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G.R. No. L-25355

August 28, 1969

THE PEOPLE OF THE PHILIPPINES, plaintiff, vs.FROILAN LAGRIMAS, accused, HEIRS OF PELAGIO CAGRO, heirs-appellants, MERCEDES AGUIRRE DE LAGRIMAS, movantappellee.
FERNANDO, J.:
The Civil Code, under the conditions therein specified, recognizes the liability of the conjugal partnership for fines and indemnities imposed upon either husband or wife "after the
responsibilities enumerated in article 161 have been covered," in the absence of any separate property of the offending spouse or its insufficiency. 1 How such an obligation "may be
enforced against the partnership assets" is the question, one of first impression, raised in this appeal from a lower court order, based on the assumption of the total exemption of the
conjugal partnership from the liability thus incurred, prior to the stage of liquidation. The result was to set aside the preliminary attachment and thereafter the writ of execution in favor
of the heirs of the murdered victim, appellants before us, the judgment against the accused imposing not only the penalty of reclusion perpetua but also the indemnification to such
heirs having attained the status of finality. In view of the failure, apparent on the face of the appealed order, to respect what the Civil Code ordains, we reverse and remand the case for
further proceedings.
The brief of appellants, the heirs of Pelagio Cagro, the murdered victim, discloses that on February 19, 1960 an information was filed against the accused, Froilan Lagrimas, for the
above murder committed on February 15, 1960 in Pambujan, Samar. Thereafter, appellants as such heirs, filed on February 27, 1960 a motion for the issuance of a writ of preliminary
attachment on the property of the accused, such motion being granted in an order of March 5, 1960. After trial, the lower court found the accused guilty of the crime charged and
sentenced him to suffer the penalty of reclusion perpetua and to indemnify the appellants as such heirs in the sum of P6,000.00 plus the additional sum of P10,000.00 in the concept of
damages, attorney's fees and burial expenses. An appeal from the judgment was elevated to this Court by the accused but thereafter withdrawn, the judgment, therefore, becoming
final on October 11, 1962.
A writ of execution to cover the civil indemnity was issued by the lower court upon motion of appellants. A levy was had on eleven parcels of land in the province declared for tax
purposes in the name of the accused. The sale thereof at public auction was scheduled on January 5, 1965 but on December 29, 1964 the wife of the accused, Mercedes Aguirre de
Lagrimas, filed a motion to quash the writ of attachment as well as the writ of execution with the allegation that the property levied upon belonged to the conjugal partnership and,
therefore, could not be held liable for the pecuniary indemnity the husband was required to pay. The then judge of the lower court granted such motion declaring null and void the order
of attachment and the writ of execution, in accordance with Article 161 of the new Civil Code. Another judge of the same lower court set aside the above order, sustaining the legality of
the preliminary attachment as well as the writ of execution. Thereafter, upon appellee filing a motion for the reconsideration of the above order giving due course to the writ of
execution, a third judge, then presiding over such court, the Hon. Ignacio Mangosing, revived the original order of March 5, 1960, declaring such attachment and the writ of execution
thereafter issued as null and void.
This order of August 7, 1965, now on appeal, was premised on the following considerations: "It can be readily seen from the above-quoted provisions of law that only debts contracted
by the husband or the wife before the marriage, and those of fines and indemnities imposed upon them, may be enforced against the partnership assets after the charges enumerated
in article 161 have been covered. So that as long as the obligations mentioned in said article 161 have not been paid, the assets of the partnership cannot be made to answer for
indemnities like the one being sought to be enforced in the instant case. And, before the obligations enumerated in said article 161 can be paid, the conjugal partnership properties
should first, by necessity, be liquidated, and liquidation can take place only after the dissolution of the partnership thru the occurrence of any of the causes mentioned in article 175 of
the same Code, one of which is death of one of the spouses. Since both are still living there cannot be any dissolution, imprisonment for life of the husband notwithstanding, in the
absence of a judicial separation of properly decreed in accordance with the provisions of article 191 thereof. Moreover, the fines and indemnities sought to be charged against the
ganancial properties of the accused and his wife are not such debts and obligations contracted by said accused for the benefit of the conjugal partnership." 2
The conclusion arrived at by Judge Mangosing follows: "We sympathize with the predicament of the widow and other heirs of the deceased Pelagio Cagro, but the law is clear on the
matter. The indemnities adjudged by the Court in their favor may only be charged against the exclusive properties of the accused if he has any, or against his share in the partnership
assets after liquidation thereof if any still remains after the payment of all the items enumerated in article 161 of the said Civil Code." 3
Hence, this appeal, the heirs of Pelagio Cagro assigning as sole error the quashing and annulling of the writs of attachment and execution aforesaid. As stated at the outset, we find
the appeal meritorious.
The applicable Civil Code provision 4 is not lacking in explicitness. Fines and indemnities imposed upon either husband or wife "may be enforced against the partnership assets after
the responsibilities enumerated in article 161 have been covered, if the spouse who is bound should have no exclusive property or if it should be insufficient; ... ." It is quite plain,
therefore, that the period during which such a liability may be enforced presupposes that the conjugal partnership is still existing. The law speaks of "partnership assets." It
contemplates that the responsibilities to which enumerated in Article 161, chargeable against such assets, must be complied with first. It is thus obvious that the termination of the
conjugal partnership is not contemplated as a prerequisite. Whatever doubt may still remain should be erased by the concluding portion of this article which provides that "at the time of
the liquidation of the partnership such spouse shall be charged for what has been paid for the purposes above-mentioned."
What other conclusion can there be than that the interpretation placed upon this provision in the challenged order is at war with the plain terms thereof? It cannot elicit our acceptance.
Nor is the reason for such a codal provision difficult to discern. It is a fundamental postulate of our law that every person criminally liable for felony is also civilly liable. 5 The accused,
Froilan Lagrimas, was, as noted, found guilty of the crime of murder and sentenced toreclusion perpetua as well as to pay the indemnification to satisfy the civil liability incumbent upon
him. If the appealed order were to be upheld, he would be in effect exempt therefrom, the heirs of the offended party being made to suffer still further.
It would follow, therefore, that the Civil Code provision, as thus worded, precisely minimizes the possibility that such additional liability of an accused would be rendered nugatory. In
doing justice to the heirs of the murdered victim, no injustice is committed against the family of the offender. It is made a condition under this article of the Civil Code that the
responsibilities enumerated in Article 161, covering primarily the maintenance of the family and the education of the children of the spouses or the legitimate children of one of them as
well as other obligations of a preferential character, are first satisfied. It is thus apparent that the legal scheme cannot be susceptible to the charge that for a transgression of the law by
either husband or wife, the rest of the family may be made to bear burdens of an extremely onerous character.
The next question is how practical effect would be given this particular liability of the conjugal partnership for the payment of fines and indemnities imposed upon either husband or
wife? In the brief for appellants, the heirs of Pelagio Cagro, they seek the opportunity to present evidence as to how the partnership assets could be made to respond, this on the
assumption that the property levied upon does not belong exclusively to the convicted spouse.
Without departing from the principle thus announced, we make this further observation. Considering that the obligations mentioned in Article 161 are peculiarly within the knowledge of
the husband or of the wife whose conjugal partnership is made liable, the proof required of the beneficiaries of the indemnity should not be of the most exacting kind, ordinary
credibility sufficing. Otherwise, the husband or the wife, as the case may be, representing the conjugal partnership, may find the temptation to magnify its obligation irresistible so as to
defeat the right of recovery of the family of the offended party. That result is to be avoided. The lower court should be on the alert, therefore, in the appraisal of whatever evidence may

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be offered to assure compliance with this codal provision.WHEREFORE, the appealed order of August 7, 1965 is set aside and the case remanded to the court of origin for the
reception of evidence in accordance with this opinion. With costs against appellee Mercedes Aguirre de Lagrimas.
SECURITY BANK and TRUST COMPANY, Petitioner, vs.MAR TIERRA CORPORATION, WILFRIDO C. MARTINEZ, MIGUEL J. LACSON and RICARDO A. LOPA,Respondents.
May the conjugal partnership be held liable for an indemnity agreement entered into by the husband to accommodate a third party?
This issue confronts us in this petition for review on certiorari assailing the November 9, 1999 decision 1 of the Court of Appeals (CA) in CA-G.R. CV No. 48107.
On May 7, 1980, respondent Mar Tierra Corporation, through its president, Wilfrido C. Martinez, applied for aP12,000,000 credit accommodation with petitioner Security Bank and
Trust Company. Petitioner approved the application and entered into a credit line agreement with respondent corporation. It was secured by an indemnity agreement executed by
individual respondents Wilfrido C. Martinez, Miguel J. Lacson and Ricardo A. Lopa who bound themselves jointly and severally with respondent corporation for the payment of the loan.
On July 2, 1980, the credit line agreement was amended and increased to P14,000,000. Individual respondents correspondingly executed a new indemnity agreement in favor of the
bank to secure the increased credit line.
On September 25, 1981, respondent corporation availed of its credit line and received the sum of P9,952,000 which it undertook to pay on or before November 30, 1981. It was able to
pay P4,648,000 for the principal loan and P2,729,195.56 for the interest and other charges. However, respondent corporation was not able to pay the balance as it suffered business
reversals, eventually ceasing operations in 1984.
Unable to collect the balance of the loan, petitioner filed a complaint for a sum of money with a prayer for preliminary attachment against respondent corporation and individual
respondents in the Regional Trial Court (RTC) of Makati, Branch 66. It was docketed as Civil Case No. 3947.
Subsequently, however, petitioner had the case dismissed with respect to individual respondents Lacson and Lopa, 2 leaving Martinez as the remaining individual respondent.
On August 10, 1982, the RTC issued a writ of attachment on all real and personal properties of respondent corporation and individual respondent Martinez. As a consequence, the
conjugal house and lot of the spouses Wilfrido and Josefina Martinez in Barrio Calaanan, Caloocan City covered by Transfer Certificate of Title (TCT) No. 49158 was levied on.
The RTC rendered its decision3 on June 20, 1994. It held respondent corporation and individual respondent Martinez jointly and severally liable to petitioner for P5,304,000 plus 12%
interest per annum and 5% penalty commencing on June 21, 1982 until fully paid, plus P10,000 as attorneys fees. It, however, found that the obligation contracted by individual
respondent Martinez did not redound to the benefit of his family, hence, it ordered the lifting of the attachment on the conjugal house and lot of the spouses Martinez.
Dissatisfied with the RTC decision, petitioner appealed to the CA but the appellate court affirmed the trial courts decision in toto. Petitioner sought reconsideration but it was denied.
Hence, this petition.
Petitioner makes two basic assertions: (1) the RTC and CA erred in finding that respondent corporation availed ofP9,952,000 only from its credit line and not the entire P14,000,000
and (2) the RTC and CA were wrong in ruling that the conjugal partnership of the Martinez spouses could not be held liable for the obligation incurred by individual respondent
Martinez.
We uphold the CA.Factual findings of the CA, affirming those of the trial court, will not be disturbed on appeal but must be accorded great weight. 4 These findings are conclusive not
only on the parties but on this Court as well. 5
The CA affirmed the finding of the RTC that the amount availed of by respondent corporation from its credit line with petitioner was only P9,952,000. Both courts correctly pointed out
that petitioner itself admitted this amount when it alleged in paragraph seven of its complaint that respondent corporation "borrowed and received the principal sum
of P9,952,000."6 Petitioner was therefore bound by the factual finding of the appellate and trial courts, as well as by its own judicial admission, on this particular point.
At any rate, the issue of the amount actually availed of by respondent corporation is factual. It is not within the ambit of this Courts discretionary power of judicial review under Rule 45
of the Rules of Court which is concerned solely with questions of law.7
We now move on to the principal issue in this case. Under Article 161(1) of the Civil Code, 8 the conjugal partnership is liable for "all debts and obligations contracted by the husband for
the benefit of the conjugal partnership." But when are debts and obligations contracted by the husband alone considered for the benefit of and therefore chargeable against the
conjugal partnership? Is a surety agreement or an accommodation contract entered into by the husband in favor of his employer within the contemplation of the said provision?
We ruled as early as 1969 in Luzon Surety Co., Inc. v. de Garcia9 that, in acting as a guarantor or surety for another, the husband does not act for the benefit of the conjugal
partnership as the benefit is clearly intended for a third party.
In Ayala Investment and Development Corporation v. Court of Appeals,10 we ruled that, if the husband himself is the principal obligor in the contract, i.e., the direct recipient of the
money and services to be used in or for his own business or profession, the transaction falls within the term "obligations for the benefit of the conjugal partnership." In other words,
where the husband contracts an obligation on behalf of the family business, there is a legal presumption that such obligation redounds to the benefit of the conjugal partnership. 11
On the other hand, if the money or services are given to another person or entity and the husband acted only as a surety or guarantor, the transaction cannot by itself be deemed an
obligation for the benefit of the conjugal partnership. 12 It is for the benefit of the principal debtor and not for the surety or his family. No presumption is raised that, when a husband
enters into a contract of surety or accommodation agreement, it is for the benefit of the conjugal partnership. Proof must be presented to establish the benefit redounding to the
conjugal partnership.13 In the absence of any showing of benefit received by it, the conjugal partnership cannot be held liable on an indemnity agreement executed by the husband to
accommodate a third party.14

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In this case, the principal contract, the credit line agreement between petitioner and respondent corporation, was solely for the benefit of the latter. The accessory contract (the
indemnity agreement) under which individual respondent Martinez assumed the obligation of a surety for respondent corporation was similarly for the latters benefit. Petitioner had the
burden of proving that the conjugal partnership of the spouses Martinez benefited from the transaction. It failed to discharge that burden.
To hold the conjugal partnership liable for an obligation pertaining to the husband alone defeats the objective of the Civil Code to protect the solidarity and well being of the family as a
unit.15 The underlying concern of the law is the conservation of the conjugal partnership. 16 Hence, it limits the liability of the conjugal partnership only to debts and obligations
contracted by the husband for the benefit of the conjugal partnership.WHEREFORE, the petition is hereby DENIED.

Republic of the Philippines

SUPREME COURT
Manila
SECOND DIVISION
G.R. No. L-60174 February 16, 1983
EDUARDO FELIPE, HERMOGENA V. FELIPE AND VICENTE V. FELIPE, petitioners,
vs.
HEIRS OF MAXIMO ALDON, NAMELY: GIMENA ALMOSARA, SOFIA ALDON, SALVADOR ALDON, AND THE HONORABLE COURT OF
APPEALS, respondents.
ABAD SANTOS, J.:
Maximo Aldon married Gimena Almosara in 1936. The spouses bought several pieces of land sometime between 1948 and 1950. In 1960-62, the lands were
divided into three lots, 1370, 1371 and 1415 of the San Jacinto Public Land Subdivision, San Jacinto, Masbate.
In 1951, Gimena Almosara sold the lots to the spouses Eduardo Felipe and Hermogena V. Felipe. The sale was made without the consent of her husband,
Maximo.
On April 26, 1976, the heirs of Maximo Aldon, namely his widow Gimena and their children Sofia and Salvador Aldon, filed a complaint in the Court of First
Instance of Masbate against the Felipes. The complaint which was docketed as Civil Case No. 2372 alleged that the plaintiffs were the owners of Lots 1370,
1371 and 1415; that they had orally mortgaged the same to the defendants; and an offer to redeem the mortgage had been refused so they filed the complaint
in order to recover the three parcels of land.
The defendants asserted that they had acquired the lots from the plaintiffs by purchase and subsequent delivery to them. The trial court sustained the claim of
the defendants and rendered the following judgment:
a. declaring the defendants to be the lawful owners of the property subject of the present litigation;
b. declaring the complaint in the present action to be without merit and is therefore hereby ordered dismissed;
c. ordering the plaintiffs to pay to the defendants the amount of P2,000.00 as reasonable attorney's fees and to pay the costs of the suit.
The plaintiffs appealed the decision to the Court of Appeals which rendered the following judgment:
PREMISES CONSIDERED, the decision appealed from is hereby REVERSED and SET ASIDE, and a new one is hereby RENDERED, ordering the
defendants-appellees to surrender the lots in question as well as the plaintiffs'-appellants' muniments of title thereof to said plaintiffs-appellants, to make an
accounting of the produce derived from the lands including expenses incurred since 1951, and to solidarity turn over to the plaintiffs-appellants the NET
monetary value of the profits, after deducting the sum of P1,800.00. No attorney's fees nor moral damages are awarded for lack of any legal justification
therefor. No. costs.
The ratio of the judgment is stated in the following paragraphs of the decision penned by Justice Edgardo L. Paras with the concurrence of Justices Venicio
Escolin and Mariano A. Zosa:
One of the principal issues in the case involves the nature of the aforementioned conveyance or transaction, with appellants claiming the same to be
an oral contract of mortgage or antichresis, the redemption of which could be done anytime upon repayment of the P1,800.00 involved (incidentally the only
thing written about the transaction is the aforementioned receipt re the P1,800). Upon the other hand, appellees claim that the transaction was one of sale,
accordingly, redemption was improper. The appellees claim that plaintiffs never conveyed the property because of a loan or mortgage or antichresis and that
what really transpired was the execution of a contract of sale thru a private document designated as a 'Deed of Purchase and Sale' (Exhibit 1), the execution
having been made by Gimena Almosara in favor of appellee Hermogena V. Felipe.

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After a study of this case, we have come to the conclusion that the appellants are entitled to recover the ownership of the lots in question. We so hold because
although Exh. 1 concerning the sale made in 1951 of the disputed lots is, in Our opinion, not a forgery the fact is that the sale made by Gimena Almosara is
invalid, having been executed without the needed consent of her husband, the lots being conjugal. Appellees' argument that this was an issue not raised in the
pleadings is baseless, considering the fact that the complaint alleges that the parcels 'were purchased by plaintiff Gimena Almosara and her late husband
Maximo Aldon' (the lots having been purchased during the existence of the marriage, the same are presumed conjugal) and inferentially, by force of law, could
not, be disposed of by a wife without her husband's consent.
The defendants are now the appellants in this petition for review. They invoke several grounds in seeking the reversal of the decision of the Court of Appeals.
One of the grounds is factual in nature; petitioners claim that "respondent Court of Appeals has found as a fact that the 'Deed of Purchase and Sale' executed
by respondent Gimena Almosara is not a forgery and therefore its authenticity and due execution is already beyond question." We cannot consider this ground
because as a rule only questions of law are reviewed in proceedings under Rule 45 of the Rules of Court subject to well-defined exceptions not present in the
instant case.
The legal ground which deserves attention is the legal effect of a sale of lands belonging to the conjugal partnership made by the wife without the consent of the
husband.
It is useful at this point to re-state some elementary rules: The husband is the administrator of the conjugal partnership. (Art. 165, Civil Code.) Subject to certain
exceptions, the husband cannot alienate or encumber any real property of the conjugal partnership without the wife's consent. (Art. 166, Idem.) And the wife
cannot bind the conjugal partnership without the husband's consent, except in cases provided by law. (Art. 172, Idem.)
In the instant case, Gimena, the wife, sold lands belonging to the conjugal partnership without the consent of the husband and the sale is not covered by the
phrase "except in cases provided by law." The Court of Appeals described the sale as "invalid" - a term which is imprecise when used in relation to contracts
because the Civil Code uses specific names in designating defective contracts, namely: rescissible (Arts. 1380 et seq.), voidable(Arts. 1390 et
seq.), unenforceable (Arts. 1403, et seq.), and void or inexistent (Arts. 1409 et seq.)
The sale made by Gimena is certainly a defective contract but of what category? The answer: it is a voidable contract.
According to Art. 1390 of the Civil Code, among the voidable contracts are "[T]hose where one of the parties is incapable of giving consent to the contract." (Par.
1.) In the instant case-Gimena had no capacity to give consent to the contract of sale. The capacity to give consent belonged not even to the husband alone but
to both spouses.
The view that the contract made by Gimena is a voidable contract is supported by the legal provision that contracts entered by the husband without the consent
of the wife when such consent is required, are annullable at her instance during the marriage and within ten years from the transaction questioned. (Art. 173,
Civil Code.)
Gimena's contract is not rescissible for in such contract all the essential elements are untainted but Gimena's consent was tainted. Neither can the contract be
classified as unenforceable because it does not fit any of those described in Art. 1403 of the Civil Code. And finally, the contract cannot be void or inexistent
because it is not one of those mentioned in Art. 1409 of the Civil Code. By process of elimination, it must perforce be a voidable contract.
The voidable contract of Gimena was subject to annulment by her husband only during the marriage because he was the victim who had an interest in the
contract. Gimena, who was the party responsible for the defect, could not ask for its annulment. Their children could not likewise seek the annulment of the
contract while the marriage subsisted because they merely had an inchoate right to the lands sold.
The termination of the marriage and the dissolution of the conjugal partnership by the death of Maximo Aldon did not improve the situation of Gimena. What she
could not do during the marriage, she could not do thereafter.
The case of Sofia and Salvador Aldon is different. After the death of Maximo they acquired the right to question the defective contract insofar as it deprived them
of their hereditary rights in their father's share in the lands. The father's share is one-half (1/2) of the lands and their share is two-thirds (2/3) thereof, one-third
(1/3) pertaining to the widow.
The petitioners have been in possession of the lands since 1951. It was only in 1976 when the respondents filed action to recover the lands. In the meantime,
Maximo Aldon died.
Two questions come to mind, namely: (1) Have the petitioners acquired the lands by acquisitive prescription? (2) Is the right of action of Sofia and Salvador
Aldon barred by the statute of limitations?
Anent the first question, We quote with approval the following statement of the Court of Appeals:
We would like to state further that appellees [petitioners herein] could not have acquired ownership of the lots by prescription in view of what we regard as
their bad faith. This bad faith is revealed by testimony to the effect that defendant-appellee Vicente V. Felipe (son of appellees Eduardo Felipe and Hermogena

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V. Felipe) attempted in December 1970 to have Gimena Almosara sign a ready-made document purporting to self the disputed lots to the appellees. This
actuation clearly indicated that the appellees knew the lots did not still belong to them, otherwise, why were they interested in a document of sale in their favor?
Again why did Vicente V. Felipe tell Gimena that the purpose of the document was to obtain Gimena's consent to the construction of an irrigation pump on the
lots in question? The only possible reason for purporting to obtain such consent is that the appellees knew the lots were not theirs. Why was there an attempted
improvement (the irrigation tank) only in 1970? Why was the declaration of property made only in 1974? Why were no attempts made to obtain the husband's
signature, despite the fact that Gimena and Hermogena were close relatives? An these indicate the bad faith of the appellees. Now then, even if we were to
consider appellees' possession in bad faith as a possession in the concept of owners, this possession at the earliest started in 1951, hence the period for
extraordinary prescription (30 years) had not yet lapsed when the present action was instituted on April 26, 1976.
As to the second question, the children's cause of action accrued from the death of their father in 1959 and they had thirty (30) years to institute it (Art. 1141,
Civil Code.) They filed action in 1976 which is well within the period.
WHEREFORE, the decision of the Court of Appeals is hereby modified. Judgment is entered awarding to Sofia and Salvador Aldon their shares of the lands as
stated in the body of this decision; and the petitioners as possessors in bad faith shall make an accounting of the fruits corresponding to the share
aforementioned from 1959 and solidarity pay their value to Sofia and Salvador Aldon; costs against the petitioners.

