V. INTRODUCTION TO THE FAMILY CODE A.

EFFECT AND RETROACTIVITY

FC255, cf. FC 36 in rel. to 39, FC 105, FC 162, FC 257 ATIENZA v. BRILLANTES, Jr.

EXECUTIVE ORDER NO. 227 July 17, 1987 AMENDING EXECUTIVE ORDER NO. 209, OTHERWISE KNOWN AS THE "FAMILY CODE OF THE PHILIPPINES" I, CORAZON C. AQUINO, President of the Philippines, do hereby order: Sec. 1. Article 26 of the Executive Order No. 209 is hereby amended to read as follows: "Art. 26. All marriage solemnized outside the Philippines in accordance with the laws in force in the country where they were solemnized, and valid there as such, shall also be valid in this country, except those prohibited under Articles 35(1), (4), (5) and (6), 36, 37 and 38. Where a marriage between a Filipino citizen and a foreigner is validly celebrated and a divorce is thereafter validly obtained abroad by the alien spouse capacitating him or her to remarry, the Filipino spouses shall have capacity to remarry under Philippine law." Sec. 2. Article 36 of Executive Order No. 209 is hereby amended to read as follows: "Art. 36. A marriage contracted by any party who, at the time of the celebration, was psychologically incapacitated to comply with the essential marital obligations of marriage, shall likewise be void even if such incapacity becomes manifest only after its solemnization." Sec. 3. Article 39 of the Executive Order No. 209 is hereby amended to read as follows: "Art. 39. The action or defense for the declaration of absolute nullity of marriage shall not prescribe. However, in the case of marriages celebrated before the effectivity of this Code and falling under Article 36, such action or defense shall have taken effect." Sec. 4. This Executive Order shall take effect upon the effectivity of the Family Code of the Philippines. Done in the City of Manila, this 17th day of July, in the year of Our Lord, nineteen hundred and eighty-seven. FACTS: This is a complaint by Lupo A. Atienza for Gross Immorality and Appearance of Impropriety against Judge Francisco Brillantes, Jr. Complainant alleged that he has two children with Yolanda De Castro with whom respondent Judge was cohabiting with. Complainant claimed that respondent is married to one Zenaida Ongkiko with whom he has 5 children. Respondent alleges that while he and Ongkiko went through a marriage ceremony (1965) before a Nueva Ecija town Mayor, the same was not a valid marriage for lack of a marriage license. Upon request of the parents of Ongkiko, respondent went through another marriage ceremony with her in Manila. Again, neither party applied for a marriage license. Respondent claims that when he married De Castro in civil rites in Los Angeles, California in 1991, he believed in all good faith and for all legal intents and purposes that he was single because his first marriage was solemnized without a license. Respondent also argues that the provision of Article 40 of the Family Code does not apply to him considering that his first marriage took place in 1965 and was governed by the Civil Code of the Philippines; while the second marriage took place in 1991 and governed by the Family Code. ISSUE: WON Article 40 of the Family Code is applicable to the case at bar. HELD: Yes. Article 40 is applicable to remarriages entered into after the -ffectivity of the Family Code on August 3, 1988 regardless of the date of the first marriage. Besides, under Article 256 of the Family Code, said Article is given retroactive effect insofar as it does not prejudice or impair vested or acquired rights in accordance with the Civil Code or other laws. This is particularly true with Article 40, which is a rule of procedure. Respondent has not shown any vested right that was impaired by the application of Article 40 to his case. * ARTICLE 40 of the FAMILY CODE The absolute nullity of a previous marriage may be invoked for purposes of remarriage on the basis solely of a final judgment declaring such previous marriage void.

BERNABE v, ALEJO FACTS: The late Fiscal Ernesto Bernabe allegedly fathered a son with Carolina Alejo. The son was born on September 18, 1981 and was named Adrian Bernabe. Fiscal Bernabe died on August 13, 1993 leaving Ernestina as the sole surviving heir. Therafter, Carolina in behalf of Adrian filed the aforesaid

complaint praying that Adrian be declared as acknowledged illegitimate son of Fiscal Bernabe. The RTC dismissed the complaint ruling that under the provision of the Family Code, the death of the putative father had barred the action. On appeal, the Court of Appeals ruled that in the interest of justice, Adrian should be allowed to prove that he was the illegitimate son of Fiscal Bernabe since the boy was born in 1981; his rights are governed by Article 283 of the Civil Code. Hence, appeal was interposed in the Supreme Court. ISSUE: Whether or not the Family Code shall have retroactive effect. HELD: Applying recent jurisprudence, the Supreme Court hold that Article 285 of the Civil Code is a substantive law as it gives Adrian the right to file his petition for recognition within 4 years from attaining majority age. Therefore, the Family Code cannot impair or take Adrians right to file an action for recognition because that right had already vested prior to its enactment.

ISSUE: Whether or not Escritor is administratively liable for disgraceful and immoral conduct. RULING: Escritor cannot be penalized. The Constitution adheres to the benevolent neutrality approach that gives room for accommodation of religious exercises as required by the Free Exercise Clause, provided that it does not offend compelling state interests. The OSG must then demonstrate that the state has used the least intrusive means possible so that the free exercise clause is not infringed any more than necessary to achieve the legitimate goal of the state. In this case, with no iota of evidence offered, the records are bereft of even a feeble attempt to show that the state adopted the least intrusive means. With the Solicitor General utterly failing to prove this element of the test, and under these distinct circumstances, Escritor cannot be penalized. The Constitution itself mandates the Court to make exemptions in cases involving criminal laws of general application, and under these distinct circumstances, such conjugal arrangement cannot be penalized for there is a case for exemption from the law based on the fundamental right to freedom of religion. In the area of religious exercise as a preferred freedom, man stands accountable to an authority higher than the state.

VI. MARRIAGE AND PERSONAL RELATIONS BETWEEN SPOUSES A. THE CONCEPT OF MARRIAGE ESTRADA v. ESCRITOR

B. NATURE OF MARRIAGE IN PHILIPPINE LAW FACTS: In a sworn letter-complaint, Alejandro Estrada, complainant, wrote to Judge Caoibes Jr. requesting for an investigation of rumors that respondent Soledad Escritor, court interpreter of Las Pias, is living with a man not her husband. Judge Caoibes referred the letter to Escritor, who stated that there is no truth as to the veracity of the allegation and challenged Estrada, to appear in the open and prove his allegation in the proper court. Judge Caoibes set a preliminary conference and Escritor move for inhibition to avoid bias and suspicion in hearing her case. In the conference, Estrada confirmed that he filed a letter-complaint for disgraceful and immoral conduct under the Revised Administrative Code against Escritor for that his frequent visit in the Hall of Justice in Las Pias learned Escritor is cohabiting with another man not his husband. Escritor testified that when she entered judiciary in 1999, she was already a widow since 1998. She admitted that shes been living with Luciano Quilapo Jr. without the benefit of marriage for 20 years and that they have a son. Escritor asserted that as a member of the religious sect known as Jehovahs Witnesses, and having executed a Declaration of Pledging Faithfulness (which allows members of the congregation who have been abandoned by their spouses to enter into marital relations) jointly with Quilapo after ten years of living together, her conjugal arrangement is in conformity with her religious beliefs and has the approval of the congregation, therefore not constituting disgraceful and immoral conduct. MUSLIM CODE (PD 1083, ARTICLE 14) Nature. Marriage is not only a civil contract but a social institution. Its nature, consequences and incidents are governed by this Code and the Shari'a and not subject to stipulation, except that the marriage settlements may to a certain extent fix the property relations of the spouses.

