article II, Section 12 of the Constitution there is set forth thefollowing basic state policy:

The State recognizes the sanctity of family life and shall protect andstrengthen the family as a basic autonomous social institution. . . .

The same sentiment bas been expressed in the Family Code of the Philippines in Article149:

The family, being the foundation of the nation, is a basic socialinstitution which public policy cherishes and protects. Consequently,family relations are governed by law and no custom, practice oragreement destructive of the family shall be recognized or giveneffect. 24

In fine, respondent failed to establish that he had the well-founded belief required by law that hisabsent wife was already dead that would sustain the issuance of a court order declaring Janet MonicaParker presumptively dead.

WHEREFORE, the Decision of the Court of Appeals dated 23 February 1990, affirming the trial court's

decision declaring Janet Monica Parker presumptively dead is hereby REVERSED and both Decisions arehereby NULLIFIED and SET ASIDE. Costs against respondent.

Bidin, Davide, Jr., Romero and Melo, JJ., concur .

Gutierrez, Jr. J., is on leave .


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Manila

FIRST DIVISION

G.R. No. L-43905 May 30, 1983

SERAFIA G. TOLENTINO,petitioner,vs.HON. EDGARDO L. PARAS, MARIA CLEMENTE and THE LOCAL CIVIL REGISTRAR OF PAOMBONG,BULACAN,respondents.

Amelita G. Tolentino for petitioner.

Hermin E. Arceo for Maria Clemente.

The Solicitor General for respondents.

MELENCIO-HERRERA, J.:

The reversal of respondent Court's Order, dismissing petitioner's suit for her "declaration ... as the lawfulsurviving spouse of deceased Amado Tolentino and the correction of the death certificate of the same",is sought in this Petition for Review on Certiorari.

The records disclose that Amado Tolentino had contracted a second marriage with private respondentherein, Maria Clemente, at Paombong, Bulacan, on November 1, 1948 (Annex "C", Petition), while hismarriage with petitioner, Serafia G. Tolentino, celebrated on July 31, 1943, was still subsisting (Annex"A", Petition).

Petitioner charged Amado with Bigamy in Criminal Case No. 2768 of the Court of First Instance ofBulacan, Branch II, which Court, upon Amado's plea of guilty, sentenced him to suffer the correspondingpenalty. After Amado had served the prison sentence imposed on him, he continued to live with privaterespondent until his death on July 25, 1974. His death certificate carried the entry "Name of SurvivingSpouse Maria Clemente."

In Special Proceedings No. 1587-M for Correction of Entry, petitioner sought to correct the name of the

surviving spouse in the death certificate from "Maria Clemente" to "Serafia G. Tolentino", her name. Thelower Court dismissed the petition "for lack of the proper requisites under the law" and indicated theneed for a more detailed proceeding,

Conformably thereto, petitioner filed the case below against private respondent and the Local CivilRegistrar of Paombong, Bulacan, for her declaration as the lawful surviving spouse, and the correction ofthe death certificate of Amado. In an Order, dated October 21, 1976, respondent Court, upon privaterespondent's instance, dismissed the case, stating:


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The Motion to Dismiss filed by the defendants in this case, thru counsel Atty. Hernan E.Arceo, for the reasons therein mentioned, is hereby GRANTED. Further: (1) thecorrection of the entry in the Office of the Local Civil Registrar is not the proper remedybecause the issue involved is marital relationship; (2) the Court has not acquired proper jurisdiction because as prescribed under Art. 108, read together with Art. 412 of theCivil Code publication is needed in a case like this, and up to now, there has been nosuch publication; and (3) in a sense, the subject matter of this case has been aptlydiscussed in Special Proceeding No. 1587-M, which this Court has already dismissed, forlack of the proper requisites under the law.

In view of the above dismissal, all other motions in this case are hereby consideredMOOT and ACADEMIC.

SO ORDERED.1

Thus, petitioner's present recourse mainly challenging the grounds relied upon by respondent Court inordering dismissal.

We rule for petitioner.

