G.R. No. 133778. March 14, 2000.

ENGRACE NIAL for Herself and as Guardian ad Litem of the minors BABYLINE NIAL,
INGRID NIAL, ARCHIE NIAL & PEPITO NIAL, JR., petitioners, vs. NORMA BAYADOG,
respondent.
*

May the heirs of a deceased person file a petition for the declaration of nullity of his marriage
after his death?
Pepito Nial was married to Teodulfa Bellones on September 26, 1974. Out of their marriage
were born herein petitioners. Teodulfa was shot by Pepito resulting in her death on April 24,
1985. One year and 8 months thereafter or on December 11, 1986, Pepito and respondent Norma
Badayog got married without any marriage license. In lieu thereof, Pepito and Norma executed
an affidavit dated December 11, 1986 stating that they had lived together as husband and wife
for at least five years and were thus exempt from securing a marriage license. On February 19,
1997, Pepito died in a car accident. After their fathers death, petitioners filed a petition for
declaration of nullity of the marriage of Pepito to Norma alleging that the said marriage was void
for lack of a marriage license. The case was filed under the assumption that the validity or
invalidity of the second marriage would affect petitioners successional rights. Norma filed a
motion to dismiss on the ground that petitioners have no cause of action since they are not
among the persons who could file an action for annulment of marriage under Article 47 of the
Family Code.
Judge Ferdinand J. Marcos of the Regional Trial Court of Toledo City, Cebu, Branch 59,
dismissed the petition after finding that the Family Code is rather silent, obscure, insufficient
to resolve the following issues:
1. (1)Whether or not plaintiffs have a cause of action against defendant in asking for the
declaration of the nullity of marriage of their deceased father, Pepito G. Nial, with her
specially so when at the time of the filing of this instant suit, their father Pepito G. Nial
is already dead;
2. (2)Whether or not the second marriage of plaintiffs deceased father with defendant is null
and void ab initio;
3. (3)Whether or not plaintiffs are estopped from assailing the validity of the second marriage
after it was dissolved due to their fathers death.
1

Thus, the lower court ruled that petitioners should have filed the action to declare null and void
their fathers marriage to respondent before his death, applying by analogy Article 47 of the
Family Code which enumerates the time and the persons who could initiate an action for
annulment of marriage. Hence, this petition for review with this Court grounded on a pure
question of law.
2

This petition was originally dismissed for non-compliance with Section 11, Rule 13 of the 1997
Rules of Civil Procedure, and because the verification failed to state the basis of petitioners
averment that the allegations in the petition are true and correct. It was thus treated as an
unsigned pleading which produces no legal effect under Section 3, Rule 7, of the 1997
Rules. However, upon motion of petitioners, this Court reconsidered the dismissal and reinstated
the petition for review.
The two marriages involved herein having been solemnized prior to the effectivity of the
Family Code (FC), the applicable law to determine their validity is the Civil Code which was the
law in effect at the time of their celebration. A valid marriage license is a requisite of marriage
under Article 53 of the Civil Code, the absence of which renders the marriage void ab
initio pursuant to Article 80(3) in relation to Article 58. The requirement and issuance of
marriage license is the States demonstration of its involvement and participation in every
marriage, in the maintenance of which the general public is interested. This interest proceeds
from the constitutional mandate that the State recognizes the sanctity of family life and of
affording protection to the family as a basic autonomous social institution. Specifically, the
Constitution considers marriage as an inviolable social institution, and is the foundation of
family life which shall be protected by the State. This is why the Family Code considers
marriage as a special contract of permanent union and case law considers it not just an
adventure but a lifetime commitment.
However, there are several instances recognized by the Civil Code wherein a marriage license
is dispensed with, one of which is that provided in Article 76, referring to the marriage of a man
and a woman who have lived together and exclusively with each other as husband and wife for a
continuous and unbroken period of at least five years before the marriage. The rationale why no
license is required in such case is to avoid exposing the parties to humiliation, shame and
embarrassment concomitant with the scandalous cohabitation of persons outside a valid
marriage due to the publication of every applicants name for a marriage license. The publicity
attending the marriage license may discourage such persons from legitimizing their status. To
preserve peace in the family, avoid the peeping and suspicious eye of public exposure and contain
the source of gossip arising from the publication of their names, the law deemed it wise to
preserve their privacy and exempt them from that requirement.
There is no dispute that the marriage of petitioners father to respondent Norma was
celebrated without any marriage license. In lieu thereof, they executed an affidavit stating that
they have attained the age of majority, and, being unmarried, have lived together as husband
and wife for at least five years, and that we now desire to marry each other. The only issue that
needs to be resolved pertains to what nature of cohabitation is contemplated under Article 76 of
the Civil Code to warrant the counting of the five year period in order to exempt the future
spouses from securing a marriage license. Should it be a cohabitation wherein both parties are
capacitated to marry each other during the entire five-year continuous period or should it be a
cohabitation wherein both parties have lived together and exclusively with each other as husband
and wife during the entire five-year continuous period regardless of whether there is a legal
3

10

11

12

13

14

15

16

impediment to their being lawfully married, which impediment may have either disappeared or
intervened sometime during the cohabitation period?
Working on the assumption that Pepito and Norma have lived together as husband and wife
for five years without the benefit of marriage, that five-year period should be computed on the
basis of a cohabitation as husband and wife where the only missing factor is the special
contract of marriage to validate the union. In other words, the five-year common-law cohabitation
period, which is counted back from the date of celebration of marriage, should be a period of legal
union had it not been for the absence of the marriage. This 5-year period should be the years
immediately before the day of the marriage and it should be a period of cohabitation
characterized by exclusivitymeaning no third party was involved at any time within the 5 years
and continuitythat is unbroken. Otherwise, if that continuous 5-year cohabitation is computed
without any distinction as to whether the parties were capacitated to marry each other during
the entire five years, then the law would be sanctioning immorality and encouraging parties to
have common law relationships and placing them on the same footing with those who lived
faithfully with their spouse. Marriage being a special relationship must be respected as such and
its requirements must be strictly observed. The presumption that a man and a woman deporting
themselves as husband and wife is based on the approximation of the requirements of the law.
The parties should not be afforded any excuse to not comply with every single requirement and
later use the same missing element as a preconceived escape ground to nullify their marriage.
There should be no exemption from securing a marriage license unless the circumstances clearly
fall within the ambit of the exception. It should be noted that a license is required in order to
notify the public that two persons are about to be united in matrimony and that anyone who is
aware or has knowledge of any impediment to the union of the two shall make it known to the
local civil registrar. The Civil Code provides:
17

Article 63: x x x. This notice shall request all persons having knowledge of any impediment to the
marriage to advise the local civil registrar thereof. x x x.
Article 64: Upon being advised of any alleged impediment to the marriage, the local civil registrar
shall forthwith make an investigation, examining persons under oath. x x x

This is reiterated in the Family Code thus:

Article 17 provides in part: x x x. This notice shall request all persons having knowledge of any
impediment to the marriage to advise the local civil registrar thereof. x x x.
Article 18 reads in part: x x x.In case of any impediment known to the local civil registrar or brought to
his attention, he shall note down the particulars thereof and his findings thereon in the application for a
marriage license. x x x.

This is the same reason why our civil laws, past or present, absolutely prohibited the concurrence
of multiple marriages by the same person during the same period. Thus, any marriage
subsequently contracted during the lifetime of the first spouse shall be illegal and void, subject
only to the exception in cases of absence or where the prior marriage was dissolved or
annulled. The Revised Penal Code complements the civil law in that the contracting of two or
18

more marriages and the having of extramarital affairs are considered felonies, i.e., bigamy and
concubinage and adultery. The law sanctions monogamy.
In this case, at the time of Pepito and respondents marriage, it cannot be said that they have
lived with each other as husband and wife for at least five years prior to their wedding day. From
the time Pepitos first marriage was dissolved to the time of his marriage with respondent, only
about twenty months had elapsed. Even assuming that Pepito and his first wife had separated in
fact, and thereafter both Pepito and respondent had started living with each other that has
already lasted for five years, the fact remains that their five-year period cohabitation was not the
cohabitation contemplated by law. It should be in the nature of a perfect union that is valid under
the law but rendered imperfect only by the absence of the marriage contract. Pepito had a
subsisting marriage at the time when he started cohabiting with respondent. It is immaterial
that when they lived with each other, Pepito had already been separated in fact from his lawful
spouse. The subsistence of the marriage even where there was actual severance of the filial
companionship between the spouses cannot make any cohabitation by either spouse with any
third party as being one as husband and wife.
Having determined that the second marriage involved in this case is not covered by the
exception to the requirement of a marriage license, it is void ab initio because of the absence of
such element.
The next issue to be resolved is: do petitioners have the personality to file a petition to declare
their fathers marriage void after his death?
Contrary to respondent judges ruling, Article 47 of the Family Code cannot be applied even
by analogy to petitions for declaration of nullity of marriage. The second ground for annulment of
marriage relied upon by the trial court, which allows the sane spouse to file an annulment suit
at any time before the death of either party is inapplicable. Article 47 pertains to the grounds,
periods and persons who can file an annulment suit, not a suit for declaration of nullity of
marriage. The Code is silent as to who can file a petition to declare the nullity of a marriage.
Voidable and void marriages are not identical. A marriage that is annulable is valid until
otherwise declared by the court; whereas a marriage that is void ab initio is considered as having
never to have taken place and cannot be the source of rights. The first can be generally ratified
or confirmed by free cohabitation or prescription while the other can never be ratified. A voidable
marriage cannot be assailed collaterally except in a direct proceeding while a void marriage can
be attacked collaterally. Consequently, void marriages can be questioned even after the death of
either party but voidable marriages can be assailed only during the lifetime of the parties and
not after death of either, in which case the parties and their offspring will be left as if the
marriage had been perfectly valid. That is why the action or defense for nullity is
imprescriptible, unlike voidable marriages where the action prescribes. Only the parties to a
voidable marriage can assail it but any proper interested party may attack a void marriage. Void
marriages have no legal effects except those declared by law concerning the properties of the
alleged spouses, regarding co-ownership (4) For causes mentioned in number 4 of Article 45, by
the injured party, within five years from the time the force, intimidation or undue influence
19

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21

22

disappeared or ceased; For causes mentioned in numbers 5 and 6 of Article 45, by the injured
party, within five years after the marriage.or ownership through actual joint contribution, and
its effect on the children born to such void marriages as provided in Article 50 in relation to
Articles 43 and 44 as well as Articles 51, 53 and 54 of the Family Code. On the contrary, the
property regime governing voidable marriages is generally conjugal partnership and the children
conceived before its annulment are legitimate.
Contrary to the trial courts ruling, the death of petitioners father extinguished the alleged
marital bond between him and respondent. The conclusion is erroneous and proceeds from a
wrong premise that there was a marriage bond that was dissolved between the two. It should be
noted that their marriage was void hence it is deemed as if it never existed at all and the death of
either extinguished nothing.
Jurisprudence under the Civil Code states that no judicial decree is necessary in order to
establish the nullity of a marriage. A void marriage does not require a judicial decree to restore
the parties to their original rights or to make the marriage void but though no sentence of
avoidance be absolutely necessary, yet as well for the sake of good order of society as for the peace
of mind of all concerned, it is expedient that the nullity of the marriage should be ascertained
and declared by the decree of a court of competent jurisdiction. Under ordinary circumstances,
the effect of a void marriage, so far as concerns the conferring of legal rights upon the parties, is
as though no marriage had ever taken place. And therefore, being good for no legal purpose, its
invalidity can be maintained in any proceeding in which the fact of marriage may be material,
either direct or collateral, in any civil court between any parties at any time, whether before or
after the death of either or both the husband and the wife, and upon mere proof
of the facts rendering such marriage void, it will be disregarded or treated as non-existent by the
courts. It is not like a voidable marriage which cannot be collaterally attacked except in direct
proceeding instituted during the lifetime of the parties so that on the death of either, the
marriage cannot be impeached, and is made good ab initio. But Article 40 of the Family Code
expressly provides that there must be a judicial declaration of the nullity of a previous marriage,
though void, before a party can enter into a second marriage and such absolute nullity can be
based only on a final judgment to that effect. For the same reason, the law makes either the
action or defense for the declaration of absolute nullity of marriage imprescriptible. Corollarily, if
the death of either party would extinguish the cause of action or the ground for defense, then the
same cannot be considered imprescriptible.
However, other than for purposes of remarriage, no judicial action is necessary to declare a
marriage an absolute nullity. For other purposes, such as but not limited to determination of
heirship, legitimacy or illegitimacy of a child, settlement of estate, dissolution of property regime,
or a criminal case for that matter, the court may pass upon the validity of marriage even in a suit
not directly instituted to question the same so long as it is essential to the determination of the
case. This is without prejudice to any issue that may arise in the case. When such need arises, a
final judgment of declaration of nullity is necessary even if the purpose is other than to remarry.
The clause on the basis of a final judgment declaring such previous marriage void in Article 40
23

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of the Family Code connotes that such final judgment need not be obtained only for purpose of
remarriage.
WHEREFORE, the petition is GRANTED. The assailed Order of the Regional Trial Court,
Toledo City, Cebu, Branch 59, dismissing Civil Case No. T-639, is REVERSED and SET ASIDE.
The said case is ordered REINSTATED.
SO ORDERED.
March 28, 2008.G.R. No. 175581.*
REPUBLIC OF THE PHILIPPINES, petitioner, vs. JOSE A. DAYOT, respondent.
March 28, 2008.G.R. No. 179474.*
FELISA TECSON-DAYOT, petitioner, vs. JOSE A. DAYOT, respondent.
Before us are two consolidated petitions. G.R. No. 175581 and G.R. No. 179474 are Petitions
for Review under Rule 45 of the Rules of Court filed by the Republic of the Philippines and Felisa
Tecson-Dayot (Felisa), respectively, both challenging the Amended Decision1 of the Court of
Appeals, dated 7 November 2006, in CA-G.R. CV No. 68759, which declared the marriage
between Jose Dayot (Jose) and Felisa void ab initio.
The records disclose that on 24 November 1986, Jose and Felisa were married at the Pasay
City Hall. The marriage was solemnized by Rev. Tomas V. Atienza.2 In lieu of a marriage license,
Jose and Felisa executed a sworn affidavit,3 also dated 24 November 1986, attesting that both of
them had attained the age of maturity, and that being unmarried, they had lived together as
husband and wife for at least five years.
On 7 July 1993, Jose filed a Complaint4 for Annulment and/or Declaration of Nullity of
Marriage with the Regional Trial Court (RTC), Bian, Laguna, Branch 25. He contended that his
marriage with Felisa was a sham, as no marriage ceremony was celebrated between the parties;
that he did not execute the sworn affidavit stating that he and Felisa had lived as husband and
wife for at least five years; and that his consent to the marriage was secured through fraud.
In his Complaint, Jose gave his version of the events which led to his filing of the same.
According to Jose, he was introduced to Felisa in 1986. Immediately thereafter, he came to live as
a boarder in Felisas house, the latter being his landlady. Some three weeks later, Felisa
requested him to accompany her to the Pasay City Hall, ostensibly so she could claim a package
sent to her by her brother from Saudi Arabia. At the Pasay City Hall, upon a pre-arranged signal
from Felisa, a man bearing three folded pieces of paper approached them. They were told that
Jose needed to sign the papers so that the package could be released to Felisa. He initially
refused to do so. However, Felisa cajoled him, and told him that his refusal could get both of them
killed by her brother who had learned about their relationship. Reluctantly, he signed the pieces
of paper, and gave them to the man who immediately left. It was in February 1987 when he
discovered that he had contracted marriage with Felisa. He alleged that he saw a piece of paper
lying on top of the table at the sala of Felisas house. When he perused the same, he discovered

that it was a copy of his marriage contract with Felisa. When he confronted Felisa, the latter
feigned ignorance.
In opposing the Complaint, Felisa denied Joses allegations and defended the validity of their
marriage. She declared that they had maintained their relationship as man and wife absent the
legality of marriage in the early part of 1980, but that she had deferred contracting marriage
with him on account of their age difference.5 In her pre-trial brief, Felisa expounded that while
her marriage to Jose was subsisting, the latter contracted marriage with a certain Rufina
Pascual (Rufina) on 31 August 1990. On 3 June 1993, Felisa filed an action for bigamy against
Jose. Subsequently, she filed an administrative complaint against Jose with the Office of the
Ombudsman, since Jose and Rufina were both employees of the National Statistics and
Coordinating Board.6 The Ombudsman found Jose administratively liable for disgraceful
and immoral conduct, and meted out to him the penalty of suspension from service for one year
without emolument.7
On 26 July 2000, the RTC rendered a Decision8dismissing the Complaint. It disposed:
WHEREFORE, after a careful evaluation and analysis of the evidence presented by both parties, this
Court finds and so holds that the [C]omplaint does not deserve a favorable consideration. Accordingly, the
above-entitled case is hereby ordered DISMISSED with costs against [Jose].
9

The RTC ruled that from the testimonies and evidence presented, the marriage celebrated
between Jose and Felisa on 24 November 1986 was valid. It dismissed Joses version of the story
as implausible, and rationalized that:
Any person in his right frame of mind would easily suspect any attempt to make him or her sign a
blank sheet of paper. [Jose] could have already detected that something was amiss, unusual, as they were
at Pasay City Hall to get a package for [Felisa] but it [was] he who was made to sign the pieces of paper
for the release of the said package. Another indirect suggestion that could have put him on guard was the
fact that, by his own admission, [Felisa] told him that her brother would kill them if he will not sign the
papers. And yet it took him, more or less, three months to discover that the pieces of paper that he
signed was [sic] purportedly the marriage contract. [Jose] does not seem to be that ignorant, as perceived
by this Court, to be taken in for a ride by [Felisa.]
[Joses] claim that he did not consent to the marriage was belied by the fact that he acknowledged
Felisa Tecson as his wife when he wrote [Felisas] name in the duly notarized statement of assets and
liabilities he filled up on May 12, 1988, one year after he discovered the marriage contract he is now
claiming to be sham and false. [Jose], again, in his company I.D., wrote the name of [Felisa] as the person
to be contacted in case of emergency. This Court does not believe that the only reason why her name was
written in his company I.D. was because he was residing there then. This is just but a lame excuse
because if he really considers her not his lawfully wedded wife, he would have written instead the name of
his sister.
When [Joses] sister was put into the witness stand, under oath, she testified that she signed her name
voluntarily as a witness to the marriage in the marriage certificate (T.S.N., page 25, November 29, 1996)
and she further testified that the signature appearing over the name of Jose Dayot was the signature of
his [sic] brother that he voluntarily affixed in the marriage contract (page 26 of T.S.N. taken on November
29, 1996), and when she was asked by the Honorable Court if indeed she believed that Felisa Tecson was

really chosen by her brother she answered yes. The testimony of his sister all the more belied his claim
that his consent was procured through fraud.
10

Moreover, on the matter of fraud, the RTC ruled that Joses action had prescribed. It cited
Article 8711 of the New Civil Code which requires that the action for annulment of marriage must
be commenced by the injured party within four years after the discovery of the fraud. Thus:
That granting even for the sake of argument that his consent was obtained by [Felisa] through fraud,
trickery and machinations, he could have filed an annulment or declaration of nullity of marriage at the
earliest possible opportunity, the time when he discovered the alleged sham and false marriage contract.
[Jose] did not take any action to void the marriage at the earliest instance. x x x.
12

Undeterred, Jose filed an appeal from the foregoing RTC Decision to the Court of Appeals. In
a Decision dated 11 August 2005, the Court of Appeals found the appeal to be without merit. The
dispositive portion of the appellate courts Decision reads:
WHEREFORE, the Decision appealed from is AFFIRMED.

13

The Court of Appeals applied the Civil Code to the marriage between Jose and Felisa as it was
solemnized prior to the effectivity of the Family Code. The appellate court observed that the
circumstances constituting fraud as a ground for annulment of marriage under Article 86 14 of the
Civil Code did not exist in the marriage between the parties. Further, it ruled that the action for
annulment of marriage on the ground of fraud was filed beyond the prescriptive period provided
by law. The Court of Appeals struck down Joses appeal in the following manner:
Nonetheless, even if we consider that fraud or intimidation was employed on Jose in giving his consent to
the marriage, the action for the annulment thereof had already prescribed. Article 87 (4) and (5) of the
Civil Code provides that the action for annulment of marriage on the ground that the consent of a party
was obtained by fraud, force or intimidation must be commenced by said party within four (4) years after
the discovery of the fraud and within four (4) years from the time the force or intimidation ceased.
Inasmuch as the fraud was allegedly discovered by Jose in February, 1987 then he had only until
February, 1991 within which to file an action for annulment of marriage. However, it was only on July 7,
1993 that Jose filed the complaint for annulment of his marriage to Felisa.
15

Likewise, the Court of Appeals did not accept Joses assertion that his marriage to Felisa was
void ab initio for lack of a marriage license. It ruled that the marriage was solemnized under
Article 7616 of the Civil Code as one of exceptional character, with the parties executing an
affidavit of marriage between man and woman who have lived together as husband and wife for
at least five years. The Court of Appeals concluded that the falsity in the affidavit to the effect
that Jose and Felisa had lived together as husband and wife for the period required by Article 76
did not affect the validity of the marriage, seeing that the solemnizing officer was misled by the
statements contained therein. In this manner, the Court of Appeals gave credence to the goodfaith reliance of the solemnizing officer over the falsity of the affidavit. The appellate court
further noted that on the dorsal side of said affidavit of marriage, Rev. Tomas V. Atienza, the
solemnizing officer, stated that he took steps to ascertain the ages and other qualifications of the
contracting parties and found no legal impediment to their marriage. Finally, the Court of

Appeals dismissed Joses argument that neither he nor Felisa was a member of the sect to which
Rev. Tomas V. Atienza belonged. According to the Court of Appeals, Article 56 17 of the Civil Code
did not require that either one of the contracting parties to the marriage must belong to the
solemnizing officers church or religious sect. The prescription was established only in Article
718 of the Family Code which does not govern the parties marriage.
Differing with the ruling of the Court of Appeals, Jose filed a Motion for Reconsideration
thereof. His central opposition was that the requisites for the proper application of the exemption
from a marriage license under Article 76 of the Civil Code were not fully attendant in the case at
bar. In particular, Jose cited the legal condition that the man and the woman must have been
living together as husband and wife for at least five years before the marriage. Essentially, he
maintained that the affidavit of marital cohabitation executed by him and Felisa was false.
The Court of Appeals granted Joses Motion for Reconsideration and reversed itself.
Accordingly, it rendered an Amended Decision, dated 7 November 2006, the fallo of which reads:
WHEREFORE, the Decision dated August 11, 2005 isRECALLED and SET ASIDE and another one
entered declaring the marriage between Jose A. Dayot and Felisa C. Tecson void ab initio.
Furnish a copy of this Amended Decision to the Local Civil Registrar of Pasay City.
19

In its Amended Decision, the Court of Appeals relied on the ruling of this Court in Nial v.
Bayadog,20 and reasoned that:
In Nial v. Bayadog, where the contracting parties to a marriage solemnized without a marriage
license on the basis of their affidavit that they had attained the age of majority, that being unmarried,
they had lived together for at least five (5) years and that they desired to marry each other, the Supreme
Court ruled as follows:
x x x In other words, the five-year common-law cohabitation period, which is counted back from the
date of celebration of marriage, should be a period of legal union had it not been for the absence of the
marriage. This 5-year period should be the years immediately before the day of the marriage and it should
be a period of cohabitation characterized by exclusivitymeaning no third party was involved at any time
within the 5 years and continuitythat is unbroken. Otherwise, if that continuous 5-year cohabitation is
computed without any distinction as to whether the parties were capacitated to marry each other during
the entire five years, then the law would be sanctioning immorality and encouraging parties to have
common law relationships and placing them on the same footing with those who lived faithfully with their
spouse. Marriage being a special relationship must be respected as such and its requirements must be
strictly observed. The presumption that a man and a woman deporting themselves as husband and wife is
based on the approximation of the requirements of the law. The parties should not be afforded any excuse
to not comply with every single requirement and later use the same missing element as a pre-conceived
escape ground to nullify their marriage. There should be no exemption from securing a marriage license
unless the circumstances clearly fall within the ambit of the exception. It should be noted that a license is
required in order to notify the public that two persons are about to be united in matrimony and that
anyone who is aware or has knowledge of any impediment to the union of the two shall make it known to
the local civil registrar.
Article 80(3) of the Civil Code provides that a marriage solemnized without a marriage license, save
marriages of exceptional character, shall be void from the beginning. Inasmuch as the marriage between

Jose and Felisa is not covered by the exception to the requirement of a marriage license, it is, therefore,
void ab initio because of the absence of a marriage license.
21

Felisa sought reconsideration of the Amended Decision, but to no avail. The appellate court
rendered a Resolution22dated 10 May 2007, denying Felisas motion.
Meanwhile, the Republic of the Philippines, through the Office of the Solicitor General (OSG),
filed a Petition for Review before this Court in G.R. No. 175581, praying that the Court of
Appeals Amended Decision dated 7 November 2006 be reversed and set aside for lack of merit,
and that the marriage between Jose and Felisa be declared valid and subsisting. Felisa filed a
separate Petition for Review, docketed as G.R. No. 179474, similarly assailing the appellate
courts Amended Decision. On 1 August 2007, this Court resolved to consolidate the two Petitions
in the interest of uniformity of the Court rulings in similar cases brought before it for
resolution.23
The Republic of the Philippines propounds the following arguments for the allowance of its
Petition, to wit:
I
RESPONDENT FAILED TO OVERTHROW THE PRESUMPTION OF THE VALIDITY OF HIS
MARRIAGE TO FELISA.
II
RESPONDENT DID NOT COME TO THE COURT WITH CLEAN HANDS AND SHOULD NOT BE
ALLOWED TO PROFIT FROM HIS OWN FRAUDULENT CONDUCT.
III
RESPONDENT IS ESTOPPED FROM ASSAILING THE LEGALITY OF HIS MARRIAGE FOR LACK
OF MARRIAGE LICEN[S]E.
24

Correlative to the above, Felisa submits that the Court of Appeals misapplied Nial.25 She
differentiates the case at bar from Nial by reasoning that one of the parties therein had an
existing prior marriage, a circumstance which does not obtain in her cohabitation with Jose.
Finally, Felisa adduces that Jose only sought the annulment of their marriage after a criminal
case for bigamy and an administrative case had been filed against him in order to avoid liability.
Felisa surmises that the declaration of nullity of their marriage would exonerate Jose from any
liability.
For our resolution is the validity of the marriage between Jose and Felisa. To reach a
considered ruling on the issue, we shall jointly tackle the related arguments vented by
petitioners Republic of the Philippines and Felisa.
The Republic of the Philippines asserts that several circumstances give rise to the
presumption that a valid marriage exists between Jose and Felisa. For her part, Felisa echoes the
claim that any doubt should be resolved in favor of the validity of the marriage by citing this
Courts ruling in Hernandez v. Court of Appeals.26 To buttress its assertion, the Republic points to
the affidavit executed by Jose and Felisa, dated 24 November 1986, attesting that they have lived
together as husband and wife for at least five years, which they used in lieu of a marriage license.
It is the Republics position that the falsity of the statements in the affidavit does not affect the

validity of the marriage, as the essential and formal requisites were complied with; and the
solemnizing officer was not required to investigate as to whether the said affidavit was legally
obtained. The Republic opines that as a marriage under a license is not invalidated by the fact
that the license was wrongfully obtained, so must a marriage not be invalidated by the fact that
the parties incorporated a fabricated statement in their affidavit that they cohabited as husband
and wife for at least five years. In addition, the Republic posits that the parties marriage
contract states that their marriage was solemnized under Article 76 of the Civil Code. It also
bears the signature of the parties and their witnesses, and must be considered a primary
evidence of marriage. To further fortify its Petition, the Republic adduces the following
documents: (1) Joses notarized Statement of Assets and Liabilities, dated 12 May 1988 wherein
he wrote Felisas name as his wife; (2) Certification dated 25 July 1993 issued by the Barangay
Chairman 192, Zone ZZ, District 24 of Pasay City, attesting that Jose and Felisa had lived
together as husband and wife in said barangay; and (3) Joses company ID card, dated 2 May
1988, indicating Felisas name as his wife.
The first assignment of error compels this Court to rule on the issue of the effect of a false
affidavit under Article 76 of the Civil Code. A survey of the prevailing rules is in order.
It is beyond dispute that the marriage of Jose and Felisa was celebrated on 24 November 1986,
prior to the effectivity of the Family Code. Accordingly, the Civil Code governs their union. Article
53 of the Civil Code spells out the essential requisites of marriage as a contract:
No marriage shall be solemnized unless all these requisites are complied with:53.ART.
Legal capacity of the contracting parties;(1)
Their consent, freely given;(2)
Authority of the person performing the marriage; and(3)
(4)A marriage license, except in a marriage of exceptional character. (Emphasis ours.)

Article 5827 makes explicit that no marriage shall be solemnized without a license first being
issued by the local civil registrar of the municipality where either contracting party habitually
resides, save marriages of an exceptional character authorized by the Civil Code, but not those
under Article 75.28 Article 80(3)29 of the Civil Code makes it clear that a marriage performed
without the corresponding marriage license is void, this being nothing more than the legitimate
consequence flowing from the fact that the license is the essence of the marriage contract. 30 This
is in stark contrast to the old Marriage Law,31 whereby the absence of a marriage license did not
make the marriage void. The rationale for the compulsory character of a marriage license under
the Civil Code is that it is the authority granted by the State to the contracting parties, after the
proper government official has inquired into their capacity to contract marriage. 32
Under the Civil Code, marriages of exceptional character are covered by Chapter 2, Title III,
comprising Articles 72 to 79. To wit, these marriages are: (1) marriages in articulo mortis or at
the point of death during peace or war, (2) marriages in remote places, (2) consular
marriages,33 (3) ratification of marital cohabitation, (4) religious ratification of a civil marriage,
(5) Mohammedan or pagan marriages, and (6) mixed marriages. 34

The instant case pertains to a ratification of marital cohabitation under Article 76 of the Civil
Code, which provides:
No marriage license shall be necessary when a man and a woman who have attained the age of
majority and who, being unmarried, have lived together as husband and wife for at least five years, desire
to marry each other. The contracting parties shall state the foregoing facts in an affidavit before any
person authorized by law to administer oaths. The official, priest or minister who solemnized the marriage
shall also state in an affidavit that he took steps to ascertain the ages and other qualifications of the
contracting parties and that he found no legal impediment to the marriage.76.ART.

The reason for the law,35 as espoused by the Code Commission, is that the publicity attending a
marriage license may discourage such persons who have lived in a state of cohabitation from
legalizing their status.36
It is not contested herein that the marriage of Jose and Felisa was performed without a
marriage license. In lieu thereof, they executed an affidavit declaring that they have attained
the age of maturity; that being unmarried, they have lived together as husband and wife for at
least five years; and that because of this union, they desire to marry each other. 37 One of the
central issues in the Petition at bar is thus: whether the falsity of an affidavit of marital
cohabitation, where the parties have in truth fallen short of the minimum five-year requirement,
effectively renders the marriage voidab initio for lack of a marriage license.
We answer in the affirmative.
Marriages of exceptional character are, doubtless, the exceptions to the rule on the
indispensability of the formal requisite of a marriage license. Under the rules of statutory
construction, exceptions, as a general rule, should be strictly38 but reasonably construed.39 They
extend only so far as their language fairly warrants, and all doubts should be resolved in favor of
the general provisions rather than the exception.40 Where a general rule is established by statute
with exceptions, the court will not curtail the former or add to the latter by implication. 41 For the
exception in Article 76 to apply, it is a sine qua non thereto that the man and the woman must
have attained the age of majority, and that, being unmarried, they have lived together as
husband and wife for at least five years.
A strict but reasonable construction of Article 76 leaves us with no other expediency but to
read the law as it is plainly written. The exception of a marriage license under Article 76 applies
only to those who have lived together as husband and wife for at least five years and desire to
marry each other. The Civil Code, in no ambiguous terms, places a minimum period requirement
of five years of cohabitation. No other reading of the law can be had, since the language of Article
76 is precise. The minimum requisite of five years of cohabitation is an indispensability carved in
the language of the law. For a marriage celebrated under Article 76 to be valid, this material fact
cannot be dispensed with. It is embodied in the law not as a directory requirement, but as one
that partakes of a mandatory character. It is worthy to mention that Article 76 also prescribes
that the contracting parties shall state the requisite facts 42 in an affidavit before any person
authorized by law to administer oaths; and that the official, priest or minister who solemnized

the marriage shall also state in an affidavit that he took steps to ascertain the ages and other
qualifications of the contracting parties and that he found no legal impediment to the marriage.
It is indubitably established that Jose and Felisa have not lived together for five years at the
time they executed their sworn affidavit and contracted marriage. The Republic admitted that
Jose and Felisa started living together only in June 1986, or barely five months before the
celebration of their marriage.43 The Court of Appeals also noted Felisas testimony that Jose was
introduced to her by her neighbor, Teresita Perwel, sometime in February or March 1986 after
the EDSA Revolution.44 The appellate court also cited Felisas own testimony that it was only in
June 1986 when Jose commenced to live in her house.45
Moreover, it is noteworthy that the question as to whether they satisfied the minimum fiveyear requisite is factual in nature. A question of fact arises when there is a need to decide on the
truth or falsehood of the alleged facts.46 Under Rule 45, factual findings are ordinarily not subject
to this Courts review.47 It is already well-settled that:
The general rule is that the findings of facts of the Court of Appeals are binding on this Court. A
recognized exception to this rule is when the Court of Appeals and the trial court, or in this case the
administrative body, make contradictory findings. However, the exception does not apply in every instance
that the Court of Appeals and the trial court or administrative body disagree. The factual findings of the
Court of Appeals remain conclusive on this Court if such findings are supported by the record or based on
substantial evidence.
48

Therefore, the falsity of the affidavit dated 24 November 1986, executed by Jose and Felisa to
exempt them from the requirement of a marriage license, is beyond question.
We cannot accept the insistence of the Republic that the falsity of the statements in the
parties affidavit will not affect the validity of marriage, since all the essential and formal
requisites were complied with. The argument deserves scant merit. Patently, it cannot be denied
that the marriage between Jose and Felisa was celebrated without the formal requisite of a
marriage license. Neither did Jose and Felisa meet the explicit legal requirement in Article 76,
that they should have lived together as husband and wife for at least five years, so as to be
excepted from the requirement of a marriage license.
Anent petitioners reliance on the presumption of marriage, this Court holds that the same
finds no applicability to the case at bar. Essentially, when we speak of a presumption of
marriage, it is with reference to theprima facie presumption that a man and a woman deporting
themselves as husband and wife have entered into a lawful contract of marriage. 49Restated more
explicitly, persons dwelling together in apparent matrimony are presumed, in the absence of any
counter-presumption or evidence special to the case, to be in fact married.50 The present case does
not involve an apparent marriage to which the presumption still needs to be applied. There is no
question that Jose and Felisa actually entered into a contract of marriage on 24 November 1986,
hence, compelling Jose to institute a Complaint for Annulment and/or Declaration of Nullity of
Marriage, which spawned the instant consolidated Petitions.
In the same vein, the declaration of the Civil Code51 that every intendment of law or fact leans
towards the validity of marriage will not salvage the parties marriage, and extricate them from

the effect of a violation of the law. The marriage of Jose and Felisa was entered into without the
requisite marriage license or compliance with the stringent requirements of a marriage under
exceptional circumstance. The solemnization of a marriage without prior license is a clear
violation of the law and would lead or could be used, at least, for the perpetration of fraud
against innocent and unwary parties, which was one of the evils that the law sought to prevent
by making a prior license a prerequisite for a valid marriage.52 The protection of marriage as a
sacred institution requires not just the defense of a true and genuine union but the exposure of
an invalid one as well.53 To permit a false affidavit to take the place of a marriage license is to
allow an abject circumvention of the law. If this Court is to protect the fabric of the institution of
marriage, we must be wary of deceptive schemes that violate the legal measures set forth in our
laws.
Similarly, we are not impressed by the ratiocination of the Republic that as a marriage under
a license is not invalidated by the fact that the license was wrongfully obtained, so must a
marriage not be invalidated by a fabricated statement that the parties have cohabited for at least
five years as required by law. The contrast is flagrant. The former is with reference to an
irregularity of the marriage license, and not to the absence of one. Here, there is no marriage
license at all. Furthermore, the falsity of the allegation in the sworn affidavit relating to the
period of Jose and Felisas cohabitation, which would have qualified their marriage as an
exception to the requirement for a marriage license, cannot be a mere irregularity, for it refers to
a quintessential fact that the law precisely required to be deposed and attested to by the parties
under oath. If the essential matter in the sworn affidavit is a lie, then it is but a mere scrap of
paper, without force and effect. Hence, it is as if there was no affidavit at all.
In its second assignment of error, the Republic puts forth the argument that based on equity,
Jose should be denied relief because he perpetrated the fabrication, and cannot thereby profit
from his wrongdoing. This is a misplaced invocation. It must be stated that equity finds no room
for application where there is a law.54 There is a law on the ratification of marital cohabitation,
which is set in precise terms under Article 76 of the Civil Code. Nonetheless, the authorities are
consistent that the declaration of nullity of the parties marriage is without prejudice to their
criminal liability.55
The Republic further avers in its third assignment of error that Jose is deemed estopped from
assailing the legality of his marriage for lack of a marriage license. It is claimed that Jose and
Felisa had lived together from 1986 to 1990, notwithstanding Joses subsequent marriage to
Rufina Pascual on 31 August 1990, and that it took Jose seven years before he sought the
declaration of nullity; hence, estoppel had set in.
This is erroneous. An action for nullity of marriage is imprescriptible.56 Jose and Felisas
marriage was celebrated sans a marriage license. No other conclusion can be reached except that
it is void ab initio. In this case, the right to impugn a void marriage does not prescribe, and may
be raised any time.
Lastly, to settle all doubts, jurisprudence has laid down the rule that the five-year commonlaw cohabitation period under Article 76 means a five-year period computed back from the date of

celebration of marriage, and refers to a period of legal union had it not been for the absence of a
marriage.57 It covers the years immediately preceding the day of the marriage, characterized by
exclusivitymeaning no third party was involved at any time within the five yearsand
continuity that is unbroken.58
WHEREFORE, the Petitions are DENIED. The Amended Decision of the Court of Appeals,
dated 7 November 2006 in CA-G.R. CV No. 68759, declaring the marriage of Jose Dayot to Felisa
Tecson-Dayot void ab initio, is AFFIRMED, without prejudice to their criminal liability, if any.
No costs.
SO ORDERED.
Austria-Martinez (Acting Chairperson), Tinga,**Velasco, Jr.*** and Reyes, JJ., concur.
Petitions denied, amended decision affirmed.
Notes.Secret marriage is a legally non-existent phrase but ordinarily used to refer to a
civil marriage celebrated without the knowledge of the relatives and/or friends of either or both of
the contracting parties. (Republic vs. Court of Appeals, 236 SCRA 257 [1994])
A marriage license is a formal requirement, and its absence renders the marriage void ab
initio. (Sy vs. Court of Appeals, 330 SCRA 550 [2000])

January 9, 2013.G.R. No. 170022.*

REPUBLIC OF THE PHILIPPINES, petitioner, vs.CESAR ENCELAN, respondent.
We resolve the petition for review on certiorari1 filed by petitioner Republic of the Philippines
challenging the October 7, 2005 amended decision2 of the Court of Appeals (CA) that
reconsidered its March 22, 2004 decision3 (original decision) in CA-G.R. CV No. 75583. In its
original decision, the CA set aside the June 5, 2002 decision4 of the Regional Trial Court (RTC) of
Manila, Branch 47, in Civil Case No. 95-74257, which declared the marriage of respondent Cesar
Encelan to Lolita Castillo-Encelan null and void on the ground of the latters psychological
incapacity.
The Factual Antecedents
On August 25, 1979, Cesar married Lolita5 and the union bore two children, Maricar and
Manny.6 To support his family, Cesar went to work in Saudi Arabia on May 15, 1984. On June 12,
1986, Cesar, while still in Saudi Arabia, learned that Lolita had been having an illicit affair with
Alvin Perez. Sometime in 1991,7 Lolita allegedly left the conjugal home with her children and
lived with Alvin. Since then, Cesar and Lolita had been separated. On June 16, 1995, Cesar filed
with the RTC a petition against Lolita for the declaration of the nullity of his marriage based on
Lolitas psychological incapacity.8

Lolita denied that she had an affair with Alvin; she contended that Alvin used to be an
associate in her promotions business. She insisted that she is not psychologically incapacitated
and that she left their home because of irreconcilable differences with her mother-in-law. 9
At the trial, Cesar affirmed his allegations of Lolitas infidelity and subsequent abandonment
of the family home.10 He testified that he continued to provide financial support for Lolita and
their children even after he learned of her illicit affair with Alvin.11
Cesar presented the psychological evaluation report12 on Lolita prepared by Dr. Fareda Fatima
Flores of the National Center for Mental Health. Dr. Flores found that Lolita wasnot suffering
from any form of major psychiatric illness[,]13 but had been unable to provide the
expectations expected of her for a good and lasting marital relationship; 14 her transferring from
one job to the other depicts some interpersonal problems with co-workers as well as her
impatience in attaining her ambitions;15 and her refusal to go with her husband abroad signifies
her reluctance to work out a good marital and family relationship. 16
The RTC Ruling
In its June 5, 2002 decision,17 the RTC declared Cesars marriage to Lolita void, finding
sufficient basis to declare Lolita psychologically incapacitated to comply with the essential
marital obligations.
The petitioner, through the Office of the Solicitor General (OSG), appealed to the CA.
The CA Ruling
The CA originally18 set aside the RTCs verdict, finding that Lolitas abandonment of the
conjugal dwelling and infidelity were not serious cases of personality disorder/psychological
illness. Lolita merely refused to comply with her marital obligations which she was capable of
doing. The CA significantly observed that infidelity is only a ground for legal separation, not for
the declaration of the nullity of a marriage.
Cesar sought reconsideration19 of the CAs decision and, in due course, attained his objective.
The CA set aside its original decision and entered another, which affirmed the RTCs decision. In
its amended decision,20 the CA found two circumstances indicative of Lolitas serious
psychological incapacity that resulted in her gross infidelity: (1) Lolitas unwarranted refusal to
perform her marital obligations to Cesar; and (2) Lolitas willful and deliberate act of abandoning
the conjugal dwelling.
The OSG then filed the present petition.
The Petition
The OSG argues that Dr. Flores psychological evaluation report did not disclose that Lolita
had been suffering from a psychological illness nor did it establish its juridical antecedence,
gravity and incurability; infidelity and abandonment do not constitute psychological incapacity,
but are merely grounds for legal separation.
The Case for the Respondent

Cesar submits that Lolitas infidelity and refusal to perform her marital obligations
established her grave and incurable psychological incapacity.
The Issue
The case presents to us the legal issue of whether there exists sufficient basis to nullify
Cesars marriage to Lolita on the ground of psychological incapacity.
The Courts Ruling
We grant the petition. No sufficient basis exists to annul Cesars marriage to Lolita
on the ground of psychological incapacity.
Applicable Law and Jurisprudence
on Psychological Incapacity
Article 36 of the Family Code governs psychological incapacity as a ground for declaration of
nullity of marriage. It provides that [a] marriage contracted by any party who, at the time of the
celebration, was psychologically incapacitated to comply with the essential marital obligations of
marriage, shall likewise be void even if such incapacity becomes manifest only after its
solemnization.
In interpreting this provision, we have repeatedly stressed that psychological incapacity
contemplates downright incapacity or inability to take cognizance of and to assume
the basic marital obligations;21 not merely the refusal, neglect or difficulty, much less ill will,
on the part of the errant spouse.22 The plaintiff bears the burden of proving the juridical
antecedence (i.e., the existence at the time of the celebration of marriage), gravity and
incurability of the condition of the errant spouse. 23
Cesar failed to prove Lolitas
psychological incapacity
In this case, Cesars testimony failed to prove Lolitas alleged psychological incapacity. Cesar
testified on the dates when he learned of Lolitas alleged affair and her subsequent abandonment
of their home,24 as well as his continued financial support to her and their children even after he
learned of the affair,25 but he merely mentioned in passing Lolitas alleged affair with Alvin and
her abandonment of the conjugal dwelling.
In any event, sexual infidelity and abandonment of the conjugal dwelling, even if true, do not
necessarily constitute psychological incapacity; these are simply grounds for legal separation. 26 To
constitute psychological incapacity, it must be shown that the unfaithfulness and abandonment
are manifestations of a disordered personality that completely prevented the erring spouse from
discharging the essential marital obligations.27 No evidence on record exists to support Cesars
allegation that Lolitas infidelity and abandonment were manifestations of any psychological
illness.
Cesar mistakenly relied on Dr. Flores psychological evaluation report on Lolita to prove her
alleged psychological incapacity. The psychological evaluation, in fact, established that Lolita did

not suffer from any major psychiatric illness.28 Dr. Flores observation on Lolitas interpersonal
problems with co-workers,29 to our mind, does not suffice as a consideration for the conclusion
that she wasat the time of her marriagepsychologically incapacitated to enter into a marital
union with Cesar. Aside from the time element involved, a wifes psychological fitness as a spouse
cannot simply be equated with her professional/work relationship; workplace obligations and
responsibilities are poles apart from their marital counterparts. While both spring from human
relationship, their relatedness and relevance to one another should be fully established for them
to be compared or to serve as measures of comparison with one another. To be sure, the
evaluation report Dr. Flores prepared and submitted cannot serve this purpose. Dr. Flores
further belief that Lolitas refusal to go with Cesar abroad signified a reluctance to work out a
good marital relationship30 is a mere generalization unsupported by facts and is, in fact, a rash
conclusion that this Court cannot support.
In sum, we find that Cesar failed to prove the existence of Lolitas psychological incapacity;
thus, the CA committed a reversible error when it reconsidered its original decision.
Once again, we stress that marriage is an inviolable social institution 31 protected by the State.
Any doubt should be resolved in favor of its existence and continuation and against its dissolution
and nullity.32 It cannot be dissolved at the whim of the parties nor by transgressions made by one
party to the other during the marriage.
WHEREFORE, we GRANT the petition and SET ASIDE the October 7, 2005 amended
decision of the Court of Appeals in CA-G.R. CV No. 75583. Accordingly, we DISMISS respondent
Cesar Encelans petition for declaration of nullity of his marriage to Lolita Castillo-Encelan.
Costs against the respondent.
SO ORDERED.
Carpio (Chairperson), Del Castillo, Perez and Perlas-Bernabe, JJ., concur.
Petition granted, amended decision set aside.
Notes.Sexual infidelity, per se, does not constitute psychological incapacity within the
contemplation of the Family Code. (Alcazar vs. Alcazar, 603 SCRA 604 [2009])
Psychological incapacity must refer to no less than a mental incapacity that causes a party to
be truly incognitive of the basic marital covenants that concomitantly must be assumed and
discharged by the parties to the marriage. (Marable vs. Marable, 639 SCRA 557 [2011])
o0o

January 14, 2015.G.R. No. 166357.*

VALERIO E. KALAW, petitioner, vs. MA. ELENA FERNANDEZ, respondent.

RESOLUTION

BERSAMIN,J.:
In our decision promulgated on September 19, 2011, 1 the Court dismissed the complaint for
declaration of nullity of the marriage of the parties upon the following ratiocination, to wit:
The petition has no merit. The CA committed no reversible error in setting aside the trial courts
Decision for lack of legal and factual basis.
xxxx
In the case at bar, petitioner failed to prove that his wife (respondent) suffers from psychological
incapacity. He presented the testimonies of two supposed expert witnesses who concluded that respondent
is psychologically incapacitated, but the conclusions of these witnesses were premised on the alleged acts
or behavior of respondent which had not been sufficiently proven. Petitioners experts heavily relied on
petitioners allegations of respondents constant mahjong sessions, visits to the beauty parlor, going out
with friends, adultery, and neglect of their children. Petitioners experts opined that respondents alleged
habits, when performed constantly to the detriment of quality and quantity of time devoted to her duties
as mother and wife, constitute a psychological incapacity in the form of NPD.
But petitioners allegations, which served as the bases or underlying premises of the conclusions of his
experts, were not actually proven. In fact, respondent presented contrary evidence refuting these
allegations of the petitioner.
For instance, petitioner alleged that respondent constantly played mahjong and neglected their
children as a result. Respondent admittedly played mahjong, but it was not proven that she engaged
in mahjong so frequently that she neglected her duties as a mother and a wife. Respondent refuted
petitioners allegations that she played four to five times a week. She maintained it was only two to three
times a week and always with the permission of her husband and without abandoning her children at
home. The children corroborated this, saying that they were with their mother when she
played mahjong in their relatives home. Petitioner did not present any proof, other than his own
testimony, that the mahjong sessions were so frequent that respondent neglected her family. While he
intimated that two of his sons repeated the second grade, he was not able to link this episode to
respondents mahjong-playing. The least that could have been done was to prove the frequency of
respondents mahjong-playing during the years when these two children were in second grade. This was
not done. Thus, while there is no dispute that respondent played mahjong, its alleged debilitating
frequency and adverse effect on the children were not proven.
Also unproven was petitioners claim about respondents alleged constant visits to the beauty parlor,
going out with friends, and obsessive need for attention from other men. No proof whatsoever was
presented to prove her visits to beauty salons or her frequent partying with friends. Petitioner presented
Mario (an alleged companion of respondent during these nights-out) in order to prove that respondent had
affairs with other men, but Mario only testified that respondent appeared to be dating other men. Even
assumingarguendo that petitioner was able to prove that respondent had an extramarital affair with
another man, that one instance of sexual infidelity cannot, by itself, be equated with obsessive need for
attention from other men. Sexual infidelity per se is a ground for legal separation, but it does not
necessarily constitute psychological incapacity.

Given the insufficiency of evidence that respondent actually engaged in the behaviors described as
constitutive of NPD, there is no basis for concluding that she was indeed psychologically incapacitated.
Indeed, the totality of the evidence points to the opposite conclusion. A fair assessment of the facts would
show that respondent was not totally remiss and incapable of appreciating and performing her marital
and parental duties. Not once did the children state that they were neglected by their mother. On the
contrary, they narrated that she took care of them, was around when they were sick, and cooked the food
they like. It appears that respondent made real efforts to see and take care of her children despite her
estrangement from their father. There was no testimony whatsoever that shows abandonment and neglect
of familial duties. While petitioner cites the fact that his two sons, Rio and Miggy, both failed the second
elementary level despite having tutors, there is nothing to link their academic shortcomings to Malyns
actions.
After poring over the records of the case, the Court finds no factual basis for the conclusion of
psychological incapacity. There is no error in the CAs reversal of the trial courts ruling that there was
psychological incapacity. The trial courts Decision merely summarized the allegations, testimonies, and
evidence of the respective parties, but it did not actually assess the veracity of these allegations, the
credibility of the witnesses, and the weight of the evidence. The trial court did not make factual findings
which can serve as bases for its legal conclusion of psychological incapacity.
What transpired between the parties is acrimony and, perhaps, infidelity, which may have constrained
them from dedicating the best of themselves to each other and to their children. There may be grounds for
legal separation, but certainly not psychological incapacity that voids a marriage.
WHEREFORE, premises considered, the petition is DENIED. The Court of Appeals May 27, 2004
Decision and its December 15, 2004 Resolution in C.A.-G.R. CV No. 64240 are AFFIRMED.
SO ORDERED.
2

In his Motion for Reconsideration,3 the petitioner implores the Court to take a thorough second
look into what constitutes psychological incapacity; to uphold the findings of the trial court as
supported by the testimonies of three expert witnesses; and consequently to find that the
respondent, if not both parties, were psychologically incapacitated to perform their respective
essential marital obligation.
Upon an assiduous review of the records, we resolve to grant the petitioners Motion for
Reconsideration.
Psychological incapacity as a ground for the nullity of marriage under Article 36 of the Family
Code refers to a serious psychological illness afflicting a party even prior to the celebration of the
marriage that is permanent as to deprive the party of the awareness of the duties and
responsibilities of the matrimonial bond he or she was about to assume. Although the Family
Code has not defined the term psychological incapacity, the Court has usually looked up its
meaning by reviewing the deliberations of the sessions of the Family Code Revision Committee
that had drafted the Family Code in order to gain an insight on the provision. It appeared that
the members of the Family Code Revision Committee were not unanimous on the meaning, and
in the end they decided to adopt the provision with less specificity than expected in order to

have the law allow some resiliency in its application.4 Illustrative of the less specificity than
expected has been the omission by the Family Code Revision Committee to give any examples of
psychological incapacity that would have limited the applicability of the provision conformably
with the principle of ejusdem generis, because the Committee desired that the courts should
interpret the provision on a case-to-case basis, guided by experience, the findings of experts and
researchers in psychological disciplines, and the decisions of church tribunals that had
persuasive effect by virtue of the provision itself having been taken from the Canon Law. 5
On the other hand, as the Court has observed in Santos v. Court of Appeals,6 the deliberations
of the Family Code Revision Committee and the relevant materials on psychological incapacity as
a ground for the nullity of marriage have rendered it obvious that the term psychological
incapacity as used in Article 36 of the Family Code has not been meant to comprehend all such
possible cases of psychoses as, likewise mentioned by some ecclesiastical authorities, extremely
low intelligence, immaturity, and like circumstances, and could not be taken and construed
independently of but must stand in conjunction with, existing precepts in our law on marriage.
Thus correlated:
x x x psychological incapacity should refer to no less than a mental (not physical) incapacity that
causes a party to be truly incognitive of the basic marital covenants that concomitantly must be assumed
and discharged by the parties to the marriage which, as so expressed by Article 68 of the Family Code,
include their mutual obligations to live together, observe love, respect and fidelity and render help and
support. There is hardly any doubt that the intendment of the law has been to confine the meaning of
psychological incapacity to the most serious cases of personality disorders clearly demonstrative of an
utter insensitivity or inability to give meaning and significance to the marriage. This psychologic
condition must exist at the time the marriage is celebrated. The law does not evidently envision, upon the
other hand, an inability of the spouse to have sexual relations with the other. This conclusion is implicit
under Article 54 of the Family Code which considers children conceived prior to the judicial declaration of
nullity of the void marriage to be legitimate.
7

In time, in Republic v. Court of Appeals,8 the Court set some guidelines for the interpretation
and application of Article 36 of the Family Code, as follows:
(1)

The burden of proof to show the nullity of the marriage belongs to the plaintiff. Any doubt should be

resolved in favor of the existence and continuation of the marriage and against its dissolution and
nullity. This is rooted in the fact that both our Constitution and our laws cherish the validity of marriage
and unity of the family. Thus, our Constitution devotes an entire Article on the Family, recognizing it as
the foundation of the nation. It decrees marriage as legally inviolable, thereby protecting it from
dissolution at the whim of the parties. Both the family and marriage are to be protected by the state.
The Family Code echoes this constitutional edict on marriage and the family and emphasizes
their permanence, inviolability andsolidarity.
The root cause of the psychological incapacity must be (a) medically or clinically identified, (b) alleged
in the complaint, (c) sufficiently proven by experts and (d) clearly explained in the decision. Article 36 of
the Family Code requires that the incapacity must be psychological not physical, although its

manifestations and/or symptoms may be physical. The evidence must convince the court that the parties,
or one of them, was mentally or psychically ill to such an extent that the person could not have known the
obligations he was assuming, or knowing them, could not have given valid assumption thereof. Although
no example of suc(2)h incapacity need be given here so as not to limit the application of the provision
under the principle of ejusdem generis, nevertheless such root cause must be identified as a psychological
illness and its incapacitating nature fully explained. Expert evidence may be given by qualified
psychiatrists and clinical psychologists.
The incapacity must be proven to be existing at the time of the celebration of the marriage. The
evidence must show that the illness was existing when the parties exchanged their I dos. The
manifestation of the illness need not be perceivable at such time, but the illness itself must have attached
at such moment, or prior thereto.(3)
Such incapacity must also be shown to be medically or clinically permanent or(4) incurable. Such incurability may be absolute or even relative only in regard to the other spouse, not necessarily absolutely
against everyone of the same sex. Furthermore, such incapacity must be relevant to the assumption of
marriage obligations, not necessarily to those not related to marriage, like the exercise of a profession or
employment in a job. Hence, a pediatrician may be effective in diagnosing illnesses of children and
prescribing medicine to cure them but may not be psychologically capacitated to procreate, bear and raise
his/her own children as an essential obligation of marriage.
Such illness must be grave enough to bring about the disability of the party to assume the essential
obligations of marriage. Thus, mild characteriological peculiarities, mood changes, occasional emotional
outbursts cannot be accepted as root causes. The illness must be shown as downright incapacity or
inability, not a refusal, neglect or difficulty, much less ill will. In other words, there is a natal or
supervening disabling factor in the person, an adverse integral element in the personality structure that
effectively incapacitates the person from really accepting and thereby complying with the obligations
essential to marriage.(5)
The essential marital obligations must be those embraced by Articles 68 up to 71 of the Family Code as
regards the husband and wife as well as Articles 220, 221 and 225 of the same Code in regard to parents
and their children. Such non-complied marital obligation(s) must also be stated in the petition, proven by
evidence and included in the text of the decision.(6)
Interpretations given by the National Appellate Matrimonial Tribunal of the Catholic Church in the
Philippines, while not controlling or decisive, should be given great respect by our courts. It is clear that
Article 36 was taken by the Family Code Revision Committee from Canon 1095 of the New Code of Canon
Law, which became effective in 1983 and which provides:(7)
The following are incapable of contracting marriage: Those who are unable to assume the essential
obligations of marriage due to causes of psychological nature.
Since the purpose of including such provision in our Family Code is to harmonize our civil laws with
the religious faith of our people, it stands to reason that to achieve such harmonization, great persuasive
weight should be given to decisions of such appellate tribunal. Ideally subject to our law on evidence
what is decreed as canonically invalid should also be decreed civilly void.
This is one instance where, in view of the evident source and purpose of the Family Code provision,
contemporaneous religious interpretation is to be given persuasive effect. Here, the State and the Church
while remaining independent, separate and apart from each other shall walk together in synodal

cadence towards the same goal of protecting and cherishing marriage and the family as the inviolable
base of the nation.
The trial court must order the prosecuting attorney or fiscal and the Solicitor General to appear as
counsel for the state. No decision shall be handed down unless the Solicitor General issues a certification,
which will be quoted in the decision, briefly stating therein his reasons for his agreement or opposition, as
the case may be, to the petition. The Solicitor General, along with the prosecuting attorney, shall submit
to the court such certification within fifteen (15) days from the date the case is deemed submitted for
resolution of the court. The Solicitor General shall discharge the equivalent function of the(8) defensor
vinculi contemplated under Canon 1095.
9

The foregoing guidelines have turned out to be rigid, such that their application to every
instance practically condemned the petitions for declaration of nullity to the fate of certain
rejection. But Article 36 of the Family Code must not be so strictly and too literally read and
applied given the clear intendment of the drafters to adopt its enacted version of less specificity
obviously to enable some resiliency in its application. Instead, every court should approach the
issue of nullity not on the basis of a priori assumptions, predilections or generalizations, but
according to its own facts in recognition of the verity that no case would be on all fours with
the next one in the field of psychological incapacity as a ground for the nullity of marriage; hence,
every trial judge must take pains in examining the factual milieu and the appellate court must,
as much as possible, avoid substituting its own judgment for that of the trial court. 10
In the task of ascertaining the presence of psychological incapacity as a ground for the nullity
of marriage, the courts, which are concededly not endowed with expertise in the field of
psychology, must of necessity rely on the opinions of experts in order to inform themselves on the
matter, and thus enable themselves to arrive at an intelligent and judicious judgment. Indeed,
the conditions for the malady of being grave, antecedent and incurable demand the in-depth
diagnosis by experts.11
II
The findings of the Regional Trial Court (RTC) on the existence or nonexistence of a partys
psychological incapacity should be final and binding for as long as such findings and evaluation of
the testimonies of witnesses and other evidence are not shown to be clearly and manifestly
erroneous.12 In every situation where the findings of the trial court are sufficiently supported by
the facts and evidence presented during trial, the appellate court should restrain itself from
substituting its own judgment.13 It is not enough reason to ignore the findings and evaluation by
the trial court and substitute our own as an appellate tribunal only because the Constitution and
the Family Code regard marriage as an inviolable social institution. We have to stress that the
fulfilment of the constitutional mandate for the State to protect marriage as an inviolable social
institution14 only relates to a valid marriage. No protection can be accorded to a marriage that is
null and void ab initio, because such a marriage has no legal existence.15

In declaring a marriage null and void ab initio, therefore, the Courts really assiduously defend
and promote the sanctity of marriage as an inviolable social institution. The foundation of our
society is thereby made all the more strong and solid.
Here, the findings and evaluation by the RTC as the trial court deserved credence because it
was in the better position to view and examine the demeanor of the witnesses while they were
testifying.16 The position and role of the trial judge in the appreciation of the evidence showing
the psychological incapacity were not to be downplayed but should be accorded due importance
and respect.
Yet, in the September 19, 2011 decision, the Court brushed aside the opinions tendered by Dr.
Cristina Gates, a psychologist, and Fr. Gerard Healy on the ground that their conclusions were
solely based on the petitioners version of the events.
After a long and hard second look, we consider it improper and unwarranted to give to such
expert opinions a merely generalized consideration and treatment, least of all to dismiss their
value as inadequate basis for the declaration of the nullity of the marriage. Instead, we hold that
said experts sufficiently and competently described the psychological incapacity of the respondent
within the standards of Article 36 of the Family Code. We uphold the conclusions reached by the
two expert witnesses because they were largely drawn from the case records and affidavits, and
should not anymore be disputed after the RTC itself had accepted the veracity of the petitioners
factual premises.17
Admittedly, Dr. Gates based her findings on the transcript of the petitioners testimony, as well
as on her interviews of the petitioner, his sister Trinidad, and his son Miguel. Although her
findings would seem to be unilateral under such circumstances, it was not right to disregard the
findings on that basis alone. After all, her expert opinion took into consideration other factors
extant in the records, including the own opinions of another expert who had analyzed the issue
from the side of the respondent herself. Moreover, it is already settled that the courts must
accord weight to expert testimony on the psychological and mental state of the parties in cases
for the declaration of the nullity of marriages, for by the very nature of Article 36 of the Family
Code the courts, despite having the primary task and burden of decision-making, must not
discount but, instead, must consider as decisive evidence the expert opinion on the
psychological and mental temperaments of the parties.18

The expert opinion of Dr. Gates was ultimately necessary herein to enable the trial court to
properly determine the issue of psychological incapacity of the respondent (if not also of the
petitioner). Consequently, the lack of personal examination and interview of the person
diagnosed with personality disorder, like the respondent, did not per seinvalidate the findings of
the experts. The Court has stressed in Marcos v. Marcos19 that there is no requirement for one to
be declared psychologically incapacitated to be personally examined by a physician, because what
is important is the presence of evidence that adequately establishes the partys psychological
incapacity. Hence, if the totality of evidence presented is enough to sustain a finding of
psychological incapacity, then actual medical examination of the person concerned need not be
resorted to.20

Verily, the totality of the evidence must show a link, medical or the like, between the acts that
manifest psychological incapacity and the psychological disorder itself. If other evidence showing
that a certain condition could possibly result from an assumed state of facts existed in the record,
the expert opinion should be admissible and be weighed as an aid for the court in interpreting
such other evidence on the causation.21 Indeed, an expert opinion on psychological incapacity
should be considered as conjectural or speculative and without any probative value only in the
absence of other evidence to establish causation. The experts findings under such circumstances
would not constitute hearsay that would justify their exclusion as evidence.22 This is so,
considering that any ruling that brands the scientific and technical procedure adopted by Dr.
Gates as weakened by bias should be eschewed if it was clear that her psychiatric evaluation had
been based on the parties upbringing and psychodynamics.23
In that context, Dr. Gates expert opinion should be considered not in isolation but along with
the other evidence presented here.
Moreover, in its determination of the issue of psychological incapacity, the trial court was
expected to compare the expert findings and opinion of Dr. Natividad Dayan, the respondents
own witness, and those of Dr. Gates.
In her Psychological Evaluation Report,24 Dr. Dayan impressed that the respondent had
compulsive and dependent tendencies to the extent of being relationship dependent. Based
from the respondents psychological data, Dr. Dayan indicated that:
In her relationship with people, Malyne is likely to be reserved and seemingly detached in her ways.
Although she likes to be around people, she may keep her emotional distance. She, too, values her
relationship but she may not be that demonstrative of her affections. Intimacy may be quite difficult for
her since she tries to maintain a certain distance to minimize opportunities for rejection. To others,
Malyne may appear, critical and demanding in her ways. She can be assertive when opinions contrary to
those of her own are expressed. And yet, she is apt to be a dependent person. At a less conscious level,
Malyne fears that others will abandon her. Malyne, who always felt a bit lonely, placed an enormous value
on having significant others would depend on most times.
xxxx
But the minute she started to care, she became a different person clingy and immature, doubting
his love, constantly demanding reassurance that she was the most important person in his life. She
became relationship-dependent.
25

Dr. Dayan was able to clearly interpret the results of the Millon Clinical Multiaxial Inventory
test26 conducted on the respondent, observing that the respondent obtained high scores on
dependency, narcissism and compulsiveness, to wit:
Atty. Bretania
Q: How about this Millon Clinical Multiaxial Inventory?
A: Sir, the cut of the score which is supposed to be normal is 73 percental round and there are several
scores wherein Mrs. Kalaw obtained very high score and these are on the score of dependency, narcissism
and compulsion.