GOITIA v. CAMPOS-RUEDA FACTS: Article 1; Eloisa Goitia, plaintiff-appellant, and Jose Campos-Rueda, defendant, were legally married in the city of Manila. They established their residence 115 Calle San Marcelino, where they lived together for about a month. However, the plaintiff returned to the home of her parents. The allegations of the complaint were that the defendant, one month after they had contracted marriage, demanded plaintiff to perform unchaste and lascivious acts on his genital organs in which the latter reject the said demands. With these refusals, the defendant got irritated and provoked to maltreat the plaintiff by word and deed. Unable to induce the defendant to desist from his repugnant desires and cease of maltreating her, plaintiff was obliged to leave the conjugal abode and take refuge in the home of her parents. The plaintiff appeals for a complaint against her husband for support outside of the conjugal domicile.

However, the defendant objects that the facts alleged in the complaint do not state a cause of action. ISSUE: Whether or not Goitia can claim for support outside of the conjugal domicile. RULING: Marriage is something more than a mere contract. It is a new relation, the rights, duties and obligations of which rest not upon the agreement of the parties but upon the general law which defines and prescribes those rights, duties and obligations. When the object of a marriage is defeated by rendering its continuance intolerable to one of the parties and productive of no possible good to the community, relief in some way should be obtainable. The law provides that defendant, who is obliged to support the wife, may fulfill this obligation either by paying her a fixed pension or by maintaining her in his own home at his option. However, the option given by law is not absolute. The law will not permit the defendant to evade or terminate his obligation to support his wife if the wife was forced to leave the conjugal abode because of the lewd designs and physical assaults of the defendant, Beatriz may claim support from the defendant for separate maintenance even outside of the conjugal home.

On the other hand, the prosecution maintains that the prescriptive period does not begin from the commission of the crime but from the time of discovery by complainant which was in July 1991. ISSUE: Whether or not the prosecution of Jose C. Sermonia for bigamy has already prescribed. HELD: No. The non-application to the crime of bigamy of the principle of constructive notice is not contrary to the well entrenched policy that penal laws should be construed liberally in favor of the accused. To compute the prescriptive period for the offense of bigamy from registration thereof would amount to almost absolving the offenders thereof for liability therefor. While the celebration of the bigamous marriage may be said to be open and made of public record by its registration, the offender however is not truthful as he conceals from the officiating authority and those concerned the existence of his previous subsisting marriage. He does not reveal to them that he is still a married person. He likewise conceals from his legitimate spouse his bigamous marriage. And for these, he contracts the bigamous marriage in a place where he is not known to be still a married person. And such a place may be anywhere, under which circumstance, the discovery of the bigamous marriage is rendered quite difficult and would take time. It is therefore reasonable that the prescriptive period for the crime of bigamy should be counted only from the day on which the said crime was discovered by the offended party, the authorities or their agency.

SERMONIA VS CA FACTS: On 26 May 1992, petitioner Jose C. Sermonia was charged with bigamy before the RTC of Pasig, Br. 151, for contracting marriage with Ma. Lourdes Unson on 15 February 1975 while his prior marriage to Virginia C. Nievera remained valid and subsisting. Petitioner moved to quash the information on the ground that his criminal liability for bigamy has been extinguished by prescription. In the order of 1 October 1992, respondent judge denied the motion to quash. On 27 October 1992, he likewise denied the motion to reconsider his order of denial. Petitioner challenged the above orders before the Court of Appeals through a petition forcertiorari and prohibition. In the assailed decision of 21 January 1993, his petition was dismissed for lack of merit. In this recourse, petitioner contends that his criminal liability for bigamy has been obliterated by prescription. He avers that since the second marriage contract was duly registered with the Office of the Civil Registrar in 1975, such fact of registration makes it a matter of public record and thus constitutes notice to the whole world. The offended party therefore is considered to have had constructive notice of the subsequent marriage as of 1975; hence, prescription commenced to run on the day the marriage contract was registered. For this reason, the corresponding information for bigamy should have been filed on or before 1990 and not only in 1992.

PERIDO VS PERIDO FACTS: Lucio Perido married twice during his lifetime. His first wife was Benita Talorong,with whom he begot three (3) children. After Benita died Lucio married Marcelina Baliguat,with whom he had five (5) children while his second wife died in 1943.The petitioner alleged that the five children of Lucio Perido with Marcelina Baliguat were allillegitimate. The lower court rendered its decision that the five children of Lucio Perido withhis second wife, Marcelina Baliguat, were legitimate. The plaintiffs appealed to the Court of Appeals, alleging that the trial court erred in declaring that Eusebio Perido, Juan Perido,Maria Perido, Sofronia Perido and Gonzalo Perido, were the legitimate children of LucioPerido ISSUE: Whether or not the five (5) children Lucio Perido with Marcelina Baliguat arelegitimate? HELD: The Court of Appeals found that there was evidence to show that Lucio Perido'swife, Benita Talorong, died during the Spanish regime. This finding conclusive upon us and beyond our power of review. Under the circumstance, Lucio Perido had no legal impedimentto marry Marcelina Baliguat before the birth of their first child in 1900.With respect to the civil status of Lucio Perido as stated in the certificates of title issued tohim in 1923, the Court of Appeals correctly held that the statement was not conclusive toshow that he was not

actually married to Marcelina Baliguat. Furthermore, it is weak andinsufficient to rebut the presumption that persons living together husband and wife aremarried to each other. This presumption, especially where legitimacy of the issue is involved,as in this case, may be overcome only by cogent proof on the part of those who allege theillegitimacy. In the case of Adong vs. Cheong Seng Gee this Court explained the rationale behind this presumption, thus: "The basis of human society throughout the civilized world isthat of marriage. Marriage in this jurisdiction is not only a civil contract, but it is a newrelation, an institution in the maintenance of which the public is deeply interested.Consequently, every intendment of the law leans toward legalizing matrimony. Personsdwelling 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 isthe common order of society, and if the parties were not what they thus hold themselves outas being, they would he living in the constant violation of decency and of law. A presumptionestablished by our Code of Civil Procedure is "that a man and woman deporting themselvesas husband and wife have entered into a lawful contract of marriage." (Sec. 334, No. 28) Semper praesumitur pro matrimonio Always presume marriage."In view of the foregoing the Court of Appeals did not err in concluding that the five childrenof Lucio Perido and Marcelina Baliguat were born during their marriage and, therefore,legitimate.