First, for the remedy. Although petitioner's ultimate objective is the correction of entry contemplated inArticle 412 of the Civil Code and Rule 108 of the Rules of Court, she initially seeks a judicial declarationthat she is the lawful surviving spouse of the deceased, Amado, in order to lay the basis for thecorrection of the entry in the death certificate of said deceased. The suit below is a proper remedy. It isof an adversary character as contrasted to a mere summary proceeding. A claim of right is assertedagainst one who has an interest in contesting it. Private respondent, as the individual most affected; is aparty defendant, and has appeared to contest the petition and defend her interests. The Local CivilRegistrar is also a party defendant. The publication required by the Court below pursuant to Rule 108 of

the Rules of Court is not absolutely necessary for no other parties are involved. After all, publication isrequired to bar indifferently all who might be minded to make an objection of any sort against the rightsought to be established. 2 Besides, even assuming that this is a proceeding under Rule 108, it was theCourt that was caned upon to order the publication, 3 but it did not. in the ultimate analysis, Courts arenot concerned so much with the form of actions as with their substance. 4

Second, for the merits. Considering that Amado, upon his own plea, was convicted for Bigamy, thatsentence furnishes the necessary proof of the marital status of petitioner and the deceased. There is nobetter proof of marriage than the admission by the accused of the existence of such marriage. 5 Thesecond marriage that he contracted with private respondent during the lifetime of his first spouse is nulland void from the beginning and of no force and effect. 6 No judicial decree is necessary to establish the

invalidity of a void marriage.7

It can be safely concluded, then, without need of further proof norremand to the Court below, that 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.

Having arrived at the foregoing conclusion, the other issues raised need no longer be discussed.


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In fine, since there is no question regarding the invalidity of Amado's second marriage with privaterespondent and that the entry made in the corresponding local register is thereby rendered false, it maybe corrected. 8 While document such as death and birth certificates, are public and entries therein arepresumed to be correct, such presumption is merely disputable and will have to yield to more positiveevidence establishing their inaccuracy. 9

WHEREFORE, the Order, dated October 21, 1975, of respondent Court is hereby set aside and petitioner,Serafia G. Tolentino, hereby declared the surviving spouse of the deceased Amado Tolentino. Let thecorresponding correction be made in the latter's death certificate in the records of the Local CivilRegistrar of Paombong, Bulacan.

No costs.

SOORDERED.

Teehankee, (Chairman), Plana, Vasquez and Gutierrez, Jr., JJ., concur.

Relova, J., is on leave.


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Manila

SECOND DIVISION

G.R. No. L-53703 August 19, 1986

LILIA OLIVA WIEGEL,petitioner,vs.THE HONORABLE ALICIA V. SEMPIO-DIY (as presiding judge of the Juvenile and Domestic RelationsCourt of Caloocan City) and KARL HEINZ WIEGEL,respondents.

Dapucanta, Dulay & Associates for petitioner.

Siguion Reyna, Montecillo and Ongsiako Law Office for private respondent.

PARAS, J.:

In an action (Family Case No. 483) filed before the erstwhile Juvenile and Domestic Relations Court ofCaloocan City, herein respondent Karl Heinz Wiegel (plaintiff therein) asked for the declaration of Nullityof his marriage (celebrated on July, 1978 at the Holy Catholic Apostolic Christian Church Branch inMakati, Metro Manila) with herein petitioner Lilia Oliva Wiegel (Lilia, for short, and defendant therein)on the ground of Lilia's previous existing marriage to one Eduardo A. Maxion, the ceremony having beenperformed on June 25, 1972 at our Lady of Lourdes Church in Quezon City. Lilia, while admitting theexistence of said prior subsisting marriage claimed that said marriage was null and void, she and the first

husband Eduardo A. Maxion having been allegedly forced to enter said marital union. In the pre-trialthat ensued, the issue agreed upon by both parties was the status of the first marriage (assuming thepresence of force exerted against both parties): was said prior marriage void or was it merely voidable?Contesting the validity of the pre-trial order, Lilia asked the respondent court for an opportunity topresent evidence-

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

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

Respondent judge ruled against the presentation of evidence because the existence of force exerted on

both parties of the first marriage had already been agreed upon. Hence, the present petition forcertiorari assailing the following Orders of therespondent Judge-

(1) the Order dated March 17, 1980 in which the parties were compelled to submit the case forresolution based on "agreed facts;" and

(2) the Order dated April 14, 1980, denying petitioner's motion to allow her to present evidence in herfavor.


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We find the petition devoid of merit.

There is no need for petitioner to prove that her first marriage was vitiated by force committed againstboth 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 thatwhen she married respondent she was still validly married to her first husband, consequently, hermarriage to respondent is VOID (Art. 80, Civil Code).

There is likewise no need of introducing evidence about the existing prior marriage of her first husbandat the time they married each other, for then such a marriage though void still needs according to thisCourt a judicial declaration 1 of such fact and for all legal intents and purposes she would still beregarded as a married woman at the time she contracted her marriage with respondent Karl HeinzWiegel); accordingly, the marriage of petitioner and respondent would be regarded VOID under the law.

WHEREFORE, this petition is hereby DISMISSED, for lack of merit, and the Orders complained of arehereby AFFIRMED. Costs against petitioner.