Q: Would you please tell us again, Madam Witness, what is the acceptable score?
A: When your score is 73 and above, that means that it is very significant. So, if 72 and below, it will be
considered as acceptable.
Q: In what area did Mrs. Kalaw obtain high score?
A: Under dependency, her score is 78; under narcissism, is 79; under compulsiveness, it is 84.
27

It is notable that Dr. Dayans findings did not contradict but corroborated the findings of Dr.
Gates to the effect that the respondent had been afflicted with Narcissistic Personality Disorder
as well as with Anti-Social Disorder. Dr. Gates relevantly testified:
ATTY. GONONG
Q: Could you please repeat for clarity. I myself is [sic] not quite familiar with psychology terms. So,
more or less, could you please tell me in more laymans terms how you arrived at your findings that the
respondent is self-centered or narcissistic?
A: I moved into this particular conclusion. Basically, if you ask about her childhood background, her
father died in a vehicular accident when she was in her teens and thereafter she was prompted to look for
a job to partly assume the breadwinners role in her family. I gathered that paternal grandmother partly
took care of her and her siblings against the fact that her own mother was unable to carry out her
respective duties and responsibilities towards Elena Fernandez and her siblings considering that the
husband died prematurely. And there was an indication that Elena Fernandez on several occasions ever
told petitioner that he cannot blame her for being negligent as a mother because she herself never
experienced the care and affection of her own mother herself. So, there is a precedent in her background,
in her childhood, and indeed this seems to indicate a particular script, we call it in psychology a script, the
tendency to repeat some kind of experience or the lack of care, lets say some kind of deprivation, there is
a tendency to sustain it even on to your own life when you have your own family. I did interview the son
because I was not satisfied with what I gathered from both Trinidad and Valerio and even though as a
young son at the age of fourteen already expressed the he could not see, according to the child, the
sincerity of maternal care on the part of Elena and that he preferred to live with the father actually.
Q: Taking these all out, you came to the conclusion that respondent is self-centered and narcissistic?
A: Actually respondent has some needs which tempts [sic] from a deprived childhood and she is still in
search of this. In her several boyfriends, it seems that she would jump from one boyfriend to another.
There is this need for attention, this need for love on other people.
Q: And that led you to conclude?
A: And therefore I concluded that she is self-centered to the point of neglecting her duty as a wife and
as a mother.
28

The probative force of the testimony of an expert does not lie in a mere statement of her theory
or opinion, but rather in the assistance that she can render to the courts in showing the facts
that serve as a basis for her criterion and the reasons upon which the logic of her conclusion is
founded.29 Hence, we should weigh and consider the probative value of the findings of the expert
witnesses vis--vis the other evidence available.
The other expert of the petitioner was Fr. Healy, a canon law expert, an advocate before the
Manila Archdiocese and Matrimonial Tribunal, and a consultant of the Family Code Revision

Committee. Regarding Father Healys expert testimony, we have once declared that judicial
understanding of psychological incapacity could be informed by evolving standards, taking into
account the particulars of each case, by current trends in psychological and even by canonical
thought, and by experience.30 It is prudent for us to do so because the concept of psychological
incapacity adopted under Article 36 of the Family Code was derived from Canon Law.
Father Healy tendered his opinion on whether or not the respondents level of immaturity and
irresponsibility with regard to her own children and to her husband constituted psychological
incapacity, testifying thusly:
ATTY. MADRID
Q: Now, respondent Ma. Elena Fernandez claims that she is not psychologically incapacitated. On the
facts as you read it based on the records of this case before this Honorable Court, what can you say to that
claim of respondent?
A: I would say it is a clear case of psychological incapacity because of her immaturity and traumatic
irresponsibility with regards to her own children.
Q: So what you are saying is that, the claim of respondent that she is not psychologically incapacitated
is not true?
A: Yes. It should be rejected.
Q: Why do you say so?
A: Because of what she has manifested in her whole lifestyle, inconsistent pattern has been manifested
running through their life made a doubt that this is immaturity and irresponsibility because her family
was dysfunctional and then her being a model in her early life and being the breadwinner of the family
put her in an unusual position of prominence and then begun to inflate her own ego and she begun to
concentrate her own beauty and that became an obsession and that led to her few responsibility of
subordinating to her children to this lifestyle that she had embraced.
Q: You only mentioned her relationship with the children, the impact. How about the impact on the
relationship of the respondent with her husband?
A: Also the same thing. It just did not fit in to her lifestyle to fulfill her obligation to her husband and
to her children. She had her own priorities, her beauty and her going out and her mahjongand associating
with friends. They were the priorities of her life.
Q: And what you are saying is that, her family was merely secondary?
A: Secondary.
Q: And how does that relate to psychological incapacity?
A: That she could not appreciate or absorb or fulfill the obligations of marriage which everybody takes
for granted. The concentration on the husband and the children before everything else would be
subordinated to the marriage with her. Its the other way around. Her beauty, her going out, her beauty
parlor and hermahjong, they were their priorities in her life.
Q: And in medical or clinical parlance, what specifically do you call this?
A: That is narcissism where the person falls in love with himself is from a myt[h]ical case in Roman
history.
Q: Could you please define to us what narcissism is?
A: Its a self-love, falling in love with oneself to make up for the loss of a dear friend as in the case of
Narcissus, the myth, and then that became known in clinical terminology as narcissism. When a person is

so concern[ed] with her own beauty and prolonging and protecting it, then it becomes the top priority in
her life.
xxxx
Q: And you stated that circumstances that prove this narcissism. How do you consider this narcissism
afflicting respondent, it is grave, slight or .?
A: I would say its grave from the actual cases of neglect of her family and that causes serious
obligations which she has ignored and not properly esteemed because she is so concern[ed] with herself in
her own lifestyle. Very serious.
Q: And do you have an opinion whether or not this narcissism afflicting respondent was already
existing at the time or marriage or even thereafter?
xxxx
A: When you get married you dont develop narcissism or psychological incapacity. You bring with you
into the marriage and then it becomes manifested because in marriage you accept these responsibilities.
And now you show that you dont accept them and you are not capable of fulfilling them and you dont care
about them.
Q: Is this narcissism, Fr. Healy, acquired by accident or congenital or what?
A: No. The lifestyle generates it. Once you become a model and still the family was depended [sic] upon
her and she was a model at Hyatt and then Rustans, it began to inflate her ego so much that this became
the top priority in her life. Its her lifestyle.
Q: What you are saying is that, the narcissism of respondent even expanded after the marriage?
A: That could have expanded because it became very obvious after the marriage because she was
neglecting such fundamental obligations.
Q: And how about the matter of curability, is this medically or clinically curable, this narcissism that
you mentioned?
A: Lets say, it was manifested for so many years in her life. It was found in her family background
situation. Say, almost for sure would be incurable now.
Q: What specific background are you referring to?
A: Well, the fact when the father died and she was the breadwinner and her beauty was so important
to give in her job and money and influence and so on. But this is a very unusual situation for a young girl
and her position in the family was exalted in a very very unusual manner and therefore she had that
pressure on her and in her accepting the pressure, in going along with it and putting it in top priority.
31

Given his credentials and conceded expertise in Canon Law, Father Healys opinions and
findings commanded respect. The contribution that his opinions and findings could add to the
judicial determination of the parties psychological incapacity was substantive and instructive.
He could thereby inform the trial court on the degrees of the malady that would warrant the
nullity of marriage, and he could as well thereby provide to the trial court an analytical insight
upon a subject as esoteric to the courts as psychological incapacity has been. We could not justly
disregard his opinions and findings. Appreciating them together with those of Dr. Gates and Dr.
Dayan would advance more the cause of justice. The Court observed inNgo Te v. Yu-Te:32

By the very nature of Article 36, courts, despite having the primary task and burden of decisionmaking, must not discount but, instead, must consider as decisive evidence the expert opinion
on the psychological and mental temperaments of the parties.
Justice Romero explained this in Molina, as follows:
Furthermore, and equally significant, the professional opinion of a psychological expert became
increasingly important in such cases. Data about the persons entire life, both before and after the ceremony,
were presented to these experts and they were asked to give professional opinions about a partys mental
capacity at the time of the wedding. These opinions were rarely challenged and tended to be accepted as
decisive evidence of lack of valid consent.
The Church took pains to point out that its new openness in this area did not amount to the addition of
new grounds for annulment, but rather was an accommodation by the Church to the advances made in
psychology during the past decades. There was now the expertise to provide the all-important connecting
link between a marriage breakdown and premarital causes.
During the 1970s, the Church broadened its whole idea of marriage from that of a legal contract to
that of a covenant. The result of this was that it could no longer be assumed in annulment cases that a
person who could intellectually understand the concept of marriage could necessarily give valid consent to
marry. The ability to both grasp and assume the real obligations of a mature, lifelong commitment are now
considered a necessary prerequisite to valid matrimonial consent.
Rotal decisions continued applying the concept of incipient psychological incapacity, not only to sexual
anomalies but to all kinds of personality disorders that incapacitate a spouse or both spouses from
assuming or carrying out the essential obligations of marriage. For marriage . . . is not merely
cohabitation or the right of the spouses to each others body for heterosexual acts, but is, in its totality the
right to the community of the whole of life; i.e., the right to a developing lifelong relationship. Rotal
decisions since 1973 have refined the meaning of psychological or psychic capacity for marriage as
presupposing the development of an adult personality; as meaning the capacity of the spouses to give
themselves to each other and to accept the other as a distinct person; that the spouses must be other
oriented since the obligations of marriage are rooted in a self-giving love; and that the spouses must have
the capacity for interpersonal relationship because marriage is more than just a physical reality but
involves a true intertwining of personalities. The fulfillment of the obligations of marriage depends,
according to Church decisions, on the strength of this interpersonal relationship. A serious incapacity for
interpersonal sharing and support is held to impair the relationship and consequently, the ability to fulfill
the essential marital obligations.The marital capacity of one spouse is not considered in isolation but in
reference to the fundamental relationship to the other spouse.
Fr. Green, in an article in Catholic Mind, lists six elements necessary to the mature marital
relationship:
The courts consider the following elements crucial to the marital commitment: (1) a permanent and
faithful commitment to the marriage partner; (2) openness to children and partner; (3) stability; (4)
emotional maturity; (5) financial responsibility; (6) an ability to cope with the ordinary stresses and
strains of marriage, etc.
Fr. Green goes on to speak about some of the psychological conditions that might lead to the failure of
a marriage:
At stake is a type of constitutional impairment precluding conjugal communion even with the best
intentions of the parties. Among the psychic factors possibly giving rise to his or her inability to fulfill

marital obligations are the following: (1) antisocial personality with its fundamental lack of loyalty to
persons or sense of moral values; (2) hyperesthesia, where the individual has no real freedom of sexual
choice; (3) the inadequate personality where personal responses consistently fall short of reasonable
expectations.
xxxx
The psychological grounds are the best approach for anyone who doubts whether he or she has a case
for an annulment on any other terms. A situation that does not fit into any of the more traditional
categories often fits very easily into the psychological category.
As new as the psychological grounds are, experts are already detecting a shift in their use. Whereas
originally the emphasis was on the parties inability to exercise proper judgment at the time of the
marriage (lack of due discretion), recent cases seem to be concentrating on the parties incapacity to
assume or carry out their responsibilities and obligations as promised (lack of due competence). An
advantage to using the ground of lack of due competence is that at the time the marriage was entered
into civil divorce and breakup of the family almost always is proof of someones failure to carry out marital
responsibilities as promised at the time the marriage was entered into.
Hernandez v. Court of Appeals emphasizes the importance of presenting expert testimony to establish
the precise cause of a partys psychological incapacity, and to show that it existed at the inception of the
marriage. And as Marcos v. Marcos asserts, there is no requirement that the person to be declared
psychologically incapacitated be personally examined by a physician, if the totality of evidence presented
is enough to sustain a finding of psychological incapacity. Verily, the evidence must show a link, medical or
the like, between the acts that manifest psychological incapacity and the psychological disorder itself.
This is not to mention, but we mention nevertheless for emphasis, that the presentation of expert proof
presupposes a thorough and in-depth assessment of the parties by the psychologist or expert, for a
conclusive diagnosis of a grave, severe and incurable presence of psychological incapacity.
33

Ngo Te also emphasized that in light of the unintended consequences of strictly applying the
standards set inMolina,34 the courts should consider the totality of evidence in adjudicating
petitions for declaration of nullity of marriage under Article 36 of the Family Code, viz.:
The resiliency with which the concept should be applied and the case-to-case basis by which the
provision should be interpreted, as so intended by its framers, had, somehow, been rendered ineffectual by
the imposition of a set of strict standards in Molina, thus:
xxxx
Noteworthy is that in Molina, while the majority of the Courts membership concurred in
the ponencia of then Associate Justice (later Chief Justice) Artemio V. Panganiban, three justices
concurred in the result and another three including, as aforesaid, Justice Romero took pains to
compose their individual separate opinions. Then Justice Teodoro R. Padilla even emphasized that each
case must be judged, not on the basis of a prioriassumptions, predilections or generalizations, but
according to its own facts. In the field of psychological incapacity as a ground for annulment of marriage,
it is trite to say that no case is on all fours with another case. The trial judge must take pains in
examining the factual milieu and the appellate court must, as much as possible, avoid substituting its
own judgment for that of the trial court.

Predictably, however, in resolving subsequent cases, the Court has applied the aforesaid standards,
without too much regard for the laws clear intention that each case is to be treated differently, as
courts should interpret the provision on a case-to-case basis; guided by experience, the findings of experts
and researchers in psychological disciplines, and by decisions of church tribunals.
In hindsight, it may have been inappropriate for the Court to impose a rigid set of rules, as the one
in Molina, in resolving all cases of psychological incapacity. Understandably, the Court was then alarmed
by the deluge of petitions for the dissolution of marital bonds, and was sensitive to the OSGs exaggeration
of Article 36 as the most liberal divorce procedure in the world. The unintended consequences of Molina,
however, has taken its toll on people who have to live with deviant behavior, moral insanity and
sociopathic personality anomaly, which, like termites, consume little by little the very foundation of their
families, our basic social institutions. Far from what was intended by the Court, Molina has become a
straitjacket, forcing all sizes to fit into and be bound by it. Wittingly or unwittingly, the Court, in
conveniently applying Molina, has allowed diagnosed sociopaths, schizophrenics, nymphomaniacs,
narcissists and the like, to continuously debase and pervert the sanctity of marriage. Ironically, the
Roman Rota has annulled marriages on account of the personality disorders of the said individuals.
The Court need not worry about the possible abuse of the remedy provided by Article 36, for there are
ample safeguards against this contingency, among which is the intervention by the State, through the
public prosecutor, to guard against collusion between the parties and/or fabrication of evidence. The Court
should rather be alarmed by the rising number of cases involving marital abuse, child abuse, domestic
violence and incestuous rape.
In dissolving marital bonds on account of either partys psychological incapacity, the Court is not
demolishing the foundation of families, but it is actually protecting the sanctity of marriage, because it
refuses to allow a person afflicted with a psychological disorder, who cannot comply with or assume the
essential marital obligations, from remaining in that sacred bond. It may be stressed that the infliction of
physical violence, constitutional indolence or laziness, drug dependence or addiction, and psychosexual
anomaly are manifestations of a sociopathic personality anomaly. Let it be noted that in Article 36, there
is no marriage to speak of in the first place, as the same is void from the very beginning. To indulge in
imagery, the declaration of nullity under Article 36 will simply provide a decent burial to a stillborn
marriage.
xxxx
Lest it be misunderstood, we are not suggesting the abandonment of Molina in this case. We simply
declare that, as aptly stated by Justice Dante O. Tinga in Antonio v. Reyes, there is need to emphasize
other perspectives as well which should govern the disposition of petitions for declaration of nullity under
Article 36. At the risk of being redundant, we reiterate once more the principle that each case must be
judged, not on the basis of a prioriassumptions, predilections or generalizations but according to its own
facts. And, to repeat for emphasis, courts should interpret the provision on a case-to-case basis; guided by
experience, the findings of experts and researchers in psychological disciplines, and by decisions of church
tribunals.
35

III
In the decision of September 19, 2011, the Court declared as follows:

Respondent admittedly played mahjong, but it was not proven that she engaged in mahjong so
frequently that she neglected her duties as a mother and a wife. Respondent refuted petitioners
allegations that she played four to five times a week.She maintained it was only two to three times a
week and always with the permission of her husband and without abandoning her children at
home. The children corroborated this, saying that they were with their mother when she
played mahjong in their relatives home. Petitioner did not present any proof, other than his own
testimony, that themahjong sessions were so frequent that respondent neglected her family. While he
intimated that two of his sons repeated the second grade, he was not able to link this episode to
respondents mahjong-playing. The least that could have been done was to prove the frequency of
respondents mahjong-playing during the years when these two children were in second grade. This was
not done. Thus, while there is no dispute that respondent played mahjong, its alleged debilitating
frequency and adverse effect on the children were not proven. (Emphasis supplied)
36

The frequency of the respondents mahjong playing should not have delimited our
determination of the presence or absence of psychological incapacity. Instead, the determinant
should be her obvious failure to fully appreciate the duties and responsibilities of parenthood at
the time she made her marital vows. Had she fully appreciated such duties and responsibilities,
she would have known that bringing along her children of very tender ages to
her mahjong sessions would expose them to a culture of gambling and other vices that would
erode their moral fiber.
Nonetheless, the long term effects of the respondents obsessive mahjong playing surely
impacted on her family life, particularly on her very young children. We do find to be revealing
the disclosures made by Valerio Teodoro Kalaw37 the parties eldest son in his deposition,
whereby the son confirmed the claim of his father that his mother had been hooked on
playing mahjong, viz.:
ATTY. PISON: From the timebefore your parents separation, do you remember any habit or activity
or practice which your mother engaged in, before the separation?
WITNESS: Yeah, habit? She was a heavy smoker and she likes to play mahjong a lot, and I cant
remember.
xxxx
ATTY. PISON: You said that your mother played mahjongfrequently. How frequent, do you remember?
WITNESS : Not really, but it was a lot. Not actually, I cant, I cant
ATTY. PISON: How long would she stay playing mahjong say one session?
WITNESS : Really long cuz we would go to my aunts house in White Plains and I think we would get
there by lunch then leave, we fall asleep. I think it was like one in the morning.
ATTY. PISON: You, you went there? She brought you?
WITNESS : Yeah, to play with my cousins, yeah and my brothers & sisters.
ATTY. PISON: Were you brought all the time?
WITNESS: Yeah, almost all the time but sometimes, I guess shed go out by herself.
38

The fact that the respondent brought her children with her to her mahjong sessions did not
only point to her neglect of parental duties, but also manifested her tendency to expose them to a

culture of gambling. Her willfully exposing her children to the culture of gambling on every
occasion of her mahjong sessions was a very grave and serious act of subordinating their needs
for parenting to the gratification of her own personal and escapist desires. This was the
observation of Father Healy himself. In that regard, Dr. Gates and Dr. Dayan both explained that
the current psychological state of the respondent had been rooted on her own childhood
experience.
The respondent revealed her wanton disregard for her childrens moral and mental
development. This disregard violated her duty as a parent to safeguard and protect her children,
as expressly defined under Article 209 and Article 220 of the Family Code, to wit:
Pursuant to the natural right and duty of parents over the person and property of their unemancipated
children,209.Articleparental authority and responsibility shall include the caring for and
rearing of such children for civic consciousness and efficiency and the development of their moral,
mental and physical character and well-being.
The parents and those exercising parental authority shall have with respect to their unemancipated
children or wards the following rights and duties:220.Article
(1)To keep them in their company, to support, educate and instruct them by right precept
and good example, and to provide for their upbringing in keeping with their means;
x x x x(2)
(3)To provide them with moral and spiritual guidance, inculcate in them honesty, integrity,
self-discipline, self-reliance, industry and thrift, stimulate their interest in civic affairs, and inspire in
them compliance with the duties of citizenship;
(4)To enhance, protect, preserve and maintain their physical and mental health at all
times;
To furnish them with good and wholesome educational materials, supervise their activities, recreation
and association with others,(5) protect them from bad company, and prevent them from
acquiring habits detrimental to their health, studies and morals;
x x x x(6)
x x x x(7)
x x x x(8)
x x x x (emphasis supplied)(9)

The September 19, 2011 decision did not properly take into consideration the findings of the
RTC to the effect that both the petitioner and the respondent had been psychologically
incapacitated, and thus could not assume the essential obligations of marriage. The RTC would
not have found so without the allegation to that effect by the respondent in her answer, 39 whereby
she averred that it was not she but the petitioner who had suffered from psychological incapacity.
The allegation of the petitioners psychological incapacity was substantiated by Dr. Dayan, as
follows:
ATTY. BRETAA:
Q: You stated earlier that both parties were behaviorally immature?

A: Yes, sir.
Q: And that the marriage was a mistake?
A: Yes, sir.
Q: What is your basis for your statement that respondent was behaviorally immature?
A: Sir, for the reason that even before the marriage Malyn had noticed already some of those short
temper of the petitioner but she was very much in love and so she lived in with him and even the time
that they were together, that they were living in, she also had noticed some of his psychological deficits if
we may say so. But as I said, because she is also dependent and she was one who determined to make the
relationship work, she was denying even those kinds of problems that she had seen.
Q: To make it clear, Madam witness, Im talking here of the petitioner, Mr. Kalaw. What led you to
conclude that Mr. Kalaw was behaviorally immature?
A: I think he also mentioned that his concept of marriage was not duly stable then. He was not really
thinking of marriage except that his wife got pregnant and so he thought that he had to marry her. And
even that time he was not also a monogamous person.
Q: Are you saying, Madam Witness, that ultimately the decision to marry lied on the petitioner?
A: I think so, Sir.
Q: Now, in your report, Madam Witness, you mentioned here that the petitioner admitted to you that
in his younger years he was often out seeking other women. Im referring specifically to page 18. He also
admitted to you that the thought of commitment scared him, the petitioner. Now, given these admissions
by petitioner to you, my questions is, is it possible for such a person to enter into marriage despite this
fear of commitment and given his admission that he was a womanizer? Is it possible for this person to
stop his womanizing ways during the marriage?
A: Sir, its difficult.
Q: It would be difficult for that person?
A: Yes, Sir.
Q: What is the probability of this person giving up his womanizing after marriage?
A: Sir, I would say the probability of his giving up is almost only 20%.
Q: So, it is entirely possible that the respondent womanized during his marriage with the respondent?
A: Yes, Sir.
Q: What is the bearing of this fear of commitment on the part of the petitioner insofar as his
psychological capacity to perform his duties as a husband is concerned?
A: Sir, it would impair his ability to have sexual integrity and also to be fully committed to the role of
husband to Malyn.
Q: Madam Witness, you never directly answered my question on whether the petitioner was
psychologically incapacitated to perform his duty as a husband. You only said that the petitioner was
behaviorally immature and that the marriage was a mistake. Now, may I asked [sic] you that question
again and request you to answer that directly?
A: Sir, he is psychologically incapacitated.
40

Although the petitioner, as the plaintiff, carried the burden to prove the nullity of the
marriage, the respondent, as the defendant spouse, could establish the psychological incapacity
of her husband because she raised the matter in her answer. The courts are justified in declaring

a marriage null and void under Article 36 of the Family Code regardless of whether it is the
petitioner or the respondent who imputes the psychological incapacity to the other as long as the
imputation is fully substantiated with proof. Indeed, psychological incapacity may exist in one
party alone or in both of them, and if psychological incapacity of either or both is established, the
marriage has to be deemed null and void.
More than twenty (20) years had passed since the parties parted ways. By now, they must
have already accepted and come to terms with the awful truth that their marriage, assuming it
existed in the eyes of the law, was already beyond repair. Both parties had inflicted so much
damage not only to themselves, but also to the lives and psyche of their own children. It would be
a greater injustice should we insist on still recognizing their void marriage, and then force them
and their children to endure some more damage. This was the very same injustice that Justice
Romero decried in her erudite dissenting opinion in Santos v. Court of Appeals:41
It would be great injustice, I believe, to petitioner for this Court to give a much too restrictive
interpretation of the law and compel the petitioner to continue to be married to a wife who for purposes of
fulfilling her marital duties has, for all practical purposes, ceased to exist.
Besides, there are public policy considerations involved in the ruling the Court makes today. It is not,
in effect, directly or indirectly, facilitating the transformation of petitioner into a habitual tryster or one
forced to maintain illicit relations with another woman or women with emerging problems of illegitimate
children, simply because he is denied by private respondent, his wife, the companionship and conjugal
love which he has sought from her and to which he is legally entitled?
I do not go as far as to suggest that Art. 36 of the Family Code is a sanction for absolute divorce but I
submit that we should not constrict it to nonrecognition of its evident purpose and thus deny to one like
petitioner, an opportunity to turn a new leaf in his life by declaring his marriage a nullity by reason of his
wifes psychological incapacity to perform an essential marital obligation.

In this case, the marriage never existed from the beginning because the respondent was
afflicted with psychological incapacity at and prior to the time of the marriage. Hence, the Court
should not hesitate to declare the nullity of the marriage between the parties.
To stress, our mandate to protect the inviolability of marriage as the basic foundation of our
society does not preclude striking down a marital union that is ill-equipped to promote family
life, thus:
Now is also the opportune time to comment on another common legal guide utilized in the adjudication
of petitions for declaration of nullity in the adjudication of petitions for declaration of nullity under Article
36. All too frequently, this Court and lower courts, in denying petitions of the kind, have favorably cited
Sections 1 and 2, Article XV of the Constitution, which respectively state that [t]he State recognizes the
Filipino family as the foundation of the nation. Accordingly, it shall strengthen its solidarity and actively
promote its total development[t], and that [m]arriage, as an inviolable social institution, is the
foundation of the family and shall be protected by the State. These provisions highlight the importance of
the family and the constitutional protection accorded to the institution of marriage.
But the Constitution itself does not establish the parameters of state protection to marriage as a social
institution and the foundation of the family. It remains the province of the legislature to define all legal

aspects of marriage and prescribe the strategy and the modalities to protect it, based on whatever sociopolitical influences it deems proper, and subject of course to the qualification that such legislative
enactment itself adheres to the Constitution and the Bill of Rights. This being the case, it also falls on the
legislature to put into operation the constitutional provisions that protect marriage and the family. This
has been accomplished at present through the enactment of the Family Code, which defines marriage and
the family, spells out the corresponding legal effects, imposes the limitations that affect married and
family life, as well as prescribes the grounds for declaration of nullity and those for legal separation.
While it may appear that the judicial denial of a petition for declaration of nullity is reflective of the
constitutional mandate to protect marriage, such action in fact merely enforces a statutory definition of
marriage, not a constitutionally ordained decree of what marriage is. Indeed, if circumstances warrant,
Sections 1 and 2 of Article XV need not be the only constitutional considerations to be taken into account
in resolving a petition for declaration of nullity.
Indeed, Article 36 of the Family Code, in classifying marriages contracted by a psychologically
incapacitated person as a nullity, should be deemed as an implement of this constitutional protection of
marriage. Given the avowed State interest in promoting marriage as the foundation of the
family, which in turn serves as the foundation of the nation, there is a corresponding interest
for the State to defend against marriages ill-equipped to promote family life. Void ab
initiomarriages under Article 36 do not further the initiatives of the State concerning
marriage and family, as they promote wedlock among persons who, for reasons independent of
their will, are not capacitated to understand or comply with the essential obligations of
marriage. (Emphasis supplied)
42

WHEREFORE, the Court GRANTS the Motion for Reconsideration; REVERSES and SETS
ASIDE the decision promulgated on September 19, 2011; andREINSTATES the decision
rendered by the Regional Trial Court declaring the marriage between the petitioner and the
respondent on November 4, 1976 as NULL AND VOID AB INITIO due to the psychological
incapacity of the parties pursuant to Article 36 of the Family Code.
No pronouncement on costs of suit.
SO ORDERED.
Leonardo-De Castro (Chairperson), Perez** andLeonen,*** JJ., concur.
Del Castillo, J., See Dissenting Opinion.

December 10, 2013.G.R. No. 184621.*

REPUBLIC
respondent.
BRION,J.:

OF

THE

PHILIPPINES,

petitioner, vs.MARIA

FE

ESPINOSA

CANTOR,

The petition for review on certiorari1 before us assails the decision2 dated August 27, 2008 of
the Court of Appeals (CA) in CA-G.R. SP No. 01558-MIN which affirmed the order 3 dated
December 15, 2006 of the Regional Trial Court (RTC), Branch 25, Koronadal City, South
Cotabato, in SP Proc. Case No. 313-25, declaring Jerry F. Cantor, respondent Maria Fe Espinosa
Cantors husband, presumptively dead under Article 41 of the Family Code.
The Factual Antecedents
The respondent and Jerry were married on September 20, 1997. They lived together as
husband and wife in their conjugal dwelling in Agan Homes, Koronadal City, South Cotabato.
Sometime in January 1998, the couple had a violent quarrel brought about by: (1) the
respondents inability to reach sexual climax whenever she and Jerry would have intimate
moments; and (2) Jerrys expression of animosity toward the respondents father.
After their quarrel, Jerry left their conjugal dwelling and this was the last time that the
respondent ever saw him. Since then, she had not seen, communicated nor heard anything from
Jerry or about his whereabouts.
On May 21, 2002, or more than four (4) years from the time of Jerrys disappearance, the
respondent filed before the RTC a petition4 for her husbands declaration of presumptive death,
docketed as SP Proc. Case No. 313-25. She claimed that she had a well-founded belief that Jerry
was already dead. She alleged that she had inquired from her mother-in-law, her brothers-in-law,
her sisters-in-law, as well as her neighbors and friends, but to no avail. In the hopes of finding
Jerry, she also allegedly made it a point to check the patients directory whenever she went to a
hospital. All these earnest efforts, the respondent claimed, proved futile, prompting her to file the
petition in court.
The Ruling of the RTC
After due proceedings, the RTC issued an order granting the respondents petition and
declaring Jerry presumptively dead. It concluded that the respondent had a well-founded belief
that her husband was already dead since more than four (4) years had passed without the former
receiving any news about the latter or his whereabouts. The dispositive portion of the order
dated December 15, 2006 reads:
WHEREFORE, the Court hereby declares, as it hereby declared that respondent Jerry F. Cantor is
presumptively dead pursuant to Article 41 of the Family Code of the Philippines without prejudice to the
effect of the reappearance of the absent spouse Jerry F. Cantor.
5

The Ruling of the CA

The case reached the CA through a petition forcertiorari6 filed by the petitioner, Republic of
the Philippines, through the Office of the Solicitor General (OSG). In its August 27, 2008
decision, the CA dismissed the petitioners petition, finding no grave abuse of discretion on the
RTCs part, and, accordingly, fully affirmed the latters order, thus:
WHEREFORE, premises foregoing (sic), the instant petition is hereby DISMISSED and the assailed
Order dated December 15, 2006 declaring Jerry F. Cantor presumptively dead is hereby AFFIRMED in
toto.
7

The petitioner brought the matter via a Rule 45 petition before this Court.
The Petition
The petitioner contends that certiorari lies to challenge the decisions, judgments or final
orders of trial courts in petitions for declaration of presumptive death of an absent spouse under
Rule 41 of the Family Code. It maintains that although judgments of trial courts in summary
judicial proceedings, including presumptive death cases, are deemed immediately final and
executory (hence, not appealable under Article 247 of the Family Code), this rule does not mean
that they are not subject to review on certiorari.
The petitioner also posits that the respondent did not have a well-founded belief to justify the
declaration of her husbands presumptive death. It claims that the respondent failed to conduct
the requisite diligent search for her missing husband. Likewise, the petitioner invites this
Courts attention to the attendant circumstances surrounding the case, particularly, the degree
of search conducted and the respondents resultant failure to meet the strict standard under
Article 41 of the Family Code.
The Issues
The petition poses to us the following issues:
Whether(1) certiorari lies to challenge the decisions, judgments or final orders of trial courts
in petitions for declaration of presumptive death of an absent spouse under Article 41 of the
Family Code; and
Whether the respondent had a well-founded belief that Jerry is already dead.(2)

We grant the petition.

The Courts Ruling

On the Issue of the Propriety of Certiorari as a Remedya.

Courts Judgment in the Judicial
Proceedings for Declaration of
Presumptive Death Is Final and
Executory, Hence, Unappealable
The Family Code was explicit that the courts judgment in summary proceedings, such as the
declaration of presumptive death of an absent spouse under Article 41 of the Family Code, shall
be immediately final and executory.
Article 41, in relation to Article 247, of the Family Code provides:
A marriage contracted by any person during subsistence of a previous marriage shall be null and void,
unless before the celebration of the subsequent marriage,41.Art. the prior spouse had been absent for
four consecutive years and the spouse present has a well-founded belief that the absent spouse was

already dead. In case of disappearance where there is danger of death under the circumstances set forth
in the provisions of Article 391 of the Civil Code, an absence of only two years shall be sufficient.
For the purpose of contracting the subsequent marriage under the preceding paragraph the spouse
present must institute asummary proceeding as provided in this Code for the declaration of presumptive
death of the ab15sentee, without prejudice to the effect of reappearance of the absent spouse.
The judgment of the court247.Art. shall be immediately final and executory. [underscores ours]

With the judgment being final, it necessarily follows that it is no longer subject to an appeal,
the dispositions and conclusions therein having become immutable and unalterable not only as
against the parties but even as against the courts.8 Modification of the courts ruling, no matter
how erroneous is no longer permissible. The final and executory nature of this summary
proceeding thus prohibits the resort to appeal. As explained in Republic of the Phils. v.
Bermudez-Lorino,9 the right to appeal is not granted to parties because of the express mandate of
Article 247 of the Family Code, to wit:
In Summary Judicial Proceedings under the Family Code, there is no reglementary period
within which to perfect an appeal, precisely because judgments rendered thereunder, by
express provision of [Article] 247, Family Code, supra, are immediately final and
executory. It was erroneous, therefore, on the part of the RTC to give due course to the Republics
appeal and order the transmittal of the entire records of the case to the Court of Appeals.
An appellate court acquires no jurisdiction to review a judgment which, by express
provision of law, is immediately final and executory. As we have said in Veloria vs. Comelec, the
right to appeal is not a natural right nor is it a part of due process, for it is merely a statutory
privilege. Since, by express mandate of Article 247 of the Family Code, all judgments rendered
in summary judicial proceedings in Family Law are immediately final and executory, the
right to appeal was not granted to any of the parties therein. The Republic of the Philippines, as
oppositor in the petition for declaration of presumptive death, should not be treated differently. It had no
right to appeal the RTC decision of November 7, 2001. [emphases ours; italics supplied]

Certiorari Lies to Challenge the

Decisions, Judgments or Final
Orders of Trial Courts in a Summary Proceeding for the Declaration of Presumptive Death Under
the Family Code
A losing party in this proceeding, however, is not entirely left without a remedy. While
jurisprudence tells us that no appeal can be made from the trial courts judgment, an aggrieved
party may, nevertheless, file a petition forcertiorari under Rule 65 of the Rules of Court to
question any abuse of discretion amounting to lack or excess of jurisdiction that transpired.
As held in De los Santos v. Rodriguez, et al.,10 the fact that a decision has become final does not
automatically negate the original action of the CA to issue certiorari, prohibition and mandamus
in connection with orders or processes issued by the trial court. Certiorari may be availed of
where a court has acted without or in excess of jurisdiction or with grave abuse of discretion, and

where the ordinary remedy of appeal is not available. Such a procedure finds support in the case
of Republic v. Tango,11 wherein we held that:
This case presents an opportunity for us to settle the rule on appeal of judgments rendered in
summary proceedings under the Family Code and accordingly, refine our previous decisions thereon.
Article 238 of the Family Code, under Title XI: SUMMARY JUDICIAL PROCEEDINGS IN THE
FAMILY LAW, establishes the rules that govern summary court proceedings in the Family Code:
Until modified by the Supreme Court, the procedural rules in this Title shall apply in all cases
provided for in this Code requiring summary court proceedings. Such cases shall be decided in an
expeditious manner without regard to technical rules.238.ART.
In turn, Article 253 of the Family Code specifies the cases covered by the rules in chapters two and
three of the same title. It states:
The foregoing rules in Chapters253.ART. 2 and 3 hereof shall likewise govern summary
proceedings filed under Articles41, 51, 69, 73, 96, 124 and 217, insofar as they are applicable.
(Emphasis supplied.)
In plain text, Article 247 in Chapter 2 of the same title reads:
The judgment of the court shall be immediately final and executory.247.ART.
By express provision of law, the judgment of the court in a summary proceeding shall be immediately
final and executory. As a matter of course, it follows that no appeal can be had of the trial courts
judgment in a summary proceeding for the declaration of presumptive death of an absent spouse under
Article 41 of the Family Code. It goes without saying, however, that an aggrieved party may file a
petition for certiorari to question abuse of discretion amounting to lack of jurisdiction. Such
petition should be filed in the Court of Appeals in accordance with the Doctrine of Hierarchy
of Courts. To be sure, even if the Courts original jurisdiction to issue a writ ofcertiorari is concurrent
with the RTCs and the Court of Appeals in certain cases, such concurrence does not sanction an
unrestricted freedom of choice of court forum. [emphasis ours]

Viewed in this light, we find that the petitioners resort tocertiorari under Rule 65 of the Rules
of Court to question the RTCs order declaring Jerry presumptively dead was proper.
On the Issue of the Existence of Well-Founded Beliefb.
The Essential Requisites for the
Declaration of Presumptive Death
Under Article 41 of the Family Code
Before a judicial declaration of presumptive death can be obtained, it must be shown that the
prior spouse had been absent for four consecutive years and the present spouse had a wellfounded belief that the prior spouse was already dead. Under Article 41 of the Family Code, there
are four (4) essential requisites for the declaration of presumptive death:
1. That the absent spouse has been missing for four consecutive years, or two consecutive years if the
disappearance occurred where there is danger of death under the circumstances laid down in Article
391, Civil Code;
2. That the present spouse wishes to remarry;
3. That the present spouse has a well-founded belief that the absentee is dead; and

4. That the present spouse files a summary proceeding for the declaration of presumptive death of the
absentee.
12

The Present Spouse Has the Burden of Proof to Show that All the
Requisites Under Article 41 of the
Family Code Are Present
The burden of proof rests on the present spouse to show that all the requisites under Article
41 of the Family Code are present. Since it is the present spouse who, for purposes of declaration
of presumptive death, substantially asserts the affirmative of the issue, it stands to reason that
the burden of proof lies with him/her. He who alleges a fact has the burden of proving it and mere
allegation is not evidence.13
Declaration of Presumptive Death
Under Article 41 of the Family Code
Imposes a Stricter Standard
Notably, Article 41 of the Family Code, compared to the old provision of the Civil Code which it
superseded, imposes a stricter standard. It requires a well-founded belief that the absentee
is already dead before a petition for declaration of presumptive death can be granted. We have
had occasion to make the same observation in Republic v. Nolasco,14where we noted the crucial
differences between Article 41 of the Family Code and Article 83 of the Civil Code, to wit:
Under Article 41, the time required for the presumption to arise has been shortened to four (4) years;
however, there is need for a judicial declaration of presumptive death to enable the spouse present to
remarry. Also, Article 41 of the Family Code imposes astricter standard than the Civil Code: Article 83
of the Civil Code merely requires either that there be no news that such absentee is still alive; or the
absentee is generally considered to be dead and believed to be so by the spouse present, or is presumed
dead under Articles 390 and 391 of the Civil Code. The Family Code, upon the other hand,
prescribes as well founded belief that the absentee is already dead before a petition for
declaration of presumptive death can be granted.

Thus, mere absence of the spouse (even for such period required by the law), lack of any news
that such absentee is still alive, failure to communicate or general presumption of absence under
the Civil Code would not suffice. This conclusion proceeds from the premise that Article 41 of the
Family Code places upon the present spouse the burden of proving the additional and more
stringent requirement of well-founded belief which can only be discharged upon a showing of
proper and honest-to-goodness inquiries and efforts to ascertain not only the absent spouses
whereabouts but, more importantly, that the absent spouse is still alive or is already dead. 15
The Requirement of WellFounded Belief
The law did not define what is meant by well-founded belief. It depends upon the
circumstances of each particular case. Its determination, so to speak, remains on a case-to-case
basis. To be able to comply with this requirement, the present spouse must prove that his/her

belief was the result of diligent and reasonable efforts and inquiries to locate the absent
spouse and that based on these efforts and inquiries, he/she believes that under the
circumstances, the absent spouse is already dead. It requires exertion of active effort (not a
mere passive one).

To illustrate this degree of diligent and reasonable search required by the law, an analysis of
the following relevant cases is warranted:
i.

Republic of the Philippines v.

Court of Appeals (Tenth Div.)16

In Republic of the Philippines v. Court of Appeals (Tenth Div.),17 the Court ruled that the
present spouse failed to prove that he had a well-founded belief that his absent spouse was
already dead before he filed his petition. His efforts to locate his absent wife allegedly consisted
of the following:
(1) He went to his in-laws house to look for her;
(2) He sought the barangay captains aid to locate her;
(3) He went to her friends houses to find her and inquired about her whereabouts among his
friends;
(4) He went to Manila and worked as a part-time taxi driver to look for her in malls during his
free time;
(5) He went back to Catbalogan and again looked for her; and
(6) He reported her disappearance to the local police station and to the NBI.
Despite these alleged earnest efforts, the Court still ruled against the present spouse. The
Court found that he failed to present the persons from whom he allegedly made inquiries and
only reported his wifes absence after the OSG filed its notice to dismiss his petition in the RTC.
The Court also provided the following criteria for determining the existence of a well-founded
belief under Article 41 of the Family Code:
The belief of the present spouse must be the result of proper and honest to goodness inquiries
and efforts to ascertain the whereabouts of the absent spouse and whether the absent spouse
is still alive or is already dead. Whether or not the spouse present acted on a well-founded belief of
death of the absent spouse depends upon the inquiries to be drawn from a great many circumstances
occurring before and after the disappearance of the absent spouse and the nature and extent of the
inquiries made by [the] present spouse.

18

ii.Republic v. Granada19
Similarly in Granada, the Court ruled that the absent spouse failed to prove her well-founded
belief that her absent spouse was already dead prior to her filing of the petition. In this case, the
present spouse alleged that her brother had made inquiries from their relatives regarding the
absent spouses whereabouts. The present spouse did not report to the police nor seek the aid of
the mass media. Applying the standards in Republic of the Philippines v. Court of Appeals (Tenth
Div.),20 the Court ruled against the present spouse, as follows:

Applying the foregoing standards to the present case, petitioner points out that respondent Yolanda
did not initiate a diligent search to locate her absent husband. While her brother Diosdado
Cadacio testified to having inquired about the whereabouts of Cyrus from the latters
relatives, these relatives were not presented to corroborate Diosdados testimony. In short,
respondent was allegedly not diligent in her search for her husband. Petitioner argues that if she were,
she would have sought information from the Taiwanese Consular Office or assistance from other
government agencies in Taiwan or the Philippines. She could have also utilized mass media for this end,
but she did not. Worse, she failed to explain these omissions.

iii.Republic v. Nolasco21
In Nolasco, the present spouse filed a petition for declaration of presumptive death of his wife,
who had been missing for more than four years. He testified that his efforts to find her consisted
of:
(1) Searching for her whenever his ship docked in England;
(2) Sending her letters which were all returned to him; and
(3) Inquiring from their friends regarding her whereabouts, which all proved fruitless.
The Court ruled that the present spouses investigations were too sketchy to form a basis that
his wife was already dead and ruled that the pieces of evidence only proved that his wife had
chosen not to communicate with their common acquaintances, and not that she was dead.
iv.The present case
In the case at bar, the respondents well-founded belief was anchored on her alleged earnest
efforts to locate Jerry, which consisted of the following:
(1) She made inquiries about Jerrys whereabouts from her in-laws, neighbors and friends; and
(2) Whenever she went to a hospital, she saw to it that she looked through the patients
directory, hoping to find Jerry.
These efforts, however, fell short of the stringent standard and degree of diligence required
by jurisprudence for the following reasons:
First, the respondent did not actively look for her missing husband. It can be inferred from
the records that her hospital visits and her consequent checking of the patients directory therein
were unintentional. She did not purposely undertake a diligent search for her husband as her
hospital visits were not planned nor primarily directed to look for him. This Court thus considers
these attempts insufficient to engender a belief that her husband is dead.
Second, she did not report Jerrys absence to the police nor did she seek the aid of the
authorities to look for him. While a finding of well-founded belief varies with the nature of the
situation in which the present spouse is placed, under present conditions, we find it proper and
prudent for a present spouse, whose spouse had been missing, to seek the aid of the authorities
or, at the very least, report his/her absence to the police.
Third, she did not present as witnesses Jerrys relatives or their neighbors and friends, who
can corroborate her efforts to locate Jerry. Worse, these persons, from whom she allegedly made

inquiries, were not even named. As held inNolasco, the present spouses bare assertion that he
inquired from his friends about his absent spouses whereabouts is insufficient as the names of
the friends from whom he made inquiries were not identified in the testimony nor presented as
witnesses.
Lastly, there was no other corroborative evidence to support the respondents claim that she
conducted a diligent search. Neither was there supporting evidence proving that she had a wellfounded belief other than her bare claims that she inquired from her friends and in-laws about
her husbands whereabouts.
In sum, the Court is of the view that the respondent merely engaged in a passive search
where she relied on uncorroborated inquiries from her in-laws, neighbors and friends. She
failed to conduct a diligent searchbecause her alleged efforts are insufficient to form a wellfounded belief that her husband was already dead. As held in Republic of the Philip25pines v. Court of Appeals (Tenth Div.),22 [w]hether or not the spouse present acted on a wellfounded belief of death of the absent spouse depends upon the inquiries to be drawn from a great
many circumstances occurring before and after the disappearance of the absent spouse and the
nature and extent of the inquiries made by [the] present spouse.
Strict Standard Approach Is
Consistent with the States Policy to
Protect and Strengthen Marriage
In the above-cited cases, the Court, fully aware of the possible collusion of spouses in
nullifying their marriage, has consistently applied the strict standard approach. This is to
ensure that a petition for declaration of presumptive death under Article 41 of the Family Code is
not used as a tool to conveniently circumvent the laws. Courts should never allow procedural
shortcuts and should ensure that the stricter standard required by the Family Code is met.
InRepublic of the Philippines v. Court of Appeals (Tenth Div.),23 we emphasized that:
In view of the summary nature of proceedings under Article 41 of the Family Code for the declaration
of presumptive death of ones spouse, the degree of due diligence set by this Honorable Court in
the above-mentioned cases in locating the whereabouts of a missing spouse must be strictly
complied with. There have been times when Article 41 of the Family Code had been resorted to by
parties wishing to remarry knowing fully well that their alleged missing spouses are alive and well. It is
even possible that those who cannot have their marriages xxx declarednull and void under Article 36 of
the Family Code resort to Article 41 of the Family Code for relief because of the xxx summary nature of its
proceedings.

The application of this stricter standard becomes even more imperative if we consider the
States policy to protect and strengthen the institution of marriage.24 Since marriage serves as
the familys foundation25 and since it is the states policy to protect and strengthen the family as a
basic social institution,26 marriage should not be permitted to be dissolved at the whim of the
parties. In interpreting and applying Article 41, this is the underlying rationale to uphold the
sanctity of marriage. Arroyo, Jr. v. Court of Appeals27 reflected this sentiment when we stressed:

[The] protection of the basic social institutions of marriage and the family in the preservation of which
the State has the strongest interest; the public policy here involved is of the most fundamental kind. In
Article II, Section 12 of the Constitution there is set forth the following basic state policy:
The State recognizes the sanctity of family life and shall protect and strengthen the family as a
basic autonomous social institution.

Strict Standard Prescribed Under

Article 41 of the Family Code Is for
the Present Spouses Benefit
The requisite judicial declaration of presumptive death of the absent spouse (and
consequently, the application of a stringent standard for its issuance) is also for the present
spouses benefit. It is intended to protect him/her from a criminal prosecution of bigamy under
Article 349 of the Revised Penal Code which might come into play if he/she would prematurely
remarry sans the courts declaration.
Upon the issuance of the decision declaring his/her absent spouse presumptively dead, the
present spouses good faith in contracting a second marriage is effectively established. The
decision of the competent court constitutes sufficient proof of his/her good faith and his/her
criminal intent in case of remarriage is effectively negated.28 Thus, for purposes of remarriage, it
is necessary to strictly comply with the stringent standard and have the absent spouse judicially
declared presumptively dead.
Final Word
As a final word, it has not escaped this Courts attention that the strict standard required in
petitions for declaration of presumptive death has not been fully observed by the lower courts. We
need only to cite the instances when this Court, on review, has consistently ruled on the sanctity
of marriage and reiterated that anything less than the use of the strict standard necessitates a
denial. To rectify this situation, lower courts are now expressly put on notice of the strict
standard this Court requires in cases under Article 41 ofthe Family Code.
WHEREFORE, in view of the foregoing, the assailed decision dated August 27, 2008 of the
Court of Appeals, which affirmed the order dated December 15, 2006 of the Regional Trial Court,
Branch 25, Koronadal City, South Cotabato, declaring Jerry F. Cantor presumptively dead is
hereby REVERSED and SET ASIDE.
SO ORDERED.

July 29, 2015.G.R. No. 210929.*

REPUBLIC
respondent.

OF

THE

PHILIPPINES,

petitioner, vs. EDNA

ORCELINO-VILLANUEVA,

In this petition for review on certiorari under Rule 45 of the Rules of Court, the Office of the
Solicitor General (OSG), on behalf of the Republic of the Philippines, assails the October 18, 2013
Decision1 and the January 8, 2014 Resolution2 of the Court of Appeals (CA), in C.A.-G.R. S.P. No.
03768-MIN, which affirmed the October 8, 2009 Judgment3 of the Regional Trial Court, Branch
10, Malaybalay City, Bukidnon (RTC), in SP Proc. Case No. 3316-09, granting the petition of
respondent Edna Orcelino-Villanueva (Edna) and declaring her husband, Romeo L. Villanueva
(Romeo), as presumptively dead under Article 41 of the Family Code.4
The Antecedents
Edna and Romeo were married on December 21, 1978, in Iligan City.
In 1992, Edna worked as domestic helper in Singapore while her husband worked as a
mechanic in Valencia City, Bukidnon. In 1993, Edna heard the news from her children that
Romeo had left their conjugal home without reason or information as to his whereabouts.
Thereafter, Edna took a leave from work and returned to the country to look for Romeo. She
inquired from her parents-in-law and common friends in Iligan City. Still, she found no leads as
to his whereabouts or existence. She also went to his birthplace in Escalante, Negros Oriental,
and inquired from his relatives.
On August 6, 2009, Edna filed before the RTC a petition5to declare Romeo presumptively dead
under Article 41 of the Family Code.
During the trial, Edna was presented as the lone witness. In its October 8, 2009 Order,6 the
RTC granted the petition on the basis of her well-founded belief of Romeos death. Hence:
WHEREFORE, premises considered, judgment is hereby rendered declaring Romeo L. Villanueva to
be presumptively dead for all legal intents and purposes in accordance with Article 41 of the Family Code
of the Philippines, without prejudice to his reappearance.
SO ORDERED.
7

On August 13, 2010, the OSG filed a petition forcertiorari under Rule 65 of the Rules of Court
before the CA alleging grave abuse of discretion on the part of the RTC in finding that Edna had
a well-founded belief that Romeo, her absent spouse, was dead. It argued that the conclusions
reached by the RTC were in direct opposition to established jurisprudence, as ruled by the Court
in Republic v. Nolasco8(Nolasco) and U.S. v. Biasbas.9
On October 18, 2013, the CA dismissed the petition, holding that the RTC acted within its
jurisdiction in issuing the assailed decision having been expressly clothed with the power to
determine the case.10 It also cited Article 247 of the Family Code11 which provided for the final and

immediate executory character of the decision of the RTC, acting as a family court, thus,
rendering the issue of whether or not Edna had sufficiently established a well-founded belief to
warrant the decree of presumptive death of her absent spouse, as moot and academic.
On November 20, 2013, the OSG filed a motion for reconsideration but the CA denied it on
January 8, 2014.
Hence, this petition.
Issues
I.
WHETHER OR NOT THE CA ERRED IN AFFIRMING THE RTC DECISION

DESPITE THE FACT THAT THE CONCLUSION REACHED BY THE RTC IS

CONTRARY TO PREVAILING JURISPRUDENCE.
II.

WHETHER OR NOT THE CA ERRED IN RULING THAT THE GROUNDS RAISED BY

THE PETITIONER TO ASSAIL THE RTC DECISION ARE MERE ERRORS OF

JUDGMENT.12

The OSG argues that the CA erred in not finding grave abuse of discretion on the part of the
RTC when the latter affirmed the existence of Ednas well-founded belief as to the death of her
absent spouse. It claims that the evidence presented by Edna, which merely consisted of bare and
uncorroborated assertions, never amounted to a diligent and serious search required under
prevailing jurisprudence.
, inalterability and immutability of the RTC decision, which was affirmed by the CA. 13
Ruling of the Court
The Court grants the petition.
Article 41 of the Family Code provides that before a judicial declaration of presumptive death
may be granted, the present spouse must prove that he/she has a well-founded belief that the
absentee is dead.14 In this case, Edna failed. The RTC and the CA overlooked Ednas patent
noncompliance with the said requirement.
The well-founded belief in the absentees death requires the present spouse to prove that
his/her belief was the result of diligent and reasonable efforts to locate the absent spouse and
that based on these efforts and inquiries, he/she believes that under the circumstances, the
absent spouse is already dead. It necessitates exertion of active effort (not a mere passive one).
Mere absence of the spouse (even beyond the period required by law), lack of any news that the

absentee spouse is still alive, mere failure to communicate, or general presumption of absence
under the Civil Code would not suffice.15 The premise is that Article 41 of the Family Code places
upon the present spouse the burden of complying with the stringent requirement of well-founded
belief which can only be discharged upon a showing of proper and honest-to-goodness inquiries
and efforts to ascertain not only the absent spouses whereabouts but, more importantly,
whether the absent spouse is still alive or is already dead. 16
This strict standard approach ensures that a petition for declaration of presumptive death
under Article 41 of the Family Code is not used as a tool to conveniently circumvent the laws in
light of the States policy to protect and strengthen the institution of marriage. Courts should
never allow procedural shortcuts but instead should see to it that the stricter standard required
by the Family Code is met.17
Accordingly, in a string of cases, this Court has denied petitions for the declaration of
presumptive death on the said basis.
In Republic of the Philippines v. Court of Appeals,18 the Court ruled that the present spouse
failed to prove that he had a well-founded belief that his absent spouse was already dead before
he filed his petition. His efforts to locate his absent wife allegedly consisted of the following:
(1) He went to his in-laws house to look for her;
(2) He sought the barangay captains aid to locate her;
(3) He went to her friends houses to find her and inquired about her whereabouts among her
friends;
(4) He went to Manila and worked as a part-time taxi driver to look for her in malls during his
free time;
(5) He went back to Catbalogan and again looked for her; and
(6) He reported her disappearance to the local police station and to the NBI.
Despite these claimed earnest efforts, the Court still ruled against the present spouse. The
Court explained that he failed to present the persons from whom he made inquiries and only
reported his wifes absence after the OSG filed its notice to dismiss his petition in the RTC.
Similarly in Republic v. Granada,19 the Court ruled that the present spouse failed to prove her
well-founded belief that her absent spouse was already dead prior to her filing of the petition.
She simply did not exert diligent efforts to locate her husband either in the country or in Taiwan,
where he was known to have worked. Moreover, she did not explain her omissions. In said case,
the Court wrote:
The belief of the present spouse must be the result of proper and honest to goodness inquiries and
efforts to ascertain the whereabouts of the absent spouse and whether the absent spouse is still alive or is
already dead. Whether or not the spouse present acted on a well-founded belief of the death of the absent
spouse depends upon inquiries to be drawn from a great many circumstances occurring before and after
the disappearance of an absent spouse and the nature and extent of the inquiries made by the present
spouse.

In Nolasco, the present spouse filed a petition for declaration of presumptive death of his wife,
who had been missing for more than four years. He testified that his efforts to find her consisted
of:
Searching for her whenever his ship docked in England;(1)
Sending her letters which were all returned to him; and(2)
Inquiring from their friends regarding her whereabouts, which all proved fruitless.(3)
The Court held that the present spouses methods of investigation were too sketchy to form a
basis that his wife was already dead. It stated that the pieces of evidence only proved that his
wife had chosen not to communicate with their common acquaintances, and not that she was
dead.
Recently, in Republic v. Cantor20 (Cantor), the Court considered the present spouses efforts to
have fallen short of the stringent standard and lacked the degree of diligence required by
jurisprudence as she did not actively look for her missing husband; that she did not report his
absence to the police or seek the aid of the authorities to look for him; that she did not present as
witnesses her missing husbands relatives or their neighbors and friends, who could corroborate
her efforts to locate him; that these persons, from whom she allegedly made inquiries, were not
even named; and that there was no other corroborative evidence to support her claim that she
conducted a diligent search. In the Courts view, the wife merely engaged in a passive search
where she relied on uncorroborated inquiries from her in-laws, neighbors and friends. She, thus,
failed to conduct a diligent search. Her claimed efforts were insufficient to form a well-founded
belief that her husband was already dead.
In this case, Edna claimed to have done the following to determine the whereabouts and the
status of her husband:
1. She took a vacation/leave of absence from her work and returned to the Philippines to look for her
husband.
2. She inquired from her parents-in-law in Iligan City and from their common friends in the same city
and in Valencia City.
3. She went as far as the birthplace of her husband in Escalante, Negros Oriental, so she could inquire
from her husbands relatives.

Despite her efforts, she averred that she received negative responses from them because none
of them had knowledge of the existence of her husband who had been missing for 15 years.
Applying the standard set forth by the Court in the previously cited cases, particularly Cantor,
Ednas efforts failed to satisfy the required well-founded belief of her absent husbands death.
Her claim of making diligent search and inquiries remained unfounded as it merely consisted
of bare assertions without any corroborative evidence on record. She also failed to present any
person from whom she inquired about the whereabouts of her husband. She did not even present
her children from whom she learned the disappearance of her husband. In fact, she was the lone
witness. Following the basic rule that mere allegation is not evidence and is not equivalent to

proof,21 the Court cannot give credence to her claims that she indeed exerted diligent efforts to
locate her husband.
Moreover, no document was submitted to corroborate the allegation that her husband had
been missing for at least fifteen (15) years already. As the OSG observed, there was not even any
attempt to seek the aid of the authorities at the time her husband disappeared. In Cantor, the
present spouse claimed to have sought the aid of the authorities or, at the very least, reported his
absence to the police.22 Yet, the Court denied her pleas.
Verily, it makes sense to conclude that her efforts were not diligent and serious enough to give
meaning to her well-founded belief that Romeo was already dead. Suffice it to state that her
petition should have been denied at the first instance. The RTC, however, granted it, reasoning:
x x x that it was in 1993 when the petitioner while abroad heard the news from her children that her
husband left their conjugal home x x x without informing the children nor communicating with the herein
petitioner as to the reasons why he left their family abode nor giving them any information as to his
whereabouts; that herein petitioner took vacation/leave of absence from her work and return to the
Philippines, in order to look for her husband and made some inquiries with her parents-in-law in Iligan
City, from their common friends in Iligan City and in Valencia City, and even went as far as the birthplace
of her husband, particularly at Escalante, Negros Oriental, inquiring from her husbands relatives, but
she only got negative response from them since none of them have any knowledge as to the present
existence of her husband that since the year 1993 up to the present, a period of about fifteen [15] years
have elapsed, the person and the body of petitioners husband could not be found, located nor traced as
there is no any information as to his existence or whereabouts.
23

Worse, the CA affirmed the RTC decision when it dismissed the petition for certiorari filed by
the OSG. The CA should have realized the glaring and patent disregard by the RTC of the
rulings in similar situations where petitions for declaration of presumptive death have been
denied by this Court. By declaring Romeo presumptively dead, the CA clearly ignored this
Courts categorical pronouncements.
WHEREFORE, the petition is GRANTED. Accordingly, the October 18, 2013 Decision and

the January 8, 2014 Resolution of the Court of Appeals are hereby REVERSED andSET

ASIDE. The petition of respondent Edna Orcelino-Villanueva to have her husband declared
presumptively dead is DENIED.
SO ORDERED.
Carpio (Chairperson), Brion and Perlas-Bernabe,** JJ., concur.

October 8, 2014.G.R. No. 187061.*

CELERINA J. SANTOS, petitioner, vs. RICARDO T. SANTOS, respondent.

The proper remedy for a judicial declaration of presumptive death obtained by extrinsic fraud
is an action to annul the judgment. An affidavit of reappearance is not the proper remedy when
the person declared presumptively dead has never been absent.
This is a petition for review on certiorari filed by Celerina J. Santos, assailing the Court of
Appeals resolutions dated November 28, 2008 and March 5, 2009. The Court of Appeals
dismissed the petition for the annulment of the trial courts judgment declaring her
presumptively dead.
On July 27, 2007, the Regional Trial Court of Tarlac City declared petitioner Celerina J.
Santos (Celerina) presumptively dead after her husband, respondent Ricardo T. Santos (Ricardo),
had filed a petition for declaration of absence or presumptive death for the purpose of remarriage
on June 15, 2007.1 Ricardo remarried on September 17, 2008.2
In his petition for declaration of absence or presumptive death, Ricardo alleged that he and
Celerina rented an apartment somewhere in San Juan, Metro Manila, after they had gotten
married on June 18, 1980.3 After a year, they moved to Tarlac City. They were engaged in the buy
and sell business.4
Ricardo claimed that their business did not prosper.5 As a result, Celerina convinced him to
allow her to work as a domestic helper in Hong Kong.6 Ricardo initially refused but because of
Celerinas insistence, he allowed her to work abroad.7 She allegedly applied in an employment
agency in Ermita, Manila, in February 1995. She left Tarlac two months after and was never
heard from again.8
Ricardo further alleged that he exerted efforts to locate Celerina. 9 He went to Celerinas
parents in Cubao, Quezon City, but they, too, did not know their daughters whereabouts. 10 He
also inquired about her from other relatives and friends, but no one gave him any information. 11
Ricardo claimed that it was almost 12 years from the date of his Regional Trial Court petition
since Celerina left. He believed that she had passed away. 12
Celerina claimed that she learned about Ricardos petition only sometime in October 2008
when she could no longer avail the remedies of new trial, appeal, petition for relief, or other
appropriate remedies.13
On November 17, 2008, Celerina filed a petition for annulment of judgment 14 before the Court
of Appeals on the grounds of extrinsic fraud and lack of jurisdiction. She argued that she was
deprived her day in court when Ricardo, despite his knowledge of her true residence,
misrepresented to the court that she was a resident of Tarlac City. 15 According to Celerina, her
true residence was in Neptune Extension, Congressional Avenue, Quezon City. 16This residence
had been her and Ricardos conjugal dwelling since 1989 until Ricardo left in May 2008. 17 As a
result of Ricardos misrepresentation, she was deprived of any notice of and opportunity to
oppose the petition declaring her presumptively dead.18

Celerina claimed that she never resided in Tarlac.19 She also never left and worked as a
domestic helper abroad.20Neither did she go to an employment agency in February 1995.21 She
also claimed that it was not true that she had been absent for 12 years. Ricardo was aware that
she never left their conjugal dwelling in Quezon City.22 It was he who left the conjugal dwelling in
May 2008 to cohabit with another woman.23 Celerina referred to a joint affidavit executed by their
children to support her contention that Ricardo made false allegations in his petition. 24
Celerina also argued that the court did not acquire jurisdiction over Ricardos petition because
it had never been published in a newspaper.25 She added that the Office of the Solicitor General
and the Provincial Prosecutors Office were not furnished copies of Ricardos petition. 26
The Court of Appeals issued the resolution dated November 28, 2008, dismissing Celerinas
petition for annulment of judgment for being a wrong mode of remedy.27According to the Court of
Appeals, the proper remedy was to file a sworn statement before the civil registry, declaring her
reappearance in accordance with Article 42 of the Family Code. 28
Celerina filed a motion for reconsideration of the Court of Appeals resolution dated November
28, 2008.29 The Court of Appeals denied the motion for reconsideration in the resolution dated
March 5, 2009.30
Hence, this petition was filed.
The issue for resolution is whether the Court of Appeals erred in dismissing Celerinas
petition for annulment of judgment for being a wrong remedy for a fraudulently obtained
judgment declaring presumptive death.
Celerina argued that filing an affidavit of reappearance under Article 42 of the Family Code is
appropriate only when the spouse is actually absent and the spouse seeking the declaration of
presumptive death actually has a well-founded belief of the spouses death. 31 She added that it
would be inappropriate to file an affidavit of reappearance if she did not disappear in the first
place.32 She insisted that an action for annulment of judgment is proper when the declaration of
presumptive death is obtained fraudulently.33
Celerina further argued that filing an affidavit of reappearance under Article 42 of the Family
Code would not be a sufficient remedy because it would not nullify the legal effects of the
judgment declaring her presumptive death.34
In Ricardos comment,35 he argued that a petition for annulment of judgment is not the proper
remedy because it cannot be availed when there are other remedies available. Celerina could
always file an affidavit of reappearance to terminate the subsequent marriage. Ricardo iterated
the Court of Appeals ruling that the remedy afforded to Celerina under Article 42 of the Family
Code is the appropriate remedy.
The petition is meritorious.