Whether or Not petitioner effectively waived his right to preliminary investigation. HELD: Petitioner and prosecutor err in relying on Umil v. Ramos, wherein the Court upheld the warrantless arrest as valid effected 1 to 14 days from actual commission of the offenses, which however constituted continuing crimes, i.e. subversion, membership in an outlawed organization, etc. There was no lawful warrantless arrest under Section 5, Rule 113. This is because the arresting officers were not actually there during the incident, thus they had no personal knowledge and their information regarding petitioner were derived from other sources. Further, Section 7, Rule 112, does not apply. Petitioner was not arrested at all, as when he walked in the police station, he neither expressed surrender nor any statement that he was or was not guilty of any crime. When a complaint was filed to the prosecutor, preliminary investigation should have been scheduled to determine probable cause. Prosecutor made a substantive error, petitioner is entitled to preliminary investigation, necessarily in a criminal charge, where the same is required appear thereat. Petition granted, prosecutor is ordered to conduct preliminary investigation, trial for the criminal case is suspended pending result from preliminary investigation, petitioner is ordered released upon posting a bail bond.

TRINIDAD VS COURT OF APPEALS FACTS: Arturio Trinidad claims to be the son of Inocentes Trinidad, who together with Felix and Lourdes, his siblings, are heirs to four parcels of land of their deceased father. He presented the following evidence. a. testimony of Gerardo that Inocentes and his wife cohabited and had a child b. testimony of Meren that she was present in the marriage of Inocentes c. His own baptismal certificate (his birth certificate had been destroyed) d. Family pictures and his own testimony that he lived with Lourdes, until he got married. Lourdes, the aunt of Inocentes, presented the following evidence to refute Arturios claims: a. testimony of Briones that Inocentes was never married b. her own testimony that Inocentes died childless and she claimed that Arturio was simply a neighbor. She denied knowledge of the pictures Arturio presented, where she is shown holding the baby of Arturio, together with Arturio and his wife. ISSUE: Whether or not evidence of the marriage of Inocentes and Arturios filiation are sufficient. HELD: Yes. In the absence of a marriage certificate, any of

GO VS COURT OF APPEALS FACTS: Petitioner, while traveling in the wrong direction on a one-way street, almost had a collision with another vehicle. Petitioner thereafter got out of his car, shot the driver of the other vehicle, and drove off. An eyewitness of the incident was able to take down petitioners plate number and reported the same to the police, who subsequently ordered a manhunt for petitioner. 6 days after the shooting, petitioner presented himself in the police station, accompanied by 2 lawyers, the police detained him. Subsequently a criminal charge was brought against him. Petitioner posted bail, the prosecutor filed the case to the lower court, setting and commencing trial without preliminary investigation. Prosecutor reasons that the petitioner has waived his right to preliminary investigation as bail has been posted and that such situation, that petitioner has been arrested without a warrant lawfully, falls under Section 5, Rule 113 and Section 7, Rule 112 of The 1985 Rules of Criminal Procedure which provides for the rules and procedure pertaining to situations of lawful warrantless arrests. Petitioner in his petition for certiorari assails such procedure and actions undertaken and files for a preliminary investigation. ISSUE: Whether or Not warrantless arrest of petitioner was lawful.

the four can be sufficient proof of marriage: fact of marriage ceremony, open cohabitation of the parties, birth certificate of the child, and other documents. Arturio presented the first 3. For filiation, when the birth certificate cant be produced, other evidence like the baptismal certificate, is admissible. Use of surname without objection is also presumptive evidence of legitimacy.

DE JACOB VS COURT OF APPEALS Facts Plaintiff-appellant claimed to be the surviving spouse of deceased Dr. Alfredo E. Jacob and was appointed Special Administratix for the various estates of the deceased by virtue of a reconstructed Marriage Contract between herself and the deceased. Defendant-appellee Pedro Pilapil on the other hand, claimed to be the legally-adopted son of Alfredo. Pilapil contends that the marriage between Dr. Alfredo Jacob and petitioner was void ab initio, because there was neither a marriage license nor a marriage ceremony.. Appellant claims that the marriage between her and Alfredo was solemnized by one Msgr. Florencio C. Yllana, CBCP, Intramuros, Manila sometime in 1975. She could not however present the original copy of the Marriage Contract stating that the original document was lost when Msgr. Yllana allegedly gave it to Mr. Jose Centenera for registration. Based on the evidence presented, the trial court ruled for Pilapil sustaining his claim as the legally adopted child and sole heir of deceased Alfredo and declaring the reconstructed Marriage Contract as spurious and non-existent. CA affirmed trial courts ruling. Issues: a.) Whether or not the marriage between the plaintiff Tomasa Vda. De Jacob and deceased Alfredo E. Jacob was valid; and b) Whether defendant Pedro Pilapil is the legally adopted son of Alfredo E. Jacob. Held The Petition is GRANTED and the assailed Decision of the Court of Appeals is REVERSED and SET ASIDE. The marriage between Petitioner Tomasa Vda. de Jacob and the deceased Alfredo E. Jacob is hereby recognized and declared VALID and the claimed adoption of Respondent Pedro Pilapil is DECLARED NONEXISTENT. No pronouncement as to costs. With regard to the contention the marriage was void ab initio because of the lack of a marriage license, it has been established that Dr. Jacob and petitioner lived together as husband and wife for at least five years. An affidavit to this effect was executed by Dr. Jacob and petitioner.11 Clearly then, the marriage was exceptional in character and did not require a marriage license under Article 76 of the Civil Code. With regard to the loss of the marriage certificate, the execution of a document may be proven by the parties themselves, by the swearing officer, by witnesses who saw and recognized the signatures of the parties; or even by those to whom the parties

have previously narrated the execution thereof. In the present case, due execution was established by the testimonies of Adela Pilapil, who was present during the marriage ceremony, and of petitioner herself as a party to the event. The subsequent loss was shown by the testimony and the affidavit of the officiating priest, Monsignor Yllana, as well as by petitioner's own declaration in court. These are relevant, competent and admissible evidence. Since the due execution and the loss of the marriage contract were clearly shown by the evidence presented, secondary evidence testimonial and documentary may be admitted to prove the fact of marriage..