SO ORDERED.

Feria (Chairman), Fernan Alampay and Gutierrez, Jr., JJ., concur.


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epublic of the PhilippinesSUPREME COURT

Manila

EN BANC

A.M. No. 2349 July 3, 1992

DOROTHY B. TERRE,complainant,vs.ATTY. JORDAN TERRE,respondent.

PER CURIAM:

In a sworn complaint filed with this Court on 24 December 1981, complainant Dorothy B. Terre chargedrespondent Jordan Terre, a member of the Philippine Bar with "grossly immoral conduct," consisting ofcontracting a second marriage and living with another woman other than complainant, while his priormarriage with complainant remained subsisting.

The Court resolved to require respondent to answer the complaint. 1 Respondent successfully evadedfive (5) attempts to serve a copy of the Court's Resolution and of the complaint by moving from oneplace to another, such that he could not be found nor reached in his alleged place of employment orresidence. 2 On 24 April 1985, that is after three (3) years and a half, with still no answer from therespondent, the Court noted respondent's success in evading service of the complaint and the Court's

Resolution and thereupon resolved to "suspend respondent Atty. Jordan Terre from the practice of lawuntil after he appears and/or files his answer to the complaint against him" in the instantcase. 3

On 28 September 1985, respondent finally filed an Answer with a Motion to Set Aside and/or LiftSuspension Order. In his Answer, Atty. Terre averred that he had contracted marriage with complainantDorothy Terre on 14 June 1977 upon her representation that she was single; that he subsequentlylearned that Dorothy was married to a certain Merlito A. Bercenilla sometime in 1968; that when heconfronted Dorothy about her prior marriage, Dorothy drove him out of their conjugal residence; thatDorothy had mockingly told him of her private meetings with Merlito A. Bercenilla and that the child shewas then carrying ( i.e. , Jason Terre) was the son of Bercenilla; that believing in good faith that his

marriage to complainant was null and void ab initio , he contracted marriage with Helina Malicdem atDasol, Pangasinan. 4

In her Reply, complainant Dorothy denied that Jason Terre was the child of Merlito A. Bercenilla andinsisted that Jason was the child of respondent Jordan Terre, as evidenced by Jason's Birth Certificateand physical resemblance to respondent. Dorothy further explained that while she had given birth toJason Terre at the PAFGH registered as a dependent of Merlito Bercenilla, she had done so out ofextreme necessity and to avoid risk of death or injury to the fetus which happened to be in a difficult


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City Court of Pasay City as Criminal Case No. 816159 (Exhibit D; tsn, July 7, 1986, p. 24);she likewise filed a case for bigamy against respondent and Helina Malicdem with theoffice of the Provincial Fiscal of Pangasinan, where a prima facie case was found to exist(Exhibit E; tsn, July 7, pp. 25-26); additionally, complainant filed an administrative caseagainst respondent with the Commission on Audit where he was employed, which casehowever was considered closed for being moot and academic when respondent wasconsidered automatically separated from the service for having gone on absencewithout official leave (Exhibit F; tsn, July 7, 1986, pp. 28-29). 7

There is no dispute over the fact that complainant Dorothy Terre and respondent Jordan Terrecontracted marriage on 14 July 1977 before Judge Priscilla Mijares. There is further no dispute over thefact that on 3 May 1981, respondent Jordan Terre married Helina Malicdem in Dasol, Pangasinan. Whenthe second marriage was entered into, respondent's prior marriage with complainant was subsisting, no judicial action having been initiated or any judicial declaration obtained as to the nullity of such priormarriage of respondent with complainant.

Respondent Jordan Terre sought to defend himself by claiming that he had believed in good faith thathis prior marriage with complainant Dorothy Terre 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 respondent Jordan Terre as a spurious defense. In the firstplace, respondent has not rebutted complainant's evidence as to the basic facts which underscores thebad faith of respondent Terre. In the second place, that pretended defense is the same argument bywhich he had inveigled complainant into believing that her prior marriage to Merlito A. Bercenilla beingincestuous and void ab initio (Dorothy and Merlito being allegedly first cousins to each other), she wasfree to contract a second marriage with the respondent. Respondent Jordan Terre, being a lawyer, knewor should have known that such an argument ran counter to the prevailing case law of this Court whichholds 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. 8 Even if we were toassume, arguendo merely, that Jordan Terre held that mistaken belief in good faith, the same result willfollow. For if we are to hold Jordan Terre to his own argument, his first marriage to complainant DorothyTerre must be deemed valid, with the result that his second marriage to Helina Malicdem must beregarded as bigamous and criminal in character.