Republic of the Philippines

SUPREME COURT
Manila
SECOND DIVISION
G.R. No. 92245 June 26, 1991
MELANIA A. ROXAS, petitioner,
vs.
THE HON. COURT OF APPEALS and ANTONIO M. CAYETANO, respondents.
PARAS, J.:p
The only issue before Us is whether or not a husband, as the administrator of the conjugal partnership, may legally enter into a contract of lease
involving conjugal real property without the knowledge and consent of the wife.
According to the Decision * rendered by the respondent Court of Appeals, the pertinent facts of the case as alleged in plaintiff-petitioner's complaint
indicate:
1. That plaintiff is of legal age, married but living separately from husband, one of the defendants herein and presently residing at No. 4 Ambrocia St.,
Quezon City; while defendant Antonio S. Roxas is likewise of legal age and living separately from his wife, plaintiff herein, with residence at No. 950
Quirino Highway, Novaliches, Quezon City where he may be served with summons; and defendant Antonio M. Cayetano is of legal age and residing at
No. 28 Mariano Olondriz Street, BF Homes, Paranaque, Metro Manila where he may be served with summons;
2. That only recently, plaintiff discovered that her estranged husband, defendant Antonio S. Roxas, had entered into a contract of lease with defendant
Antonio M. Cayetano sometime on March 30, 1987 covering a portion of their conjugal lot situated at 854 Quirino Highway, Novaliches, Quezon City,
described in T.C.T. No. 378197 (formerly T.C.T. No. 23881) of the Land Registry for Quezon City without her previous knowledge, much less her marital
consent-xerox; copy of which lease contract is hereto attached as Annex "A", and made an integral part hereof.
3. That on the same lot, plaintiff had planned to put up her flea market with at least twenty (20) stalls and mini-mart for grocery and dry goods items for
which she had filed an application for the corresponding Mayor's Permit and Municipal License which had been approved since 1986, but when she
attempted to renew it for 1986, the same was disapproved last month due to the complaint lodged by defendant Antonio M. Cayetano whose
application for renewal of Mayor's Permit and License for the same business of putting up a flea market, had been allegedly earlier approved;
4. That for the planning and initial construction of plaintiffs project to put up her own business of flea market and mini-mart grocery and wet and dry
stores which she had intended to operate partly by herself and lease the rest of the twenty (20) stalls thereon, she had spent some P135,000.00 for the
said construction, including materials and labor, where she had expected to earn as daily net income in the minimum amount of P500.00 daily;

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5. That due to the illegal lease contract entered into between the herein defendants and the resultant unlawful deprivation of plaintiff from operating her
own legitimate business on the same lot of which she is a conjugal owner, plaintiff has been compelled to seek redress and ventilate her grievance to
the court for which she has to engage the services of counsel with whom she agreed to pay as and for attorney's fees the sum of P10,000.00; plus the
amount equivalent to 20% of whatever damages may be awarded to her in addition to the sum of P500.00 per appearance in court.
xxx xxx xxx
xxx xxx xxx
Dated July 31, 1989 defendant Antonio M. Cayetano moved to dismiss the complaint on the sole ground that the complaint states no cause of action,
to which an Opposition was filed by plaintiff (now petitioner herein), while defendant Antonio S. Roxas, estranged husband of plaintiff-petitioner, filed an
answer.
Confronted with the private respondent's Motion to Dismiss, on August 16, 1989, respondent Judge resolved said Motion by dismissing plaintiffpetitioner's complaint in its Order dated August 16, 1989, the dispositive portion of which reads, as follows:
It is said that the test of sufficiency of the cause of action is whether admitting the facts alleged to be true, the court could render a valid judgment in
accordance with the prayer in the complaint. After examining the material allegations in the complaint, the Court finds that the complaint failed to satisfy
the test of sufficiency.
WHEREFORE, the complaint is dismissed for failure to state a sufficient cause of action.
IT IS SO ORDERED. (p. 2 Order, dated August 16, 1989).
Plaintiff-petitioner filed a Motion for Reconsideration, which was denied by respondent Judge in its Order dated September 29, 1989. (Decision of
Court of Appeals, pp. 1-4; Rollo, Annex "A", pp. 26-29)
Petitioner directly appealed the Decision of the lower court to the Supreme Court.
On November 27, 1989, the Second Division of this Court referred this case to the Court of Appeals for "proper determination and disposition."
Respondent Court of Appeals rendered judgment affirming in toto the Order of the trial court.
Hence, this petition.
Under the New Civil Code (NCC), "Art. 165. The husband is the administrator of the conjugal partnership," in view of the fact that the husband is
principally responsible for the support of the wife and the rest of the family. If the conjugal partnership does not have enough assets, it is the husband's
capital that is responsible for such support, not the paraphernal property. Responsibility should carry authority with it.
The husband is not an ordinary administrator, for while a mere administrator has no right to dispose of, sell, or otherwise alienate the property being
administered, the husband can do so in certain cases allowed by law. He is not required by law to render an accounting. Acts done under
administration do not need the prior consent of the wife.
However, administration does not include acts of ownership. For while the husband can administer the conjugal assets unhampered, he cannot
alienate or encumber the conjugal realty. Thus, under Art. 166 of NCC "unless the wife has been declared a non-compos mentis or a spendthrift, or is
under civil interdiction or is confined in a leprosarium, the husband cannot alienate or encumber any real property of the conjugal partnership the wife's
consent. If she refuses unreasonably to give her consent, the court may compel her to grant the same." This rule prevents abuse on the part of the
husband, and guarantees the rights of the wife, who is partly responsible for the acquisition of the property, particularly the real property. Contracts
entered into by the husband in violation of this prohibition are voidable and subject to annulment at the instance of the aggrieved wife. (Art. 173 of the
Civil Code)
As stated in Black's Law Dictionary, the word "alienation" means 'the transfer of the property and possession of lands, tenements, or other things from
one person to another . . . The act by which the title to real estate is voluntarily assigned by one person to another and accepted by the latter, in the
form prescribed by law. Cf. In re Enrhardt U.S.D.C. 19 F. 2d 406, 407 . . . ." While encumbrance "has been defined to be every right to, or interest in,
the land which may subsist in third persons, to the diminution of the value of the land, but consistent with the passing of the fee by the conveyance;
any (act) that impairs the use or transfer of property or real estate . . ." (42 C.J.S., p. 549).

7
The pivotal issue in this case is whether or not a lease is an encumbrance and/or alienation within the scope of Art. 166 of the New Civil Code.
Under Art. 1643 of the New Civil Code "In the lease of things, one of the parties binds himself to give to another the enjoyment or use of a thing for a
price certain, and for a period which may be definite or indefinite. However, no lease for more than ninety-nine years shall be valid." Under the law,
lease is a grant of use and possession: it is not only a grant of possession as opined by the Court of Appeals. The right to possess does not always
include the right to use. For while the bailee in the contract of deposit holds the property in trust, he is not granted by law the right to make use of the
property in deposit.
In the contract of lease, the lessor transfers his light of use in favor of the lessee. The lessor's right of use is impaired, therein. He may even be ejected
by the lessee if the lessor uses the leased realty. Therefore, lease is a burden on the land, it is an encumbrance on the land. The opinion of the Court
of Appeals that lease is not an encumbrance is not supported by law. The concept of encumbrance includes lease, thus "an encumbrance is
sometimes construed broadly to include not only liens such as mortgages and taxes, but also attachment, LEASES, inchoate dower rights, water
rights, easements, and other RESTRICTIONS on USE." (Capitalization is Ours) (533 Pacific Reporter [second series] 9, 12).
Moreover, lease is not only an encumbrance but also a "qualified alienation, with the lessee becoming, for all legal intents and purposes, and subject to
its terms, the owner of the thing affected by the lease." (51 C C.J.S., p. 522)
Thus, the joinder of the wife, although unnecessary for an oral lease of conjugal realty which does not exceed one year in duration, is required in a
lease of conjugal realty for a period of more than one year, such a lease being considered a conveyance and encumbrance within the provisions of the
Civil Code requiring the joinder of the wife in the instrument by which real property is conveyed or encumbered (See also 41 C.J.S., p. 1149). In case
the wife's consent is not secured by the husband as required by law, the wife has the remedy of filing an action for the annulment of the contract. Art.
173 of the Civil Code states "the wife may, during the marriage and within ten years from the transaction questioned, ask the courts for the annulment
of any contract of the husband entered into without her consent, when such consent is required. . . .
In the case at bar, the allegation in paragraph 2 of the complaint indicates that petitioner's estranged husband, defendant Antonio S. Roxas had
entered into a contract of lease with defendant Antonio M. Cayetano without her marital consent being secured as required by law under Art. 166 of the
Civil Code. Petitioner, therefore, has a cause of action under Art. 173 to file a case for annulment of the contract of lease entered into without her
consent. Petitioner has a cause of action not only against her husband but also against the lessee, Antonio M. Cayetano, who is a party to the contract
of lease.PREMISES CONSIDERED, the decision of the Court of Appeals is hereby SET ASIDE and this case is hereby REMANDED to the Regional
Trial court for further proceedings.

Republic of the Philippines

SUPREME COURT
Manila
SECOND DIVISION

G.R. No. 96227 February 1, 1993

TELESFORO OPENA, petitioner,
vs.
HONORABLE COURT OF APPEALS AND PEOPLE OF THE PHILIPPINES, respondents.
NOCON, J.:
This is a Petition for Review by certiorari of the decision rendered by the Court of Appeals dated January 2, 1989 in CA-G.R. CR No. 06576,
affirming in toto the judgment of conviction rendered by Branch 48 of the Regional Trial Court of Pangasinan in Criminal Case No. U-3011,
entitled "People of the Philippines vs. Telesforo Opena" for falsification of public document by a private individual. In the same light, petitioner
seeks to annul the order of the Court of Appeals dated November 5, 1990 issued in the same case denying their motion for reconsideration.
The facts of the case are as follows:
Spouses Julian Gotgotao and Guillerma Opena are the registered owners of Lot No. 1584-B located at Barangay Cayambanan, Urdaneta,
Pangasinan, as evidenced by Transfer Certificate of Title No. 61957 duly issued by the Register of Deeds of Pangasinan, which property they

8
mortgaged 1 to the Rural Bank of Mangaldan, Inc. for the sum of Two Thousand (P2,000.00) Pesos and which mortgage was annotated on the
second page of the title. 2
However, when spouses Gotgotao went to the Bank to check on their Certificate of Title, they got the shock of their life when the bank
employees said that Telesforo Opena, the half brother of Guillerma Opena, withdrew the said Certificate of Title from the bank by presenting a
Special Power of Attorney purportedly executed by the Gotgotao spouses in favor of Telesforo Opena.
Upon verification with the Register of Deeds of Pangasinan in Lingayen to check on their title, they were informed that Telesforo Opena had
caused the transfer of the title in his name by presenting a Deed of Absolute Sale allegedly executed by them. They also discovered that their
Transfer Certificate of Title No. 61957 had been cancelled and a new one, Transfer Certificate of Title
No. 131474 had been issued in the name of Telesforo Opena, married to Carolina Sanidad. 3
Consequently, a complaint for falsification of public documents was filed against Telesforo Opena resulting in his conviction of said crime. On
appeal to the Court of Appeals, accused-appellant's conviction was affirmed in toto.
Hence, this appeal.
The errors presented by herein petitioner are the following:
1. That the appellate court and the trial court erred in not acquitting petitioner when they found him not to have forged the thumbmark of Julian
Gotgotao nor is there solid evidence that petitioner forged the signature of Guillerma Opena Gotgotao.
2. That both the appellate court and the trial court erred in finding that the defense is guilty of suppression of evidence.
3. That said courts erred in not finding that spouses Julian Gotgotao and Guillerma Opena validly conveyed the land in question in favor of
petitioner; and
4. In annulling the Deed of Sale dated April 10, 1978 executed by spouses Julian Gotgotao and Guillerma Opena in favor of petitioner and his
wife.
We find no merit in the instant petition.
Petition contends that the crime of falsification of public documents has not been committed in this case, considering that the thumbmark of
Julian Gotgotao on the Absolute Deed of Sale was declared to be genuine and not a forgery by Questioned Document Expert Arturo B.
Marasigan of the P.C. Crime Laboratory who issued a dactyloscopy report thereon. 4
But while this may be true with respect to Julian Gotgotao's thumbmark on the Deed of Sale, the fact remains that Guillerma Gotgotao's
signature on the same document was indubitably confirmed to be counterfeit and forged, both by the testimony of Guillerma herself and by the
testimony of the handwriting expert Jovito R. Gutierrez of the P.C. Crime Laboratory who examined the same. 5
We agree with the trial court when it said:
With respect to the questioned signature of complaining witness Guillerma Opea, (sic) the Court believes that the accuses Telesforo Opea
(sic) either forged the signature himself or caused it to be forged on the questioned deed of absolute sale dated April 10, 1978 (Exh. "B" and
"2").
The said belief of the Court is based on the findings that the questioned signature of complaining witness Guillerma Opea (sic) appearing in
the questioned deed of absolute sale dated April 10, 1978 is nothing but a forgery (Questioned Document Report No. 125-82, Exh. "E"). The
Court relied on the aforesaid findings of the examining handwriting expert from the Philippine Constabulary Crime Laboratory, Camp Crame,
Quezon City in the light of the accused Telesforo Opea's (sic) and former Barangay Captain Esteban Valdez's testimonies that both did not
see the complaining witness Guillerma Opea (sic) sign her name on the aforesaid deed of absolute sale because she was not present during
the preparation and execution of the said deed of absolute sale at the law office of
Atty. Caoayan in Poblacion, Urdaneta, Pangasinan. Further, said complaining witness denied having executed a deed of absolute sale in favor
of the herein accused.

9
Even assuming arguendo that Julian Gotgotao's thumbmark on the subject document is genuine, still the counterfeit signature of Guillerma
Gotgotao invalidates the whole instrument, since her signature thereon is essential to the validity of the alleged deed of sale, as warranted by
Article 165 and 166 of the Civil Code which provides:
Art. 165 The husband is the administrator of the conjugal partnership.
Article 166 Unless the wife has been declared a non compos mentis or a spendthrift, or is under civil interdiction or is confined in a
leprosarium, the husband cannot alienate or encumber any real property of the conjugal partnership without the wife's consent. If she refuses
unreasonably to give her consent, the court may compel her to grant the same.
Petitioner's argument that the prosecution failed to establish the counterfeit nature of Guillerma Gotgotao's signature in the Deed of Absolute
Sale, because "she could not identify and recognize her signature in said exhibit because she could not read and she had poor and defective
eyesight" had already been disposed of correctly by the trial court, as follows:
The Court finds the said objection bereft of merit. There is no need for the complaining witness Guillerma Opea (sic) to identify her forged
signature appearing in the questioned deed of absolute sale because her denial of not having executed the said deed of absolute sale in favor
of Telesforo Opea (sic) goes to show that she did not affix her signature in the said document. 6
As aptly found by the Court of Appeals:
The signature used as "standards" are compared with the questioned signature of appellee Guillerma Opea (sic) in the Deed of Absolute
Sale were her voter's I.D. Card, Promissory Note to the Letter of the Land Bank, Discount and Computation Slip issued by the Rural Bank of
Mangaldan, Residence Certificate, and a long bond paper containing her signatures 1 to 25. These signatures are admitted by the appellee as
hers and were used by her in her business transactions and her transactions with the government. This case thus falls squarely within the third
method referred to by the High Tribunal.
Appellant, moreover, did not rebut the testimony of the expert witness Jovito Gutierrez and likewise did not impeach him. In fact, appellant and
his witnesses hewed their testimonies to his findings by admitting that they did not see appellee Guillerma Opea (sic) sign the questioned
document. Hence, the trial court correctly gave credence to the expert witness and his findings that the signature of Guillerma Opea (sic) is a
forgery. 7
As to the claim that the trial court and the Court of Appeals erred in stating that his counsel suppressed evidence which would otherwise have
been material to his defense, We find nothing in the records to justify the same.
The trial court ruled:
Noteworthy is the dispensation by the defense of the testimony of Atty. Anastacio Caoayan, the Notary Public of the questioned deed of
absolute sale dated April 10, 1978 despite the issuance of several subpoena duces tecum issued upon him, on November 4, 1983, December
12, 1983, December 21, 1983, February 15, 1984, April 10, 1984, May 28, 1984, July 18, 1984 and August 8, 1984. The unexplained facts
leads to the presumption that the defense's counsel suppressed evidence which is detrimental to his client's cause. 8
Atty. Caoayan's testimony could have weighed heavily in favor of the petitioner's defense, if petitioner is to be believed, since Atty. Caoayan
was ostensibly the lawyer who notarized the alleged deed of absolute sale, and could therefore have validated petitioner's claim that Guillerma
Gotgotao's signature on the said document was genuine. Thus, petitioner's failure to present this material witness creates the presumption
that if such testimony had been given, it would have been adverse to the petitioner's claim.
Likewise, the Court of Appeals concurred with the trial court's assessment of the situation, to wit:
The trial court was justified in holding the appellant as having suppressed evidence when it dispensed with the testimony of the notary public
who notarized the questioned Deed of Sale (Exh. "2", "B"). It appears that Atty. Anastacio Caoayan was subpoenaed no less than eight times
(November 14, 1983; December 12, 1983; December 21, 1983; February 15, 1984; April 10, 1984; May 28, 1984; July 18, 1984 and August 8,
1984). At the hearing on April 5, 1984, indications that the defense was not really interested in presenting Atty. Caoayan was shown, thus:
Atty. Sevilleja:

10
Yes, Your Honor. Your Honor, may we request that a subpoena be issued to Emilio Latore of Poblacion, Villasis, Pangasinan?
Court:
What about Atty. Caoayan. There as a subpoena issued to him. He comes here every now and then. He should be punished for contempt of
court for his failure to come despite subpoena duly served to him.
Atty. Sevilleja:
We just subpoena him in the next hearing. In fact I talked with him only this morning.
Court:.
As if you do not want to present him anymore. It is up to you.
Atty. Sevilleja:
No. Your Honor, We will just subpoena him, Your Honor. 9
However, on August 7, 1984, when by coincidence, Atty. Caoayan happened to be in the sala of the judge hearing the falsification case and
the judge called the attention of the appellant's counsel to present him as a witness, the latter refused. Thus:
Court:
You will present Atty. Caoayan? He is here finally.
Atty. Sevilleja:
We will present the other witness from Villasis, Emilio Latore, Your Honor.
Court:
Latore?
Atty. Sevilleja:
Yes, Your Honor.
Court:
You are dispensing with the testimony of Atty. Caoayan? He is finally here because this is in a coincidence he has a case.
Atty. Sevilleja:
I will talk with him first, Your Honor.
Court:
The court has issued several subpoena duces tecum. Now he is here, take the chance.
xxx xxx xxx
Atty. Sevilleja:

11
Your Honor, after minutely studying the case and our documentary evidence which are voluminous, we can prove the innocence of the
accused without the testimony of Atty. Caoayan, Your Honor.
Court:
So you are now dispensing with his testimony?
Atty. Sevilleja:
We are now dispensing the testimony of Atty. Caoayan, Your
Honor. 10
Furthermore, the Court of Appeals likewise correctly concluded that even Julian Gotgotao's admittedly genuine thumbmark appearing on the
questioned Deed is questionable, thus:
[E]ven granting hypothetically, that Julian Gotgotao may have had some knowledge of the forgery, we do not believe he has the required
cunning to, by himself and without appellant's instigation and active participation, develop the idea and proceed to have his wife's signature
forged, considering the level of his intelligence as demonstrated in his testimony at the trial. (T.S.N., August 13, 1987, September 15, 1987)
We are convinced, as was the trial court, that it was appellant himself, the one who used, took advantage, and profited by the forged signature
who authored the same. Besides, while the finding is that Julian Gotgotao's thumbmark is genuine, he denied having knowingly thumbmarked
any document selling their land. 11
The Court of Appeals observed further:
It is likewise alleged that the appellee did not dispute or deny the contract of sale dated November 5, 1976 (Exh. "11") allegedly thumbmarked
by Julian Gotgotao and the receipt dated June 20, 1977
(Exh. "12"). In fact, the prosecution witnesses have denied these documents when appellees and their witnesses asserted that they never
borrowed money from the accused-appellant in 1976 or in 1977 (T.S.N., April 11, 1983, p. 10; October 22, 1986, pp. 15-18; December 9, 1987,
pp. 21-23; June 25, 1987, pp. 3-5; August 13, 1987, p. 4), when Julian Gotgotao denied that there was ever a time he agreed to sell the land
to the accused (T.S.N., August 13, 1987, p. 12) or that he delivered a deed of sale on April 11, 1978 to appellant in his house for which the
alleged borrowings were part of the consideration (T.S.N., September 15, 1978, p. 2); and when appellee Guillerma Opena testified that
appellant had no right and had no authority to take the owner's copy of the title to the land in question from the bank (T.S.N., April 11, 1983,
pp. 7-8). 12
Finally, petitioner's claim that spouses Gotgotao conveyed the subject property in his favor in view of previous loans extended to them has
been resolved by the trial court in this wise, to which We concur:
In an effort to justify the due execution of the deed of sale dated April 10, 1978, the accused Telesforo Opea (sic) claimed that the
consideration in the amount of P18,000.00 represents the total borrowings of the Gotgotao family from him. However, the aggregate amount
shelled out by the herein accused (P6,370.00, Exh. 11; P12,300.00, Exh. 12; P4,700.00 given after the execution of the said deed of absolute
sale and P2,138.10, Exh. 13 or a total of P25,508.10) is more than what the herein accused bargained with the Gotgotao family at P3.00 per
square meter of the said lot in dispute containing an area of 6,190 square meters and 6,190 multiplied by P3.00 amounts to P18,570.00. The
conflicting amounts of money testified to by the herein accused gives truth to the saying that "No falsification is perfect in all its parts." Further,
"defense evidence which is replete with inconsistencies does not inspire belief" (People vs. Radomes, 141 SCRA 548) "Contradictory and
inconsistent on material points render testimonies doubtful." (People vs. Quison, 142 SCRA 362).
WHEREFORE, there being no reversible error in the decision appealed herefrom, the same is hereby AFFIRMEDin toto. Costs against
appellant.
G.R. No. L-48184 March 12, 1990 PAULA GARCIA, FRANCISCO GARCIA, JUSTO GARCIA, CLAUDIA GARCIA, CRISPINA GARCIA, CATALINA GARCIA,
BASILISA GARCIA, ZACARIAS GARCIA, AGUSTIN GARCIA, CANDIDA GARCIA, PABLEO PACULAN, ANECITA PACULAN, AGAPITO PACULAN,
MARCOSA PACULAN, and ILUMINADO SOLITE, petitioners, v s.ANDRES GONZALES, RAMON EAMIGUEL NICASIO PARILLA and COURT OF
APPEALS, respondents.

12
In this petition on for review on certiorari, petitioners seek the reversal of the May 5, 1977 decision of the Court of Appeals in CA-GR No. 48032-R entitled
"Paula Garcia, et al. v. Andres Gonzales, et al." modifying the decision of the Court of First Instance of Leyte in Civil Case No. B-0134 which among others
adjudicated the whole parcel No. 2 in favor of Andres Gonzales and ordered the plaintiffs therein jointly and severally to pay moral damages and attorney's fees.
This case arose from the complaint for recovery of real properties, partition and accounting filed by the nephews and nieces of a deceased childless couple
against the transferees of two parcels of land which said couple had sold during their lifetime and another parcel of land which the wife sold to her own nephew
after her husband's death.
The record shows that on July 3, 1911, Agustin Manco Garcia donated to the spouses Fructuoso Garcia and Quintina Gonzales two parcels of land. One parcel,
with an area of more than three hectares, is located in barrio Caraycaray in Naval, Leyte (parcel No. 3) and the other lot, with an area of more than two
hectares, is located in sitio Calumpang, also in barrio Caraycaray (parcel No. 4). On December 4, 1921, Fructuoso and his wife executed an "escritura de venta"
over said two parcels of land in favor of Sergio Eamiguel, a parish priest, in consideration of the amount of P2,500. 1 The following year, 1922, Fructuoso died.
In 1930, Father Eamiguel declared as his own parcel No. 3 under tax declaration No. 7370 2 and parcel No. 4 under tax declaration No. 7389. 3 On June 5,
1937, he executed an "escritura de donacion" bestowing ownership over said property to his nephews, Pedro and Ramon Eamiguel. 4
Pedro later exchanged his share over parcel No. 3 with another parcel owned by his brother Rosendo thereby making the latter a co-owner of said
property. 5 While thus in possession of parcel No. 3, the Eamiguel brothers, through Ramon, executed deeds of sale with right to repurchase over portions of the
property in favor of different persons. 6
On October 24, 1954, after the properties had been repurchased, Rosendo sold a one-half portion of parcel No. 3 to the spouses Nicasio Parilla and
Purificacion Manco for P3,200. 7 On October 31, 1954, Ramon also sold his one-half portion of the property to the Parilla spouses for P3,500. 8 Since then, the
Parilla spouses have been in possession of the 3-hectare property paying taxes thereon. On the other hand, parcel No. 4 remained in the possession of Ramon.
Fructuoso Garcia also owned a 1.7 hectare lot in Anas, Antipolo, also in the municipality of Naval (parcel No. 1) and another 2.3 hectare land in the same
municipality (parcel No. 2). On January 26, 1945, Fructuoso's widow, Quintina Gonzales Garcia, who was then a centenarian, sold parcel No. 2 to her nephew,
Andres Gonzales, in consideration of the amount of P400. 9 Since then, Gonzales has declared said property as his own and paid taxes thereon. 10
On June 15, 1967, the herein petitioners, nephews and nieces of Fructuoso, filed the aforementioned complaint against Andres Gonzales for the recovery of
parcels Nos. 1 and 2, on the premise that under Article 995 of the New Civil Code, as such relatives of Fructuoso, they are entitled to one-half of the intestate
estate of Quintina who allegedly misrepresented in the deed of sale in favor of Gonzales that parcels Nos. 1 and 2 were her paraphernal properties. The
complaint was later amended to include parcels Nos. 3 and 4 as subjects of the complaint and to include Ramon Eamiguel and Nicasio Parilla as defendants.
With regard to these two defendants, the complaint alleged that Eamiguel a grandnephew of Quintina, took possession of parcel No. 4 after Quintina's death on
March 16, 1945 and that Parilla was also unlawfully in possession of parcel No. 3.
The trial court ruled that since nobody claimed parcel No. 1, "the same has remained the property of the plaintiffs." 11 In holding that parcel No. 2 rightfully
belongs to Andres Gonzales, the court stated that except for their oral testimonies, the plaintiffs failed to successfully assail the validity and due execution of the
deed of sale in favor of Gonzales. The trial court also ruled that the plaintiffs may no longer question the validity of the sale to Father Eamiguel of parcels Nos. 3
and 4 because after a copy of the December 4, 1921 deed of sale was furnished the plaintiffs, "nothing has been done thereabout" and that said document,
being more than 47 years old and a public instrument, is in full force and effect unless impugned by strong complete and conclusive proof. 12 The dispositive
portion of the trial court's June 1970 decision 13 reads:
WHEREFORE, decision is hereby rendered in favor of the defendants and against the plaintiffs, hereby declaring and adjudicating Parcel No. 2 in favor of
defendant Andres Gonzales; Parcel No. 3 in favor of Nicasio Parilla; Parcel No. 4 in favor of defendant Ramon Eamiguel further ordering the plaintiffs jointly and
severally to pay each of the defendants the sum of P1,000.00 for and as moral damages, plus the sum of P500.00 for and as attorney's fees, with costs against
the plaintiffs.
SO ORDERED. 14
The plaintiffs appealed to the Court of Appeals. In its decision of May 5, 1977, 15 said appellate court ruled that as to parcels Nos. 3 and 4, prescription has set in
to herein petitioners' prejudice. As to parcel No. 2, the Court of Appeals held that since Article 837 of the Spanish Civil Code entitled the surviving spouse to
inherit only one-half of the estate, the sale of parcel No. 2 to Andres Gonzales was valid only with respect to Quintina'a one-half (1/2) share thereof. The
dispositive portion of the decision states:
WHEREFORE, the appealed decision is hereby modified, as follows:
1. Declaring Andres Gonzales as owner of one-half portion of Parcel No. 2 and plaintiffs herein as the owners of the other half,
2. Ordering Andres Gonzales to deliver and convey the one-half portion of Parcel No. 2 to the plaintiffs; and

13
3. Eliminating the award of moral damages as well as attorney's fees.
The rest of the judgment appealed from is affirmed. Without costs.
SO ORDERED. 16
Their motion for reconsideration praying for the amendment of the said decision and the award of damages having been denied, the plaintiffs interposed the
instant petition for review on certiorari alleging that the Court of Appeals: (a) "hastily entered its judgment" without adjudicating in their favor one-half of the
equivalent of the fruits of parcel No. 2 since January 26, 1945; (b) "gravely failed to give justice" to them by depriving them of the "chance to own and possess"
one-half of parcels Nos. 3 and 4 and their fruits; and (c) "gravely failed to give clearance" as to their absolute ownership over parcel No. 1. 17
The failure to make a declaration as to the ownership of parcel No. 1 is attributable to the trial court rather than to the appellate court. In their brief submitted
before the latter, herein petitioners as appellants therein categorically stated that "originally four parcels were involved but defendants in their answer later
waived any claim over parcel 1 . . . ." 18 Since the ownership of parcel 1 was not an issue in the appeal, the appellate court could not be expected to, and should
not, in fact, make any declaration pertaining to parcel 1.
It was the trial court which should have included in the dispositive portion of its decision a declaration as to the ownership of parcel 1 consistent with the
statement in its decision that "it appears from the evidence presented that nobody is claiming parcel 1 so that the same has remained the property of the
plaintiffs" (herein petitioners).19
Be that as it may, no prejudicial error resulted from this inadvertence on the part of the trial court, no claim adverse to petitioners' over said parcel 1 having been
presented by any party.
As to parcel No. 2, we disagree with the Court of Appeals that Gonzales is entitled to only one-half thereof. The deed of sale was personally acknowledged
before Pedro Mate, then justice of the peace, as Quintina's free act and deed. Although the petitioners attempted to question the validity and due execution of
said deed of sale through oral testimony, they were unable to buttress it with other evidence which might obviate the apparent biased nature of the testimony.
The deed of sale having been executed before the effectivity of the New Civil Code, the law governing the transaction was the Code of Civil Procedure, which
specifically provides:
Sec. 685. Community Property. When the marriage is dissolved by the death of the husband or wife, the community property shall be inventoried,
administered, and liquidated, and the debts thereof shall be paid, in the testamentary or intestate proceedings of the deceased spouse, in accordance with the
provisions of this Code relative to the administration and liquidation of the estates of deceased persons, unless the parties being all of age and legally
capacitated, avail themselves of the right granted them by this Code for proceeding to an extrajudicial partition and liquidation of said property.
In case it is necessary to sell any portion of said community property in order to pay the outstanding debts and obligations of the same, such sale shall be made
in the manner and with the formalities established by this Code for the sale of the property of deceased persons. Any sale, transfer, alienation or disposition of
said property effected without said formalities shall be null and void, except as regards the portion that belonged to the vendor at the time the liquidation and
partition was made(Emphasis supplied). Inasmuch as no liquidation of the conjugal partnership had been made in accordance with Articles 1418 and 1481 of
the Civil Code, 20 the last sentence of Section 685 maybe applied. More so because there is no proof that the sale of parcel No. 2 was necessary to pay the
partnership debts and obligations. Pursuant to said law, therefore, the sale to Andres Gonzales may be considered as valid only with respect to the one-half
portion of parcel No. 2 rightfully belonging to Quintina.
Notwithstanding this, petitioners may not validly lay claim to the other half portion of the property corresponding to their share as heirs of Fructuoso considering
that for forty-five (45) years after Fructuoso's death and twenty-two (22) from the execution of the deed of sale, petitioners slept on their rights. Granting that
there was a mistake or fraud * in the execution of the deed of sale so much so that under Article 1456 of the Civil Code an implied or constructive trust was
constituted in favor of the petitioners, still, laches barred them from filing the complaint for the recovery of parcel No. 2. 21 Although the records do not show that
Gonzales had been issued a Torrens title to parcel No. 2 and hence, the 10 year prescriptive period may not be invoked against petitioners, their inordinate and
undue delay in asserting their claim to said parcel of land led to their undoing.
With regard to parcels Nos. 3 and 4, both the trial court and the Court of Appeals found that the controverted sale of said parcels of land was embodied in a
public document, executed with all the formalities and solemnities of law. The evidence therefore that is required to overthrow it must be clear, convincing and
beyond mere preponderance of evidence. 22 Such evidence is not obtaining in the case at bar and there is no valid ground on which petitioners' claim to said
parcels of land could stand. They failed to successfully attack the validity of the transfer of said properties to Father Eamiguel, the predecessor-in-interest of
Ramon Eamiguel and Nicasio Parilla. Additionally, the transaction was executed by both Fructuoso and Quintina, and therefore must be respected. More
importantly, as correctly found by the Court of Appeals, prescription has set in. It was only after more than 45 years after the sale on December 4, 1921 that this
case was filed by the petitioners on June 15, 1967. Lastly, we make no award of damages to any of the parties. In this regard, we quote with approval the
following portion of the Court of Appeals decision:
As to the award of damages, we find that the evidence on record does not justify the same. It appears that appellants have tenaciously fought for their cause in
order to protect their rights. Moreover, their case is partially meritorious. The anxiety claimed by the defendant-appellee was not due to a case which was

14
maliciously instituted by the appellants. They are not, therefore, the moral damages contemplated by law (Ramos v. Ramos, 61 SCRA 284, 405 citing Solis v.
Salvador, 14 SCRA 887). The adverse result of an action does not per se make the act wrongful and subject the actor to the payment of moral damages. The
law could not have meant to impose a penalty on the right to litigate, such right is so precious that moral damages may not be charged on those who may even
exercise it erroneously. (Ramos v. Ramos, 61 SCRA 284, 305-306). And an adverse decision does not ipso facto justify the award of attorney's fee to the
winning party. 23WHEREFORE, the decision of the Court of Appeals is hereby affirmed insofar as it eliminates the award of moral damages as well as attorney's
fees. It is modified as follows: (a) parcel No. 1 is hereby declared as absolutely owned by petitioners in their respective capacities as heirs of Fructuoso Garcia;
(b) parcel No. 2 shall exclusively belong to Andres Gonzales; and (c) parcels Nos. 3 and 4 shall be under the absolute ownership of Nicasio Parilla and Ramon
Eamiguel respectively. No costs.
HOMEOWNERS SAVINGS & LOAN BANK, petitioner, vs. MIGUELA C. DAILO, respondent.

DECISION
TINGA, J.:
This is a petition for review on certiorari under Rule 45 of the Revised Rules of Court, assailing the Decision[1] of the
Court of Appeals in CA-G.R. CV No. 59986 rendered on June 3, 2002, which affirmed with modification the October 18,
1997 Decision[2] of the Regional Trial Court, Branch 29, San Pablo City, Laguna in Civil Case No. SP-4748 (97).
The following factual antecedents are undisputed.
Respondent Miguela C. Dailo and Marcelino Dailo, Jr. were married on August 8, 1967. During their marriage, the
spouses purchased a house and lot situated at Barangay San Francisco, San Pablo City from a certain Sandra Dalida.
The subject property was declared for tax assessment purposes under Assessment of Real Property No. 94-051-2802.
The Deed of Absolute Sale, however, was executed only in favor of the late Marcelino Dailo, Jr. as vendee thereof to
the exclusion of his wife.[3]
On December 1, 1993, Marcelino Dailo, Jr. executed a Special Power of Attorney (SPA) in favor of one Lilibeth
Gesmundo, authorizing the latter to obtain a loan from petitioner Homeowners Savings and Loan Bank to be secured
by the spouses Dailos house and lot in San Pablo City. Pursuant to the SPA, Gesmundo obtained a loan in the amount
of P300,000.00 from petitioner. As security therefor, Gesmundo executed on the same day a Real Estate Mortgage
constituted on the subject property in favor of petitioner. The abovementioned transactions, including the execution of
the SPA in favor of Gesmundo, took place without the knowledge and consent of respondent.[4]
Upon maturity, the loan remained outstanding. As a result, petitioner instituted extrajudicial foreclosure proceedings
on the mortgaged property. After the extrajudicial sale thereof, a Certificate of Sale was issued in favor of petitioner as
the highest bidder. After the lapse of one year without the property being redeemed, petitioner, through its vicepresident, consolidated the ownership thereof by executing on June 6, 1996 an Affidavit of Consolidation of Ownership
and a Deed of Absolute Sale.[5]
In the meantime, Marcelino Dailo, Jr. died on December 20, 1995. In one of her visits to the subject property,
respondent learned that petitioner had already employed a certain Roldan Brion to clean its premises and that her
car, a Ford sedan, was razed because Brion allowed a boy to play with fire within the premises.
Claiming that she had no knowledge of the mortgage constituted on the subject property, which was conjugal in
nature, respondent instituted with the Regional Trial Court, Branch 29, San Pablo City, Civil Case No. SP-2222 (97)
for Nullity of Real Estate Mortgage and Certificate of Sale, Affidavit of Consolidation of Ownership, Deed of Sale,
Reconveyance with Prayer for Preliminary Injunction and Damages against petitioner. In the latters Answer with
Counterclaim, petitioner prayed for the dismissal of the complaint on the ground that the property in question was the
exclusive property of the late Marcelino Dailo, Jr.
After trial on the merits, the trial court rendered a Decision on October 18, 1997. The dispositive portion thereof reads
as follows:
WHEREFORE, the plaintiff having proved by the preponderance of evidence the allegations of the Complaint, the Court
finds for the plaintiff and hereby orders:
ON THE FIRST CAUSE OF ACTION:
1. The declaration of the following documents as null and void:
(a) The Deed of Real Estate Mortgage dated December 1, 1993 executed before Notary Public Romulo Urrea and his
notarial register entered as Doc. No. 212; Page No. 44, Book No. XXI, Series of 1993.