SILVERIO VS REPUBLIC Facts: Rommel Silverio filed a petition for the change of his gender and first name in his birth certificate to facilitate his marriage with his fianc. A year before, Silverio has underwent sex re-assignment surgery in Bangkok, Thailand. In his petition, he wants to change his first name from Rommel to Mely. Issue: Should the court allow the change of name? Held: No. The SC said that considering that there is no law recognizing sex re-assignment, the determination of a persons sex at the time of birth, if not attended by error, is immutable. It held that while petitioner may have succeeded in altering his body and appearance through the intervention of modern surgery, no law authorizes the change of entry as to sex in the civil registry for that reason. There is no special law in the country governing sex reassignment and its effect. (visit fellester.blogspot.com) This is fatal to petitioners cause. The Court said that the change in gender sought by petitioner will have serious and wide-ranging legal and public policy consequences, i.e., substantially reconfigure and greatly alter the laws on marriage and family relations and substantially affect the public policy in relation to women in laws such as the provisions of the Labor Code on employment of women, certain felonies under the Revised Penal Code, etc.

PEOPLE VS DELA CRUZ FACTS: Two informations charged the accused with Murder and Frustrated Murder committed by means of treachery, evident premeditation, taking advantage of superior strength, using disguise, fraud and craft to enter the dwelling and with insult to or in disregard of the respect due on account of rank, age and sex. In the course of the trial, the prosecution alleged that appellant Dela Cruz presented an I.D. with the name Allan B. Reyes to Sgt. Esgana, the guard-on-duty at Gate 3 of the Cinco Hermanos Subdivision. Upon reaching the house of Pelagio, Dela Cruz was let in by Rebecca, Pelagio's daughter. Dela Cruz went straight to the kitchen.

According to Pelagio, Dela Cruz was a messenger in his law firm who got fired based on his secretary's recommendation that Dela Cruz had been absent without leave at least three times. He said that he would write Dela Cruz a recommendation letter which the latter could pick up from the office. As he escorted Dela Cruz out towards the garage gate, the latter suddenly stabbed him at the back and kept on stabbing him until he lost his balance. When he managed to turn and face Dela Cruz, the latter kept on stabbing him frontally. He tried to put his arms around Dela Cruz but his attacker shook him off. As he ran towards the kitchen, Dela Cruz chased and kept on stabbing him at the back of his left shoulder. At this point, Juliana appeared and rushed to him begging, "Leo, tama na, tama na, tama na." Dela Cruz dropped the knife and ran towards the garage. As Juliana was attending to her husband, Dela Cruz suddenly reappeared and stabbed her at the back with a letter opener. As she jerked backward, she received another stab below the left shoulder. She tried to ward off the letter opener with her left hand, but again was stabbed at the back of her left arm. Pelagio shouted, "Huwag Leo, si Julie yan." When the letter opener broke, Dela Cruz dropped the instrument and rushed outside where he was apprehended. Juliana died as a result. ISSUE: In a case, can all aggravating circumstances alleged be appreciated? HELD: No. When treachery is present, an allegation of abuse of superior strength can no longer be appreciated as an independent aggravating circumstance. The same holds true with the circumstance of disregard of the respect on account of rank, age or sex, which in this case could not be aggravating. In like manner, we do not find that disguise, fraud or craft attended the commission of the crimes. Also, we find no intellectual trickery nor cunning resorted to by appellant to lure his victims into a trap and conceal his identity. However, the Court agrees that dwelling aggravated the commission of the crimes. Appellant's greater perversity was revealed when he deliberately entered the victims' domicile, at the pretext of soliciting help from its owners. The garage, where the incidents took place, is undoubtedly an integral part of the victims' residence. Cleary, the presence of the attending circumstances of this case qualified the killing of Juliana to murder. As to the attack on Pelagio, the crime committed was frustrated murder as appellant performed all acts of execution which would have claimed the life of Pelagio but because of the prompt medical intervention, a cause independent of the appellants will, Pelagio survived.

C. AGREEMENTS PRIOR TO MARRIAGE 1. STIPULATIONS PRIOR TO MARRIAGE PANGANIBAN VS BORROMEO These proceedings looking to the disbarment of the respondent attorney are before us on the representations of the Solicitor-General that the respondent appear and show cause, if any he has, why he should not be proceeded against for professional malpractice. The respondent admits that, in his capacity as notary public he legalized the document which is the basis of the complaint against him, and that the document contains provisions contrary to law, morals and good customs, but by way of defense disclaims any previous knowledge of the illegal character of the document. On November 25, 1931, Alejandro Pabro and Juana Mappala husband and wife, subscribed a contract before the notary public Elias Borromeo, who was at that time a regularly admitted member of the Philippine Bar. The contract in question had been prepared by the municipal secretary of Naguilian, Isabela. Attorney Borromeo cooperated in the execution of the document and had, at lease, some knowledge of its contents, although he may not have been fully informed because of a difference in dialect. The contract in substance purported to formulate an agreement between the husband and the wife which permitted the husband to take unto himself a concubine and the wife to live in adulterous relationship with another man, without opposition from either one of them. Two questions are suggested by the record. The first concerns the points of whether or not the contract sanctioned an illicit and immoral purpose. The second concerns the point, on the supposition that the contract did sanction an illicit and immoral purpose, of whether a lawyer may be disciplined for misconduct as a notary public. The contract of the spouses, it will be recalled, was executed at a time when the Spanish Penal Code, as modified by Act No. 1773 was in force. Conceding, however, that the more liberal provisions of the Revised Penal Code should be given application, it is herein provided that the consent or pardon given by the offended party constitutes a bar to prosecution for adultery or concubinage. In this instance, if the spouses should retain their present frame of mind, no prosecution of either one by the other could be expected. Nevertheless, we think it far from the purpose of the Legislature to legalize adultery and concubinage. They still remain crimes, with the qualification that prosecution cannot be instituted if the offended party consent to the act or pardon the offender. This is a matter of future contingency and is not matter for legalization in wanton disregard of good morals. We hold the contract to contain provisions contrary to law, morals and public order, and as a consequence not judicially recognizable. Passing to the second question, we think there can be no question as to the right of the court to discipline an

attorney who, in his capacity as notary public, has been guilty of misconduct. To the office of notary public there is not attached such importance under present conditions as under the Spanish administration. Even so, the notary public exercise duties calling for carefulness and faithfulness. It is for the notary to inform himself of the facts to which he intends to certify, and to take part in no illegal enterprise. The notary public is usually a person who has been admitted to the practice of law, and such, in the commingling of his duties as notary and lawyer, must be held responsible for both. We are led to hold that a member of the bar who performs an act as a notary public of a disgraceful or immoral character may be held to account by the court even to the extent of disbarment. (See 2 Thornton on Attorneys At Law, pp. 1258, 1259; In re Chappell [1909], 115 N.Y.S., 868; In re Bernard [1912], 136 N.Y.S., 185; In re Arctander [1879], 1 N.W., 43; In re Terrell [1903], 2 Phil., 266; In re Adriatico [1906], 7 Phil., 173; U.S. vs. Kilayko [1916], 34 Phil., 796; De la Cruz vs. Capinpin and Albea [1918], 38 Phil., 492.) It now becomes necessary to pronounce sentence. As mitigating circumstances, there may be taken into consideration (1) that the attorney may not have realized the full purport of the document to which he took acknowledgment, (2) that no falsification of facts was attempted, and (3) that the commission of the respondent as a notary public has been revoked. Accordingly, we are disposed in this case to exercise clemency and to confine our discipline of the respondent to severe censure. So ordered.

admissibility of oral evidence to support contracts like the one in question and permit the contract to be proved, by evidence other than a writing, it will be just as binding upon the parties as if it had been reduced to writing.