That the moral character of respondent Jordan Terre was deeply flawed is shown by othercircumstances. As noted, he convinced the complainant that her prior marriage to Bercenilla was nulland void ab initio , that she was still legally single and free to marry him. When complainant andrespondent had contracted their marriage, respondent went through law school while being supportedby complainant, with some assistance from respondent's parents. After respondent had finished his lawcourse and gotten complainant pregnant, respondent abandoned the complainant without support andwithout the wherewithal for delivering his own child safely in a hospital.

Thus, we agree with the Solicitor General that respondent Jordan Terre, by his actions, "eloquentlydisplayed, not only his unfitness to remain as a member of the Bar, but likewise his inadequacy touphold the purpose and responsibility of his gender" because marriage is a basic social institution. 9

In Pomperada v. Jochico , 10 the Court, in rejecting a petition to be allowed to take the oath as a memberof the Bar and to sign the Roll of Attorneys, said through Mme. Justice Melencio-Herrera:


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It is evident that respondent fails to meet the standard of moral fitness for membershipin the legal profession. Whether the marriage was a joke as respondent claims, or a trickplayed on her as claimed by complainant, it does not speak well of respondent's moralvalues. Respondent had made a mockery of marriage, a basic social institution whichpublic policy cherishes and protects (Article 216, Civil Code). 11

In Bolivar v. Simbol , 12 the Court found the respondent there guilty of "grossly immoral conduct"because he made a dupe of complainant, living on her bounty and allowing her to spend for hisschooling and other personal necessities while dangling before her the mirage of a marriage, marryinganother girl as soon as he had finished his studies, keeping his marriage a secret while continuing todemand money from complainant. . . . ." The Court held such acts "indicative of a character not worthyof a member of the Bar." 13

We believe and so hold that the conduct of respondent Jordan Terre in inveigling complainant DorothyTerre to contract a second marriage with him; in abandoning complainant Dorothy Terre after she hadcared for him and supported him through law school, leaving her without means for the safe delivery ofhis own child; in contracting a second marriage with Helina Malicdem while his first marriage withcomplainant Dorothy Terre was subsisting, constituted "grossly immoral conduct" under Section 27 ofRule 138 of the Rules of Court, affording more than sufficient basis for disbarment of respondent JordanTerre. He was unworthy of admission to the Bar in the first place. The Court will correct this errorforthwith.

WHEREFORE, the Court Resolved to DISBAR respondent Jordan Terre and to STRIKE OUT his name fromthe Roll of Attorneys. A copy of this decision shall be spread on the personal record of respondentJordan Terre in the Bar Confidant's Office. A copy of this resolution shall also be furnished to theIntegrated Bar of the Philippines and shall be circularized to all the courts of the land.

SO ORDERED.

Narvasa, C.J., Gutierrez, Jr., Cruz, Paras, Feliciano, Padilla, Bidin, Grio-Aquino, Medialdea, Regalado,Davide, Jr., Romero, Nocon and Bellosillo, JJ., concur.


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Manila

FIRST DIVISION

G.R. No. 109454 June 14, 1994

JOSE C. SERMONIA,petitioner,vs.HON. COURT OF APPEALS, Eleventh Division, HON. DEOGRACIAS FELIZARDO, Presiding Judge, RegionaTrial Court of Pasig, Br. 151, and JOSEPH SINSAY,respondents.

Quasha, Asperilla, Ancheta, Pea and Nolasco for petitioner.

Ponciano L. Escuadra for private respondent.

BELLOSILLO, J.:

Bigamy is an illegal marriage committed by contracting a second or subsequent marriage before the firstmarriage has been legally dissolved, or before the absent spouse has been declared presumptively deadby means of a judgment rendered in the proper proceedings. 1 Bigamy carries with it the imposablepenalty of prision mayor . Being punishable by an afflictive penalty, this crime prescribes in fifteen (15)years. 2 The fifteen-year prescriptive period commences to run from the day on which the crime isdiscovered by the offended party, the authorities, or their agents . . . 3

That petitioner contracted a bigamous marriage seems impliedly admitted. 4 At least, it is not expresslydenied. Thus the only issue for resolution is whether his prosecution for bigamy is already time-barred,which hinges on whether its discovery is deemed to have taken place from the time the offended partyactually knew of the second marriage or from the time the document evidencing the subsequentmarriage was registered with the Civil Registry consistent with the rule on constructive notice.

The antecedents: In an information filed on 26 May 1992, petitioner Jose C. Sermonia was charged withbigamy before the Regional Trial Court of Pasig, Br. 151, for contracting marriage with Ma. LourdesUns

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