15
(b)

The Certificate of Sale executed by Notary Public Reynaldo Alcantara on April 20, 1995.

(c)

The Affidavit of Consolidation of Ownership executed by the defendant

(c) The Affidavit of Consolidation of Ownership executed by the defendant over the residential lot located at Brgy.
San Francisco, San Pablo City, covered by ARP No. 95-091-1236 entered as Doc. No. 406; Page No. 83, Book No. III,
Series of 1996 of Notary Public Octavio M. Zayas.
(d)

The assessment of real property No. 95-051-1236.

2. The defendant is ordered to reconvey the property subject of this complaint to the plaintiff.
ON THE SECOND CAUSE OF ACTION
1. The defendant to pay the plaintiff the sum of P40,000.00 representing the value of the car which was burned.
ON BOTH CAUSES OF ACTION
1. The defendant to pay the plaintiff the sum of P25,000.00 as attorneys fees;
2. The defendant to pay plaintiff P25,000.00 as moral damages;
3. The defendant to pay the plaintiff the sum of P10,000.00 as exemplary damages;
4. To pay the cost of the suit.
The counterclaim is dismissed.
SO ORDERED.[6]
Upon elevation of the case to the Court of Appeals, the appellate court affirmed the trial courts finding that the
subject property was conjugal in nature, in the absence of clear and convincing evidence to rebut the presumption
that the subject property acquired during the marriage of spouses Dailo belongs to their conjugal partnership. [7] The
appellate court declared as void the mortgage on the subject property because it was constituted without the
knowledge and consent of respondent, in accordance with Article 124 of the Family Code. Thus, it upheld the trial
courts order to reconvey the subject property to respondent.[8] With respect to the damage to respondents car, the
appellate court found petitioner to be liable therefor because it is responsible for the consequences of the acts or
omissions of the person it hired to accomplish the assigned task.[9] All told, the appellate court affirmed the trial
courts Decision, but deleted the award for damages and attorneys fees for lack of basis.[10]
Hence, this petition, raising the following issues for this Courts consideration:
1. WHETHER OR NOT THE MORTGAGE CONSTITUTED BY THE LATE MARCELINO DAILO, JR. ON THE SUBJECT PROPERTY
AS CO-OWNER THEREOF IS VALID AS TO HIS UNDIVIDED SHARE.
2. WHETHER OR NOT THE CONJUGAL PARTNERSHIP IS LIABLE FOR THE PAYMENT OF THE LOAN OBTAINED BY THE LATE
MARCELINO DAILO, JR. THE SAME HAVING REDOUNDED TO THE BENEFIT OF THE FAMILY. [11]
First, petitioner takes issue with the legal provision applicable to the factual milieu of this case. It contends that Article
124 of the Family Code should be construed in relation to Article 493 of the Civil Code, which states:
ART. 493. Each co-owner shall have the full ownership of his part and of the fruits and benefits pertaining thereto, and
he may therefore alienate, assign or mortgage it, and even substitute another person in its enjoyment, except when
personal rights are involved. But the effect of the alienation or the mortgage, with respect to the co-owners, shall be
limited to the portion which may be allotted to him in the division upon the termination of the co-ownership.
Article 124 of the Family Code provides in part:

16
ART. 124. The administration and enjoyment of the conjugal partnership property shall belong to both spouses jointly. .
..
In the event that one spouse is incapacitated or otherwise unable to participate in the administration of the conjugal
properties, the other spouse may assume sole powers of administration. These powers do not include the powers of
disposition or encumbrance which must have the authority of the court or the written consent of the other spouse. In
the absence of such authority or consent, the disposition or encumbrance shall be void. . . .
Petitioner argues that although Article 124 of the Family Code requires the consent of the other spouse to the
mortgage of conjugal properties, the framers of the law could not have intended to curtail the right of a spouse from
exercising full ownership over the portion of the conjugal property pertaining to him under the concept of coownership.[12] Thus, petitioner would have this Court uphold the validity of the mortgage to the extent of the late
Marcelino Dailo, Jr.s share in the conjugal partnership.
In Guiang v. Court of Appeals,[13] it was held that the sale of a conjugal property requires the consent of both the
husband and wife.[14] In applying Article 124 of the Family Code, this Court declared that the absence of the consent of
one renders the entire sale null and void, including the portion of the conjugal property pertaining to the husband who
contracted the sale. The same principle in Guiang squarely applies to the instant case. As shall be discussed next,
there is no legal basis to construe Article 493 of the Civil Code as an exception to Article 124 of the Family Code.
Respondent and the late Marcelino Dailo, Jr. were married on August 8, 1967. In the absence of a marriage settlement,
the system of relative community or conjugal partnership of gains governed the property relations between
respondent and her late husband.[15] With the effectivity of the Family Code on August 3, 1988, Chapter 4 on Conjugal
Partnership of Gains in the Family Code was made applicable to conjugal partnership of gains already established
before its effectivity unless vested rights have already been acquired under the Civil Code or other laws.[16]
The rules on co-ownership do not even apply to the property relations of respondent and the late Marcelino Dailo, Jr.
even in a suppletory manner. The regime of conjugal partnership of gains is a special type of partnership, where the
husband and wife place in a common fund the proceeds, products, fruits and income from their separate properties
and those acquired by either or both spouses through their efforts or by chance. [17] Unlike the absolute community of
property wherein the rules on co-ownership apply in a suppletory manner, [18] the conjugal partnership shall be
governed by the rules on contract of partnership in all that is not in conflict with what is expressly determined in the
chapter (on conjugal partnership of gains) or by the spouses in their marriage settlements. [19] Thus, the property
relations of respondent and her late husband shall be governed, foremost, by Chapter 4 on Conjugal Partnership of
Gains of the Family Code and, suppletorily, by the rules on partnership under the Civil Code. In case of conflict, the
former prevails because the Civil Code provisions on partnership apply only when the Family Code is silent on the
matter.
The basic and established fact is that during his lifetime, without the knowledge and consent of his wife, Marcelino
Dailo, Jr. constituted a real estate mortgage on the subject property, which formed part of their conjugal partnership.
By express provision of Article 124 of the Family Code, in the absence of (court) authority or written consent of the
other spouse, any disposition or encumbrance of the conjugal property shall be void.
The aforequoted provision does not qualify with respect to the share of the spouse who makes the disposition or
encumbrance in the same manner that the rule on co-ownership under Article 493 of the Civil Code does. Where the
law does not distinguish, courts should not distinguish. [20] Thus, both the trial court and the appellate court are correct
in declaring the nullity of the real estate mortgage on the subject property for lack of respondents consent.
Second, petitioner imposes the liability for the payment of the principal obligation obtained by the late Marcelino
Dailo, Jr. on the conjugal partnership to the extent that it redounded to the benefit of the family.[21]
Under Article 121 of the Family Code, [T]he conjugal partnership shall be liable for: . . . (3) Debts and obligations
contracted by either spouse without the consent of the other to the extent that the family may have been
benefited; . . . . For the subject property to be held liable, the obligation contracted by the late Marcelino Dailo, Jr.
must have redounded to the benefit of the conjugal partnership. There must be the requisite showing then of some
advantage which clearly accrued to the welfare of the spouses. Certainly, to make a conjugal partnership respond for
a liability that should appertain to the husband alone is to defeat and frustrate the avowed objective of the new Civil
Code to show the utmost concern for the solidarity and well-being of the family as a unit.[22]
The burden of proof that the debt was contracted for the benefit of the conjugal partnership of gains lies with the
creditor-party litigant claiming as such. [23] Ei incumbit probatio qui dicit, non qui negat (he who asserts, not he who
denies, must prove).[24] Petitioners sweeping conclusion that the loan obtained by the late Marcelino Dailo, Jr. to
finance the construction of housing units without a doubt redounded to the benefit of his family, without adducing
adequate proof, does not persuade this Court. Other than petitioners bare allegation, there is nothing from the

17
records of the case to compel a finding that, indeed, the loan obtained by the late Marcelino Dailo, Jr. redounded to
the benefit of the family. Consequently, the conjugal partnership cannot be held liable for the payment of the principal
obligation.
In addition, a perusal of the records of the case reveals that during the trial, petitioner vigorously asserted that the
subject property was the exclusive property of the late Marcelino Dailo, Jr. Nowhere in the answer filed with the trial
court was it alleged that the proceeds of the loan redounded to the benefit of the family. Even on appeal, petitioner
never claimed that the family benefited from the proceeds of the loan. When a party adopts a certain theory in the
court below, he will not be permitted to change his theory on appeal, for to permit him to do so would not only be
unfair to the other party but it would also be offensive to the basic rules of fair play, justice and due process. [25] A
party may change his legal theory on appeal only when the factual bases thereof would not require presentation of
any further evidence by the adverse party in order to enable it to properly meet the issue raised in the new theory.[26]
WHEREFORE, the petition is DENIED. Costs against petitioner.

G.R. No. L-19565

January 30, 1968 ESTRELLA DE LA CRUZ, plaintiff-appellee, vs.SEVERINO DE LA CRUZ, defendant-appellant.

The plaintiff Estrella de la Cruz filed a complaint on July 22, 1958 with the Court of First Instance of Negros Occidental, alleging in essence that her husband,
the defendant Severino de la Cruz, had not only abandoned her but as well was mismanaging their conjugal partnership properties, and praying for (1)
separation of property, (2) monthly support of P2,500 during the pendency of the action, and (3) payment of P20,000 as attorney's fees, and costs.
The court a quo forthwith issued an order allowing the plaintiff the amount prayed for as alimony pendente lite, which however, upon defendant's motion, was
reduced to P2,000.
On June 1, 1961 the trial court rendered judgment ordering separation and division of the conjugal assets, and directing the defendant to pay to the plaintiff the
sum of P20,000 as attorney's fees, with legal interest from the date of the original complaint, that is, from July 22, 1958, until fully paid, plus costs. From this
judgment the defendant appealed to the Court of Appeals, which certified the case to us, "it appearing that the total value of the conjugal assets is over
P500,000".
The basic facts are not controverted. The plaintiff and the defendant were married in Bacolod City on February 1, 1938. Six children were born to them, namely,
Zenia (1939), Ronnie (1942), Victoria (1944), Jessie 1945), Bella (1946), and Felipe (1948). During their coverture they acquired seven parcels of land of the
Bacolod Cadastre, all assessed at P45,429, and three parcels of the Silay Cadastre, all assessed at P43,580. All these parcels are registered in their names.
The hacienda in Silay yielded for the year 1957 a net profit of P3,390.49.
They are also engaged in varied business ventures with fixed assets valued as of December 31, 1956 at P496,006.92, from which they obtained for that year a
net profit of P75,655.78. The net gain of the Philippine Texboard Factory, the principal business of the spouses, was P90,454.48 for the year 1957. As of
December 31, 1959, the total assets of the various enterprises of the conjugal partnership were valued at P1,021,407.68, not including those of the Top Service
Inc., of which firm the defendant has been the president since its organization in 1959 in Manila with a paid-up capital of P50,000, P10,000 of which was
contributed by him. This corporation was the Beverly Hills Subdivision in Antipolo, Rizal, the Golden Acres Subdivision and the Green Valley Subdivision in Las
Pias, Rizal, and a lot and building located at M. H. del Pilar, Manila purchased for P285,000, an amount borrowed from the Manufacturer's Bank and Trust
Company.
The spouses are indebted to the Philippine National Bank and the Development Bank of the Philippines for loans obtained, to secure which they mortgaged the
Philippine Texboard Factory, the Silay hacienda, their conjugal house, and all their parcels of land located in Bacolod City.
The essential issues of fact may be gleaned from the nine errors the defendant imputes to the court a quo, namely,
1. In finding that the only visit, from May 15, 1955 to the rendition of the decision, made by the defendant to the conjugal abode to see his wife was on June 15,
1955;
2. In finding that the letter exh. 3 was written by one Nenita Hernandez and that she and the defendant are living as husband and wife;
3. In finding that since 1951 the relations between the plaintiff and the defendant were far from cordial, and that it was from 1948 that the former has been
receiving an allowance from the latter;

18
4. In finding that the defendant has abandoned the plaintiff;
5. In finding that the defendant since 1956 has not discussed with his wife the business activities of the partnership, and that this silence constituted "abuse of
administration of the conjugal partnerships";
6. In declaring that the defendant mortgaged the conjugal assets without the knowledge of the plaintiff and thru false pretences to which the latter was prey;
7. In allowing the plaintiff, on the one hand, to testify on facts not actually known by her, and, on the other hand, in not allowing the defendant to establish his
special defenses;
8. In ordering separation of the conjugal partnership properties; and
9. In sentencing the defendant to pay to the plaintiff attorney's fees in the amount of P20,000, with interest at the legal rate.1wph1.t
Two issues of law as well emerge, requiring resolution petition: (1) Did the separation of the defendant from the plaintiff constitute abandonment in law that
would justify a separation of the conjugal partnership properties? (2) Was the defendant's failure and/or refusal to inform the plaintiff of the state of their business
enterprises such an abuse of his powers of administration of the conjugal partnership as to warrant a division of the matrimonial assets?
The plaintiff's evidence may be summarized briefly. The defendant started living in Manila in 1955, although he occasionally returned to Bacolod City, sleeping in
his office at the Philippine Texboard Factory in Mandalagan, instead of in the conjugal home at 2nd Street, Bacolod City. Since 1955 the defendant had not slept
in the conjugal dwelling, although in the said year he paid short visits during which they engaged in brief conversations. After 1955 up to the time of the trial, the
defendant had never visited the conjugal abode, and when he was in Bacolod, she was denied communication with him. He has abandoned her and their
children, to live in Manila with his concubine, Nenita Hernandez. In 1949 she began to suspect the existence of illicit relations between her husband and Nenita.
This suspicion was confirmed in 1951 when she found an unsigned note in a pocket of one of her husband's polo shirt which was written by Nenita and in which
she asked "Bering" to meet her near the church. She confronted her husband who forthwith tore the note even as he admitted his amorous liaison with Nenita.
He then allayed her fears by vowing to forsake his mistress. Subsequently, in November 1951, she found in the iron safe of her husband a letter, exh. C, also
written by Nenita. In this letter the sender (who signed as "D") apologized for her conduct, and expressed the hope that the addressee ("Darling") could join her
in Baguio as she was alone in the Patria Inn and lonely in "a place for honeymooners". Immediately after her husband departed for Manila the following
morning, the plaintiff enplaned for Baguio, where she learned that Nenita had actually stayed at the Patria Inn, but had already left for Manila before her arrival.
Later she met her husband in the house of a relative in Manila from whence they proceeded to the Avenue Hotel where she again confronted him about Nenita.
He denied having further relations with this woman.
Celia Baez, testifying for the plaintiff, declared that she was employed as a cook in the home of the spouses from May 15, 1955 to August 15, 1958, and that
during the entire period of her employment she saw the defendant in the place only once. This declaration is contradicted, however, by the plaintiff herself who
testified that in 1955 the defendant "used to have a short visit there," which statement implies more than one visit.
The defendant, for his part, denied having abandoned his wife and children, but admitted that in 1957, or a year before the filing of the action, he started to live
separately from his wife. When he transferred his living quarters to his office in Mandalagan, Bacolod City, his intention was not, as it never has been, to
abandon his wife and children, but only to teach her a lesson as she was quarrelsome and extremely jealous of every woman. He decided to live apart from his
wife temporarily because at home he could not concentrate on his work as she always quarreled with him, while in Mandalagan he could pass the nights in
peace. Since 1953 he stayed in Manila for some duration of time to manage their expanding business and look for market outlets for their texboard products.
Even the plaintiff admitted in both her original and amended complaints that "sometime in 1953, because of the expanding business of the herein parties, the
defendant established an office in the City of Manila, wherein some of the goods, effects and merchandise manufactured or produced in the business
enterprises of the parties were sold or disposed of". From the time he started living separately in Mandalagan up to the filing of the complaint, the plaintiff herself
furnished him food and took care of his laundry. This latter declaration was not rebutted by the plaintiff.
The defendant, with vehemence, denied that he has abandoned his wife and family, averring that he has never failed, even for a single month, to give them
financial support, as witnessed by the plaintiff's admission in her original and amended complaints as well as in open court that during the entire period of their
estrangement, he was giving her around P500 a month for support. In point of fact, his wife and children continued to draw allowances from his office of a total
ranging from P1,200 to P1,500 a month. He financed the education of their children, two of whom were studying in Manila at the time of the trial and were not
living with the plaintiff. While in Bacolod City, he never failed to visit his family, particularly the children. His wife was always in bad need of money because she
played mahjong, an accusation which she did not traverse, explaining that she played mahjong to entertain herself and forget the infidelities of her husband.
Marcos V. Ganaban, the manager of the Philippine Texboard Factory, corroborated the testimony of the defendant on the matter of the support the latter gave to
his family, by declaring in court that since the start of his employment in 1950 as assistant general manager, the plaintiff has been drawing an allowance of
P1,000 to P1,500 monthly, which amount was given personally by the defendant or, in his absence, by the witness himself.
The defendant denied that he ever maintained a mistress in Manila. He came to know Nenita Hernandez when she was barely 12 years old, but had lost track of
her thereafter. His constant presence in Manila was required by the pressing demands of an expanding business. He denied having destroyed the alleged note
which the plaintiff claimed to have come from Nenita, nor having seen, previous to the trial, the letter exh. C. The allegation of his wife that he had a concubine
is based on mere suspicion. He had always been faithful to his wife, and not for a single instance had he been caught or surprised by her with another woman.