CABAGUE VS AUXILIO According to the Rules of Court parol evidence is not admissible to prove anagreement made upon the consideration of marriage other than a mutual promise to marry. This litigation calls for application of that rule. In the justice of the peace court of Basud, Camarines Norte, Felipe Cabague and his son Geronimo sued the defendant Matias Auxilio and his daughter Socorro to recover damages resulting from defendants' refusal to carry out the previously agreed marriage between Socorro and Geronimo. The complaint alleged, in short: (a) that defendants promised such marriage to plaintiffs, provided the latter would improve the defendants' house in Basud and spend for the wedding feast and the needs of the bride; (b) that relying upon such promises plaintiffs made the improvement and spent P700; and (c) that without cause defendants refused to honor their pledged word. The defendants moved to dismiss, arguing that the contract was oral, unenforceable under the rule of evidence hereinbefore mentioned. And the court dismissed the case. On appeal to the Court of First Instance, the plaintiffs reproduced their complaint and defendants reiterated their motion to dismiss. From an order of dismissal this appeal was perfected in due time and form. It should be observed preliminarily that, under the former rules of procedure, when the complaint did not state whether the contract sued on was in writing or not, the statute of frauds could be no ground for demurrer. Under the new Rules "defendant may now present a motion to dismiss on the ground that the contract was not in writing, even if such fact is not apparent on the face of the complaint. The fact may be proved by him." (Moran Rules of Court 2d ed. p. 139 Vol. I.) There is no question here that the transaction was not in writing. The only issue is whether it may be proved in court.T he understanding between the plaintiffs on one side and the defendants on the other, really involves two kinds of agreement. One, the agreement between Felipe Cabague and the defendants in consideration of the marriage of Socorro and Geronimo. Another, the agreement between the two lovers, as "a mutual promise to marry". For breach of that mutual promise to marry, Geronimo may sue Socorro for damages. This is such action, and evidence of such mutual promise is admissible. However Felipe Cabague's action may not prosper, because it is to enforce an agreement in consideration of marriage. Evidently as to Felipe Cabague and Matias Auxilio this action could not be maintained on

2. BREACH OF PROMISE TO MARRY DOMALAGAN VS BOLIFER FACTS: plaintiff alleged that he and the defendant entered into a contract by virtue of the terms of which he was to pay to the defendant a certain amount upon the marriage of his son with the daughter of the defendant; that he has completed his obligation under said contract by paying the stipulated amount; that notwithstanding said agreement, the daughter was joined to a lawful wedlock with another man not his son; that immediately upon learning of the marriage, he demanded the return of the payment he has made. The trail court rendered a judgment in favor of the plaintiff and against the defendant. ISSUE: Whether or not the verbal contract entered into by the plaintiff and the defendant in regard to the delivery of the money by reason of a prospective marriage is valid and effective. HELD: Plaintiff invokes paragraph 3 of section 335 of the Code of Procedure in Civil Action and, appellant argues that the verbal contract, not having been reduced to writing, plaintiff cannot recover. The section relied upon by the does not render oral contracts invalid. If the parties to an action, during the trial of the cause, make no objection to the

the theory of "mutual promise to marry". Neither may it be regarded as action by Felipe against Socorro "on a mutual promise to marry." Consequently, we declare that Geronimo may continue his action against Socorro for such damages as may have resulted from her failure to carry out their mutualmatrimonial promises .Wherefore this expediente will be returned to the lower court for further proceedings in accordance with this opinion. So ordered

Sept. 3, he sent her a telegram and told her that nothing has changed, that he is returning and he apologizes. Thereafter, Velez did not appear nor was he heard from again. Wassmer sued him for damages. Velez filed no answer and was declared in default. ISSUE: Is the case at bar a mere breach of promise to marry? RULING: Surely, this is not a case of mere breach of promise to marry. As stated, mere breach of promise to marry is not an actionable wrong. But to formally set a wedding and go through all the preparation and publicity, only to walk out of it when the matrimony is about to be solemnized, is quite different. This is palpably and unjustifiably contrary to good customs for which defendant must be held answerable in damages in accordance with Art. 21 of the NCC which provides that "any person who willfully causes loss or injury to another in a manner that is contrary to morals, good customs or public policy shall compensate the latter for the damage." DECISION: Affirmed.

HERMOSISIMA VS COURT OF APPEALS FACTS: An appeal by certiorari, on October 4, 1954, Soledad Cagigas, hereinafter referred to as complainant, filed with the said CFI a complaint for the acknowledgment of her child, Chris Hermosisima, as a natural child of said petitioner, as well as for support of said child and moral damages for alleged breach of promise to marry. Petitioner admitted the paternity of the child and expressed willingness to support the latter, but denied having ever promised to marry complainant. Complainant Soledad Cagigas, was born in July 1917, since 1950, Soledad then a teacher and petitioner who was almost ten years younger than her used to go around together and were regarded as engaged, although he made no promise of marriage thereto. In 1951, she gave up teaching and became a life insurance underwriter where intimacy developed between her and petitioner, since one evening in 1953 when after coming from the movies, they had sexual intercourse in his cabin on board MV Escano to which he was then attached as apprentice pilot. In February 1954, Soledad advised petitioner that she was pregnant, whereupon he promised to marry her. However, subsequently, or on July 24, 1954, defendant married one Romanita Perez. ISSUE: Whether or not moral damages are recoverable under our laws for breach of promise to marry. HELD: It appearing that because of the defendant-appellants seductive prowess, plaintiff-appellee overwhelmed by her love for him yielded to his sexual desires in spite of her age and self-control. In the present case, the court is unable to say that petitioner is morally guilty of seduction, not only because he is approximately ten years younger but also because the Court of First Instance found that complainant surrendered herself to the petitioner because overwhelmed by her love for him she wanted to bind him by having a fruit of their engagement even before they had the benefit of clergy.