Annulment of judgment is the remedy when the Regional Trial Courts judgment, order, or
resolution has become final, and the remedies of new trial, appeal, petition for relief (or other
appropriate remedies) are no longer available through no fault of the petitioner. 36
The grounds for annulment of judgment are extrinsic fraud and lack of jurisdiction. 37 This
court defined extrinsic fraud in Stilianopulos v. City of Legaspi:38
For fraud to become a basis for annulment of judgment, it has to be extrinsic or actual. It is intrinsic
when the fraudulent acts pertain to an issue involved in the original action or where the acts constituting
the fraud were or could have been litigated. It is extrinsic or collateral when a litigant commits acts
outside of the trial which prevents a party from having a real contest, or from presenting all of his case,
such that there is no fair submission of the controversy. (Emphasis supplied)
39

Celerina alleged in her petition for annulment of judgment that there was fraud when Ricardo
deliberately made false allegations in the court with respect to her residence. 40 Ricardo also
falsely claimed that she was absent for 12 years. There was also no publication of the notice of
hearing of Ricardos petition in a newspaper of general circulation. 41 Celerina claimed that
because of these, she was deprived of notice and opportunity to oppose Ricardos petition to
declare her presumptively dead.42
Celerina alleged that all the facts supporting Ricardos petition for declaration of presumptive
death were false.43Celerina further claimed that the court did not acquire jurisdiction because the
Office of the Solicitor General and the Provincial Prosecutors Office were not given copies of
Ricardos petition.44
These are allegations of extrinsic fraud and lack of jurisdiction. Celerina alleged in her
petition with the Court of Appeals sufficient ground/s for annulment of judgment.
Celerina filed her petition for annulment of judgment45on November 17, 2008. This was less
than two years from the July 27, 2007 decision declaring her presumptively dead and about a
month from her discovery of the decision in October 2008. The petition was, therefore, filed
within the four-year period allowed by law in case of extrinsic fraud, and before the action is
barred by laches, which is the period allowed in case of lack of jurisdiction. 46
There was also no other sufficient remedy available to Celerina at the time of her discovery of
the fraud perpetrated on her.
The choice of remedy is important because remedies carry with them certain admissions,
presumptions, and conditions.
The Family Code provides that it is the proof of absence of a spouse for four consecutive years,
coupled with a well-founded belief by the present spouse that the absent spouse is already dead,
that constitutes a justification for a second marriage during the subsistence of another
marriage.47
The Family Code also provides that the second marriage is in danger of being terminated by
the presumptively dead spouse when he or she reappears. Thus:

The subsequent marriage referred to in the preceding Article shall be automatically terminated by the
recording of the affidavit of reappearance of the absent spouse,42.Article unless there is a judgment
annulling the previous marriage or declaring it void ab initio.
A sworn statement of the fact and circumstances of reappearance shall be recorded in the civil registry
of the residence of the parties to the subsequent marriage at the instance of any interested person,
with due notice to the spouses of the subsequent marriage and without prejudice to the fact
of reappearance being judicially determined in case such fact is disputed. (Emphasis supplied)

In other words, the Family Code provides the presumptively dead spouse with the remedy of
terminating the subsequent marriage by mere reappearance.
The filing of an affidavit of reappearance is an admission on the part of the first spouse that
his or her marriage to the present spouse was terminated when he or she was declared absent or
presumptively dead.
Moreover, a close reading of the entire Article 42 reveals that the termination of the
subsequent marriage by reappearance is subject to several conditions: (1) the nonexistence of a
judgment annulling the previous marriage or declaring it void ab initio; (2) recording in the civil
registry of the residence of the parties to the subsequent marriage of the sworn statement of fact
and circumstances of reappearance; (3) due notice to the spouses of the subsequent marriage of
the fact of reappearance; and (4) the fact of reappearance must either be undisputed or judicially
determined.
The existence of these conditions means that reappearance does not always immediately cause
the subsequent marriages termination. Reappearance of the absent or presumptively dead
spouse will cause the termination of the subsequent marriage only when all the conditions
enumerated in the Family Code are present.
Hence, the subsequent marriage may still subsist despite the absent or presumptively dead
spouses reappearance (1) if the first marriage has already been annulled or has been declared a
nullity; (2) if the sworn statement of the reappearance is not recorded in the civil registry of the
subsequent spouses residence; (3) if there is no notice to the subsequent spouses; or (4) if the fact
of reappearance is disputed in the proper courts of law, and no judgment is yet rendered
confirming, such fact of reappearance.
When subsequent marriages are contracted after a judicial declaration of presumptive death,
a presumption arises that the first spouse is already dead and that the second marriage is legal.
This presumption should prevail over the continuance of the marital relations with the first
spouse.48 The second marriage, as with all marriages, is presumed valid.49 The burden of proof to
show that the first marriage was not properly dissolved rests on the person assailing the validity
of the second marriage.50
This court recognized the conditional nature of reappearance as a cause for terminating the
subsequent marriage in Social Security System v. Vda. de Bailon.51 This court noted52 that mere
reappearance will not terminate the subsequent marriage even if the parties to the subsequent
marriage were notified if there was no step . . . taken to terminate the subsequent marriage,
either by [filing an] affidavit [of reappearance] or by court action[.] 53 Since the second marriage
has been contracted because of a presumption that the former spouse is dead, such presumption

continues inspite of the spouses physical reappearance, and by fiction of law, he or she must still
be regarded as legally an absentee until the subsequent marriage is terminated as provided by
law.54
The choice of the proper remedy is also important for purposes of determining the status of
the second marriage and the liabilities of the spouse who, in bad faith, claimed that the other
spouse was absent.
A second marriage is bigamous while the first subsists. However, a bigamous subsequent
marriage may be considered valid when the following are present:
1) The prior spouse had been absent for four consecutive years;
2) The spouse present has a well-founded belief that the absent spouse was already dead;
3) There must be a summary proceeding for the declaration of presumptive death of the absent spouse;
and
4) There is a court declaration of presumptive death of the absent spouse.
55

A subsequent marriage contracted in bad faith, even if it was contracted after a court
declaration of presumptive death, lacks the requirement of a well-founded belief 56 that the spouse
is already dead. The first marriage will not be considered as validly terminated. Marriages
contracted prior to the valid termination of a subsisting marriage are generally considered
bigamous and void.57 Only a subsequent marriage contracted in good faith is protected by law.
Therefore, the party who contracted the subsequent marriage in bad faith is also not immune
from an action to declare his subsequent marriage void for being bigamous. The prohibition
against marriage during the subsistence of another marriage still applies. 58
If, as Celerina contends, Ricardo was in bad faith when he filed his petition to declare her
presumptively dead and when he contracted the subsequent marriage, such marriage would be
considered void for being bigamous under Article 35(4) of the Family Code. This is because the
circumstances lack the element of well-founded belief under Article 41 of the Family Code,
which is essential for the exception to the rule against bigamous marriages to apply. 59
The provision on reappearance in the Family Code as a remedy to effect the termination of the
subsequent marriage does not preclude the spouse who was declared presumptively dead from
availing other remedies existing in law. This court had, in fact, recognized that a subsequent
marriage may also be terminated by filing an action in court to prove the reappearance of the
absentee and obtain a declaration of dissolution or termination of the subsequent marriage. 60
Celerina does not admit to have been absent. She also seeks not merely the termination of the
subsequent marriage but also the nullification of its effects. She contends that reappearance is
not a sufficient remedy because it will only terminate the subsequent marriage but not nullify
the effects of the declaration of her presumptive death and the subsequent marriage.
Celerina is correct. Since an undisturbed subsequent marriage under Article 42 of the Family
Code is valid until terminated, the children of such marriage shall be considered legitimate, and
the property relations of the spouse[s] in such marriage will be the same as in valid
marriages.61 If it is terminated by mere reappearance, the children of the subsequent marriage

conceived before the termination shall still be considered legitimate.62 Moreover, a judgment
declaring presumptive death is a defense against prosecution for bigamy.63
It is true that in most cases, an action to declare the nullity of the subsequent marriage may
nullify the effects of the subsequent marriage, specifically, in relation to the status of children
and the prospect of prosecuting a respondent for bigamy.
However, a Petition for Declaration of Absolute Nullity of Void Marriages may be filed solely
by the husband or wife.64
This means that even if Celerina is a real party-in-interest who stands to be benefited or injured
by the outcome of an action to nullify the second marriage,65 this remedy is not available to her.
Therefore, for the purpose of not only terminating the subsequent marriage but also of nullifying
the effects of the declaration of presumptive death and the subsequent marriage, mere filing of
an affidavit of reappearance would not suffice. Celerinas choice to file an action for annulment of
judgment will, therefore, lie.
WHEREFORE, the case is REMANDED to the Court of Appeals for determination of the
existence of extrinsic fraud, grounds for nullity/annulment of the first marriage, and the merits
of the petition.
SO ORDERED.
Carpio (Chairperson), Del Castillo, Mendoza and Perlas-Bernabe,** JJ., concur.
Case remanded to Court of Appeals.
Notes.The finality of the judicial declaration of the nullity of previous marriage of the
accused cannot be made to retroact to the date of the bigamous marriage. (Teves vs. People, 656
SCRA 307 [2011])
Under Article 41 of the Family Code, the losing party in a summary proceeding for the
declaration of presumptive death may file a petition for certiorari with the Court of Appeals on
the ground that, in rendering judgment thereon, the trial court committed grave abuse of
discretion amounting to lack of jurisdiction. (Republic vs. Granada, 672 SCRA 432 [2012])

G.R. No. 152577. September 21, 2005.

REPUBLIC OF THE PHILIPPINES, petitioner, vs.CRASUS L. IYOY, respondent.

CHICO-NAZARIO, J.:
In this Petition for Review on Certiorari under Rule 45 of the Rules of Court, petitioner Republic
of the Philippines, represented by the Office of the Solicitor General, prays for the reversal of the
Decision of the Court of Appeals in CA-G.R. CV No. 62539, dated 30 July 2001, affirming the
Judgment of the Regional Trial Court (RTC) of Cebu City, Branch 22, in Civil Case No. CEB1

20077, dated 30 October 1998, declaring the marriage between respondent Crasus L. Iyoy and
Fely Ada Rosal-Iyoy null and void on the basis of Article 36 of the Family Code of the Philippines.
2

The proceedings before the RTC commenced with the filing of a Complaint for declaration of
nullity of marriage by respondent Crasus on 25 March 1997. According to the said Complaint,
respondent Crasus married Fely on 16 December 1961 at Bradford Memorial Church, Jones
Avenue, Cebu City.
3

As a result of their union, they had five childrenCrasus, Jr., Daphne, Debbie, Calvert, and
Carloswho are now all of legal ages. After the celebration of their marriage, respondent Crasus
discovered that Fely was hot-tempered, a nagger and extravagant. In 1984, Fely left the
Philippines for the United States of America (U.S.A.), leaving all of their five children, the
youngest then being only six years old, to the care of respondent Crasus. Barely a year after Fely
left for the U.S.A., respondent Crasus received a letter from her requesting that he sign the
enclosed divorce papers; he disregarded the said request. Sometime in 1985, respondent Crasus
learned, through the letters sent by Fely to their children, that Fely got married to an American,
with whom she eventually had a child. In 1987, Fely came back to the Philippines with her
American family, staying at Cebu Plaza Hotel in Cebu City. Respondent Crasus did not bother to
talk to Fely because he was afraid he might not be able to bear the sorrow and the pain she had
caused him. Fely returned to the Philippines several times more: in 1990, for the wedding of their
eldest child, Crasus, Jr.; in 1992, for the brain operation of their fourth child, Calvert; and in
1995, for unknown reasons. Fely continued to live with her American family in New Jersey,
U.S.A. She had been openly using the surname of her American husband in the Philippines and
in the U.S.A. For the wedding of Crasus, Jr., Fely herself had invitations made in which she was
named as Mrs. Fely Ada Micklus. At the time the Complaint was filed, it had been 13 years
since Fely left and abandoned respondent Crasus, and there was no more possibility of
reconciliation between them. Respondent Crasus finally alleged in his Complaint that Felys acts
brought danger and dishonor to the family, and clearly demonstrated her psychological incapacity
to perform the essential obligations of marriage. Such incapacity, being incurable and
continuing, constitutes a ground for declaration of nullity of marriage under Article 36, in
relation to Articles 68, 70, and 72, of the Family Code of the Philippines.
Fely filed her Answer and Counterclaim with the RTC on 05 June 1997. She asserted therein
that she was already an American citizen since 1988 and was now married to Stephen Micklus.
While she admitted being previously married to respondent Crasus and having five children with
him, Fely refuted the other allegations made by respondent Crasus in his Complaint. She
explained that she was no more hot-tempered than any normal person, and she may had been
indignant at respondent Crasus on certain occasions but it was because of the latters
drunkenness, womanizing, and lack of sincere effort to find employment and to contribute to the
maintenance of their household. She could not have been extravagant since the family hardly had
enough money for basic needs. Indeed, Fely left for abroad for financial reasons as respondent
4

Crasus had no job and what she was then earning as the sole breadwinner in the Philippines was
insufficient to support their family. Although she left all of her children with respondent Crasus,
she continued to provide financial support to them, as well as, to respondent Crasus.
Subsequently, Fely was able to bring her children to the U.S.A., except for one, Calvert, who had
to stay behind for medical reasons. While she did file for divorce from respondent Crasus, she
denied having herself sent a letter to respondent Crasus requesting him to sign the enclosed
divorce papers. After securing a divorce from respondent Crasus, Fely married her American
husband and acquired American citizenship. She argued that her marriage to her American
husband was legal because now being an American citizen, her status shall be governed by the
law of her present nationality. Fely also pointed out that respondent Crasus himself was
presently living with another woman who bore him a child. She also accused respondent Crasus
of misusing the amount of P90,000.00 which she advanced to him to finance the brain operation
of their son, Calvert. On the basis of the foregoing, Fely also prayed that the RTC declare her
marriage to re spondent Crasus null and void; and that respondent Crasus be ordered to pay to
Fely the P90,000.00 she advanced to him, with interest, plus, moral and exemplary damages,
attorneys fees, and litigation expenses.
After respondent Crasus and Fely had filed their respective Pre-Trial Briefs, the RTC afforded
both parties the opportunity to present their evidence. Petitioner Republic participated in the
trial through the Provincial Prosecutor of Cebu.
5

Respondent Crasus submitted the following pieces of evidence in support of his Complaint: (1)
his own testimony on 08 September 1997, in which he essentially reiterated the allegations in his
Complaint; (2) the Certification, dated 13 April 1989, by the Health Department of Cebu City, on
the recording of the Marriage Contract between respondent Crasus and Fely in the Register of
Deeds, such marriage celebration taking place on 16 December 1961; and (3) the invitation to
the wedding of Crasus, Jr., their eldest son, wherein Fely openly used her American husbands
surname, Micklus.
7

Felys counsel filed a Notice, and, later on, a Motion, to take the deposition of witnesses, namely,
Fely and her children, Crasus, Jr. and Daphne, upon written interrogatories, before the consular
officers of the Philippines in New York and California, U.S.A, where the said witnesses reside.
Despite the Orders and Commissions issued by the RTC to the Philippine Consuls of New York
and California, U.S.A., to take the depositions of the witnesses upon written interroga tories, not
a single deposition was ever submitted to the RTC. Taking into account that it had been over a
year since respondent Crasus had presented his evidence and that Fely failed to exert effort to
have the case progress, the RTC issued an Order, dated 05 October 1998, considering Fely to
have waived her right to present her evidence. The case was thus deemed submitted for decision.
10

12

11

13

14

Not long after, on 30 October 1998, the RTC promulgated its Judgment declaring the marriage
of respondent Crasus and Fely null and void ab initio, on the basis of the following findings

The ground bearing defendants psychological incapacity deserves a reasonable consideration. As

observed, plaintiffs testimony is decidedly credible. The Court finds that defendant had indeed exhibited
unmistakable signs of psychological incapacity to comply with her marital duties such as striving for
family unity, observing fidelity, mutual love, respect, help and support. From the evidence presented,
plaintiff adequately established that the defendant practically abandoned him. She obtained a divorce
decree in the United States of America and married another man and has establish [sic] another family of
her own. Plaintiff is in an anomalous situation, wherein he is married to a wife who is already married to
another man in another country.
Defendants intolerable traits may not have been apparent or manifest before the marriage, the
FAMILY CODE nonetheless allows the annulment of the marriage provided that these were eventually
manifested after the wedding. It appears to be the case in this instance.
Certainly defendants posture being an irresponsible wife erringly reveals her very low regard for that
sacred and inviolable institution of marriage which is the foundation of human society throughout the
civilized world. It is quite evident that the defendant is bereft of the mind, will and heart to comply with
her marital obligations, such incapacity was already there at the time of the marriage in question is
shown by defendants own attitude towards her marriage to plaintiff.
In sum, the ground invoked by plaintiff which is defendants psychological incapacity to comply with the
essential marital obligations which already existed at the time of the marriage in question has been
satisfactorily proven. The evidence in herein case establishes the irresponsibility of defendant Fely Ada
Rosal Iyoy, firmly.
Going over plaintiffs testimony which is decidedly credible, the Court finds that the defendant had
indeed exhibited unmistakable signs of such psychological incapacity to comply with her marital
obligations. These are her excessive disposition to material things over and above the marital stability.
That such incapacity was already there at the time of the marriage in question is shown by defendants
own attitude towards her marriage to plaintiff. And for these reasons there is a legal ground to declare
the marriage of plaintiff Crasus L. Iyoy and defendant Fely Ada Rosal Iyoy null and void ab initio.
15

Petitioner Republic, believing that the afore-quoted Judgment of the RTC was contrary to law
and evidence, filed an appeal with the Court of Appeals. The appellate court, though, in its
Decision, dated 30 July 2001, affirmed the appealed Judgment of the RTC, finding no reversible
error therein. It even offered additional ratiocination for declaring the marriage between
respondent Crasus and Fely null and void, to wit
Defendant secured a divorce from plaintiff-appellee abroad, has remarried, and is now permanently
residing in the United States. Plaintiff-appellee categorically stated this as one of his reasons for seeking
the declaration of nullity of their marriage
...

Article 26 of the Family Code provides: Art. 26. All marriages solemnized outside the Philippines in accordance with
the laws in force in the country where they were solemnized, and valid there as such, shall also be valid in this
country, except those prohibited under Articles 35(1), (4), (5) and (6), 36, 37 and 38.
WHERE A MARRIAGE BETWEEN A FILIPINO CITIZEN AND A FOREIGNER IS VALIDLY CELEBRATED
AND A DIVORCE IS THEREAFTER VALIDLY OBTAINED ABROAD BY THE ALIEN SPOUSE CAPACITATING
HIM OR HER TO REMARRY, THE FILIPINO SPOUSE SHALL LIKEWISE HAVE CAPACITY TO REMARRY
UNDER PHILIPPINE LAW.

The rationale behind the second paragraph of the above-quoted provision is to avoid the absurd and
unjust situation of a Filipino citizen still being married to his or her alien spouse, although the latter is no
longer married to the Filipino spouse because he or she has obtained a divorce abroad. In the case at
bench, the defendant has undoubtedly acquired her American husbands citizenship and thus has become
an alien as well. This Court cannot see why the benefits of Art. 26 aforequoted can not be extended to a
Filipino citizen whose spouse eventually embraces another citizenship and thus becomes herself an alien.
It would be the height of unfairness if, under these circumstances, plaintiff would still be considered as
married to defendant, given her total incapacity to honor her marital covenants to the former. To condemn
plaintiff to remain shackled in a marriage that in truth and in fact does not exist and to remain married
to a spouse who is incapacitated to discharge essential marital covenants, is verily to condemn him to a
perpetual disadvantage which this Court finds abhorrent and will not countenance. Justice dictates that
plaintiff be given relief by affirming the trial courts declaration of the nullity of the marriage of the
parties.
16

After the Court of Appeals, in a Resolution, dated 08 March 2002, denied its Motion for
Reconsideration, petitioner Republic filed the instant Petition before this Court, based on the
following arguments/grounds
17

I. Abandonment by and sexual infidelity of respondents wife do notper se constitute psychological

incapacity.
II. The Court of Appeals has decided questions of substance not in accord with law and jurisprudence
considering that the Court of Appeals committed serious errors of law in ruling that Article 26, paragraph
2 of the Family Code is inapplicable to the case at bar.
18

In his Comment to the Petition, respondent Crasus maintained that Felys psychological
incapacity was clearly established after a full-blown trial, and that paragraph 2 of Article 26 of
the Family Code of the Philippines was indeed applicable to the marriage of respondent Crasus
and Fely, because the latter had already become an American citizen. He further questioned the
personality of petitioner Republic, represented by the Office of the Solicitor General, to institute
the instant Petition, because Article 48 of the Family Code of the Philippines authorizes the
prosecuting attorney or fiscal assigned to the trial court, not the Solicitor General, to intervene
on behalf of the State, in proceedings for annulment and declaration of nullity of marriages.
19

After having reviewed the records of this case and the applicable laws and jurisprudence, this
Court finds the instant Petition to be meritorious.
I
The totality of evidence presented during trial is insufficient to support the finding of
psychological incapacity of Fely.
Article 36, concededly one of the more controversial provisions of the Family Code of the
Philippines, reads
ART. 36. A marriage contracted by any party who, at the time of the celebration, was psychologically
incapacitated to comply with the essential marital obligations of marriage, shall likewise be void even if
such incapacity becomes manifest only after its solemnization.
Issues most commonly arise as to what constitutes psychological incapacity. In a series of cases, this
Court laid downguidelines for determining its existence.

In Santos v. Court of Appeals, the term psychological incapacity was defined, thus
20

. . . [P]sychological incapacity should refer to no less than a mental (not physical) incapacity that causes
a party to be truly cognitive of the basic marital covenants that concomitantly must be assumed and
discharged by the parties to the marriage which, as so expressed by Article 68 of the Family Code, include
their mutual obligations to live together, observe love, respect and fidelity and render help and support.
There is hardly any doubt that the intendment of the law has been to confine the meaning of
psychological incapacity to the most serious cases of personality disorders clearly demonstrative of an
utter insensitivity or inability to give meaning and significance to the marriage. This psychological
condition must exist at the time the marriage is celebrated. . .

The psychological incapacity must be characterized by

1. (a)GravityIt must be grave or serious such that the party would be incapable of carrying out the
ordinary duties required in a marriage;
2. (b)Juridical AntecedenceIt must be rooted in the history of the party antedating the marriage,
although the overt manifestations may emerge only after the marriage; and
3. (c)IncurabilityIt must be incurable or, even if it were otherwise, the cure would be beyond the
means of the party involved.
21

More definitive guidelines in the interpretation and application of Article 36 of the Family Code
of the Philippines were handed down by this Court in Republic v. Court of Appeals and
Molina, which, although quite lengthy, by its significance, deserves to be reproduced below
22

(1) The burden of proof to show the nullity of the marriage belongs to the plaintiff. Any doubt should be
resolved in favor of the existence and continuation of the marriage and against its dissolution and nullity.
This is rooted in the fact that both our Constitution and our laws cherish the validity of marriage and
unity of the family. Thus, our Constitution devotes an entire Article on the Family, recognizing it as the
foundation of the nation. It decrees marriage as legally inviolable, thereby protecting it from dissolution
at the whim of the parties. Both the family and marriage are to be protected by the state.
The Family Code echoes this constitutional edict on marriage and the family and emphasizes their
permanence, inviolability and solidarity.
(2) The root cause of the psychological incapacity must be (a) medically or clinically identified, (b)
alleged in the complaint, (c) sufficiently proven by experts and (d) clearly explained in the decision. Article
36 of the Family Code requires that the incapacity must be psychologicalnot physical, although its
manifestations and/or symptoms may be physical. The evidence must convince the court that the parties,
or one of them, was mentally or psychically ill to such an extent that the person could not have known the
obligations he was assuming, or knowing them, could not have given valid assumption thereof. Although
no example of such incapacity need be given here so as not to limit the application of the provision under
the principle of ejusdem generis, nevertheless such root cause must be identified as a psychological illness
and its incapacitating nature fully explained. Expert evidence may be given by qualified psychiatrists and
clinical psychologists.
23

(3) The incapacity must be proven to be existing at the time of the celebration of the marriage. The
evidence must show that the illness was existing when the parties exchanged their I dos. The
manifestation of the illness need not be perceivable at such time, but the illness itself must have attached
at such moment, or prior thereto.
(4) Such incapacity must also be shown to be medically or clinically permanent or incurable. Such
incurability may be absolute or even relative only in regard to the other spouse, not necessarily absolutely
against everyone of the same sex. Furthermore, such incapacity must be relevant to the assumption of
marriage obligations, not necessarily to those not related to marriage, like the exercise of a profession or
employment in a job
(5) Such illness must be grave enough to bring about the disability of the party to assume the essential
obligations of marriage. Thus, mild characteriological peculiarities, mood changes, occasional emotional
outbursts cannot be accepted as root causes. The illness must be shown as downright incapacity or
inability, not a refusal, neglect or difficulty, much less ill will. In other words, there is a natal or
supervening disabling factor in the person, an adverse integral element in the personality structure that
effectively incapacitates the person from really accepting and thereby complying with the obligations
essential to marriage.
(6) The essential marital obligations must be those embraced by Articles 68 up to 71 of the Family
Code as regards the husband and wife as well as Articles 220, 221 and 225 of the same Code in regard to
parents and their children. Such non-complied marital obligation(s) must also be stated in the petition,
proven by evidence and included in the text of the decision.

(7) Interpretations given by the National Appellate Matrimonial Tribunal of the Catholic Church in
the Philippines, while not controlling or decisive, should be given great respect by our courts
(8) The trial court must order the prosecuting attorney or fiscal and the Solicitor General to appear as
counsel for the state. No decision shall be handed down unless the Solicitor General issues a certification,
which will be quoted in the decision, briefly stating therein his reasons for his agreement or opposition, as
the case may be, to the petition. The Solicitor General, along with the prosecuting attorney, shall submit
to the court such certification within fifteen (15) days from the date the case is deemed submitted for
resolution of the court. The Solicitor General shall discharge the equivalent function of the defensor
vinculi contemplated under Canon 1095.
24

A later case, Marcos v. Marcos, further clarified that there is no requirement that the
defendant/respondent spouse should be personally examined by a physician or psychologist as a
condition sine qua non for the declaration of nullity of marriage based on psychological
incapacity. Accordingly, it is no longer necessary to allege expert opinion in a petition under
Article 36 of the Family Code of the Philippines. Such psychological incapacity, however, must be
established by the totality of the evidence presented during the trial.
25

26

Using the guidelines established by the afore-mentioned jurisprudence, this Court finds that
the totality of evidence presented by respondent Crasus failed miserably to establish the alleged
psychological incapacity of his wife Fely; therefore, there is no basis for declaring their marriage
null and void under Article 36 of the Family Code of the Philippines.
The only substantial evidence presented by respondent Crasus before the RTC was his
testimony, which can be easily put into question for being self-serving, in the absence of any other
corroborating evidence. He submitted only two other pieces of evidence: (1) the Certification on
the recording with the Register of Deeds of the Marriage Contract between respondent Crasus
and Fely, such marriage being celebrated on 16 December 1961; and (2) the invitation to the
wedding of Crasus, Jr., their eldest son, in which Fely used her American husbands surname.
Even considering the admissions made by Fely herself in her Answer to respondent Crasuss
Complaint filed with the RTC, the evidence is not enough to convince this Court that Fely had
such a grave mental illness that prevented her from assuming the essential obligations of
marriage.
It is worthy to emphasize that Article 36 of the Family Code of the Philippines contemplates
downright incapacity or inability to take cognizance of and to assume the basic marital
obligations; not a mere refusal, neglect or difficulty, much less, ill will, on the part of the errant
spouse. Irreconcilable differences, conflicting personalities, emotional immaturity and
irresponsibility, physical abuse, habitual alcoholism, sexual infidelity or perversion, and
abandonment, by themselves, also do not warrant a finding of psychological incapacity under the
said Article.
27

28

As has already been stressed by this Court in previous cases, Article 36 is not to be confused
with a divorce law that cuts the marital bond at the time the causes therefore manifest
themselves. It refers to a serious psychological illness afflicting a party even before the
celebration of marriage. It is a malady so grave and so permanent as to deprive one of awareness
of the duties and responsibilities of the matrimonial bond one is about to assume.
29

Felys hot-temper, nagging, and extravagance; her abandonment of respondent Crasus; her
marriage to an American; and even her flaunting of her American family and her American
surname, may have hurt and embarrassed respondent Crasus and the rest of the family.
Nonetheless, the afore-described characteristics, behavior, and acts of Fely do not satisfactorily
establish a psychological or mental defect that is serious or grave, and which has been in
existence at the time of celebration of the marriage and is incurable. Even when the rules have
been relaxed and the personal examination of Fely by a psychiatrist or psychologist is no longer
mandatory for the declaration of nullity of their marriage under Article 36 of the Family Code of
the Philippines, the totality of evidence presented during trial by respondent Crasus, as the
spouse seeking the declaration of nullity of marriage, must still prove the gravity, judicial
antecedence, and incurability of the alleged psychological incapacity; which, it failed to do so
herein.
30

31

Moreover, this Court resolves any doubt in favor of the validity of the marriage. No less than
the Constitution of 1987 sets the policy to protect and strengthen the family as the basic social
institution and marriage as the foundation of the family.
32

33

II
Article 26, paragraph 2 of the Family Code of the Philippines is not applicable to the
case at bar.
According to Article 26, paragraph 2 of the Family Code of the Philippines
Where a marriage between a Filipino citizen and a foreigner is validly celebrated and a divorce is
thereafter validly obtained abroad by the alien spouse capacitating him or her to remarry, the Filipino
spouse shall likewise have capacity to remarry under Philippine law.

As it is worded, Article 26, paragraph 2, refers to a special situation wherein one of the married
couple is a foreigner who divorces his or her Filipino spouse. By its plain and literal
interpretation, the said provision cannot be applied to the case of respondent Crasus and his wife
Fely because at the time Fely obtained her divorce, she was still a Filipino citizen. Although the
exact date was not established, Fely herself admitted in her Answer filed before the RTC that she
obtained a divorce from respondent Crasus sometime after she left for the United States in 1984,
after which she married her American husband in 1985. In the same Answer, she alleged that
she had been an American citizensince 1988. At the time she filed for divorce, Fely was still a
Filipino citizen, and pursuant to the nationality principle embodied in Article 15 of the Civil

Code of the Philippines, she was still bound by Philippine laws on family rights and duties,
status, condition, and legal capacity, even when she was already living abroad. Philippine laws,
then and even until now, do not allow and recognize divorce between Filipino spouses. Thus, Fely
could not have validly obtained a divorce from respondent Crasus.
III
The Solicitor General is authorized to intervene, on behalf of the Republic, in
proceedings for annulment and declaration of nullity of marriages.
Invoking Article 48 of the Family Code of the Philippines, respondent Crasus argued that only
the prosecuting attorney or fiscal assigned to the RTC may intervene on behalf of the State in
proceedings for annulment or declaration of nullity of marriages; hence, the Office of the Solicitor
General had no personality to file the instant Petition on behalf of the State. Article 48 provides

ART. 48. In all cases of annulment or declaration of absolute nullity of marriage, the Court shall order the
prosecuting attorney or fiscal assigned to it to appear on behalf of the State to take steps to prevent
collusion between the parties and to take care that the evidence is not fabricated or suppressed.

That Article 48 does not expressly mention the Solicitor General does not bar him or his Office
from intervening in proceedings for annulment or declaration of nullity of marriages. Executive
Order No. 292, otherwise known as the Administrative Code of 1987, appoints the Solicitor
General as the principal law officer and legal defender of the Government. His Office is tasked to
represent the Government of the Philippines, its agencies and instrumentalities and its officials
and agents in any litigation, proceeding, investigation or matter requiring the services of
lawyers. The Office of the Solicitor General shall constitute the law office of the Government and,
as such, shall discharge duties requiring the services of lawyers.
34

35

The intent of Article 48 of the Family Code of the Philippines is to ensure that the interest of
the State is represented and protected in proceedings for annulment and declaration of nullity of
marriages by preventing collusion between the parties, or the fabrication or suppression of
evidence; and, bearing in mind that the Solicitor General is the principal law officer and legal
defender of the land, then his intervention in such proceedings could only serve and contribute to
the realization of such intent, rather than thwart it.
Furthermore, the general rule is that only the Solicitor General is authorized to bring or
defend actions on behalf of the People or the Republic of the Philippines once the case is brought
before this Court or the Court of Appeals. While it is the prosecuting attorney or fiscal who
actively participates, on behalf of the State, in a proceeding for annulment or declaration of
nullity of marriage before the RTC, the Office of the Solicitor General takes over when the case is
elevated to the Court of Appeals or this Court. Since it shall be eventually responsible for taking
the case to the appellate courts when circumstances demand, then it is only reasonable and
36

practical that even while the proceeding is still being held before the RTC, the Office of the
Solicitor General can already exercise supervision and control over the conduct of the prosecuting
attorney or fiscal therein to better guarantee the protection of the interests of the State.
In fact, this Court had already recognized and affirmed the role of the Solicitor General in
several cases for annulment and declaration of nullity of marriages that were appealed before it,
summarized as follows in the case of Ancheta v. Ancheta
37

In the case of Republic v. Court of Appeals [268 SCRA 198 (1997)], this Court laid down the guidelines in
the interpretation and application of Art. 48 of the Family Code, one of which concerns the role of the
prosecuting attorney or fiscal and the Solicitor General to appear as counsel for the State:
(8) The trial court must order the prosecuting attorney or fiscal and the Solicitor General to appear as counsel for
the state. No decision shall be handed down unless the Solicitor General issues a certification, which will be quoted
in the decision, briefly stating therein his reasons for his agreement or opposition, as the case may be, to the
petition. The Solicitor General, along with the prosecuting attorney, shall submit to the court such certification
within fifteen (15) days from the date the case is deemed submitted for resolution of the court. The Solicitor General
shall discharge the equivalent function of the defensor vinculi contemplated under Canon 1095. [Id., at 213]

This Court in the case of Malcampo-Sin v. Sin [355 SCRA 285(2001)] reiterated its pronouncement
in Republic v. Court of Appeals [Supra.] regarding the role of the prosecuting attorney or fiscal and the
Solicitor General to appear as counsel for the State . . .

Finally, the issuance of this Court of the Rule on Declaration of Absolute Nullity of Void
Marriages and Annulment of Voidable Marriages, which became effective on 15 March 2003,
should dispel any other doubts of respondent Crasus as to the authority of the Solicitor General
to file the instant Petition on behalf of the State. The Rule recognizes the authority of the
Solicitor General to intervene and take part in the proceedings for annulment and declaration of
nullity of marriages before the RTC and on appeal to higher courts. The pertinent provisions of
the said Rule are reproduced below
38

Sec. 5. Contents and form of petition.

...
(4) It shall be filed in six copies. The petitioner shall serve a copy of the petition on the Office of the
Solicitor General and the Office of the City or Provincial Prosecutor, within five days from the date of its
filing and submit to the court proof of such service within the same period.
...
Sec. 18. Memoranda.The court may require the parties and the public prosecutor, in consultation
with the Office of the Solicitor General, to file their respective memoranda in support of their claims
within fifteen days from the date the trial is terminated. It may require the Office of the Solicitor General
to file its own memorandum if the case is of significant interest to the State. No other pleadings or papers

may be submitted without leave of court. After the lapse of the period herein provided, the case will be
considered submitted for decision, with or without the memoranda.
Sec. 19. Decision.
...
(2) The parties, including the Solicitor General and the public prosecutor, shall be served with copies of
the decision personally or by registered mail. If the respondent summoned by publication failed to appear
in the action, the dispositive part of the decision shall be published once in a newspaper of general
circulation. (3) The decision becomes final upon the expiration of fifteen days from notice to the parties.
Entry of judgment shall be made if no motion for reconsideration or new trial, or appeal is filed by any of
the parties, the public prosecutor, or the Solicitor General.
...
Sec. 20. Appeal.
...
(2) Notice of Appeal.An aggrieved party or the Solicitor General may appeal from the decision by
filing a Notice of Appeal within fifteen days from notice of denial of the motion for reconsideration or new
trial. The appellant shall serve a copy of the notice of appeal on the adverse parties.

Given the foregoing, this Court arrives at a conclusion contrary to those of the RTC and the
Court of Appeals, and sustains the validity and existence of the marriage between respondent
Crasus and Fely. At most, Felys abandonment, sexual infidelity, and bigamy, give respondent
Crasus grounds to file for legal separation under Article 55 of the Family Code of the Philippines,
but not for declaration of nullity of marriage under Article 36 of the same Code. While this Court
commiserates with respondent Crasus for being continuously shackled to what is now a hopeless
and loveless marriage, this is one of those situations where neither law nor society can provide
the specific answer to every individual problem.
39

WHEREFORE, the Petition is GRANTED and the assailed Decision of the Court of Appeals in
CA-G.R. CV No. 62539, dated 30 July 2001, affirming the Judgment of the RTC of Cebu City,
Branch 22, in Civil Case No. CEB-20077, dated 30 October 1998, is REVERSED and SET ASIDE.
The marriage of respondent Crasus L. Iyoy and Fely Ada Rosal-Iyoy remains valid and
subsisting.
SO ORDERED.
Puno (Chairman), Austria-Martinez, Callejo, Sr. andTinga, JJ., concur.
Petition granted, assailed decision reversed and set aside.

Notes.Once approved that a wife was no longer a Filipino citizen at the time of her divorce
from her husband, then she could very well lose her right to inherit from the latter. (Quita vs.
Court of Appeals, 300 SCRA 406 [1998])
The report of the Public Prosecutor is a condition sine qua non for further proceedings to go on in
an action for declaration of nullity of marriage where the defending party fails to answer.
(Corpus vs. Ochotorena, 435 SCRA 446[2004])

G.R. No. L-33352 December 20, 1974

TEODORO E. LERMA, petitioner,
vs.
THE HONORABLE COURT OF APPEALS and CONCEPCION DIAZ, respondents.
Salonga, Ordoez, Yap, Parlade & Associates for petitioner.
Villareal, Matic & Associates for private respondent.

MAKALINTAL, C.J.:p
Before Us for resolution are: (1) the petition for review by certiorari filed by Teodoro E. Lerma
on March 21, 1971 to set aside the resolution of the respondent Court of Appeals in CA-G.R. No.
44906-R dismissing his petition for certiorari and prohibition with preliminary injunction filed
therein; and (2) the petitioner's motion for reconsideration of our resolution dated February 8,
1974 denying his urgent motion for the issuance of a writ of preliminary injunction and/or
restraining order to enjoin the enforcement of certain orders of the Juvenile and Domestic
Relations Court of Quezon City (hereinafter referred to as the lower court) ordering the
petitioner to pay supportpendente lite to Concepcion Diaz, the private respondent herein.
Petitioner Lerma and respondent Diaz are husband and wife. They married on May 19, 1951.
On August 22, 1969 the petitioner filed a complaint for adultery against the respondent and a
certain Teodoro Ramirez (Crim. Case No. 0519 of the Court of First Instance of Rizal). On
November 18, 1969 the respondent filed with the lower court, presided by Judge Leonor Ines
Luciano, a complaint 1 against the petitioner for legal separation and/or separation of properties,
custody of their children 2 and support, with an urgent petition for support pendente lite for her
and their youngest son, Gregory, who was then and until now is in her custody. The respondent's
complaint for legal separation is based on two grounds: concubinage and attempt against her life.

The petitioner filed his opposition to the respondent's application for support pendente lite,
setting up as defense the adultery charge he had filed against the respondent.
Judge Luciano granted the respondent's application for support pendente lite in an order
dated December 24, 1969, which she amended in an order dated February 15, 1970 to the
following effect: (1) the respondent was declared entitled to support pendente lite from the date of
the filing of the complaint; and (2) the amount of such monthly support was reduced from
P2,250.00 to P1,820.00.
On March 12, 1970 the petitioner filed with respondent Court of Appeals a petition for
certiorari and prohibition with preliminary injunction to annul the aforementioned orders on the
ground that they were issued with grave abuse of discretion. The next day the respondent court
gave due course to the petition and issued a writ of preliminary injunction to stop Judge Luciano
from enforcing said orders.
The respondent court, in its decision of October 8, 1970, set aside the assailed orders and
granted the petitioner an opportunity to present evidence before the lower court in support of his
defense against the application for support pendente lite.
The respondent moved to reconsider the decision on the ground that the petitioner had not
asked that he be allowed to present evidence in the lower court. The respondent court, in its
resolution of January 20, 1971, set aside the decision of October 8 and rendered another,
dismissing the petition. This is now the subject of the instant proceeding for review.
On January 23, 1974 the petitioner filed an urgent motion for a writ of preliminary injunction
and/or restraining order, alleging (1) that during the pendency of this appeal and until December
5, 1973 the respondent had never sought the enforcement of the assailed orders of the lower court
granting support pendente lite; (2) that on December 5, 1973 the respondent filed with the lower
court an urgent motion praying that the petitioner be ordered to pay the awarded
support pendente lite, both current and in arrears, on the ground that in the absence of an
injunction from this Court the assailed orders should be executed; (3) that the petitioner filed his
opposition to the motion, pointing out that for the previous three years the respondent did not
ask for the enforcement of the orders and her belated move came only "after petitioner had filed
new adultery charges against her and her second paramour" and after the petitioner had sought
custody of their son Gregory; (4) that in connection with the first adultery charge, the respondent
and her co-accused, Teddy Ramirez, had been convicted by the Court of First Instance of Rizal in
its decision rendered on September 26, 1972 and said judgment of conviction was pending appeal
in the Court of Appeals; (5) that Judge Luciano issued an order dated January 19, 1974, ordering
the petitioner to pay the respondent the awarded support pendente lite within 15 days; and (6)
that unless the lower court was enjoined from enforcing its assailed orders, the present petition
would be rendered moot and academic, to the prejudice of the petitioner.

On January 28, 1974 this Court, acting on the petitioner's motion, resolved "to issue a
temporary restraining order effective immediately and until further orders from this Court." The
order was addressed to Judge Luciano, her agents and representatives.
Required to comment on the petitioner's urgent motion for preliminary injunction, the
respondent filed an opposition, with a prayer for the immediate lifting of the temporary
restraining order issued ex-parte. The opposition reiterated the grounds of her motion dated
December 5, 1973 filed in the lower court, to wit: (1) that an order granting support pendente lite,
although interlocutory, is immediately executory even if appealed, unless enjoined; (2) that the
dismissal of the petition by the respondent Court of Appeals rendered functus oficio the writ of
preliminary injunction it had previously issued; and (3) that under Article 292 of the New Civil
Code, which provides that "during the proceedings for legal separation, or for annulment of
marriage, the spouses and children shall be supported from the conjugal partnership
property ...," such support is mandatory even if there be a showing that the wife is guilty of
adultery.
In a minute resolution dated February 8, 1974 We denied the petitioner's urgent motion for a
writ of preliminary injunction. On February 28, 1974 the petitioner filed this instant motion for
reconsideration. On March 6, 1974 We issued another resolution setting aside the resolution of
February 8, 1974 and reinstated the temporary restraining order previously issued until further
orders. On the same day the respondent filed her opposition to the motion for reconsideration and
later asked that it be set for oral argument. The petitioner's pending motion was set for hearing
on April 22, 1974 and then reset for May 20, 1974. On the latter date counsel for both parties
appeared. In lieu, however, of oral argument the Court allowed them to file memoranda.
The petition assails the resolution of the respondent Court of Appeals on two main grounds:
I. IT IS ERROR FOR THE COURT OF APPEALS TO HOLD THAT THE LOWER COURT, IN
GRANTING SUPPORT PENDENTE LITE TO RESPONDENT CONCEPCION DIAZ, DID NOT
COMMIT A GRAVE ABUSE OF DISCRETION.
II. THE COURT OF APPEALS ERRED IN HOLDING THAT THE PROVISIONS OF
ARTICLE 292 OF THE CIVIL CODE MAKE IT MANDATORY DURING THE PENDENCY OF
LEGAL SEPARATION PROCEEDINGS TO GRANT SUPPORT PENDENTE LITE TO HEREIN
RESPONDENT.
The foregoing alleged errors refer to the two aspects, procedural and substantive, of the
disputed orders granting support pendente lite.
As correctly stated by the respondent court in its decision (which was later reconsidered in its
resolution under review), the procedural law on support pendente lite is Rule 61 of the Revised
Rules of Court, specifically Section 5 thereof, which partly provides:

The court shall determine provisionally the pertinent facts, and shall render such order as
equity and justice may require, having due regard to the necessities of the applicant, the means
of the adverse party, the probable outcome of the case, and such other circumstances as may aid
in the proper elucidation of the questions involved. ...
The petitioner maintains that the above-quoted provision was disregarded by the lower court
when it issued the disputed orders without provisionally determining the pertinent facts of the
case, particularly insofar as they might have a bearing on its probable outcome, merely relying on
the bare allegations of the complaint. The petitioner also claims he was deprived of the
opportunity to present evidence in support of his defense of adultery against the respondent's
application for support pendente lite.
The question of whether or not the petitioner should be allowed to present evidence in the
lower court in support of that his wife had committed adultery has become academic. The
petitioner, in his motion filed February 28, 1974 for reconsideration of the denial by this Court of
his petition for preliminary injunction, manifested that on September 26, 1972 the court of First
Instance of Rizal decided the adultery case of the respondent and found her and her co-accused,
Teodoro Ramirez, guilty of the charge, sentencing them to a term of imprisonment. This has not
been denied by the respondent. Neither is it denied that on March 30, 1970, as a result of the
adulterous relations with Teodoro Ramirez for which she was later on convicted, the said
respondent gave birth prematurely to a baby boy, who however died the same day. When the
respondent entered the hospital for delivery, she registered under the assumed name of "Gloria
Santos," and when the child died had it falsely identified in the death certificate as the child of
one Rosario R. Salita, a close friend of hers. For the falsification thus committed Rosario E.
Salita was criminally charged and convicted, although the respondent herself was acquitted on
reasonable doubt. The petitioner's motion of February 28 also states, without denial on the part
of the respondent, that after Teodoro Ramirez another man, this time a Manila policeman by the
name of Jose Gochangco, became her paramour, as a consequence of which criminal charges of
adultery have been filed against them before the Fiscal of Manila. Photographs of the two,
showing them in intimate pose, were submitted to this Court. Their veracity has not been
disputed.
The legal issue posed by the foregoing facts is whether adultery is a good defense against the
respondent's claim for support pendente lite. In Quintana v. Lerma, 24 Phil. 285, which was an
action by the wife against the husband for support, based upon a written contract, this Court
held that adultery is a good defense. This ruling was reiterated in the subsequent cases
of Sanchez v. Zulueta, 68 Phil. 110, and Mangoma v. Macadaeg, et al., 90 Phil. 508. See
also Olayvar v. Olayvar, 98 Phil. 52.
The respondent Court of Appeals, in upholding the questioned orders of the lower court, relied
on Article 292 of the Civil Code, which reads:

ART. 292. During the proceedings for legal separation, or for annulment of marriage, the
spouses and children shall be supported from the conjugal partnership property. After the final
judgment of legal separation, or of annulment of marriage, the obligation of mutual support
between the spouses ceases. However, in case of legal separation, the court may order that the
guilty spouse shall give support to the innocent one, the judgment specifying the terms of such
order.
It is suggested that while adultery may be a defense in an action for personal support, that is,
support of the wife by the husband from his own funds, it is not a defense when the support is to
be taken from the conjugal partnership property.
We do not see that the distinction is material in this case. In the first place Article 292 is not
in itself the source of the legal right to receive support. It merely states that the support, not only
of the spouses but also of the children, shall be taken from the conjugal property during the
pendency of the legal separation proceeding. It does not preclude the loss of such right in certain
cases. In the second place, the said article contemplates the pendency of a court action and,
inferentially at least, a prima facie showing that the action will prosper. For if the action is
shown to be groundless the mere filing thereof will not necessarily set Article 292 in operation.
This is also the sense of Section 5 of Rule 61, supra, which requires, among other things, when
support pendente lite is applied for, that the court determine provisionally "the probable outcome
of the case."
Article 100 of the Civil Code provides that "the legal separation may be claimed only by the
innocent spouse, provided there has been no condonation of or consent to the adultery or
concubinage ... (and) where both spouses are offenders, a legal separation cannot be claimed by
either of them ..."
In a provisional sense at least, within the meaning of Rule 61 (Section 5), the probable failure
of the respondent's suit for legal separation can be foreseen since she is not an innocent spouse,
having been convicted of adultery by the Court of First Instance. It is true that the judgment of
conviction is on appeal in the Court of Appeals, but the same undoubtedly satisfies the standard
of provisional showing set by the aforesaid Rule. If legal separation cannot be claimed by the
guilty spouse in the first place, the fact that an action for that purpose is filed anyway should not
be permitted to be used as a means to obtain support pendente lite, which, without such action,
would be denied on the strength of the decisions of this Court recognizing adultery as a good
defense. Otherwise, as pointed out by the petitioner, all that an erring spouse has to do to
circumvent such defense would be to file a suit for legal separation no matter how groundless.
The right to separate support or maintenance, even from the conjugal partnership property,
presupposes the existence of a justifiable cause for the spouse claiming such right to live
separately. This is implicit in Article 104 of the Civil Code, which states that after the filing of

the petition for legal separation the spouses shall be entitled to live separately from each other. A
petition in bad faith, such as that filed by one who is himself or herself guilty of an act which
constitutes a ground for legal separation at the instance of the other spouse, cannot be
considered as within the intendment of the law granting separate support. In fact under Article
303 of the same Code the obligation to give support shall cease "when the recipient, be he a
forced heir or not, has committed some act which gives rise to disinheritance;" and under Article
921 one of the causes for disinheriting a spouse is "when the spouse has given cause for legal
separation." The loss of the substantive right to support in such a situation is incompatible with
any claim for support pendente lite.
What has been said above, of course, is not meant to be a prejudgment of either the legal
separation proceeding pending in the lower court or the criminal case for adultery pending in the
Court of Appeals. It is to be understood only in the light of Rule 61, Section 5, of the Rules of
Court, which specifically governs the subject of supportpendente lite.
WHEREFORE, the resolution of respondent Court of Appeals of January 20, 1971 and the
orders of respondent Juvenile and Domestic Relations Court herein complained of, dated
December 24, 1969 and February 15, 1970, all are set aside and their enforcement enjoined,
without prejudice to such judgment as may be rendered in the pending action for legal separation
between the parties. No pronouncement as to costs.

[No. L-10033. December 28, 1956]

BENJAMIN BUGAYONG, plaintiff and appellant, vs.LEONILA GINEZ, defendant and
appellee.
FELIX, J.:
This is a case for legal separation filed in the Court of First Instance of Pangasinan wherein on
motion of the defendant, the case was dismissed. The order of dismissal was appealed to the
Court of Appeals, but said Tribunal certified the case to this Court on the ground that there is
absolutely no question of fact involved, the motion being predicated on the assumption as true of
the very facts testified to by plaintiff-husband.
The facts of the case abridgedly stated are as follows: Benjamin Bugayong, a serviceman in the
United States Navy, was married to defendant Leonila Ginez on August 27, 1949, at Asingan,
Pangasinan, while on furlough leave. Immediately after their marriage, the couple lived with the
sisters of the husband in said municipality, but before the latter left to report back to duty, he
and his wife came to an agreement that Leonila would stay with his sisters who later moved to
Sampaloc, Manila. After some time, or about July, 1951, Leonila Ginez left the dwelling of her
sisters-in-law and informed her husband by letter that she had gone to reside with her mother in

Asingan, Pangasinan, from which place she later moved to Dagupan City to study in a local
college there.
As early as July, 1951, Benjamn Bugayong began receiving letters from Valeriana Polangco
(plaintiffs sisterin-law) and some from anonymous writers (which were not produced at the
hearing) informing him of alleged acts of infidelity of his wife which he did not even care to
mention. On cross-examination, plaintiff admitted that his wife also informed him by letter,
which he claims to have destroyed, that a certain Eliong kissed her. All these communications
prompted him in October, 1951 to seek the advice of the Navy Chaplain as to the propriety of a
legal separation between him and his wife on account of the latters alleged acts of infidelity, and
he was directed to consult instead the navy legal department.
In August, 1952, plaintiff went to Asingan, Pangasinan, and sought for his wife whom he met
in the house of one Mrs. Malalang, defendants godmother. She came along with him and both
proceeded to the house of Pedro Bugayong, a cousin of the plaintiff-husband, where they stayed
and lived for 2 nights and 1 day as husband and wife. Then they repaired to the plaintiffs house
and again passed the night therein as husband and wife. On the second day, Benjamin Bugayong
tried to verify from his wife the truth of the information he received that she had -committed
adultery but Leonila, instead of answering his query, merely packed up and left, which he took as
a confirmation of the acts of infidelity imputed on her. After that and despite such belief, plaintiff
exerted efforts to locate her and failing to find her, he went to Bacarra, Ilocos Norte, to soothe
his wounded feelings.
On November 18, 1952, Benjamin Bugayong filed in the Court of First Instance of Pangasinan
a complaint for legal separation against his wife, Leonila Ginez, who timely filed an answer
vehemently denying the averments of the complaint and setting up affirmative defenses. After
the issues were joined and convinced that a reconciliation was not possible, the court set the case
for hearing on June 9, 1953. Plaintiff s counsel announced that he was to present 6 witnesses but
after plaintiff-husband finished testifying in his favor, counsel for the defendant orally moved for
the dismissal of the complaint, but the Court ordered him to file a written motion to that effect
and gave plaintiff 10 days to answer the same.
The motion to dismiss was predicated on the following grounds: (1) Assuming arguendo the
truth of the allegations of the commission of acts of rank infidelity amounting to adultery, the
cause of action, if any, is barred by the statute of limitations; (2) That under the same
assumption, the acts charged have been condoned by the plaintiff-husband; and (3) That the
complaint failed to state a cause of action sufficient for this court to render a valid judgment.
The motion to dismiss was answered by plaintiff and the Court, considering only the second
ground of the motion to dismiss, i. e., condonation, ordered the dismissal of the action. After the
motion for reconsideration filed by plaintiff was denied, the case was taken up for review to the
Court of Appeals, appellants counsel maintaining that the lower court erred:
1. (a)In so prematurely dismissing the case;
2. (b)In finding that there was condonation on the part of plaintiff-appellant; and

3. (c)In entertaining condonation as a ground for dismissal inasmuch as same was not raised
in the answer or in a motion to dismiss,
As the questions raised In the brief were merely questions of law, the Court of Appeals certified
the case to this Superiority.
The Civil Code provides:
ART. 97. A petition for legal separation may be filed:
1. (1)For adultery on the part of the wife and for concubinage on the part of the husband as defined
in the Penal Code; or
2. (2)An attempt by one spouse against the life of the other.
ART. 100. The legal separation may be claimed only by the innocent spouse, provided there has been no
condonation of or consent to the adultery or concubinage. Where both spouses are offenders, a legal
separation cannot be claimed by either of them. Collusion between the parties to obtain legal separation
shall cause the dismissal of the petition.
ART. 102. An action for legal separation cannot be filed except within one year from and after the date
on which the plaintiff became cognizant of the cause and within five years from and after the date when
such cause occurred.

As the only reason of the lower Court for dismissing the action was the alleged condonation of the
charges of adultery that the plaintiff-husband had preferred in the complaint against his wife,
We will disregard the other 2 grounds of the motion to dismiss, as anyway they have not been
raised in appellants assignment of errors.
Condonation is the forgiveness of a marital offense constituting a ground for legal separation
or, as stated in I Bouviers Law Dictionary, p. 585, condonation is the conditional forgiveness or
remission, by a husband or wife of a matrimonial offense which the latter has committed. It is to
be noted, however, that in defendants answer she vehemently and vigorously denies having
committed any , act of infidelity against her husband, and even if We were to give full weight to
the testimony of the-plaintiff, who was the only one that had the chance of testifying in Court
and link such evidence with the averments of the complaint, We would have to conclude that the
facts appearing on record are far from sufficient to establish the charge of adultery, or, as the
complaint states, of acts of rank infidelity amounting to adultery preferred against the
defendant. Certainly, the letter that plaintiff claims to have received from his sister-in-law
Valeriana Polangco, which must have been too vague and indefinite as to defendants infidelity to
deserve its production in evidence; nor the anonymous letters which plaintiff also failed to
present; nor the alleged letter that, according to plaintiff, his wife addressed to
him admittingthat she had been kissed by one Eliong, whose identity was not established and
which admission defendant had no opportunity to deny because the motion to dismiss was filed
soon after plaintiff finished his testimony in Court, do not amount to anything that can be relied
upon.

But this is not a question at issue. In this appeal, We have to consider plaintiffs line of
conduct under the assumption that he really believed his wife guilty of adultery.What did he do in
such state of mind. In August, 1952, he went to Pangasinan and looked for his wife and after
finding her they lived together as husband and wife for 2 nights and 1 day, after which he says
that he tried to verify from her the truth of the news he had about her infidelity, but failed to
attain his purpose because his wife, instead of answering his query on the matter, preferred to
desert him, probably enraged for being subjected to such humiliation. And yet he tried to locate
her, though in vain. Now, do the husbands attitude of sleeping with his wife for 2 nights despite
his alleged belief that she was unfaithful to him, amount to a condonation of her previous and
supposed adulterous acts? In the order appealed from, the Court a quohad the following to say on
this point:
In the hearing of the case, the plaintiff further testified as ex ollows:
Q. Now Mr. Bugayong, you have filed this action for legal separation from your wife. Please tell this
Hon. Court why you want to separate from your wife?A. I came to know that my wife is committing
adultery, I consulted the chaplain and he told me to consult the legal adviser/ (p. 11, t. s. n.)
Q. Did you finally locate her?A. Four days later or on the fifth day since my arrival she went to the
house of our god-mother, and as a husband I went to her to come along with me in our house but she
refused/ (p. 12, t. s. n.)
Q. What happened next?A. I persuaded her to come along with me. She consented but I did not
bring her home but brought her to the house of my cousin Pedro Bugayong. (p. 12, t. s. n.)
Q. How long did you remain in the house of your cousin Pedro Bugayong?A. One day and one night.
(p. 12, t. s. n.)
Q. That night when you stayed in the house of your cousin Pedro Bugayong as husband and wife, did
you sleep together? A. Yes, sir. (p. 19, t. s. n.)
Q. On the next night, when you slept in your own house, did you sleep together also as husband and
wife?A. Yes, sir. (p. 19, t. s. n.)
Q. When was that?A. That was in August, 1952.' (p. 19, t. s. n.)
Q. How many nights did you sleep together as husband and wife?A. Only two nights. (p. 19, t. s. n.)

9. petition for legal separation may be filed:

(1) For adultery on the part of the wife and concubinage on the part of the husband as defined in the
Penal Code. and in its Art. 100 it says:
The legal separation may be claimed only by the innocent spouse, provided there has been no
condonation of or consent to the adultery or concubinage. Where both spouses are offenders, legal
separation can not be claimed by either of them. Collusion between the parties to obtain legal separation
shall cause the dismissal of the petition.
A detailed examination of the testimony of the plaintiff-husband, especially those portions quoted
above, clearly shows that there was a condonation on the part of the husband for the supposed acts of
rank infidelity amounting to adultery committed by defendant-wife. Admitting for the sake of argument
that the infidelities amounting to adultery were committed by the defendant, a reconciliation was effected
between her and the plaintiff. The act of the latter in persuading her to come along with him, and the fact
that she went with him and consented to be brought to the house of his cousin Pedro Bugayong and
together they slept there as husband and wife for one day and one night, and the further fact that in the

second night they again slept together in their house likewise as husband and wifeall these facts have
no other meaning in the opinion of this court than that a reconciliation between them was effected and
that there was a condonation of the wife by the husband. This reconciliation occurred almost ten months
after he came to know of the acts of infidelity amounting to adultery.
In Shackleton vs. Shackleton, 48 N.J. Eq. 364; 21 Atl. 935, it has been held that condonation is
implied from sexual intercourse after knowledge of the other infidelity. Such acts necessarily implied
forgiveness. It is entirely consonant with reason and justice that if the wife freely consents to sexual
intercourse after she has full knowledge of the husbands guilt, her consent should operate as a pardon of
his wrong/
In Tiffanys Domestic and Family Relations, section 107 says:
Condonation. Is the forgiveness of a marital offense constituting a ground for divorce and bars the right to a divorce.
But it is on the condition, implied by the law when not express, that the wrongdoer shall not again commit the
offense; and also that he shall thereafter treat the other spouse with conjugal kindness. A breach of the condition
will revive the original offense as a ground for divorce. Condonation may be express or implied.

It has been held in a long line of decisions of the various supreme courts of the different states of the
U.S. that a single voluntary act of sexual intercourse by the innocent spouse after discovery of the offense
is ordinarily sufficient to constitute condonation, especially as against the husband. (27 Corpus Juris
Secundum, section 61 and cases cited therein).
In the light of the facts testified to by the plaintiff-husband, of the legal provisions above quoted, and
of the various decisions above-cited, the inevitable conclusion is that the present action is untenable.

Although no acts of infidelity might have been committed by the wife, We agree with the trial
judge that the conduct of the plaintiff-husband above narrated despite his belief that his wife was
unfaithful, deprives him, as alleged the offended spouse, of any action for legal separation against
the offending wife, because his said conduct comes within the restriction of Article 100 of the
Civil Code.
The only general rule in American jurisprudence is that any cohabitation with the guilty
party, after the commission of the offense, and with the knowledge or belief on the part of the
injured party of its commission, will amount to conclusive evidence of condonation; but this
presumption may be rebutted by evidence (60 L.J. Prob. 73).
If there had been cohabitation, to what extent must it be to constitute condonation?
Single voluntary act of marital intercourse between the parties ordinarily is sufficient to constitute
condonation, and where the parties live in the same house, it is presumed that they live on terms of
matrimonial cohabitation (27 C.J. S., section 6-d).
A divorce suit will not be granted for adultery where the parties continue to live together after it was
known (Land vs. Martin, 15 South 657; Day vs. Day, 80 Pac. 974) or there is sexual intercourse after
knowledge of adultery (Rogers vs. Rogers, 67 N.J. Eq. 534) orsleeping together for a single
night (Toulson vs. Toulson, 50 Atl. 401, citing Phinizy vs. Phinizy, 114 S.E. 185, 154 Ga.
199; Collinsvs. Collins, 193 So. 702), and many others. The resumption of marital cohabitation as a basis
of condonation will generally be inferred, nothing appearing to the contrary, from the fact of the living
together as husband and wife, especially as against the husband (Marsh vs. Marsh, 14 N.J. Eq. 315).

There is no ruling on this matter in our jurisprudence but we have no reason to depart from the
doctrines laid down in the decisions of the various supreme courts of the United States above
quoted.
There is no merit in the contention of appellant that the lower court erred in entertaining
condonation as a ground for dismissal inasmuch as same was not raised in the answer or in a
motion to dismiss, because in the case at bar, the question of condonation was raised in the
second ground of the motion to dismiss. It is true that it was filed after the answer and after the
hearing had been commenced, yet that motion serves to supplement the averments of defendants
answer and to adjust the issues to the testimony of plaintiff himself (section 4, Rule 17 of the
Rules of Court).
Wherefore, and on the strength of the foregoing, the order appealed from is hereby affirmed,
with costs against appellant. It is so ordered.
Pars, C.J., Bengzon, Padilla, Bautista Angelo,Labrador, Concepcion, Reyes, J.B.
L., and Endencia, JJ.,concur.
Order affirmed.

WILLIAM H. BROWN, plaintiff and appellant vs.JUANITA YAMBAO, defendant and

appellee.
REYES, J. B. L., J.:
On July 14, 1955, Willian H. Brown filed suit in the Court of First Instance of Manila to obtain
legal separation from his lawful wife Juanita Yambao. He alleged under oath that while
interned by the Japanese invaders, from 1942 to 1945, at the University of Sto. Toms
internment camp, his wife engaged in adulterous relations with one Carlos Field of whom she
begot a baby girl; that Brown learned of his wife's misconduct only in 1945, upon his release
from internment; that thereafter the spouses lived separately and later executed a document
(Annex A) liquidating their conjugal partnership and assigning certain properties to the erring
wife as her share. The complaint prayed for confirmation of the liquidation agreement; for
custody of the children issued of the marriage; that the defendant be declared disqualified to
succeed the plaintiff; and for other remedy as might be just and equitable.
Upon petition of the plaintiff, the court subsequently declared the wife in default, for failure to
answer in due time, despite service of summons; and directed the City Fiscal or his
representative to "investigate, in accordance with Article 101 of the Civil Code, whether or not a
collusion exists between the parties and to report to this Court the result of his investigation within
fifteen (15) days from receipt of copy of this order. The City Fiscal or his representative is also directed to
intervene in the case in behalf of the State." (Rec. App. p. 9)

As ordered, Assistant City Fiscal Rafael Jose appeared at the trial, and cross-examined
plaintiff Brown. His questions (strenuously objected to by Brown's counsel) elicited the fact that
after liberation, Brown had lived maritally with another woman and had begotten children by
her. Thereafter, the court rendered judgment denying the legal separation asked, on the ground
that, while the wife's adultery was established, Brown had incurred in a misconduct of similar
nature that barred his right of action under Article 100 of the new Civil Code, providing:
"ART. 100. The legal separation may be claimed only by the innocent spouse, provided there has been no
condonation of or consent to the adultery or concubinage. Where both spouses are offenders, a legal
separation cannot be claimed by either of them. Collusion between the parties to obtain legal separation
shall cause the dismissal of the petition."

that there had been consent and connivance, and becauseBrown's action had prescribed under
Article 102 of the same Code:
"ART. 102 An action for legal separation cannot be filed except within one year from and after the date on
which the plaintiff became cognizant of the cause and within five years from and after the date when such
cause occurred."

since the evidence showed that he learned of his wife's infidelity in 1945 but only filed action in
1955.

Brown appeared to this Court, assigning the following errors:

"The court erred in permitting the Assistant Fiscal Rafael Jose of Manila to act as counsel for the
defendant, who defaulted.
The court erred in declaring that there was condonation of or consent to the adultery.
The court erred in dismissing the plaintiff's complaint."

Appellant Brown argues that in cross-examining him with regard to his marital relations with
Lilia Deito, who was not his wife, the Assistant Fiscal acted as counsel for the defaulting wife,
when "the power of the prosecuting officer is limited to finding out whether or not there is
collusion, and if there is no collusion, which is the fact in the case at bar, to intervene for the
state which is not the fact in the instant case, the truth of the matter being that he intervened
for Juanita Yambao, the defendantappellee, who is private citizen and who is far from being the
state."
The argument is untenable. Collusion in matrimonial cases being "the act of married persons
in procuring a divorce by mutual consent, whether by preconcerted commission by one of a

matrimonial offense, or by failure, in pursuance of agreement to defend divorce

proceedings"(Cyclopaedic Law Dictionary; Nelson, Divorce & Separation, Section 500), it was
legitimate for the Fiscal to bring to light any circumstances that could give rise to the inference
that the wife's default was calculated, or agreed upon, to enable appellant to obtain the decree of
legal separation that he sought without regard to the legal merits of his case. One such
circumstance is obviously the fact of Brown's cohabitation with a woman other than his wife,
since it bars him from claiming legal separation by express provision of Article 100 of the new
Civil Code. Wherefore, evidence of such misconduct, and the failure of the wife to set it up by way
of defense, were proper subject of inquiry as they may justifiably be considered circumstantial
evidence of collusion between the spouses.
The policy of Article 101 of the new Civil Code, calling for the intervention of the state attorneys
in case of uncontested proceedings for legal separation (and of annulment of marriages, under
Article 88), is to emphasize that marriage is more than a mere contract; that it is a social
institution in which the state is vitally interested, so that its continuation or interruption can not
be made to depend upon the parties themselves (Civil Code, Article 52;Adong vs. Cheong Gee, 43
Phil. 43; Ramirez vs. Gmur 42 Phil. 855; Goitia vs. Campos, 35 Phil. 252). It is consonant with
this policy that the inquiry by the Fiscal should be allowed to focus upon any relevant matter
that may indicate whether the proceedings for separation or annulment are fully justified or not.
The court below also found, and correctly held, that the appellant's action was already barred,
because Brown did not petition for legal separation proceedings until ten years after he learned
of his wife's adultery, which was upon his release from internment in 1945. Under Article 102 of
the new Civil Code, action for legal separation can not be filed except within one (1) year from
and after the plaintiff became cognizant of the cause and within five years from and after the
date when such cause occurred. Appellant's brief does not even contest the correctness of such
findings and conclusion.
It is true that the wife has not interposed prescription as a defense. Nevertheless, the courts
can take cognizance thereof, because actions seeking a decree of legal separation, or annulment
of marriage, involve public interest, and it is the policy of our law that no such decree be issued if
any legal obstacles thereto appear upon the record.
Hence, there being at least two well established statutory grounds for denying the remedy sought
(commission of similar offense by petitioner and prescription of the action), it becomes
unnecessary to delve further into the case and ascertain if Brown's inaction for ten years also
evidences condonation or connivance on his part. Even if it did not, his situation would not be
improved. It is thus needless to discuss the second assignment of error.
The third assignment of error being a mere consequence of the others must necessarily fail
with them.

The decision appealed from is affirmed, with costs against appellant. So ordered.

March 18, 2010.G.R. No. 169900.*

MARIO SIOCHI, petitioner, vs. ALFREDO GOZON, WINIFRED GOZON, GIL TABIJE,
INTER-DIMENSIONAL REALTY, INC., and ELVIRA GOZON, respondents.
March 18, 2010.G.R. No. 169977.*
INTER-DIMENSIONAL REALTY, INC., petitioner, vs.MARIO SIOCHI, ELVIRA GOZON,
ALFREDO GOZON, and WINIFRED GOZON, respondents.