19
On the matter of the alleged abuse by the defendant of his powers of administration of the conjugal partnership, the plaintiff declared that the defendant refused
and failed to inform her of the progress of their various business concerns. Although she did not allege, much less prove, that her husband had dissipated the
conjugal properties, she averred nevertheless that her husband might squander and dispose of the conjugal assets in favor of his concubine. Hence, the
urgency of separation of property.
The defendant's answer to the charge of mismanagement is that he has applied his industry, channeled his ingenuity, and devoted his time, to the management,
maintenance and expansion of their business concerns, even as his wife threw money away at the mahjong tables. Tangible proof of his endeavors is that from
a single cargo truck which he himself drove at the time of their marriage, he had built up one business after another, the Speedway Trucking Service, the Negros
Shipping Service, the Bacolod Press, the Philippine Texboard Factory, and miscellaneous other business enterprises worth over a million pesos; that all that the
spouses now own have been acquired through his diligence, intelligence and industry; that he has steadily expanded the income and assets of said business
enterprises from year to year, contrary to the allegations of the complainant, as proved by his balance sheet and profit and loss statements for the year 1958
and 1959 (exhibits 1 and 2); and that out of the income of their enterprises he had purchased additional equipment and machineries and has partially paid their
indebtedness to the Philippine National Bank and the Development Bank of the Philippines.
It will be noted that the plaintiff does not ask for legal separation. The evidence presented by her to prove concubinage on the part of the defendant, while
pertinent and material in the determination of the merits of a petition for legal separation, must in this case be regarded merely as an attempt to bolster her claim
that the defendant had abandoned her, which abandonment, if it constitutes abandonment in law, would justify separation of the conjugal assets under the
applicable provisions of article 178 of the new Civil Code which read: "The separation in fact between husband and wife without judicial approval, shall not affect
the conjugal partnership, except that . . . if the husband has abandoned the wife without just cause for at least one year, she may petition the court for a
receivership, or administration by her of the conjugal partnership property, or separation of property". In addition to abandonment as a ground, the plaintiff also
invokes article 167 of the new Civil Code in support of her prayer for division of the matrimonial assets. This article provides that "In case of abuse of powers of
administration of the conjugal partnership property by the husband, the courts, on the petition of the wife, may provide for a receivership, or administration by
the wife, or separation of property". It behooves us, therefore, to inquire, in the case at bar, whether there has been abandonment, in the legal sense, by the
defendant of the plaintiff, and/or whether the defendant has abused his powers of administration of the conjugal partnership property, so as to justify the
plaintiff's plea for separation of property.
We have made a searching scrutiny of the record, and it is our considered view that the defendant is not guilty of abandonment of his wife, nor of such abuse of
his powers of administration of the conjugal partnership, as to warrant division of the conjugal assets.
The extraordinary remedies afforded to the wife by article 178 when she has been abandoned by the husband for at least one year are the same as those
granted to her by article 167 in case of abuse of the powers of administration by the husband. To entitle her to any of these remedies, under article 178, there
must be real abandonment, and not mere separation. 1 The abandonment must not only be physical estrangement but also amount to financial and moral
desertion.
Although an all-embracing definition of the term "abandonment " is yet to be spelled out in explicit words, we nevertheless can determine its meaning from the
context of the Law as well as from its ordinary usage. The concept of abandonment in article 178 may be established in relation to the alternative remedies
granted to the wife when she has been abandoned by the husband, namely, receivership, administration by her, or separation of property, all of which are
designed to protect the conjugal assets from waste and dissipation rendered imminent by the husband's continued absence from the conjugal abode, and to
assure the wife of a ready and steady source of support. Therefore, physical separation alone is not the full meaning of the term "abandonment", if the husband,
despite his voluntary departure from the society of his spouse, neither neglects the management of the conjugal partnership nor ceases to give support to his
wife.
The word "abandon", in its ordinary sense, means to forsake entirely; to forsake or renounce utterly. 2 The dictionaries trace this word to the root idea of "putting
under a bar". The emphasis is on the finality and the publicity with which some thing or body is thus put in the control of another, and hence the meaning of
giving up absolutely, with intent never again to resume or claim one's rights or interests. 3 When referring to desertion of a wife by a husband, the word has been
defined as "the act of a husband in voluntarily leaving his wife with intention to forsake her entirely, never to return to her, and never to resume his marital duties
towards her, or to claim his marital rights; such neglect as either leaves the wife destitute of the common necessaries of life, or would leave her destitute but for
the charity of others." 4 The word "abandonment", when referring to the act of one consort of leaving the other, is "the act of the husband or the wife who leaves
his or her consort wilfully, and with an intention of causing per perpetual separation." 5 Giving to the word "abandoned", as used in article 178, the meaning
drawn from the definitions above reproduced, it seems rather clear that to constitute abandonment of the wife by the husband, there must be absolute cessation
of marital relations and duties and rights, with the intention of perpetual separation.
Coming back to the case at bar, we believe that the defendant did not intend to leave his wife and children permanently. The record conclusively shows that he
continued to give support to his family despite his absence from the conjugal home. This fact is admitted by the complainant, although she minimized the
amount of support given, saying that it was only P500 monthly. There is good reason to believe, however, that she and the children received more than this
amount, as the defendant's claim that his wife and children continued to draw from his office more than P500 monthly was substantially corroborated by Marcos
Ganaban, whose declarations were not rebutted by the plaintiff. And then there is at all no showing that the plaintiff and the children were living in want. On the
contrary, the plaintiff admitted, albeit reluctantly, that she frequently played mahjong, from which we can infer that she had money; to spare.
The fact that the defendant never ceased to give support to his wife and children negatives any intent on his part not to return to the conjugal abode and resume
his marital duties and rights. In People v. Schelske, 6 it was held that where a husband, after leaving his wife, continued to make small contributions at intervals
to her support and that of their minor child, he was not guilty of their "abandonment", which is an act of separation with intent that it shall be perpetual, since

20
contributing to their support negatived such intent. In re Hoss' Estate, supra, it was ruled that a father did not abandon his family where the evidence disclosed
that he almost always did give his wife part of his earnings during the period of their separation and that he gradually paid some old rental and grocery bills.
With respect to the allegation that the defendant maintained a concubine, we believe, contrary to the findings of the court a quo, that the evidence on record fails
to preponderate in favor of the plaintiff's thesis. The proof that Nenita Hernandez was the concubine of the defendant and that they were living as husband and
wife in Manila, is altogether too indefinite. Aside from the uncorroborated statement of the plaintiff that she knew that Nenita Hernandez was her husband's
concubine, without demonstrating by credible evidence the existence of illicit relations between Nenita and the defendant, the only evidence on record offered to
link the defendant to his alleged mistress is exh. C. The plaintiff however failed to connect authorship of the said letter with Nenita, on the face whereof the
sender merely signed as "D" and the addressee was one unidentified "Darling". The plaintiff's testimony on cross-examination, hereunder quoted, underscores
such failure:
Q. You personally never received any letter from Nenita?
A. No.
Q. Neither have you received on any time until today from 1949 from Nenita?
A. No.
Q. Neither have you written to her any letter yourself until now?
A. Why should I write a letter to her.
Q. In that case, Mrs. De la Cruz, you are not familiar with the handwriting of Nenita. Is that right?
A. I can say that Nenita writes very well.
Q. I am not asking you whether she writes very well or not but, my question is this: In view of the fact that you have never received a letter from Nenita, you
have ot sent any letter to her, you are not familiar with her handwriting?
A. Yes.
Q. You have not seen her writing anybody?
A. Yes.
Anent the allegation that the defendant had mismanaged the conjugal partnership property, the record presents a different picture. There is absolutely no
evidence to show that he has squandered the conjugal assets. Upon the contrary, he proved that through his industry and zeal, the conjugal assets at the time
of the trial had increased to a value of over a million pesos.
The lower court likewise erred in holding that mere refusal or failure of the husband as administrator of the conjugal partnership to inform the wife of the
progress of the family businesses constitutes abuse of administration. For "abuse" to exist, it is not enough that the husband perform an act or acts prejudicial to
the wife. Nor is it sufficient that he commits acts injurious to the partnership, for these may be the result of mere inefficient or negligent administration. Abuse
connotes willful and utter disregard of the interests of the partnership, evidenced by a repetition of deliberate acts and/or omissions prejudicial to the latter. 7
If there is only physical separation between the spouses (and nothing more), engendered by the husband's leaving the conjugal abode, but the husband
continues to manage the conjugal properties with the same zeal, industry, and efficiency as he did prior to the separation, and religiously gives support to his
wife and children, as in the case at bar, we are not disposed to grant the wife's petition for separation of property. This decision may appear to condone the
husband's separation from his wife; however, the remedies granted to the wife by articles 167 and 178 are not to be construed as condonation of the husband's
act but are designed to protect the conjugal partnership from waste and shield the wife from want. Therefore, a denial of the wife's prayer does not imply a
condonation of the husband's act but merely points up the insufficiency or absence of a cause of action.1wph1.t
Courts must need exercise judicial restraint and reasoned hesitance in ordering a separation of conjugal properties because the basic policy of the law is
homiletic, to promote healthy family life and to preserve the union of the spouses, in person, in spirit and in property.
Consistent with its policy of discouraging a regime of separation as not in harmony with the unity of the family and the mutual affection and help expected of the
spouses, the Civil Code (both old and new) requires that separation of property shall not prevail unless expressly stipulated in marriage settlements before the
union is solemnized or by formal judicial decree during the existence of the marriage (Article 190, new Civil Code, Article 1432, old Civil Code): and in the latter
case, it may only be ordered by the court for causes specified in Article 191 of the new Civil Code. 8

21
Furthermore, a judgment ordering the division of conjugal assets where there has been no real abandonment, the separation not being wanton and absolute,
may altogether slam shut the door for possible reconciliation. The estranged spouses may drift irreversibly further apart; the already broken family solidarity may
be irretrievably shattered; and any flickering hope for a new life together may be completely and finally extinguished.
The monthly alimony in the sum of P2,000 which was allowed to the wife in 1958, long before the devaluation of the Philippine peso in 1962, should be
increased to P3,000.
On the matter of attorney's fees, it is our view that because the defendant, by leaving the conjugal abode, has given cause for the plaintiff to seek redress in the
courts, and ask for adequate support, an award of attorney's fees to the plaintiff must be made. Ample authority for such award is found in paragraphs 6 and 11
of article 2208 of the new Civil Code which empower courts to grant counsel's fees "in actions for legal support" and in cases "where the court deems it just and
equitable that attorney's fees . . . should be recovered." However, an award of P10,000, in our opinion, is, under the environmental circumstances, sufficient.
This Court would be remiss if it did not, firstly, remind the plaintiff and the defendant that the law enjoins husband and wife to live together, and, secondly, exhort
them to avail of mutually, earnestly and steadfastly all opportunities for reconciliation to the end that their marital differences may be happily resolved, and
conjugal harmony may return and, on the basis of mutual respect and understanding, endure.
ACCORDINGLY, the judgment a quo, insofar as it decrees separation of the conjugal properties, is reversed and set aside. Conformably to our observations,
however, the defendant is ordered to pay to the plaintiff, in the concept of support, the amount of P3,000 per month, until he shall have rejoined her in the
conjugal home, which amount may, in the meantime, be reduced or increased in the discretion of the court a quo as circumstances warrant. The award of
attorney's fees to the plaintiff is reduced to P10,000, without interest. No pronouncement as to costs.

G.R. No. 82606 December 18, 1992 PRIMA PARTOSA-JO, petitioner, vs.THE HONORABLE COURT OF APPEALS and HO HANG (with aliases JOSE JO and
CONSING), respondents. CRUZ, J.:
The herein private respondent, Jose Jo, admits to having cohabited with three women and fathered fifteen children. The first of these women, the herein petitioner, claims to be his
legal wife whom he begot a daughter, Monina Jo. The other women and their respective offspring are not parties of these case.
In 1980, the petitioner filed a complaint against Jo for judicial separation of conjugal property, docketed as Civil Case No. 51, in addition to an earlier action for support, also against
him and docketed as Civil Case No. 36, in the Regional Trial Court of Negros Oriental, Branch 35.
The two cases were consolidated and tried jointly. On November 29, 1983, Judge German G. Lee, Jr. rendered an extensive decision, the dispositive portion of which read:
WHEREFORE, in view of all the foregoing arguments and considerations, this court hereby holds that the plaintiff Prima Partosa was legally married to Jose Jo alias Ho Hang, alias
Consing, and, therefore, is entitled to support as the lawfully wedded wife and the defendant is hereby ordered to give a monthly support of P500.00 to the plaintiff Prima Partosa, to be
paid on or before the 5th day of every month, and to give to the plaintiff the amount of P40,000.00 for the construction of the house in Zamboanguita, Negros Oriental where she may
live separately from the defendant being entitled under the law to separate maintenance being the innocent spouse and to pay the amount of P19,200.00 to the plaintiff by way of
support in arrears and to pay the plaintiff the amount of P3,000.00 in the concept of attorney's fees.
As will be noticed, there was a definite disposition of the complaint for support but none of the complaint for judicial separation of conjugal property.
Jo elevated the decision to the Court of Appeals, which affirmed the ruling of the trial court in the complaint for support. 1 The complaint for judicial separation of conjugal property was
dismissed for lack of a cause of action and on the ground that separation by agreement was not covered by Article 178 of the Civil Code.

22
When their motions for reconsideration were denied, both parties came to this Court for relief. The private respondent's petition for review on certiorari was dismissed for tardiness in
our resolution dated February 17, 1988, where we also affirmed the legality of the marriage between Jose and Prima and the obligation of the former to support her and her daughter.
This petition deals only with the complaint for judicial separation of conjugal property.
It is here submitted that the Court of Appeals erred in holding that: a) the judicial separation of conjugal property sought was not allowed under Articles 175, 178 and 191 of the Civil
Code; and b) no such separation was decreed by the trial court in the dispositive portion of its decision.
The private respondent contends that the decision of the trial court can longer be reviewed at this time because it has a long since become final and executory. As the decretal portion
clearly made no disposition of Civil Case No. 51, that case should be considered impliedly dismissed. The petitioner should have called the attention of the trial court to the omission so
that the proper rectification could be made on time. Not having done so, she is now concluded by the said decision, which can no longer be corrected at this late hour.
We deal first with the second ground.
While admitting that no mention was made of Civil Case No. 51 in the dispositive portion of the decision of the trial court, the petitioner argues that a disposition of the case was
nonetheless made in the penultimate paragraph of the decision reading as follows:
It is, therefore, hereby ordered that all properties in question are considered properties of Jose Jo, the defendant in this case, subject to separation of property under Article 178, third
paragraph of the Civil Code, which is subject of separate proceedings as enunciated herein.
The petitioner says she believed this to be disposition enough and so did not feel it was necessary for her to appeal, particularly since the order embodied in that paragraph was in her
favor. It was only when the respondent court observed that there was no dispositive portion regarding that case and so ordered its dismissal that she found it necessary to come to this
Court for relief.
The petitioner has a point.
The dispositive portion of the decision in question was incomplete insofar as it carried no ruling on the complaint for judicial separation of conjugal property although it was extensively
discussed in the body of the decision. The drafting of the decision was indeed not exactly careful. The petitioner's counsel, noting this, should have taken immediate steps for the
rectification for the omission so that the ruling expressed in the text of the decision could have been embodied in the decretal portion. Such alertness could have avoided this litigation
on a purely technical issue.
Nevertheless, the technicality invoked in this case should not be allowed to prevail over considerations of substantive justive. After all, the technical defect is not insuperable. We have
said time and again that where there is an ambiguity caused by an omission or a mistake in the dispositive portion of the decision, this Court may clarify such an ambiguity by an
amendment even after the judgment have become final. 2 In doing so, the Court may resort to the pleading filed by the parties and the findings of fact and the conclusions of law
expressed in the text or body of the decision. 3
The trial court made definite findings on the complaint for judicial separation of conjugal property, holding that the petitioner and the private respondent were legally married and that
the properties mentioned by the petitioner were acquired by Jo during their marriage although they were registered in the name of the apparent dummy.
There is no question therefore that the penultimate paragraph of the decision of the trial court was a ruling based upon such findings and so should have been embodied in the
dispositive portion. The respondent court should have made the necessary modification instead of dismissing Civil Case No. 51 and thus upholding mere form over substance.
In the interest of substantive justice, and to expedite these proceedings, we hereby make such modification.
And now to the merits of Civil Case No. 51.
The Court of Appeals dismissed the complaint on the ground that the separation of the parties was due to their agreement and not because of abondonment. The respondent court
relied mainly on the testimony of the petitioner, who declared under oath that she left Dumaguete City, where she and Jo were living together "because that was our agreement." It held
that a agreement to live separately without just cause was void under Article 221 of the Civil Code and could not sustain any claim of abandonment by the aggrieved spouse. Its
conclusion was that the only remedy availabe to the petitioner was legal separation under Article 175 of the Civil Code, 4 by virtue of which the conjugal partnership of property would
be terminated.
The petitioner contends that the respondent court has misinterpreted Articles 175, 178 and 191 of the Civil Code. She submits that the agreement between her and the private
respondent was for her to temporarily live with her parents during the initial period of her pregnancy and for him to visit and support her. They never agreed to separate permanently.
And even if they did, this arrangement was repudiated and ended in 1942, when she returned to him at Dumaguete City and he refused to accept her.
The petitioner invokes Article 178 (3) of the Civil Code, which reads:
Art. 178. The separation in fact between husband and wife without judicial approval, shall not affect the conjugal partnership, except that:
xxx xxx xxx
(3) If the husband has abandoned the wife without just cause for at least one year, she may petition the court for a receivership, or administration by her of the conjugal partnership
property or separation of property.

23
The above-quoted provision has been superseded by Article 128 of the Family Code, which states:
Art. 128. If a spouse without just cause abandons the other or fails to comply with his or her obligations to the family, the aggrieved spouse may petition the court for receivership, for
judicial separation of property, of for authority to be the sole administrator of the conjugal partnership property, subject to such precautionary conditions as the court may impose.
The obligations to the family mentioned in the preceding paragraph refer to martial, parental or property relations.
A spouse is deemed to have abondoned the other when he or she has left the conjugal dwelling without any intention of returning. The spouse who has left the conjugal dwelling for a
period of three months or has failed within the same period to give any information as to his or her whereabouts shall be prima facie presumed to have no intention of returning to the
conjugal dwelling.
Under the this provision, the aggrieved spouse may petition for judicial separation on either of these grounds:
1. Abondonment by a spouse of the other without just cause; and
2. Failure of one spouse to comply with his or her obligations to the family without just cause, even if she said spouse does not leave the other spouse.
Abandonment implies a departure by one spouse with the avowed intent never to return, followed by prolonged absence without just cause, and without in the meantime providing in
the least for one's family although able to do so. 5 There must be absolute cessation of marital relations, duties and rights, with the intention of perpetual separation. 6This idea is
clearly expressed in the above-quoted provision, which states that "a spouse is deemed to have abandoned the other when he or she has left the conjugal dwelling without any
intention of returning."
The record shows that as early as 1942, the private respondent had already rejected the petitioner, whom he denied admission to their conjugal home in Dumaguete City when she
returned from Zamboanguita. The fact that she was not accepted by Jo demonstrates all too clearly that he had no intention of resuming their conjugal relationship. Moreover,
beginning 1968 until the determination by this Court of the action for support in 1988, the private respondent refused to give financial support to the petitioner. The physical separation
of the parties, coupled with the refusal by the private respondent to give support to the petitioner, sufficed to constitute abandonment as a ground for the judicial separation of their
conjugal property.
In addition, the petitioner may also invoke the second ground allowed by Article 128, for the fact is that he has failed without just cause to comply with his obligations to the family as
husband or parent. Apart form refusing to admit his lawful wife to their conjugal home in Dumaguete City, Jo has freely admitted to cohabiting with other women and siring many
children by them. It was his refusal to provide for the petitioner and their daughter that prompted her to file the actions against him for support and later for separation of the conjugal
property, in which actions, significantly, he even denied being married to her. The private respondent has not established any just cause for his refusal to comply with his obligations to
his wife as dutiful husband.
Their separation thus falls also squarely under Article 135 of the Family Code, providing as follows:
Art. 135. Any of the following shall be considered sufficient cause for judicial separation of property:
xxx xxx xxx
(6) That at the time of the petition, the spouse have been separated in fact for at least one year and reconciliation is highly improbable.
The amendments introduced in the Family Code are applicable to the case before us although they became effective only on August 3, 1988. As we held in Ramirez v. Court of
Appeals: 7
The greater weight of authority is inclined to the view that an appellate court, in reviewing a judgment on appeal, will dispose of a question according to the law prevailing at the term of
such disposition, and not according to the law prevailing at the time of rendition of the appealed judgement. The court will therefore reverse a judgement which was correct at the time
it was originally rendered where, by statute, there has been an intermediate change in the law which renders such judgement erroneous at the time the case was finally disposed of on
appeal.
The order of judicial separation of the properties in question is based on the finding of both the trial and respondent courts that the private respondent is indeed their real owner. It is
these properties that should now be divided between him and the petitioner, on the assumption that they were acquired during coverture and so belong to the spouses half and half. As
the private respondent is a Chinese citizen, the division must include such properties properly belonging to the conjugal partnership as may have been registered in the name of other
persons in violation of the Anti-Dummy Law.
The past has caught up with the private respondent. After his extramarital flings and a succession of illegitimate children, he must now make an accounting to his lawful wife of the
properties he denied her despite his promise to their of his eternal love and care.
WHEREFORE, the petition is GRANTED and the assailed decision of the respondent court is MODIFIED. Civil Case No. 51 is hereby decided in favor the plaintiff, the petitioner
herein, and the conjugal property of the petitioner and the private respondent is hereby ordered divided between them, share and share alike. This division shall be implemented by the
trial court after determination of all the properties pertaining to the said conjugal partnership, including those that may have been illegally registered in the name of the persons.

FACTS:

24

The petitioner, Prima Partosa-Jo, is the legal wife of Jose Jo, herein private respondent. The latter admitted to have
cohabited with 3 women and fathered 15 children. Prima filed a complaint against the husband for judicial separation
of conjugal property in addition to an earlier action for support which was consolidated. RTC decision was a definite
disposition of the complaint for support but none of that for the judicial separation of conjugal property. Jose elevated
the decision to CA which affirmed rulings of the trial court. The complaint on the separation of property was
dismissed for lack of cause of action on the ground that separation by agreement was not covered in Art. 178 of the
Civil Code. Prima contested that the agreement between her and Jose was for her to temporarily live with her parents
during the initial period of her pregnancy and for him to visit and support her. They never agreed to be separated
permanently. She even returned to him but the latter refused to accept her.

ISSUE: WON there is abandonment on the part of Jose Jo to warrant judicial separation of conjugal property.