TANJANCO VS COURT OF APPEALS Facts: Apolonio Trajanco courted Araceli Santos. Since he promised her marriage, she consented to his pleas for carnal knowledge. As a result, she conceived a child, and due to her condition, she had to resign from her work. Because she was unable to support herself and the baby, and the Apolonio refused to marry her, she instituted an action for damages, compelling the defendant to recognize the unborn child, pay her monthly support, plus P100,000 in moral and exemplary damages. Issue: Whether or not the acts of petitioner constitute seduction as contemplated in Art. 21. Held: No, it is not. Seduction is more than mere sexual intercourse or a breach of promise to marry. It connotes essentially the idea of deceit, enticement superior power or abuse of confidence on the part of the seducer to which the woman has yielded. In this case, for 1 whole year, the woman maintained intimate sexual relations with the defendant, and such conduct is incompatible with the idea of seduction. Plainly here there is voluntariness and mutual passion, for had the plaintiff been deceived, she would not have again yielded to his embraces for a year.

WASSMER VS VELEZ FACTS: Francisco Velez and Beatriz Wassmer, following their mutual promise of love, decided to get married and set Sept. 4, 1954 as the big day. On Sept. 2, 1954, Velez left a note for his bride-to-be saying that he wants to postpone the marriage as his mother opposes it and that he is leaving. But the next day,

GASHEEM SHOKAT BAKSH vs. COURT OF APPEALS

MARIATEGUI VS COURT OF APPEALS Facts: Private respondent, without the assistance of counsel, filed with the trial court a complaint against the petitioner for the alleged violation of their agreement of marriage. Respondent alleged that she is 22 years old, single, Filipino and pretty lass of good moral character and reputation duly respected in her community. Petitioner, on the other hand, is an Iranian citizen residing at the Lozano Apartment, Guilig, Dagupan City, and is an exchange student at the Lyceum Northwestern Colleges. Before August 20, 1987, the latter courted and proposed to marry her. She accepted his love on the condition that they would get married. Petitioner then visited the respondents parents in Banaga, Pangasinan to secure their approval to the marriage. Sometime on August 20, 1987, the petitioner forced her to live with him in the Lozano Apartment. She was a virgin before she began living with him.A week before the filing of the complaint, petitioners attitude towards her started to change. He maltreated her and threatened to kill her, and as a result of such maltreatment, she sustained injuries. During a confrontation with a representative of the barangay captain of Guilig a day before the filing of the complaint, petitioner repudiated their marriage agreement and asked her not to live with him anymore and; the petitioner is already married to someone living inBacolod City. Private respondent then prayed for judgment ordering the petitioner to pay her damages in the amount not less than P45,000, reimbursement for actual expenses amounting to P600, attorneys fees and costs, and granting her such other relief and remedies as maybe just and equitable, which then rendered decision by court in favor of private respondent. Issue: Whether or not damages is recoverable for breach of promise to marry. Held: The Supreme Court held that when a mans promise to marry is in fact the proximate cause of the acceptance of his love by a woman and his representation to fulfill that promise thereafter becomes proximate cause of the giving of herself unto him in the sexual congress, proof that he had, in reality, no intention of marrying her and that the promise was only a subtle scheme or deceptive device to entice or inveigle her to accept him and to obtain her consent to the sexual act, could justify the award of damages pursuant to Art. 21 not because of such promise to marry but because of the fraud and deceit behind it and the willful injury to her honor and reputation which followed thereafter. It is essential, however, that such injury should have been committed in a manner contrary to morals, good customs, or public policy. FACTS: Lupo Mariategui died without a will on June 26, 1953 and contracted 3 marriages during his lifetime. He acquired the Muntinlupa Estate while he was still a bachelor. He had 4 children with his first wife Eusebia Montellano, who died in 1904 namely Baldomera, Maria del Rosario, Urbano and Ireneo. Baldomera had 7 children namely Antero, Rufina, Catalino, Maria, Gerardo, Virginia and Federico, all surnamed Espina. Ireneo on the other hand had a son named Ruperto. On the other hand, Lupos second wife is Flaviana Montellano where they had a daughter named Cresenciana. Lupo got married for the third time in 1930 with Felipa Velasco and had 3 children namely Jacinto, Julian and Paulina. Jacinto testified that his parents got married before a Justice of the Peace of Taguig Rizal. The spouses deported themselves as husband and wife, and were known in the community to be such. Lupos descendants by his first and second marriages executed a deed of extrajudicial partition whereby they adjudicated themselves Lot NO. 163 of the Muntinlupa Estate and was subjected to a voluntary registration proceedings and a decree ordering the registration of the lot was issued. The siblings in the third marriage prayed for inclusion in the partition of the estate of their deceased father and annulment of the deed of extrajudicial partition dated Dec. 1967. ISSUE: Whether the marriage of Lupo with Felipa is valid in the absence of a marriage license. HELD: Although no marriage certificate was introduced to prove Lupo and Felipas marriage, no evidence was likewise offered to controvert these facts. Moreover, the mere fact that no record of the marriage exists does not invalidate the marriage, provided all requisites for its validity are present. Under these circumstances, a marriage may be presumed to have taken place between Lupo and Felipa. The laws presume that a man and a woman, deporting themselves as husband and wife, have entered into a lawful contract of marriage; that a child born in lawful wedlock, there being no divorce, absolute or from bed and board is legitimate; and that things have happened according to the ordinary course of nature and the ordinary habits of life. Hence, Felipas children are legitimate and therefore have successional rights.

D. REQUISITES FOR A VALID MARRIAGE

1. KINDS OF REQUISITES AND EFFECTS OF NONCOMPLIANCE

MALLION VS ALCANTARA Facts: Oscar Mallion filed a petition with the Regional Trial Court seeking a declarationof nullity of his marriage with Editha Alcantara due to psychological incapacity. The RTC denied the petition for failure to adduce preponderance of evidence. As the decision attained finality, Mallion filed another petition for a declaration of nullity of marriage, this time alleging that his marriage was null and void due to the fact that it was celebrated without a valid marriage license. It was later dismissed by the petition filed by the respondent on the ground of res judicata and forum shopping. Hence, this appeal. Issue: Does a previous final judgment denying a petition for declaration of nullity on the ground of psychological incapacity bar a subsequent petition for declaration of nullity on the ground of lack of marriage license? Held: Yes. Petition is denied. Ratio: Res judicata applies. Declaration of nullity of marriage on the ground of lack of marriage license is barred by earlier decision on psychological capacity. Mallion is simply invoking different grounds for the same cause of action, which is the nullity of marriage. When the second case was filed based on another ground, there is a splitting of a cause of action, which is prohibited. He is estopped from asserting that the marriage had no marriage license because he impliedly admitted the same when he did not question the absence of a marriage license in the first case. ISSUE: Whether the decree of divorce submitted by Rederick Recio is admissible as evidence to prove his legal capacity to marry petitioner and absolved him of bigamy.