CARPIO,J.:
This is a consolidation of two separate petitions for review,1 assailing the 7 July 2005
Decision2 and the 30 September 2005 Resolution3 of the Court of Appeals in CA-G.R. CV No.
74447.
This case involves a 30,000 sq.m. parcel of land (property) covered by TCT No. 5357. 4 The
property is situated in Malabon, Metro Manila and is registered in the name of Alfredo Gozon
(Alfredo), married to Elvira Gozon (Elvira).
On 23 December 1991, Elvira filed with the Cavite City Regional Trial Court (Cavite RTC) a
petition for legal separation against her husband Alfredo. On 2 January 1992, Elvira
filed a notice of lis pendens, which was then annotated on TCT No. 5357.
On 31 August 1993, while the legal separation case was still pending, Alfredo and Mario
Siochi (Mario) entered into an Agreement to Buy and Sell5 (Agreement) involving the property for
the price of P18 million. Among the stipulations in the Agreement were that Alfredo would: (1)
secure an Affidavit from Elvira that the property is Alfredos exclusive property and to annotate
the Agreement at the back of TCT No. 5357; (2) secure the approval of the Cavite RTC to exclude
the property from the legal separation case; and (3) secure the removal of the notice of lis
pendens pertaining to the said case and annotated on TCT No. 5357. However, despite repeated
demands from Mario, Alfredo failed to comply with these stipulations. After paying the P5
million earnest money as partial payment of the purchase price, Mario took possession of the
property in September 1993. On 6 September 1993, the Agreement was annotated on TCT No.
5357.
Meanwhile, on 29 June 1994, the Cavite RTC rendered a decision 6 in the legal separation case,
the dispositive portion of which reads:

WHEREFORE, judgment is hereby rendered decreeing the legal separation between petitioner and
respondent. Accordingly, petitioner Elvira Robles Gozon is entitled to live separately from respondent
Alfredo Gozon without dissolution of their marriage bond. The conjugal partnership of gains of the
spouses is hereby declared DISSOLVED and LIQUIDATED. Being the offending spouse, respondent is
deprived of his share in the net profits and the same is awarded to their child Winifred R. Gozon whose
custody is awarded to petitioner.
Furthermore, said parties are required to mutually support their child Winifred R. Gozon as her needs
arises.
SO ORDERED.
7

As regards the property, the Cavite RTC held that it is deemed conjugal property.
On 22 August 1994, Alfredo executed a Deed of Donation over the property in favor of their
daughter, Winifred Gozon (Winifred). The Register of Deeds of Malabon, Gil Tabije, cancelled
TCT No. 5357 and issued TCT No. M-105088 in the name of Winifred, without annotating the
Agreement and the notice of lis pendens on TCT No. M-10508.
On 26 October 1994, Alfredo, by virtue of a Special Power of Attorney 9 executed in his favor by
Winifred, sold the property to Inter-Dimensional Realty, Inc. (IDRI) for P18 million. 10 IDRI paid
Alfredo P18 million, representing full payment for the property. 11 Subsequently, the Register of
Deeds of Malabon cancelled TCT No. M-10508 and issued TCT No. M-10976 12 to IDRI.
Mario then filed with the Malabon Regional Trial Court (Malabon RTC) a complaint for
Specific Performance and Damages, Annulment of Donation and Sale, with Preliminary
Mandatory and Prohibitory Injunction and/or Temporary Restraining Order.
On 3 April 2001, the Malabon RTC rendered a decision,13the dispositive portion of which reads:
WHEREFORE, premises considered, judgment is hereby rendered as follows:
01.On the preliminary mandatory and prohibitory injunction:
1.1The same is hereby made permanent by:
1.1.1.Enjoining defendants Alfredo Gozon, Winifred
Gozon, Inter-Dimensional Realty, Inc. and Gil
Tabije, their agents, representatives and all
persons acting in their behalf from any attempt
of commission or continuance of their wrongful
acts of further alienating or disposing of the
subject property;
1.1.2.Enjoining defendant Inter-Dimensional Realty,
Inc. from entering and fencing the property;
1.1.3.Enjoining defendants Alfredo Gozon, Winifred
Gozon, Inter-Dimensional Realty, Inc. to respect
plaintiffs possession of the property.
The Agreement to Buy and Sell dated 31 August 1993, between plaintiff and defendant
Alfredo Gozon is hereby approved, excluding the property and rights of defendant Elvira

Robles-Gozon to the undivided one-half share in the conjugal property subject of this
case.02.
The Deed of Donation dated 22 August 1994, entered into by and between defendants Alfredo
Gozon and Winifred Gozon is hereby nullified and voided.03.
The Deed of Absolute Sale dated 26 October 1994, executed by defendant Winifred Gozon,
through defendant Alfredo Gozon, in favor of defendant Inter-Dimensional Realty, Inc. is
hereby nullified and voided.04.
Defendant Inter-Dimensional Realty, Inc. is hereby ordered to deliver its Transfer Certificate
of Title No. M-10976 to the Register of Deeds of Malabon, Metro Manila.05.
The Register of Deeds of Malabon, Metro Manila is hereby ordered to cancel Certificate of Title
Nos. 10508 in the name of Winifred Gozon and M-10976 in the name of InterDimensional Realty, Inc., and to restore Transfer Certificate of Title No. 5357 in the name
of Alfredo Gozon, married to Elvira Robles with the Agreement to Buy and Sell dated 31
August 1993 fully annotated therein is hereby ordered.06.94
Defendant Alfredo Gozon is hereby ordered to deliver a Deed of Absolute Sale in favor of
plaintiff over his one-half undivided share in the subject property and to comply with all the
requirements for registering such deed.07.
Ordering defendant Elvira Robles-Gozon to sit with plaintiff to agree on the selling price of her
undivided one-half share in the subject property, thereafter, to execute and deliver a Deed
of Absolute Sale over the same in favor of the plaintiff and to comply with all the
requirements for registering such deed, within fifteen (15) days from the receipt of this
DECISION.08.
Thereafter, plaintiff is hereby ordered to pay defendant Alfredo Gozon the balance of Four
Million Pesos (P4,000,000.00) in his one-half undivided share in the property to be set off by
the award of damages in plaintiffs favor.09.
Plaintiff is hereby ordered to pay the defendant Elvira Robles-Gozon the price they had agreed
upon for the sale of her one-half undivided share in the subject property.10.
Defendants Alfredo Gozon, Winifred Gozon and Gil Tabije are hereby ordered to pay the
plaintiff, jointly and severally, the following:11.
Two Million Pesos (P2,000,000.00) as actual and11.1
compensatory damages;
One Million Pesos (P1,000,000.00) as moral11.2
damages;
Five Hundred Thousand Pesos (P500,000.00) as11.3
exemplary damages;
Four Hundred Thousand Pesos (P400,000.00) as11.4
attorneys fees; and
One Hundred Thousand Pesos (P100,000.00) as11.5
litigation expenses.

The above awards are subject to set off of11.6

plaintiffs obligation in paragraph 9 hereof.
Defendants Alfredo Gozon and Winifred Gozon are hereby ordered to pay Inter-Dimensional
Realty, Inc. jointly and severally the following:
Eighteen Million Pesos (P18,000,000.00) which12.1
constitute the amount the former received from
the latter pursuant to their Deed of Absolute Sale
dated 26 October 1994, with legal interest
therefrom;
One Million Pesos (P1,000,000.00) as moral12.2
damages;
Five Hundred Thousand Pesos (P500,000.00) as12.3
exemplary damages; and
One Hundred Thousand Pesos (P100,000.00) as12.4
attorneys fees.
Defendants Alfredo Gozon and Winifred Gozon are hereby ordered to pay costs of suit.13.
SO ORDERED.14
On appeal, the Court of Appeals affirmed the Malabon RTCs decision with modification. The
dispositive portion of the Court of Appeals Decision dated 7 July 2005 reads:
WHEREFORE, premises considered, the assailed decision dated April 3, 2001 of the RTC,
Branch 74, Malabon is hereby AFFIRMED with MODIFICATIONS, as follows:
The sale of the subject land by defendant Alfredo Gozon to plaintiff-appellant Siochi is
declared null and void for the following reasons:1.
The conveyance was done without the consent of defendant-appellee Elvira Gozon;a)
Defendant Alfredo Gozons one-half () undivided share has been forfeited in favor of his
daughter, defendant Winifred Gozon, by virtue of the decision in the legal separation
case rendered by the RTC, Branch 16, Cavite;b)
Defendant Alfredo Gozon shall return/deliver to plaintiff-appellant Siochi the amount of P5
Million which the latter paid as earnest money in consideration for the sale of the subject
land;2.
Defendants Alfredo Gozon, Winifred Gozon and Gil Tabije are hereby ordered to pay plaintiffappellant Siochi jointly and severally, the following:3.
P100,000.00 as moral damages;a)
P100,000.00 as exemplary damages;b)
P50,000.00 as attorneys fees;c)
P20,000.00 as litigation expenses; andd)
The awards of actual and compensatory damages are hereby ordered deleted for lack of
basis.e)

Defendants Alfredo Gozon and Winifred Gozon are hereby ordered to pay defendant-appellant
IDRI jointly and severally the following:4.
P100,000.00 as moral damages;a)
P100,000.00 as exemplary damages; andb)
P50,000.00 as attorneys fees.c)
Defendant Winifred Gozon, whom the undivided one-half share of defendant Alfredo Gozon
was awarded, is hereby given the option whether or not to dispose of her undivided share in the
subject land.
The rest of the decision not inconsistent with this ruling stands.
SO ORDERED.15
Only Mario and IDRI appealed the decision of the Court of Appeals. In his petition, Mario
alleges that the Agreement should be treated as a continuing offer which may be perfected by the
acceptance of the other spouse before the offer is withdrawn. Since Elviras conduct signified her
acquiescence to the sale, Mario prays for the Court to direct Alfredo and Elvira to execute a Deed
of Absolute Sale over the property upon his payment of P9 million to Elvira.
On the other hand, IDRI alleges that it is a buyer in good faith and for value. Thus, IDRI
prays that the Court should uphold the validity of IDRIs TCT No. M-10976 over the property.
We find the petitions without merit.
This case involves the conjugal property of Alfredo and Elvira. Since the disposition of the
property occurred after the effectivity of the Family Code, the applicable law is the Family Code.
Article 124 of the Family Code provides:
The administration and enjoyment of the conjugal partnership property shall belong to both spouses
jointly. In case of disagreement, the husbands decision shall prevail, subject to the recourse to the court
by the wife for a proper remedy, which must be availed of within five years from the date of the contract
implementing such decision.124.Art.
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. However, the
transaction shall be construed as a continuing offer on the part of the consenting spouse and the third
person, and may be perfected as a binding contract upon the acceptance by the other spouse or
authorization by the court before the offer is withdrawn by either or both offerors. (Emphasis supplied)

In this case, Alfredo was the sole administrator of the property because Elvira, with whom
Alfredo was separated in fact, was unable to participate in the administration of the conjugal
property. However, as sole administrator of the property, Alfredo still cannot sell the property
without the written consent of Elvira or the authority of the court. Without such consent or
authority, the sale is void.16 The absence of the consent of one of the spouses renders the entire
sale void, including the portion of the conjugal property pertaining to the spouse who contracted
the sale.17 Even if the other spouse actively participated in negotiating for the sale of the property,

that other spouses written consent to the sale is still required by law for its validity. 18 The
Agreement entered into by Alfredo and Mario was without the written consent of Elvira. Thus,
the Agreement is entirely void. As regards Marios contention that the Agreement is a continuing
offer which may be perfected by Elviras acceptance before the offer is withdrawn, the fact that
the property was subsequently donated by Alfredo to Winifred and then sold to IDRI clearly
indicates that the offer was already withdrawn.
However, we disagree with the finding of the Court of Appeals that the one-half undivided
share of Alfredo in the property was already forfeited in favor of his daughter Winifred, based on
the ruling of the Cavite RTC in the legal separation case. The Court of Appeals misconstrued the
ruling of the Cavite RTC that Alfredo, being the offending spouse, is deprived of his share in the
net profits and the same is awarded to Winifred.
The Cavite RTC ruling finds support in the following provisions of the Family Code:
The decree of legal separation shall have the following effects:63.Art.
The spouses shall be entitled to live separately from each other, but the marriage bonds shall not be
severed;(1)
The absolute community or the conjugal partnership shall be dissolved and liquidated but
the offending spouse shall have no right to any share of the net profits earned by the absolute
community or the conjugal partnership, which shall be forfeited in accordance with the
provisions of Article 43(2);
The custody of the minor children shall be awarded to the innocent spouse, subject to the provisions of
Article 213 of this Code; and(3)
The offending spouse shall be disqualified from inheriting from the innocent spouse by intestate
succession. Moreover, provisions in favor of the offending spouse made in the will of the innocent spouse
shall be revoked by operation of law.(4)
The termination of the subsequent marriage referred to in the preceding Article shall produce the
following effects:43.Art.
xxx
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,(2) 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; (Emphasis supplied)

Thus, among the effects of the decree of legal separation is that the conjugal partnership is
dissolved and liquidated and the offending spouse would have no right to any share of the net
profits earned by the conjugal partnership. It is only Alfredos share in the net profits which is
forfeited in favor of Winifred. Article 102(4) of the Family Code provides that [f]or purposes of
computing the net profits subject to forfeiture in accordance with Article 43, No. (2) and 63, No.
(2), the said profits shall be the increase in value between the market value of the community
property at the time of the celebration of the marriage and the market value at the time of its
dissolution. Clearly, what is forfeited in favor of Winifred is not Alfredos share in the conjugal
partnership property but merely in the net profits of the conjugal partnership property.

With regard to IDRI, we agree with the Court of Appeals in holding that IDRI is not a buyer
in good faith. As found by the RTC Malabon and the Court of Appeals, IDRI had actual
knowledge of facts and circumstances which should impel a reasonably cautious person to make
further inquiries about the vendors title to the property. The representative of IDRI testified
that he knew about the existence of the notice of lis pendens on TCT No. 5357 and the legal
separation case filed before the Cavite RTC. Thus, IDRI could not feign ignorance of the Cavite
RTC decision declaring the property as conjugal.
Furthermore, if IDRI made further inquiries, it would have known that the cancellation of the
notice of lis pendenswas highly irregular. Under Section 77 of Presidential Decree No. 1529,19 the
notice of lis pendens may be cancelled (a) upon order of the court, or (b) by the Register of Deeds
upon verified petition of the party who caused the registration of the lis pendens. In this case,
the lis pendenswas cancelled by the Register of Deeds upon the request of Alfredo. There was no
court order for the cancellation of thelis pendens. Neither did Elvira, the party who caused the
registration of the lis pendens, file a verified petition for its cancellation.
Besides, had IDRI been more prudent before buying the property, it would have discovered
that Alfredos donation of the property to Winifred was without the consent of Elvira. Under
Article 12520 of the Family Code, a conjugal property cannot be donated by one spouse without the
consent of the other spouse. Clearly, IDRI was not a buyer in good faith.
Nevertheless, we find it proper to reinstate the order of the Malabon RTC for the
reimbursement of the P18 million paid by IDRI for the property, which was inadvertently
omitted in the dispositive portion of the Court of Appeals decision.
WHEREFORE, we DENY the petitions. We AFFIRM the 7 July 2005 Decision of the Court of
Appeals in CA-G.R. CV No. 74447 with the following MODIFICATIONS:
We DELETE the portions regarding the forfeiture of Alfredo Gozons one-half undivided share
in favor of Winifred Gozon and the grant of option to Winifred Gozon whether or not to dispose of
her undivided share in the property; and(1)
We ORDER Alfredo Gozon and Winifred Gozon to pay Inter-Dimensional Realty, Inc. jointly
and severally the Eighteen Million Pesos (P18,000,000) which was the amount paid by InterDimensional Realty, Inc. for the property, with legal interest computed from the finality of this
Decision.(2)
SO ORDERED.
Brion, Del Castillo, Abad and Perez, JJ., concur.
Petition denied, judgment affirmed with modifications.
Note.A wife, by affixing her signature to a Deed of Sale on the space provided for witnesses,
is deemed to have given her implied consent to the contract of salea wifes consent to the
husbands disposition of conjugal property does not always have to be explicit or set forth in any
particular document so long as it is shown by acts of the wife that such consent or approval was
indeed given. (Pelayo vs. Perez, 459 SCRA 475 [2005])

No. L-28771. March 31, 1971.

CORNELIA MATABUENA,
appellee

plaintiff-appellant, vs.PETRONILA CERVANTES,

defendant-

FERNANDO, J.:
A question of first impression is before this Court in this litigation. We are called upon to decide
whether the ban on a donation between the spouses during a marriage applies to a common-law
relationship. The plaintiff, now appellant Cornelia Matabuena, a sister of the deceased
1

Felix Matabuena, maintains that a donation made while he was living maritally without benefit
of marriage to defendant, now appellee Petronila Cervantes, was void. Defendant would uphold

its validity. The lower court, after noting that it was made at a time before defendant was
married to the donor, sustained the latters stand. Hence this appeal. The question, as noted, is
novel in character, this Court not having had as yet the opportunity of ruling on it. A 1954
decision of the Court of Appeals,Buenaventura v. Bautista, by the then Justice J. B. L. Reyes,
who was appointed to this Court later that year, is indicative of the appropriate response that
should be given. The conclusion reached therein is that a donation between common-law spouses
falls within the prohibition and is null and void as contrary to public policy. Such a view merits
fully the acceptance of this Court. The decision must be reversed.
In the decision of November 23, 1965, the lower court, after stating that in plaintiffs
complaint alleging absolute ownership of the parcel of land in question, she specifically raised the
2

question that the donation made by FelixMatabuena to defendant Petronila Cervantes was
null and void under the aforesaid article of the Civil Code and that defendant on the other hand
did assert ownership precisely because such a donation was made in 1956 and her marriage to
the deceased did not take place until 1962, noted that when the case was called for trial on
November 19, 1965, there was stipulation of facts which it quoted. Thus: The plaintiff and the
defendant assisted by their respective counsels, jointly agree and stipulate: (1) That the deceased
Felix Matabuena owned the property in question; (2) That said Felix Matabuena executed a
4

Deed of Donation inter vivos in favor of Defendant, PetronilaCervantes over the parcel of land in
question on February 20, 1956, which same donation was accepted by defendant; (3) That the
donation of the land to the defendant which took effect immediately was made during the
common-law relationship as husband and wife between the defendant-donee and the now
deceased donor and later said donor and donee were married on March 28, 1962; (4) That the
deceased Felix Matabuena died intestate on September 13, 1962; (5) That the plaintiff claims
the property by reason of being the only sister and nearest collateral relative of the deceased by
virtue of an affidavit of self-adjudication executed by her in 1962 and had the land declared in
her name and paid the estate and inheritance taxes thereon.
The judgment of the lower court on the above facts was adverse to plaintiff. It reasoned out
thus: A donation under the terms of Article 133 of the Civil Code is void if made between the
5

spouses during the marriage. When the donation was made by Felix Matabuena in favor of the

defendant on February 20, 1956, Petronila Cervantes and Felix Matabuena were not yet
married. At that time they were not spouses. They became spouses only when they married on
March 28, 1962, six years after the deed of donation had been executed.
We reach a different conclusion. While Art. 133 of the Civil Code considers as void a donation
between the spouses during the marriage, policy considerations of the most exigent character as
well as the dictates of morality require that the same prohibition should apply to a common-law
relationship. We reverse.
1. As announced at the outset of this opinion, a 1954 Court of Appeals decision, Buenaventura
v. Bautista, interpreting a similar provision of the old Civil Code speaks unequivocally. If the
policy of the law is, in the language of the opinion of the then Justice J.B.L. Reyes of that Court,
to prohibit donations in favor of the other consort and his descendants because of fear of undue
and improper pressure and influence upon the donor, a prejudice deeply rooted in our ancient
law; porque no se engaen despojandose el uno al otro por amor que han de consuno [according
to] the Partidas (Part IV, Tit. XI, LAW IV), reiterating the rationale Ne mutuato amore invicem
spoliarentur of the Pandects (Bk. 24, Tit. 1, De donat, inter virum et uxorem); then there is every
reason to apply the same prohibitive policy to persons living together as husband and wife
without the benefit of nuptials. For it is not to be doubted that assent to such irregular
connection for thirty years bespeaks greater influence of one party over the other, so that the
danger that the law seeks to avoid is correspondingly increased. Moreover, as already pointed out
by Ulpian (in his lib. 32 ad Sabinum, fr. 1), it would not be just that such donations should
subsist, lest the condition of those who incurred guilt should turn out to be better. So long as
marriage remains the cornerstone of our family law, reason and morality alike demand that the
disabilities attached to marriage should likewise attach to concubinage.
2. It is hardly necessary to add that even in the absence of the above pronouncement, any
other conclusion cannot stand the test of scrutiny. It would be to indict the framers of the Civil
Code for a failure to apply a laudable rule to a situation which in its essentials cannot be
distinguished. Moreover, if it is at all to be differentiated, the policy of the law which embodies a
deeply-rooted notion of what is just and what is right would be nullified if such irregular
relationship instead of being visited with disabilities would be attended with benefits. Certainly
a legal norm should not be susceptible to such a reproach. If there is ever any occasion where the
principle of statutory construction that what is within the spirit of the law is as much a part of it
as what is written, this is it. Otherwise the basic purpose discernible in such codal provision
would not be attained. Whatever omission may be apparent in an interpretation purely literal of
the language used must be remedied by an adherence to its avowed objective. In the language of
Justice Pablo: El espiritu que
mforma la ley debe ser la luz que ha de guiar a los tribunales en la aplicacin de sus
disposiciones.
3. The lack of validity of the donation made by the deceased to defendant
6

10

Petronila Cervantes does not necessarily result in plaintiff having exclusive right to the

disputed property. Prior to the death of Felix Matabuena, the relationship between him and the

defendant was legitimated by their marriage on March 28, 1962. She is therefore his widow. As
provided for in the Civil Code, she is entitled to one-half of the inheritance and the plaintiff, as
the surviving sister, to the other half.
WHEREFORE, the lower court decision of November 23, 1965 dismissing the complaint with
costs is reversed. The questioned donation is declared void, with the rights of plaintiff and
defendant as pro indiviso heirs to the property in question recognized. The case is remanded to
the lower court for its appropriate disposition in accordance with the above opinion. Without
pronouncement as to costs.
11

Concepcion, C.J., Reyes, J.B.L., Dizon, Makalintal,Zaldivar, Castro, Barredo, Villamor an

d Makasiar, JJ., concur.
Teehankee, J., took no part.

ERLINDA A. AGAPAY, petitioner, vs. CARLINA (CORNELIA) V. PALANG and HERMINIA

P. DELA CRUZ, respondents.
ROMERO, J.:
Before us is a petition for review of the decision of the Court of Appeals in CA-G.R. CV No. 24199
entitled ErlindaAgapay v. Carlina (Cornelia) Palang and Herminia P. Dela Cruz dated June
22, 1994 involving the ownership of two parcels of land acquired during the cohabitation of
petitioner and private respondents legitimate spouse.
Miguel Palang contracted his first marriage on July 16, 1949 when he took private
respondent Carlina (or Cornelia) Vallesterol as a wife at the Pozorrubio Roman Catholic Church
in Pangasinan. A few months after the wedding, in October 1949, he left to work in Hawaii.
Miguel and Carlinas only child, Herminia Palang, was born on May 12, 1950.
Miguel returned in 1954 for a year. His next visit to the Philippines was in 1964 and during
the entire duration of his year-long sojourn he stayed in Zambales with his brother, not in
Pangasinan with his wife and child. The trial court found evidence that as early as 1957, Miguel
had attempted to divorce Carlina in Hawaii. When he returned for good in 1972, he refused to
live with private respondents, but stayed alone in a house in Pozorrubio, Pangasinan.
On July 15, 1973, the then sixty-three-year-old Miguel contracted his second marriage with
1

nineteen-year-old Erlinda Agapay, herein petitioner. Two months earlier, on May 17, 1973,
2

Miguel and Erlinda, as evidenced by the Deed of Sale, jointly purchased a parcel of agricultural
land located at San Felipe, Binalonan, Pangasinan with an area of 10,080 square meters.
Consequently, Transfer Certificate of Title No. 101736 covering said rice land was issued in their
names.
A house and lot in Binalonan, Pangasinan was likewise purchased on September 23, 1975,
allegedly by Erlinda as the sole vendee. TCT No. 143120 covering said property was later issued
in her name.

On October 30, 1975, Miguel and Cornelia Palangexecuted a Deed of Donation as a form of
compromise agreement to settle and end a case filed by the latter. The parties therein agreed to
donate their conjugal property consisting of six parcels of land to their only child,
3

HerminiaPalang.

Miguel and Erlindas cohabitation produced a son, Kristopher A. Palang, born on December 6,
1977. In 1979, Miguel and Erlinda were convicted of Concubinage upon Carlinas complaint. Two
years later, on February 15, 1981, Miguel died.
5

On July 11, 1981, Carlina Palang and her daughter Herminia Palang de la Cruz, herein
private respondents, instituted the case at bar, an action for recovery of ownership and
possession with damages against petitioner before the Regional Trial Court in Urdaneta,
Pangasinan (Civil Case No. U-4265). Private respondents sought to get back the riceland and the
house and lot both located at Binalonan, Pangasinan allegedly purchased by Miguel during his
cohabitation with petitioner.
Petitioner, as defendant below, contended that while the riceland covered by TCT No. 101736
is registered in their names (Miguel and Erlinda), she had already given her half of the property
to their son Kristopher Palang. She added that the house and lot covered by TCT No. 143120 is
her sole property, having bought the same with her own money. Erlinda added that Carlina is
precluded from claiming aforesaid properties since the latter had already donated their conjugal
estate to Herminia.
After trial on the merits, the lower court rendered its decision on June 30, 1989 dismissing the
complaint after declaring that there was little evidence to prove that the subject properties
pertained to the conjugal property of Carlina and Miguel Palang. The lower court went on to
provide for the intestate shares of the parties, particularly of Kristopher Palang, Miguels
illegitimate son. The dispositive portion of the decision reads:
WHEREFORE, premises considered, judgment is hereby rendered
1. 1)Dismissing the complaint, with costs against plaintiffs;
2. 2)Confirming the ownership of defendant Erlinda Agapay of the residential lot located at
Poblacion, Binalonan, Pangasinan, as evidenced by TCT No. 143120, Lot 290-B including the old
house standing therein;
3. 3)Confirming the ownership of one-half (1/2) portion of that piece of agricultural land situated at
Balisa, San Felipe, Binalonan, Pangasinan, consisting of 10,080 square meters and as evidenced
by TCT No. 101736, Lot 1123-A to ErlindaAgapay;
4. 4)Adjudicating to Kristopher Palang as his inheritance from his deceased father, Miguel Palang,
the one-half (1/2) of the agricultural land situated at Balisa, San Felipe, Binalonan, Pangasinan,
under TCT No. 101736 in the name of Miguel Palang, provided that the former (Kristopher)
executes, within 15 days after this decision becomes final and executory, a quit-claim forever
renouncing any claims to annul/reduce the donation to Herminia Palang de la Cruz of all

conjugal properties of her parents, Miguel Palang and Carlina VallesterolPalang, dated October
30, 1975, otherwise, the estate of deceased Miguel Palang will have to be settled in another
separate action;
5. 5)No pronouncement as to damages and attorneys fees.
SO ORDERED.

On appeal, respondent court reversed the trial courts decision. The Court of Appeals rendered
its decision on July 22, 1994 with the following dispositive portion:
WHEREFORE, PREMISES CONSIDERED, the appealed decision is hereby REVERSED and another
one entered:
1. 1.Declaring plaintiffs-appellants the owners of the properties in question;
2. 2.Ordering defendant-appellee to vacate and deliver the properties in question to herein plaintiffsappellants;
3. 3.Ordering the Register of Deeds of Pangasinan to cancel Transfer Certificate of Title Nos. 143120
and 101736 and to issue in lieu thereof another certificate of title in the name of plaintiffsappellants.
No pronouncement as to costs.

Hence, this petition.

Petitioner claims that the Court of Appeals erred in not sustaining the validity of two deeds of
absolute sale covering the riceland and the house and lot, the first in favor of Miguel Palang and
Erlinda Agapay and the second, in favor of Erlinda Agapay alone. Second, petitioner contends

that respondent appellate court erred in not declaring Kristopher A. Palang as Miguel Palangs
illegitimate son and thus entitled to inherit from Miguels estate. Third, respondent court erred,
according to petitioner, in not finding that there is sufficient pleading and evidence that
Kristoffer A. Palang or Christopher A. Palang should be considered as party-defendant in Civil
Case No. U-4625 before the trial court and in CA-G.R. No. 24199.
After studying the merits of the instant case, as well as the pertinent provisions of law and
jurisprudence, the Court denies the petition and affirms the questioned decision of the Court of
Appeals.
The first and principal issue is the ownership of the two pieces of property subject of this
action. Petitioner assails the validity of the deeds of conveyance over the same parcels of land.
There is no dispute that the transfers of ownership from the original owners of the riceland and
the house and lot, Corazon Ilomin and the spouses Cespedes, respectively, were valid.
The sale of the riceland on May 17, 1973, was made in favor of Miguel and Erlinda. The
provision of law applicable here is Article 148 of the Family Code providing for cases of
cohabitation when a man and a woman who are notcapacitated to marry each other live
8

exclusively with each other as husband and wife without the benefit of marriage or under a void
marriage. While Miguel and Erlinda contracted marriage on July 15, 1973, said union was
patently void because the earlier marriage of Miguel and Carlina was still subsisting and
unaffected by the latters de facto separation.
Under Article 148, 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. It must be stressed that actual contribution is required by this
provision, in contrast to Article 147 which states that efforts in the care and maintenance of the
family and household, are regarded as contributions to the acquisition of common property by
one who has no salary or income or work or industry. If the actual contribution of the party is not
proved, there will be no co-ownership and no presumption of equal shares.
In the case at bar, Erlinda tried to establish by her testimony that she is engaged in the
business of buy and sell and had a sari-sari store but failed to persuade us that she actually
contributed money to buy the subject riceland. Worth noting is the fact that on the date of
conveyance, May 17, 1973, petitioner was only around twenty years of age and
Miguel Palang was already sixty-four and a pensioner of the U.S. Government. Considering her
9

10

youthfulness, it is unrealistic to conclude that in 1973 she contributed P3,750.00 as her share in
the purchase price of subject property, there being no proof of the same.
Petitioner now claims that the riceland was bought two months before Miguel and Erlinda
actually cohabited. In the nature of an afterthought, said added assertion was intended to
exclude their case from the operation of Article 148 of the Family Code. Proof of the precise date
when they commenced their adulterous cohabitation not having been adduced, we cannot state
definitively that the riceland was purchased even before they started living together. In any case,
even assuming that the subject property was bought before cohabitation, the rules of coownership would still apply and proof of actual contribution would still be essential.
Since petitioner failed to prove that she contributed money to the purchase price of the
riceland in Binalonan, Pangasi-nan, we find no basis to justify her co-ownership with Miguel over
the same. Consequently, the riceland should, as correctly held by the Court of Appeals, revert to
the conjugal partnership property of the deceased Miguel and private respondent
11

Carlina Palang.
Furthermore, it is immaterial that Miguel and Carlina previously agreed to donate their
conjugal property in favor of their daughter Herminia in 1975. The trial court erred in holding
that the decision adopting their compromise agreement in effect partakes the nature of judicial
confirmation of the separation of property between spouses and the termination of the conjugal
partnership. Separation of property between spouses during the marriage shall not take place
except by judicial order or without judicial conferment when there is an express stipulation in the
marriage settlements. The judgment which resulted from the parties compromise was not
specifically and expressly for separation of property and should not be so inferred.
With respect to the house and lot, Erlinda allegedly bought the same for P20,000.00 on
September 23, 1975 when she was only 22 years old. The testimony of the notary public who
12

13

prepared the deed of conveyance for the property reveals the falsehood of this claim. Atty.
Constantino Sagun testified that Miguel Palang provided the money for the purchase price and
directed that Erlindas name alone be placed as the vendee.
The transaction was properly a donation made by Miguel to Erlinda, but one which was clearly
void and inexistent by express provision of law because it was made between persons guilty of
adultery or concubinage at the time of the donation, under Article 739 of the Civil Code.
Moreover, Article 87 of the Family Code expressly provides that the prohibition against donations
between spouses now applies to donations between persons living together as husband and wife
without a valid marriage, for otherwise, the condition of those who incurred guilt would turn out
to be better than those in legal union.
14

15

16

The second issue concerning Kristopher Palangs status and claim as an illegitimate son and
heir to Miguels estate is here resolved in favor of respondent courts correct assessment that the
trial court erred in making pronouncements regarding Kristophers heirship and filiation
inasmuch as questions as to who are the heirs of the decedent, proof of filiation of illegitimate
children and the determination of the estate of the latter and claims thereto should be ventilated
in the proper probate court or in a special proceeding instituted for the purpose and cannot be
adjudicated in the instant ordinary civil action which is for recovery of ownership and
possession.
As regards the third issue, petitioner contends that Kristopher Palang should be considered
17

as party-defendant in the case at bar following the trial courts decision which expressly found
that Kristopher had not been impleaded as party defendant but theorized that he had submitted
to the courts jurisdiction through his mother/guardian ad litem. The trial court erred gravely.
Kristopher, not having been impleaded, was, therefore, not a party to the case at bar. His mother,
Erlinda, cannot be called his guardian ad litem for he was not involved in the case at bar.
Petitioner adds that there is no need for Kristopher to file another action to prove that he is the
illegitimate son of Miguel, in order to avoid multiplicity of suits. Petitioners grave error has
been discussed in the preceding paragraph where the need for probate proceedings to resolve the
settlement of Miguels estate and Kristophers successional rights has been pointed out.
WHEREFORE, the instant petition is hereby DENIED. The questioned decision of the Court
of Appeals is AFFIRMED. Costs against petitioner.
SO ORDERED.
18

19

Regalado (Chairman), Puno and Mendoza, JJ.,concur.

Torres, Jr., J., On leave.
Petition denied. Judgment affirmed.
Notes.An unrecognized spurious child has no rights from his parents or to their estate.
(Ilano vs. Court of Appeals, 230 SCRA 242 [1994])
Failure to present relatives who could have negated petitioners testimony that she had been
acknowledged by them as the eldest daughter of the deceased gives rise to the presumption that
their testimonies would be detrimental to the respondents had they been presented as wi

G.R. No. 118305. February 12, 1998.

AYALA INVESTMENT & DEVELOPMENT CORP. and ABELARDO MAGSAJO,

petitioners, vs. COURT OF AP-PEALS and SPOUSES ALFREDO & ENCARNACION CHING,
respondents.
MARTINEZ, J.:
Under Article 161 of the Civil Code, what debts and obligations contracted by the husband alone
are considered for the benefit of the conjugal partnership which are 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?
These are the issues which we will resolve in this petition for review.
The petitioner assails the decision dated April 14, 1994 of the respondent Court of Appeals in
Spouses Alfredo and Encarnacion Ching vs. Ayala Investment and Development Corporation, et
al., docketed as CA-G.R. CV No. 29632, upholding the decision of the Regional Trial Court of
Pasig, Branch 168, which ruled that the conjugal partnership of gains of respondents-spouses
Alfredo and Encarnacion Ching is not liable for the payment of the debts secured by respondenthusband Alfredo Ching.
A chronology of the essential antecedent facts is necessary for a clear understanding of the
case at bar.
Philippine Blooming Mills (hereinafter referred to as PBM) obtained a P50,300,000.00 loan
from petitioner Ayala Investment and Development Corporation (hereinafter referred to as
AIDC). As added security for the credit line extended to PBM, respondent Alfredo Ching,
Executive Vice President of PBM, executed security agreements on December 10, 1980 and on
March 20, 1981 making himself jointly and severally answerable with PBMs indebtedness to
AIDC.
PBM failed to pay the loan. Thus, on July 30, 1981, AIDC filed a case for sum of money against
PBM and respondent-husband Alfredo Ching with the then Court of First Instance of Rizal
(Pasig), Branch VIII, entitled Ayala Investment and Development Corporation vs. Philippine
Blooming Mills and Alfredo Ching, docketed as Civil Case No. 42228.
After trial, the court rendered judgment ordering PBM and respondent-husband Alfredo
Ching to jointly and severally pay AIDC the principal amount of P50,300,000.00 with interests.
Pending appeal of the judgment in Civil Case No. 42228, upon motion of AIDC, the lower court
issued a writ of execution pending appeal. Upon AIDCs putting up of an P8,000,000.00 bond, a
writ of execution dated May 12, 1982 was issued. Thereafter, petitioner Abelardo Magsajo, Sr.,
Deputy Sheriff of Rizal and appointed sheriff in Civil Case No. 42228, caused the issuance and
service upon respondents-spouses of a notice of sheriff sale dated May 20, 1982 on three (3) of
1

their conjugal properties. Petitioner Magsajo then scheduled the auction sale of the properties
levied.
On June 9, 1982, private respondents filed a case of injunction against petitioners with the
then Court of First Instance of Rizal (Pasig), Branch XIII, to enjoin the auction sale alleging that
petitioners cannot enforce the judgment against the conjugal partnership levied on the ground
that, among others, the subject loan did not redound to the benefit of the said conjugal
partnership. Upon application of private respondents, the lower court issued a temporary
restraining order to prevent petitioner Magsajo from proceeding with the enforcement of the writ
of execution and with the sale of the said properties at public auction.
AIDC filed a petition for certiorari before the Court of Appeals, questioning the order of the
lower court enjoining the sale. Respondent Court of Appeals issued a Temporary Restraining
Order on June 25, 1982, enjoining the lower court from enforcing its Order of June 14, 1982, thus
paving the way for the scheduled auction sale of respondents-spouses conjugal properties.
On June 25, 1982, the auction sale took place. AIDC being the only bidder, was issued a
Certificate of Sale by petitioner Magsajo, which was registered on July 2, 1982. Upon expiration
of the redemption period, petitioner sheriff issued the final deed of sale on August 4, 1982 which
was registered on August 9, 1983.
In the meantime, the respondent court, on August 4, 1982, decided CA-G.R. SP No. 14404, in
this manner:
2

WHEREFORE, the petition for certiorari in this case is granted and the challenged order of the
respondent Judge dated June 14, 1982 in Civil Case No. 46309 is hereby set aside and nullified. The same
petition insofar as it seeks to enjoin the respondent Judge from proceeding with Civil Case No. 46309 is,
however, denied. No pronouncement is here made as to costs. x x x x.
5

On September 3, 1983, AIDC filed a motion to dismiss the petition for injunction filed before
Branch XIII of the CFI of Rizal (Pasig) on the ground that the same had become moot and
academic with the consummation of the sale. Respondents filed their opposition to the motion
arguing, among others, that where a third party who claims ownership of the property attached
or levied upon, a different legal situation is presented; and that in this case, two (2) of the real
properties are actually in the name of Encarnacion Ching, a non-party to Civil Case No. 42228.
The lower court denied the motion to dismiss. Hence, trial on the merits proceeded. Private
respondents presented several witnesses. On the other hand, petitioners did not present any
evidence.
On September 18, 1991, the trial court promulgated its decision declaring the sale on
execution null and void. Petitioners appealed to the respondent court, which was docketed as CAG.R. CV No. 29632.
On April 14, 1994, the respondent court promulgated the assailed decision, affirming the
decision of the regional trial court. It held that:
The loan procured from respondent-appellant AIDC was for the advancement and benefit of Philippine
Blooming Mills and not for the benefit of the conjugal partnership of petitioners-appellees.
xxx
xxx
xxx

As to the applicable law, whether it is Article 161 of the New Civil Code or Article 1211 of the Family
Code-suffice it to say that the two provisions are substantially the same. Nevertheless, We agree with the
trial court that the Family Code is the applicable law on the matter x x x x x x.
Article 121 of the Family Code provides that The conjugal partnership shall be liable for: x x x (2) All
debts and obligations contracted during the marriage by the designated Administrator-Spouse for the
benefit of the conjugal partnership of gains x x x. 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. In the
case at bar, respondent-appellant AIDC failed to prove that the debt was contracted by appellee-husband,
for the benefit of the conjugal partnership of gains.

The dispositive portion of the decision reads:

WHEREFORE, in view of all the foregoing, judgment is hereby rendered DISMISSING the appeal. The
decision of the Regional Trial Court is AFFIRMED in toto.
6

Petitioner filed a Motion for Reconsideration which was denied by the respondent court in a
Resolution dated November 28, 1994.
Hence, this petition for review. Petitioner contends that the respondent court erred in ruling
that the conjugal partnership of private respondents is not liable for the obligation by the
respondent-husband.
Specifically, the errors allegedly committed by the respondent court are as follows:
7

1. I.RESPONDENT COURT ERRED IN RULING THAT THE OBLIGATION INCURRED

BY RESPONDENT HUSBAND DID NOT REDOUND TO THE BENEFIT OF THE
CONJUGAL PARTNERSHIP OF THE PRIVATE RESPONDENT.
2. II.RESPONDENT COURT ERRED IN RULING THAT THE ACT OF RESPONDENT
HUSBAND IN SECURING THE SUBJECT LOAN IS NOT PART OF HIS INDUSTRY,
BUSINESS OR CAREER FROM WHICH HE SUPPORTS HIS FAMILY.
Petitioners in their appeal point out that there is no need to prove that actual benefit
redounded to the benefit of the partnership; all that is necessary, they say, is that the transaction
was entered into for the benefit of the conjugal partnership. Thus, petitioners aver that:
The wordings of Article 161 of the Civil Code is very clear: for the partnership to be held liable, the
husband must have contracted the debt for the benefit of the partnership, thus:
Art. 161. The conjugal partnership shall be liable for:
1) all debts and obligations contracted by the husband for the benefit of the conjugal partnership x x x.

There is a difference between the phrases: redounded to the benefit of or benefited from (on the one
hand) and for the benefit of (on the other). The former require that actual benefit must have been
realized; the latter requires only that the transaction should be one which normally would produce benefit
to the partnership, regardless of whether or not actual benefit accrued.
8

We do not agree with petitioners that there is a difference between the terms redounded to the
benefit of or benefited from on the one hand; and for the benefit of on the other. They mean

one and the same thing. Article 161(1) of the Civil Code and Article 121(2) of the Family Code are
similarly worded, i.e., both use the term for the benefit of. On the other hand, Article 122 of the
Family Code provides that The payment of personal debts by the husband or the wife before or
during the marriage shall not be charged to the conjugal partnership except insofar as they
redounded to the benefit of the family. As can be seen, the terms are used interchangeably.
Petitioners further contend that the ruling of the respondent court runs counter to the
pronouncement of this Court in the case of Cobb-Perez vs. Lantin, that the husband as head of
the family and as administrator of the conjugal partnership is presumed to have contracted
obligations for the benefit of the family or the conjugal partnership.
Contrary to the contention of the petitioners, the case of Cobb-Perez is not applicable in the
case at bar. This Court has, on several instances, interpreted the term for the benefit of the
conjugal partnership.
In the cases of Javier vs. Osmea, Abella de Diaz vs. Erlanger & Galinger, Inc., Cobb-Perez
vs. Lantin and G-Tractors, Inc. vs. Court of Appeals, cited by the petitioners, we held that:
9

10

11

12

13

The debts contracted by the husband during the marriage relation, for and in the exercise of the industry
or profession by which he contributes toward the support of his family, are not his personal and private
debts, and the products or income from the wifes own property, which, like those of her husbands, are
liable for the payment of the marriage expenses, cannot be excepted from the payment of such debts.
(Javier)
The husband, as the manager of the partnership (Article 1412, Civil Code), has a right to embark the
partnership in an ordinary commercial enterprise for gain, and the fact that the wife may not approve of a
venture does not make it a private and personal one of the husband. (Abella de Diaz)
Debts contracted by the husband for and in the exercise of the industry or profession by which he
contributes to the support of the family, cannot be deemed to be his exclusive and private debts. (CobbPerez)
x x x if he incurs an indebtedness in the legitimate pursuit of his career or profession or suffers losses
in a legitimate business, the conjugal partnership must equally bear the indebtedness and the
losses, unless he deliberately acted to the prejudice of his family. (G-Tractors)

However, in the cases of Ansaldo vs. Sheriff of Manila, Fidelity Insurance & Luzon Insurance
Co., Liberty Insurance Corporation vs. Banuelos, and Luzon Surety, Inc. vs. De Garcia, cited by
the respondents, we ruled that:
14

15

16

The fruits of the paraphernal property which form part of the assets of the conjugal partnership, are
subject to the payment of the debts and expenses of the spouses, but not to the payment of the personal
obligations (guaranty agreements) of the husband, unless it be proved that such obligations were
productive of some benefit to the family. (Ansaldo; parenthetical phrase ours.)
When there is no showing that the execution of an indemnity agreement by the husband redounded to
the benefit of his family, the undertaking is not a conjugal debt but an obligation personal to him.
(Liberty Insurance)
In the most categorical language, a conjugal partnership under Article 161 of the new Civil Code is
liable only for such debts and obligations contracted by the husband for 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. The husband, therefore,
is denied the power to assume unnecessary and unwarranted risks to the financial stability of the
conjugal partnership. (Luzon Surety, Inc.)

From the foregoing jurisprudential rulings of this Court, we can derive the following conclusions:
(A) If the husband himself is the principal obligor in the contract, i.e., he directly received the
money and services to be used in or for his own business or his own profession, that
contract falls within the term x x x x obligations for the benefit of the conjugal partnership.
Here, no actual benefit may be proved. It is enough that the benefit to the family is apparent at
the time of the signing of the contract. From the very nature of the contract of loan or services,
the family stands to benefit from the loan facility or services to be rendered to the business or
profession of the husband. It is immaterial, if in the end, his business or profession fails or does
not succeed. Simply stated, where the husband contracts obligations on behalf of the family
business, the law presumes, and rightly so, that such obligation will redound to the benefit of the
conjugal partnership.
(B) On the other hand, if the money or services are given to another person or entity, and the
husband acted only as asurety or guarantor, that contract cannot, by itself, alone be categorized
as falling within the context of obligations for the benefit of the conjugal partnership. The
contract of loan or services is clearly for the benefit of the principal debtor and not for the surety
or his family. No presumption can be inferred 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 benefit redounding to the conjugal partnership.
Thus, the distinction between the Cobb-Perez case, and we add, that of the three other
companion cases, on the one hand, and that of Ansaldo, Liberty Insurance and Luzon Surety, is
that in the former, the husband contracted the obligation for his own business; while in the
latter, the husband merely acted as a surety for the loan contracted by another for the latters
business.
The evidence of petitioner indubitably show that co-respondent Alfredo Ching signed as surety
for the P50M loan contracted on behalf of PBM. Petitioner should have adduced evidence to prove
that Alfredo Chings acting as surety redounded to the benefit of the conjugal partnership. The
reason for this is as lucidly explained by the respondent court:
The loan procured from respondent-appellant AIDC was for the advancement and benefit of Philippine
Blooming Mills and not for the benefit of the conjugal partnership of petitioners-appellees. Philippine
Blooming Mills has a personality distinct and separate from the family of petitioners-appelleesthis
despite the fact that the members of the said family happened to be stockholders of said corporate entity.
xxx
xxx
xxx
x x x. 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. In the case at bar, respondent-appellant AIDC
failed to prove that the debt was contracted by appellee-husband, for the benefit of the conjugal
partnership of gains. What is apparent from the facts of the case is that the judgment debt was contracted

by or in the name of the Corporation Philippine Blooming Mills and appellee-husband only signed as
surety thereof. The debt is clearly a corporate debt and respondent-appellants right of recourse against
appellee-husband as surety is only to the extent of his corporate stockholdings. It does not extend to the
conjugal partnership of gains of the family of petitioners-appellees. x x x x x x.
17

Petitioners contend that no actual benefit need accrue to the conjugal partnership. To support
this contention, they cite Justice J.B.L. Reyes authoritative opinion in the Luzon Surety
Company case:
I concur in the result, but would like to make of record that, in my opinion, the words all debts and
obligations contracted by the husband for the benefit of the conjugal partnership used in Article 161 of
the Civil Code of the Philippines in describing the charges and obligations for which the conjugal
partnership is liable do not require that actual profit or benefit must accrue to the conjugal partnership
from the husbands transaction; but it suffices that the transaction should be one that normally would
produce such benefit for the partnership. This is the ratio behind our ruling in Javier vs. Osmea, 34 Phil.
336, that obligations incurred by the husband in the practice of his profession are collectible from the
conjugal partnership.

The aforequoted concurring opinion agreed with the majority decision that the conjugal
partnership should not be made liable for the surety agreement which was clearly for the benefit
of a third party. Such opinion merely registered an exception to what may be construed as a
sweeping statement that in all cases actual profit or benefit must accrue to the conjugal
partnership. The opinion merely made it clear that no actual benefits to the family need be
proved in some cases such as in the Javier case. There, the husband was the principal obligor
himself. Thus, said transaction was found to be one that would normally produce x x x benefit
for the partnership. In the later case of G-Tractors, Inc., the husband was also the principal
obligornot merely the surety. This latter case, therefore, did not create any precedent. It did not
also supersede the Luzon Surety Company case, nor any of the previous accommodation contract
cases, where this Court ruled that they were for the benefit of third parties.
But it could be argued, as the petitioner suggests, that even in such kind of contract of
accommodation, a benefit for the family may also result, when the guarantee is in favor of the
husbands employer.
In the case at bar, petitioner claims that the benefits the respondent family would reasonably
anticipate were the following:
1. (a)The employment of co-respondent Alfredo Ching would be prolonged and he would be
entitled to his monthly salary of P20,000.00 for an extended length of time because of the
loan he guaranteed;
2. (b)The shares of stock of the members of his family would appreciate if the PBM could be
rehabilitated through the loan obtained;
3. (c)His prestige in the corporation would be enhanced and his career would be boosted
should PBM survive because of the loan.

However, these are not the benefits contemplated by Article 161 of the Civil Code. The benefits
must be one directly resulting from the loan. It cannot merely be a by-product or a spin-off of the
loan itself.
In all our decisions involving accommodation contracts of the husband, we underscored the
requirement that: there must be the requisite showing x x x of some advantage which clearly
accrued to the welfare of the spouses or benefits to his family or that such obligations are
productive of some benefit to the family. Unfortunately, the petition did not present any proof to
show: (a) Whether or not the corporate existence of PBM was prolonged and for how many
months or years; and/or (b) Whether or not the PBM was saved by the loan and its shares of stock
appreciated, if so, how much and how substantial was the holdings of the Ching family.
Such benefits (prospects of longer employment and probable increase in the value of stocks)
might have been already apparent or could be anticipated at the time the accommodation
agreement was entered into. But would those benefits qualify the transaction as one of the
obligations x x x for the benefit of the conjugal partnership? Are indirect and remote probable
benefits, the ones referred to in Article 161 of the Civil Code? The Court of Appeals in denying
the motion for reconsideration, disposed of these questions in the following manner:
18

No matter how one looks at it, the debt/credit extended by respondents-appellants is purely a corporate
debt granted to PBM, with petitioner-appellee-husband merely signing as surety. While such petitionerappellee-husband, as such surety, is solidarily liable with the principal debtor AIDC, such liability under
the Civil Code provisions is specifically restricted by Article 122 (par. 1) of the Family Code, so that debts
for which the husband is liable may not be charged against conjugal partnership properties. Article 122 of
the Family Code is explicitThe payment of personal debts contracted by the husband or the wife before
or during the marriage shall not be charged to the conjugal partnership except insofar as they redounded
to the benefit of the family.
Respondents-appellants insist that the corporate debt in question falls under the exception laid down in
said Article 122 (par. one). We do not agree. The loan procured from respondent-appellant AIDC was for
the sole advancement and benefit of Philippine Blooming Mills and not for the benefit of the conjugal
partnership of petitioners-appellees.
x x x appellee-husband derives salaries, dividends benefits from Philippine Blooming Mills (the debtor
corporation), only because said husband is an employee of said PBM. These salaries and benefits, are not
the benefits contemplated by Articles 121 and 122 of the Family Code. The benefits contemplated by the
exception in Article 122 (Family Code) is that benefit derived directly from the use of the loan. In the case
at bar, the loan is a corporate loan extended to PBM and used by PBM itself, not by petitioner-appelleehusband or his family. The alleged benefit, if any, continuously harped by respondents-appellants, are not
only incidental but also speculative.
19

We agree with the respondent court. Indeed, considering the odds involved in guaranteeing a
large amount (P50,000,000.00) of loan, the probable prolongation of employment in PBM and
increase in value of its stocks, would be too small to qualify the transaction as one for the
benefit of the suretys family. Verily, no one could say, with a degree of certainty, that the said
contract is even productive of some benefits to the conjugal partnership.

We likewise agree with the respondent court (and this view is not contested by the petitioners)
that the provisions of the Family Code is applicable in this case. These provisions highlight the
underlying concern of the law for the conservation of the conjugal partnership; for the husbands
duty to protect and safeguard, if not augment, not to dissipate it.
This is the underlying reason why the Family Code clarifies that the obligations entered into
by one of the spouses must be those that redounded to the benefit of the family and that the
measure of the partnerships liability is to the extent that the family is benefited.
These are all in keeping with the spirit and intent of the other provisions of the Civil Code
which prohibits any of the spouses to donate or convey gratuitously any part of the conjugal
property. Thus, when co-respondent Alfredo Ching entered into a surety agreement he, from
then on, definitely put in peril the conjugal property (in this case, including the family home) and
placed it in danger of being taken gratuitously as in cases of donation.
In the second assignment of error, the petitioner advances the view that acting as surety is
part of the business or profession of the respondent-husband.
This theory is new as it is novel.
The respondent court correctly observed that:
20

21

Signing as a surety is certainly not an exercise of an industry or profession, hence the cited cases of CobbPerez vs. Lantin; Abella de Diaz vs. Erlanger & Galinger; G-Tractors, Inc. vs. CA do not apply in the
instant case. Signing as a surety is not embarking in a business.
22

We are likewise of the view that no matter how often an executive acted or was persuaded to act,
as a surety for his own employer, this should not be taken to mean that he had thereby embarked
in the business of suretyship or guaranty.
This is not to say, however, that we are unaware that executives are often asked to stand as
surety for their companys loan obligations. This is especially true if the corporate officials have
sufficient property of their own; otherwise, their spouses signatures are required in order to bind
the conjugal partnerships.
The fact that on several occasions the lending institutions did not require the signature of the
wife and the husband signed alone does not mean that being a surety became part of his
profession. Neither could he be presumed to have acted for the conjugal partnership.
Article 121, paragraph 3, of the Family Code is emphatic that the payment of personal debts
contracted by the husband or the wife before or during the marriage shall not be charged to the
conjugal partnership except to the extent that they redounded to the benefit of the family.
Here, the property in dispute also involves the family home. The loan is a corporate loan not a
personal one. Signing as a surety is certainly not an exercise of an industry or profession nor an
act of administration for the benefit of the family.
On the basis of the facts, the rules, the law and equity, the assailed decision should be upheld
as we now uphold it. This is, of course, without prejudice to petitioners right to enforce the
obligation in its favor against the PBM receiver in accordance with the rehabilitation program
and payment schedule approved or to be approved by the Securities & Exchange Commission.
WHEREFORE, the petition for review should be, as it is hereby, DENIED for lack of merit.

SO ORDERED.
Regalado (Chairman), Melo, Puno and Mendoza, JJ., concur.
Petition denied.
Note.Property acquired by both spouses through their work and industry shall be governed
by the rules on equal co-ownership. (Valdes vs. Regional Trial Court, Br. 102, Quezon City, 260
SCRA 221 [1996])
April 13, 2011.G.R. No. 183984.*
ARTURO SARTE FLORES, petitioner, vs. SPOUSES ENRICO L. LINDO, JR. and EDNA C.
LINDO, respondents.
The Case
Before the Court is a petition for review 1 assailing the 30 May 2008 Decision 2 and the 4 August
2008 Resolution3 of the Court of Appeals in CA-G.R. SP No. 94003.
The Antecedent Facts
The facts, as gleaned from the Court of Appeals Decision, are as follows:
On 31 October 1995, Edna Lindo (Edna) obtained a loan from Arturo Flores (petitioner)
amounting to P400,000 payable on 1 December 1995 with 3% compounded monthly interest and
3% surcharge in case of late payment. To secure the loan, Edna executed a Deed of Real Estate
Mortgage4 (the Deed) covering a property in the name of Edna and her husband Enrico (Enrico)
Lindo, Jr. (collectively, respondents). Edna also signed a Promissory Note 5 and the Deed for
herself and for Enrico as his attorney-in-fact.
Edna issued three checks as partial payments for the loan. All checks were dishonored for
insufficiency of funds, prompting petitioner to file a Complaint for Foreclosure of Mortgage with
Damages against respondents. The case was raffled to the Regional Trial Court of Manila,
Branch 33 (RTC, Branch 33) and docketed as Civil Case No. 00-97942.
In its 30 September 2003 Decision,6 the RTC, Branch 33 ruled that petitioner was not entitled
to judicial foreclosure of the mortgage. The RTC, Branch 33 found that the Deed was executed by
Edna without the consent and authority of Enrico. The RTC, Branch 33 noted that the Deed was
executed on 31 October 1995 while the Special Power of Attorney (SPA) executed by Enrico was
only dated 4 November 1995.
The RTC, Branch 33 further ruled that petitioner was not precluded from recovering the loan
from Edna as he could file a personal action against her. However, the RTC, Branch 33 ruled that
it had no jurisdiction over the personal action which should be filed in the place where the
plaintiff or the defendant resides in accordance with Section 2, Rule 4 of the Revised Rules on
Civil Procedure.

Petitioner filed a motion for reconsideration. In its Order 7dated 8 January 2004, the RTC,
Branch 33 denied the motion for lack of merit.
On 8 September 2004, petitioner filed a Complaint for Sum of Money with Damages against
respondents. It was raffled to Branch 42 (RTC, Branch 42) of the Regional Trial Court of Manila,
and docketed as Civil Case No. 04-110858.
Respondents filed their Answer with Affirmative Defenses and Counterclaims where they
admitted the loan but stated that it only amounted to P340,000. Respondents further alleged
that Enrico was not a party to the loan because it was contracted by Edna without Enricos
signature. Respondents prayed for the dismissal of the case on the grounds of improper
venue, res judicata and forum-shopping, invoking the Decision of the RTC, Branch 33. On 7
March 2005, respondents also filed a Motion to Dismiss on the grounds of res judicata and lack of
cause of action.
The Decision of the Trial Court
On 22 July 2005, the RTC, Branch 42 issued an Order 8denying the motion to dismiss. The
RTC, Branch 42 ruled that res judicata will not apply to rights, claims or demands which,
although growing out of the same subject matter, constitute separate or distinct causes of action
and were not put in issue in the former action. Respondents filed a motion for reconsideration. In
its Order9 dated 8 February 2006, the RTC, Branch 42 denied respondents motion. The RTC,
Branch 42 ruled that the RTC, Branch 33 expressly stated that its decision did not mean that
petitioner could no longer recover the loan petitioner extended to Edna.
Respondents filed a Petition for Certiorari and Mandamus with Prayer for a Writ of
Preliminary Injunction and/or Temporary Restraining Order before the Court of Appeals.
The Decision of the Court of Appeals
In its 30 May 2008 Decision, the Court of Appeals set aside the 22 July 2005 and 8 February
2006 Orders of the RTC, Branch 42 for having been issued with grave abuse of discretion.
The Court of Appeals ruled that while the general rule is that a motion to dismiss is
interlocutory and not appealable, the rule admits of exceptions. The Court of Appeals ruled that
the RTC, Branch 42 acted with grave abuse of discretion in denying respondents motion to
dismiss.
The Court of Appeals ruled that under Section 3, Rule 2 of the 1997 Rules of Civil Procedure,
a party may not institute more than one suit for a single cause of action. If two or more suits are
instituted on the basis of the same cause of action, the filing of one on a judgment upon the
merits in any one is available ground for the dismissal of the others. The Court of Appeals ruled
that on a nonpayment of a note secured by a mortgage, the creditor has a single cause of action
against the debtor, that is recovery of the credit with execution of the suit. Thus, the creditor may
institute two alternative remedies: either a personal action for the collection of debt or a real
action to foreclose the mortgage, but not both. The Court of Appeals ruled that petitioner had
only one cause of action against Edna for her failure to pay her obligation and he could not split
the single cause of action by filing separately a foreclosure proceeding and a collection case. By
filing a petition for foreclosure of the real estate mortgage, the Court of Appeals held that

petitioner had already waived his personal action to recover the amount covered by the
promissory note. Petitioner filed a motion for reconsideration. In its 4 August 2008 Resolution,
the Court of Appeals denied the motion.
Hence, the petition before this Court.
The Issue
The sole issue in this case is whether the Court of Appeals committed a reversible error in
dismissing the complaint for collection of sum of money on the ground of multiplicity of suits.
The Ruling of this Court
The petition has merit.
The rule is that a mortgage-creditor has a single cause of action against a mortgagor-debtor,
that is, to recover the debt.10 The mortgage-creditor has the option of either filing a personal
action for collection of sum of money or instituting a real action to foreclose on the mortgage
security.11 An election of the first bars recourse to the second, otherwise there would be
multiplicity of suits in which the debtor would be tossed from one venue to another depending on
the location of the mortgaged properties and the residence of the parties. 12
The two remedies are alternative and each remedy is complete by itself. 13 If the mortgagee opts
to foreclose the real estate mortgage, he waives the action for the collection of the debt, and vice
versa.14 The Court explained:
x x x in the absence of express statutory provisions, a mortgage creditor may institute against the
mortgage debtor either a personal action for debt or a real action to foreclose the mortgage. In other
words, he may pursue either of the two remedies, but not both. By such election, his cause of action can by
no means be impaired, for each of the two remedies is complete in itself. Thus, an election to bring a
personal action will leave open to him all the properties of the debtor for attachment and execution, even
including the mortgaged property itself. And, if he waives such personal action and pursues his remedy
against the mortgaged property, an unsatisfied judgment thereon would still give him the right to sue for
deficiency judgment, in which case, all the properties of the defendant, other than the mortgaged
property, are again open to him for the satisfaction of the deficiency. In either case, his remedy is
complete, his cause of action undiminished, and any advantages attendant to the pursuit of one or the
other remedy are purely accidental and are all under his right of election. On the other hand, a rule that
would authorize the plaintiff to bring a personal action against the debtor and simultaneously or
successively another action against the mortgaged property, would result not only in multiplicity of suits
so offensive to justice (Soriano v. Enriques, 24 Phil. 584) and obnoxious to law and equity (Osorio v. San
Agustin, 25 Phil. 404), but also in subjecting the defendant to the vexation of being sued in the place of his
residence or of the residence of the plaintiff, and then again in the place where the property lies.
15

The Court has ruled that if a creditor is allowed to file his separate complaints simultaneously
or successively, one to recover his credit and another to foreclose his mortgage, he will, in effect,
be authorized plural redress for a single breach of contract at so much costs to the court and with
so much vexation and oppressiveness to the debtor.16
In this case, however, there are circumstances that the Court takes into consideration.

Petitioner filed an action for foreclosure of mortgage. The RTC, Branch 33 ruled that
petitioner was not entitled to judicial foreclosure because the Deed of Real Estate Mortgage was
executed without Enricos consent. The RTC, Branch 33 stated:
All these circumstances certainly conspired against the plaintiff who has the burden of proving his
cause of action. On the other hand, said circumstances tend to support the claim of defendant Edna Lindo
that her husband did not consent to the mortgage of their conjugal property and that the loan application
was her personal decision.
Accordingly, since the Deed of Real Estate Mortgage was executed by defendant Edna Lindo lacks the
consent or authority of her husband Enrico Lindo, the Deed of Real Estate Mortgage is void pursuant to
Article 96 of the Family Code.
This does not mean, however, that the plaintiff cannot recover the P400,000 loan plus interest which he
extended to defendant Edna Lindo. He can institute a personal action against the defendant for the
amount due which should be filed in the place where the plaintiff resides, or where the defendant or any
of the principal defendants resides at the election of the plaintiff in accordance with Section 2, Rule 4 of
the Revised Rules on Civil Procedure. This Court has no jurisdiction to try such personal action.
17

Edna did not deny before the RTC, Branch 33 that she obtained the loan. She claimed,
however, that her husband did not give his consent and that he was not aware of the
transaction.18 Hence, the RTC, Branch 33 held that petitioner could still recover the amount due
from Edna through a personal action over which it had no jurisdiction.
Edna also filed an action for declaratory relief before the RTC, Branch 93 of San Pedro Laguna (RTC,
Branch 93), which ruled:
At issue in this case is the validity of the promissory note and the Real Estate Mortgage executed by
Edna Lindo without the consent of her husband.
The real estate mortgage executed by petition Edna Lindo over their conjugal property is undoubtedly
an act of strict dominion and must be consented to by her husband to be effective. In the instant case, the
real estate mortgage, absent the authority or consent of the husband, is necessarily void. Indeed, the real
estate mortgage is this case was executed on October 31, 1995 and the subsequent special power of
attorney dated November 4, 1995 cannot be made to retroact to October 31, 1995 to validate the mortgage
previously made by petitioner.
The liability of Edna Lindo on the principal contract of the loan however subsists notwithstanding the
illegality of the mortgage. Indeed, where a mortgage is not valid, the principal obligation which it
guarantees is not thereby rendered null and void. That obligation matures and becomes demandable in
accordance with the stipulation pertaining to it. Under the foregoing circumstances, what is lost is merely
the right to foreclose the mortgage as a special remedy for satisfying or settling the indebtedness which is
the principal obligation. In case of nullity, the mortgage deed remains as evidence or proof of a personal
obligation of the debtor and the amount due to the creditor may be enforced in an ordinary action.
In view of the foregoing, judgment is hereby rendered declaring the deed of real estate mortgage as
void in the absence of the authority or consent of petitioners spouse therein. The liability of petitioner on
the principal contract of loan however subsists notwithstanding the illegality of the real estate
mortgage.
19

The RTC, Branch 93 also ruled that Ednas liability is not affected by the illegality of the real
estate mortgage.
Both the RTC, Branch 33 and the RTC, Branch 93 misapplied the rules.
Article 124 of the Family Code provides:
The administration and enjoyment of the conjugal partnership property shall belong to both spouses
jointly. In case of disagreement, the husbands decision shall prevail, subject to recourse to the court by
the wife for proper remedy, which must be availed of within five years from the date of contract
implementing such decision.124.Art.
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 disposition or encumbrance without 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. However, the transaction shall be construed as a continuing offer on the part of the
consenting spouse and the third person, and may be perfected as a binding contract upon the
acceptance by the other spouse or authorization by the court before the offer is withdrawn by
either or both offerors. (Emphasis supplied)

Article 124 of the Family Code of which applies to conjugal partnership property, is a
reproduction of Article 96 of the Family Code which applies to community property.
Both Article 96 and Article 127 of the Family Code provide that the powers do not include
disposition or encumbrance without the written consent of the other spouse. Any disposition or
encumbrance without the written consent shall be void. However, both provisions also state that
the transaction shall be construed as a continuing offer on the part of the consenting spouse and
the third person, and may be perfected as a binding contract upon the acceptance by the
other spouse x x x before the offer is withdrawn by either or both offerors.
In this case, the Promissory Note and the Deed of Real Estate Mortgage were executed on 31
October 1995. The Special Power of Attorney was executed on 4 November 1995. The execution
of the SPA is the acceptance by the other spouse that perfected the continuing offer as
a binding contract between the parties, making the Deed of Real Estate Mortgage a
valid contract.
However, as the Court of Appeals noted, petitioner allowed the decisions of the RTC, Branch
33 and the RTC, Branch 93 to become final and executory without asking the courts for an
alternative relief. The Court of Appeals stated that petitioner merely relied on the declarations of
these courts that he could file a separate personal action and thus failed to observe the rules and
settled jurisprudence on multiplicity of suits, closing petitioners avenue for recovery of the loan.
Nevertheless, petitioner still has a remedy under the law.
In Chieng v. Santos,20 this Court ruled that a mortgage-creditor may institute against the
mortgage-debtor either a personal action for debt or a real action to foreclose the mortgage. The
Court ruled that the remedies are alternative and not cumulative and held that the filing of a
criminal action for violation of Batas Pambansa Blg. 22 was in effect a collection suit or a suit for
the recovery of the mortgage-debt.21 In that case, however, this Court pro hac vice, ruled that

respondents could still be held liable for the balance of the loan, applying the principle that no
person may unjustly enrich himself at the expense of another.22
The principle of unjust enrichment is provided under Article 22 of the Civil Code which
provides:
Every person who through an act of performance by another, or any other means, acquires or comes
into possession of something at the expense of the latter without just or legal ground, shall return the
same to him.22.Art.

There is unjust enrichment when a person unjustly retains a benefit to the loss of another, or
when a person retains money or property of another against the fundamental principles of
justice, equity and good conscience.23 The principle of unjust enrichment requires two conditions:
(1) that a person is benefited without a valid basis or justification, and (2) that such benefit is
derived at the expense of another.24
The main objective of the principle against unjust enrichment is to prevent one from enriching
himself at the expense of another without just cause or consideration. 25The principle is applicable
in this case considering that Edna admitted obtaining a loan from petitioners, and the same has
not been fully paid without just cause. The Deed was declared void erroneously at the instance of
Edna, first when she raised it as a defense before the RTC, Branch 33 and second, when she filed
an action for declaratory relief before the RTC, Branch 93. Petitioner could not be expected to ask
the RTC, Branch 33 for an alternative remedy, as what the Court of Appeals ruled that he should
have done, because the RTC, Branch 33 already stated that it had no jurisdiction over any
personal action that petitioner might have against Edna.
Considering the circumstances of this case, the principle against unjust enrichment, being a
substantive law, should prevail over the procedural rule on multiplicity of suits. The Court of
Appeals, in the assailed decision, found that Edna admitted the loan, except that she claimed it
only amounted to P340,000. Edna should not be allowed to unjustly enrich herself because of the
erroneous decisions of the two trial courts when she questioned the validity of the Deed.
Moreover, Edna still has an opportunity to submit her defenses before the RTC, Branch 42 on her
claim as to the amount of her indebtedness.
WHEREFORE, the 30 May 2008 Decision and the 4 August 2008 Resolution of the Court of
Appeals in CA-G.R. SP No. 94003 are SET ASIDE. The Regional Trial Court of Manila, Branch
42 is directed to proceed with the trial of Civil Case No. 04-110858.
SO ORDERED.
Nachura, Peralta, Abad and Mendoza, JJ., concur.
Judgment and resolution set aside.
Note.It is settled that the buyer in a foreclosure sale becomes the absolute owner of the
property purchased if it is not redeemed within one year after the registration of the sale. As
such, he is entitled to the possession of the property and can demand that he be placed in
possession at any time following the consolidation of ownership in his name and the issuance to
him of a new TCT. (Villanueva vs. Cherdan Lending Investors Corporation, 633 SCRA 173 [2010])

o0o
G.R. No. 111547. January 27, 1997.