HELD:

SC is in the position that respondent court should have made the necessary modification instead of dismissing the
case filed. For abandonment to exist, there must be an absolute cessation of marital relations, duties and rights, with
the intention of perpetual separation. The fact that Jo did not accept her demonstrates that he had no intention of
resuming their conjugal relationship. From 1968 until 1988, Jose refused to provide financial support to Prima. Hence,
the physical separation of the parties, coupled with the refusal by the private respondent to give support to the
petitioner, sufficed to constitute abandonment as a ground for the judicial separation of their conjugal property.
Wherefore, the petition was granted and in favor of the petitioner and that the court ordered the conjugal property of
the spouses be divided between them, share and share alike. The division will be implemented after the
determination of all the properties pertaining to the said conjugal partnership including those that may have been
illegally registered in the name of the persons.

G.R. No. L-45870 May 11, 1984 MARGARET MAXEY assisted by Santiago Magbanua; FLORENCE MAXEY assisted by Ofrecinio Santos; and LUCILLE
MAXEY, petitioners, vs.
THE HONORABLE COURT OF APPEALS and THE SPOUSES BEATO C. MACAYRA and ALACOPUE MONDAY,respondents.
GUTIERREZ, JR., J.:
This petition for review involves the rights of a woman over properties acquired in 1912 principally through the efforts of the man she was living with and at a
time when the two were not yet legally married. The facts of the case are briefly stated in the decision of the Court of Appeals as follows:

25
The record reveals that Melbourne Maxey and Regina Morales (both deceased) lived together as husband and wife in Banganga, Davao; that out of said union
were born six (6) children, among them are the herein plaintiffs, namely: John or Carlos, Lucille, Margaret, Florence, Fred and George, all surnamed Maxey; that
during the period of their (Melbourne and Regina) cohabitation, or in 1911 and 1912, respectively, the late Melbourne Maxey acquired the parcels of land
described under Par. 4 of the com;plaint as evidenced by the documents of sale marked as Exhibits 4-a and 5-1 (same as Exhibits Facts), Melbourne Maxey,
through his attorney-in-fact Julia Pamatluan Maxey, sold in favor of the defendants-spouses in 1953 the parcels of land under litigation which fact of sale was
not controverted by the perties (Par. 1, /stipulation of Facts); that since thereof, the defendants-spouses have taken immediate possession thereof continuously
up to the present.
Plaintiffs instituted the present case on January 26, 1962, before the Court of First Instance of Davao, praying for the annulment of the documents of sale
covering the subject parcels of land and to recover possession thereof with damages from the herein defendants-spouses, alleging, among others, that the
aforesaid realties were common properties of their parents, having been acquired during their lifetime and through their joint effort and capital; and that the sales
of the of the said lands in favor of the defendants-spouses in 1953, after the death of their mother, Regina Morales, was executed by their father, Melbourne
Maxey, without their knowledge and consent; and that they came to know of the above mentioned sales only in 1961.
On the other hand, defendants-spouses deny the material allegations of the complaint and assert by way of affirmative defenses that they are the true and
lawful owners and possessors of the properties 'm question having purchased the same in good faith and for value from Melbourne Maxey during his lifetime in
1953, based upon the reasonable belief that the latter is the me and exclusive owner of the said parcels of land and that since then, they have been in
possession thereof openly, exclusively and continuously in concept of owners. Defendants - spouses further counter for damages and attorney's fees and in the
alternative, for the value of the improvements they have introduced in the premises.
Melbourne Maxey and Regina Morales started living together in 1903. Their children claim that their parents were united in 1903 in a marriage performed "in the
military fashion". Both the trial court and the appellate court rejected this claim of a "military fashion" marriage.
The couple had several children. John Carlos was born in 1903, followed by Lucille, Margaret, Florence, Fred, and George. Except for the youngest son, all the
children were born before the disputed properties were acquired. The father, Melbourne Maxey, was a member of the 1899 American occupation forces who
afterwards held high positions in the provincial government and in the Philippine public schools system.
As earlier mentioned in the cited statement of facts, the disputed properties were acquired in 1911 and 1912 before the 1919 church marriage. Regina Morales
Maxey died in 1919 sometime after the church wedding. The husband remarried and in 1953, his second wife Julia Pamatluan Maxey, using a power of
attorney, sold the properties to the respondent spouses, Mr. and Mrs. Beato C. Macayra.
The trial court applied Article 144 of the Civil Code which provides:
When a man and a woman live together as husband and wife, but they are not married, or their marriage is void from the beginning, the property acquired by
either or both of them through their work or industry or their wages and salaries shall be governed by the rules on co-ownership.
The court stated that "when a man and a woman lived together as husband and wife, justice demands that the woman should be entitled to the share of the
property. Certainly she cannot be considered mere adornment or only for man's comfort and passion." The dispositive portion of the decision reads:
Evidence, testimonial and document considered the Court hereby rendered judgment in favor of the plaintiffs and against defendant declaring that:
1. Declaring the abovementioned sales as null and void;
2. Ordering defendant-spouses to return the said lands, and to pay for the value of the use of the same at the rate of P1,000.00 a year from 1953 until delivered,
together with interests corresponding thereto at the legal rate;
3. Ordering defendant-spouses to pay to plaintiff actual damages in the sum of P500.00 and attorney fees in the sum of P3,000.00.
Defendants counterclaim is hereby ordered dismissed.
The Court of Appeals, however, found the parcels of, land to be exclusive properties of the late Melbourne Maxey. It set aside the decision of the trial court,
decease valid the deeds of sale, and ruled that the appellants are the absolute owners of the properties in question.
The appellate decision sustained the following arguments of the respondent spouses:
Plaintiffs' evidence is completely devoid of any showing that these properties in question were acquired through the joint efforts of Melbourne Maxey and Regina
Morales. Indeed, if at all, plaintiffs' evidence tend to establish the fact that Melbourne Maxey by virtue of his positions as Deputy Governor of Zamboanga (p. 36,
t.s.n. de la Victoria) School Supervisor in the East Coast of Davao (p. 36, t.s.n., Id.) was more than in a position to purchase these properties by his own efforts,
his own earnings and without the help of Regina Morales. On the other hand, we have the declaration of Juana A. Morales, a widow of 68 years of age when
she testified, the sister-in-law of Regina Morales Juana A. Morales confirmed the fact that Melbourne Maxey held the positions of teacher, provincial

26
treasurer, deputy governor, district supervisor and lastly superintendent of schools, respectively (p. 203, t.s.n., de la Victoria). But more important is her
declaration that her sister-in-law Regina Morales had no property of her own whence she could have derived any income nor was Regina gainfully employed.
(pp. 203-204, t.s.n., Id.) It must be remembered that the showing must be CLEAR that Regina Morales contributed to the acquisition of these properties. Here
the evidence is not only NOT CLEAR, indeed, there is no evidence at all that Regina Morales contributed to the acquisition of the properties in question. In the
case of Aznar, et al vs. Garcia, et al, supra, the Supreme Court had before it the common-law wife's own testimony claiming that the properties in controversy
were the product of their joint industry. Her assertions however, were completely brushed aside because aside from her claim that she took a hand in the
management and/or acquisition of the same, "there appears no evidence to prove her alleged contribution or participation in the, acquisition of the properties
involved therein." (Id. p. 1069). In the case at bar, besides the absence of any evidence showing that Regina Morales contributed by her efforts to the acquisition
of these properties in controversy, both plaintiffs and defendants' evidence show that it was through Melbourne Maxey's efforts alone that these properties were
acquired. Indeed, that Regina Morales had no means at all to have contributed in any manner to all its acquisition.
The petitioners raise the following issues in this petition:
1. THE COURT OF APPEALS ERRED IN DECLARING THAT THE LATE SPOUSES MELBOURNE MAXEY AND REGINA MORALES WERE MARRIED ONLY
IN 1919, BECAUSE THE TRUTH IS THAT THEY MARRIED AS EARLY AS 1903.
2. THE COURT OF APPEALS, LIKEWISE, ERRED IN DECLARING THE PROPERTIES IN QUESTION AS THE EXCLUSIVE PROPERTIES OF THE LATE
MELBOURNE MAXEY, TO THE EXCLUSION OF HIS WIFE REGINA MORALES, BECAUSE THE MENTIONED PROPERTIES WERE ACTUALLY ACQUIRED
BY THE JOINT EFFORTS AND INDUSTRY OF BOTH OF THEM AND THEREFORE, THESE PROPERTIES ARE COMMON PROPERTIES.
3. THE COURT OF APPEALS FINALLY ERRED IN UNREASONABLY GIVING THE TERM "JOINT EFFORTS" NOT ONLY A VERY, VERY LIMITED MEANING
BUT A CONCEPT WHICH IS ENTIRELY ABSURD AND UNREALISTIC BECAUSE IN CONSTRUING THE TERM, THE COURT OF APPEALS HAS REFUSED
TO ACCEPT AN INTERPRETATION WHICH IS MOST CONSISTENT WITH COMMON PRACTICE AND CUSTOMS AS WELL AS IN ACCORD WITH THE
BEST TRADITION OF THE FILIPINO WAY OF LIFE.
The Court of First Instance and the Court of Appeals correctly rejected the argument that Act No. 3613, the Revised Marriage Law, recognized "military fashion"
marriages as legal. Maxey and Morales were legally married at a church wedding solemnized on February 16, 1919. Since Act No. 3613 was approved on
December 4, 1929 and took effect six months thereafter, it could not have applied to a relationship commenced in 1903 and legitimized in 1919 through a
marriage performed according to law. The marriage law in 1903 was General Order No. 70. There is no provision in General Order No. 68 as amended nor in
Act No. 3613 which would recognize as an exception to the general rule on valid marriages, a so called "Military fashion" ceremony or arrangement.
The Court of First Instance and the Court of Appeals both ruled that Melbourne Maxey and Regina Morales were married only in 1919. This is a finding of fact
which we do not disturb at this stage of the case. There is no showing that this factual finding is totally devoid of or unsupported by evidentiary basis or that it is
inconsistent with the evidence of record.
The other issue raised in this Petition questions the Court of Appeals' finding that the parcels of land in question were exclusive properties of the late Melbourne
Maxey.
The petitioners argue that even assuming that the marriage of Melbourne Maxey and Regina Morales took place only in February 17, 1919, still the properties
legally and rightfully belonged in equal share to the two because the acquisition of the said properties was through their joint efforts and industry. The second
and third errors mentioned by the petitioners are grounded on the alleged wrong interpretation given by the Court of Appeals to the phrase "joint efforts". The
petitioners suggest that their mother's efforts in performing her role as mother to them and as wife to their father were more than sufficient contribution to
constitute the parcels of land in question as common properties acquired through the joint efforts to their parents.
The Court of Appeals, however, was of the opinion that Article 144 of the Civil Code is not applicable to the properties in question citing the case of Aznar et al.
v. Garcia (102 Phil. 1055) on non-retroactivity of codal provisions where vested rights may be prejudiced or impaired. And, assuming that Article 144 of the Civil
Code is applicable, the Court of Appeals held that the disputed properties were exclusively those of the petitioner's father because these were not acquired
through the joint efforts of their parents. This conclusion stems from the interpretation given by the Court of Appeals to the phrase "joint efforts" to mean
"monetary contribution". According to the Court
... This view with which this ponente personally wholeheartedly agrees for some time now has been advocated by sympathizers of equal rights for women,
notably in the Commission on the Status of Women of the United Nations. In our very own country there is strong advocacy for the passage of a presidential
decree providing that "the labors of a spouse in managing the affairs of the household shall be credited with compensation." Unfortunately, until the happy day
when such a proposal shall have materialized into law, Courts are bound by existing statutes and jurisprudence, which rigidly interpret the phrase "joint efforts"
as monetary contributions of the man and woman living together without benefit of marriage, and to date, the drudgery of a woman's lifetime dedication to the
management of the household goes unremunerated, and has no monetary value. Thus, in the case ofAznar vs. Garcia (supra) the Supreme Court held that the
man and the woman have an equal interest in the properties acquired during the union and each would be entitled to participate therein if said properties were
the product of their joint effort. In the same case it was stated that aside` from the observation of the trial court that the appellee was an illiterate woman, there
appears no evidence to prove appellee's contribution (in terms of pesos and centavos) or participation in the acquisition of the properties involved; therefore,
following the aforecited ruling of the Court, appellee's claim for one-half (1/2) of the properties cannot be granted.

27
In so concluding, the respondent Court of Appeals accepted the private respondents' argument that it was unlikely for the petitioners' mother to have materially
contributed in the acquisition of the questioned properties since she had no property of her own nor was she gainfully engaged in any business or profession
from which she could derive income unlike their father who held the positions of teacher deputy governor, district supervisor, and superintendent of schools.
We are constrained to adopt a contrary view. Considerations of justice dictate the retroactive application of Article 144 of the Civil Code to the case at bar.
Commenting on Article 2252 of the Civil Code which provides that changes made and new provisions and rules laid down by the Code which may prejudice or
impair vested or acquired rights in accordance with the old legislation shall have no retroactive effect, the Code Commission stated:
Laws shall have no retroactive effect, unless the contrary is provided. The question of how far the new Civil Code should be made applicable to past acts and
events is attended with the utmost difficulty. It is easy enough to understand the abstract principle that laws have no retroactive effect because vested or
acquired rights should be respected. But what are vested or acquired rights? The Commission did not venture to formulate a definition of a vested or acquired
right seeing that the problem is extremely committed.
What constitutes a vested or acquired right well be determined by the courts as each particular issue is submitted to them, by applying the transitional provisions
set forth, and in case of doubt, by observing Art. 9 governing the silence or obscurity of the law. In this manner, the Commission is confident that the judiciary
with its and high sense of justice will be able to decide in what cases the old Civil Code would apply and in what cases the new one should be binding This
course has been preferred by the Commission, which did not presume to be able to foresee and adequately provide for each and every question that may arise.
(Report of the Code Commission, pp. 165-166).
Similarly, with respect to Article 2253 which provides inter alia that if a right should be declared for the first tune in the Code, it shall be effective at once, even
though the act or event which gives rise thereto may have been done or may have occurred under the prior legislation, provided said new right does not
prejudice or impair any vested or acquired right, of the same origin, the Code Commission commented:
... But the second sentence gives a retroactive effect to newly created rights provided they do not prejudice or impair any vested or acquired right. The
retroactive character of the new right is the result of the exercise of the sovereign power of legislation, when the lawmaking body is persuaded that the new right
is called for by considerations of justice and public policy. But such new right most not encroach upon a vested right. (Report of the Code Commission, p. 167).
The requirement of non-impairment of vested rights is clear. It is the opinion of the Court of Appeals that vested rights were prejudiced. We do not think so.
Prior to the effectivity of the present Civil Code on August 30, 1950, the formation of an informal civil partnership between a man and wife not legally married
and their corresponding right to an equal share in properties acquired through their joint efforts and industry during cohabitation was recognized through
decisions of this Court. (Aznar et al. vs. Garcia, 102 Phil. 1055; Flores vs. Rehabilitation Finance Corporation, 94 Phil. 451; Marata vs. Dionio, L-24449,
December 31, 1925; Lesaca v. Lesaca, 91 Phil. 135.)
With the enactment of the new Civil Code, Article 144 codified the law established through judicial precedents but with the modification that the property
governed by the rules on co-ownership may be acquired by either or both of them through their work or industry. Even if it is only the man who works, the
property acquired during the man and wife relationship belongs through a fifty-fifty sharing to the two of them.
This new article in the Civil Code recognizes that it would be unjust and abnormal if a woman who is a wife in all aspects of the relationship except for the
requirement of a valid marriage must abandon her home and children, neglect her traditional household duties, and go out to earn a living or engage in business
before the rules on co-ownership would apply. This article is particularly relevant in this case where the "common-law" relationship was legitimated through a
valid marriage 34 years before the properties were sold.
The provisions of the Civil Code are premised on the traditional and existing, the normal and customary gender roles of Filipino men and women. No matter how
large the income of a working wife compared to that of her husband, the major, if not the full responsibility of running the household remains with the woman.
She is the administrator of the household. The fact that the two involved in this case were not legally married at the time does not change the nature of their
respective roles. It is the woman who traditionally holds the family purse even if she does not contribute to filling that purse with funds. As pointed out by Dean
Irene R. Cortes of the University of the Philippines, "in the Filipino family, the wife holds the purse, husbands hand over their pay checks and get an allowance in
return and the wife manages the affairs of the household. . . . And the famous statement attributed to Governor General Leonard Wood is repeated: In the
Philippines, the best man is the woman." (Cortes, "Womens Rights Under the New Constitution". WOMAN AND THE LAW, U.P. Law Center, p. 10.)
The "real contribution" to the acquisition of property mentioned in Yaptinchay vs. Torres (28 SCRA 489) must include not only the earnings of a woman from a
profession, occupation, or business but also her contribution to the family's material and spiritual goods through caring for the children, administering the
household, husbanding scarce resources, freeing her husband from household tasks, and otherwise performing the traditional duties of a housewife.
Should Article 144 of the Civil Code be applied in this case? Our answer is "Yes" because there is no showing that vested rights would be impaired or prejudiced
through its application.
A vested right is defined by this Court as property which has become fixed and established, and is no longer open to doubt or controversy; an immediately fixed
right of present or future enjoyment as distinguished from an expectant or contingent right (Benguet Consolidated Mining Co. vs. Pineda, 98 Phil. 711; Balbao
vs. Farrales, 51 Phil. 498). This cannot be said of the "exclusive" right of Melbourne Maxey over the properties in question when the present Civil Code became

28
effective for standing against it was the concurrent right of Regina Morales or her heirs to a share thereof. The properties were sold in 1953 when the new Civil
Code was already in full force and effect. Neither can this be said of the rights of the private respondents as vendees insofar as one half of the questioned
properties are concerned as this was still open to controversy on account of the legitimate claim of Regina Morales to a share under the applicable law.
The disputed properties were owned in common by Melbourne Maxey and the estate of his late wife, Regina Morales, when they were sold. Technically
speaking, the petitioners should return one-half of the P1,300.00 purchase price of the land while the private respondents should pay some form of rentals for
their use of one-half of the properties. Equitable considerations, however, lead us to rule out rentals on one hand and return of P650.00 on the other.
WHEREFORE, the petition for review on certiorari is hereby granted. The judgment of the Court of Appeals is reversed and set aside insofar as one-half of the
disputed properties are concerned. The private respondents are ordered to return one-half of said properties to the heirs of Regina Morales. No costs.
G.R. No. 104818 September 17, 1993 ROBERTO DOMINGO, petitioner,vs.COURT OF APPEALS and DELIA SOLEDAD AVERA represented by her
Attorney-in-Fact MOISES R. AVERA,respondents.
ROMERO, J.:
The instant petition seeks the reversal of respondent court's ruling finding no grave abuse of discretion in the lower court's order denying petitioner's motion to
dismiss the petition for declaration of nullity of marriage and separation of property.
On May 29, 1991, private respondent Delia Soledad A. Domingo filed a petition before the Regional Trial Court of Pasig entitled "Declaration of Nullity of
Marriage and Separation of Property" against petitioner Roberto Domingo. The petition which was docketed as Special Proceedings No. 1989-J alleged among
others that: they were married on November 29, 1976 at the YMCA Youth Center Bldg., as evidenced by a Marriage Contract Registry No. 1277K-76 with
Marriage License No. 4999036 issued at Carmona, Cavite; unknown to her, he had a previous marriage with one Emerlina dela Paz on April 25, 1969 which
marriage is valid and still existing; she came to know of the prior marriage only sometime in 1983 when Emerlina dela Paz sued them for bigamy; from January
23 1979 up to the present, she has been working in Saudi Arabia and she used to come to the Philippines only when she would avail of the one-month annual
vacation leave granted by her foreign employer since 1983 up to the present, he has been unemployed and completely dependent upon her for support and
subsistence; out of her personal earnings, she purchased real and personal properties with a total amount of approximately P350,000.00, which are under the
possession and administration of Roberto; sometime in June 1989, while on her one-month vacation, she discovered that he was cohabiting with another
woman; she further discovered that he had been disposing of some of her properties without her knowledge or consent; she confronted him about this and
thereafter appointed her brother Moises R. Avera as her attorney-in-fact to take care of her properties; he failed and refused to turn over the possession and
administration of said properties to her brother/attorney-in-fact; and he is not authorized to administer and possess the same on account of the nullity of their
marriage. The petition prayed that a temporary restraining order or a writ of preliminary injunction be issued enjoining Roberto from exercising any act of
administration and ownership over said properties; their marriage be declared null and void and of no force and effect; and Delia Soledad be declared the sole
and exclusive owner of all properties acquired at the time of their void marriage and such properties be placed under the proper management and administration
of the attorney-in-fact.
Petitioner filed a Motion to Dismiss on the ground that the petition stated no cause of action. The marriage being void ab initio, the petition for the declaration of
its nullity is, therefore, superfluous and unnecessary. It added that private respondent has no property which is in his possession.
On August 20, 1991, Judge Maria Alicia M. Austria issued an Order denying the motion to dismiss for lack of merit. She explained:
Movant argues that a second marriage contracted after a first marriage by a man with another woman is illegal and void (citing the case of Yap v. Court of
Appeals, 145 SCRA 229) and no judicial decree is necessary to establish the invalidity of a void marriage (citing the cases of People v. Aragon, 100 Phil. 1033;
People v. Mendoza, 95 Phil. 845). Indeed, under the Yap case there is no dispute that the second marriage contracted by respondent with herein petitioner after
a first marriage with another woman is illegal and void. However, as to whether or not the second marriage should first be judicially declared a nullity is not an
issue in said case. In the case of Vda. de Consuegra v. GSIS, the Supreme Court ruled in explicit terms, thus:
And with respect to the right of the second wife, this Court observed that although the second marriage can be presumed to be void ab initio as it was
celebrated while the first marriage was still subsisting, still there is need for judicial declaration of its nullity. (37 SCRA 316, 326)
The above ruling which is of later vintage deviated from the previous rulings of the Supreme Court in the aforecited cases of Aragon and Mendoza.
Finally, the contention of respondent movant that petitioner has no property in his possession is an issue that may be determined only after trial on the merits. 1
A motion for reconsideration was filed stressing the erroneous application of Vda. de Consuegra v. GSIS 2 and the absence of justiciable controversy as to the
nullity of the marriage. On September 11, 1991, Judge Austria denied the motion for reconsideration and gave petitioner fifteen (15) days from receipt within
which to file his answer.
Instead of filing the required answer, petitioner filed a special civil action of certiorari and mandamus on the ground that the lower court acted with grave abuse
of discretion amounting to lack of jurisdiction in denying the motion to dismiss.