HELD: The nullity of Redericks marriage with Editha as shown by the divorce decree issued was valid and recognized in the Philippines since the respondent is a naturalized Australian. However, there is absolutely no evidence that proves respondents legal capacity to marry petitioner though the former presented a divorce decree. The said decree, being a foreign document was inadmissible to court as evidence primarily because it was not authenticated by the consul/ embassy of the country where it will be used. Under Sections 24 and 25 of Rule 132, a writing or document may be proven as a public or official record of a foreign country by either: (1) an official publication or (2) a copy thereof attested by the officer having legal custody of the document. If the record is not kept in the Philippines, such copy must be: (a) accompanied by a certificate issued by the proper diplomatic or consular officer in the Philippine foreign service stationed in the foreign country in which the record is kept and (b) authenticated by the seal of his office. Thus, the Supreme Court remands the case to the Regional Trial Court of Cabanatuan City to receive or trial evidence that will conclusively prove respondents legal capacity to marry petitioner and thus free him on the ground of bigamy.

2. ESSENTIAL REQUISITES (iii) Absence of Impediment GARCIA-RECIO VS RECIO FACTS: Rederick A. Recio, a Filipino, was married to Editha Samson, an Australian Citizen, in Malabon, Rizal on March 1, 1987. They lived as husband and wife in Australia. However, an Australian family court issued purportedly a decree of divorce, dissolving the marriage of Rederick and Editha on May 18, 1989. On January 12, 1994, Rederick married Grace J. Garcia where it was solemnized at Our lady of Perpetual Help Church, Cabanatuan City. Since October 22, 1995, the couple lived separately without prior judicial dissolution of their marriage. As a matter of fact, while they were still in Australia, their conjugal assets were divided on May 16, 1996, in accordance with their Statutory Declarations secured in Australia. Grace filed a Complaint for Declaration of Nullity of Marriage on the ground of bigamy on March 3, 1998, claiming that she learned only in November 1997, Redericks marriage with Editha Samson.

TE vs CHOA FACTS: 1. Arthur Te and Liliana Choa were married in civil rites on 1988 (Sept. 14). They did not live together after marriage although they would meet eachother regularly. 2. 1989, Liliana gave birth to a girl. Thereafter, Arthur stopped visiting her.3.1990 (May 20) Arthur contracted a second marriage while marriage with Liliana was subsisting. 4. Liliana filed bigamy case against Arthur and subsequently an administrative case (revocation of engineering license for grossly immoral act) against nd Arthur and Julieta Santella (2 wife of Arthur) 5.Arthur petitioned for the nullity of his marriage with Liliana. 6.RTC and Board rendered decision while the petition for annulment of first marriage was pending. ISSUE: Marriage annulment case had to be resolved first before criminal andadministrative case be rendered judgment? HELD: NO.

1.P. v. Mendoza and P. v. Aragon ruling (no judicial decree is necessary to establish the invalidity of a marriage which is ab initio) was overturned. 2.Family Code Art. 40 is the prevailing rule: the absolute nullity of a previous marriage may not be invoked for purposes of remarriage unless there is a final judgment declaring such previous marriage void. 3.Under the law, a marriage, even one which is void or voidable, shall be deemed valid until declared otherwise in a judicial proceeding. RD: Absence of Impediment. FC. Art. 5: any male or female of the age of 18yrs or upwards not under any of the impediments mentioned under art. 37 & 38, may contract marriage. Case: Since it was deemed that the marriage of Arthur and Liliana was valid, bigamous marriage between Arthur and Julieta is void. (see. NCC Art. 80)

VILLANUEVA VS COURT OF APPEALS Facts: This is a petition assailing the decision of the CA dismissing the appeal of the petitioners. CA rendered that there was no contract of sale. - In 1985, Gamaliel Villanueva (tenant) of a unit in the 3-door apartment building owned by defendantsspouses (now private respondents) Jose Dela Cruz and Leonila dela Cruz located at Project 8, Quezon City. - About February of 1986, Dela Cruz offered said parcel of land with the 3-door apartment building for sale and plaintiffs, son and mother, showed interest in the property. - Because said property was in arrears(overdue) in the payment of the realty taxes, dela Cruz approached Irene Villanueva and asked for a certain amount to pay for the taxes so that the property would be cleared of any incumbrance. - Irene Villanueva gave P10,000.00 on two occasions. It was agreed by them that said P10,000.00 would form part of the sale price of P550,000.00. - Dela Cruz went to plaintiff Irene Villanueva bringing with him Mr. Ben Sabio, a tenant of one of the units in the 3-door apartment building and requested Villanueva to allow said Sabio to purchase one-half (1/2) of the property where the unit occupied by him pertained to which the plaintiffs consented, so that they would just purchase the other half portion and would be paying only P265,000.00, they having already given an amount of P10,000.00 used for paying the realty taxes in arrears. - Accordingly the property was subdivided and two (2) separate titles were secured by defendants Dela Cruz. Mr. Ben Sabio immediately made payments by installments. - March 1987 Dela Cruz executed in favor of their codefendants, the spouses Guido Pili and Felicitas Pili, a Deed of Assignment of the other one-half portion of the parcel of land wherein plaintiff Gamaliel Villanuevas apartment unit is situated, purportedly as full payment and satisfaction of an indebtedness obtained from defendants Pili. - the Transfer Certificate of Title No. 356040 was issued in the name of defendants Pili on the same day. - The plaintiffs came to know of such assignment and transfer and issuance of a new certificate of title in favor of defendants Pili. - plaintiff Gamaliel Villanueva complained to the barangay captain of Bahay Turo, Quezon City, on the ground that there was already an agreement between defendants Dela Cruz and themselves that said portion of the parcel of land owned by defendants Dela Cruz would be sold to him. As there was no settlement arrived at, the plaintiffs elevated their complaint to this Court through the instant action. - RTC rendered its decision in favor of Dela Cruz. CA affirmed. ISSUE: WON there was a perfected sale between Villanueva and Dela Cruz.