SPS. TRINIDAD S. ESTONINA and PAULINO ESTONINA, petitioners, vs. COURT OF

APPEALS, SPS. CELSO ATAYAN and NILDA HICBAN and CONSUELO VDA. DE GARCIA,
REMEDIOS, ELVIRA, OFELIA, VIRGILIO, MARILOU, and LOLITA all surnamed GARCIA,
and HEIRS OF CASTOR GARCIA and of SANTIAGO GARCIA, JR., respondents.

RESOLUTION
FRANCISCO, J.:
The instant controversy involves Lot C of the amended plan Psu-22983 Amd., situated in Barrio
Santisima Cruz, Sta. Cruz, Laguna with an area of 273 square meters. The said parcel of land
was covered by Transfer Certificate of Title No. T-19175 issued in the name of Santiago Garcia
who died on October 2, 1967. Some six years after Santiago Garcias death, or on March 10, 1973,
the then Court of First Instance of Manila issued an order granting Trinidad Estoninas
application for a writ of preliminary attachment in Civil Case No. 88430 entitled Trinidad
Estonina, et al., plaintiffs - versus Consuelo Garcia, et al., defendants. Consequently, a notice of
attachment was inscribed as a memorandum of encumbrance at the back of TCT No.T-19175 in
favor of Trinidad Estonina covering all the rights, title, interest, and participation that Consuelo
Garcia, the widow of Santiago Garcia, may have in and to the parcel of land covered by the said
title.
As a result of a prior sale made by Santiago Garcia to Anselmo Balasoto of a sixty square
meter portion of the said parcel of land, TCT No. T-19175 was cancelled and in lieu thereof, TCT
No. 77215 was issued on July 25, 1975 in the name of Santiago Garcia covering the remaining
213 square meters. TCT No. 77215 was in turn cancelled on June 27, 1977 because of another
sale purportedly made during his lifetime by Santiago Garcia to his wifes niece, Ofelia Garcia,
and TCT No. 82229 was issued in the name of the latter.
On August 14, 1977, the children of Santiago Garcia with his first wife, Adela Isoreta, namely
Ofelia, Remedios, Elvira and Castor, all surnamed Garcia, executed a deed selling, transferring
and conveying unto the spouses Celso Atayan and Nilda Hicban (hereinafter referred to as the
spouses Atayan for brevity) their title, rights, interest and participation which is four tenths
(4/10) pro indiviso share in the said parcel of land covered by TCT No. T-82229. About a year
after, Santiago Garcias second wife and widow, Consuelo Garcia and their children, Virgilio,
Marilou and Lolita, all surnamed Garcia, followed suit and also sold to the spouses Atayan, their
four-tenths (4/10) pro indiviso share in the same parcel of land. On February 22, 1980, Estrella

R. Garcia, the widow of Santiago Garcia, Jr. (Santiago Garcias son from his first marriage), and
their children, Roderick, Elizabeth, Dorothy and Erlinda, likewise sold to the spouses Atayan,
their onetenth (1/10) pro indiviso share in the parcel of land covered by TCT No. T-82229.
1

Subsequent to a favorable decision obtained by Trinidad Estonina in Civil Case No. 88430
against Consuelo Garcia, execution pending appeal was made on the parcel of land formerly
covered by TCT No. T-19175 (now covered by TCT No. T-82229) on July 20, 1979. The said parcel
of land was sold at a public auction where Trinidad Estonina was the highest bidder. Consuelo
Garcia appealed the decision in Civil Case No. 88430 before the then Intermediate Appellate
Court which, however, ruled in favor of Trinidad Estonina. Thus, on February 29, 1984, the
Intermediate Appellate Court rendered a decision declaring owners copy of Certificate of Title
No. T-82229 a NULLITY and/or CANCELLED. Upon the finality of the said decision, TCT No. T82229 was cancelled by the Register of Deeds of Laguna and in lieu thereof, TCT No. T-99961
was issued in favor of Trinidad Estonina married to Paulino Estonina.
2

On July 25, 1985, the spouses Atayan filed a complaint for annulment of sheriffs sale and
transfer certificate of title with damages before Branch 28 of the Regional Trial Court (RTC) of
Santa Cruz, Laguna, impleading as defendants therein the spouses Trinidad and Paulino
Estonina (hereinafter referred to as the spouses Estonina for brevity), Nicanor E. Silvano,
Reynaldo G. Javier, Edmund R. Solidum, the Register of Deeds of Laguna, and the heirs of
Santiago Garcia who sold to the spouses Atayan their pro indivisoshares in the parcel of land
covered by TCT No. T-82229. The complaint prayed:
that the sale at public auction of the parcel of land covered by TCT No. 77215 x x x and the Sheriffs final
deed x x x be declared null and void; that the Register of Deeds be ordered to cancel TCT No. T-99961 in
the name of Trinidad S. Estonina married to Paulino Estonina x x x; that the plaintiffs be declared
owners of nine-tenths (9/10) pro indiviso interests, shares and participation in the parcel of land covered
by TCT No. T-77215, x x x, and the Register of Deeds ordered to issue a new certificate of title
corresponding thereto; and that the defendants Nicanor E. Silvano, Reynaldo G. Javier and Edmund R.
Solidum be ordered to pay, jointly and severally, the plaintiffs spouses and (sic) amount of P30,000 for
attorneys fees, P15,000 for litigation expenses incurred, P20,000 for moral damages and P15,000 for
exemplary damages x x x.
3

In their amended answer to the plaintiffs complaint, the spouses Estonina claimed that:
the plaintiffs (spouses Atayan) had acted in bad faith in allegedly purchasing the parcel of land, they
being aware that it was the subject of a lawful and valid attachment; that there was no valid extrajudicial
settlement of agreement executed by the heirs of Santiago Garcia by which their rights could have been
adjusted and settled before doing anything with his property; that the deeds of sale executed by his heirs
were anomalous, fictitious and simulated intended to defeat the adverse judgment rendered by the Court
against them and the writ of attachment issued pursuant thereto as they were derived from a falsified
deed of sale purportedly executed by Santiago Garcia on June 23, 1967; that the property in question is

presumed to be conjugal answerable for obligations and liabilities of the conjugal partnership incurred
during the existence of the partnership; and that the plaintiffs were guilty of laches (pp. 90-99, rec.).
4

After trial, the RTC rendered a decision dismissing the complaint for lack of merit. It found,
among others, that the property covered by TCT No. T-19175 and now covered by TCT No. T82229, was acquired during the marriage of Santiago Garcia and Consuelo Gaza, and is
presumed to be conjugal in nature. Upon the death of Santiago Garcia on October 2, 1967, his
conjugal share of one-half (1/2) of the said parcel of land was transmitted to his heirs by intestate
succession. By the law on intestate succession, his nine children, five by his first wife and four out
of the subsequent marriage, and Consuelo Garcia, his second wife and widow, inherited the same
at one-tenth (1/10) each pro indiviso. The remaining one-half (1/2) pertained to the conjugal
share of Consuelo Garcia. Thus, inasmuch as Consuelo Garcia inherited one-tenth (1/10) of her
husbands conjugal share in the said property and is the owner of one-half (1/2) thereof as her
conjugal share, she owns a total of 55% (or 1/10 plus 1/2) of the said parcel of land. Finding as
such, the RTC held that what could be attached by the spouses Estonina and later levied on
execution and sold at public auction was only Consuelo Garcias rights and interests which is fifty
five per cent (55%) of the property. Thus, the RTC ordered the Register of Deeds of the Province
of Laguna, to cancel Transfer Certificate of Title No. T-99961 in the name of TRINIDAD S.
ESTONINA, married to Paulino Estonina, and issue another one, also in her name, married to
the same person, stating therein that said person is the owner of the property therein covered to
the extent of 55% pro indiviso, and the remaining 45% belongs to the heirs of Santiago
Garcia pro indiviso.
5

Both the spouses Atayan and the heirs of Santiago Garcia appealed to the herein public
respondent Court of Appeals. After a thorough review of the evidence on record, the Court of
Appeals concluded that contrary to the finding of the RTC, the parcel of land in question was not
the conjugal property of Santiago and Consuelo Garcia, but was the formers exclusive property.
It was therefore the entire property that formed part of Santiago Garcias estate upon his death.
When Santiago Garcia died, his nine children and Consuelo Garcia inherited the said property
each to the extent of one/tenth (1/10) pro indiviso share. Hence, it was only Consuelo Garcias one
tenth (1/10) pro indiviso share in the parcel of land in question which could be validly attached,
levied and sold in execution to satisfy the judgment against her and in favor of Trinidad Estonina
in Civil Case No. 88430. On August 12, 1993, the Court of Appeals rendered a decision, the
dispositive portion of which reads as follows:
WHEREFORE, the judgment appealed from is REVERSED and SET ASIDE. Accordingly, Transfer
Certificate of Title No. T99961, covering Lot 2-C (LRC) Psd 223486, situated in Sta. Cruz, Laguna issued
in the name of Trinidad S. Estonina, married to Paulino Estonina x x x, is hereby ordered cancelled and
nullified and the Register of Deeds of Laguna ordered to issue another in lieu thereof covering the same
parcel of land in the name of Trinidad S. Estonina, widow, one-tenth (1/10) pro indiviso share, and
spouses Celso Atayan and Nilda Hicban, nine-tenths (9/10) pro indivisoshare.
7

Aggrieved, the spouses Estonina filed this petition and raised the following issues:
I.
The Court of Appeals, in declaring the property in question as exclusive property of Santiago Garcia,
DISREGARDED the long established doctrine that the trial courts findings especially as to the credibility
of the witnesses should be respected.
II.
The Court of Appeals, in issuing the questioned decision, solely centered on the nature of the property
in question, and conveniently brushed aside the following legal issues raised on appeal (thereby leading to
an erroneous judgment), to wit:
1. (a)That the plaintiffs-appellants (Sps. Atayan and now private respondents) have no cause of
action and/or lack of cause of action against Estoninas (now petitioners). Assuming, arguendo
that they have, the same is now barred by laches. The same is true with the appellants Garcias
(now also private respondents). Hence, the title of Estonina should have been declared valid.
2. (b)That the plaintiffs-appellants (Sps. Atayan and now private respondents) are not parties to Civil
Case No. 88430 where the writ of attachment was issued and which resulted in the execution
pending appeal. Hence, they cannot attack the validity of the execution in this proceedings
especially so when judgment therein had already attained finality.
III.
Consequently, by virtue of the foregoing errors, the Court of Appeals erred in not granting herein
petitioners prayer that the trial courts findings be modified by upholding Estoninas title to the property
under TCT No. T-99961, and affirming in all other respect the order of the trial court.
8

The settled rule is that the factual findings of the appellate court are deemed conclusive. Thus,
the jurisdiction of this Court in cases brought to it from the Court of Appeals is generally limited
to the review and revision of errors of law allegedly committed by the appellate court. As such,
this Court is generally not duty-bound to analyze and weigh all over again the evidence already
considered in the proceedings below. This is, however, subject to several exceptions, one of which
is when there is a conflict between the factual findings of the Court of Appeals and the trial
court, as in this case, warranting a review by this Court of such factual findings.
9

10

11

In concluding that the parcel of land in question was the conjugal property of Santiago and
Consuelo Garcia, the trial court relied solely on the fact that when TCT No. T-19175 covering the
said land was issued, Santiago Garcia was already married to Consuelo Garcia, thus giving rise
to the presumption that the same was indeed conjugal. It found the testimony of Consuelo Garcia
that the said property was inherited by Santiago Garcia from his deceased mother to be self-

serving and completely disregarded the said testimony. And as regards the inscription at the
back of the TCT No. T19175 that:
[t]he property described in this title is subject to the claims of the heirs of the deceased Eugenia
Clemente, within two (2) years from January 27, 1961, in accordance with the provision of Section 4, Rule
74 of the Rules of Court,
12

the trial court held that there is no showing at all from said inscription that said property came
from the parents of Santiago Garcia.
13

On the other hand, the Court of Appeals in taking the stance that the said land was the
exclusive property of Santiago Garcia, gave credence to the unrebutted testimony of Consuelo
Garcia that the said parcel of land was inherited by Santiago Garcia from his deceased mother
Eugenia Clemente and that it used to be part of a big tract of land which was divided among
Santiago and his sisters.
The evidence on record as well as established jurisprudence on the matter, lead us to concur
with the finding of the Court of Appeals that the property involved in this dispute is indeed the
exclusive property of the deceased Santiago Garcia. It has been repeatedly held by this Court
that the presumption under Article 160 of the Civil Code that all property of the marriage belong
to the conjugal partnership applies only when there is proof that the property was acquired
during the marriage. Otherwise stated, proof of acquisition during the marriage is a
condition sine qua non for the operation of the presumption in favor of the conjugal
partnership. In the case at bench, the petitioners have been unable to present any proof that the
property in question was acquired during the marriage of Santiago and Consuelo. They anchor
their claim solely on the fact that when the title over the land in question was issued, Santiago
was already married to Consuelo as evidenced by the registration in the name of Santiago
Garcia married to Consuelo Gaza. This, according to the spouses Estonina, suffices to establish
the conjugal nature of the property. The foregoing contention has no merit. In the case of Jocson
v. Court of Appeals we held that:
14

15

The certificates of title, however, upon which petitioner rests his claim is insufficient. The fact that the
properties were registered in the name of Emilio Jocson, married to Alejandra Poblete is no proof that
the properties were acquired during the spouses coverture. Acquisition of title and registration thereof
are two different acts. It is well settled that registration does not confer title but merely confirms one
already existing x x x. It may be that the properties under dispute were acquired by Emilio Jocson when
he was still a bachelor but were registered only after his marriage to Alejandra Poblete, which explains
why he was described in the certificates of title as married to the latter.
Contrary to petitioners position, the certificates of title show, on their face, that the properties were
exclusively Emilio Jocsons, the registered owner. This is so because the words married to preceding
Alejandra Poblete are merely descriptive of the civil status of Emilio Jocson x x x. In other words, the

import from the certificates of title is that Emilio Jocson is the owner of the properties, the same having
been registered in his name alone, and that he is married to Alejandra Poblete.
16

Being the exclusive property of Santiago Garcia, it was the entire parcel of land in question that
formed part of his estate and which passed to his ten heirs by compulsory succession upon his
death. And as correctly held by the Court of Appeals, what could therefore be attached and sold
at public auction in Civil Case No. 88430 was only the one-tenth (1/10) pro indiviso share of
Consuelo Garcia in the said parcel of land. The sale at public auction of the disputed property in
its entirety by the Sheriff in favor of Trinidad Estonina over and above the one-tenth (1/10) share
of Consuelo Garcia is null and void, belonging as it does to the other heirs of Santiago Garcia and
later to the spouses Atayan. Worth reiterating is the basic precept that the power of the court in
the execution of judgments extends only over properties unquestionably belonging to the
judgment debtor. The levy by the sheriff of a property by virtue of a writ of attachment may be
considered as made under the authority of the court only when the property levied upon belongs
to the defendant. For, as the saying goes, one mans goods shall not be sold for another mans
debts.
17

18

The right of a third-party claimant to file an independent action to vindicate his claim of
ownership over the properties seized is reserved by Section 17, Rule 39 of the Rules of Court:
SEC. 17. Proceedings where property claimed by third person.If property levied on be claimed by any
other person than the judgment debtor or his agent, and such person make an affidavit of his title thereto
or his right to the possession thereof, stating the grounds of his right or title, and serve the same upon the
officer making the levy, and a copy thereof upon the judgment creditor, the officer shall not be bound to
keep the property, unless such judgment creditor or his agent, on demand of the officer, indemnify the
officer against such claim by a bond in a sum not greater than the value of the property levied on. In case
of disagreement as to such value, the same shall be determined by the court issuing the writ of execution.
The officer is not liable for damages, for the taking or the keeping of the property, to any third-party
claimant unless a claim is made by the latter and unless an action for damages is brought by him against
the officer within one hundred twenty (120) days from the date of the filing of the bond. But nothing
herein contained shall prevent such claimant or any third person from vindicating his claim to the property
by any other proper action.
x x x

xxx

x x x. (Italics supplied.)

As stated in the case of Sy v. Discaya, this proper action would have for its object the recovery
of ownership or possession of the property seized by the sheriff, as well as damages resulting
from the allegedly wrongful seizure and detention thereof despite the third party claim and it
may be brought against the sheriff and such other parties as may be alleged to have colluded
with him in the supposedly wrongful execution proceedings, such as the judgment creditor
himself. Such proper action, as above pointed out, is and should be an entirely separate and
19

distinct action from that in which execution has issued, if instituted by a stranger to the latter
suit.
20

In the case at bench, the filing by the spouses Atayan of an independent action with the court
other than the one which issued the writ of execution is proper as they were strangers to Civil
Case No. 88430. Such an independent action cannot be considered as an encroachment upon the
jurisdiction of a coequal and coordinate court. While it is true that property in custody of the law
may not be interfered with, without the permission of the proper court, this rule is confined to
cases where the property belongs to the defendant or one in which the defendant has proprietary
interests. But when the Sheriff, acting beyond the bounds of his office seizes a strangers
property, the rule does not apply and interference with his custody is not interference with
another courts custody.
21

22

The foregoing puts to rest any and all questions raised regarding the propriety of the course of
action taken by the spouses Atayan in vindication of their claim over the land in question. Anent
the contention that the spouses Atayan are guilty of laches, suffice it to state that this residual
argument deserves scant consideration. Being strangers to Civil Case No. 88430 where the writ
of execution over the land in question was issued, they cannot be faulted for filing the proper
action only in 1985 or six (6) years after the levy on execution. Besides, it was only in 1984 that
the Court of Appeals rendered a decision finally cancelling the title of their predecessors-ininterest and issuing another one in favor of Trinidad Estonina. The action filed by the spouses
Atayan seeking the annulment of the sheriffs sale and the transfer certificate of title with
damages immediately thereafter or on July 25, 1985 cannot be considered as undue delay nor
does it imply a lack of interest to enforce their claim over the disputed property.
WHEREFORE, the petition is DENIED and the assailed decision of the Court of Appeals is
affirmed in toto.
SO ORDERED.
Narvasa (C.J., Chairman), Davide, Jr., Melo andPanganiban, JJ., concur.
Petition denied, judgment affirmed in toto.
Note.All property of the marriage is presumed to belong to the conjugal partnership unless
it be proved that it pertains exclusively to the husband or to the wife. (Salvador vs. Court of
Appeals, 243 SCRA 239 [1995])
o0o

April 24, 2009.G.R. No. 145222.*

SPOUSES ROBERTO BUADO and VENUS BUADO, petitioners, vs. THE HONORABLE
COURT OF APPEALS, Former Division, and ROMULO NICOL, respondents.
TINGA,J.:
Before this Court is a petition for certiorari assailing the Decision 1 of the Court of Appeals in
CA-G.R. CV No. 47029 and its Resolution denying the motion for reconsideration thereof.
The case stemmed from the following factual backdrop:
On 30 April 1984, Spouses Roberto and Venus Buado (petitioners) filed a complaint for
damages against Erlinda Nicol (Erlinda) with Branch 19 of the Regional Trial Court (RTC) of
Bacoor, Cavite, docketed as Civil Case No. 84-33. Said action originated from Erlinda Nicols civil
liability arising from the criminal offense of slander filed against her by petitioners.
On 6 April 1987, the trial court rendered a decision ordering Erlinda to pay damages. The
dispositive portion reads:
Wherefore, judgment is hereby rendered in favor of the plaintiff[s] and against defendant ordering
the latter to pay the former the amount of thirty thousand (P30,000.00) pesos as moral damages, five
thousand (P5,000.00) pesos as attorneys fees and litigation expenses, another five thousand (P5,000.00)
pesos as exemplary damages and the cost of suit.
2

Said decision was affirmed, successively, by the Court of Appeals and this Court. It became
final and executory on 5 March 1992.
On 14 October 1992, the trial court issued a writ of execution, a portion of which provides:
Now, therefore, you are commanded that of the goods and chattels of the defendant Erlinda Nicol, or
from her estates or legal heirs, you cause the sum in the amount of forty thousand pesos (P40,000.00),
Philippine Currency, representing the moral damages, attorneys fees and litigation expenses and
exemplary damages and the cost of suit of the plaintiff aside from your lawful fees on this execution and
do likewise return this writ into court within sixty (60) days from date, with your proceedings endorsed
hereon.
But if sufficient personal property cannot be found whereof to satisfy this execution and lawful fees
thereon, then you are commanded that of the lands and buildings of said defendant you make the said
sum of money in the manner required by the Rules of Court, and make return of your proceedings with
this writ within sixty (60) days from date.
3

Finding Erlinda Nicols personal properties insufficient to satisfy the judgment, the Deputy
Sheriff issued a notice of levy on real property on execution addressed to the Register of Deeds of
Cavite. The notice of levy was annotated on the Transfer Certificate of Title No. T-125322.
On 20 November 1992, a notice of sheriffs sale was issued.
Two (2) days before the public auction sale on 28 January 1993, an affidavit of third-party
claim from one Arnulfo F. Fulo was received by the deputy sheriff prompting petitioners to put up
a sheriffs indemnity bond. The auction sale proceeded with petitioners as the highest bidder.
On 4 February 1993, a certificate of sale was issued in favor of petitioners.

Almost a year later on 2 February 1994, Romulo Nicol (respondent), the husband of Erlinda
Nicol, filed a complaint for annulment of certificate of sale and damages with preliminary
injunction against petitioners and the deputy sheriff. Respondent, as plaintiff therein, alleged
that the defendants, now petitioners, connived and directly levied upon and execute his real
property without exhausting the personal properties of Erlinda Nicol. Respondent averred that
there was no proper publication and posting of the notice of sale. Furthermore, respondent
claimed that his property which was valued at P500,000.00 was only sold at a very low price of
P51,685.00, whereas the judgment obligation of Erlinda Nicol was only P40,000.00. The case was
assigned to Branch 21 of the RTC of Imus, Cavite.
In response, petitioners filed a motion to dismiss on the grounds of lack of jurisdiction and
that they had acted on the basis of a valid writ of execution. Citing De Leon v.
Salvador,4 petitioners claimed that respondent should have filed the case with Branch 19 where
the judgment originated and which issued the order of execution, writ of execution, notice of levy
and notice of sheriffs sale.
In an Order5 dated 18 April 1994, the RTC dismissed respondents complaint and ruled
that Branch 19 has jurisdiction over the case, thus:
As correctly pointed out by the defendants, any flaw in the implementation of the writ of execution by
the implementing sheriff must be brought before the court issuing the writ of execution. Besides, there are
two (2) remedies open to the plaintiff, if he feels that the property being levied on belongs to him and not
to the judgment debtor. The first remedy is to file a third-party claim. If he fails to do this, a right is
reserved to him to vindicate his claim over the property by any proper action. But certainly, this is not the
proper action reserved to the plaintiff to vindicate his claim over the property in question to be ventilated
before this court. As earlier stated, this case should have been addressed to Branch 19, RTC Bacoor as it
was that court which issued the writ of execution.
6

Respondent moved for reconsideration but it was denied on 26 July 1994.

On appeal, the Court of Appeals reversed the trial court and held that Branch 21 has
jurisdiction to act on the complaint filed by appellant. The dispositive portion reads:
WHEREFORE, the Orders appealed from are hereby REVERSED and SET ASIDE. This case is
REMANDED to the Regional Trial Court of Imus, Cavite, Branch 21 for further proceedings.
SO ORDERED.
7

Petitioners motion for reconsideration was denied on 23 August 2000. Hence, the instant
petition attributing grave abuse of discretion on the part of the Court of Appeals.
A petition for certiorari is an extraordinary remedy that is adopted to correct errors of
jurisdiction committed by the lower court or quasi-judicial agency, or when there is grave abuse
of discretion on the part of such court or agency amounting to lack or excess of jurisdiction.
Where the error is not one of jurisdiction, but of law or fact which is a mistake of judgment, the
proper remedy should be appeal. In addition, an independent action for certiorari may be availed
of only when there is no appeal or any plain, speedy and adequate remedy in the ordinary course
of law.8

Nowhere in the petition was it shown that the jurisdiction of the Court of Appeals was
questioned. The issue devolves on whether the husband of the judgment debtor may file an
independent action to protect the conjugal property subject to execution. The alleged error
therefore is an error of judgment which is a proper subject of an appeal.
Nevertheless, even if we were to treat this petition as one for review, the case should still be
dismissed on substantive grounds.
Petitioners maintain that Branch 19 retained jurisdiction over its judgment to the exclusion
of all other co-ordinate courts for its execution and all incidents thereof, in line with De Leon v.
Salvador. Petitioners insist that respondent, who is the husband of the judgment debtor, is not
the third party contemplated in Section 17 (now Section 16), Rule 39 of the Rules of Court,
hence a separate action need not be filed. Furthermore, petitioners assert that the obligation of
the wife redounded to the benefit of the conjugal partnership and cited authorities to the effect
that the husband is liable for the tort committed by his wife.
Respondent on the other hand merely avers that the decision of the Court of Appeals is
supported by substantial evidence and in accord with law and jurisprudence. 9
Verily, the question of jurisdiction could be resolved through a proper interpretation of Section
16, Rule 39 of the Rules of Court, which reads:
16.Sec.Proceedings where property claimed by third person.
If the property levied on is claimed by any person other than the judgment obligor or his agent, and
such person makes an affidavit of his title thereto or right to the possession thereof, stating the grounds of
such right or title, and serves the same upon the officer making the levy and a copy thereof upon the
judgment obligee, the officer shall not be bound to keep the property, unless such judgment obligee, on
demand of the officer, files a bond approved by the court to indemnify the third-party claimant in a sum
not less than the value of the property levied on. In case of disagreement as to such value, the same shall
be determined by the court issuing the writ of execution. No claim for damages for the taking or keeping of
the property may be enforced against the bond unless the action therefor is filed within one hundred
twenty (120) days from the date of the filing of the bond.
The officer shall not be liable for damages for the taking or keeping of the property, to any third-party
claimant if such bond is filed.Nothing herein contained shall prevent such claimant or any third
person from vindicating his claim to the property in a separate action, or prevent the
judgment obligee from claiming damages in the same or a separate action against a thirdparty claimant who filed a frivolous or plainly spurious claim.
When the writ of execution is issued in favor of the Republic of the Philippines, or any officer duly
representing it, the filing of such bond shall not be required, and in case the sheriff or levying officer is
sued for damages as a result of the levy, he shall be represented by the Solicitor General and if held liable
therefor, the actual damages adjudged by the court shall be paid by the National Treasurer out of such
funds as may be appropriated for the purpose. (Emphasis Supplied)

Apart from the remedy of terceria available to a third-party claimant or to a stranger to the
foreclosure suit against the sheriff or officer effecting the writ by serving on him an affidavit of
his title and a copy thereof upon the judgment creditor, a third-party claimant may also resort to
an independent separate action, the object of which is the recovery of ownership or possession of

the property seized by the sheriff, as well as damages arising from wrongful seizure and
detention of the property. If a separate action is the recourse, the third-party claimant must
institute in a forum of competent jurisdiction an action, distinct and separate from the action in
which the judgment is being enforced, even before or without need of filing a claim in the court
that issued the writ.10
A third-party claim must be filed by a person other than the judgment debtor or his agent. In
other words, only a stranger to the case may file a third-party claim.
This leads us to the question: Is the husband, who was not a party to the suit but whose
conjugal property is being executed on account of the other spouse being the judgment obligor,
considered a stranger?
In determining whether the husband is a stranger to the suit, the character of the property
must be taken into account. In Mariano v. Court of Appeals,11 which was later adopted in Spouses
Ching v. Court of Appeals,12 this Court held that the husband of the judgment debtor cannot be
deemed a stranger to the case prosecuted and adjudged against his wife for an obligation that
has redounded to the benefit of the conjugal partnership. 13 On the other hand, inNaguit v. Court
of Appeals14 and Sy v. Discaya,15 the Court stated that a spouse is deemed a stranger to the action
wherein the writ of execution was issued and is therefore justified in bringing an independent
action to vindicate her right of ownership over his exclusive or paraphernal property.
Pursuant to Mariano however, it must further be settled whether the obligation of the
judgment debtor redounded to the benefit of the conjugal partnership or not.
Petitioners argue that the obligation of the wife arising from her criminal liability is
chargeable to the conjugal partnership. We do not agree.
There is no dispute that contested property is conjugal in nature. Article 122 of the Family
Code16 explicitly provides that payment of personal debts contracted by the husband or the wife
before or during the marriage shall not be charged to the conjugal partnership except insofar as
they redounded to the benefit of the family.
Unlike in the system of absolute community where liabilities incurred by either spouse by
reason of a crime orquasi-delict is chargeable to the absolute community of property, in the
absence or insufficiency of the exclusive property of the debtor-spouse, the same advantage is not
accorded in the system of conjugal partnership of gains. The conjugal partnership of gains has no
duty to make advance payments for the liability of the debtor-spouse.
Parenthetically, by no stretch of imagination can it be concluded that the civil obligation
arising from the crime of slander committed by Erlinda redounded to the benefit of the conjugal
partnership.
To reiterate, conjugal property cannot be held liable for the personal obligation contracted by
one spouse, unless some advantage or benefit is shown to have accrued to the conjugal
partnership.17
In Guadalupe v. Tronco,18 this Court held that the car which was claimed by the third party
complainant to be conjugal property was being levied upon to enforce a judgment for support

filed by a third person, the third-party claim of the wife is proper since the obligation which is
personal to the husband is chargeable not on the conjugal property but on his separate property.
Hence, the filing of a separate action by respondent is proper and jurisdiction is thus vested
on Branch 21. Petitioners failed to show that the Court of Appeals committed grave abuse of
discretion in remanding the case to Branch 21 for further proceedings.
WHEREFORE, the petition is DISMISSED. The Decision of the Court of Appeals is
AFFIRMED. Costs against petitioners.
SO ORDERED.
Carpio-Morales,** Velasco, Jr., Leonardo-De Castro***and Brion, JJ., concur.
Petition dismissed, judgment affirmed.
Note.Pre-trial may proceed even in the absence of an answer to the third-party complaint
where circumstances show that no such answer was forthcoming. (Philippine Pryce Assurance
Corporation vs. Court of Appeals, 230 SCRA 164 [1994])
o0o
January 19, 2011.G.R. No. 178044.*
ALAIN M. DIO, petitioner, vs. MA. CARIDAD L. DIO, respondent.
The Case
Before the Court is a petition for review1 assailing the 18 October 2006 Decision2 and the 12 March 2007 Order3of
the Regional Trial Court of Las Pias City, Branch 254 (trial court) in Civil Case No. LP-01-0149.
The Antecedent Facts
Alain M. Dio (petitioner) and Ma. Caridad L. Dio (respondent) were childhood friends and sweethearts. They
started living together in 1984 until they decided to separate in 1994. In 1996, petitioner and respondent decided to
live together again. On 14 January 1998, they were married before Mayor Vergel Aguilar of Las Pias City.
On 30 May 2001, petitioner filed an action for Declaration of Nullity of Marriage against respondent, citing
psychological incapacity under Article 36 of the Family Code. Petitioner alleged that respondent failed in her marital
obligation to give love and support to him, and had abandoned her responsibility to the family, choosing instead to
go on shopping sprees and gallivanting with her friends that depleted the family assets. Petitioner further alleged
that respondent was not faithful, and would at times become violent and hurt him.
Extrajudicial service of summons was effected upon respondent who, at the time of the filing of the petition, was
already living in the United States of America. Despite receipt of the summons, respondent did not file an answer to
the petition within the reglementary period. Petitioner later learned that respondent filed a petition for
divorce/dissolution of her marriage with petitioner, which was granted by the Superior Court of California on 25 May
2001. Petitioner also learned that on 5 October 2001, respondent married a certain Manuel V. Alcantara.
On 30 April 2002, the Office of the Las Pias prosecutor found that there were no indicative facts of collusion
between the parties and the case was set for trial on the merits.
Dr. Nedy L. Tayag (Dr. Tayag), a clinical psychologist, submitted a psychological report establishing that respondent
was suffering from Narcissistic Personality Disorder which was deeply ingrained in her system since her early
formative years. Dr. Tayag found that respondents disorder was long-lasting and by nature, incurable.

In its 18 October 2006 Decision, the trial court granted the petition on the ground that respondent was
psychologically incapacited to comply with the essential marital obligations at the time of the celebration of the
marriage.
The Decision of the Trial Court
The trial court ruled that based on the evidence presented, petitioner was able to establish respondents
psychological incapacity. The trial court ruled that even without Dr. Tayags psychological report, the allegations in
the complaint, substantiated in the witness stand, clearly made out a case of psychological incapacity against
respondent. The trial court found that respondent committed acts which hurt and embarrassed petitioner and the
rest of the family, and that respondent failed to observe mutual love, respect and fidelity required of her under Article
68 of the Family Code. The trial court also ruled that respondent abandoned petitioner when she obtained a divorce
abroad and married another man.
The dispositive portion of the trial courts decision reads:
WHEREFORE, in view of the foregoing, judgment is hereby rendered:
1. Declaring the marriage between plaintiff ALAIN M. DIO and defendant MA. CARIDAD L. DIO on
January 14, 1998, and all its effects under the law, as NULL and VOID from the beginning; and
2. Dissolving the regime of absolute community of property.
A DECREE OF ABSOLUTE NULLITY OF MARRIAGE shall only be issued upon compliance with Article[s] 50 and
51 of the Family Code.
Let copies of this Decision be furnished the parties, the Office of the Solicitor General, Office of the City Prosecutor,
Las Pias City and the Office of the Local Civil Registrar of Las Pias City, for their information and guidance.
SO ORDERED.4
Petitioner filed a motion for partial reconsideration questioning the dissolution of the absolute community of property
and the ruling that the decree of annulment shall only be issued upon compliance with Articles 50 and 51 of the
Family Code.
In its 12 March 2007 Order, the trial court partially granted the motion and modified its 18 October 2006 Decision as
follows:
WHEREFORE, in view of the foregoing, judgment is hereby rendered:
1) Declaring the marriage between plaintiff ALAIN M. DIO and defendant MA. CARIDAD L. DIO on
January 14, 1998, and all its effects under the law, as NULL and VOID from the beginning; and
2) Dissolving the regime of absolute community of property.
A DECREE OF ABSOLUTE NULLITY OF MARRIAGE shall be issued after liquidation, partition and distribution of
the parties properties under Article 147 of the Family Code.
Let copies of this Order be furnished the parties, the Office of the Solicitor General, the Office of the City Prosecutor
of Las Pias City and the Local Civil Registrar of Las Pias City, for their information and guidance. 5
Hence, the petition before this Court.
The Issue

The sole issue in this case is whether the trial court erred when it ordered that a decree of absolute nullity of
marriage shall only be issued after liquidation, partition, and distribution of the parties properties under Article 147 of
the Family Code.
The Ruling of this Court
The petition has merit.
Petitioner assails the ruling of the trial court ordering that a decree of absolute nullity of marriage shall only be
issued after liquidation, partition, and distribution of the parties properties under Article 147 of the Family Code.
Petitioner argues that Section 19(1) of the Rule on Declaration of Absolute Nullity of Null Marriages and Annulment
of Voidable Marriages6 (the Rule) does not apply to Article 147 of the Family Code.
We agree with petitioner.
The Court has ruled in Valdes v. RTC, Branch 102, Quezon City that in a void marriage, regardless of its cause, the
property relations of the parties during the period of cohabitation is governed either by Article 147 or Article 148 of
the Family Code.7 Article 147 of the Family Code applies to union of parties who are legally capacitated and not
barred by any impediment to contract marriage, but whose marriage is nonetheless void, 8 such as petitioner and
respondent in the case before the Court.
Article 147 of the Family Code provides:
Article 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 formers 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 coownership 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.
For Article 147 of the Family Code to apply, the following elements must be present:
1. The man and the woman must be capacitated to marry each other;
2. They live exclusively with each other as husband and wife; and
3. Their union is without the benefit of marriage, or their marriage is void. 9
All these elements are present in this case and there is no question that Article 147 of the Family Code applies to
the property relations between petitioner and respondent.
We agree with petitioner that the trial court erred in ordering that a decree of absolute nullity of marriage shall be
issued only after liquidation, partition and distribution of the parties properties under Article 147 of the Family Code.

The ruling has no basis because Section 19(1) of the Rule does not apply to cases governed under Articles 147 and
148 of the Family Code. Section 19(1) of the Rule provides:
Sec. 19. Decision. - (1) If the court renders a decision granting the petition, it shall declare therein that the decree of
absolute nullity or decree of annulment shall be issued by the court only after compliance with Articles 50 and 51 of
the Family Code as implemented under the Rule on Liquidation, Partition and Distribution of Properties.
The pertinent provisions of the Family Code cited in Section 19(1) of the Rule are:
Article 50. The effects provided for in paragraphs (2), (3), (4) and (5) of Article 43 and in Article 44 shall also apply in
proper cases to marriages which are declared void ab initio or annulled by final judgment under Articles 40 and 45.10
The final judgment in such cases 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.
All creditors of the spouses as well as of the absolute community of the conjugal partnership shall be notified of the
proceedings for liquidation.
In the partition, the conjugal dwelling and the lot on which it is situated, shall be adjudicated in accordance with the
provisions of Articles 102 and 129.
Article 51. In said partition, the value of the presumptive legitimes of all common children, computed as of the date
of the final judgment of the trial court, shall be delivered in cash, property or sound securities, unless the parties, by
mutual agreement judicially approved, had already provided for such matters.
The children of their guardian, or the trustee of their property, may ask for the enforcement of the judgment.
The delivery of the presumptive legitimes herein prescribed shall in no way prejudice the ultimate successional
rights of the children accruing upon the death of either or both of the parents; but the value of the properties already
received under the decree of annulment or absolute nullity shall be considered as advances on their legitime.
It is clear from Article 50 of the Family Code that Section 19(1) of the Rule applies only to marriages which are
declared void ab initio or annulled by final judgment under Articles 40 and 45 of the Family Code. In short, Article
50 of the Family Code does not apply to marriages which are declared void ab initio under Article 36 of the Family
Code, which should be declared void without waiting for the liquidation of the properties of the parties.
Article 40 of the Family Code contemplates a situation where a second or bigamous marriage was
contracted. Under Article 40, "[t]he 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." Thus we ruled:
1avvphil

x x x 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 to be free from legal infirmity, is a final
judgment declaring a previous marriage void.11
Article 45 of the Family Code, on the other hand, refers to voidable marriages, meaning, marriages which are valid
until they are set aside by final judgment of a competent court in an action for annulment. 12 In both instances under
Articles 40 and 45, the marriages are governed either by absolute community of property 13 or conjugal partnership of
gains14 unless the parties agree to a complete separation of property in a marriage settlement entered into before
the marriage. Since the property relations of the parties is governed by absolute community of property or conjugal
partnership of gains, there is a need to liquidate, partition and distribute the properties before a decree of annulment
could be issued. That is not the case for annulment of marriage under Article 36 of the Family Code because the
marriage is governed by the ordinary rules on co-ownership.
In this case, petitioners marriage to respondent was declared void under Article 36 15 of the Family Code and not
under Article 40 or 45. Thus, what governs the liquidation of properties owned in common by petitioner and
respondent are the rules on co-ownership. In Valdes, the Court ruled that the property relations of parties in a void

marriage during the period of cohabitation is governed either by Article 147 or Article 148 of the Family Code. 16The
rules on co-ownership apply and the properties of the spouses should be liquidated in accordance with the Civil
Code provisions on co-ownership. Under Article 496 of the Civil Code, "[p]artition may be made by agreement
between the parties or by judicial proceedings. x x x." It is not necessary to liquidate the properties of the spouses in
the same proceeding for declaration of nullity of marriage.
WHEREFORE, we AFFIRM the Decision of the trial court with the MODIFICATION that the decree of absolute
nullity of the marriage shall be issued upon finality of the trial courts decision without waiting for the liquidation,
partition, and distribution of the parties properties under Article 147 of the Family Code.
SO ORDERED.

August 3, 2015.G.R. No. 198908.*

VIRGINIA OCAMPO, petitioner, vs. DEOGRACIO OCAMPO, respondent.

This is a Petition for Review on Certiorari under Rule 45 of the Rules of Court seeking the
reversal of the Decision1dated August 11, 2010 and Resolution2 dated October 5, 2011,
respectively, of the Court of Appeals (CA) in C.A.-G.R. CV No. 82318, which denied the
petitioners appeal and motion for reconsideration.
The facts of the case, as culled from the records, are as follows:
On September 10, 1990, petitioner Virginia Sy Ocampo (Virginia) filed a Petition for
Declaration of Nullity of her Marriage with Deogracio Ocampo (Deogracio) before Regional Trial
Court of Quezon City, Branch 87, on the ground of psychological incapacity, docketed as Civil
Case No. Q-90-6616.3
On January 22, 1993, the trial court rendered a Decision4declaring the marriage between
Virginia and Deogracio as null and void, the dispositive portion of which reads:
WHEREFORE, the petition is hereby GRANTED. The marriage between the petitioner and the
respondent is hereby declared null and void from the beginning under Article 36 of the Family Code. The
status of their children, however, shall remain legitimate and their custody is hereby awarded to the
petitioner.
As to the couples property relations, their conjugal partnership of gains shall necessarily be dissolved
and liquidated but since the petitioner has not submitted any detailed and formal listing or inventory of
such property, the court cannot act now on the liquidation aspect. The parties are given thirty (30) days to
submit an inventory of their conjugal partnership for the purpose of liquidation.
IT IS SO ORDERED.
5

The decision became final, since no party appealed the judgment annulling the marriage.
On March 31, 1999, the trial court directed the parties to submit a project of partition of their
inventoried properties, and if they failed to do so, a hearing will be held on the factual issues
with regard to said properties. Having failed to agree on a project of partition of their conjugal

properties, hearing ensued where the parties adduced evidence in support of their respective
stand.
On January 13, 2004, the trial court rendered the assailed Order 6 stating that the properties
declared by the parties belong to each one of them on a 50-50 sharing.
On February 2, 2004, Virginia filed a Notice of Appeal before the trial court.
On February 13, 2004, Deogracio filed a Motion to Deny and/or Dismiss the Notice of Appeal
and for immediate execution pursuant to Section 20 of A.M. No. 02-1-10.
On February 20, 2004, the trial court denied the aforesaid motion to deny and/or dismiss the
notice of appeal for lack of merit.
On March 4, 2004, Deogracio filed a Motion for Reconsideration. On March 22, 2004, the trial
court denied anew the motion for reconsideration.
In the disputed Decision dated August 11, 2010, the Court of Appeals denied Virginias
appeal. Virginia moved for reconsideration, but was denied in a Resolution dated October 5,
2011.
Thus, the instant petition for review substantially questioning whether respondent should be
deprived of his share in the conjugal partnership of gains by reason of bad faith and psychological
perversity.
The petition lacks merit.
While Virginia and Deogracio tied the marital knot on January 16, 1978, it is still the Family
Code provisions on conjugal partnerships, however, which will govern the property relations
between Deogracio and Virginia even if they were married before the effectivity of the Family
Code.
Article 105 of the Family Code explicitly mandates that the Family Code shall apply to
conjugal partnerships established before the Family Code without prejudice to vested rights
already acquired under the Civil Code or other laws. Thus, under the Family Code, if the
properties are acquired during the marriage, the presumption is that they are conjugal. Hence,
the burden of proof is on the party claiming that they are not conjugal. This is counter-balanced
by the requirement that the properties must first be proven to have been acquired during the
marriage before they are presumed conjugal.7
The applicable law, however, insofar as the liquidation of the conjugal partnership assets and
liability is concerned, is Article 1298 of the Family Code in relation to Article 147 of the Family
Code.9
The Court held that in a void marriage, as in those declared void under Article 36 10 of the
Family Code, the property relations of the parties during the period of cohabitation is governed
either by Article 147 or Article 148 of the Family Code.11 Article 147 of the Family Code applies to
union of parties who are legally capacitated and not barred by any impediment to contract
marriage, but whose marriage is nonetheless void, as in this case. Article 147 of the Family Code
provides:
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.147.Article
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 formers 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.
12

This particular kind of co-ownership applies when a man and a woman, suffering no illegal
impediment to marry each other, exclusively live together as husband and wife under a void
marriage or without the benefit of marriage. It is clear, therefore, that for Article 147 to operate,
the man and the woman: (1) must be capacitated to marry each other; (2) live exclusively with
each other as husband and wife; and (3) their union is without the benefit of marriage or their
marriage is void, as in the instant case. The term capacitated in the first paragraph of the
provision pertains to the legal capacity of a party to contract marriage. Any impediment to marry
has not been shown to have existed on the part of either Virginia or Deogracio. They lived
exclusively with each other as husband and wife. However, their marriage was found to be void
under Article 36 of the Family Code on the ground of psychological incapacity. 13
From the foregoing, property acquired by both spouses through their work and industry
should, therefore, be governed by the rules on equal co-ownership. 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 be considered as having contributed to
the same jointly if said partys efforts consisted in the care and maintenance of the family
household. Efforts in the care and maintenance of the family and household are regarded as
contributions to the acquisition of common property by one who has no salary or income or work
or industry.14
Citing Valdes v. RTC,15 the Court held that the court a quo did not commit a reversible error in
utilizing Article 147 of the Family Code and in ruling that the former spouses 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 that they owned in common, the provisions on coownership under the Civil Code should aptly prevail. The rules which are 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, are irrelevant to the liquidation of the coownership that exists between common-law spouses or spouses of void marriages.
Thus, the trial court and the appellate court correctly held that the parties will share on equal
shares considering that Virginia failed to prove that the properties were acquired solely on her
own efforts, to wit:
This Court keenly observes that only testimonial evidence was presented by the parties respectively, to
prove and dispute the claim of the other with regard to the properties and assets acquired during the
marriage. In the absence, therefore, of any documentary evidence to prove the contrary, all the properties
acquired by the spouses during the marriage are presumed conjugal. Further, the testimonial evidence
adduced by the petitioner aimed at establishing that respondent took no part in acquiring said properties
failed to convince this Court that the latter be given only a meager share thereof.
While it may be true that management of the businesses referred to herein may have been actively
undertaken by the petitioner, it cannot be gainsaid that petitioner was able to do so without the
invaluable help of respondent. Even a plain housewife who stays all the time in the house and take[s] care
of the household while the husband indulges in lucrative and gainful activities is entitled to a share in the
same proportion the husband is, to the property or properties acquired by the marriage. In the same
breadth, respondent must be considered to be entitled to the same extent. Petitioners claim that the seed
money in that business was provided by her mother and that, had it not been for that reason, the
properties now subject of controversy could not have been acquired. That may be true but the Court is not
prone to believe so because of insufficient evidence to prove such contention but petitioners self-serving
allegations. Of course, attempts to establish respondent as an irresponsible and unfaithful husband, as
well as family man were made but the testimonies adduced towards that end, failed to fully convince the
Court that respondent should be punished by depriving him of his share of the conjugal property because
of his indiscretion.
16

In the instant case, both the trial and appellate courts agreed that the subject properties were
in fact acquired during the marriage of Virginia and Deogracio. We give due deference to factual
findings of trial courts, especially when affirmed by the appellate court, as in this case. A reversal
of this finding can only occur if petitioners show sufficient reason for us to doubt its correctness.
There is none, in this case.
Likewise, we note that the former spouses both substantially agree that they acquired the
subject properties during the subsistence of their marriage.17 The certificates of titles and tax
declarations are not sufficient proof to overcome the presumption under Article 116 of the Family
Code. All properties acquired by the spouses during the marriage, regardless in whose name the
properties are registered, are presumed conjugal unless proved otherwise. The presumption is
not rebutted by the mere fact that the certificate of title of the property or the tax declaration is
in the name of one of the spouses only. Article 116 expressly provides that the presumption
remains even if the property is registered in the name of one or both of the spouses. 18Thus, the
failure of Virginia to rebut this presumption, said properties were obtained by the spouses joint
efforts, work or industry, and shall be jointly owned by them in equal shares. Accordingly, the

partition of the former spouses properties on the basis of co-ownership, as ordered by the RTC
and the appellate court, should be affirmed, and not on the regime of conjugal partnership of
gains.
WHEREFORE, the petition is DENIED. The Decision dated August 11, 2010 and the
Resolution dated October 5, 2011 of the Court of Appeals in C.A.-G.R. CV No. 82318
areAFFIRMED. The case is REMANDED to the trial court for proper disposition.
SO ORDERED.

Velasco, Jr. (Chairperson), Villarama, Jr., Perez ** andJardeleza, JJ., concur.

Petition denied, judgment and resolution affirmed.
Notes.For the presumption under Article 160 of the New Civil Code that [a]ll property of
the marriage is presumed to belong to the conjugal partnership, unless it be proved that it
pertains exclusively to the husband or to the wife, the party who invokes it must first prove that
the property was acquired during the marriage the time when the property was acquired is
material. (Corpuz vs. Pascua, 658 SCRA 239 [2011])
Article 147 of the Family Code applies to the union of parties who are legally capacitated and
not barred by any impediment to contract marriage, but whose marriage is nonetheless declared
void under Article 36 of the Family Code. (Salas, Jr. vs. Aguila, 706 SCRA 252 [2013])

RUFINO MAGBALETA, ROMANA B. MAGBALETA, AND SUSANA G. BALDOVI,

petitioners, vs. HON. ARSENIO M. GONONG AND CATALINO MAGBALETA, respondents.

Petition for certiorari, prohibition and mandamus, with preliminary injunction, against the
orders of respondent judge in Civil Case No. 633-IV of the Court of First Instance of Ilocos Norte
dated August 31, 1976 and October 8, 1976 denying petitioners motion to dismiss the complaint
filed against them notwithstanding that private respondent is the brother of petitioner
Rufino Magbaleta, the husband of the other petitioner Romana B. Magbaleta, and the suit is to
have a parcel of land, covered by a Free Patent Title in the name of Rufino, declared to be the
property of private respondent, who claims in said complaint that the third petitioner Susana G.
Baldovi is trying to take possession of said land from his representative, contending she had
bought the same from the spouses Rufino and Romana, said orders having been issued allegedly
in violation of Article 222 of the Civil Code and Section 1 of Rule 16 of the Rules of Court, there
being no allegation in respondents complaint that his suit, being between members of the same
family, earnest efforts towards a compromise have been made before the same was filed.
Respondent judge premised his refusal to dismiss the complaint upon the sole ground that one
of the defendants, petitioner Susana G. Baldovi, the alleged buyer of the land in dispute, is a
stranger, hence the legal provisions above-mentioned do not apply.

The Court holds that this ruling of respondent judge is correct. While indeed, as pointed out by
the Code Commission it is difficult to imagine a sadder and more tragic spectacle than a
litigation between members of the same family hence, it is necessary that every effort should be
made toward a compromise before a litigation is allowed to breed hate and passion in the family
and it is known that a lawsuit between close relatives generates deeper bitterness than between
strangers (Report of the Code Commission, p. 18), these considerations do not, however, weigh
enough to make it imperative that such efforts to compromise should be a jurisdictional prerequisite for the maintenance of an action whenever a stranger to the family is a party thereto,
whether as a necessary or indispensable one. It is not always that one who is alien to the family
would be willing to suffer the inconvenience of, much less relish, the delay and the complications
that wranglings between or among relatives more often than not entail. Besides, it is neither
practical nor fair that the determination of the rights of a stranger to the family who just
happened to have innocently acquired some kind of interest in any right or property disputed
among its members should be made to depend on the way the latter would settle their differences
among themselves. We find no cause in the reason for being of the provisions relied upon by
petitioners to give it broader scope than the literal import thereof warrants.
WHEREFORE, the petition is dismissed and the restraining order issued on November 3,
1976 is hereby lifted. Costs against petitioners.
Fernando (Chairman), Antonio, Aquino, andConcepcion Jr., JJ., concur.
Petition dismissed.
Notes.Since the purpose of formally impleading a party is to assure him a day in court, once
the protective mantle of due process of law has in fact been accorded a litigant, whatever the
imperfection in form, the real litigant may be held liable as a party. (Albert vs. University
Publishing Co., Inc., 14 SCRA 285).
Parties may be dropped or added by order of the court on motion of any party or on its own
initiative at any stage of the action and on such terms as are just without requirement of
previous consent of such parties. (Tayag vs. Angeles Electric Corporation, 17 SCRA 167).
An order to amend the complaint, before the proper substitution of the deceased parties has
been effected, is void. (Caseas vs. Rosales, 19 SCRA 462).
A lessee who fails to take possession of the leased premises on account of the presence of third
persons unwilling to vacate the premises because of some previous act or transaction of the
lessor, should institute the action against the lessor based upon the latters failure to comply with
his obligations as lessor under Article 1654 of the Civil Code. (De Rivera vs. Halili, 9 SCRA 59).
In any suit, before the case proceeds to trial, it is the duty of the court to see to it that all
parties having interest in the subject are joined therein, in order that the results of the suit
would be binding on all. (Niembra vs. Director of Lands,11 SCRA 525).

March 20, 2009.G.R. No. 180587.*

SIMEON CABANG, VIRGINIA CABANG and VENANCIO CABANG ALIAS DONDON,

petitioners, vs. MR. & MRS. GUILLERMO BASAY, respondents.
YNARES-SANTIAGO, J.:
This petition for review on certiorari under Rule 45 of the Rules of Court seeks to annul and
set aside the Decision of the Court of Appeals in CA-G.R. CV No. 76755 1 dated May 31,
20072 which reversed the Order3 of the Regional Trial Court of Molave, Zamboanga Del Sur,
Branch 23 in Civil Case No. 99-20-127 which denied respondents motion for execution on the
ground that petitioners family home was still subsisting. Also assailed is the Resolution dated
September 21, 2007 denying the motion for reconsideration.
The facts as summarized by the appellate court:
Deceased Felix Odong was the registered owner of Lot No. 7777, Ts-222 located in Molave, Zamboanga
del Sur. Said lot was covered by Original Certificate of Title No. 0-2,768 pursuant to Decree No. N-64 and
issued on March 9, 1966. However, Felix Odong and his heirs never occupied nor took possession of the lot.
On June 16, 1987, plaintiff-appellants bought said real property from the heirs of Felix Odong for
P8,000.00. Consequently, OCT No. 0-2,768 was cancelled and in its stead, Transfer Certificate of Title No.
T-22,048 was issued on August 6, 1987 in the name of plaintiff-appellants. The latter also did not occupy
the said property.
Defendant-appellees, on the other hand, had been in continuous, open, peaceful and adverse possession
of the same parcel of land since 1956 up to the present. They were the awardees in the cadastral
proceedings of Lot No. 7778 of the Molave Townsite, Ts-222. During the said cadastral proceedings,
defendant-appellees claimed Lot No. 7778 on the belief that the area they were actually occupying was Lot
No. 7778. As it turned out, however, when the Municipality of Molave relocated the townsite lots in the
area in 1992 as a big portion of Lot No. 7778 was used by the government as a public road and as there
were many discrepancies in the areas occupied, it was then discovered that defendant-appellees were
actually occupying Lot No. 7777.
On June 23, 1992, plaintiff-appellants filed a Complaint docketed as Civil Case No. 92-20-127 for
Recovery of Property against defendant-appellees.
On July 19, 1996, the trial court rendered its decision, the dispositive portion of which reads, thus:
WHEREFORE, judgment is hereby rendered in favor of the defendants and against the plaintiff

Holding that the rights of the plaintiffs to recover the land registered in their names, have been
effectively barred by laches; and1.
Ordering the dismissal of the above-entitled case.
No pronouncement as to cost.
SO ORDERED.
Aggrieved, plaintiff-appellants filed an appeal before the Court of Appeals assailing the above-decision.
Said appeal was docketed as CA-G.R. CV No. 55207.
On December 23, 1998, the Court of Appeals, through the then Second Division, rendered a Decision
reversing the assailed decision and decreed as follows:
WHEREFORE, the judgment herein appealed from is hereby REVERSED, and judgment is
hereby rendered declaring the plaintiffs-appellants to be entitled to the possession of Lot No. 7777 of

the Molave Townsite, subject to the rights of the defendants-appellees under Article (sic) 448, 546,
547 and 548 of the New Civil Code.
The records of this case are hereby ordered remanded to the court of origin for further
proceedings to determine the rights of the defendants-appellees under the aforesaid article (sic) of
the New Civil Code, and to render judgment thereon in accordance with the evidence and this
decision.
No pronouncement as to costs.
SO ORDERED.
Defendant-appellees thereafter filed a petition for review oncertiorari under Rule 45 of the Rules of
Court before the Supreme Court docketed as G.R. No. 139601. On October 18, 1999, the Supreme Court
issued a Resolution denying the petition for late filing and lack of appropriate service.
Subsequently, or on February 15, 2000, the Supreme Court Resolution had become final and executory.
Consequently, the case was remanded to the court a quo and the latter commissioned the Municipal
Assessor of Molave, Zamboanga del Sur to determine the value of the improvements introduced by the
defendant-appellees.
The Commissioners Report determined that at the time of ocular inspection, there were three (3)
residential buildings constructed on the property in litigation. During the ocular inspection, plaintiffappellants son, Gil Basay, defendant-appellee Virginia Cabang, and one Bernardo Mendez, an occupant of
the lot, were present. In the
report, the following appraised value of the improvements were determined, thus:

Owner

Lot
No.

Area
(sq.m.)

Improvemen
t

Appraised
Value

Virginia
Cabang
Jovenci
o
Capuno
Amelito
Mata

777
7
777
7

32.55

Building

P21,580.65

15.75

Building

18,663.75

777
7

14.00

Building

5,658.10

Toilet
Plants &
Trees

1,500.00
2,164.00

TOTAL

P49,566.50

Thereafter, upon verbal request of defendant-appellees, the courta quo in its Order declared that the
tie point of the survey should be the BLLM (Bureau of Lands Location Monument) and authorized the
official surveyor of the Bureau of Lands to conduct the survey of the litigated property.
Pursuant to the above Order, the Community Environment and Natural Resources Office (CENRO) of
the Department of Environment and Natural Resources (DENR)-Region XI designated Geodetic Engineer
Diosdado L. de Guzman to [act] as the official surveyor. On March 2002, Engr. De Guzman submitted his
survey report which stated, inter alia:
That on September 18, 2001, the undersigned had conducted verification survey of Lot 7777, Ts222 and the adjacent lots for reference purposes-with both parties present on the survey;1.

That the survey was started from BLLM #34, as directed by the Order, taking sideshots of lot
corners, existing concrete fence, road and going back to BLLM #34, a point of reference;2.
Considering that there was only one BLLM existing on the ground, the undersigned conducted
astronomical observation on December 27, 2001 in order to check the carried Azimuth of the
traverse;3.
That per result of the survey conducted, it was found out and asc4.ertained that the area occupied
by Mrs. Virginia Cabang is a portion of Lot 7777, with lot assignment to be known as Lot 7777-A
with an area of 303 square meters and portion of Lot 7778 with lot assignment to be known as Lot
7778-A with an area of 76 square meters. On the same lot, portion of which is also occupied by Mr.
Bernardo Mendez with lot assignment to be known as Lot 7777-B with an area of 236 square meters
and Lot 7778-B with an area of 243 square meters as shown on the attached sketch for ready
reference;
That there were three (3) houses made of light material erected inside Lot No. 7777-A, which is
owned by Mrs. Virginia Cabang and also a concrete house erected both on portion of Lot No. 7777-B
and Lot No. 7778-B, which is owned by Mr. Bernardo Mendez. x x x;5.
That the existing road had been traversing on a portion of Lot 7778 to be know (6.sic) as Lot
7778-CA-G.R. SP No. with an area of 116 square meters as shown on attached sketch plan.
During the hearing on May 10, 2002, plaintiff-appellants offer to pay P21,000.00 for the improvement
of the lot in question was rejected by defendant-appellees. The court a quo disclosed its difficulty in
resolving whether or not the houses may be subject of an order of execution it being a family home.
On June 18, 2002, plaintiff-appellants filed their Manifestation and Motion for Execution alleging
therein that defendant-appellees refused to accept payment of the improvements as determined by the
court appointed Commissioner, thus, they should now be ordered to remove said improvements at their
expense or if they refused, an Order of Demolition be issued.
On September 6, 2002, the court a quo issued the herein assailed Order denying the motion for
execution.
4

Respondents thereafter elevated their cause to the appellate court which reversed the trial
court in its May 31, 2007 Decision in CA-G.R. CV No. 76755. Petitioners Motion for
Reconsideration was denied by the Court of Appeals in its Resolution 5 dated September 21, 2007.
Hence, this petition.
Petitioners insist that the property subject of the controversy is a duly constituted family
home which is not subject to execution, thus, they argue that the appellate tribunal erred in
reversing the judgment of the trial court.
The petition lacks merit.
It bears stressing that the purpose for which the records
of the case were remanded to the court of origin was for the enforcement of the appellate courts
final and executory judgment6 in CA-G.R. CV No. 55207 which, among others, declared herein
respondents entitled to the possession of Lot No. 7777 of the Molave Townsite subject to the
provisions of Articles 448,7 546,8 5479 an 54810 of the Civil Code. Indeed, the decision explicitly
decreed that the remand of the records of the case was for the court of origin [t]o determine
the rights of the defendants-appellees under the aforesaid article[s] of the New Civil
Code, and to render judgment thereon in accordance with the evidence and this decision.

A final and executory judgment may no longer be modified in any respect, even if the
modification is meant to correct erroneous conclusions of fact or law and whether it will be made
by the court that rendered it or by the highest court in the land.11 The only exceptions to this rule
are the correction of (1) clerical errors; (2) the so-called nunc pro tunc entries which cause no
prejudice to any party, and (3) void judgments.12
Well-settled is the rule that there can be no execution until and unless the judgment has
become final and executory, i.e. the period of appeal has lapsed without an appeal having been
taken, or, having been taken, the appeal has been resolved and the records of the case have been
returned to the court of origin, in which event, execution shall issue as a matter of right. 13 In
short, once a judgment becomes final, the winning party is entitled to a writ of execution and the
issuance thereof becomes a courtsministerial duty.14
Furthermore, as a matter of settled legal principle, a writ of execution must adhere to every
essential particulars of the judgment sought to be executed.15 An order of execution may not
vary or go beyond the terns of the judgment it seeks to enforce.16 A writ of execution must
conform to the judgment and if it is different from, goes beyond or varies the tenor of the
judgment which gives it life, it is a nullity.17 Otherwise stated, when the order of execution and
the corresponding writ issued pursuant thereto is not in harmony with and exceeds the judgment
which gives it life, they have pro tanto no validity18 to maintain otherwise would be to ignore
the constitutional provision against depriving a person of his property without due process of
law.19
As aptly pointed out by the appellate court, from the inception of Civil Case No. 99-20-127, it
was already of judicial notice that the improvements introduced by petitioners on the
litigated property are residential houses not family homes. Belatedly interposing such an
extraneous issue at such a late stage of the proceeding is tantamount to interfering with and
varying the terms of the final and executory judgment and a violation of respondents right to
due process because
As a general rule, points of law, theories and issues not brought to the attention of the trial court cannot
be raised for the first time on appeal. For a contrary rule would be unfair to the adverse party who would
have no opportunity to present further evidence material to the new theory, which it could have done had
it been aware of if at the time of the hearing before the trial court.
20

The refusal, therefore, of the trial court to enforce the execution on the ground that the
improvements introduced on the litigated property are family homes goes beyond the pale of
what it had been expressly tasked to do, i.e. itsministerial duty of executing the judgment in
accordance with its essential particulars. The foregoing factual, legal and jurisprudential
scenario reduces the raising of the issue of whether or not the improvements introduced by
petitioners are family homes into a mere afterthought.
Even squarely addressing the issue of whether or not the improvements introduced by
petitioners on the subject land
.

As defined, [T]he family home is a sacred symbol of family love and is the repository of
cherished memories that last during ones lifetime.21 It is the dwelling house where the husband
and wife, or an unmarried head of a family reside, including the land on which it is situated. 22 It
is constituted jointly by the husband and the wife or by an unmarried head of a family. 23 Article
153 of the Family Code provides that
The family home is deemed constituted from the time it is occupied as a family residence. From the time
of its constitution and so long as any of its beneficiaries actually resides therein, the family home
continues to be such and is exempt from execution, forced sale or attachment except as hereinafter
provided and to the extent of the value allowed by law.