29
On February 7, 1992, the Court of Appeals 3 dismissed the petition. It explained that the case of Yap v. CA 4 cited by petitioner and that of Consuegra
v. GSIS relied upon by the lower court do not have relevance in the case at bar, there being no identity of facts because these cases dealt with the successional
rights of the second wife while the instant case prays for separation of property corollary with the declaration of nullity of marriage. It observed that the
separation and subsequent distribution of the properties acquired during the union can be had only upon proper determination of the status of the marital
relationship between said parties, whether or not the validity of the first marriage is denied by petitioner. Furthermore, in order to avoid duplication and
multiplicity of suits, the declaration of nullity of marriage may be invoked in this proceeding together with the partition and distribution of the properties involved.
Citing Articles 48, 50 and 52 of the Family Code, it held that private respondent's prayer for declaration of absolute nullity of their marriage may be raised
together with other incidents of their marriage such as the separation of their properties. Lastly, it noted that since the Court has jurisdiction, the alleged error in
refusing to grant the motion to dismiss is merely one of law for which the remedy ordinarily would have been to file an answer, proceed with the trial and in case
of an adverse decision, reiterate the issue on appeal. The motion for reconsideration was subsequently denied for lack of merit. 5
Hence, this petition.
The two basic issues confronting the Court in the instant case are the following.
First, whether or not a petition for judicial declaration of a void marriage is necessary. If in the affirmative, whether the same should be filed only for purposes of
remarriage.
Second, whether or not SP No. 1989-J is the proper remedy of private respondent to recover certain real and personal properties allegedly belonging to her
exclusively.
Petitioner, invoking the ruling in People v. Aragon 6 and People v. Mendoza, 7 contends that SP. No. 1989-J for Declaration of Nullity of Marriage and Separation
of Property filed by private respondent must be dismissed for being unnecessary and superfluous. Furthermore, under his own interpretation of Article 40 of the
Family Code, he submits that a petition for declaration of absolute nullity of marriage is required only for purposes of remarriage. Since the petition in SP No.
1989-J contains no allegation of private respondent's intention to remarry, said petition should therefore, be dismissed.
On the other hand, private respondent insists on the necessity of a judicial declaration of the nullity of their marriage, not for purposes of remarriage, but in order
to provide a basis for the separation and distribution of the properties acquired during coverture.
There is no question that the marriage of petitioner and private respondent celebrated while the former's previous marriage with one Emerlina de la Paz was still
subsisting, is bigamous. As such, it is from the beginning. 8 Petitioner himself does not dispute the absolute nullity of their marriage. 9
The cases of People v. Aragon and People v. Mendoza relied upon by petitioner are cases where the Court had earlier ruled that no judicial decree is necessary
to establish the invalidity of a void, bigamous marriage. It is noteworthy to observe that Justice Alex Reyes, however, dissented on these occasions stating that:
Though the logician may say that where the former marriage was void there would be nothing to dissolve, still it is not for the spouses to judge whether that
marriage was void or not. That judgment is reserved to the courts. . . . 10
This dissenting opinion was adopted as the majority position in subsequent cases involving the same issue. Thus, in Gomez v. Lipana, 11 the Court abandoned
its earlier ruling in the Aragon and Mendoza cases. In reversing the lower court's order forfeiting the husband's share of the disputed property acquired during
the second marriage, the Court stated that "if the nullity, or annulment of the marriage is the basis for the application of Article 1417, there is need for a judicial
declaration thereof, which of course contemplates an action for that purpose."
Citing Gomez v. Lipana, the Court subsequently held in Vda. de Consuegra v. Government Service Insurance System, that "although the second marriage can
be presumed to be void ab initio as it was celebrated while the first marriage was still subsisting, still there is need for judicial declaration of such nullity."
In Tolentino v. Paras, 12 however, the Court turned around and applied the Aragon and Mendoza ruling once again. In granting the prayer of the first wife asking
for a declaration as the lawful surviving spouse and the correction of the death certificate of her deceased husband, it explained that "(t)he second marriage that
he contracted with private respondent during the lifetime of his first spouse is null and void from the beginning and of no force and effect. No judicial decree is
necessary to establish the invalidity of a void marriage."
However, in the more recent case of Wiegel v. Sempio-Diy 13 the Court reverted to the Consuegra case and held that there was "no need of introducing
evidence about the existing prior marriage of her first husband at the time they married each other, for then such a marriage though void still needs according to
this Court a judicial declaration of such fact and for all legal intents and purposes she would still be regarded as a married woman at the time she contracted her
marriage with respondent Karl Heinz Wiegel."
Came the Family Code which settled once and for all the conflicting jurisprudence on the matter. A declaration of the absolute nullity of a marriage is now
explicitly required either as a cause of action or a ground for defense. 14Where the absolute nullity of a previous marriage is sought to be invoked for purposes of
contracting a second marriage, the sole basis acceptable in law for said projected marriage be free from legal infirmity is a final judgment declaring the previous
marriage void. 15

30
The Family Law Revision Committee and the Civil Code Revision Committee 16 which drafted what is now the Family Code of the Philippines took the position
that parties to a marriage should not be allowed to assume that their marriage is void even if such be the fact but must first secure a judicial declaration of the
nullity of their marriage before they can be allowed to marry again. This is borne out by the following minutes of the 152nd Joint Meeting of the Civil Code and
Family Law Committees where the present Article 40, then Art. 39, was discussed.
B. Article 39.
The absolute nullity of a marriage may be invoked only on the basis of a final judgment declaring the marriage void, except as provided in Article 41.
Justice Caguioa remarked that the above provision should include not only void but also voidable marriages. He then suggested that the above provision be
modified as follows:
The validity of a marriage may be invoked only . . .
Justice Reyes (J.B.L. Reyes), however, proposed that they say:
The validity or invalidity of a marriage may be invoked
only . . .
On the other hand, Justice Puno suggested that they say:
The invalidity of a marriage may be invoked only . . .
Justice Caguioa explained that his idea is that one cannot determine for himself whether or not his marriage is valid and that a court action is needed. Justice
Puno accordingly proposed that the provision be modified to read:
The invalidity of a marriage may be invoked only on the basis of a final judgment annulling the marriage or declaring the marriage void, except as provided in
Article 41.
Justice Caguioa remarked that in annulment, there is no question. Justice Puno, however, pointed out that, even if it is a judgment of annulment, they still have
to produce the judgment.
Justice Caguioa suggested that they say:
The invalidity of a marriage may be invoked only on the basis of a final judgment declaring the marriage invalid, except as provided in Article 41.
Justice Puno raised the question: When a marriage is declared invalid, does it include the annulment of a marriage and the declaration that the marriage is
void? Justice Caguioa replied in the affirmative. Dean Gupit added that in some judgments, even if the marriage is annulled, it is declared void. Justice Puno
suggested that this matter be made clear in the provision.
Prof. Baviera remarked that the original idea in the provision is to require first a judicial declaration of a void marriage and not annullable marriages, with which
the other members concurred. Judge Diy added that annullable marriages are presumed valid until a direct action is filed to annul it, which the other members
affirmed. Justice Puno remarked that if this is so, then the phrase "absolute nullity" can stand since it might result in confusion if they change the phrase to
"invalidity" if what they are referring to in the provision is the declaration that the marriage is void.
Prof. Bautista commented that they will be doing away with collateral defense as well as collateral attack. Justice Caguioa explained that the idea in the
provision is that there should be a final judgment declaring the marriage void and a party should not declare for himself whether or not the marriage is void,
while the other members affirmed. Justice Caguioa added that they are, therefore, trying to avoid a collateral attack on that point. Prof. Bautista stated that there
are actions which are brought on the assumption that the marriage is valid. He then asked: Are they depriving one of the right to raise the defense that he has
no liability because the basis of the liability is void? Prof. Bautista added that they cannot say that there will be no judgment on the validity or invalidity of the
marriage because it will be taken up in the same proceeding. It will not be a unilateral declaration that, it is a void marriage. Justice Caguioa saw the point of
Prof. Bautista and suggested that they limit the provision to remarriage. He then proposed that Article 39 be reworded as follows:
The absolute nullity of a marriage for purposes of remarriage may be invoked only on the basis of final judgment . . .
Justice Puno suggested that the above be modified as follows:
The absolute nullity of a previous marriage may be invoked for purposes of establishing the validity of a subsequent marriage only on the basis of a final
judgment declaring such previous marriage void, except as provided in Article 41.

31
Justice Puno later modified the above as follows:
For the purpose of establishing the validity of a subsequent marriage, the absolute nullity of a previous marriage may only be invoked on the basis of a final
judgment declaring such nullity, except as provided in Article 41.
Justice Caguioa commented that the above provision is too broad and will not solve the objection of Prof. Bautista. He proposed that they say:
For the purpose of entering into a subsequent marriage, the absolute nullity of a previous marriage may only be invoked on the basis of a final judgment
declaring such nullity, except as provided in Article 41.
Justice Caguioa explained that the idea in the above provision is that if one enters into a subsequent marriage without obtaining a final judgment declaring the
nullity of a previous marriage, said subsequent marriage is void ab initio.
After further deliberation, Justice Puno suggested that they go back to the original wording of the provision as follows:
The absolute nullity of a previous marriage may be invoked for purposes of remarriage only on the basis of a final judgment declaring such previous marriage
void, except as provided in Article 41. 17
In fact, the requirement for a declaration of absolute nullity of a marriage is also for the protection of the spouse who, believing that his or her marriage is illegal
and void, marries again. With the judicial declaration of the nullity of his or her first marriage, the person who marries again cannot be charged with bigamy. 18
Just over a year ago, the Court made the pronouncement that there is a necessity for a declaration of absolute nullity of a prior subsisting marriage before
contracting another in the recent case of Terre v. Terre. 19 The Court, in turning down the defense of respondent Terre who was charged with grossly immoral
conduct consisting of contracting a second marriage and living with another woman other than complainant while his prior marriage with the latter remained
subsisting, said 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."
As regards the necessity for a judicial declaration of absolute nullity of marriage, petitioner submits that the same can be maintained only if it is for the purpose
of remarriage. Failure to allege this purpose, according to petitioner's theory, will warrant dismissal of the same.
Article 40 of the Family Code provides:
Art. 40. 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. (n)
Crucial to the proper interpretation of Article 40 is the position in the provision of the word "solely." As it is placed, the same shows that it is meant to qualify "final
judgment declaring such previous marriage void." Realizing the need for careful craftsmanship in conveying the precise intent of the Committee members, the
provision in question, as it finally emerged, did not state "The absolute nullity of a previous marriage may be invoked solely for purposes of remarriage . . .," in
which case "solely" would clearly qualify the phrase "for purposes of remarriage." Had the phraseology been such, the interpretation of petitioner would have
been correct and, that is, that the absolute nullity of a previous marriage may be invoked solely for purposes of remarriage, thus rendering irrelevant the clause
"on the basis solely of a final judgment declaring such previous marriage void."
That Article 40 as finally formulated included the significant clause denotes that such final judgment declaring the previous marriage void need not be obtained
only for purposes of remarriage. Undoubtedly, one can conceive of other instances where a party might well invoke the absolute nullity of a previous marriage
for purposes other than remarriage, such as in case of an action for liquidation, partition, distribution and separation of property between the erstwhile spouses,
as well as an action for the custody and support of their common children and the delivery of the latters' presumptive legitimes. In such cases, evidence needs
must be adduced, testimonial or documentary, to prove the existence of grounds rendering such a previous marriage an absolute nullity. These need not be
limited solely to an earlier final judgment of a court declaring such previous marriage void. Hence, in the instance where a party who has previously contracted a
marriage which remains subsisting desires to enter into another marriage which is legally unassailable, he is required by law to prove that the previous one was
an absolute nullity. But this he may do on the basis solely of a final judgment declaring such previous marriage void.
This leads us to the question: Why the distinction? In other words, for purposes of remarriage, why should the only legally acceptable basis for declaring a
previous marriage an absolute nullity be a final judgment declaring such previous marriage void? Whereas, for purposes other than remarriage, other evidence
is acceptable?
Marriage, a sacrosanct institution, declared by the Constitution as an "inviolable social institution, is the foundation of the family;" as such, it "shall be protected
by the State." 20 In more explicit terms, the Family Code characterizes it as "a special contract of permanent union between a man and a woman entered into in
accordance with law for the establishment of conjugal, and family life." 21 So crucial are marriage and the family to the stability and peace of the nation that their
"nature, consequences, and incidents are governed by law and not subject to stipulation . . ." 22 As a matter of policy, therefore, the nullification of a marriage for
the purpose of contracting another cannot be accomplished merely on the basis of the perception of both parties or of one that their union is so defective with

32
respect to the essential requisites of a contract of marriage as to render it void ipso jure and with no legal effect and nothing more. Were this so, this
inviolable social institution would be reduced to a mockery and would rest on very shaky foundations indeed. And the grounds for nullifying marriage would be
as diverse and far-ranging as human ingenuity and fancy could conceive. For such a social significant institution, an official state pronouncement through the
courts, and nothing less, will satisfy the exacting norms of society. Not only would such an open and public declaration by the courts definitively confirm the
nullity of the contract of marriage, but the same would be easily verifiable through records accessible to everyone.
That the law seeks to ensure that a prior marriage is no impediment to a second sought to be contracted by one of the parties may be gleaned from new
information required in the Family Code to be included in the application for a marriage license, viz, "If previously married, how, when and where the previous
marriage was dissolved and annulled." 23
Reverting to the case before us, petitioner's interpretation of Art. 40 of the Family Code is, undoubtedly, quite restrictive. Thus, his position that private
respondent's failure to state in the petition that the same is filed to enable her to remarry will result in the dismissal of SP No. 1989-J is untenable. His
misconstruction of Art. 40 resulting from the misplaced emphasis on the term "solely" was in fact anticipated by the members of the Committee.
Dean Gupit commented the word "only" may be misconstrued to refer to "for purposes of remarriage." Judge Diy stated that "only" refers to "final
judgment." Justice Puno suggested that they say "on the basis only of a final judgment." Prof. Baviera suggested that they use the legal term "solely" instead of
"only," which the Committee approved. 24 (Emphasis supplied)
Pursuing his previous argument that the declaration for absolute nullity of marriage is unnecessary, petitioner suggests that private respondent should have filed
an ordinary civil action for the recovery of the properties alleged to have been acquired during their union. In such an eventuality, the lower court would not be
acting as a mere special court but would be clothed with jurisdiction to rule on the issues of possession and ownership. In addition, he pointed out that there is
actually nothing to separate or partition as the petition admits that all the properties were acquired with private respondent's money.
The Court of Appeals disregarded this argument and concluded that "the prayer for declaration of absolute nullity of marriage may be raised together with the
other incident of their marriage such as the separation of their properties."
When a marriage is declared void ab initio, the law states that the final judgment therein shall provide for "the liquidation, partition and distribution of the
properties of the spouses, the custody and support of the common children, and the delivery of their presumptive legitimes, unless such matters had been
adjudicated in previous judicial proceedings." 25 Other specific effects flowing therefrom, in proper cases, are the following:
Art. 43. xxx xxx xxx
(2) The absolute community of property or the conjugal partnership, as the case may be, shall be dissolved and liquidated, but if either spouse contracted said
marriage in bad faith, his or her share of the net profits of the community property or conjugal partnership property shall be forfeited in favor of the common
children or, if there are none, the children of the guilty spouse by a previous marriage or, in default of children, the innocent spouse;
(3) Donations by reason of marriage shall remain valid, except that if the donee contracted the marriage in bad faith, such donations made to said donee are
revoked by operation of law;
(4) The innocent spouse may revoke the designation of the other spouse who acted in bad faith as a beneficiary in any insurance policy, even if such
designation be stipulated as irrevocable; and
(5) The spouse who contracted the subsequent marriage in bad faith shall be disqualified to inherit from the innocent spouse by testate and intestate
succession. (n)
Art. 44. If both spouses of the subsequent marriage acted in bad faith, said marriage shall be void ab initio and all donations by reason of marriage and
testamentary disposition made by one in favor of the other are revoked by operation of law. (n) 26
Based on the foregoing provisions, private respondent's ultimate prayer for separation of property will simply be one of the necessary consequences of the
judicial declaration of absolute nullity of their marriage. Thus, petitioner's suggestion that in order for their properties to be separated, an ordinary civil action has
to be instituted for that purpose is baseless. The Family Code has clearly provided the effects of the declaration of nullity of marriage, one of which is the
separation of property according to the regime of property relations governing them. It stands to reason that the lower court before whom the issue of nullity of a
first marriage is brought is likewise clothed with jurisdiction to decide the incidental questions regarding the couple's properties. Accordingly, the respondent
court committed no reversible error in finding that the lower court committed no grave abuse of discretion in denying petitioner's motion to dismiss SP No. 1989J.
WHEREFORE, the instant petition is hereby DENIED. The decision of respondent Court dated February 7, 1992 and the Resolution dated March 20, 1992 are
AFFIRMED.