(c) Effect of Fraud ANAYA VS PALAROAN FACTS: Aurora Anaya and Fernando Palaroan were married in 1953. Palaroan filed an action for annulment of the marriage in 1954 on the ground that his consent was obtained through force and intimidation. The complaint was dismissed and upheld the validity of the marriage and granting Auroras counterclaim. While the amount of counterclaim was being negotiated, Fernando divulged to her that several months prior to their marriage, he had premarital relationship with a close relative of his. According to her, the non-divulgement to her of such pre-marital secret constituted fraud in obtaining her consent. She prayed for the annulment of her marriage with Fernando on such ground. ISSUE: Whether or not the concealment to a wife by her husband of his pre-marital relationship with another woman is a ground for annulment of marriage. HELD: The concealment of a husbands pre-marital relationship with another woman was not one of those enumerated that would constitute fraud as ground for annulment and it is further excluded by the last paragraph providing that no other misrepresentation or deceit as to.. chastity shall give ground for an action to annul a marriage. Hence, the case at bar does not constitute fraud and therefore would not warrant an annulment of marriage.

(d) Effect of Force, Intimidation, and Undue Influence

HELD: - Petitioners contend that private respondents counsel admitted that P10,000 is partial or advance

payment of the property. Necessarily then, there must have been an agreement as to price, hence, a perfected sale. They cite Article 1482 of the Civil Code which provides that (w)henever earnest money is given in a contract of sale, it shall be considered as part of the price and as proof of the perfection of the contract. - Private respondents contradict this claim with the argument that (w)hat was clearly agreed (upon) between petitioners and respondents Dela Cruz was that the P10,000.00 primarily intended as payment for realty tax was going to form part of the consideration of the sale if and when the transaction would finally be consummated. Private respondents insist that there was no clear agreement as to the true amount of consideration. - Dela Cruz testimony during the cross-examination firmly negated any price agreement with petitioners because he and his wife quoted the price of P575,000.00 and did not agree to reduce it to P550,000.00 as claimed by petitioner. - Villanueva on cross-examination: After the Deed of Sale relative to the purchase of the property was prepared, Mr. dela Cruz came to me and told me that he talked with one of the tenants and he offered to buy the portion he was occupying if I will agree and I will cause the partition of the property between us. Villanueva said that he agreed and that the price 550,000 was to be divided into two. (Sabio and Villanueva) *The contract which the appellant is referring to was not presented to the court and the appellant did not use all effort to produce the said contract. - SC: The price of the leased land not having been fixed, the essential elements which give life to the contract were lacking. It follows that the lessee cannot compel the lessor to sell the leased land to him. The price must be certain, it must be real, not fictitious. A contract of sale is not void for uncertainty when the price, though not directly stated in terms of pesos and centavos, can be made certain by reference to existing invoices identified in the agreement. In this respect, the contract of sale is perfected. The price must be certain, otherwise there is no true consent between the parties. There can be no sale without a price. - In the instant case, however, what is dramatically clear from the evidence is that there was no meeting of mind as to the price, expressly or impliedly, directly or indirectly. - Sale is a consensual contract. He who alleges it must show its existence by competent proof. Here, the very essential element of price has not been proven. - Lastly, petitioners claim that they are ready to pay private respondents is immaterial and irrelevant as the latter cannot be forced to accept such payment, there being no perfected contract of sale in the first place.

FACTS: Joel Jimenez, the petitioner, filed a petition for the annulment of his marriage with Remedios Canizares on the ground that the orifice of her genitals or vagina was too small to allow the penetration of a male organ for copulation. It has existed at the time of the marriage and continues to exist that led him to leave the conjugal home two nights and one day after the marriage. The court summoned and gave a copy to the wife but the latter did not file any answer. The wife was ordered to submit herself to physical examination and to file a medical certificate within 10 days. She was given another 5 days to comply or else it will be deemed lack of interest on her part and therefore rendering judgment in favor of the petitioner. ISSUE: Whether or not the marriage can be annulled with only the testimony of the husband. HELD: The wife who was claimed to be impotent by her husband did not avail of the opportunity to defend herself and as such, claim cannot be convincingly be concluded. It is a well-known fact that women in this country are shy and bashful and would not readily and unhesitatingly submit to a physical examination unless compelled by competent authority. Such physical examination in this case is not self-incriminating. She is not charged with any offense and likewise is not compelled to be a witness against herself. Impotence being an abnormal condition should not be presumed. The case was remanded to trial court.

ALCAZAR vs ALCAZAR Petition to reverse decision to dismiss the annulment complaint by Veronica Alcazar FACTS - Oct 11, 2000 - Got married in Occidental Mindoro - Oct 11 16 - Lived with Reys parents (Mindoro) - Oct 16 23 Lived in Manila but Rey wanted and lived separately - Oct 23 - Rey left the Philippines to be an OFW in Saudi. After this he never contacted Veronica ever again despite her calls and letters - March, 2002 - Rey returned to the Philippines and lived with his parents. Rey did not inform Veronica about him returning. -Veronica filed a complaint for the annulment of the marriage on the ground that Rey is incapable of consummating their marriage. - She brought Nedy T. Tayag (Psychologist) to testify on his examination on Rey. - He is diagnosed to have a Narcissistic Personality Disorder, the rooted from childhood and is a long lasting disorder and is therefore incapacitated to properly assume and comply with the essential roles and obligations of a marriedman. - And that this disorder existed even prior to the marriage of Veronica and Rey

(e) Effect of physical incapacity / impotence JIMENEZ VS CANIZARES

- RTC denied Veronicas petition saying that not coming to live with her is not incapacity, and that the disorder alleged was not proven to have existed even prior to marriage. -CA Affirmed ISSUES: -W/N Rey is psychologically incapacitated from performing the essential marital obligations HELD: NO. ART. 45. A marriage may be annulled for any of the following causes, existing at thetime of the marriage:(5) That either party was physically incapable of consummating the marriage with the other, and such incapacity continues and appears to be incurable; x x - The incapacity that Art. 45 was saying is the incapacity to copulate, its the incapacity of the other party to perform and complete the act of sexual intercourse. Non-consummation of a marriage may be on thepart of the husband or of the wife and may be caused by a physical or structural defect in the anatomyof one of the parties or it may be due to chronic illness and inhibitions or fears arising in whole or in partfrom psychophysical conditions. It may be caused by psychogenic causes, where such mental block or disturbance has the result of making the spouse physically incapable of performing the marriage act. - There was no evidence of Rey being incapable to sexual intercourse. - Her attorney cited the wrong article and the mistake of the attorney as a principle binds the client. - What she was alleging was the things mentioned in art.36 (Mental Incapacity) - For arguments sake the court still discussed that even if the attorney correctly filed under the correct article the case would still be dismissed. - The complainant was still lacking in evidence to prove the incapacity. - Veronica only proved that Rey did not want to live with her when he came back it is not incapacity. - The burden falls upon petitioner, not just to prove that respondent suffers from a psychological disorder, but also that such psychological disorder renders him "truly incognitive of the basic marital covenants that concomitantly must be assumed and discharged by the parties to the marriage. Psychological incapacity must be more than just a "difficulty," a "refusal," or a "neglect" in the performance of so memarital obligations. - An unsatisfactory marriage is not a null and void marriage