The actual value of the family home shall not exceed, at the time of its constitution, the
amount of P300,000.00 in urban areas and P200,000.00 in rural areas. 24 Under the afore-quoted
provision, a family home is deemed constituted on a house and a lot from the time it is occupied
as a family residence. There is no need to constitute the same judicially or extrajudicially. 25
There can be no question that a family home is generally exempt from execution,26 provided it
was duly constituted as such. It is likewise a given that the family home must be constituted on
property owned by the persons constituting it. Indeed as pointed out in Kelley, Jr. v. Planters
Products, Inc.27 [T]he family home must be part of the properties of the absolute community or
the conjugal partnership, or of the exclusive properties of either spouse with the latters consent,
or on the property of the unmarried head of the family. 28 In other words:
The family home must be established on the properties of(a) the absolute community, or (b) the
conjugal partnership, or (c) the exclusive property of either spouse with the consent of the other.It cannot
be established on property held in co-ownership with third persons. However, it can be established
partly on community property, or conjugal property and partly on the exclusive property of either spouse
with the consent of the latter.
If constituted by an unmarried head of a family, where there is no communal or conjugal property
existing, it can be constituted only on his or her own property. (Emphasis and italics supplied)
29

Therein lies the fatal flaw in the postulate of petitioners. For all their arguments to the
contrary, the stark and immutable fact is that the property on which their alleged family home
stands is owned by respondents and the question of ownership had been long laid to rest with
the finality of the appellate courts judgment in CA-G.R. CV No. 55207. Thus, petitioners
continued stay on the subject land is only by mere tolerance of respondents.
All told, it is too late in the day for petitioners to raise this issue. Without doubt, the instant
case where the family home issue has been vigorously pursued by petitioners is but a clear-cut
ploy meant to forestall the enforcement of an otherwise final and executory decision. The
execution of a final judgment is a matter of right on the part of the prevailing party whose
implementation is mandatory and ministerialon the court or tribunal issuing the judgment.30
The most important phase of any proceeding is the execution of judgment. 31 Once a judgment
becomes final, the prevailing party should not, through some clever maneuvers devised by an
unsporting loser, be deprived of the fruits of the verdict. 32 An unjustified delay in the enforcement

of a judgment sets at naught the role of courts in disposing of justiciable controversies with
finality.33Furthermore, a judgment if not executed would just be an empty victory for the
prevailing party because execution is the fruit and end of the suit and very aptly called the life of
the law.34
The issue is moreover factual and, to repeat that trite refrain, the Supreme Court is not a trier
of facts. It is not the function of the Court to review, examine and evaluate or weigh the probative
value of the evidence presented. A question of fact would arise in such event. Questions of fact
cannot be raised in an appeal via certiorari before the Supreme Court and are not proper for its
consideration.35The rationale behind this doctrine is that a review of the findings of fact of the
appellate tribunal is not a function this Court normally undertakes. The Court will not weigh the
evidence all over again unless there is a showing that the findings of the lower court
are totally devoid of support or are clearly erroneous so as to constitute serious abuse of
discretion.36 Although there are recognized exceptions37 to this rule, none exists in this case to
justify a departure therefrom.
WHEREFORE, the petition is DENIED. The Decision of the Court of Appeals dated May
31, 2007 in CA-G.R. CV No. 76755 declaring respondents entitled to the writ of execution and
ordering petitioners to vacate the subject property, as well as the Resolution dated September 21,
2007 denying the motion for reconsideration, are AFFIRMED. Costs against petitioners.
SO ORDERED.
Austria-Martinez, Tinga,** Nachura and Peralta, JJ., concur.
Petition denied, judgment affirmed.
Notes.A final and executory decision promulgated and a writ of execution issued before the
effectivity of the Family Code can be executed on a house and lot constituted as a family home
under the provisions of the said Code. (Manacop vs. Court of Appeals, 277 SCRA 57 [1997])
Nothing is more settled in law than that when a judgment becomes final and executory it
becomes immutable and unalterablethe same may no longer be modified in any respect, even if
the modification is meant to correct what is perceived to be an erroneous conclusion of fact or
law, and whether made by the highest court of the land. (Garcia vs. Philippine Airlines, 558
SCRA 171 [2008])

January 16, 2012.G.R. No. 185064.*

SPOUSES ARACELI OLIVA-DE MESA and ERNESTO S. DE MESA, petitioners, vs. SPOUSES
CLAUDIO D. ACERO, JR. and MA. RUFINA D. ACERO, SHERIFF FELIXBERTO L.
SAMONTE and REGISTRAR ALFREDO SANTOS, respondents.
Nature of the Petition

This is a petition for review on certiorari under Rule 45 of the Rules of Court filed by the
Spouses Araceli Oliva-De Mesa (Araceli) and Ernesto S. De Mesa (Ernesto), assailing the Court
of Appeals (CA) Decision1 dated June 6, 2008 and Resolution2 dated October 23, 2008 in CA-G.R.
CV No. 79391 entitled Spouses Araceli Oliva-De Mesa and Ernesto De Mesa v. Spouses Claudio
Acero, Jr., et al.
The Antecedent Facts
This involves a parcel of land situated at No. 3 Forbes Street, Mount Carmel Homes
Subdivision, Iba, Meycauayan, Bulacan, which was formerly covered by Transfer Certificate of
Title (TCT) No. T-76.725 (M) issued by the Register of Deeds of Meycauayan, Bulacan and
registered under Aracelis name. The petitioners jointly purchased the subject property on April
17, 1984 while they were still merely cohabiting
before their marriage. A house was later constructed on the subject property, which the
petitioners thereafter occupied as their family home after they got married sometime in January
1987.
Sometime in September 1988, Araceli obtained a loan from Claudio D. Acero, Jr. (Claudio) in
the amount of P100,000.00, which was secured by a mortgage over the subject property. As
payment, Araceli issued a check drawn against China Banking Corporation payable to Claudio.
When the check was presented for payment, it was dishonored as the account from which it
was drawn had already been closed. The petitioners failed to heed Claudios subsequent demand
for payment.
Thus, on April 26, 1990, Claudio filed with the Prosecutors Office of Malolos, Bulacan a
complaint for violation of Batas Pambansa Blg. 22 (B.P. 22) against the petitioners. After
preliminary investigation, an information for violation of B.P. 22 was filed against the petitioners
with the Regional Trial Court (RTC) of Malolos, Bulacan.
On October 21, 1992, the RTC rendered a Decision3acquitting the petitioners but ordering
them to pay Claudio the amount of P100,000.00 with legal interest from date of demand until
fully paid.
On March 15, 1993, a writ of execution was issued and Sheriff Felixberto L. Samonte (Sheriff
Samonte) levied upon the subject property. On March 9, 1994, the subject property was sold on
public auction; Claudio was the highest bidder and the corresponding certificate of sale was
issued to him.
Sometime in February 1995, Claudio leased the subject property to the petitioners and a
certain Juanito Oliva (Juanito) for a monthly rent of P5,500.00. However, the petitioners and
Juanito defaulted in the payment of the rent and as of
October 3, 1998, their total accountabilities to Claudio amounted to P170,500.00.
Meanwhile, on March 24, 1995, a Final Deed of Sale4over the subject property was issued to
Claudio and on April 4, 1995, the Register of Deeds of Meycauayan, Bulacan cancelled TCT No.
T-76.725 (M) and issued TCT No. T-221755 (M)5 in his favor.

Unable to collect the aforementioned rentals due, Claudio and his wife Ma. Rufina Acero
(Rufina) (collectively referred to as Spouses Acero) filed a complaint for ejectment with the
Municipal Trial Court (MTC) of Meycauayan, Bulacan against the petitioners and Juanito. In
their defense, the petitioners claimed that Spouses Acero have no right over the subject property.
The petitioners deny that they are mere lessors; on the contrary, they are the lawful owners of
the subject property and, thus cannot be evicted therefrom.
On July 22, 1999, the MTC rendered a Decision,6 giving due course to Spouses Aceros
complaint and ordering the petitioners and Juanito to vacate the subject property. Finding merit
in Spouses Aceros claims, the MTC dismissed the petitioners claim of ownership over the subject
property. According to the MTC, title to the subject property belongs to Claudio as shown by TCT
No. T-221755 (M).
The MTC also stated that from the time a Torrens title over the subject property was issued in
Claudios name up to the time the complaint for ejectment was filed, the petitioners never
assailed the validity of the levy made by Sheriff Samonte, the regularity of the public sale that
was conducted thereafter and the legitimacy of Claudios Torrens title that was resultantly
issued.
The petitioners appealed the MTCs July 22, 1999 Decision to the RTC. This appeal was,
however, dismissed in a Decision dated November 22, 1999 due to the petitioners failure to
submit their Memorandum. The petitioners sought reconsideration of the said decision but the
same was denied in an Order dated January 31, 2000.
Consequently, the petitioners filed a petition for review7with the CA assailing the RTCs
November 22, 1999 Decision and January 31, 2000 Order. In a December 21, 2006 Decision, 8 the
CA denied the petitioners petition for review. This became final on July 25, 2007. 9
In the interregnum, on October 29, 1999, the petitioners filed against the respondents a
complaint10 to nullify TCT No. T-221755 (M) and other documents with damages with the RTC of
Malolos, Bulacan. Therein, the petitioners asserted that the subject property is a family home,
which is exempt from execution under the Family Code and, thus, could not have been validly
levied upon for purposes of satisfying the March 15, 1993 writ of execution.
On September 3, 2002, the RTC rendered a Decision,11which dismissed the petitioners
complaint. Citing Article 155(3) of the Family Code, the RTC ruled that even assuming that the
subject property is a family home, the exemption from execution does not apply. A mortgage was
constituted over the subject property to secure the loan Araceli obtained from Claudio and it was
levied upon as payment therefor.
The petitioners sought reconsideration of the RTCs September 3, 2002 Decision but this was
denied in a Resolution12 dated January 14, 2003.
On appeal, the CA affirmed the RTCs disposition in its Decision 13 dated June 6, 2008. The CA
ratiocinated that the exemption of a family home from execution, attachment or forced sale under
Article 153 of the Family Code is not automatic and should accordingly be raised and proved to
the Sheriff prior to the execution, forced sale or attachment. The appellate court noted that at no

time did the petitioners raise the supposed exemption of the subject property from execution on
account of the same being a family home.
The petitioners then sought reconsideration of the said June 6, 2008 Decision but the same
was denied by the CA in its Resolution14 dated October 23, 2008.
Aggrieved, the petitioners filed the instant petition for review, praying for the cancellation of
TCT No. T-221755 (M). They insist that the execution sale that was conducted is a nullity
considering that the subject property is a family home. The petitioners assert that, contrary to
the disposition of the CA, a prior demonstration that the subject property is a family home is not
required before it can be exempted from execution.
In their Comment,15 Spouses Acero claimed that this petition ought to be denied on the ground
of forum-shopping as the issues raised had already been determined by the MTC in its July 22,
1999 Decision on the complaint for ejectment filed by them, which had already become final and
executory following the petitioners failure to appeal the CAs December 21, 2006 Decision
affirming it.
Issues
The threshold issues for resolution are the following: (a) whether the petitioners are guilty of
forum-shopping; and (b) whether the lower courts erred in refusing to cancel Claudios Torrens
title TCT No. T-221755 (M) over the subject property.
The Courts Ruling
First Issue: Forum-Shopping
On the first issue, we find that the petitioners are not guilty of forum-shopping.
There is forum-shopping when as a result of an adverse decision in one forum, or in
anticipation thereof, a party seeks a favorable opinion in another forum through means other
than an appeal or certiorari. Forum-shopping exists when two or more actions involve the same
transactions, essential facts, and circumstances; and raise identical causes of action, subject
matter, and issues.16
Forum-shopping exists where the elements of litis pendentia are present, and where a final
judgment in one case will amount to res judicata in the other. The elements of forum-shopping
are: (a) identity of parties, or at least such parties as would represent the same interest in both
actions; (b) identity of rights asserted and relief prayed for, the relief being founded on the same
facts; and (c) identity of the two preceding particulars such that any judgment rendered in the
other action will, regardless of which party is successful, amount to res judicata in the action
under consideration.17
There is no identity of issues and reliefs prayed for in the ejectment case and in the action to
cancel TCT No. T-221755
(M). Verily, the primordial issue in the ejectment case is who among the contending parties has
a better right of possession over the subject property while ownership is the core issue in an
action to cancel a Torrens title.

It is true that the petitioners raised the issue of ownership over the subject property in the
ejectment case. However, the resolution thereof is only provisional as the same is solely for the
purpose of determining who among the parties therein has a better right of possession over the
subject property.
Accordingly, a judgment rendered in an ejectment case is not a bar to action between the same
parties respecting title to the land or building. Neither shall it be conclusive as to the facts
therein. This issue is far from being novel and there is no reason to depart from this Courts
previous pronouncements. In Malabanan v. Rural Bank of Cabuyao, Inc.,18 this Court had
previously clarified that a decision in an ejectment case is not res judicata in an annulment of
title case and vice-versa given the provisional and inconclusive nature of the determination of the
issue of ownership in the former.
Forum-shopping exists where the elements of litis pendentia are present, namely: (a) identity of
parties or at least such as representing the same interests in both actions; (b) identity of rights asserted
and reliefs prayed for, the relief being founded on the same facts; and (c) the identity in the two cases
should be such that the judgment that may be rendered in one would, regardless of which party is
successful, amounts to res judicata in the other.
Petitioner and respondent are the same parties in the annulment and ejectment cases. The issue of
ownership was likewise being contended, with same set of evidence being presented in both cases.
However, it cannot be inferred that a judgment in the ejectment case would amount to res judicata in the
annulment case, and vice-versa.
This issue is hardly a novel one. It has been laid to rest by heaps of cases iterating the principle that a
judgment rendered in an ejectment case shall not bar an action between the same parties
respecting title to the land or building nor shall it be conclusive as to the facts therein found in a case
between the same parties upon a different cause of action involving possession.
It bears emphasizing that in ejectment suits, the only issue for resolution is the physical or material
possession of the property involved, independent of any claim of ownership by any of the party litigants.
However, the issue of ownership may be provisionally ruled upon for the sole purpose of determining who
is entitled to possession de facto. Therefore, the provisional determination of ownership in the ejectment
case cannot be clothed with finality.
Corollarily, the incidental issue of whether a pending action for annulment would abate an ejectment
suit must be resolved in the negative.
A pending action involving ownership of the same property does not bar the filing or consideration of
an ejectment suit, nor suspend the proceedings. This is so because an ejectment case is simply designed to
summarily restore physical possession of a piece of land or building to one who has been illegally or
forcibly deprived thereof, without prejudice to the settlement of the parties opposing claims of juridical
possession in appropriate proceedings. (citations omitted)
19

Second Issue: Nullification of TCT No. T-221755 (M)

Anent the second issue, this Court finds that the CA did not err in dismissing the petitioners
complaint for nullification of TCT No. T-221755 (M).
The subject property is a family home.

The petitioners maintain that the subject property is a family home and, accordingly, the sale
thereof on execution was a nullity. In Ramos v. Pangilinan,20 this Court laid down the rules
relative to exemption of family homes from execution:
For the family home to be exempt from execution, distinction must be made as to what law applies
based on when it was constituted and what requirements must be complied with by the judgment debtor
or his successors claiming such privilege. Hence, two sets of rules are applicable.
If the family home was constructed before the effectivity of the Family Code or before August 3,
1988, then it must have been constituted either judicially or extra-judicially as provided under
Articles 225, 229-231 and 233 of the Civil Code. Judicial constitution of the family home requires the
filing of a verified petition before the courts and the registration of the courts order with the Registry of
Deeds of the area where the property is located. Meanwhile, extrajudicial constitution is governed by
Articles 240 to 242 of the Civil Code and involves the execution of a public instrument which must also be
registered with the Registry of Property. Failure to comply with either one of these two modes of
constitution will bar a judgment debtor from availing of the privilege.
On the other hand, for family homes constructed after the effectivity of the Family Code on August 3,
1988, there is no need to constitute extrajudicially or judicially, and the exemption is effective from
the time it was constituted and lasts as long as any of its beneficiaries under Art. 154 actually resides
therein. Moreover, the family home should belong to the absolute community or conjugal partnership, or if
exclusively by one spouse, its constitution must have been with consent of the other, and its value must
not exceed certain amounts depending upon the area where it is located. Further, the debts incurred for
which the exemption does not apply as provided under Art. 155 for which the family home is made
answerable must have been incurred after August 3, 1988. (citations omitted)
21

In the earlier case of Kelley, Jr. v. Planters Products, Inc.,22 we stressed that:
Under the Family Code, there is no need to constitute the family home judicially or extrajudicially. All
family homes constructed after the effectivity of the Family Code (August 3, 1988) are
constituted as such by operation of law. All existing family residences as of August 3, 1988 are
considered family homes and are prospectively entitled to the benefits accorded to a family
home under the Family Code. (emphasis supplied and citation omitted)
23

The foregoing rules on constitution of family homes, for purposes of exemption from execution,
could be summarized as follows:
First, family residences constructed before the effectivity of the Family Code or before August
3, 1988 must be constituted as a family home either judicially or extrajudicially in accordance
with the provisions of the Civil Code in order to be exempt from execution;
Second, family residences constructed after the effectivity of the Family Code on August 3,
1988 are automatically deemed to be family homes and thus exempt from execution from the time
it was constituted and lasts as long as any of its beneficiaries actually resides therein;
Third, family residences which were not judicially or extrajudicially constituted as a family
home prior to the effectivity of the Family Code, but were existing thereafter, are considered as
family homes by operation of law and are prospectively entitled to the benefits accorded to a
family home under the Family Code.

Here, the subject property became a family residence sometime in January 1987. There was
no showing, however, that the same was judicially or extrajudicially constituted as a family home
in accordance with the provisions of the Civil Code. Still, when the Family Code took effect on
August 3, 1988, the subject property became a family home by operation of law and was thus
prospectively exempt from execution. The petitioners were thus correct in asserting that the
subject property was a family home.
The family homes exemption from
execution must be set up and proved
to the Sheriff before the sale of the
property at public auction.
Despite the fact that the subject property is a family home and, thus, should have been exempt
from execution, we nevertheless rule that the CA did not err in dismissing the petitioners
complaint for nullification of TCT No. T-221755 (M). We agree with the CA that the petitioners
should have asserted the subject property being a family home and its being exempted from
execution at the time it was levied or within a reasonable time thereafter. As the CA aptly
pointed out:
In the light of the facts above summarized, it is evident that appellants did not assert their claim of
exemption within a reasonable time. Certainly, reasonable time, for purposes of the law on exemption,
does not mean a time after the expiration of the one-year period provided for in Section 30 of Rule 39 of
the Rules of Court for judgment debtors to redeem the property sold on execution, otherwise it would
render nugatory final bills of sale on execution and defeat the very purpose of executionto put an end to
litigation. x x x.
24

The foregoing disposition is in accord with the Courts November 25, 2005 Decision
in Honrado v. Court ofAppeals,25 where it was categorically stated that at no other time can the
status of a residential house as a family home can be set up and proved and its exemption from
execution be claimed but before the sale thereof at public auction:
While it is true that the family home is constituted on a house and lot from the time it is occupied as a
family residence and is exempt from execution or forced sale under Article 153 of the Family Code, such
claim for exemption should be set up and proved to the Sheriff before the sale of the property at public
auction. Failure to do so would estop the party from later claiming the exemption. As this Court ruled
in Gomez v. Gealone:
Although the Rules of Court does not prescribe the period within which to claim the exemption,
the rule is, nevertheless, well-settled that the right of exemption is a personal privilege granted to
the judgment debtor and as such, it must be claimed not by the sheriff, but by the debtor himself at
the time of the levy or within a reasonable period thereafter;
In the absence of express provision it has variously held that claim (for exemption) must
be made at the time of the levy if the debtor is present, that it must be made within a
reasonable time, or promptly, or before the creditor has taken any step involving further costs,
or before advertisement of sale, or at any time before sale, or within a reasonable time before
the sale, or before the sale has commenced, but as to the last there is contrary authority.

In the light of the facts above summarized, it is self-evident that appellants did not assert their
claim of exemption within a reasonable time. Certainly, reasonable time, for purposes of the law on
exemption, does not mean a time after the expiration of the one-year period provided for in Section
30 of Rule 39 of the Rules of Court for judgment debtors to redeem the property sold on execution,
otherwise it would render nugatory final bills of sale on execution and defeat the very purpose of
executionto put an end to litigation. We said before, and We repeat it now, that litigation must end
and terminate sometime and somewhere, and it is essential to an effective administration of justice
that, once a judgment has become final, the winning party be not, through a mere subterfuge,
deprived of the fruits of the verdict. We now rule that claims for exemption from execution of
properties under Section 12 of Rule 39 of the Rules of Court must be presented before its sale on
execution by the sheriff. (citations omitted)
26

Reiterating the foregoing in Spouses Versola v. Court of Appeals,27 this Court stated that:
Under the cited provision, a family home is deemed constituted on a house and lot from the time it is
occupied as a family residence; there is no need to constitute the same judicially or extrajudicially.
The settled rule is that the right to exemption or forced sale under Article 153 of the Family
Code is a personal privilege granted to the judgment debtor and as such, it must be claimed
not by the sheriff, but by the debtor himself before the sale of the property at public auction. It
is not sufficient that the person claiming exemption merely alleges that such property is a family
home. This claim for exemption must be set up and proved to the Sheriff. x x x. (emphasis
28

supplied and citations omitted)

Having failed to set up and prove to the sheriff the supposed exemption of the subject property
before the sale thereof at public auction, the petitioners now are barred from raising the same.
Failure to do so estop them from later claiming the said exemption.
Indeed, the family home is a sacred symbol of family love and is the repository of cherished
memories that last during ones lifetime.29 It is likewise without dispute that the family home,
from the time of its constitution and so long as any of its beneficiaries actually resides therein, is
generally exempt from execution, forced sale or attachment.30
The family home is a real right, which is gratuitous, inalienable and free from attachment. It
cannot be seized by creditors except in certain special cases. 31 However, this right can be waived
or be barred by laches by the failure to set up and prove the status of the property as a family
home at the time of the levy or a reasonable time thereafter.
In this case, it is undisputed that the petitioners allowed a considerable time to lapse before
claiming that the subject property is a family home and its exemption from execution and forced
sale under the Family Code. The petitioners allowed the subject property to be levied upon and
the public sale to proceed. One (1) year lapsed from the time the subject property was sold until a
Final Deed of Sale was issued to Claudio and, later, Aracelis Torrens title was cancelled and a
new one issued under Claudios name, still, the petitioner remained silent. In fact, it was only
after the respondents filed a complaint for unlawful detainer, or approximately four (4) years
from the time of the auction sale, that the petitioners claimed that the subject property is a
family home, thus, exempt from execution.

For all intents and purposes, the petitioners negligence or omission to assert their right
within a reasonable time gives rise to the presumption that they have abandoned, waived or
declined to assert it. Since the exemption under Article 153 of the Family Code is a personal
right, it is incumbent upon the petitioners to invoke and prove the same within the prescribed
period and it is not the sheriffs duty to presume or raise the status of the subject property as a
family home.
The petitioners negligence or omission renders their present assertion doubtful; it appears
that it is a mere afterthought and artifice that cannot be countenanced without doing the
respondents injustice and depriving the fruits of the judgment award in their favor. Simple
justice and fairness and equitable considerations demand that Claudios title to the property be
respected. Equity dictates that the petitioners are made to suffer the consequences of their
unexplained negligence.
WHEREFORE, in consideration of the foregoing disquisitions, the petition is DENIED. The
assailed Decision dated June 6, 2008 of the Court of Appeals in CA-G.R. CV No. 79391, which
affirmed the Decision of the Regional Trial Court of Malolos, Bulacan, Branch 22, in Civil Case
No. 1058-M-99 and dismissed the complaint for declaration of nullity of TCT No. 221755 (M) and
other documents, and the October 23, 2008 Resolution denying reconsideration, are AFFIRMED.
SO ORDERED.
Carpio (Chairperson), Perez, Sereno and Perlas-Bernabe,** JJ., concur.
Petition denied, judgment and resolution affirmed.
Notes.There could be no perjury where a party failed to disclose in his Certification Against
Forum Shopping the previous filing of a cadastral caseunder the courts cadastral or
administrative authority, the issue being administrative in nature, no judicial issues that
required resolution were involved. (Yu vs. Lim, 631 SCRA 172 [2010])
If the family home was constructed before the effectivity of the Family Code, or before 3
August 1988, then it must have been constituted either judicially or extrajudicially as provided
under Articles 225, 229-231 and 233 of the Civil Code; For family homes constructed after the
effectivity of the Family Code, there is no need to constitute extrajudicially or judicially, and the
exemption from execution is effective from the time it was constituted and lasts as long as any of
its beneficiaries under Art. 154 actually reside therein. (Ramos vs. Pangilinan, 625 SCRA 181
[2010])

November 27, 2008.G.R. No. 165060.*

ALBINO JOSEF, petitioner, vs. OTELIO SANTOS, respondent.
YNARES-SANTIAGO,J.:

This petition for review on certiorari under Rule 45 of the Rules of Court assails the November
17, 20031 Resolution of the Court of Appeals in CA-G.R. SP No. 80315, dismissing petitioners
special civil action of certiorari for failure to file a prior motion for reconsideration, and the May
7, 20042Resolution denying the motion for reconsideration.
Petitioner Albino Josef was the defendant in Civil Case No. 95-110-MK, which is a case for
collection of sum of money filed by herein respondent Otelio Santos, who claimed that petitioner
failed to pay the shoe materials which he bought on credit from respondent on various dates in
1994.
After trial, the Regional Trial Court of Marikina City, Branch 272, found petitioner liable to
respondent in the amount of P404,836.50 with interest at 12% per annumreckoned from January
9, 1995 until full payment.3
Petitioner appealed4 to the Court of Appeals, which affirmed the trial courts decision in
toto.5 Petitioner filed before this Court a petition for review on certiorari, but it was dismissed in a
Resolution dated February 18, 2002.6The Judgment became final and executory on May 21, 2002.
On February 17, 2003, respondent moved for issuance of a writ of execution, 7 which was
opposed by petitioner.8 In an Order dated July 16, 2003,9 the trial court granted the motion, the
dispositive portion of which reads, as follows:
WHEREFORE, premises considered, the motion for issuance of writ of execution is hereby granted.
Let a writ of execution be issued commanding the Sheriff of this Court to execute the decision dated
December 18, 1996.
SO ORDERED.
10

A writ of execution was issued on August 20, 200311 and enforced on August 21, 2003. On
August 29, 2003, certain personal properties subject of the writ of execution were auctioned off.
Thereafter, a real property located at Marikina City and covered by Transfer Certificate of Title
(TCT) No. N-105280 was sold on October 28, 2003 by way of public auction to fully satisfy the
judgment credit. Respondent emerged as the winning bidder and a Certificate of Sale 12 dated
November 6, 2003 was issued in his favor.
On November 5, 2003, petitioner filed an original petition for certiorari with the Court of
Appeals, questioning the sheriffs levy and sale of the abovementioned personal and real
properties. Petitioner claimed that the personal properties did not belong to him but to his
children; and that the real property covered by TCT No. N-105280 was his family home thus
exempt from execution.
On November 17, 2003, the Court of Appeals issued the assailed Resolution dismissing the
petition for failure of petitioner to file a motion for reconsideration of the trial courts July 16,
2003 Order granting the motion for execution and ordering the issuance of a writ therefor, as well
as for his failure to indicate in his petition the timeliness of its filing as required under the Rules
of Court. On May 7, 2004, the appellate court denied petitioners motion for reconsideration.
Thus, the instant petition which raises the following issues:
I.

WHETHER OR NOT THE LEVY AND SALE OF THE PERSONAL BELONGINGS OF THE
PETITIONERS CHILDREN AS WELL AS THE ATTACHMENT AND SALE ON PUBLIC AUCTION OF
HIS FAMILY HOME TO SATISFY THE JUDGMENT AWARD IN FAVOR OF RESPONDENT IS LEGAL.
II.
WHETHER OR NOT THE DISMISSAL OF THE PETITIONERS PETITION FOR CERTIORARI BY
THE HONORABLE COURT OF APPEALS IS JUSTIFIED UNDER THE CIRCUMSTANCES.

Petitioner argues that the trial court sheriff erroneously attached, levied and sold on execution
the real property covered by TCT No. N-105280 because the same is his family home; that the
execution sale was irregular because it was conducted without complying with the notice and
posting of requirements; and that the personal and real properties were sold for inadequate
prices as to shock the conscience. The real property was allegedly worth P8 million but was sold
for only P848,448.64.
Petitioner also argues that the appellate court gravely abused its discretion in dismissing the
petition based purely on technical grounds, i.e., his failure to file a motion for reconsideration of
the trial courts order granting execution, and his failure to indicate in his petition
for certiorari the timeliness of filing the same with the Court of Appeals.
Respondent, on the other hand, argues that petitioners alleged family home has not been shown
to have been judicially or extrajudicially constituted, obviously referring to the provisions on
family home of the Civil Codenot those of the Family Code which should apply in this case; that
petitioner has not shown to the courts satisfaction that the personal properties executed upon
and sold belonged to his children. Respondent argues that he is entitled to satisfaction of
judgment considering the length of time it took for the parties to litigate and the various
remedies petitioner availed of which have delayed the case.
The petition is meritorious.
Petitioner, in his opposition to respondents motion for issuance of a writ of execution, claimed
that he was insolvent; that he had no property to answer for the judgment credit; that the house
and lot in which he was residing at the time was his family home thus exempt from execution;
that the household furniture and appliances found therein are likewise exempt from execution;
and that these furniture and appliances belonged to his children Jasmin Josef and Jean Josef
Isidro. Thus, as early as during proceedings prior to the issuance of the writ of execution,
petitioner brought to the fore the issue of exemption from execution of his home, which he
claimed to be a family home in contemplation of the civil law.
However, instead of inquiring into the nature of petitioners allegations in his opposition, the
trial court ignored the same and granted respondents motion for execution. The full text of the
July 16, 2003 Order provides, as follows:
This resolves the Motion for the Issuance of Writ of Execution filed by plaintiff thru counsel and the
Opposition thereto filed by the defendant on her own behalf.
The records show that a decision was rendered by this Court in favor of the plaintiff on December 18,
1995 which decision was affirmed by the Court of Appeals on June 26, 2001 and by the Supreme Court on
February 18, 2002. On June 18, 2003, this Court received the entire records of the case from the Court of
Appeals.63

Considering the foregoing, it is now the ministerial duty of the Court to issue a writ of execution
pursuant to Sec. 1, Rule 39 of the Rules of Court.
WHEREFORE, premises considered, the motion for issuance of writ of execution is hereby granted. Let
a writ of execution be issued commanding the Sheriff of this Court to execute the decision dated December
18, 1996.
SO ORDERED.
13

The above Order did not resolve nor take into account petitioners allegations in his
Opposition, which are material and relevant in the resolution of the motion for issuance of a writ
of execution. This is serious error on the part of the trial court. It should have made an earnest
determination of the truth to petitioners claim that the house and lot in which he and his
children resided was their duly constituted family home. Since it did not, its July 16, 2003 Order
is thus null and void. Where a judgment or judicial order is void it may be said to be a lawless
thing, which can be treated as an outlaw and slain at sight, or ignored wherever and whenever it
exhibits its head.14
The family home is a real right which is gratuitous, inalienable and free from attachment,
constituted over the dwelling place and the land on which it is situated, which confers upon a
particular family the right to enjoy such properties, which must remain with the person
constituting it and his heirs. It cannot be seized by creditors except in certain special cases. 15
Upon being apprised that the property subject of execution allegedly constitutes petitioners
family home, the trial court should have observed the following procedure:
Determine if petitioners obligation to respondent falls under either of the exceptions under Article
1551. of the Family Code;
Make an inquiry into the veracity of petitioners claim that the property was his family home;
2. conduct an ocular inspection of the premises; an examination of the title; an interview of members of
the community where the alleged family home is located, in order to determine if petitioner actually
resided within the premises of the claimed family home; order a submission of photographs of the
premises, depositions, and/or affidavits of proper individuals/parties; or a solemn examination of the
petitioner, his children and other witnesses. At the same time, the respondent is given the opportunity to
cross-examine and present evidence to the contrary;
If the property is accordingly found to constitute petitioners family home, the court should
determine:3.
if the obligation sued upon was contracted or incurred prior to, or after, the effectivity of the
Family Code;a)
if petitioners spouse is still alive, as well as if there are other beneficiaries of the family home;
b)
if the petitioner has more than one residence for the purpose of determining which of them, if
any, is his family home;c) and
its actual location and value, for the purposed)
16

17

18

19

20

of applying the provisions of Articles 157 and The family home is the dwelling place of a person
21

and his family, a sacred symbol of family love and repository of cherished memories that last during ones lifetime.23 It is the sanctuary of that union which the law
declares and protects as a sacred institution; and likewise a shelter for the fruits of that union. It

is where both can seek refuge and strengthen the tie that binds them together and which
ultimately forms the moral fabric of our nation. The protection of the family home is just as
necessary in the preservation of the family as a basic social institution, and since no custom,
practice or agreement destructive of the family shall be recognized or given effect, 24 the trial
courts failure to observe the proper procedures to determine the veracity of petitioners
allegations, is unjustified.
The same is true with respect to personal properties levied upon and sold at auction. Despite
petitioners allegations in his Opposition, the trial court did not make an effort to determine the
nature of the same, whether the items were exempt from execution or not, or whether they
belonged to petitioner or to someone else.25
Respondent moved for issuance of a writ of execution on February 17, 2003 while petitioner
filed his opposition on June 23, 2003. The trial court granted the motion on July 16, 2003, and
the writ of execution was issued on August 20, 2003. Clearly, the trial court had enough time to
conduct the crucial inquiry that would have spared petitioner the trouble of having to seek relief
all the way to this Court. Indeed, the trial courts inaction on petitioners plea resulted in serious
injustice to the latter, not to mention that its failure to conduct an inquiry based on the latters
claim bordered on gross ignorance of the law.
Being void, the July 16, 2003 Order could not have conferred any right to respondent. Any writ
of execution based on it is likewise void. Although we have held in several cases 26 that a claim for
exemption from execution of the family home should be set up and proved before the sale of the
property at public auction, and failure to do so would estop the party from later claiming the
exemption since the right of exemption is a personal privilege granted to the judgment debtor
which must be claimed by the judgment debtor himself at the time of the levy or within a
reasonable period thereafter, the circumstances of the instant case are different. Petitioner
claimed exemption from execution of his family home soon after respondent filed the motion for
issuance of a writ of execution, thus giving notice to the trial court and respondent that a
property exempt from execution may be in danger of being subjected to levy and sale. Thereupon,
the trial court is called to observe the procedure as herein laid out; on the other hand, the
respondent should observe the procedure prescribed in Article 160 of the Family Code, that is, to
obtain an order for the sale on execution of the petitioners family home, if so, and apply the
proceedsless the maximum amount allowed by law under Article 157 of the Code which should
remain with the petitioner for the rebuilding of his family hometo his judgment credit. Instead,
both the trial court and respondent completely ignored petitioners argument that the properties
subject of the writ are exempt from execution.
Indeed, petitioners resort to the special civil action ofcertiorari in the Court of Appeals was
belated and without benefit of the requisite motion for reconsideration, however, considering the
gravity of the issue, involving as it does matters that strike at the very heart of that basic social
institution which the State has a constitutional and moral duty to preserve and protect, as well
as petitioners constitutional right to abode, all procedural infirmities occasioned upon this case
must take a back seat to the substantive questions which deserve to be answered in full.

WHEREFORE, the Petition for Review on Certiorari is GRANTED. The November 17, 2003
and May 7, 2004 Resolutions of the Court of Appeals in CA-G.R. SP No. 80315 are REVERSED
and SET ASIDE. The July 16, 2003 Order of the Regional Trial Court of Marikina City, Branch
272 in Civil Case No. 95-110-MK, as well as the writ or writs of execution thus issued in said
case, are hereby DECLARED VOID, and all acts proceeding therefrom and any title obtained by
virtue thereof are likewise DECLARED VOID.
The trial court is hereby DIRECTED (1) to conduct a solemn inquiry into the nature of the
real property covered by Transfer Certificate of Title No. N-105280, with a view toward
determining whether the same is petitioner Albino Josefs family home, and if so, apply the
pertinent provisions of the Family Code and Rule 39 of the Rules of Court; and (2) to conduct an
inquiry into the ownership of all other properties that were levied upon and sold, with the aim of
determining as well whether these properties are exempt from execution under existing law.
Respondent Otelio Santos is hereby DIRECTED to hold the abovementioned real and personal
properties, or the proceeds thereof, in trust to await the outcome of the trial courts inquiry.
Finally, the trial court is DIRECTED to resolve, with utmost dispatch, Civil Case No. 95-110MK within sixty (60) days from receipt of a copy of this Decision.
SO ORDERED.
Austria-Martinez, Tinga,** Chico-Nazario and Nachura, JJ., concur.

July 8, 2015.G.R. No. 186322.*

ENRICO S. EULOGIO and NATIVIDAD V. EULOGIO, petitioners, vs. PATERNO C. BELL, SR.,
ROGELIA CALINGASAN-BELL, PATERNO WILLIAM BELL, JR., FLORENCE FELICIA
VICTORIA BELL, PATERNO FERDINAND BELL III, and PATERNO BENERAO BELL IV,
respondents.
This is a Petition for Review on Certiorari assailing the Court of Appeals (CA) Decision1 in
C.A.-G.R. S.P. No. 87531 which granted the Petition for Certiorari filed by respondents and
enjoined the execution sale of their family home for the satisfaction of the money judgment
awarded to petitioners in Civil Case No. 4581, and the Resolution 2which denied petitioners
Motion for Reconsideration.
Antecedent Facts
Respondents Paterno William Bell, Jr., Florence Felicia Victoria Bell, Paterno Ferdinand Bell
III, and Paterno Benerao IV (the Bell siblings) are the unmarried children of respondent
Spouses Paterno C. Bell and Rogelia Calingasan-Bell (Spouses Bell). In 1995, the Bell siblings

lodged a Complaint for annulment of documents, reconveyance, quieting of title and damages
against petitioners Enrico S. Eulogio and Natividad Eulogio (the Eulogios). It was docketed as
Civil Case No. 4581 at the Regional Trial Court (RTC) of Batangas City, Branch 84. The
Complaint sought the annulment of the contract of sale executed by Spouses Bell over their 329square-meter residential house and lot, as well as the cancellation of the title obtained by
petitioners by virtue of the Deed.
The RTC granted respondents prayers, but declared Spouses Bell liable to petitioners in the
amount of P1 million plus 12% interest per annum. The dispositive portion of the Decision dated
15 July 1998 reads as follows:
WHEREFORE, prescinding from all the foregoing, the Court hereby declares:
That the sale of the subject house and lot under Deed of Sale marked as Exhibit F is only an
equitable mortgage in favor of the defendants Enrico Eulogio and Natividad Eulogio. However, the
mortgage cannot bind the property in question for being violative of Chapter 2, Title 4 of the Family Code,
its encumbrance not having been consented to in writing by a majority of the beneficiaries who are the
plaintiffs herein;1.
The said equitable mortgage is deemed to be an unsecured mortgage [2.sic] for which the Spouses
Paterno C. Bell, Sr. and Rogelia Calingasan Bell as mortgagors are liable to the defendants-spouses
Enrico Eulogio and Natividad Eulogio in the amount of P1,000,000 plus interest of 12% per annum.
However, under the Fourth Party Complaint Sps. Paterno C. Bell, Sr. and Rogelia Calingasan Bell have
the right of reimbursement from fourth party defendants Nicolas Moraa and Julieta Moraa for whom
their loan of P1,000,000 was secured by Sps. Paterno C. Bell, Sr. and Rogelia Calingasan Bell.
Accordingly, the fourth party defendants Nicolas Moraa and Julieta Moraa are hereby ordered to
reimburse Paterno C. Bell, Sr. and Rogelia Calingasan Bell the loan of P1,000,000 plus interest of
12% per annum to be paid by the latter to defendants Enrico and Natividad Eulogio;
The house and lot in question is free from any and all encumbrances by virtue of said equitable
mortgage or the purported sale; and3.
The Deed of Sale (Exhibit F) is null and void for being contrary to law and public policy.4.
ordered to cancel Transfer Certificate of Title No. T-131472 in the name of defendants Enrico S.
Eulogio and Natividad Eulogio and to reconstitute (sic) Transfer Certificate of Title No. RT-680-(5997) as
family home of the plaintiffs Florence Felicia Victoria C. Bell, Paterno William C. Bell, Jr., Paterno
Ferdinand C. Bell III, Paterno Benerao C. Bell IV and fourth party plaintiffs Paterno C. Bell, Sr. and
Rogelia Calingasan Bell; or in the alternative to issue a new Transfer Certificate of Title under the same
tenor;
The City Assessor of Batangas City is hereby directed to issue a tax declaration covering the said
subject property as family home for the said plaintiffs and fourth party plaintiffs Paterno C. Bell and
Rogelia Calingasan Bell; and2.
Defendants Enrico Eulogio and Natividad Eulogio are ordered to pay the plaintiffs attorneys fees and
litigation expenses of P35,000.00, as the plaintiffs have been compelled to litigate to protect their property
rights, and costs.3.
3

Both petitioners and respondents appealed to the CA, but the trial courts Decision was
affirmed in toto. Spouses Bell later brought the case to this Court to question their liability to

petitioners in the amount of P1 million plus interest. The Court, however, dismissed their
Petition for failure to show any reversible error committed by the CA. 4Thereafter, entry of
judgment was made.5
On 9 June 2004 the RTC issued a Writ of Execution, as a result of which respondents
property covered by the newly reconstituted Transfer Certificate of Title (TCT) No. 54208
[formerly RT-680 (5997)] was levied on execution. Upon motion by respondents, the trial court, on
31 August 2004, ordered the lifting of the writ of execution on the ground that the property was a
family home.6
Petitioners filed a Motion for Reconsideration of the lifting of the writ of execution. Invoking
Article 160 of the Family Code, they posited that the current market value of the property
exceeded the statutory limit of P300,000 considering that it was located in a commercial area,
and that Spouses Bell had even sold it to them for P1 million.7
The RTC, on 13 October 2004, set the case for hearing to determine the present value of the
family home of respondents. It also appointed a Board of Appraisers to conduct a study on the
prevailing market value of their house and lot.8
Respondents sought reconsideration of the above directives and asked the RTC to cite
petitioners for contempt because of forum shopping.9 They argued that petitioners bid to
determine the present value of the subject property was just a ploy to re-litigate an issue that
had long been settled with finality.
The RTC, however, denied the Motion for Reconsideration10 of respondents and directed the
commissioners to canvass prospective buyers of their house and lot.11
On 23 November 2004, respondents filed a Petition forCertiorari and Injunction before the
CA,12 where it was docketed as C.A.-G.R. S.P. No. 87531.
Subsequently, the RTC issued on 25 November 2004 an Order 13 dispensing with the valuation
report of the commissioners and directing the issuance of a writ of execution. Consequently,
respondents filed before the CA a Supplemental Petition with an urgent prayer for a temporary
restraining order.14
The CA eventually enjoined15 the execution sale set on 22 December 200416 by the RTC.
On 31 July 2008, the CA rendered its Decision granting respondents Petition for Certiorari,
but it rejected their theory that res judicata had already set in.
The appellate court ruled that the RTC Decision, which had become final and executory, only
declared respondents house and lot as a family home. Since the issue of whether it may be sold
in execution was incidental to the execution of the aforesaid Decision, there was as yet no res
judicata.
Still, the CA found that the trial court committed grave abuse of discretion in ordering the
execution sale of the subject family home after finding that its present valueexceeded the
statutory limit. The basis for the valuation of a family home under Article 160, according to the
appellate court, is its actual value at the time of its constitution and not the market/present
value; therefore, the trial courts order was contrary to law.17

On 09 February 2009,18 the CA denied petitioners Motion for Reconsideration. Hence, this
Petition.
Issues
The issues to be resolved are: (1) whether petitioners are guilty of forum shopping; (2) whether
a hearing to determine the value of respondents family home for purposes of execution under
Article 160 of the Family Code is barred under the principle of res judicata; and (3) whether
respondents family home may be sold on execution under Article 160 of the Family Code.
The Courts Ruling
The Court denies the Petition for lack of merit.
Petitioners are not guilty of forum shopping.
Forum shopping can be committed in three ways: (1) by filing multiple cases based on the
same cause of action and with the same prayer, the previous case not having been resolved yet
(where the ground for dismissal is litis pendentia); (2) by filing multiple cases based on the same
cause of action and with the same prayer, the previous case having been finally resolved (where
the ground for dismissal is res judicata); and (3) by filing multiple cases based on the same cause
of action but with different prayers, or by splitting of causes of action (where the ground for
dismissal is also either litis pendentia or res judicata).19
The essence of forum shopping is the filing of multiple suits involving the same parties for the
same cause of action, either simultaneously or successively, for the purpose of obtaining a
favorable judgment through means other than by appeal or certiorari.20 Forum shopping
does not apply to cases that arise from an initiatory or original action that has been elevated by
way of appeal or certiorari to higher or appellate courts or authorities. This is so because the
issues in the appellate courts necessarily differ from those in the lower court, and the appealed
cases are but a continuation of the original case and treated as only one case.21
Respondents contend that the Decision in Civil Case No. 4581, which declared that property
in dispute was a family home, had long attained finality. Accordingly, respondents maintain that
petitioners bid to re-litigate the present value of the property in the course of the execution
proceedings is barred by res judicata, and that petitioners should be cited for contempt of court
because of forum shopping.22
Recall that although the trial court had nullified the Deed of Sale over respondents family
home in Civil Case No. 4581 for lack of a written consent from its beneficiaries as required under
Article 158 of the Family Code,23 the court still recognized the validity of the transaction as an
unsecured loan. Hence, it declared Spouses Bell liable to petitioners in the amount of P1 million
plus 12% interest per annum.

Petitioners bid to satisfy the above judgment cannot be considered an act of forum shopping.
Simply, the execution of a decision is just the fruit and end of a suit and is very aptly called the
life of the law.24 It is not separate from the main case. Similarly, the filing of the instant Petition
as a continuation of the execution proceedings does not constitute forum shopping. Seeking a
reversal of an adverse judgment or order by appeal or certiorari does not constitute forum
shopping. Such remedies are sanctioned and provided for by the rules. 25
Indeed, as will be presently discussed, the causes of action in the main proceedings in Civil
Case No. 4581 and the consequent execution proceedings are identical. Suffice it to say, however,
that the danger of a multiplicity of suits upon one and the same cause of action, which the
judicial policy against forum shopping seeks to prevent, does not exist in this case.
Re-litigating the issue of the value of respondents family home is barred by res
judicata.
Res judicata (meaning, a matter adjudged) is a fundamental principle of law that precludes
parties from re-litigating issues actually litigated and determined by a prior and final
judgment.26 Under the 1997 Rules of Court, there are two aspects of res judicata, namely: bar by
prior judgment27 and conclusiveness of judgment.28
There is bar by prior judgment when, as between the first case in which the judgment has
been rendered and the second case that is sought to be barred, there is an identity of parties,
subject matter, and causes of action. In this instance, the judgment in the first case constitutes
an absolute bar to the second action. The judgment or decree on the merits of the court of
competent jurisdiction concludes the litigation between the parties, as well as their privies, and
constitutes a bar to a new action or suit involving the same cause of action before the same or any
other tribunal.29
On the other hand, there is conclusiveness of judgment where there is an identity of parties
in the first and second cases, but no identity of causes of action. Under this rule, the first
judgment is conclusive only as to those matters actually and directly controverted and
determined and not as to matters merely involved therein. Stated differently, any right, fact, or
matter in issue directly adjudicated or necessarily involved in the determination of an action
before a competent court in which judgment is rendered on the merits is conclusively settled by
the judgment therein and cannot again be litigated between the parties and their privies whether
or not the claim, demand, purpose, or subject matter of the two actions is the same. 30
In this case, the trial courts final decision in Civil Case No. 4581 bars petitioners move to
have the property in dispute levied on execution.
There is no question that the main proceedings in Civil Case No. 4581 and the subsequent
execution proceedings involved the same parties31 and subject matter.32 For these reasons,
respondents argue that the execution sale of the property in dispute under Article 160 of the
Family Code is barred by res judicata, since the trial court has already determined that the value
of the property fell within the statutory limit.

The CA held that the trial courts Decision, which is indisputably final, only settled the issue
of whether the property in dispute was a family home. The CA ruled thus:
We rule that there is no res judicata.
At the outset, let it be emphasized that the decision of the trial court dated July 15, 1998, which has
become final and executory, only declares the subject property as a family home. As a matter of fact, private
respondents never questioned that such property is a family home, and consequently, the issue as to
whether or not the property is family home is settled and res judicata lies only with respect to this issue.
But the issue as to whether or not a family home could be the subject of an execution sale was not
resolved by the trial court. This issue [was] raised only when the writ of execution was issued and hence,
[was not] resolved with finality. Thus, the issue before this Court is whether or not the [f]amily [h]ome of
petitioners under the facts and circumstances of the case could be the subject of a writ of execution and
sold at public auction.
33

The Court disagrees with the CA.

Cause of action is the act or omission by which a party violates the right of another. 34 It may
be argued that the cause of action in the main proceedings was the sale of the property in
dispute, while in the execution proceedings it was the indebtedness of Spouses Bell to petitioners.
The settled rule, however, is that identity of causes of action does not mean absolute identity.
Otherwise, a party could easily escape the operation of res judicata by changing the form of the
action or the relief sought.35 The test to determine whether the causes of action are identical is to
ascertain whether the same evidence will sustain both actions, or whether there is an identity
of the facts essential to the maintenance of the two actions. If the same facts or evidence
would sustain both, the two actions are considered the same, and a judgment in the first case
would be a bar to the subsequent action. Hence, a party cannot, by varying the form of action or
adopting a different method of presenting the case, escape the operation of the principle that one
and the same cause of action shall not be twice litigated between the same parties or their
privies.36
Among several tests resorted to in ascertaining whether two suits relate to a single or common
cause of action are: (1) whether the same evidence would support and sustain both the first and
the second causes of action; and (2) whether the defenses in one case may be used to substantiate
the complaint in the other. Also fundamental is the test for determining whether the cause of
action in the second case existed at the time of the filing of the first complaint. 37
Applying the above guidelines, the Court finds that the entirety of Civil Case No. 4581
including the bid of petitioners to execute the money judgment awarded to them by the trial court
is founded on a common cause of action. Records show that the sole evidence submitted by
petitioners during the execution proceedings was the Deed of Sale, which the trial court had
nullified in the main proceedings. Concomitantly, the very same defense raised by petitioners in
the main proceedings, i.e., that they had bought the property from Spouses Bell for P1 million
was utilized to substantiate the claim that the current value of respondents family home was

actually P1 million. In fact, the trial courts order for respondents family home to be levied on
execution was solely based on the price stated in the nullified Deed of Sale.
Res judicata applies, considering that the parties are litigating over the same property.
Moreover, the same contentions and evidence advanced by the petitioners to substantiate their
claim over respondents family home have already been used to support their arguments in the
main proceedings.
Any lingering doubt on the application of res judicata to this case should be put to rest by the
trial courts discussion of the nature and alienability of the property in dispute, to wit:
The second issue is about the allegation of the plaintiffs that the family home which has been
constituted on the house and lot in question is exempt from alienation and that its value does not exceed
P300,000. Paterno Bell, Sr. testified that the two-storey house was built in 1947 and was made of wood
and hollow blocks. He inherited it in 1976 from his parents and has been living there with his family. In
1976, when an extrajudicial settlement was made of the estate of his parents, the fair market value of the
house was P70,000.
City Assessor Rodezinda Pargas testified and presented Tax Declaration and others, (Exhibit J, Tax
Declaration No. 005-047) beginning 1985 showing that the subject lot with an area of 329 sq. m. had a fair
market value of P76,000.00 and the residential house located thereon of P50,000.00, for a total value of
P126,000.00.
She testified that during the prior years the assessed values were lower. This shows that the limit of
the value of P300,000.00 under Article 157, Title 5 of the Family Code has not been exceeded. The
testimonies of the plaintiffs who are children of Sps. Paterno Bell, Sr. and Rogelia Calingasan Bell show
that they had lived in that house together with their said parents. The Court therefore concludes that the
said house is a family home under Chapter 2, Title 5 of the Family Code. Its alienation by the said
Spouses without the written consent of the majority of the children/plaintiffs is null and void for being
contrary to law and public policy as enunciated in Art. 158 of the Family Code. [Underscoring supplied]
38

The foregoing points plainly show that the issue of whether the property in dispute exceeded
the statutory limit of P300,000 has already been determined with finality by the trial court. Its
finding necessarily meant that the property is exempt from execution. Assuming for the sake of
argument that causes of action in the main proceedings and in the execution proceedings are
different, the parties are still barred from litigating the issue of whether respondents family
home may be sold on execution sale under the principle of conclusiveness of judgment.
Respondents family home cannot be
sold on execution under Article 160
of the Family Code.
Unquestionably, the family home is exempt from execution as expressly provided for in Article
153 of the Family Code.39It has been said that the family home is a real right that is gratuitous,
inalienable and free from attachment.40 The great controlling purpose and policy of the

Constitution is the protection or the preservation of the homestead the dwelling place. A
houseless, homeless population is a burden upon the energy, industry, and morals of the
community to which it belongs. No greater calamity, not tainted with crime, can befall a family
than to be expelled from the roof under which it has been gathered and sheltered. 41 The family
home cannot be seized by creditors except in special cases.42
The nature and character of the property that debtors may claim to be exempt, however, are
determined by the exemption statute. The exemption is limited to the particular kind of property
or the specific articles prescribed by the statute; the exemption cannot exceed the statutory
limit.43
Articles 155 and 160 of the Family Code specify the exceptions mentioned in Article 153, to
wit:
The family home shall be exempt from execution, forced sale or attachment except:155.ARTICLE
For nonpayment of taxes;(1)
For debts incurred prior to the constitution of the family home;(2)
For debts secured by mortgages on the premises before or after such constitution; and(3)
For debts due to laborers, mechanics, architects, builders, materialmen and others who have rendered
service or furnished material for the construction of the building.
When a creditor whose claims is not among those mentioned in Article 155 obtains a judgment in his
favor, and he has reasonable grounds to believe that the family home is actually worth more than the
maximum amount fixed in Article 157, he may apply to the court which rendered the judgment for an
order directing the sale of the property under execution. The court shall so order if it finds that the actual
value of the family home exceeds the maximum amount allowed by law as of the time of its constitution. If
the increased actual value exceeds the maximum allowed in Article 157 and results from subsequent
voluntary improvements introduced by the person or persons constituting the family home, by the owner
or owners of the property, or by any of the beneficiaries, the same rule and procedure shall apply. 160.
ARTICLE
At the execution sale, no bid below the value allowed for a family home shall be considered. The
proceeds shall be applied first to the amount mentioned in Article 157, and then to the liabilities under
the judgment and the costs. The excess, if any, shall be delivered to the judgment debtor.

Related to the foregoing is Article 157 of the Family Code, which provides:
The actual value of the family home shall not exceed,157.ARTICLE at the time of its constitution,
the amount of three hundred thousand pesos in urban areas, and two hundred thousand pesos in rural
areas, or such amounts as may hereafter be fixed by law.
In any event, if the value of the currency changes after the adoption of this Code, the value most
favorable for the constitution of a family home shall be the basis of evaluation.
For purposes of this Article, urban areas are deemed to include chartered cities and
municipalities whose annual income at least equals that legally required for chartered cities. All others
are deemed to be rural areas. [Underscoring supplied]

The minutes of the deliberation by the drafters of Family Code on Article 160 are
enlightening, to wit:
Justice Puno inquired if the above Article [160] is still necessary. In reply, Judge Diy opined that the
above Article is intended to cover a situation where the family home is already worth P500,000 or P1M.
Justice Reyes stated that it is possible that a family home, originally valued at P300,000, later
appreciated to almost P1M because of improvements made, like roads and plazas. Justice Caguioa,
however, made a distinction between voluntary and involuntary improvements in the sense that if the
value of the family home exceeded the maximum amount because of voluntary improvements by the one
establishing the family home, the Article will apply; but if it is through an involuntary improvement, like
the conversion into a residential area or the establishment of roads and other facilities, the one
establishing the family home should not be punished by making his home liable to creditors. He suggested
that the matter be clarified in the provision.
xxxx
Prof. Bautista objected to the phrase is worth since if they will specify that the family home is worth
more than the maximum amount at the time it was constituted, they will avoid the suit because the
creditor will be given proper warning. Justice Puno opined that this is a question of fact. Justice Caguioa
added that, under the second sentence, there will be a preliminary determination as to whether the family
home exceeds the maximum amount allowed by law.
xxxx
Justice Caguia accordingly modified the last sentence as follows:
If the excess in actual value over that allowed in Article 157 is due to subsequent voluntary
improvements by the person or persons constituting the family home or by the owner or owners of the
property, the same rules and procedure shall apply.
Prof. Bautista objected to the above provision, because it will in effect penalize the owner for improving
the family home. On the other hand, Justice Puno opined that the provision covers only the excess in
actual value over that allowed by law. Judge Diy added that the owner may improve the family home up to
P300,000. Justice Caguioa stated that without the above provision, one can borrow money, put it all on
improvement of the family home even beyond the maximum value of a family home and, thereby, exempt it
from levy on the part of the creditor. He added that anyway, if one voluntarily improves his family home
out of his money, nobody can complain because there are no creditors.
Justice Puno posed the question: What is due to the subsequent improvement? Is it the excess or is
it the increase, or is it the increase, which constitutes the excess? In reply, Justice Reyes opined that
it is the increase which constituted the excess.Justice Puno, Justice Reyes and Justice Caguioa
modified the last sentence as follows:
If the increase in actual value exceeds that maximum allowed in Article 157 and results from
subsequent voluntary improvements introduced by the person or persons constituting the family home or
by the owner or owners of the property, the same rule and procedure shall apply.
Prof. Bautista commented that the phrase increase in actual value does not include the original
value. Justice Puno suggested that they just say increased actual value, which the Committee
approved. [Underscoring supplied]
44

To summarize, the exemption of the family home from execution, forced sale or attachment is
limited to P300,000 in urban areas and P200,000 in rural areas, unless those maximum values
are adjusted by law. If it is shown, though, that those amounts do not match the present value of
the peso because of currency fluctuations, the amount of exemption shall be based on the value
that is most favorable to the constitution of a family home. Any amount in excess of those limits
can be applied to the payment of any of the obligations specified in Articles 155 and 160.
Any subsequent improvement or enlargement of the family home by the persons constituting
it, its owners, or any of its beneficiaries will still be exempt from execution, forced sale or
attachment provided the following conditions obtain: (a) the actual value of the property at the
time of its constitution has been determined to fall below the statutory limit; and (b) the
improvement or enlargement does not result in an increase in its value exceeding the statutory
limit.45 Otherwise, the family home can be the subject of a forced sale, and any amount above the
statutory limit is applicable to the obligations under Articles 155 and 160.
Certainly, the humane considerations for which the law surrounds the family home with
immunities from levy do not include the intent to enable debtors to thwart the just claims of
their creditors.46
Petitioners maintain that this case falls under the exceptions to the exemption of the family
home from execution or forced sale. They claim that the actual value of respondents family home
exceeds the P300,000 limit in urban areas. This fact is supposedly shown by the Deed of Sale
whereby private respondents agreed to sell the property for P1 million way back in 1995.
Therefore, the RTC only properly ordered the execution sale of the property under Article 160 to
satisfy the money judgment awarded to them in Civil Case No. 4581.47
As earlier discussed, it has been judicially determined with finality that the property in
dispute is a family home, and that its value at the time of its constitution was within the
statutory limit. Moreover, respondents have timely claimed the exemption of the property from
execution.48 On the other hand, there is no question that the money judgment awarded to
petitioners falls under the ambit of Article 160.
Notwithstanding petitioners right to enforce the trial courts money judgment, however, they
cannot obtain its satisfaction at the expense of respondents rights over their family home. It is
axiomatic that those asserting the protection of an exception from an exemption must bring
themselves clearly within the terms of the exception and satisfy any statutory requirement for its
enforcement.49
To warrant the execution sale of respondents family home under Article 160, petitioners
needed to establish these facts: (1) there was an increase in its actual value; (2) the increase
resulted from voluntary improvements on the property introduced by the persons constituting
the family home, its owners or any of its beneficiaries; and (3) the increased actual value
exceeded the maximum allowed under Article 157.
During the execution proceedings, none of those facts was alleged much less proven by
petitioners. The sole evidence presented was the Deed of Sale, but the trial court had already
determined with finality that the contract was null, and that the actual transaction was an

equitable mortgage. Evidently, when petitioners and Spouses Bell executed the Deed of Sale in
1990, the price stated therein was not the actual value of the property in dispute.
The Court thus agrees with the CAs conclusion that the trial court committed grave abuse of
discretion in ordering the sale on execution of the property in dispute under Article 160. The trial
court had already determined with finality that the property was a family home, and there was
no proof that its value had increased beyond the statutory limit due to voluntary improvements
by respondents. Yet, it ordered the execution sale of the property. There is grave abuse of
discretion when one acts in a capricious, whimsical, arbitrary or despotic manner in the exercise
of ones judgment, as in this case in which the assailed order is bereft of any factual or legal
justification.50
WHEREFORE, the Petition for Review on Certiorari is hereby DENIED for lack of merit.
Accordingly, the Decision of the Court of Appeals in C.A.-G.R. S.P. No. 87531, enjoining the trial
court from proceeding with the sale of the family home of respondents, is AFFIRMED.
SO ORDERED.

Leonardo-De Castro, Bersamin, Perez and Perlas-Bernabe, JJ., concur.

Petition denied, judgment affirmed.
Notes.Conclusiveness of judgment bars the relitigation of particular facts or issues in
another litigation between the same parties on a different claim or cause of action. (Facura vs.
Court of Appeals, 643 SCRA 427 [2011])
While the general policy of the law is to sustain execution sales, the sale may be set aside
where there is a resulting injury based on fraud, mistake and irregularity. (Bulaong vs. Gonzales,
656 SCRA 666 [2011])
o0o
JOSE MODEQUILLO, petitioner, vs. HON. AUGUSTO V.BREVA, FRANCISCO SALINAS,
FLORIPER ABELLAN-SALI-NAS, JUANITO CULAN-CULAN and DEPUTY SHERIFF
FERNANDO PLATA, respondents.
GANCAYCO, J.:
The issue in this petition is whether or not a final judgment of the Court of Appeals in an action
for damages may be satisfied by way of execution of a family home constituted under the Family
Code.
The facts are undisputed.
On January 29, 1988, a judgment was rendered by the Court of Appeals in CA-G.R. CV No.
09218 entitled Francisco Salinas, et al. vs. Jose Modequillo, et al., the dispositive part of
which read as follows:

WHEREFORE, the decision under appeal should be, as it is hereby, reversed and set aside. Judgment is
hereby rendered finding the defendants-appellees Jose Modequillo and Benito Malubay jointly and
severally liable to plaintiffs-appellants as hereinbelow set forth. Accordingly, defendants-appellees are
ordered to pay jointly and severally to:
1. 1.Plaintiffs-appellants, the Salinas spouses:
1. a.the amount of P30,000.00 by way of compensation for the death of their son Audie Salinas;
2. b.P10,000.00 for the loss of earnings by reason of the death of said Audie Salinas;
3. c.the sum of P5,000.00 as burial expenses of Audie Salinas; and
4. d.the sum of P5,000.00 by way of moral damages.
1. 2.Plaintiffs-appellants Culan-Culan:
1. a.the sum of P5,000.00 for hospitalization expenses of Renato Culan-Culan; and
2. b.P5,000.00 for moral damages.
1. 3.Both plaintiffs-appellants Salinas and Culan-Culan, P7,000.00 for attorneys fees and litigation
expenses.
All counterclaims and other claims are hereby dismissed.

The said judgment having become final and executory, a writ of execution was issued by the
Regional Trial Court of Davao City to satisfy the said judgment on the goods and chattels of the
defendants Jose Modequillo and Benito Malubay at Malalag, Davao del Sur.
On July 7, 1988, the sheriff levied on a parcel of residential land located at Poblacion Malalag,
Davao del Sur containing an area of 600 square meters with a market value of P34,550.00 and
assessed value of P7,570.00 per Tax Declaration No. 87-008-01359, registered in the name of
Jose Modequillo in the office of the Provincial Assessor of Davao del Sur; and a parcel of
agricultural land located at Dalagbong, Bulacan, Malalag, Davao del Sur containing an area of 3
hectares with a market value of P24,130.00 and assessed value of P9,650.00 per Tax Declaration
No. 87-08-01848 registered in the name of Jose Modequillo in the office of the Provincial
Assessor of Davao del Sur.

A motion to quash and/or to set aside levy of execution was filed by defendant
Jose Modequillo alleging therein that the residential land located at Poblacion Malalag is
where the family home is built since 1969 prior to the commencement of this case and as such is
exempt from execution, forced sale or attachment under Articles 152 and 153 of the Family Code
except for liabilities mentioned in Article 155 thereof; and that the judgment debt sought to be

enforced against the family home of defendant is not one of those enumerated under Article 155
of the Family Code. As to the agricultural land although it is declared in the name of defendant it
is alleged to be still part of the public land and the transfer in his favor by the original possessor
and applicant who was a member of a cultural minority was not approved by the proper
government agency. An opposition thereto was filed by the plaintiffs.
In an order dated August 26, 1988, the trial court denied the motion. A motion for
reconsideration thereof was filed by defendant and this was denied for lack of merit on
September 2, 1988.
Hence, the herein petition for review on certiorari wherein it is alleged that the trial court
erred and acted in excess of its concurred in by Justices Antonio M. Martinez and Cecilio L. Pe.
jurisdiction in denying petitioners motion to quash and/or to set aside levy on the properties and
in denying petitioners motion for reconsideration of the order dated August 26, 1988. Petitioner
contends that only a question of law is involved in this petition. He asserts that the residential
house and lot was first occupied as his family residence in 1969 and was duly constituted as a
family home under the Family Code which took effect on August 4, 1988. Thus, petitioner argues
that the said residential house and lot is exempt from payment of the obligation enumerated in
Article 155 of the Family Code; and that the decision in this case pertaining to damages arising
from a vehicular accident took place on March 16, 1976 and which became final in 1988 is not one
of those instances enumerated under Article 155 of the Family Code when the family home may
be levied upon and sold on execution. It is further alleged that the trial court erred in holding
that the said house and lot became a family home only on August 4, 1988 when the Family Code
became effective, and that the Family Code cannot be interpreted in such a way that all family
residences are deemed to have been constituted as family homes at the time of their occupancy
prior to the effectivity of the said Code and that they are exempt from execution for the payment
of obligations incurred before the effectivity of said Code; and that it also erred when it declared
that Article 162 of the Family Code does not state that the provisions of Chapter 2, Title V have a
retroactive effect.
Articles 152 and 153 of the Family Code provide as follows:
Art. 152. The family home, constituted jointly by the husband and the wife or by an unmarried head of a
family, is the dwelling house where they and their family reside, and the land on which it is situated.
Art. 153. The family home is deemed constituted on a house and lot from the time it is occupied as a
family residence. From the time of its constitution and so long as any of its beneficiaries actually resides
therein, the family home continues to be such and is exempt from execution, forced sale or attachment
except as hereinafter provided and to the extent of the value allowed by law.

Under the Family Code, a family home is deemed constituted on a house and lot from the time it
is occupied as a family residence. There is no need to constitute the same judicially or
extrajudicially as required in the Civil Code. If the family actually resides in the premises, it is,
therefore, a family home as contemplated by law. Thus, the creditors should take the necessary
precautions to protect their interest before extending credit to the spouses or head of the family
who owns the home.
Article 155 of the Family Code also provides as follows:
Art. 155. The family home shall be exempt from execution, forced sale or attachment except:
1. (1)For nonpayment of taxes;
2. (2)For debts incurred prior to the constitution of the family home;
3. (3)For debts secured by mortgages on the premises before or after such constitution; and
4. (4)For debts due to laborers, mechanics, architects, builders, materialmen and others who have
rendered service or furnished material for the construction of the building.

The exemption provided as aforestated is effective from the time of the constitution of the family
home as such, and lasts so long as any of its beneficiaries actually resides therein.
In the present case, the residential house and lot of petitioner was not constituted as a family
home whether judicially or extrajudicially under the Civil Code. It became a family home by
operation of law only under Article 153 of the Family Code. It is deemed constituted as a family
home upon the effectivity of the Family Code on August 3, 1988 not August 4, one year after its
publication in the Manila Chronicle on August 4, 1987 (1988 being a leap year).
The contention of petitioner that it should be considered a family home from the time it was
occupied by petitioner and his family in 1969 is not well-taken. Under Article 162 of the Family
Code, it is provided that the provisions of this Chapter shall also govern existing family
residences insofar as said provisions are applicable. It does not mean that Articles 152 and 153
of said Code have a retroactive effect such that all existing family residences are deemed to have
been constituted as family homes at the time of their occupation prior to the effectivity of the
Family Code and are exempt from execution for the payment of obligations incurred before the
effectivity of the Family Code. Article 162 simply means that all existing family residences at the
time of the effectivity of the Family Code, are considered family homes and are prospectively
entitled to the benefits accorded to a family home under the Family Code. Article 162 does not
state that the provisions of Chapter 2, Title V have a retroactive effect.
Is the family home of petitioner exempt from execution of the money judgment aforecited? No.
The debt or liability which was the basis of the judgment arose or was incurred at the time of the

vehicular accident on March 16, 1976 and the money judgment arising therefrom was rendered
by the appellate court on January 29, 1988. Both preceded the effectivity of the Family Code on
August 3, 1988. This case does not fall under the exemptions from execution provided in the
Family Code.
As to the agricultural land subject of the execution, the trial court correctly ruled that the levy
to be made by the sheriff shall be on whatever rights the petitioner may have on the land.
WHEREFORE, the petition is DISMISSED for lack of merit. No pronouncement as to costs.
SO ORDERED.
Narvasa (Chairman), Cruz and Medialdea, JJ.,concur.
Grio-Aquino, J., On leave.
Petition dismissed.

G.R. No. 97898. August 11, 1997.