33
DOMINGO v. CA
September 17, 1993 (G.R. No. 104818)
PARTIES:
Petitioner: Robert Domingo
Respondents: Court of Appeals, Delia Soledad Avera represented by her Attorney-in-Fact MOISES R. AVERA
FACTS:
April 25, 1969, Robert Domingo married Emerlina dela Paz on which marriage is valid and still existing. November 29, 1976, he married
Delia Soledad. January 23 1979 up to the present, Soledad has been working in Saudi Arabia. 1983, Emerlina sued for bigamy, respondent
found out about the prior marriage. May 29, 1991, private respondent Delia Soledad A. Domingo filed a petition before the Regional Trial
Court of Pasig entitled Declaration of Nullity of Marriage and Separation of Property against petitioner Roberto Domingo. 1989, respondent
found out that they are cohabiting and Robert was spending and disposing of some of her properties without her knowledge or consent
ISSUE:
Whether or not a petition for judicial declaration of a void marriage is necessary. If in the affirmative, whether the same should be filed only
for purposes of remarriage.
HELD:
Yes. A declaration of the absolute nullity of a marriage is now explicitly required either as a cause of action or a ground for defense. Where
the absolute nullity of a previous marriage is sought to be invoked for purposes of contracting a second marriage, the sole basis acceptable
in law for said projected marriage be free from legal infirmity is a final judgment declaring the previous marriage void
Constitution as an inviolable social institution, is the foundation of the family; as such, it shall be protected by the State. As a matter of
policy, therefore, the nullification of a marriage for the purpose of contracting another cannot be accomplished merely on the basis of the
perception of both parties or of one that their union is so defective with respect to the essential requisites of a contract of marriage as to
render it void ipso jure and with no legal effect

ANTONIO A. S. VALDES, petitioner, vs. REGIONAL TRIAL COURT, BRANCH 102, QUEZON CITY, and CONSUELO M. GOMEZVALDES,respondents.
The petition for review bewails, purely on a question of law, an alleged error committed by the Regional Trial Court in Civil Case No. Q-9212539. Petitioner avers that the court a quo has failed to apply the correct law that should govern the disposition of a family dwelling in a
situation where a marriage is declared void ab initio because of psychological incapacity on the part of either or both of the parties to the
contract.
The pertinent facts giving rise to this incident are, by and large, not in dispute.
Antonio Valdes and Consuelo Gomez were married on 05 January 1971. Begotten during the marriage were five children. In a petition, dated
22 June 1992, Valdes sought the declaration of nullity of the marriage pursuant to Article 36 of the Family Code (docketed Civil Case No. Q92-12539, Regional Trial Court of Quezon City, Branch 102). After hearing the parties following the joinder of issues, the trial court, [1] in its
decision of 29 July 1994, granted the petition; viz:
"WHEREFORE, judgment is hereby rendered as follows:
"(1)
The marriage of petitioner Antonio Valdes and respondent Consuelo Gomez-Valdes is hereby declared null and void under Article 36 of
the Family Code on the ground of their mutual psychological incapacity to comply with their essential marital obligations;

34
"(2)
with.

The three older children, Carlos Enrique III, Antonio Quintin and Angela Rosario shall choose which parent they would want to stay

"Stella Eloisa and Joaquin Pedro shall be placed in the custody of their mother, herein respondent Consuelo Gomez-Valdes.
"The petitioner and respondent shall have visitation rights over the children who are in the custody of the other.
"(3)
The petitioner and respondent are directed to start proceedings on the liquidation of their common properties as defined by Article
147 of the Family Code, and to comply with the provisions ofArticles 50, 51 and 52 of the same code, within thirty (30) days from notice of
this decision.
"Let a copy of this decision be furnished the Local Civil Registrar of Mandaluyong, Metro Manila, for proper recording in the registry of
marriages."[2] (Italics ours)
Consuelo Gomez sought a clarification of that portion of the decision directing compliance with Articles 50, 51 and 52 of the Family Code.
She asserted that the Family Code contained no provisions on the procedure for the liquidation of common property in "unions without
marriage." Parenthetically, during the hearing on the motion, the children filed a joint affidavit expressing their desire to remain with their
father, Antonio Valdes, herein petitioner.
In an Order, dated 05 May 1995, the trial court made the following clarification:
"Consequently, considering that Article 147 of the Family Code explicitly provides that the property acquired by both parties during their
union, in the absence of proof to the contrary, are presumed to have been obtained through the joint efforts of the parties and will be owned
by them in equal shares, plaintiff and defendant will own their 'family home' and all their other properties for that matter in equal shares.
"In the liquidation and partition of the properties owned in common by the plaintiff and defendant, the provisions on co-ownership found in
the Civil Code shall apply."[3] (Italics supplied)
In addressing specifically the issue regarding the disposition of the family dwelling, the trial court said:
"Considering that this Court has already declared the marriage between petitioner and respondent as null and void ab initio, pursuant to Art.
147, the property regime of petitioner and respondent shall be governed by the rules on co-ownership.
"The provisions of Articles 102 and 129 of the Family Code finds no application since Article 102 refers to the procedure for the liquidation of
the conjugal partnership property and Article 129 refers to the procedure for the liquidation of the absolute community of property."[4]
Petitioner moved for a reconsideration of the order. The motion was denied on 30 October 1995.
In his recourse to this Court, petitioner submits that Articles 50, 51 and 52 of the Family Code should be held controlling; he argues that:
"I
"Article 147 of the Family Code does not apply to cases where the parties are psychological incapacitated.
"II
"Articles 50, 51 and 52 in relation to Articles 102 and 129 of the Family Code govern the disposition of the family dwelling in cases where a
marriage is declared void ab initio, including a marriage declared void by reason of the psychological incapacity of the spouses.
"III
"Assuming arguendo that Article 147 applies to marriages declared void ab initio on the ground of the psychological incapacity of a spouse,
the same may be read consistently with Article 129.
"IV
"It is necessary to determine the parent with whom majority of the children wish to stay." [5]

35
The trial court correctly applied the law. In a void marriage, regardless of the cause thereof, the property relations of the parties during the
period of cohabitation is governed by the provisions of Article 147 or Article 148, such as the case may be, of the Family Code. Article 147 is
a remake of Article 144 of the Civil Code as interpreted and so applied in previous cases; [6] it provides:
"ART. 147. When a man and a woman who are capacitated to marry each other, live exclusively with each other as husband and wife without
the benefit of marriage or under a void marriage, their wages and salaries shall be owned by them in equal shares and the property
acquired by both of them through their work or industry shall be governed by the rules on co-ownership.
"In the absence of proof to the contrary, properties acquired while they lived together shall be presumed to have been obtained by their
joint efforts, work or industry, and shall be owned by them in equal shares. For purposes of this Article, a party who did not participate in the
acquisition by the other party of any property shall be deemed to have contributed jointly in the acquisition thereof if the former's efforts
consisted in the care and maintenance of the family and of the household.
"Neither party can encumber or dispose by acts inter vivos of his or her share in the property acquired during cohabitation and owned in
common, without the consent of the other, until after the termination of their cohabitation.
"When only one of the parties to a void marriage is in good faith, the share of the party in bad faith in the co-ownership shall be forfeited in
favor of their common children. In case of default of or waiver by any or all of the common children or their descendants, each vacant share
shall belong to the respective surviving descendants. In the absence of descendants, such share shall belong to the innocent party. In all
cases, the forfeiture shall take place upon termination of the cohabitation."
This peculiar kind of co-ownership applies when a man and a woman, suffering no legal impediment to marry each other, so exclusively live
together as husband and wife under a void marriage or without the benefit of marriage. The term "capacitated" in the provision (in the first
paragraph of the law) refers to the legal capacity of a party to contract marriage, i.e., any "male or female of the age of eighteen years or
upwards not under any of the impediments mentioned in Articles 37 and 38" [7] of the Code.
Under this property regime, property acquired by both spouses through their work and industry shall be governed by the rules on equal coownership. Any property acquired during the union is prima facie presumed to have been obtained through their joint efforts. A party who
did not participate in the acquisition of the property shall still be considered as having contributed thereto jointly if said party's "efforts
consisted in the care and maintenance of the family household." [8] Unlike the conjugal partnership of gains, the fruits of the couple's
separate property are not included in the co-ownership.
Article 147 of the Family Code, in substance and to the above extent, has clarified Article 144 of the Civil Code; in addition, the law now
expressly provides that
(a)
Neither party can dispose or encumber by act inter vivos his or her share in co-ownership property, without the consent of the
other, during the period of cohabitation; and
(b)
In the case of a void marriage, any party in bad faith shall forfeit his or her share in the co-ownership in favor of their common
children; in default thereof or waiver by any or all of the common children, each vacant share shall belong to the respective surviving
descendants, or still in default thereof, to the innocent party. The forfeiture shall take place upon the termination of the cohabitation [9] or
declaration of nullity of the marriage.[10]
When the common-law spouses suffer from a legal impediment to marry or when they do not live exclusively with each other (as husband
and wife ),only the property acquired by both of them through their actual joint contribution of money, property or industry shall be owned
in common and in proportion to their respective contributions. Such contributions and corresponding shares, however, are prima
facie presumed to be equal. The share of any party who is married to another shall accrue to the absolute community or conjugal
partnership, as the case may be, if so existing under a valid marriage. If the party who has acted in bad faith is not validly married to
another, his or her share shall be forfeited in the manner already heretofore expressed. [11]
In deciding to take further cognizance of the issue on the settlement of the parties' common property, the trial court acted neither
imprudently nor precipitately; a court which has jurisdiction to declare the marriage a nullity must be deemed likewise clothed with authority
to resolve incidental and consequential matters. Nor did it commit a reversible error in ruling that petitioner and private respondent own the
"family home" and all their common property in equal shares, as well as in concluding that, in the liquidation and partition of the property
owned in common by them, the provisions on co-ownership under the Civil Code, not Articles 50, 51 and 52, in relation to Articles 102 and
129,[12] of the Family Code, should aptly prevail. The rules set up to govern the liquidation of either the absolute community or the conjugal
partnership of gains, the property regimes recognized for valid and voidable marriages (in the latter case until the contract is annulled ),are
irrelevant to the liquidation of the co-ownership that exists between common-law spouses. The first paragraph of Article 50 of the Family
Code, applying paragraphs (2 ),(3 ),(4) and (5) of Article 43, [13] relates only, by its explicit terms, to voidable marriages and, exceptionally,
to void marriages under Article 40[14] of the Code, i.e., the declaration of nullity of a subsequent marriage contracted by a spouse of a prior

36
void marriage before the latter is judicially declared void. The latter is a special rule that somehow recognizes the philosophy and an old
doctrine that void marriages are inexistent from the very beginning and no judicial decree is necessary to establish their nullity. In now
requiring for purposes of remarriage, the declaration of nullity by final judgment of the previously contracted void marriage, the present law
aims to do away with any continuing uncertainty on the status of the second marriage. It is not then illogical for the provisions of Article 43,
in relation to Articles 41 [15] and 42,[16] of the Family Code, on the effects of the termination of a subsequent marriage contracted during the
subsistence of a previous marriage to be made applicable pro hac vice. In all other cases, it is not to be assumed that the law has also
meant to have coincident property relations, on the one hand, between spouses in valid and voidable marriages (before annulment) and, on
the other, between common-law spouses or spouses of void marriages, leaving to ordain, in the latter case, the ordinary rules on coownership subject to the provision of Article 147 and Article 148 of the Family Code. It must be stressed, nevertheless, even as it may
merely state the obvious, that the provisions of the Family Code on the "family home," i.e., the provisions found in Title V, Chapter 2, of the
Family Code, remain in force and effect regardless of the property regime of the spouses. WHEREFORE, the questioned orders, dated 05
May 1995 and 30 October 1995, of the trial court are AFFIRMED. No costs.
G.R. No. 102726 May 27, 1994
TSHIATE L. UY and RAMON UY, petitioners, vs.THE COURT OF APPEALS, NATIVIDAD CALAUNAN-UY, and THE ESTATE OF MENILO B. UY, SR.,
REPRESENTED BY MENILO C. UY, JR., NILDA C. UY, MELVIN C. UY and MERLITO C. UY, respondents.
VITUG, J.:
This petition for review on certiorari assails the decision, dated
23 September 1991, of respondent Court of Appeals, which has reversed the questioned order of the Regional Trial Court, Branch 58, Makati, Metro Manila.
The facts, hereunder recited, are culled from the findings of the Court of Appeals.
Private respondent Natividad Calaunan-Uy was the common-law wife of the late Menilo B. Uy, Sr., for about thirty-six (36) years. Their union bore four children
Melito, Jr., Nilda, Melvin and Merlito all surnamed Uy. On
31 October 1990, soon after the death of Menilo Uy, Sr., herein petitioners Tshiate Uy and Ramon Uy initiated before the Regional Trial Court (RTC), Branch 65,
Makati, Metro Manila. Special Proceedings No. M-2606, entitled "In the Matter of the Petition for Letters of Administration of the Estate of Menilo B. Uy, Sr." On
28 February 1991, private respondent filed a motion to hold the special proceedings in abeyance. The day before, or on 27 February 1991, private respondent
filed with the RTC, Branch 58, Makati, Civil Case No. 91-573 for "Partition of Properties Under Co-ownership," against the Estate of Menilo Uy, Sr. (supposedly
represented by their four children).
On the day of trial in Civil Case No. 91-573, or on 23 April 1991, the parties, upon the suggestion of the trial court, submitted a Compromise Agreement. On 24
April 1991, a judgment, based on that compromise, was rendered, and a writ of execution was issued on 15 May 1991. On 24 May 1991, petitioner Tshiate Uy
filed an omnibusmotion, alleging that by virtue of a Hong Kong marriage, she was the surviving legal spouse of Menilo, Sr. She prayed that she and her son
Ramon Uy be allowed to intervene in the civil case, submitting at the same time their answer in intervention. The intervenors contended, among other things,
that the judgment upon the compromise was a patent nullity. On 10 June 1991, the trial court issued an order allowing the intervention and setting aside the
"compromise judgment." Private respondent filed a motion for reconsideration; it was denied by the trial court in its order of 08 July 1991. A petition
for certiorari was filed with respondent appellate court, which, on 23 September 1991, promulgated its decision, the dispositive portion of which read:
WHEREFORE, the petition is hereby granted and the orders of respondent court dated June 10, 1991 and July 8, 1991 are hereby SET ASIDE. No costs.
SO ORDERED. 1
A motion for reconsideration filed by petitioners was denied by the appellate court in its resolution of 06 November 1991.
On 02 January 1992, the instant petition for review on certiorari was filed with this Court, asserting that:
The finding and the conclusion of the respondent Court of Appeals that Judge Zosimo Angeles of the Regional Trial Court of Makati, Branch 58, erred in setting
aside the Judgment by Compromise in Civil Case
No. 91-573 because the same was already final and in fact partly executed is contrary to law and jurisprudence to the effect that a Judgment void
ab initio is non-existent and cannot acquire finality; and
The finding and conclusion of the respondent Court of Appeals to the effect that the intervention of petitioner in Civil Case No. 91-573 came too late is contrary
to the ruling of this Honorable Court in the case of Director of Lands vs. Court of Appeals, et al., 93 SCRA 238. 2
The appeal has merit.

37
The action for partition in Civil Case No. 91-573 is predicated on an alleged co-ownership between private respondent Natividad Calaunan-Uy and deceased
Menilo, Sr., of property evidently acquired during the period of their common-law relationship. The governing provisions, applicable to their case, are now found
in Article 147 and Article 148 of the Family Code, considering that Menilo Uy, Sr., died on 27 September 1990, well after the effectivity of Executive Order No.
209 (The Family Code of the Philippines) on 03 August 1988. Hence
Art. 147. When a man and a woman who are capacitated to marry each other, live exclusively with each other as husband and wife without the benefit of
marriage or under a void marriage, their wages and salaries shall be owned by them in equal shares and the property acquired by both of them through their
work or industry shall be governed by the rules on co-ownership.
In the absence of proof to the contrary, properties acquired while they lived together shall be presumed to have been obtained by their joint efforts, work or
industry, and shall be owned by them in equal shares. For purposes of this Article, a party who did not participate in the acquisition by the other party of any
property shall be deemed to have contributed jointly in the acquisition thereof if the former's efforts consisted in the care and maintenance of the family and of
the household.
Neither party can encumber or dispose by acts inter vivos of his or her share in the property acquired during cohabitation and owned in common, without the
consent of the other, until after the termination of their cohabitation.
When only one of the parties to a void marriage is in good faith, the share of the party in bad faith in the co-ownership shall be forfeited in favor of their common
children. In case of default of or waiver by any or all of the common children or their descendants, each vacant share shall belong to the respective surviving
descendants. In the absence of descendants, such share shall belong to the innocent party. In all cases, the forfeiture shall take place upon termination of the
cohabitation.
Art. 148. In cases of cohabitation not falling under the preceding Article, only the properties acquired by both of the parties through their actual joint contribution
of money, property, or industry shall be owned by them in common in proportion to their respective contributions. In the absence of proof to the contrary, their
contributions and corresponding shares are presumed to be equal. The same rule and presumption shall apply to joint deposits of money and evidences of
credit.
If one of the parties is validly married to another, his or her share in the co-ownership shall accrue to the absolute community or conjugal partnership existing in
such valid marriage. If the party who acted in bad faith is not validly married to another, his or her share shall be forfeited in the manner provided in the last
paragraph of the preceding Article.
The foregoing rules on forfeiture shall likewise apply even if both parties are in bad faith.
Parenthetically, closely intertwined with the legal questions posed by the parties are factual issues which are yet to be determined in Special Proceedings No.
M-2606 filed by herein petitioners.
Respondent Court of Appeals set aside the orders of the trial court on two points: That
(1) The intervention came too late, citing Section 2, Rule 12, of the Revised Rules of Court; and
(2) The court a quo ignored the rule on finality of judgments.
Section 2, Rule 12 of the Revised Rules of Court provides:
Sec. 2. Intervention. A person may, before or during a trial, be permitted by the court, in its discretion, to intervene in an action, if he has legal interest in the
matter in litigation, or in the success of either of the parties, or an interest against both, or when he is so situated as to be adversely affected by a distribution or
other disposition of property in the custody of the court or of an officer thereof.
The case Director of Lands vs. Court of Appeals, 3 may not be on all fours to the case at bench but the rationalebehind the decision can well be applicable.
Citing Manila Railroad Co. vs. Attorney-General, 4 this Court held:
It is quite clear and patent that the motion for intervention filed by the movants at this stage of the proceedings where trial has already been concluded, a
judgment thereon had been promulgated in favor of private respondent and on appeal by the losing party, the Director of Lands, the same was affirmed by the
Court of Appeals and the instant petition for certiorari to review said judgment is already submitted for decision by the Supreme Court, are obviously and
manifestly late, beyond the period prescribed under the aforecoded Section 2, Rule 12 of the Rules of Court.
But Rule 12 of the Rules of Court like all other Rules therein promulgated, is simply a rule of procedure, the whole purpose and object of which is to make the
powers of the court fully and completely available for justice. The purpose of procedure is not to thwart justice. Its proper aim is to facilitate the application of
justice to the rival claims of contending parties. It was created not to hinder and delay but to facilitate and promote the administration of justice. It does not

38
constitute the thing itself which courts are always striving to secure to litigants. It is designed as the means best adopted to obtain that thing. In other words, it is
a means to an end.
The denial of the motions for intervention arising from the strict application of the Rule due to alleged lack of notice to, or the alleged failure of, movants to act
seasonably will lead the Court to commit an act of injustice to the movants, to their successors-in-interest and to all purchasers for value and in good faith and
thereby open the door to fraud, falsehood and misrepresentation, should intervenors' claims be proven to be true. For it cannot be gainsaid that if the petition for
reconstitution is finally granted, the chaos and confusion arising from a situation where the certificates of title of the movants covering large areas of land
overlap or encroach on properties the title to which is being sought to be reconstituted by private respondent, who herself indicates in her Opposition that,
according to the Director of Lands, the overlapping embraces some 87 hectares only, is certain and inevitable. The aggregate area of the property claimed by
respondent covering Lot 1 and Lot 2 is 1,435,062 sq. meters which is situated in a fast-growing, highly residential sector of Metro Manila where growth and
development are in rapid progress to meet the demands of an urbanized, exploding population. Industries, factories, warehouses, plants, and other commercial
infrastructures are rising and spreading within the area and the owners of these lands and the valuable improvements thereon will not simply fold their hands but
certainly will seek judicial protection of their property rights or may even take the law into their own hands, resulting to multiplicity of suits.
Section 7, Rule 3, of the Revised Rules of Court defines indispensable parties to be "(p)arties in interest without whom no final determination can be had of an
action . . . ." Even private respondents, in their complaint in Civil Case No. 91-573, have acknowledged that petitioners "claim some interest in the Estate of
Menilo B. Uy, Sr." 5 The trial court itself, in setting aside its previous judgment upon compromise, has expressed "that the intervenors have legal interest in the
matter in litigation," a statement which we find hard to brush aside. In the interest of adjudicating the whole controversy, petitioners' inclusion in the action for
partition, given the circumstances, not only is preferable but rightly essential in the proper disposition of the case. It is a settled rule that without the presence of
indispensable parties to a suit or proceeding, a judgment of the court cannot attain real finality. 6
Private respondents argue that their failure to implead petitioners in the complaint for partition has been cured by the filing of petitioners' omnibus motion asking
leave to intervene and attaching thereto an answer in intervention. Private respondents overlook the fact that the motion has been filed subsequent to the
judgment based upon the compromise agreement (among private respondents themselves) that did not include, and thereby cannot be held to bind,
petitioners 7WHEREFORE, the decision of respondent Court of Appeals is SET ASIDE and a new one is entered REINSTATING the order, dated 10 June 1991,
of the trial court.