FLORANTE F. MANACOP, petitioner, vs. COURT OF APPEALS and E & L MERCANTILE,

INC., respondents.
PANGANIBAN, J.:
May a writ of execution of a final and executory judgment issued before the effectivity of the
Family Code be executed on a house and lot constituted as a family home under the provision of
said Code?
Statement of the Case
This is the principal question posed by petitioner in assailing the Decision of Respondent Court
of Appeals inCA-G.R. SP No. 18906 promulgated on February 21, 1990 and its Resolution
promulgated on March 21, 1991, affirming the orders issued by the trial court commanding the
issuance of various writs of execution to enforce the latters decision in Civil Case No. 53271.
1

The Facts
Petitioner Florante F. Manacop and his wife Eulaceli purchased on March 10, 1972 a 446-squaremeter residential lot with a bungalow, in consideration of P75,000.00. The property, located in
2

Commonwealth Village, Commonwealth Avenue, Quezon City, is covered by Transfer Certificate

of Title No. 174180.
On March 17, 1986, Private Respondent E & L Mercantile, Inc. filed a complaint against
petitioner and F.F. Manacop Construction Co., Inc. before the Regional Trial Court of Pasig,
Metro Manila to collect an indebtedness of P3,359,218.45. Instead of filing an answer, petitioner
and his company entered into a compromise agreement with private respondent, the salient
portion of which provides:
c. That defendants will undertake to pay the amount of P2,000,000.00 as and when their means permit,
but expeditiously as possible as their collectibles will be collected. (sic)

On April 20, 1986, the trial court rendered judgment approving the aforementioned compromise
agreement. It enjoined the parties to comply with the agreement in good faith. On July 15, 1986,
private respondent filed a motion for execution which the lower court granted on September 23,
1986. However, execution of the judgment was delayed. Eventually, the sheriff levied on several
vehicles and other personal properties of petitioner. In partial satisfaction of the judgment debt,
these chattels were sold at public auction for which certificates of sale were correspondingly
issued by the sheriff.
On August 1, 1989, petitioner and his company filed a motion to quash the alias writs of
execution and to stop the sheriff from continuing to enforce them on the ground that the
judgment was not yet executory. They alleged that the compromise agreement had not yet
matured as there was no showing that they had the means to pay the indebtedness or that their
receivables had in fact been collected. They buttressed their motion with supplements and other
pleadings.
On August 11, 1989, private respondent opposed the motion on the following grounds: (a) it
was too late to question the September 23, 1986 Order considering that more than two years had
elapsed; (b) the second alias writ of execution had been partially implemented; and (c) petitioner
and his company were in bad faith in refusing to pay their indebtedness notwithstanding that
from February 1984 to January 5, 1989, they had collected the total amount of P41,664,895.56.
On September 21, 1989, private respondent filed an opposition to petitioner and his companys
addendum to the motion to quash the writ of execution. It alleged that the property covered by
TCT No. 174180 could not be considered a family home on the grounds that petitioner was
already living abroad and that the property, having been acquired in 1972, should have
been judicially constituted as a family home to exempt it from execution.
On September 26, 1989, the lower court denied the motion to quash the writ of execution and
the prayers in the subsequent pleadings filed by petitioner and his company. Finding that
petitioner and his company had not paid their indebtedness even though they collected
receivables amounting to P57,224,319.75, the lower court held that the case had become final and

executory. It also ruled that petitioners residence was not exempt from execution as it was not
duly constituted as a family home, pursuant to the Civil Code.
Hence, petitioner and his company filed with the Court of Appeals a petition for certiorari
assailing the lower courts Orders of September 23, 1986 and September 26, 1989. On February
21, 1990, Respondent Court of Appeals rendered its now questioned Decision dismissing the
petition for certiorari. The appellate court quoted with approval the findings of the lower court
that: (a) the judgment based on the compromise agreement had become final and executory,
stressing that petitioner and his company had collected the total amount of P57,224,319.75 but
still failed to pay their indebtedness and (b) there was no showing that petitioners residence had
been duly constituted as a family home to exempt it from execution. On the second finding, the
Court of Appeals added that:
x x x. We agree with the respondent judge that there is no showing in evidence that petitioner Maacops
residence under TCT 174180 has been duly constituted as a family home in accordance with law. For one
thing, it is the clear implication of Article 153 that the family home continues to be so deemed constituted
so long as any of its beneficiaries enumerated in Article 154 actually resides therein. Conversely, it ceases
to continue as such family home if none of its beneficiaries actually occupies it. There is no showing in
evidence that any of its beneficiaries is actually residing therein. On the other hand, the unrefuted
assertion of private respondent is that petitioner Florante Maacop had already left the country and is
now, together with all the members of his family, living in West Covina, Los Angeles, California, U.S.A.

Petitioner and his company filed a motion for reconsideration of this Decision on the ground that
the property covered by TCT No. 174180 was exempt from execution. On March 21, 1991, the
Court of Appeals rendered the challenged Resolution denying the motion. It anchored its ruling
on Modequillo v. Breva, which held that all existing family residences at the time of the
effectivity of the Family Code are considered family homes and are prospectively entitled to the
benefits accorded to a family home under the Family Code.
4

Applying the foregoing pronouncements to this case, the Court of Appeals explained:
The record of the present case shows that petitioners incurred the debt of P3,468,000.00 from private
respondent corporation on February 18, 1982 (Annex A, Petition). The judgment based upon the
compromise agreement was rendered by the court on April 18, 1986 (Annex C, ibid.). Paraphrasing the
aforecited Modequillo case, both the debt and the judgment preceded the effectivity of the Family Code on
August 3, 1988. Verily, the case at bar does not fall under the exemptions from execution provided under
Article 155 of the Family Code.

Undeterred, petitioner filed the instant petition for review on certiorari arguing that the Court of
Appeals misappliedModequillo. He contends that there was no need for him to constitute his
house and lot as a family home for it to be treated as such since he was and still is a resident of
the same property from the time it was levied upon and up to this moment.

The Issue
As stated in the opening sentence of this Decision, the issue in this case boils down to whether a
final and executory decision promulgated and a writ of execution issued before the effectivity of
the Family Code can be executed on a family home constituted under the provisions of the said
Code.
The Courts Ruling
We answer the question in the affirmative. The Court of Appeals committed no reversible error.
On the contrary, its Decision and Resolution are supported by law and applicable jurisprudence.
At the outset, the Court notes that the issue submitted for resolution in the instant case is not
entirely new. InManacop v. Court of Appeals, petitioner himself as a party therein raised a
similar question of whether this very same property was exempt from preliminary attachment for
the same excuse that it was his family home. In said case, F.F. Cruz & Co., Inc. filed a complaint
for a sum of money. As an incident in the proceedings before it, the trial court issued a writ of
attachment on the said house and lot. In upholding the trial court (and the Court of Appeals) in
that case, we ruled that petitioner incurred the indebtedness in 1987 or prior to the effectivity of
the Family Code on August 3, 1988. Hence, petitioners family home was not exempt from
attachment by sheer force of exclusion embodied in paragraph 2, Article 155 of the Family Code
cited inModequillo, where the Court categorically ruled:
5

Under the Family Code, a family home is deemed constituted on a house and lot from the time it is
occupied as a family residence. There is no need to constitute the same judicially or extrajudicially as
required in the Civil Code. If the family actually resides in the premises, it is, therefore, a family home as
contemplated by law. Thus, the creditors should take the necessary precautions to protect their interest
before extending credit to the spouses or head of the family who owns the home.
Article 155 of the Family Code also provides as follows:
Art. 155. The family home shall be exempt from execution, forced sale or attachment except:
1. (1)For nonpayment of taxes;
2. (2)For debts incurred prior to the constitution of the family home;
3. (3)For debts secured by mortgages on the premises before or after such constitution; and,
materialmen and others who have rendered service or furnished material for the construction of
the building.
The exemption provided as aforestated is effective from the time of the constitution of the family home as
such, and lasts so long as any of its beneficiaries actually resides therein.

In the present case, the residential house and lot of petitioner was not constituted as a family home
whether judicially or extrajudicially under the Civil Code. It became a family home by operation of law
only under Article 153 of the Family Code. It is deemed constituted as a family home upon the effectivity
of the Family Code on August 3, 1988 not August 4, one year after its publication in the Manila Chronicle
on August 4, 1987 (1988 being a leap year).
The contention of petitioner that it should be considered a family home from the time it was occupied
by petitioner and his family in 1960 is not well-taken. Under Article 162 of the Family Code, it is provided
that the provisions of this Chapter shall also govern existing family residences insofar as said provisions
are applicable. It does not mean that Articles 152 and 153 of said Code have a retroactive effect such that
all existing family residences are deemed to have been constituted as family homes at the time of their
occupation prior to the effectivity of the Family Code and are exempt from execution for the payment of
obligations incurred before the effectivity of the Family Code. Article 162 simply means that all existing
family residences at the time of the effectivity of the Family Code, are considered family homes and are
prospectively entitled to the benefits accorded to a family home under the Family Code. Article 162 does not
state that the provisions of Chapter 2, Title V have a retroactive effect.
Is the family home of petitioner exempt from execution of the money judgment aforecited? No. The debt
or liability which was the basis of the judgment arose or was incurred at the time of the vehicular
accident on March 16, 1976 and the money judgment arising therefrom was rendered by the appellate
court on January 29, 1988. Both preceded the effectivity of the Family Code on August 3, 1988. This case
does not fall under the exemptions from execution provided in the Family Code. (Italics supplied.)
6

Article 153 of the Family Code

Has No Retroactive Effect
Petitioner contends that the trial court erred in holding that his residence was not exempt from
execution in view of his failure to show that the property involved has been duly constituted as a
family home in accordance with law. He asserts that the Family Code and Modequillo require
simply the occupancy of the property by the petitioner, without need for its judicial or
extrajudicial constitution as a family home.
7

Petitioner is only partly correct. True, under the Family Code which took effect on August 3,
1988, the subject property became his family home under the simplified process embodied in
Article 153 of said Code. However,Modequillo explicitly ruled that said provision of the Family
Code does not have retroactive effect. In other words, prior to August 3, 1988, the procedure
mandated by the Civil Code had to be followed for a family home to be constituted as such. There
being absolutely no proof that the subject property was judicially or extrajudicially constituted as
a family home, it follows that the laws protective mantle cannot be availed of by petitioner. Since
the debt involved herein was incurred and the assailed orders of the trial court issued prior to
August 3, 1988, the petitioner cannot be shielded by the benevolent provisions of the Family
Code.
8

List of Beneficiary-Occupants Restricted

to Those Enumerated in the Code
In view of the foregoing discussion, there is no reason to address the other arguments of
petitioner other than to correct his misconception of the law. Petitioner contends that he should
be deemed residing in the family home because his stay in the United States is merely
temporary. He asserts that the person staying in the house is his overseer and that whenever his
wife visited this country, she stayed in the family home. This contention lacks merit.
The law explicitly provides that occupancy of the family home either by the owner thereof or
by any of its beneficiaries must be actual. That which is actual is something real, or actually
existing, as opposed to something merely possible, or to something which is presumptive or
constructive. Actual occupancy, however, need not be by the owner of the house specifically.
Rather, the property may be occupied by the beneficiaries enumerated by Article 154 of the
Family Code.
10

Art. 154. The beneficiaries of a family home are:

1. (1)The husband and wife, or an unmarried person who is the head of the family; and
2. (2)Their parents, ascendants, descendants, brothers and sisters, whether the relationship be
legitimate or illegitimate, who are living in the family home and who depend upon the head of the
family for lead support.

This enumeration may include the in-laws where the family home is constituted jointly by the
husband and wife. But the law definitely excludes maids and overseers. They are not the
beneficiaries contemplated by the Code. Consequently, occupancy of a family home by an overseer
like Carmencita V. Abat in this case is insufficient compliance with the law.
11

12

WHEREFORE, the petition is hereby DENIED for utter lack of merit. This Decision is
immediately executory. Double costs against petitioner.
Narvasa (C.J., Chairman), Davide, Jr., Melo andFran-cisco, JJ., concur.
Petition denied.
Notes.A marriage though void still needs a judicial declaration of such fact under the
Family Code even for purposes other than remarriage. (Domingo vs. Court of Appeals, 226 SCRA
572 [1993])
The common law concept of matrimonial domicile appears to have been incorporated, as a
result of our jurisprudential experiences after the drafting of the Civil Code of 1950, into the New
Family Code. (Romualdez-Marcos vs. Commission on Elections, 248 SCRA 300 [1995])

o0o
G.R. No. 177703. January 28, 2008.

VILMA G. ARRIOLA and ANTHONY RONALD G. ARRIOLA, petitioners, vs. JOHN NABOR
C. ARRIOLA, respondent.

Before this Court is a Petition for Review on Certiorariunder Rule 45 of the Rules of Court,
assailing the November 30, 2006 Decision and April 30, 2007 Resolution of the Court of Appeals
in CA-G.R. SP No. 93570.
1

The relevant facts are culled from the records.

John Nabor C. Arriola (respondent) filed Special Civil Action No. 03-0010 with the Regional
Trial Court, Branch 254, Las Pias City (RTC) against Vilma G. Arriola and Anthony Ronald G.
Arriola (petitioners) for judicial partition of the properties of decedent Fidel Arriola (the decedent
Fidel). Respondent is the son of decedent Fidel with his first wife Victoria C. Calabia, while
petitioner Anthony is the son of decedent Fidel with his second wife, petitioner Vilma.
On February 16, 2004, the RTC rendered a Decision, the dispositive portion of which reads:
WHEREFORE, premises considered, judgment is hereby rendered:
1. 1.Ordering the partition of the parcel of land covered by Transfer Certificate of Title No. 383714
(84191) left by the decedent Fidel S. Arriola by and among his heirs John Nabor C. Arriola, Vilma
G. Arriola and Anthony Ronald G. Arriola in equal shares of one-third (1/3) each without
prejudice to the rights of creditors or mortgagees thereon, if any;
2. 2.Attorneys fees in the amount of TEN THOUSAND (P10,000.00) PESOS is hereby awarded to be
reimbursed by the defendants to the plaintiff;
3. 3.Costs against the defendants.
SO ORDERED.

The decision became final on March 15, 2004.

As the parties failed to agree on how to partition among them the land covered by TCT No.
383714 (subject land), respondent sought its sale through public auction, and petitioners acceded
to it. Accordingly, the RTC ordered the public auction of the subject land. The public auction sale
was scheduled on May 31, 2003 but it had to be reset when petitioners refused to include in the
auction the house (subject house) standing on the subject land. This prompted respondent to file
5

with the RTC an Urgent Manifestation and Motion for Contempt of Court, praying that
petitioners be declared in contempt.
8

The RTC denied the motion in an Order dated August 30, 2005, for the reason that petitioners
were justified in refusing to have the subject house included in the auction, thus:
9

The defendants [petitioners] are correct in holding that the house or improvement erected on the
property should not be included in the auction sale.
A cursory reading of the aforementioned Decision and of the evidence adduced during the exparte hearing clearly show that nothing was mentioned about the house existing on the land subject
matter of the case. In fact, even plaintiffs [respondents] initiatory Complaint likewise did not mention
anything about the house. Undoubtedly therefore, the Court did not include the house in its adjudication
of the subject land because it was plaintiff himself who failed to allege the same. It is a well-settled rule
that the court can not give a relief to that which is not alleged and prayed for in the complaint.
To hold, as plaintiff argued, that the house is considered accessory to the land on which it is built is in
effect to add to plaintiffs [a] right which has never been considered or passed upon during the trial on the
merits.
In the absence of any other declaration, obvious or otherwise, only the land should be partitioned in
accordance to [sic] the aforementioned Decision as the house can not be said to have been necessarily
adjudicated therein. Thus, plaintiff can not be declared as a co-owner of the same house without evidence
thereof and due hearing thereon.
The Decision of the Court having attained its finality, as correctly pointed out, judgment must stand
even at the risk that it might be erroneous.
WHEREFORE, the Urgent Manifestation and Motion for Contempt of Court filed by plaintiff is hereby
DENIED for lack of merit.
SO ORDERED.

10

The RTC, in its Order dated January 3, 2006, denied respondents Motion for Reconsideration.

11

Respondent filed with the CA a Petition for Certiorari where he sought to have the RTC Orders
set aside, and prayed that he be allowed to proceed with the auction of the subject land including
the subject house.
12

In its November 30, 2006 Decision, the CA granted the Petition for Certiorari, to wit:
WHEREFORE, the petition is GRANTED. The assailed orders dated August 30, 2005 and January 3,
2006 issued by the RTC, in Civil Case No. SCA 03-0010, are REVERSED and SET ASIDE, andthe
sheriff is ordered to proceed with the public auction saleof the subject lot covered by TCT No.
383714, including thehouse constructed thereon.

SO ORDERED. (Emphasis supplied.)

13

Petitioners filed a motion for reconsideration but the CA denied the same in its Resolution of
April 30, 2007.
14

Hence, the present petition on the sole ground that the CA erred in holding that the RTC
committed grave abuse of discretion in denying the motion for contempt of court.
The assailed CA Decision and Resolution must be modified for reasons other than those
advanced by petitioners.
The contempt proceeding initiated by respondent was one for indirect contempt. Section 4,
Rule 71 of the Rules of Court prescribes the procedure for the institution of proceedings for
indirect contempt, viz.:
Sec. 4. How proceedings commenced.Proceedings for indirect contempt may be initiated motu
proprio by the court against which the contempt was committed by an order or any other formal charge
requiring the respondent to show cause why he should not be punished for contempt.
In all other cases, charges for indirect contempt shall becommenced by a verified petition with
supporting particularsand certified true copies of documents or papers involvedtherein, and

upon full compliance with the requirements forfiling initiatory pleadings for civil actions in
the court concerned. If the contempt charges arose out of or are related to a principal action pending in
the court, the petition for contempt shall allege that fact but said petition shall be docketed, heard and
decided separately, unless the court in its discretion orders the consolidation of the contempt charge and
the principal action for joint hearing and decision. (Emphases supplied.)

Under the aforecited second paragraph of the Rules, the requirements for initiating an indirect
contempt proceeding are a) that it be initiated by way of a verified petition and b) that it should
fully comply with the requirements for filing initiatory pleadings for civil actions. In Regalado v.
Go, we held:
15

As explained by Justice Florenz Regalado, the filing of a verified petition that has complied with
the requirements for the filing of initiatory pleading, is mandatory x x x:

This new provision clarifies with a regularity norm the proper procedure for commencing contempt proceedings.
While such proceeding has been classified as special civil action under the former Rules, the heterogenous practice
tolerated by the courts, has been for any party to file a motion without paying any docket or lawful fees therefore and
without complying with the requirements for initiatory pleadings, which is now required in the second paragraph of
this amended section.
xxxx

Henceforth, except for indirect contempt proceedings initiated motu proprio by order of or a formal charge by the
offended court, all charges shall be commenced by a verified petition with full compliance with the requirements
therefore and shall be disposed in accordance with the second paragraph of this section.
xxxx
Even if the contempt proceedings stemmed from the main case over which the court already acquired

jurisdiction, the rules direct that the petition for contempt be treated independently of the principal
action. Consequently, the necessary prerequisites for the filing of initiatory pleadings, such as the filing
of a verified petition, attachment of a certification on non-forum shopping, and the payment of the
necessary docket fees, must be faithfully observed.

xxxx
The provisions of the Rules are worded in very clear and categorical language. In case where the
indirect contempt charge is not initiated by the courts, the filing of a verified petition which fulfills the
requirements on initiatory pleadings is a prerequisite. Beyond question now is the mandatory
requirement of a verified petition in initiating an indirect contempt proceeding. Truly, prior to the
amendment of the 1997 Rules of Civil Procedure, mere motion without complying with the requirements
for initiatory pleadings was tolerated by the courts. At the onset of the 1997 Revised Rules of Civil
Procedure, however, such practice can no longer be countenanced. (Emphasis ours.)
16

The RTC erred in taking jurisdiction over the indirect contempt proceeding initiated by
respondent. The latter did not comply with any of the mandatory requirements of Section 4, Rule
71. He filed a mere Urgent Manifestation and Motion for Contempt of Court, and not a verified
petition. He likewise did not conform with the requirements for the filing of initiatory pleadings
such as the submission of a certification against forum shopping and the payment of docket fees.
Thus, his unverified motion should have been dismissed outright by the RTC.
It is noted though that, while at first the RTC overlooked the infirmities in respondents
unverified motion for contempt, in the end, it dismissed the motion, albeit on substantive
grounds. The trouble is that, in the CA decision assailed herein, the appellate court committed
the same oversight by delving into the merits of respondents unverified motion and granting the
relief sought therein. Thus, strictly speaking, the proper disposition of the present petition ought
to be the reversal of the CA decision and the dismissal of respondents unverified motion for
contempt filed in the RTC for being in contravention of Section 4, Rule 71.
However, such simplistic disposition will not put an end to the dispute between the parties. A
seed of litigation has already been sown that will likely sprout into another case between them at
a later time. We refer to the question of whether the subject house should be included in the
public auction of the subject land. Until this question is finally resolved, there will be no end to
litigation between the parties. We must therefore deal with it squarely, here and now.

The RTC and the CA differed in their views on whether the public auction should include the
subject house. The RTC excluded the subject house because respondent never alleged its
existence in his complaint for partition or established his co-ownership thereof. On the other
hand, citing Articles 440, 445 and 446 of the Civil Code, the CA held that as the deceased owned
the subject land, he also owned the subject house which is a mere accessory to the land. Both
properties form part of the estate of the deceased and are held in coownership by his heirs, the
parties herein. Hence, the CA concludes that any decision in the action for partition of said estate
should cover not just the subject land but also the subject house. The CA further pointed out
that petitioners themselves implicitly recognized the inclusion of the subject house in the
partition of the subject land when they proposed in their letter of August 5, 2004, the following
swappingarrangement:
17

18

19

20

21

Sir:
Thank you very much for accommodating us even if we are only poor and simple people. We are very much
pleased with the decision of Presiding Judge Manuel B. Fernandez, Jr., RTC Br. 254, Las Pias, on the
sharing of one-third (1/3) each of a land covered by Transfer Certificate of Title No. 383714 (84191) in Las
Pias City.
However, to preserve the sanctity of our house which is our residence for more than twenty (20) years,
we wish to request that the 1/3 share of John Nabor C. Arriola be paid by the defendants depending on
the choice of the plaintiff between item (1) or item (2), detailed as follows:
(1) Swap with a 500-square meters [sic] lot located at Baras Rizal x x x.
(2) Cash of P205,700.00 x x x.
x x x x.

22

We agree that the subject house is covered by the judgment of partition for reasons postulated by
the CA. We qualify, however, that this ruling does not necessarily countenance the immediate
and actual partition of the subject house by way of public auction in view of the suspensive
proscription imposed under Article 159 of The Family Code which will be discussed forthwith.
It is true that the existence of the subject house was not specifically alleged in the complaint for
partition. Such omission notwithstanding, the subject house is deemed part of the judgment of
partition for two compelling reasons.
First, as correctly held by the CA, under the provisions of the Civil Code, the subject house is
deemed part of the subject land. The Court quotes with approval the ruling of the CA, to wit:
The RTC, in the assailed Order dated August 30, 2005 ratiocinated that since the house constructed on
the subject lot was not alleged in the complaint and its ownership was not passed upon during the trial on

the merits, the court cannot include the house in its adjudication of the subject lot. The court further
stated that it cannot give a relief to [sic] which is not alleged and prayed for in the complaint.
We are not persuaded.
To follow the foregoing reasoning of the RTC will in effect render meaningless the pertinent rule on
accession. In general, the right to accession is automatic (ipso jure), requiring no prior act on the
part of the owner or the principal. So that even if the improvements including the house were
not alleged in the complaint for partition, they are deemed included in the lot on which they
stand, following the principle of accession. Consequently, the lot subject of judicial partition
in this case includes the house which is permanently attached thereto, otherwise, it would be
absurd to divide the principal, i.e., the lot, without dividing the house which is permanently
attached thereto. (Emphasis supplied)
23

Second, respondent has repeatedly claimed that the subject house was built by the
deceased. Petitioners never controverted such claim. There is then no dispute that the subject
house is part of the estate of the deceased; as such, it is owned in common by the latters heirs,
the parties herein, any one of whom, under Article 494 of the Civil Code, may, at any time,
demand the partition of the subject house. Therefore, respondents recourse to the partition of
the subject house cannot be hindered, least of all by the mere technical omission of said common
property from the complaint for partition.
24

25

26

27

That said notwithstanding, we must emphasize that, while we treat the subject house
as part of the coownership of the parties, we stop short of authorizing its actual
partition by public auction at this time. It bears emphasis that an action for partition
involves two phases: first, the declaration of the existence of a state of coownership; and second,
the actual termination of that state of co-ownership through the segregation of the common
property. What is settled thus far is only the fact that the subject house is under the coownership of the parties, and therefore susceptible of partition among them.
28

Whether the subject house should be sold at public auction as ordered by the RTC is an
entirely different matter, depending on the exact nature of the subject house.
Respondent claims that the subject house was built by decedent Fidel on his exclusive
property. Petitioners add that said house has been their residence for 20 years. Taken together,
these averments on record establish that the subject house is a family home within the
contemplation of the provisions of The Family Code, particularly:
29

30

Article 152. The family home, constituted jointly by the husband and the wife or by an unmarried head of
a family, is the dwelling house where they and their family reside, and the land on which it is situated.
Article 153. The family home is deemed constituted on a house and lot from the time it is

occupied as a family residence. From the time of its constitution and so long as any of its beneficiaries

actually resides therein, the family home continues to be such and is exempt from execution, forced sale or
attachment except as hereinafter provided and to the extent of the value allowed by law. (Emphasis
supplied.)

One significant innovation introduced by The Family Code is the automatic constitution of the
family home from the time of its occupation as a family residence, without need anymore for the
judicial or extrajudicial processes provided under the defunct Articles 224 to 251 of the Civil
Code and Rule 106 of the Rules of Court. Furthermore, Articles 152 and 153 specifically extend
the scope of the family home not just to the dwelling structure in which the family resides but
also to the lot on which it stands. Thus, applying these concepts, the subject house as well as the
specific portion of the subject land on which it stands are deemed constituted as a family home by
the deceased and petitioner Vilma from the moment they began occupying the same as a family
residence 20 years back.
31

It being settled that the subject house (and the subject lot on which it stands) is the family
home of the deceased and his heirs, the same is shielded from immediate partition under Article
159 of The Family Code, viz.:
Article 159. The family home shall continue despite the death of one or both spouses or of the unmarried
head of the family for a period of ten years or for as long as there is a minor beneficiary, and the heirs
cannot partition the same unless the courtfinds compelling reasons therefor. This rule shall

apply regardless of whoever owns the property or constituted the family home. (Emphasis
supplied.)

The purpose of Article 159 is to avert the disintegration of the family unit following the death of
its head. To this end, it preserves the family home as the physical symbol of family love, security
and unity by imposing the following restrictions on its partition: first, that the heirs cannot
extrajudicially partition it for a period of 10 years from the death of one or both spouses or of the
unmarried head of the family, or for a longer period, if there is still a minor beneficiary residing
therein; and second, that the heirs cannot judicially partition it during the aforesaid periods
unless the court finds compelling reasons therefor. No compelling reason has been alleged by the
parties; nor has the RTC found any compelling reason to order the partition of the family home,
either by physical segregation or assignment to any of the heirs or through auction sale as
suggested by the parties.
More importantly, Article 159 imposes the proscription against the immediate partition of the
family home regardless of its ownership. This signifies that even if the family home has passed by
succession to the co-ownership of the heirs, or has been willed to any one of them, this fact alone
cannot transform the family home into an ordinary property, much less dispel the protection cast
upon it by the law. The rights of the individual co-owner or owner of the family home cannot
subjugate the rights granted under Article 159 to the beneficiaries of the family home.

Set against the foregoing rules, the family homeconsisting of the subject house and lot on
which it standscannot be partitioned at this time, even if it has passed to the co-ownership of
his heirs, the parties herein. Decedent Fidel died on March 10, 2003. Thus, for 10 years from
said date or until March 10, 2013, or for a longer period, if there is still a minor beneficiary
residing therein, the family home he constituted cannot be partitioned, much less when no
compelling reason exists for the court to otherwise set aside the restriction and order the
partition of the property.
32

The Court ruled in Honrado v. Court of Appeals that a claim for exception from execution or
forced sale under Article 153 should be set up and proved to the Sheriff before the sale of the
property at public auction. Herein petitioners timely objected to the inclusion of the subject
house although for a different reason.
33

To recapitulate, the evidence of record sustain the CA ruling that the subject house is part of
the judgment of coownership and partition. The same evidence also establishes that the subject
house and the portion of the subject land on which it is standing have been constituted as the
family home of decedent Fidel and his heirs. Consequently, its actual and immediate partition
cannot be sanctioned until the lapse of a period of 10 years from the death of Fidel Arriola, or
until March 10, 2013.
It bears emphasis, however, that in the meantime, there is no obstacle to the immediate public
auction of the portion of the subject land covered by TCT No. 383714, which fallsoutside the
specific area of the family home.
WHEREFORE, the petition is PARTLY GRANTED and the November 30, 2006 Decision and
April 30, 2007 Resolution of the Court of Appeals are MODIFIED in that the house standing on
the land covered by Transfer Certificate of Title No. 383714 is DECLARED part of the coownership of the parties John Nabor C. Arriola, Vilma G. Arriola and Anthony Ronald G. Arriola
but EXEMPTED from partition by public auction within the period provided for in Article 159 of
the Family Code.
No costs.
SO ORDERED.
Ynares-Santiago (Chairperson), Corona, Nachuraand Reyes, JJ., concur.
**

Petition partly granted, judgment and resolution modified.

Note.Respondents are liable for indirect contempt when they openly disobeyed the Courts
decision. (Province of Camarines Norte vs. Province of Quezon, 367 SCRA 91[2001])

G.R. No. 124814. October 21, 2004.

CAMELO CABATANIA, petitioner, vs. COURT OF APPEALS and CAMELO REGODOS,

respondents.

Before us is a petition for review on certiorari under Rule 45 of the Rules of Court assailing the
March 15, 1996 decision of the Court of Appeals in CA-G.R. 36708 which in turn affirmed the
decision of the Regional Trial Court of Cadiz City, Branch 60 in Spec. Proc. No. 88-C which
compelled petitioner Camelo Cabatania to acknowledge private respondent Camelo Regodos as
his illegitimate son and to give support to the latter in the amount of P500 per month.
1

This controversy stemmed from a petition for recognition and support filed by Florencia Regodos
in behalf of her minor son, private respondent Camelo Regodos.
During the trial, Florencia testified that she was the mother of private respondent who was
born on September 9, 1982 and that she was the one supporting the child. She recounted that
after her husband left her in the early part of 1981, she went to Escalante, Negros Occidental to
look for work and was eventually hired as petitioners household help. It was while working there
as a maid that, on January 2, 1982, petitioner brought her to Bacolod City where they checked in
at the Visayan Motel and had sexual intercourse. Petitioner promised to support her if she got
pregnant.
Florencia claimed she discovered she was carrying petitioners child 27 days after their sexual
encounter. The sexual intercourse was repeated in March 1982 in San Carlos City. Later, on
suspicion that Florencia was pregnant, petitioners wife sent her home. But petitioner instead
brought her to Singcang, Bacolod City where he rented a house for her. On September 9, 1982,
assisted by ahilot in her aunts house in Tiglawigan, Cadiz City, she gave birth to her child,
private respondent Camelo Regodos.
Petitioner Camelo Cabatanias version was different. He testified that he was a sugar planter
and a businessman. Sometime in December, 1981, he hired Florencia as a servant at home.
During the course of her employment, she would often go home to her husband in the afternoon
and return to work the following morning. This displeased petitioners wife, hence she was told to
look for another job.
In the meantime, Florencia asked permission from petitioner to go home and spend New
Years Eve in Cadiz City. Petitioner met her on board the Ceres bus bound for San Carlos City

and invited her to dinner. While they were eating, she confided that she was hard up and
petitioner offered to lend her save money. Later, they spent the night in San Carlos City and had
sexual intercourse. While doing it, he felt something jerking and when he asked her about it, she
told him she was pregnant with the child of her husband. They went home the following day.
In March 1982, Florencia, then already working in another household, went to petitioners
house hoping to be reemployed as a servant there. Since petitioners wife was in need of one, she
was re-hired. However petitioners wife noticed that her stomach was bulging and inquired about
the father of the unborn child. She told petitioners wife that the baby was by her husband.
Because of her condition, she was again told to go home and they did not see each other anymore.
Petitioner was therefore surprised when summons was served on him by Florencias counsel.
She was demanding support for private respondent Camelo Regodos. Petitioner refused, denying
the alleged paternity. He insisted she was already pregnant when they had sex. He denied going
to Bacolod City with her and checking in at the Visayan Motel. He vehemently denied having sex
with her on January 2, 1982 and renting a house for her in Singcang, Bacolod City.
After trial, the court a quo gave more probative weight to the testimony of Florencia despite
its discovery that she misrepresented herself as a widow when, in reality, her husband was alive.
Deciding in favor of private respondent, the trial court declared:
The child was presented before the Court, and if the Court is to decide this case, based on the personal
appearance of the child then there can never be a doubt that the plaintiff-minor is the child of the
defendant with plaintiff-minors mother, Florencia Regodos.
xxx

xxx

xxx

In view of the evidence presented by the plaintiff, the Court finds the evidence of the plaintiff in
support of the claim to be meritorious; defendant admitted having a sexual intercourse with the plaintiff
s mother, Florencia Regodos, but denied paternity to the child. The child was presented before the Court,
and if the Court is to decide this case, based on the personal appearance of the child, then there can never
be a doubt that the plaintiff-minor is the child of the defendant with plaintiff-minors mother, Florencia
Regodos.
2

On appeal, the Court of Appeals affirmed the RTC:

The misrepresentation made by Florencia in the petition that she was a widow should not prejudice the
right of petitioner-appellee. As held by the Supreme Court, even where a witness has been found to have
deliberately falsified the truth in some particulars, it is not required that the whole of her testimony be
rejected (People vs. Bohol, 170 SCRA 585). It is perfectly reasonable to believe the testimony of a witness
with respect to some facts and disbelieve it with respect to other facts (People vs. Delas, 199 SCRA 574,
575). There is therefore no reason to disbelieve Florencia that her first intercourse with appellant
occurred on January 2, 1982 and nine (9) months later or on September 9, 1982, she gave birth to appellee
(TSN, Hearing of June 10, 1991 and Exhibit A).

In the absence of arbitrariness in the evaluation of the evidence adduced before the trial court and
there being no evidence that the latter had overlooked or misappreciated, we find no cogent reason to
disturb the trial courts findings.
WHEREFORE, the appealed decision is AFFIRMED.

Hence this petition which assigns the following errors:

1. A.THE COURT OF APPEALS ERRED IN ITS APPLICATION OF ARTICLE 283 OF THE CIVIL
CODE ON THE COMPULSORY RECOGNITION AND AWARD OF SUPPORT IN FAVOR OF
RESPONDENT-APPELLEE CAMELO REGODOS;
2. B.THE COURT OF APPEALS ERRED IN ITS DECISION BASED ON THE EVIDENCE
ADDUCED BY RESPONDENT CAMELO REGODOS BEFORE THE TRIAL COURT.
4

Clearly, this petition calls for a review of the factual findings of the two lower courts. As a general
rule, factual issues are not within the province of this Court. Factual findings of the trial court,
when adopted and confirmed by the Court of Appeals, become final and conclusive and may not
be reviewed on appeal except: (1) when the inference made is manifestly mistaken, absurd or
impossible; (2) when there is a grave abuse of discretion; (3) when the finding is grounded
entirely on speculation, surmises or conjectures; (4) when the judgment of the Court of Appeals is
based on misapprehension of facts; (5) when the findings of fact are conflicting; (6) when the
Court of Appeals, in making its findings, goes beyond the issues of the case and the same is
contrary to the admissions of both appellant and appellee; (7) when the findings of the Court of
Appeals are contrary to those of the trial court; (8) when the findings of fact are conclusions
without citation of specific evidence on which they are based; (9) when the Court of Appeals
manifestly overlooks certain relevant facts not disputed by the parties and which, if properly
considered, justifies a different conclusion; and (10) when the findings of fact of the Court of
Appeals are premised on the absence of evidence and are contradicted by the evidence on record.
The Court is convinced that this case falls within one of the exceptions.
5

The trial courts finding of a paternal relationship between petitioner and private respondent
was based on the testimony of the childs mother and the personal appearance of the child.
Time and again, this Court has ruled that a high standard of proof is required to establish
paternity and filiation. An order for recognition and support may create an unwholesome
situation or may be an irritant to the family or the lives of the parties so that it must be issued
only if paternity or filiation is established by clear and convincing evidence.
6

The applicable provisions of the law are Articles 172 and 175 of the Civil Code:
Art. 172. The filiation of legitimate children is established by any of the following:

1. (1)The record of birth appearing in the civil register or a final judgment; or

2. (2)An admission of legitimate filiation in a public document or a private handwritten instrument
and signed by the parent concerned.
In the absence of the foregoing evidence, the legitimate filiation shall be proved by:
1. (1)The open and continuous possession of the status of a legitimate child; or
2. (2)Any other means allowed by the Rules of Court and special laws.
Art. 175. Illegitimate children may establish their illegitimate filiation in the same way and on the
same evidence as legitimate children.
xxx

xxx

xxx

Private respondent presented a copy of his birth and baptismal certificates, the preparation of
which was without the knowledge or consent of petitioner. A certificate of live birth purportedly
identifying the putative father is not competent evidence of paternity when there is no showing
that the putative father had a hand in the preparation of said certificate. The local civil registrar
has no authority to record the paternity of an illegitimate child on the information of a third
person.
8

In the same vein, we have ruled that, while a baptismal certificate may be considered a public
document, it can only serve as evidence of the administration of the sacrament on the date
specified but not the veracity of the entries with respect to the childs paternity. Thus,
certificates issued by the local civil registrar and baptismal certificates are per seinadmissible in
evidence as proof of filiation and they cannot be admitted indirectly as circumstantial evidence to
prove the same.
9

10

Aside from Florencias self-serving testimony that petitioner rented a house for her in
Singcang, Bacolod City, private respondent failed to present sufficient proof of voluntary
recognition.
We now proceed to the credibility of Florencias testimony. Both the trial court and the
appellate court brushed aside the misrepresentation of Florencia in the petition for recognition
that she was a widow. Both courts dismissed the lie as minor which did not affect the rest of her
testimony. We disagree. The fact that Florencias husband is living and there is a valid subsisting
marriage between them gives rise to the presumption that a child born within that marriage is
legitimate even though the mother may have declared against its legitimacy or may have been
sentenced as an adulteress. The presumption of legitimacy does not only flow out of a
declaration in the statute but is based on the broad principles of natural justice and the supposed
11

virtue of the mother. The presumption is grounded on the policy to protect innocent offspring
from the odium of illegitimacy.
12

In this age of genetic profiling and deoxyribonucleic acid (DNA) analysis, the extremely
subjective test of physical resemblance or similarity of features will not suffice as evidence to
prove paternity and filiation before the courts of law.
WHEREFORE, the petition is hereby GRANTED. The assailed decision of the Court of
Appeals in CA-G.R. 36708 dated March 15, 1996, affirming the decision of the Regional Trial
Court of Cadiz City, Branch 60, in Spec. Proc. No. 88-C is REVERSED and SET ASIDE. Private
respondents petition for recognition and support is dismissed.
SO ORDERED.
Panganiban (Chairman), Sandoval-Gutierrez,Carpio-Morales and Garcia, JJ., concur.
Petition granted, assailed decision reversed and set aside.
Note.The due recognition of illegitimate children in a record of birth, a will, a statement
before a court of record, or in any authentic writing is, in itself, a consummated act of
acknowledgment of the child, and no further court action is required, but where a claim for
recognition is predicated on other evidence merely tending to prove paternity, judicial action
within the applicable statute of limitations is essential in order to establish the childs
acknowledgment. (De Jesus vs. Estate of Decedent Juan Gamboa Dizon, 366 SCRA 499 [2001]).
July 31, 2013.G.R. No. 189121.*
AMELIA GARCIA-QUIAZON, JENNETH QUIAZON and MARIA JENNIFER QUIAZON,
petitioners, vs. MA. LOURDES BELEN, for and in behalf of MARIA LOURDES ELISE
QUIAZON, respondent.

This is a Petition for Review on Certiorari filed pursuant to Rule 45 of the Revised Rules of
Court, primarily assailing the 28 November 2008 Decision rendered by the Ninth Division of the
Court of Appeals in CA-G.R. CV No. 88589,1the decretal portion of which states:
WHEREFORE, premises considered, the appeal is herebyDENIED. The assailed Decision
dated March 11, 2005, and the Order dated March 24, 2006 of the Regional Trial Court, Branch 275,
Las Pias City are AFFIRMED in toto.

The Facts

This case started as a Petition for Letters of Administration of the Estate of Eliseo Quiazon
(Eliseo), filed by herein respondents who are Eliseos common-law wife and daughter. The
petition was opposed by herein petitioners Amelia Garcia-Quiazon (Amelia) to whom Eliseo was
married. Amelia was joined by her children, Jenneth Quiazon (Jenneth) and Maria Jennifer
Quiazon (Jennifer).
Eliseo died intestate on 12 December 1992.
On 12 September 1994, Maria Lourdes Elise Quiazon (Elise), represented by her mother, Ma.
Lourdes Belen (Lourdes), filed a Petition for Letters of Administration before the Regional Trial
Court (RTC) of Las Pias City. 3 In her Petition docketed as SP Proc. No. M-3957, Elise claims
that she is the natural child of Eliseo having been conceived and born at the time when her
parents were both capacitated to marry each other. Insisting on the legal capacity of Eliseo and
Lourdes to marry, Elise impugned the validity of Eliseos marriage to Amelia by claiming that it
was bigamous for having been contracted during the subsistence of the latters marriage with one
Filipito Sandico (Filipito). To prove her filiation to the decedent, Elise, among others, attached to
the Petition for Letters of Administration her Certificate of Live Birth 4 signed by Eliseo as her
father. In the same petition, it was alleged that Eliseo left real properties worth P2,040,000.00
and personal properties worth P2,100,000.00.
In order to preserve the estate of Eliseo and to prevent the dissipation of its value, Elise
sought her appointment as administratrix of her late fathers estate.
Claiming that the venue of the petition was improperly laid, Amelia, together with her
children, Jenneth and Jennifer, opposed the issuance of the letters of administration by filing an
Opposition/Motion to Dismiss.5The petitioners asserted that as shown by his Death
Certificate,6 Eliseo was a resident of Capas, Tarlac and not of Las Pias City, at the time of his
death. Pursuant to Section 1, Rule 73 of the Revised Rules of Court, 7 the petition for settlement of
decedents estate should have been filed in Capas, Tarlac and not in Las Pias City. In addition
to their claim of improper venue, the petitioners averred that there are no factual and legal bases
for Elise to be appointed administratrix of Eliseos estate.
In a Decision8 dated 11 March 2005, the RTC directed the issuance of Letters of
Administration to Elise upon posting the necessary bond. The lower court ruled that the venue of
the petition was properly laid in Las Pias City, thereby discrediting the position taken by the
petitioners that Eliseos last residence was in Capas, Tarlac, as hearsay. The dispositive of the
RTC decision reads:
Having attained legal age at this time and there being no showing of any disqualification or
incompetence to serve as administrator, let letters of administration over the estate of the decedent
Eliseo Quiazon, therefore, be issued to petitioner, Ma. Lourdes Elise Quiazon, after the approval by
this Court of a bond in the amount of P100,000.00 to be posted by her.
9

On appeal, the decision of the trial court was affirmed in toto in the 28 November 2008
Decision10 rendered by the Court of Appeals in CA-G.R. CV No. 88589. In validating the findings
of the RTC, the Court of Appeals held that Elise was able to prove that Eliseo and Lourdes lived
together as husband and wife by establishing a common residence at No. 26 Everlasting Road,
Phase 5, Pilar Village, Las Pias City, from 1975 up to the time of Eliseos death in 1992. For
purposes of fixing the venue of the settlement of Eliseos estate, the Court of Appeals upheld the
conclusion reached by the RTC that the decedent was a resident of Las Pias City. The
petitioners Motion for Reconsideration was denied by the Court of Appeals in its
Resolution11 dated 7 August 2009.
The Issues
The petitioners now urge Us to reverse the assailed Court of Appeals Decision and Resolution
on the following grounds:
THE COURT OF APPEALS GRAVELY ERRED IN AFFIRMING THAT ELISEO QUIAZON WAS A RESIDENT OF LAS PIAS
AND THEREFORE[,] THE PETITIONI.
FOR LETTERS OF ADMINISTRATION WAS PROPERLY FILED WITH THE [RTC] OF LAS PIAS[;]
THE COURT OF APPEALS GRAVELY ERRED IN DECLARING THAT AMELIA GARCIA-QUIAZON WAS NOT LEGALLY
MARRIED TO ELISEO QUIAZON DUE TO PREEXISTING MARRIAGE[;] [AND]II.
THE COURT OF APPEALS OVERLOOKED THE FACT THAT ELISE QUIAZON HAS NOT SHOWN ANY INTEREST IN THE
PETITION FOR LETTERS OF ADMINISTRATION[.]III.12

The Courts Ruling

We find the petition bereft of merit.
Under Section 1, Rule 73 of the Rules of Court, the petition for letters of administration of the
estate of a decedent should be filed in the RTC of the province where the decedent resides at the
time of his death:
1.Sec.Where estate of deceased persons settled.If the decedent is an inhabitant of the
Philippines at the time of his death, whether a citizen or an alien, his will shall be proved, or letters
of administration granted, and his estate settled, in the Court of First Instance [now Regional
Trial Court] in the province in which he resides at the time of his death , and if he is an
inhabitant of a foreign country, the Court of First Instance [now Regional Trial Court] of any
province in which he had estate. The court first taking cognizance of the settlement of the estate of a
decedent, shall exercise jurisdiction to the exclusion of all other courts. The jurisdiction assumed by
a court, so far as it depends on the place of residence of the decedent, or of the location of his estate,
shall not be contested in a suit or proceeding, except in an appeal from that court, in the original
case, or when the want of jurisdiction appears on the record. (Emphasis supplied).

The term resides connotes ex vi termini actual residence as distinguished from legal
residence or domicile. This term resides, like the terms residing and residence, is elastic
and should be interpreted in the light of the object or purpose of the statute or rule in which it is
employed. In the application of venue statutes and rules Section 1, Rule 73 of the Revised
Rules of Court is of such nature residence rather than domicile is the significant factor.13 Even
where the statute uses the word domicile still it is construed as meaning residence and not
domicile in the technical sense.14 Some cases make a distinction between the terms
residence and domicile but as generally used in statutes fixing venue, the terms

are synonymous, and convey the same meaning as the term inhabitant. 15 In other
words, resides should be viewed or understood in its popular sense, meaning, the
personal, actual or physical habitation of a person, actual residence or place of

abode.16 It signifies physical presence in a place and actual stay thereat. 17 Venue for ordinary civil

actions and that for special proceedings have one and the same meaning. 18 As thus defined,
residence, in the context of venue provisions, means nothing more than a persons
actual residence or place of abode, provided he resides therein with continuity and
consistency.19
Viewed in light of the foregoing principles, the Court of Appeals cannot be faulted for affirming
the ruling of the RTC that the venue for the settlement of the estate of Eliseo was properly laid in
Las Pias City. It is evident from the records that during his lifetime, Eliseo resided at No. 26
Everlasting Road, Phase 5, Pilar Village, Las Pias City. For this reason, the venue for the
settlement of his estate may be laid in the said city.
In opposing the issuance of letters of administration, the petitioners harp on the entry in
Eliseos Death Certificate that he is a resident of Capas, Tarlac where they insist his estate
should be settled. While the recitals in death certificates can be considered proofs of a decedents
residence at the time of his death, the contents thereof, however, is not binding on the courts.
Both the RTC and the Court of Appeals found that Eliseo had been living with Lourdes,
deporting themselves as husband and wife, from 1972 up to the time of his death in 1995. This
finding is consistent with the fact that in 1985, Eliseo filed an action for judicial partition of
properties against Amelia before the RTC of Quezon City, Branch 106, on the ground that their
marriage is void for being bigamous. 20 That Eliseo went to the extent of taking his marital feud
with Amelia before the courts of law renders untenable petitioners position that Eliseo spent the
final days of his life in Tarlac with Amelia and her children. It disproves rather than supports
petitioners submission that the lower courts findings arose from an erroneous appreciation of
the evidence on record. Factual findings of the trial court, when affirmed by the appellate court,
must be held to be conclusive and binding upon this Court. 21
Likewise unmeritorious is petitioners contention that the Court of Appeals erred in declaring
Amelias marriage to Eliseo as void ab initio. In a void marriage, it was though no marriage has

taken place, thus, it cannot be the source of rights. Any interested party may attack the marriage
directly or collaterally. A void marriage can be questioned even beyond the lifetime of the parties
to the marriage.22 It must be pointed out that at the time of the celebration of the marriage of
Eliseo and Amelia, the law in effect was the Civil Code, and not the Family Code, making the
ruling inNial v. Bayadog23 applicable four-square to the case at hand. In Nial, the Court, in no
uncertain terms, allowed therein petitioners to file a petition for the declaration of nullity of their
fathers marriage to therein respondent after the death of their father, by contradistinguishing
void from voidable marriages, to wit:
[C]onsequently, void marriages can be questioned even after the death of either party but voidable
marriages can be assailed only during the lifetime of the parties and not after death of either, in
which case the parties and their offspring will be left as if the marriage had been perfectly valid.
That is why the action or defense for nullity is imprescriptible, unlike voidable marriages where the
action prescribes. Only the parties to a voidable marriage can assail it but any proper interested
party may attack a void marriage.
24

It was emphasized in Nial that in a void marriage, no marriage has taken place
and it cannot be the source of rights, such that any interested party may attack the

marriage directly or collaterally without prescription, which may be filed even beyond
the lifetime of the parties to the marriage.25
Relevant to the foregoing, there is no doubt that Elise, whose successional rights would be
prejudiced by her fathers marriage to Amelia, may impugn the existence of such marriage even
after the death of her father. The said marriage may be questioned directly by filing an action
attacking the validity thereof, or collaterally by raising it as an issue in a proceeding for the
settlement of the estate of the deceased spouse, such as in the case at bar. Ineluctably, Elise, as a
compulsory heir,26 has a cause of action for the declaration of the absolute nullity of the void
marriage of Eliseo and Amelia, and the death of either party to the said marriage does not
extinguish such cause of action.
Having established the right of Elise to impugn Eliseos marriage to Amelia, we now proceed
to determine whether or not the decedents marriage to Amelia is void for being bigamous.
Contrary to the position taken by the petitioners, the existence of a previous marriage between
Amelia and Filipito was sufficiently established by no less than the Certificate of Marriage issued
by the Diocese of Tarlac and signed by the officiating priest of the Parish of San Nicolas de
Tolentino in Capas, Tarlac. The said marriage certificate is a competent evidence of marriage and
the certification from the National Archive that no information relative to the said marriage
exists does not diminish the probative value of the entries therein. We take judicial notice of the
fact that the first marriage was celebrated more than 50 years ago, thus, the possibility that a
record of marriage can no longer be found in the National Archive, given the interval of time, is
not completely remote. Consequently, in the absence of any showing that such marriage had been

dissolved at the time Amelia and Eliseos marriage was solemnized, the inescapable conclusion is
that the latter marriage is bigamous and, therefore, void ab initio.27
Neither are we inclined to lend credence to the petitioners contention that Elise has not
shown any interest in the Petition for Letters of Administration.
Section 6, Rule 78 of the Revised Rules of Court lays down the preferred persons who are
entitled to the issuance of letters of administration, thus:
When and to whom letters of administration granted.6.Sec.If no executor is named
in the will, or the executor or executors are incompetent, refuse the trust, or fail to give bond, or a
person dies intestate, administration shall be granted:
To the surviving husband or wife, as the case may be, or next of kin, or both, in the discretion of
the court, or to such person as such surviving husband or wife, or next of kin, requests to have
appointed, if competent and willing to serve;(a)
If such surviving husband or wife, as the case may be, or next of kin, or the person selected by
them, be incompetent or unwilling, or if the husband or widow, or next of kin, neglects for thirty (30)
days after the death of the person to apply for administration or to request that administration be
granted to some other person, it may be granted to one or more of the principal creditors, if
competent and willing to serve;(b)
If there is no such creditor competent and willing to serve, it may be granted to such other
person as the court may select.(c)

Upon the other hand, Section 2 of Rule 79 provides that a petition for Letters of
Administration must be filed by an interested person, thus:
Contents of petition for letters of administration.2.Sec.A petition for letters
of administration must be filed by an interested person and must show, so far as known to
the petitioner:
The jurisdictional facts;(a)
The names, ages, and residences of the heirs, and the names and residences of the
creditors, of the decedent;(b)
The probable value and character of the property of the estate;(c)
The name of the person for whom letters of administration are prayed.(d)
But no defect in the petition shall render void the issuance of letters of administration.

An interested party, in estate proceedings, is one who would be benefited in the estate, such
as an heir, or one who has a claim against the estate, such as a creditor. Also, in estate
proceedings, the phrase next of kin refers to those whose relationship with the decedent is such
that they are entitled to share in the estate as distributees.28
In the instant case, Elise, as a compulsory heir who stands to be benefited by the distribution
of Eliseos estate, is deemed to be an interested party. With the overwhelming evidence on record
produced by Elise to prove her filiation to Eliseo, the petitioners pounding on her lack of interest
in the administration of the decedents estate, is just a desperate attempt to sway this Court to
reverse the findings of the Court or Appeals. Certainly, the right of Elise to be
appointed administratix of the estate of Eliseo is on good grounds. It is founded on her right as a
compulsory heir, who, under the law, is entitled to her legitime after the debts of the estate are
satisfied.29 Having a vested right in the distribution of Eliseos estate as one of his natural
children, Elise can rightfully be considered as an interested party within the purview of the law.
WHEREFORE, premises considered, the petition isDENIED for lack of merit. Accordingly,
the Court of Appeals assailed 28 November 2008 Decision and 7 August 2009 Resolution,
are AFFIRMED in toto.
SO ORDERED.
Carpio (Chairperson), Brion, Del Castillo and Perlas-Bernabe, JJ., concur.
Petition denied, judgment and resolution affirmed in toto.
Notes.In a petition for the issuance of letters of administration, settlement, and distribution
of estate, the applicants seek to establish the fact of death of the decedent and later to be duly
recognized as among the decedents heirs, which would allow them to exercise their right to
participate in the settlement and liquidation of the estate of the decedent. (Montaer vs. Sharia
District Court, Fourth Sharia Judicial District, Marawi City, 576 SCRA 746 [2009])
The appointment of a special administrator is an interlocutory or preliminary order to the
main case for the grant of letters of administration in a testate or intestate proceeding.
(Manungas vs. Loreto, 655

[No. L-2474. May 30, 1951]

MARIANO ANDAL, assisted by his mother Maria Dueas as guardian ad litem, and MARIA
DUEAS, plaintiffs vs.EDUVIGIS MACARAIG, defendant.

Mariano Andal, a minor, assisted by his mother Maria Dueas, as guardian ad litem, brought an
action in the Court of First Instance of Camarines Sur for the recovery of the ownership and
possession of a parcel of land situated in the barrio of Talacop, Calabanga, Camarines Sur.
The complaint alleges that Mariano Andal is the surviving son of Emiliano Andal and Maria
Dueas; that Emiliano Andal died on September 24, 1942; that Emiliano Andal was the owner of
the parcel of land in question having acquired it from his mother Eduvigis Macaraig by virtue of
a donation propter nuptias executed by the latter in favor of the former; that Emiliano Andal had
been in possession of the land from 1938 up to 1942, when Eduvigis Macaraig, taking advantage
of the abnormal situation then prevailing, entered the land in question.
The lower court rendered judgment in favor of the plaintiffs (a) declaring Mariano Andal the
legitimate son of Emiliano Andal and as such entitled to inherit the land in question; (b)
declaring Mariano Andal owner of said land; and (c) ordering the defendant to pay the costs of
suit. Defendant took the case to this Court upon the plea that only questions of law are involved.
It appears undisputed that the land in question was given by Eduvigis Macaraig to her son
Emiliano Andal by virtue of a donation propter nuptias she has executed in his favor on the
occasion of his marriage to Maria Dueas. If the son born to the couple is deemed legitimate,
then he is entitled to inherit the land in question. If otherwise, then the land should revert back
to Eduvigis Macaraig as the next of kin entitled to succeed him under the law. The main issue,
therefore, to be determined hinges on the legitimacy of Mariano Andal in so far as his relation to
Emiliano Andal is concerned. The determination of this issue much depends upon the
relationship that had existed between Emiliano Andal and his wife during the period of
conception of the child up to the date of his birth in connection with the death of the alleged
father Emiliano Andal.
The following facts appear to have been proven: Emiliano Andal became sick of tuberculosis in
January 1941. Sometime thereafter, his brother, Felix, went to live in his house to help him work
his farm. His sickness became worse that on or about September 10, 1942, he became so weak
that he could hardly move and get up from his bed. On September 10, 1942, Maria Dueas, his
wife, eloped with Felix, and both went to live in the house of Maria's father, until the middle of
1943. Since May, 1942, Felix and Maria had sexual intercourse and treated each other as
husband and wife. On January 1, 1943, Emiliano died without the presence of his wife, who did
not even attend his funeral. On June 17, 1943, Maria Dueas gave birth to a boy, who was given
the name of Mariano Andal. Under these facts, can the child be considered as the legitimate son
of Emiliano?

Article 108 of the Civil Code provides:

"Children born after the one hundred and eighty days next following that of the celebration of marriage or
within the three hundred days next following its dissolution or the separation of the spouses shall be
presumed to be legitimate.
"This presumption may be rebutted only by proof that it was physically impossible for the husband to
have had access to his wife during the first one hundred and twenty days of the three hundred next
preceding the birth of the child."

Since the boy was born on June 17, 1943, and Emiliano Andal died on January 1, 1943, that
boy is presumed to be the legitimate son of Emiliano and his wife, he having been born within
three hundred (300) days following the dissolution of the marriage. This presumption can only be
rebutted by proof that it was physically impossible for the husband to have had access to his wife
during the first 120 days of the 300 next preceding the birth of the child. Is there any evidence to
prove that it was physically impossible for Emiliano to have such access? Is the fact that Emiliano
was sick of tuberculosis and was so weak that he could hardly move and get up from his bed
sufficient to overcome this presumption?
Manresa on this point says:
"Impossibility of access by husband to wife would include (1) absence during the initial period of
conception, (2) impotence which is patent, continuing and incurable, and (3) imprisonment, unless it can
be shown that cohabitation took place through corrupt violation of prison regulations." Manresa, 492-500,
Vol. I, cited by Dr. Arturo Tolentino in his book "Commentaries and Jurisprudence on the Civil Code, Vol.
1, p. 90)."

There was no evidence presented that Emiliano Andal was absent during the initial period of
conception, specially during the period comprised between August 21, 1942 and September 10,
1942, which is included in the 120 days of the 300 next preceding the birth of the child Mariano
Andal. On the contrary, there is enough evidence to show that during that initial period,
Emiliano Andal and his wife were still living under the marital roof. Even if Felix, the brother,
was living in the same house, and he and the wife were indulging in illicit intercourse since May,
1942, that does not preclude cohabitation between Emiliano and his wife. We admit that
Emiliano was already suffering from tuberculosis and his condition then was so serious that he
could hardly move and get up from his bed, his feet were swollen and his voice hoarse. But
experience shows that this does not prevent carnal intercourse. There are cases where persons
suffering from this sickness can do the carnal act even in the most crucial stage because they are
more inclined to sexual intercourse. As an author has said, "the reputation of the tuberculous
towards eroticism (sexual propensity) is probably dependent more upon confinement to bed than
the consequences of the disease." (An Integrated Practice of Medicine, by Hyman, Vol. 3, p. 2202).
There is neither evidence to show that Emiliano was suffering from impotency, patent,
continuous and incurable, nor was there evidence that he was imprisoned. The presumption of
legitimacy under the Civil Code in favor of the child has not, therefore, been overcome.

We can obtain the same result viewing this case under section 68, par. (c) of Rule 123, of the
Rules of Court, which is practically based upon the same rai'son d'etre underlying the Civil Code.
Said section provides:
"The issue of a wife cohabiting with the husband who is not impotent, is indisputably presumed to be
legitimate, if not born within one hundred eighty days immediately succeeding the marriage, or after the
expiration of three hundred days following its dissolution."

We have already seen that Emiliano and his wife were living together, or at least had access one
to the other, and Emiliano was not impotent, and the child was born within three hundred (300)
days following the dissolution of the marriage. Under these facts no other presumption can be
drawn than that the issue is legitimate. We have also seen that this presumption can only be
rebutted by clear proof that it was physically or naturally impossible for them to indulge in
carnal intercourse. And here there is no such proof. The fact that Maria Dueas has committed
adultery can not also overcome this presumption (Tolentino's Commentaries on the Civil Code,
Vol. I, p. 92).
In view of all the foregoing, we are constrained to hold that the lower court did not err in
declaring Mariano Andal as the legitimate son of the spouses Emiliano Andal and Maria Dueas.
Wherefore, the decision appealed from is affirmed, without pronouncement as to costs.
Pars, C. J., Feria, Pablo, Tuason, Montemayor, Reyesand Jugo, JJ., concur.
Judgment affirmed.

G.R. No. 123450. August 31, 2005.

GERARDO B. CONCEPCION, petitioner, vs. COURT OF APPEALS and MA. THERESA

ALMONTE, respondents.

The child, by reason of his mental and physical immaturity, needs special safeguard and care,
including appropriate legal protection before as well as after birth. In case of assault on his
rights by those who take advantage of his innocence and vulnerability, the law will rise in his
defense with the single-minded purpose of upholding only his best interests.
1

This is the story of petitioner Gerardo B. Concepcion and private respondent Ma. Theresa
Almonte, and a child named Jose Gerardo. Gerardo and Ma. Theresa were married on December
29, 1989. After their marriage, they lived with Ma. Theresas parents in Fairview, Quezon
City. Almost a year later, on December 8, 1990, Ma. Theresa gave birth to Jose Gerardo.
2

Gerardo and Ma. Theresas relationship turned out to be short-lived, however. On December
19, 1991, Gerardo filed a petition to have his marriage to Ma. Theresa annulled on the ground of
bigamy. He alleged that nine years before he married Ma. Theresa on December 10, 1980, she
had married one Mario Gopiao, which marriage was never annulled. Gerardo also found out that
Mario was still alive and was residing in Loyola Heights, Quezon City.
5

Ma. Theresa did not deny marrying Mario when she was twenty years old. She, however,
averred that the marriage was a sham and that she never lived with Mario at all.
8

The trial court ruled that Ma. Theresas marriage to Mario was valid and subsisting when she
married Gerardo and annulled her marriage to the latter for being bigamous. It declared Jose
Gerardo to be an illegitimate child as a result. The custody of the child was awarded to Ma.
Theresa while Gerardo was granted visitation rights.
9

Ma. Theresa felt betrayed and humiliated when Gerardo had their marriage annulled. She held
him responsible for the bastardization of Gerardo. She moved for the reconsideration of the
above decision INSOFAR ONLY as that portion of the . . . decision which grant(ed) to the
petitioner so-called visitation rights. . . between the hours of 8 in the morning to 12:00 p.m. of
any Sunday. She argued that there was nothing in the law granting visitation rights in favor of
the putative father of an illegitimate child. She further maintained that Jose Gerardos
surname should be changed from Concepcion to Almonte, her maiden name, following the rule
that an illegitimate child shall use the mothers surname.
10

11

Gerardo opposed the motion. He insisted on his visitation rights and the retention of
Concepcion as Jose Gerardos surname.
Applying the best interest of the child principle, the trial court denied Ma. Theresas motion
and made the following observations:
It is a pity that the parties herein seem to be using their son to get at or to hurt the other, something
they should never do if they want to assure the normal development and well-being of the boy.
The Court allowed visitorial rights to the father knowing that the minor needs a father, especially as
he is a boy, who must have a father figure to recognizesomething that the mother alone cannot give.
Moreover, the Court believes that the emotional and psychological well-being of the boy would be better
served if he were allowed to maintain relationships with his father.
There being no law which compels the Court to act one way or the other on this matter, the Court
invokes the provision of Art. 8, PD 603 as amended, otherwise known as the Child and Youth Welfare
Code, to wit:
In all questions regarding the care, custody, education and property of the child, his welfare shall be the paramount
consideration.

WHEREFORE, the respondents Motion for Reconsideration has to be, as it is hereby DENIED.

12

Ma. Theresa elevated the case to the Court of Appeals, assigning as error the ruling of the trial
court granting visitation rights to Gerardo. She likewise opposed the continued use of Gerardos
surname (Concepcion) despite the fact that Jose Gerardo had already been declared illegitimate
and should therefore use her surname (Almonte). The appellate court denied the petition and
affirmed in toto the decision of the trial court.
13

On the issue raised by Ma. Theresa that there was nothing in the law that granted a putative
father visitation rights over his illegitimate child, the appellate court affirmed the best interest
of the child policy invoked by the court a quo. It ruled that [a]t bottom, it (was) the childs
welfare and not the convenience of the parents which (was) the primary consideration in granting
visitation rights a few hours once a week.
14

The appellate court likewise held that an illegitimate child cannot use the mothers
surname motu proprio. The child, represented by the mother, should file a separate proceeding
for a change of name under Rule 103 of the Rules of Court to effect the correction in the civil
registry.
15

Undaunted, Ma. Theresa moved for the reconsideration of the adverse decision of the appellate
court. She also filed a motion to set the case for oral arguments so that she could better ventilate
the issues involved in the controversy.
After hearing the oral arguments of the respective counsels of the parties, the appellate court
resolved the motion for reconsideration. It reversed its earlier ruling and held that Jose Gerardo
was not the son of Ma. Theresa by Gerardo but by Mario during her first marriage:
It is, therefore, undeniableestablished by the evidence in this casethat the appellant [Ma. Theresa]
was married to Mario Gopiao, and that she had never entered into a lawful marriage with the appellee
[Gerardo] since the so-called marriage with the latter was void ab initio. It was [Gerardo] himself who
had established these facts. In other words, [Ma. Theresa] was legitimately married to Mario Gopiao
when the child Jose Gerardo was born on December 8, 1990. Therefore, the child Jose Gerardounder the
lawis the legitimate child of the legal and subsisting marriage between [Ma. Theresa] and Mario
Gopiao; he cannot be deemed to be the illegitimate child of the void and non-existent marriage between
[Ma. Theresa] and [Gerardo], but is said by the law to be the child of the legitimate and existing marriage
between [Ma. Theresa] and Mario Gopiao (Art. 164, Family Code). Consequently, [she] is right in firmly
saying that [Gerardo] can claim neither custody nor visitorial rights over the child Jose Gerardo. Further,
[Gerardo] cannot impose his name upon the child. Not only is it without legal basis (even supposing the
child to be his illegitimate child [Art. 146, The Family Code]); it would tend to destroy the existing
marriage between [Ma. Theresa] and Gopiao, would prevent any possible rapproachment between the
married couple, and would mean a judicial seal upon an illegitimate relationship.
16

The appellate court brushed aside the common admission of Gerardo and Ma. Theresa that Jose
Gerardo was their son. It gave little weight to Jose Gerardos birth certificate showing that he
was born a little less than a year after Gerardo and Ma. Theresa were married:
We are not unaware of the movants argument that various evidence exist that appellee and the
appellant have judicially admitted that the minor is their natural child. But, in the same vein, We cannot
overlook the fact that Article 167 of the Family Code mandates:
The child shall be considered legitimate although the mother may have declared against its legitimacy or may have
been sentenced as an adulteress. (italics ours)

Thus, implicit from the above provision is the fact that a minor cannot be deprived of his/her legitimate
status on the bare declaration of the mother and/or even much less, the supposed father. In fine, the law
and only the law determines who are the legitimate or illegitimate children for ones
legitimacy or illegitimacy cannot ever be compromised. Not even the birth certificate of the minor
can change his status for the information contained therein are merely supplied by the mother and/or the
supposed father. It should be what the law says and not what a parent says it is. (Emphasis
17

supplied)

Shocked and stunned, Gerardo moved for a reconsideration of the above decision but the same
was denied. Hence, this appeal.
18

The status and filiation of a child cannot be compromised. Article 164 of the Family Code is
clear. A child who is conceived or born during the marriage of his parents is legitimate.
19

20

As a guaranty in favor of the child and to protect his status of legitimacy, Article 167 of the
Family Code provides:
21

Article 167. The child shall be considered legitimate although the mother may have declared against its
legitimacy or may have been sentenced as an adulteress.

The law requires that every reasonable presumption be made in favor of legitimacy. We
explained the rationale of this rule in the recent case of Cabatania v. Court of Appeals:
22

23

The presumption of legitimacy does not only flow out of a declaration in the statute but is based on the
broad principles of natural justice and the supposed virtue of the mother. It is grounded on the policy to
protect the innocent offspring from the odium of illegitimacy.

Gerardo invokes Article 166 (1)(b) of the Family Code. He cannot. He has no standing in law to
dispute the status of Jose Gerardo. Only Ma. Theresas husband Mario or, in a proper case, his
heirs, who can contest the legitimacy of the child Jose Gerardo born to his wife. Impugning the
legitimacy of a child is a strictly personal right of the husband or, in exceptional cases, his
heirs. Since the marriage of Gerardo and Ma. Theresa was void from the very beginning, he never
became her husband and thus never acquired any right to impugn the legitimacy of her child.
24

25

26

27

The presumption of legitimacy proceeds from the sexual union in marriage, particularly during
the period of conception. To overthrow this presumption on the basis of Article 166 (1)(b) of the
Family Code, it must be shownbeyond reasonable doubt that there was no access that could have
enabled the husband to father the child. Sexual intercourse is to be presumed where personal
access is not disproved, unless such presumption is rebutted by evidence to the contrary.
28

29

30

The presumption is quasi-conclusive and may be refuted only by the evidence of physical
impossibility of coitus between husband and wife within the first 120 days of the 300 days which
immediately preceded the birth of the child.
31

To rebut the presumption, the separation between the spouses must be such as to make
marital intimacy impossible. This may take place, for instance, when they reside in different
countries or provinces and they were never together during the period of conception. Or, the
husband was in prison during the period of conception, unless it appears that sexual union took
place through the violation of prison regulations.
32

33

34

Here, during the period that Gerardo and Ma. Theresa were living together in Fairview,
Quezon City, Mario was living in Loyola Heights which is also in Quezon City. Fairview and
Loyola Heights are only a scant four kilometers apart.
Not only did both Ma. Theresa and Mario reside in the same city but also that no evidence at
all was presented to disprove personal access between them. Considering these circumstances,
the separation between Ma. Theresa and her lawful husband, Mario, was certainly not such as to
make it physically impossible for them to engage in the marital act.
Sexual union between spouses is assumed. Evidence sufficient to defeat the assumption should
be presented by him who asserts the contrary. There is no such evidence here. Thus, the
presumption of legitimacy in favor of Jose Gerardo, as the issue of the marriage between Ma.
Theresa and Mario, stands.
Gerardo relies on Ma. Theresas statement in her answer to the petition for annulment of
marriage that she never lived with Mario. He claims this was an admission that there was never
any sexual relation between her and Mario, an admission that was binding on her.
35

36

Gerardos argument is without merit.

First, the import of Ma. Theresas statement is that Jose Gerardo is not her legitimate son
with Mario but her illegitimate son with Gerardo. This declarationan avowal by the mother
that her child is illegitimateis the very declaration that is proscribed by Article 167 of the
Family Code.

The language of the law is unmistakable. An assertion by the mother against the legitimacy of
her child cannot affect the legitimacy of a child born or conceived within a valid marriage.
Second, even assuming the truth of her statement, it does not mean that there was never an
instance where Ma. Theresa could have been together with Mario or that there occurred
absolutely no intercourse between them. All she said was that she never lived with Mario. She
never claimed that nothing ever happened between them.
Telling is the fact that both of them were living in Quezon City during the time material to
Jose Gerardos conception and birth. Far from foreclosing the possibility of marital intimacy,
their proximity to each other only serves to reinforce such possibility. Thus, the impossibility of
physical access was never established beyond reasonable doubt.
Third, to give credence to Ma. Theresas statement is to allow her to arrogate unto herself a
right exclusively lodged in the husband, or in a proper case, his heirs. A mother has no right to
disavow a child because maternity is never uncertain. Hence, Ma. Theresa is not permitted by
law to question Jose Gerardos legitimacy.
37

38

Finally, for reasons of public decency and morality, a married woman cannot say that she had
no intercourse with her husband and that her offspring is illegitimate. The proscription is in
consonance with the presumption in favor of family solidarity. It also promotes the intention of
the law to lean toward the legitimacy of children.
39

40

Gerardos insistence that the filiation of Jose Gerardo was never an issue both in the trial
court and in the appellate court does not hold water. The fact that both Ma. Theresa and Gerardo
admitted and agreed that Jose Gerardo was born to them was immaterial. That was, in effect, an
agreement that the child was illegitimate. If the Court were to validate that stipulation, then it
would be tantamount to allowing the mother to make a declaration against the legitimacy of her
child and consenting to the denial of filiation of the child by persons other than her husband.
These are the very acts from which the law seeks to shield the child.
Public policy demands that there be no compromise on the status and filiation of a
child. Otherwise, the child will be at the mercy of those who may be so minded to exploit his
defenselessness.
41

The reliance of Gerardo on Jose Gerardos birth certificate is misplaced. It has no evidentiary
value in this case because it was not offered in evidence before the trial court. The rule is that the
court shall not consider any evidence which has not been formally offered.
42

Moreover, the law itself establishes the status of a child from the moment of his
birth. Although a record of birth or birth certificate may be used as primary evidence of the
filiation of a child, as the status of a child is determined by the law itself, proof of filiation is
43

44

necessary only when the legitimacy of the child is being questioned, or when the status of a child
born after 300 days following the termination of marriage is sought to be established.
45

Here, the status of Jose Gerardo as a legitimate child was not under attack as it could not be
contested collaterally and, even then, only by the husband or, in extraordinary cases, his heirs.
Hence, the presentation of proof of legitimacy in this case was improper and uncalled for.
In addition, a record of birth is merely prima facieevidence of the facts contained
therein. As prima facieevidence, the statements in the record of birth may be rebutted by more
preponderant evidence. It is not conclusive evidence with respect to the truthfulness of the
statements made therein by the interested parties. Between the certificate of birth which
is prima facie evidence of Jose Gerardos illegitimacy and the quasi-conclusive presumption of
law (rebuttable only by proof beyond reasonable doubt) of his legitimacy, the latter shall prevail.
Not only does it bear more weight, it is also more conducive to the best interests of the child and
in consonance with the purpose of the law.
46

47

It perplexes us why both Gerardo and Ma. Theresa would doggedly press for Jose Gerardos
illegitimacy while claiming that they both had the childs interests at heart. The law, reason and
common sense dictate that a legitimate status is more favorable to the child. In the eyes of the
law, the legitimate child enjoys a preferred and superior status. He is entitled to bear the
surnames of both his father and mother, full support and full inheritance. On the other hand, an
illegitimate child is bound to use the surname and be under the parental authority only of his
mother. He can claim support only from a more limited group and his legitime is only half of that
of his legitimate counterpart. Moreover (without unwittingly exacerbating the discrimination
against him), in the eyes of society, a bastard is usually regarded as bearing a stigma or mark of
dishonor. Needless to state, the legitimacy presumptively vested by law upon Jose Gerardo favors
his interest.
48

49

It is unfortunate that Jose Gerardo was used as a pawn in the bitter squabble between the
very persons who were passionately declaring their concern for him. The paradox was that he
was made to suffer supposedly for his own sake. This madness should end.
This case has been pending for a very long time already. What is specially tragic is that an
innocent child is involved. Jose Gerardo was barely a year old when these proceedings began. He
is now almost fifteen and all this time he has been a victim of incessant bickering. The law now
comes to his aid to write finis to the controversy which has unfairly hounded him since his
infancy.
Having only his best interests in mind, we uphold the presumption of his legitimacy.
As a legitimate child, Jose Gerardo shall have the right to bear the surnames of his father
Mario and mother Ma. Theresa, in conformity with the provisions of the Civil Code on

surnames. A persons surname or family name identifies the family to which he belongs and is
passed on from parent to child. Hence, Gerardo cannot impose his surname on Jose Gerardo who
is, in the eyes of the law, not related to him in any way.
50

51

The matter of changing Jose Gerardos name and effecting the corrections of the entries in the
civil register regarding his paternity and filiation should be threshed out in a separate
proceeding.
In case of annulment or declaration of absolute nullity of marriage, Article 49 of the Family
Code grants visitation rights to a parent who is deprived of custody of his children. Such
visitation rights flow from the natural right of both parent and child to each others company.
There being no such parent-child relationship between them, Gerardo has no legally demandable
right to visit Jose Gerardo.
Our laws seek to promote the welfare of the child. Article 8 of PD 603, otherwise known as the
Child and Youth Welfare Code, is clear and unequivocal:
Article 8. Childs Welfare Paramount.In all questions regarding the care, custody, education and
property of the child, his welfare shall be the paramount consideration.

Article 3 (1) of the United Nations Convention on the Rights of a Child of which the Philippines is
a signatory is similarly emphatic:
Article 3
1. In all actions concerning children, whether undertaken by public or private social welfare
institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child
shall be a primary consideration.

The State as parens patriae affords special protection to children from abuse, exploitation and
other conditions prejudicial to their development. It is mandated to provide protection to those of
tender years. Through its laws, the State safeguards them from every one, even their own
parents, to the end that their eventual development as responsible citizens and members of
society shall not be impeded, distracted or impaired by family acrimony. This is especially
significant where, as in this case, the issue concerns their filiation as it strikes at their very
identity and lineage.
52

WHEREFORE, the petition is hereby DENIED. The September 14, 1995 and January 10,
1996 resolutions of the Court of Appeals in CA-G.R. CV No. 40651 are hereby AFFIRMED.
Costs against petitioner.
Panganiban (Chairman), Sandoval-Gutierrez andGar-cia, JJ., concur.

Carpio-Morales, J.,No Part.

Petition denied, resolutions affirmed.
Note.Paternity or filiation, or the lack of it, is a relationship that must be judicially
established. (Arbolario vs. Court of Appeals, 401 SCRA 360 [2003])

G.R. No. 138961. March 7, 2002.

WILLIAM LIYAO, JR., represented by his mother Corazon Garcia, petitioner, vs. JUANITA
TANHOTI-LIYAO, PEARL MARGARET L. TAN, TITA ROSE L. TAN AND LINDA
CHRISTINA LIYAO, respondents.

Before us is a petition for review on certiorari assailing the decision dated June 4, 1999 of the
Court of Appeals in CA-G.R. C.V. No. 45394 which reversed the decision of the Regional Trial
Court (RTC) of Pasig, Metro Manila, Branch 167 in declaring William Liyao, Jr. as the
1

illegitimate (spurious) son of the deceased William Liyao and ordering Juanita Tanhoti-Liyao,
Pearl Margaret L. Tan, Tita Rose L. Tan and Linda Christina Liyao to recognize and
acknowledge William Liyao, Jr. as a compulsory heir of the deceased William Liyao and entitled
to all successional rights as such and to pay the costs of the suit.
On November 29, 1976, William Liyao, Jr., represented by his mother Corazon G. Garcia,
filed Civil Case No. 24943before the RTC of Pasig, Branch 7 which is an action for compulsory
recognition as the illegitimate (spurious) child of the late William Liyao against herein
respondents, Juanita Tanhoti-Liyao, Pearl Margaret L. Tan, Tita Rose L. Tan and Linda
Christina Liyao. The
2

complaint

was

later

amended

to

include

the

allegation

that

petitioner was in continuous possession and enjoyment of the status of the child of said
William Liyao, petitioner having beenrecognized and acknowledged as such child by the
decedent during his lifetime.

The facts as alleged by petitioner are as follows:

Corazon G. Garcia is legally married to but living separately from Ramon M. Yulo for more
than ten (10) years at the time of the institution of the said civil case. Corazon cohabited with the
late William Liyao from 1965 up to the time of Williams untimely demise on December 2, 1975.
They lived together in the company of Corazons two (2) children from her subsisting marriage,
namely: Enrique and Bernadette, both surnamed Yulo, in a succession of rented houses in
Quezon City and Manila. This was with the knowledge of William Liyaos legitimate children,

Tita Rose L. Tan and Linda ChristinaLiyao-Ortiga, from his subsisting marriage with Juanita
Tanhoti Liyao. Tita Rose and Christina were both employed at the Far East Realty Investment,
Inc. of which Corazon and William were then vice president and president, respectively.
Sometime in 1974, Corazon bought a lot from Ortigas and Co. which required the signature of
her husband, Ramon Yulo, to show his consent to the aforesaid sale. She failed to secure his
signature and, had never been in touch with him despite the necessity to meet him. Upon the
advice of William Liyao, the sale of the parcel of land located at the Valle Verde Subdivision was
registered under the name of Far East Realty Investment, Inc.
On June 9, 1975, Corazon gave birth to William Liyao, Jr. at the Cardinal Santos Memorial

Hospital. During her three (3) day stay at the hospital, William Liyao visited and stayed with
her and the new born baby, William, Jr. (Billy). All the medical and hospital expenses, food and
clothing were paid under the account of William Liyao. WilliamLiyao even asked his
confidential secretary, Mrs. Virginia Rodriguez, to secure a copy of Billys birth certificate. He
likewise instructed Corazon to open a bank account for Billy with the Consolidated Bank and
Trust Company and gave weekly amounts to be deposited therein. William Liyaowould bring
4

Billy to the office, introduce him as his good looking son and had their pictures taken together.

During the lifetime of William Liyao, several pictures were taken showing, among others,

William Liyao and Corazon together with Billys godfather, Fr. Julian Ruiz, William Liyaos
legal staff and their wives while on vacation in Baguio. Corazon also presented pictures in court
7

to prove that that she usually accompanied William Liyao while attending various social

gatherings and other important meetings. During the occasion of William Liyaos last birthday
8

on November 22, 1975 held at the Republic Supermarket, William Liyao expressly acknowledged
Billy as his son in the presence of Fr. Ruiz, Maurita Pasion and other friends and said, Hey, look
I am still young, I can still make a good looking son. Since birth, Billy had been in continuous
possession and enjoyment of the status of a recognized and/or acknowledged child of
William Liyao by the latters direct and overt acts. WilliamLiyao supported Billy and paid for
9

his food, clothing and other material needs. However, after William Liyaos death, it was
Corazon who provided sole support to Billy and took care of his tuition fees at La Salle,
Greenhills. WilliamLiyao left his personal belongings, collections, clothing, old newspaper
clippings and laminations at the house in White Plains where he shared his last moments with
Corazon.
Testifying for the petitioner, Maurita Pasion declared that she knew both Corazon G. Garcia
and William Liyaowho were godparents to her children. She used to visit Corazon and

William Liyao from 1965-1975. The two children of Corazon from her marriage to Ramon Yulo,
namely, Bernadette and Enrique (Ike), together with some housemaids lived with Corazon and
William Liyao as one family. On some occasions like birthdays or some other celebrations,

Maurita would sleep in the couples residence and cook for the family. During these occasions,
she would usually see William Liyao in sleeping clothes. When Corazon, during the latter part of
1974, was pregnant with her child Billy, Maurita often visited her three (3) to four (4) times a
week in Greenhills and later on in White Plains where she would often see William Liyao. Being
a close friend of Corazon, she was at the Cardinal Santos Memorial Hospital during the birth of
Billy. She continuously visited them at White Plains and knew that William Liyao, while living
with her friend Corazon, gave support by way of grocery supplies, money for household expenses
and matriculation fees for the two (2) older children, Bernadette and Enrique. During
William Liyaos birthday on November 22, 1975 held at the Republic Supermaket Office, he was
carrying Billy and told everybody present, including his two (2) daughters from his legal
marriage, Look, this is my son, very guapo and healthy. He then talked about his plan for the
baptism of Billy before Christmas. He intended to make it engrande and make the bells of San
Sebastian Church ring. Unfortunately, this did not happen since William Liyao passed away on
10

11

December 2, 1975. Maurita attended Mr. Liyaos funeral and helped Corazon pack his clothes.

She even recognized a short sleeved shirt of blue and gray which Mr. Liyao wore in a
12

photograph as well as another shirt of lime green as belonging to the deceased. A note was also
presented with the following inscriptions: To Cora, Love From William. Maurita remembered
having invited the couple during her mothers birthday where the couple had their pictures taken
while exhibiting affectionate poses with one another. Maurita knew that Corazon is still married
to Ramon Yulo since her marriage has not been annulled nor is Corazon legally separated from
13

14

15

her said husband. However, during the entire cohabitation of William Liyao with Corazon
Garcia, Maurita had not seen Ramon Yulo or any other man in the house when she usually
visited Corazon.
Gloria Panopio testified that she is the owner of a beauty parlor and that she knew that Billy
is the son of her neighbors, William Liyao and Corazon Garcia, the latter being one of her
customers. Gloria met Mr. Liyao at Corazons house in Scout Delgado, Quezon City in the

Christmas of 1965. Gloria had numerous occasions to see Mr. Liyao from 1966 to 1974 and even
more so when the couple transferred to White Plains, Quezon City from 1974-1975. At the time
Corazon was conceiving, Mr. Liyao was worried that Corazon might have another miscarriage so
he insisted that she just stay in the house, play mahjong and not be bored. Gloria taught Corazon
how to play mahjong and together with Atty. Brillantes wife and sister-in-law, had mahjong
sessions among themselves. Gloria knew that Mr. Liyao provided Corazon with a rented house,
paid the salary of the maids and food for Billy. He also gave Corazon financial support. Gloria
knew that Corazon is married but is separated from Ramon Yulo although Gloria never had any
occasion to see Mr. Yulo with Corazon in the house where Mr. Liyao and Corazon lived.
Enrique Garcia Yulo testified that he had not heard from his father, Ramon Yulo, from the
time that the latter abandoned and separated from his family. Enrique was about six (6) years
old when William Liyao started to live with them up to the time of the latters death on

December 2, 1975. Mr. Liyao was very supportive and fond of Enriques half brother, Billy. He
identified several pictures showing Mr. Liyao carrying Billy at the house as well as in the office.
Enriques testimony was corroborated by his sister, Bernadette Yulo, who testified that the
various pictures showing Mr. Liyao carrying Billy could not have been superimposed and that
the negatives were in the possession of her mother, Corazon Garcia.
Respondents, on the other hand, painted a different picture of the story.
Linda Christina Liyao-Ortiga stated that her parents, William Liyao and Juanita Tanhoti-

Liyao, were legally married. Linda grew up and lived with her parents at San Lorenzo Village,
16

Makati, Metro Manila until she got married; that her parents were not separated legally or in
fact and that there was no reason why any of her parents would institute legal separation
proceedings in court. Her father lived at their house in San Lorenzo Village and came home
regularly. Even during out of town business trips or for conferences with the lawyers at the office,
her father would change his clothes at home because of his personal hygiene and habits. Her
father reportedly had trouble sleeping in other peoples homes. Linda described him as very
conservative and a strict disciplinarian. He believed that no amount of success would compensate
for failure of a home. As a businessman, he was very tough, strong, fought for what he believed in
and did not give up easily. He suffered two strokes before the fatal attack which led to his death
on December 2, 1975. He suffered a stroke at the office sometime in April-May 1974 and was
attended by Dr. Santiago Co. He then stayed in the house for two (2) to three (3) months for his
therapy and acupuncture treatment. He could not talk, move, walk, write or sign his name. In
the meantime, Linda and her sister, Tita Rose Liyao-Tan, ran the office. She handled the

collection of rents while her sister referred legal matters to their lawyers. William Liyao was
bedridden and had personally changed. He was not active in business and had dietary
restrictions. Mr. Liyao also suffered a milder stroke during the latter part of September to
October 1974. He stayed home for two (2) to three (3) days and went back to work. He felt
depressed, however, and was easily bored. He did not put in long hours in the office unlike before
and tried to spend more time with his family.
Linda testified that she knew Corazon Garcia is still married to Ramon Yulo. Corazon was not
legally separated from her husband and the records from the Local Civil Registrar do not
indicate that the couple obtained any annulment of their marriage. Once in 1973, Linda chanced
upon Ramon Yulo picking up Corazon Garcia at the company garage. Immediately after the
death of Lindas father, Corazon went to Lindas office for the return of the formers alleged
investments with the Far East Realty Investment, Inc. including a parcel of land sold by Ortigas
and Company. Linda added that Corazon, while still a Vice-President of the company, was able to
take out documents, clothes and several laminated pictures of William Liyaofrom the office.
17

There was one instance when she was told by the guards, Mrs. Yulo is leaving and taking out
things again. Linda then instructed the guards to bring Mrs. Yulo to the office upstairs but her
sister, Tita Rose, decided to let Corazon Garcia go. Linda did not recognize any article of clothing
18

which belonged to her father after having been shown three (3) large suit cases full of mens
clothes, underwear, sweaters, shorts and pajamas.
Tita Rose Liyao-Tan testified that her parents were legally married and had never been
separated. They resided at No. 21 Hernandez Street, San Lorenzo Village, Makati up to the time
of her fathers death on December 2, 1975. Her father suffered two (2) minor cardio-vascular
arrests (CVA) prior to his death. During the first heart attack sometime between April and May
1974, his speech and hands were affected and he had to stay home for two (2) to three (3) months
under strict medication, taking aldomet, serpacil and cifrometwhich were prescribed by Dr.
Bonifacio Yap, for high blood pressure and cholesterol level control. Tita Rose testified that after
19

20

the death of Mr. Liyao, Corazon Garcia was paid the amount of One Hundred Thousand Pesos
(P100,000.00) representing her investment in the Far East Realty Investment, Inc. Tita Rose also
stated that her family never received any formal demand that they recognize a certain
William Liyao, Jr. as an illegitimate son of her father, William Liyao. After assuming the
position of President of the company, Tita Rose did not come across any check signed by her late
father representing payment to lessors as rentals for the house occupied by Corazon Garcia. Tita
Rose added that the laminated photographs presented by Corazon Garcia are the personal
collection of the deceased which were displayed at the latters office.
The last witness who testified for the respondents was Ramon Pineda, driver and bodyguard of
William Liyaofrom 1962 to 1974, who said that he usually reported for work at San Lorenzo
Village, Makati to pick up his boss at 8:00 oclock in the morning. At past 7:00 oclock in the
evening, either Carlos Palamigan or Serafin Villacillo took over as night shift driver. Sometime
between April and May 1974, Mr. Liyao got sick. It was only after a month that he was able to
report to the office. Thereafter, Mr. Liyao was not able to report to the office regularly. Sometime

in September 1974, Mr. Liyao suffered from another heart attack. Mr. Pineda added that as a
driver and bodyguard of Mr. Liyao, he ran errands for the latter among which was buying
medicine for him like capasid and aldomet. On December 2, 1975, Mr. Pineda was called inside
the office of Mr. Liyao. Mr. Pineda saw his employer leaning on the table. He tried to massage
Mr. Liyaos breast and decided later to carry and bring him to the hospital but Mr. Liyao died
upon arrival thereat. Mrs. Liyao and her daughter, LindaLiyao-Ortiga were the first to arrive
at the hospital.
Mr. Pineda also declared that he knew Corazon Garcia to be one of the employees of the
Republic Supermarket. People in the office knew that she was married. Her husband, Ramon
Yulo, would sometimes go to the office. One time, in 1974, Mr. Pineda saw Ramon Yulo at the
office garage as if to fetch Corazon Garcia. Mr. Yulo who was also asking about cars for sale,
represented himself as car dealer.
Witness Pineda declared that he did not know anything about the claim of Corazon. He freely
relayed the information that he saw Mr. Yulo in the garage of Republic Supermarket once in 1973

and then in 1974 to Atty. Quisumbing when he went to the latters law office. Being the driver of
Mr. Liyao for a number of years, Pineda said that he remembered having driven the group of
Mr. Liyao, Atty. Astraquillo, Atty. Brillantes, Atty. Magno and Atty. Laguio to Baguio for a

vacation together with the lawyers wives. During his employment, as driver of Mr. Liyao, he
does not remember driving for Corazon Garcia on a trip to Baguio or for activities like shopping.
On August 31, 1993, the trial court rendered a decision, the dispositive portion of which reads
as follows:
WHEREFORE, judgment is hereby rendered in favor of the plaintiff and against the defendants as
follows:
1. (a)Confirming the appointment of Corazon G. Garcia as the guardian ad litem of the minor
William Liyao, Jr.;
2. (b)Declaring the minor William Liyao, Jr. as the illegitimate (spurious) son of the deceased
William Liyao;
3. (c)Ordering the defendants Juanita Tanhoti Liyao, Pearl Margaret L. Tan, Tita Rose L. Tan and
Christian Liyao, to recognize, and acknowledge the minor William Liyao, Jr. as a compulsory
heir of the deceased William Liyao, entitled to all succesional rights as such; and
4. (d)Costs of suit.

21

In ruling for herein petitioner, the trial court said it was convinced by preponderance of evidence
that the deceased William Liyao sired William Liyao, Jr. since the latter was conceived at the
time when Corazon Garcia cohabited with the deceased. The trial court observed that herein
petitioner had been in continuous possession and enjoyment of the status of a child of the
deceased by direct and overt acts of the latter such as securing the birth certificate of petitioner
through his confidential secretary, Mrs. Virginia Rodriguez; openly and publicly acknowledging
petitioner as his son; providing sustenance and even introducing herein petitioner to his
legitimate children.
The Court of Appeals, however, reversed the ruling of the trial court saying that the law favors
the legitimacy rather than the illegitimacy of the child and the presumption of legitimacy is
thwarted only on ethnic ground and by proof that marital intimacy between husband and wife
was physically impossible at the period cited in Article 257 in relation to Article 255 of the Civil
Code. The appellate court gave weight to the testimonies of some witnesses for the respondents
that Corazon Garcia and Ramon Yulo who were still legally married and have not secured legal
separation, were seen in each others company during the supposed time that Corazon cohabited
with the deceased William Liyao. The appellate court further noted that the birth certificate and
the baptismal certificate of WilliamLiyao, Jr. which were presented by petitioner are not

sufficient to establish proof of paternity in the absence of any evidence that the deceased,
William Liyao, had a hand in the preparation of said certificates and considering that his
signature does not appear thereon. The Court of Appeals stated that neither do family pictures
constitute competent proof of filiation. With regard to the passbook which was presented as
evidence for petitioner, the appellate court observed that there was nothing in it to prove that the
same was opened by William Liyao for either petitioner or Corazon Garcia since William Liyaos
signature and name do not appear thereon.
His motion for reconsideration having been denied, petitioner filed the present petition.
It must be stated at the outset that both petitioner and respondents have raised a number of
issues which relate solely to the sufficiency of evidence presented by petitioner to establish his
claim of filiation with the late William Liyao. Unfortunately, both parties have consistently
overlooked the real crux of this litigation: May petitioner impugn his own legitimacy to be able to
claim from the estate of his supposed father, William Liyao?
We deny the present petition.
Under the New Civil Code, a child born and conceived during a valid marriage is presumed to
be legitimate. The presumption of legitimacy of children does not only flow out from a
declaration contained in the statute but is based on the broad principles of natural justice and
the supposed virtue of the mother. The presumption is grounded in a policy to protect innocent
offspring from the odium of illegitimacy.
22

23

The presumption of legitimacy of the child, however, is not conclusive and consequently, may
be overthrown by evidence to the contrary. Hence, Article 255 of the New Civil Code provides:
24

Article 255. Children born after one hundred and eighty days following the celebration of the marriage,
and before three hundred days following its dissolution or the separation of the spouses shall be presumed
to be legitimate.
Against this presumption no evidence shall be admitted other than that of the physical impossibility of
the husbands having access to his wife
within the first one hundred and twenty days of the three hundred which preceded the birth of the child.
This physical impossibility may be caused:
1. 1)By the impotence of the husband;
2. 2)By the fact that husband and wife were living separately in such a way that access was not
possible;
3. 3)By the serious illness of the husband.

Petitioner insists that his mother, Corazon Garcia, had been living separately for ten (10) years
from her husband, Ramon Yulo, at the time that she cohabited with the late William Liyao and
it was physically impossible for her to have sexual relations with Ramon Yulo when petitioner
was conceived and born. To bolster his claim, petitioner presented a document entitled, Contract
of Separation, executed and signed by Ramon Yulo indicating a waiver of rights to any and all
claims on any property that Corazon Garcia might acquire in the future.
25

26

The fact that Corazon Garcia had been living separately from her husband, Ramon Yulo, at
the time petitioner was conceived and born is of no moment. While physical impossibility for the
husband to have sexual intercourse with his wife is one of the grounds for impugning the
legitimacy of the child, it bears emphasis that the grounds for impugning the legitimacy of the
child mentioned in Article 255 of the Civil Code may only be invoked by the husband, or in proper
cases, his heirs under the conditions set forth under Article 262 of the Civil Code. Impugning the
legitimacy of the child is a strictly personal right of the husband, or in exceptional cases, his
heirs for the simple reason that he is the one directly confronted with the scandal and ridicule
which the infidelity of his wife produces and he should be the one to decide whether to conceal
that infidelity or expose it in view of the moral and economic interest involved. It is only in
exceptional cases that his heirs are allowed to contest such legitimacy. Outside of these cases,
noneeven his heirscan impugn legitimacy; that would amount to an insult to his memory.
27

28

29

It is therefor clear that the present petition initiated by Corazon G. Garcia as guardian ad
litem of the then minor, herein petitioner, to compel recognition by respondents of petitioner
William Liyao, Jr, as the illegitimate son of the late William Liyao cannot prosper. It is settled
that a child born within a valid marriage is presumed legitimate even though the mother may
have declared against its legitimacy or may have been sentenced as an adulteress. We cannot
allow petitioner to maintain his present petition and subvert the clear mandate of the law that
only the husband, or in exceptional circumstances, his heirs, could impugn the legitimacy of a
child born in a valid and subsisting marriage. The child himself cannot choose his own filiation. If
the husband, presumed to be the father does not impugn the legitimacy of the child, then the
status of the child is fixed, and the latter cannot choose to be the child of his mothers alleged
paramour. On the other hand, if the presumption of legitimacy is overthrown, the child cannot
elect the paternity of the husband who successfully defeated the presumption.
30

31

Do the acts of Enrique and Bernadette Yulo, the undisputed children of Corazon Garcia with
Ramon Yulo, in testifying for herein petitioner amount to impugnation of the legitimacy of the
latter?
We think not. As earlier stated, it is only in exceptional cases that the heirs of the husband are
allowed to contest the legitimacy of the child. There is nothing on the records to indicate that
Ramon Yulo has already passed away at the time of the birth of the petitioner nor at the time of
the initiation of this proceedings. Notably, the case at bar was initiated by petitioner himself

through his mother, Corazon Garcia, and not through Enrique and Bernadette Yulo. It is settled
that the legitimacy of the child can be impugned only in a direct action brought for that purpose,
by the proper parties and within the period limited by law.
Considering the foregoing, we find no reason to discuss the sufficiency of the evidence
presented by both parties on the petitioners claim of alleged filiation with the late
William Liyao. In any event, there is no clear, competent and positive evidence presented by the
petitioner that his alleged father had admitted or recognized his paternity.
WHEREFORE, the instant petition is DENIED. The assailed decision of the Court of Appeals
in CA-G.R. CV No. 45394 is hereby AFFIRMED. No costs.
SO ORDERED.
Bellosillo (Chairman), Mendoza, Quisumbing andBuena, JJ., concur.
Petition denied, judgment affirmed.
Notes.For the success of an action to establish illegitimate filiation under second paragraph
of Art. 172 of the Family Code, a high standard of proof is requiredspecifically, to prove open
and continuous possession of the status of an illegitimate child, there must be evidence of the
manifestation of the permanent intention of the supposed father to consider the child as his, by
continuous and clear manifestations of parental affection and care, which cannot be attributed to
pure charity. (Jison vs. Court of Appeals,286 SCRA 286 [1998])
There is perhaps no presumption of the law more firmly established and founded on sounder
morality and more convincing reason than the presumption that children born in wedlock are
legitimate; Upon the expiration of the periods set forth in Article 170, and in proper cases Article
171, of the Family Code, the action to impugn the legitimacy of a child would no longer be legally
feasible and the status conferred by the presumption becomes fixed and unassailable. (De Jesus
vs. Estate of Decedent Juan Gamboa Dizon, 366 SCRA 499 [2001])
Article 263 of the Civil Code refers to an action to impugn the legitimacy of a child, to assert and
prove that a person is not a mans child by his wifeit does not refer to situations where a child
is alleged not to be the child at all of a particular couple. (Labagala vs. Santiago, 371 SCRA
360[2001])
July 31, 2009.G.R. No. 177728.*
JENIE SAN JUAN DELA CRUZ and minor CHRISTIAN DELA CRUZ AQUINO,
represented by JENIE SAN JUAN DELA CRUZ, petitioners, vs. RONALD PAUL S. GRACIA, in
his capacity as City Civil Registrar of Antipolo City, respondent.

For several months in 2005, then 21-year old petitioner Jenie San Juan Dela Cruz (Jenie) and
then 19-year old Christian Dominique Sto. Tomas Aquino (Dominique) lived together as husband
and wife without the benefit of marriage. They resided in the house of Dominiques parents
Domingo B. Aquino and Raquel Sto. Tomas Aquino at Pulang-lupa, Dulumbayan, Teresa, Rizal.
On September 4, 2005, Dominique died.1 After almost two months, or on November 2, 2005,
Jenie, who continued to live with Dominiques parents, gave birth to her herein co-petitioner
minor child Christian Dela Cruz Aquino at the Antipolo Doctors Hospital, Antipolo City.
Jenie applied for registration of the childs birth, using Dominiques surname Aquino, with the
Office of the City Civil Registrar, Antipolo City, in support of which she submitted the
childs Certificate of Live Birth,2 Affidavit to Use the Surname of the Father 3 (AUSF) which she had
executed and signed, and Affidavit of Acknowledgmentexecuted by Dominiques father Domingo
Butch Aquino.4Both affidavits attested, inter alia, that during the lifetime of Dominique, he had
continuously acknowledged his yet unborn child, and that his paternity had never been
questioned. Jenie attached to the AUSF a document entitled AUTOBIOGRAPHY which
Dominique, during his lifetime, wrote in his own handwriting, the pertinent portions of which
read:
AQUINO, CHRISTIAN DOMINIQUE S.T.
AUTOBIOGRAPHY
IM CHRISTIAN DOMINIQUE STO. TOMAS AQUINO, 19 YEARS OF AGE TURNING 20 THIS
COMING OCTOBER 31, 2005.5 I RESIDE AT PULANG-LUPA STREET BRGY. DULUMBAYAN,
TERESA, RIZAL. I AM THE YOUNGEST IN OUR FAMILY. I HAVE ONE BROTHER NAMED JOSEPH
BUTCH STO. TOMAS AQUINO. MY FATHERS NAME IS DOMINGO BUTCH AQUINO AND MY
MOTHERS
NAME
IS
RAQUEL
STO.
TOMAS
AQUINO.
x x x.
xxxx
AS OF NOW I HAVE MY WIFE NAMED JENIE DELA CRUZ. WE MET EACH OTHER IN OUR
HOMETOWN, TEREZA RIZAL. AT FIRST WE BECAME GOOD FRIENDS, THEN WE FELL IN LOVE
WITH EACH OTHER, THEN WE BECAME GOOD COUPLES. AND AS OF NOW SHE IS
PREGNANT AND FOR THAT WE LIVE TOGETHER IN OUR HOUSE NOW. THATS ALL. (Emphasis
6

and underscoring supplied)

By letter dated November 11, 2005,7 the City Civil Registrar of Antipolo City, Ronald Paul S.
Gracia (respondent), denied Jenies application for registration of the childs name in this wise:

7.Rule 7 of Administrative Order No. 1, Series of 2004 (Implementing Rules and

Regulations of Republic Act No. 9255 [An Act Allowing Illegitimate Children to Use
the Surname of their Father, Amending for the Purpose, Article 176 of Executive
Order No. 209, otherwise Known as the Family Code of the Philippines]) provides
that:
7.RuleRequirements for the Child to Use the Surname of the Father
For Births Not Yet Registered7.1
7.1.1The
illegitimate
child
shall
use
the
father
if
a
public
document
the
father,
either
at
the
back
of
Live Birth or in a separate document.
7.1.2If

admission
of
paternity
is
private
handwritten
instrument,
use
the
surname
of
the
registration
is
supported
documents:

the
is
the

surname
executed
Certificate

of
by
of

made
through
a
the
child
shall
father,
provided
the
by
the
following

a.AUSF8
b.Consent of the child, if 18 years old and over at the time of the filing of the
document.
c.Any two of the following documents showing clearly the paternity between the
father and the child:
1.Employment records
2.SSS/GSIS records
3.Insurance
4.Certification of membership in any organization
5.Statement of Assets and Liability
6.Income Tax Return (ITR)
In summary, the child cannot use the surname of his father because he was born out of wedlock
and the father unfortunately died prior to his birth and has no more capacity to acknowledge his

paternity to the child (either through the back of Municipal Form No. 102Affidavit of
Acknowledgment/Admission of Paternityor the Authority to Use the Surname of the Father).
(Underscoring supplied)
Jenie and the child promptly filed a complaint 9 for injunction/registration of name against
respondent before the Regional Trial Court of Antipolo City, docketed as SCA Case No. 06-539,
which was raffled to Branch 73 thereof. The complaint alleged that, inter alia, the denial of
registration of the childs name is a violation of his right to use the surname of his deceased
father under Article 176 of the Family Code, as amended by Republic Act (R.A.) No.
9255,10 which provides:
Illegitimate children shall use the surname and shall be under the parental authority of their mother,
and shall be entitled to support in conformity with this Code. However,176.Articleillegitimate children
may use the surname of their father if their filiation has been expressly recognized by the father through
the record of birth appearing in the civil register, or when an admission in a public document
or private handwritten instrument is made by the father. Provided, the father has the right to
institute an action before the regular courts to prove non-filiation during his lifetime. The legitime of each
illegitimate child shall consist of one-half of the legitime of a legitimate child. (Emphasis and
underscoring supplied)

They maintained that the Autobiography executed by Dominique constitutes an admission of

paternity in a private handwritten instrument within the contemplation of the above-quoted
provision of law.
For failure to file a responsive pleading or answer despite service of summons, respondent was
declared in default.
Jenie thereupon presented evidence ex-parte. She testified on the circumstances of her
common-law relationship with Dominique and affirmed her declarations in her AUSF that
during his lifetime, he had acknowledged his yet unborn child. 11 She offered Dominiques
handwritten Autobiography (Exhibit A) as her documentary evidence-in-chief. 12 Dominiques
lone brother, Joseph Butch S.T. Aquino, also testified, corroborating Jenies declarations. 13
By Decision14 of April 25, 2007, the trial court dismissed the complaint for lack of cause of
action as the Autobiography was unsigned, citing paragraph 2.2, Rule 2 (Definition of Terms)
of Administrative Order (A.O.) No. 1, Series of 2004 (the Rules and Regulations
Governing the Implementation of R.A. 9255) which defines private handwritten document
through which a father may acknowledge an illegitimate child as follows:
Private handwritten instrumentan instrument executed in the handwriting of the father
and2.2 duly signed by him where heexpressly recognizes paternity to the child. (Underscoring
supplied)

The trial court held that even if Dominique was the author of the handwritten Autobiography,
the same does not contain any express recognition of paternity.
Hence, this direct resort to the Court via Petition for Review on Certiorari raising this purely
legal issue of:
WHETHER OR NOT THE UNSIGNED HANDWRITTEN STATEMENT OF THE DECEASED
FATHER OF MINOR CHRISTIAN DELA CRUZ CAN BE CONSIDERED AS A RECOGNITION OF
PATERNITY IN A PRIVATE HANDWRITTEN INSTRUMENT WITHIN THE CONTEMPLATION OF
ARTICLE 176 OF THE FAMILY CODE, AS AMENDED BY R.A. 9255, WHICH ENTITLES THE SAID
MINOR TO USE HIS FATHERS SURNAME. (Underscoring supplied)
15

Petitioners contend that Article 176 of the Family Code, as amended, does not expressly
require that the private handwritten instrument containing the putative fathers admission of
paternity must be signed by him. They add that the deceaseds handwritten Autobiography,
though unsigned by him, is sufficient, for the requirement in the above-quoted paragraph 2.2 of
the Administrative Orderthat the admission/recognition must be duly signed by the father is
void as it unduly expanded the earlier-quoted provision of Article 176 of the Family Code. 16
Petitioners further contend that the trial court erred in not finding that Dominiques
handwritten Autobiography contains a clear and unmistakable recognition of the childs
paternity.17
In its Comment, the Office of the Solicitor General (OSG) submits that respondents position,
as affirmed by the trial court, is in consonance with the law and thus prays for the dismissal of
the petition. It further submits that Dominiques Autobiography merely acknowledged Jenies
pregnancy but not [his] paternity of the child she was carrying in her womb. 18
Article 176 of the Family Code, as amended by R.A. 9255, permits an illegitimate child to use
the surname of his/her father if the latter had expressly recognized him/her as his offspring
through the record of birth appearing in the civil register, or through an admission made in a
public or private handwritten instrument. The recognition made in any of these documents is, in
itself, a consummated act of acknowledgment of the childs paternity; hence, no separate action
for judicial approval is necessary.19
Article 176 of the Family Code, as amended, does not, indeed, explicitly state that the private
handwritten instrument acknowledging the childs paternity must be signed by the putative
father. This provision must, however, be read in conjunction with related provisions of the Family
Code which require that recognition by the father must bear his signature, thus:
Illegitimate children may establish their illegitimate filiation in the175.Art. same way and on the
same evidence as legitimate children.

xxxx
The filiation of172.Art legitimate children is established by any of the following:
The record of birth appearing in the civil register or a final judgment; or(1)
An admission of legitimate filiation in a public document or a(2) private handwritten instrument
and signed by the parent concerned.
x x x x (Emphasis and underscoring supplied)

That a father who acknowledges paternity of a child through a written instrument must affix
his signature thereon is clearly implied in Article 176 of the Family Code. Paragraph 2.2, Rule 2
of A.O. No. 1, Series of 2004, merely articulated such requirement; it did not unduly expand the
import of Article 176 as claimed by petitioners.
In the present case, however, special circumstances exist to hold that Dominiques
Autobiography, though unsigned by him, substantially satisfies the requirement of the law.
First, Dominique died about two months prior to the childs birth. Second, the relevant
matters in the Autobiography, unquestionably handwritten by Dominique, correspond to the
facts culled from the testimonial evidence Jenie proffered.20 Third, Jenies testimony
is corroboratedby the Affidavit of Acknowledgment of Dominiques father Domingo Aquino and
testimony of his brother Joseph Butch Aquino whose hereditary rights could be affected by the
registration of the questioned recognition of the child. These circumstances indicating
Dominiques paternity of the child give life to his statements in his Autobiography that JENIE
DELA CRUZ is MY WIFE as WE FELL IN LOVE WITH EACH OTHER and NOW SHE IS
PREGNANT AND FOR THAT WE LIVE TOGETHER.
In Herrera v. Alba,21 the Court summarized the laws, rules, and jurisprudence on establishing
filiation, discoursing in relevant part:
Laws, Rules, and Jurisprudence
Establishing Filiation
The relevant provisions of the Family Code provide as follows:
Illegitimate children may establish their illegitimate filiation in the same way and on the same
evidence as legitimate children.175.ART.
xxxx
The filiation of legitimate children is established by any of the following:172.ART.

The record of birth appearing in the civil register or a final judgment; or(1)
An admission of legitimate filiation in a public document or a private handwritten instrument
and signed by the parent concerned.(2)
In the absence of the foregoing evidence, the legitimate filiation shall be proved by:
The open and continuous possession of the status of a legitimate child; or(1)
Any other means allowed by the Rules of Court and special laws.(2)
The Rules on Evidence include provisions on pedigree. The relevant sections of Rule 130 provide:
39.SEC.Act or declaration about pedigree.The act or declaration of a person deceased, or unable to
testify, in respect to the pedigree of another person related to him by birth or marriage, may be received
in evidence where it occurred before the controversy, and the relationship between the two persons is
shown by evidence other than such act or declaration. The word pedigree includes relationship, family
genealogy, birth, marriage, death, the dates when and the places where these facts occurred, and the
names of the relatives. It embraces also facts of family history intimately connected with pedigree.
40.SEC.Family reputation or tradition regarding pedigree.The reputation or tradition existing in
a family previous to the controversy, in respect to the pedigree of any one of its members, may be received
in evidence if the witness testifying thereon be also a member of the family, either by consanguinity or
affinity. Entries in family bibles or other family books or charts, engraving on rings, family portraits and
the like, may be received as evidence of pedigree.
This Courts rulings further specify what incriminating acts are acceptable as evidence to establish
filiation. In Pe Lim v. CA, a case petitioner often cites, we stated that the issue of paternity still has to be
resolved by such conventional evidence as the relevant incriminating verbal and written acts by
the putative father. Under Article 278 of the New Civil Code, voluntary recognition by a parent shall be
made in the record of birth, a will, a statement before a court of record, or in any authentic writing.To
be effective, the claim of filiation must be made by the putative father himself and the writing
must be the writing of the putative father. A notarial agreement to support a child whose filiation is
admitted by the putative father was considered acceptable evidence. Letters to the mother vowing to be a
good father to the child and pictures of the putative father cuddling the child on various occasions,
together with the certificate of live birth, proved filiation. However, a student permanent record, a written
consent to a fathers operation, or a marriage contract where the putative father gave consent, cannot be
taken as authentic writing. Standing alone, neither a certificate of baptism nor family pictures are
sufficient to establish filiation. (Emphasis and underscoring supplied.)

In the case at bar, there is no dispute that the earlier quoted statements in Dominiques
Autobiography have been made and written by him. Taken together with the other relevant facts
extant hereinthat Dominique, during his lifetime, and Jenie were living together as commonlaw spouses for several months in 2005 at his parents house in Pulang-lupa, Dulumbayan,
Teresa, Rizal; she was pregnant when Dominique died on September 4, 2005; and about two

months after his death, Jenie gave birth to the childthey sufficiently establish that the child of
Jenie is Dominiques.
In view of the pronouncements herein made, the Court sees it fit to adopt the following rules
respecting the requirement of affixing the signature of the acknowledging parent in any private
handwritten instrument wherein an admission of filiation of a legitimate or illegitimate child is
made:
Where the private handwritten instrument is the lone piece of evidence submitted to prove
filiation, there should be strict compliance with the requirement that the same must be signed by
the acknowledging parent; and1)
Where the private handwritten instrument is2)accompanied by other relevant and
competent evidence, it suffices that the claim of filiation therein be shown to have been made and
handwritten by the acknowledging parent as it is merely corroborative of such other evidence.
Our laws instruct that the welfare of the child shall be the paramount consideration in
resolving questions affecting him.22 Article 3(1) of the United Nations Convention on the Rights of
a Child of which the Philippines is a signatory is similarly emphatic:
Article 3
In all actions concerning children, whether undertaken by public or private social welfare
institutions, courts of law, administrative authorities or legislative bodies, t1.he best interests of
the child shall be a primary consideration. (Underscoring supplied)
23

It is thus (t)he policy of the Family Code to liberalize the rule on the investigation of
the paternity and filiation of children, especially of illegitimate children x x x.24 Too, (t)he State
as parens patriae affords special protection to children from abuse, exploitation and other
conditions prejudicial to their development.25
In the eyes of society, a child with an unknown father bears the stigma of dishonor. It is to
petitioner minor childs best interests to allow him to bear the surname of the now deceased
Dominique and enter it in his birth certificate.
WHEREFORE, the petition is GRANTED. The City Civil Registrar of Antipolo City is
DIRECTED to immediately enter the surname of the late Christian Dominique Sto.
Tomas Aquino as the surname of petitioner minor Christian dela Cruz in his Certificate of Live
Birth, and record the same in the Register of Births.

G.R. No. 118464. December 21, 1998.

HEIRS OF IGNACIO CONTI AND ROSARIO CUARIO, petitioners, vs. COURT OF

APPEALS AND LYDIA S. REYES as Attorney-in-Fact of JOSEFINA S. REYES, BERNARDITA
S. PALILIO, HERMINIA S. PALILIO, REMEDIOS A. SAMPAYO, ILLUMINADA A. SAMPAYO,
ENRICO A. SAMPAYO, CARLOS A. SAMPAYO, GENEROSO C. SAMPAYO, MYRNA C.
SAMPAYO, ROSALINO C. SAMPAYO, MANUEL C. SAMPAYO, DELIA A. SAMPAYO,
CORAZON C. SAMPAYO, NILO C. SAMPAYO, and LOLITA A. SAMPAYO in her own behalf and
as Attorney-in-Fact of NORMA A. SAMPAYO, respondents.

This petition for review on certiorari seeks to reverse the 30 March 1994 Decision and 21
December 1994 Resolution of respondent Court of Appeals which upheld the right of private
respondents as heirs of Lourdes Sampayo to demand partition under Art. 494 of the Civil Code.
Lourdes Sampayo and Ignacio Conti, married to Rosario Cuario, were the co-owners of the
property in litigation consisting of a 539-square meter lot at the corner of Zamora and Abellanosa
Streets, Lucena City, covered by TCT No. T-15374, with a house erected thereon. On 17 March
1986 Lourdes Sampayo died intestate without issue. Subsequently, on 1 April 1987 private
respondents Josefina S. Reyes, Bernardita S. Palilio, Herminia S. Palilio, Remedios A. Sampayo,
Iluminada A. Sampayo, Enrico A. Sampayo, Carlos A. Sampayo, Generoso C. Sampayo, Myrna C.
Sampayo, Rosalina C. Sampayo, Manuel C. Sampayo, Delia A. Sampayo, Corazon C. Sampayo,
Nilo C. Sampayo, Lolita A. Sampayo and Norma A. Sampayo, all represented by their Attorneyin-Fact Lydia S. Reyes, with Lolita A. Sampayo acting also in her own behalf and as Attorney-inFact of Norma A. Sampayo, all claiming to be collateral relatives of the deceased Lourdes
Sampayo, filed an action for partition and damages before RTC-Br. 54, Lucena City.
1

The spouses Ignacio Conti and Rosario Cuario refused the partition on the ground that
private respondents failed to produce any document to prove that they were the rightful heirs of
Lourdes Sampayo. On 30 August 1987 Ignacio Conti died and was substituted as partydefendant by his children Asuncion, Francisco, Milagros, Joselito, Luisito, Diego and Teresita, all
surnamed Conti.
4

At the trial, private respondents presented Lydia Sampayo Reyes and Adelaida Sampayo to
prove that they were the collateral heirs of the deceased Lourdes Sampayo and therefore entitled
to her rights as co-owner of the subject lot. Bringing with her the original copy of her certificate
of live birth showing that her father was Inocentes Reyes and her mother was Josefina
Sampayo, Lydia Sampayo Reyes testified that she was one of the nieces of Lourdes Sampayo,
being the daughter of Josefina Sampayo, the only living sibling of Lourdes. Lydia also testified
that Lourdes had another sister named Remedios J. Sampayo who died in 1948, and two
brothers, Manuel J. Sampayo and Luis J. Sampayo who died in 1983 and 1960, respectively. To
prove that Josefina, Remedios, Luis and Manuel were siblings of Lourdes, their baptismal
certificates together with a photocopy of the birth certificate of Manuel Sampayo were offered in
6

evidence. These documents showed that their father and mother, like Lourdes Sampayo, were
Antonio Sampayo and Brigida Jaraza.
The certificates of baptism presented as part of the testimony of Lydia Sampayo Reyes were
prepared by Rev. Franklin C. Rivero who duly certified that all data therein written were in
accordance with the church records, hence, the lower left portion of the documents bearing the
seal of the church with the notation as to where the documents were logged in particular. The
baptismal certificates were presented in lieu of the birth certificates because the repository of
those documents, the Office of the Civil Registrar of Lucena City, had been razed by fire on two
separate occasions, 27 November 1974 and 30 August 1983, thus all civil registration records
were totally burned. On the other hand, a photocopy of Manuels birth certificate dated 25
October 1919 (Exh. I) showed that it was issued by the Local Civil Registrar of Lucena,
Tayabas (now Lucena City).
7

Adelaida Sampayo, widow of Manuel Sampayo, testified that her husband Manuel was the
brother of the deceased Lourdes, and with the death of Manuel, Luis and Remedios, the only
living sibling of Lourdes was Josefina.
10

To rebut whatever rights the alleged heirs of Lourdes had over the subject lot, petitioners
presented Rosario Cuario Conti, Rosa Ladines Malundas and Rodolfo Espineli. Rosario testified
that the subject property was co-owned in equal shares by her husband Ignacio Conti and
Lourdes Sampayo and that her family (Rosario) had been staying in the subject property since
1937. In fact, she said that her late husband Ignacio Conti paid for the real estate taxes and
spent for the necessary repairs and improvements thereon because by agreement Lourdes would
leave her share of the property to them.
11

12

13

14

However, as correctly found by the trial court, no will, either testamentary or holographic, was
presented by petitioners to substantiate this claim. Rosario also disclosed that when Lourdes
died her remains were taken by her relatives from their house. When cross-examined on who
those relatives were, she replied that the only one she remembered was Josefina since there were
many relatives who came. When asked who Josefinas parents were, she said she could not recall.
Likewise, when asked who the parents of Lourdes were, Rosario denied having ever known
them.
15

16

17

Another witness, Rosa Ladines Malundas, narrated that she used to be the neighbor and
hairdresser of the deceased Lourdes Sampayo who told her that upon her death her share would
go to Ignacio Conti whom she considered as her brother since both of them were adopted by
their foster parents Gabriel Cord and Anastacia Allarey Cord, although she admitted that she
did not know whether Lourdes had other relatives.
18

19

According to another witness, Rodolfo Espineli, he took pictures of the tombs bearing the
tombstones of Gabriel Cord and Anastacia Allarey Cord and Ignacio Conti as well as that of

Lourdes Sampayo who was supposed to have been interred beside her adoptive parents.
However, as revealed by Rosario during her direct examination, Lourdes was not in fact interred
there because her relatives took her remains.
20

On 4 April 1991 the trial court declared private respondents as the rightful heirs of Lourdes
Sampayo. It further ordered private respondents and petitioners to submit a project of partition
of the residential house and lot for confirmation by the court.
21

Petitioners elevated the case to the Court of Appeals contending that the trial court erred in
finding that private respondents were the heirs of Lourdes Sampayo and that they were entitled
to the partition of the lot and the improvements thereon.
22

On 30 March 1994 the Court of Appeals affirmed the assailed RTC decision and held
23

In the instant case, plaintiffs [now private respondents] were able to prove and establish by
preponderance of evidence that they are the collateral heirs of deceased Lourdes Sampayo and therefore
the lower court did not err in ordering herein plaintiffs [now private respondents] and defendants [now
petitioners] to submit a project of partition of the residential house and lot owned in common by the
deceased Lourdes Sampayo and defendant spouses Conti for confirmation by the court x x x x Considering
our earlier finding that the lower court did not err in declaring herein plaintiffs [now private respondents]
as heirs of deceased Sampayo and therefore entitled to inherit her property, the argument of the
appellants [now petitioners] that the plaintiffs [now private respondents] are not entitled to partition is
devoid of merit (insertions in [ ] supplied).

Respondent court also ruled, citing Hernandez v. Padua and Marabilles v. Quito, that a prior
and separate judicial declaration of heirship was not necessary and that private respondents
became the co-owners of the portion of the property owned and registered in the name of Lourdes
Sampayo upon her death and, consequently, entitled to the immediate possession thereof and all
other incidents/rights of ownership as provided for by law including the right to demand partition
under Art. 777 of the Civil Code, andIlustre v. Alaras Frondosa holding that the property
belongs to the heirs at the moment of death of the decedent, as completely as if he had executed
and delivered to them a deed for the same before his death.
24

25

26

27

28

The appellate court subsequently denying a motion for reconsideration upheld the probative
value of the documentary and testimonial evidence of private respondents and faulted petitioners
for not having subpoenaed Josefina if they believed that she was a vital witness in the
case. Hence, petitioners pursued this case arguing that a complaint for partition to claim a
supposed share of the deceased co-owner cannot prosper without prior settlement of the latters
estate and compliance with all legal requirements, especially publication, and private
respondents were not able to prove by competent evidence their relationship with the deceased.
29

30

There is no merit in the petition. A prior settlement of the estate is not essential before the
heirs can commence any action originally pertaining to the deceased as we explained in Quison v.
Salud
31

Claro Quison died in 1902. It was proven at the trial that the present plaintiffs are next of kin and heirs,
but it is said by the appellants that they are not entitled to maintain this action because there is no
evidence that any proceedings have been taken in court for the settlement of the estate of Claro Quison,
and that without such settlement, the heirs cannot maintain this action. There is nothing in this point. As
well by the Civil Code as by the Code of Civil Procedure, the title to the property owned by a person who
dies intestate passes at once to his heirs. Such transmission is, under the present law, subject to the
claims of administration and the property may be taken from the heirs for the purpose of paying debts
and expenses, but this does not prevent an immediate passage of the title, upon the death of the intestate,
from himself to his heirs. Without some showing that a judicial administrator had been appointed in
proceedings to settle the estate of Claro Quison, the right of the plaintiffs to maintain this action is
established.

Conformably with the foregoing and taken in conjunction with Arts. 777 and 494 of the Civil
Code, from the death of Lourdes Sampayo her rights as a co-owner, incidental to which is the
right to ask for partition at any time or to terminate the co-ownership, were transmitted to her
rightful heirs. In so demanding partition private respondents merely exercised the right
originally pertaining to the decedent, their predecessor-in-interest.
32

Petitioners theory as to the requirement of publication would have been correct had the action
been for the partition of the estate of Lourdes Sampayo, or if we were dealing with extrajudicial
settlement by agreement between heirs and the summary settlement of estates of small
value. But what private respondents are pursuing is the mere segregation of Lourdes one-half
share which they inherited from her through intestate succession. This is a simple case of
ordinary partition between co-owners. The applicable law in point is Sec. 1 of Rule 69 of the
Rules of Court
33

Sec. 1. Complaint in an action for partition of real estate.A person having the right to compel the
partition of real estate may do so as in this rule prescribed, setting forth in his complaint the nature and
extent of his title and an adequate description of the real estate of which partition is demanded and
joining as defendants all the other persons interested in the property.

A cursory reading of the aforecited rule shows that publication is not required as erroneously
maintained by petitioners. There are two (2) simultaneous issues in an action for partition. First,
whether the plaintiff is indeed a co-owner of the property sought to be partitioned, andsecond, if
answered in the affirmative, the manner of the division of the property, i.e., what portion should
go to which co-owner. Thus, in this case, we must determine whether private respondents, by
preponderance of evidence, have been able to establish that they are co-owners by way of
succession as collateral heirs of the late Lourdes Sampayo as they claim to be, either a sister, a
34

nephew or a niece. These, private respondents were able to prove in the trial court as well as
before respondent Court of Appeals.
Petitioners however insist that there was no such proof of filiation because: (a) mere
photocopies of birth certificates do not prove filiation; (b) certifications on non-availability of
records of birth do not prove filiation; (c) baptismal certificates do not prove filiation of alleged
collateral relatives of the deceased; and, (d) the testimonies of Lydia S. Reyes, alleged daughter of
Josefina Reyes, and Adelaida Sampayo, alleged sister-in-law of Josefina and Lourdes, were
incompetent as Lydia was made to testify on events which happened before her birth while
Adelaida testified on matters merely narrated to her.
35

We are not persuaded. Altogether, the documentary and testimonial evidence submitted are
competent and adequate proofs that private respondents are collateral heirs of Lourdes Sampayo.
Private respondents assert that they are co-owners of one-half (1/2) pro-indiviso share of the
subject property by way of legal or intestate succession.
Succession is a mode of acquisition by virtue of which the property, rights and obligations to
the extent of the value of the inheritance of a person are transmitted through his death to
another or others either by his will or by operation of law. Legal or intestate succession takes
place if a person dies without a will, or with a void will, or one which has subsequently lost its
validity. If there are no descendants, ascendants, illegitimate children, or a surviving spouse,
the collateral relatives shall succeed to the entire estate of the decedent. It was established
during the trial that Lourdes died intestate and without issue. Private respondents as sister,
nephews and nieces now claim to be the collateral relatives of Lourdes.
36

37

38

Under Art. 172 of the Family Code, the filiation of legitimate children shall be proved by any
other means allowed by the Rules of Court and special laws, in the absence of a record of birth or
a parents admission of such legitimate filiation in a public or private document duly signed by
the parent. Such other proof of ones filiation may be a baptismal certificate, a judicial admission,
a family Bible in which his name has been entered, common reputation respecting his pedigree,
admission by silence, the testimonies of witnesses and other kinds of proof admissible under Rule
130 of the Rules of Court. By analogy, this method of proving filiation may also be utilized in the
instant case.
39

40

Public documents are the written official acts, or records of the official acts of the sovereign
authority, official bodies and tribunals, and public officers, whether of the Philippines, or of a
foreign country. The baptismal certificates presented in evidence by private respondents are
public documents. Parish priests continue to be the legal custodians of the parish records and are
authorized to issue true copies, in the form of certificates, of the entries contained therein.
41

42

The admissibility of baptismal certificates offered by Lydia S. Reyes, absent the testimony of
the officiating priest or the official recorder, was settled in People v. Ritter, citingU.S. v. de
Vera (28 Phil. 105 [1914]), thus
43

x x x the entries made in the Registry Book may be considered as entries made in the course of the
business under Section 43 of Rule 130, which is an exception to the hearsay rule. The baptisms
administered by the church are one of its transactions in the exercise of ecclesiastical duties and recorded
in the book of the church during the course of its business.

It may be argued that baptismal certificates are evidence only of the administration of the
sacrament, but in this case, there were four (4) baptismal certificates which, when taken
together, uniformly show that Lourdes, Josefina, Remedios and Luis had the same set of parents,
as indicated therein. Corroborated by the undisputed testimony of Adelaida Sampayo that with
the demise of Lourdes and her brothers Manuel, Luis and sister Remedios, the only sibling left
was Josefina Sampayo Reyes, such baptismal certificates have acquired evidentiary weight to
prove filiation.
Petitioners objection to the photocopy of the certificate of birth of Manuel Sampayo was
properly discarded by the court a quo and respondent Court of Appeals. According to Sec. 3, par.
(1), Rule 130, of the Rules of Court, when the subject of inquiry is the contents of a document, no
evidence shall be admissible other than the original document itself except when the original has
been lost or destroyed or cannot be produced in court, without bad faith on the part of the offeror.
The loss or destruction of the original certificate of birth of Manuel J. Sampayo was duly
established by the certification issued by the Office of the Local Civil Registrar of Lucena City to
the effect that its office was completely destroyed by fire on 27 November 1974 and 30 August
1983, respectively, and as a consequence thereof, all civil registration records were totally
burned.
Apparently, there seems to be some merit in petitioners contention that the testimony of
Adelaida Sampayo cannot prove filiation for being hearsay considering that there was no
declaration ante litem motam as required by the rules,i.e., that the declaration relating to
pedigree was made before the controversy occurred. Nonetheless, petitioners made no move to
dispute her testimony in open court when she was mentioning who the brothers and sisters of
Lourdes were. As correctly observed by the trial court in explicit terms, the documentary and
testimonial evidence were not disputed by defendants (now petitioners). Notably, when Rosario
Cuario Conti took the witness stand, she admitted that she was not aware of the identities of the
parents of the deceased. Clearly, this runs counter to the relationship akin to filial bonding which
she professed she had enjoyed with the decedent. As wife of Ignacio Conti, she was supposedly a
sister-in-law of the deceased Lourdes Sampayo who regarded Ignacio as a brother. However, in
sum, we rule that all the pieces of evidence adduced, taken together, clearly preponderate to the
right of private respondents to maintain the action for partition. Absent any reversible error in
44

the assailed Decision and Resolution of the Court of Appeals, this petition for review on certiorari
will not lie.
WHEREFORE, the petition is DENIED. The assailed Decision dated 30 March 1994 and
Resolution dated 21 December 1994 of the Court of Appeals are AFFIRMED. Costs against
petitioners.
SO ORDERED.
Puno, Mendoza and Martinez, JJ., concur.
Petition denied, judgment affirmed.
Notes.Where two co-heirs acquired the shares of their co-heirs, only the two need to
participate in the extrajudicial settlement of estate. (Alejandrino vs. Court of Appeals, 295 SCRA
536 [1998])
The presence of illegitimate children of the deceased precludes succession by collateral
relatives to his estate. (Gonzales vs. Court of Appeals, 298 SCRA 322 [1998])
o0o

G.R. No. July163362. 8, 2015.*

ALEJANDRA ARADO HEIRS: JESUSA ARADO,VICTORIANO ALCORIZA, PEDRO ARADO, H

EIRS:JUDITHO ARADO, JENNIFER ARADO, BOBBIE ZITOARADO, SHIRLY ABAD, ANTON
IETA ARADO, NELSONSOMOZA, JUVENIL ARADO, NICETAS VENTULA, andNILA ARADO
, PEDRO ARADO, TOMASA V. ARADO,petitioners, vs. ANACLETO ALCORAN and ELENETTE
SUNJACO, respondents.
Under review on certiorari is the decision promulgated onFebruary 28, 2003,1 whereby the Cou
rt of Appeals (CA)affirmed the judgment rendered on January 15, 1997 by theRegional Trial Cou
rt, Branch 43, in Dumaguete City(RTC)2 dismissing the complaint and the counterclaim forbeing
without merit.
Antecedents
Raymundo Alcoran (Raymundo) was married toJoaquina Arado (Joaquina), and their marriag
e produced ason named Nicolas Alcoran (Nicolas).3 In turn, Nicolasmarried Florencia Limpahan (

Florencia),4 but their unionhad no offspring. During their marriage, however, Nicolashad an extra
marital affair with Francisca Sarita(Francisca), who gave birth to respondent Anacleto Alcoran(A
nacleto) on July 13, 19515 during the subsistence ofNicolas marriage to Florencia.6 In 1972, Anac
leto marriedElenette Sonjaco.7
Raymundo died in 1939, while Nicolas died in 1954.Likewise, Florencia died in 1960, and Joaq
uina in 1981.8
Florencia had three siblings, namely: Sulpicio, Brauliaand Veronica Limpahan.9 Joaquina had
four siblings, i.e.,Alejandra, Nemesio, Celedonia and Melania, all surnamedArado.10 Nemesio had
six children, namely: (1) Jesusa, whowas married to Victoriano Alcoriza; (2) Pedro, who wasmarri
ed to Tomasa Arado; (3) Teodorico; (4) Josefina; (5)Gliceria;11 and (6) Felicisima.12 During the pend
ency of thecase, Pedro died, and was substituted by his following heirs,to wit: (1) Juditho and his
spouse, Jennifer Ebrole; (2)Bobbie Zito and his spouse, Shirly Abad; (3) Juvenil and hisspouse, Ni
cetas Ventula; (4) Antonieta and her spouse,Nelson Somoza; and (5) Nila.
On January 14, 1992, Alejandra, Jesusa, Victoriano Alcoriza, Pedro and Tomasa filed in the R
TC a complaint forrecovery of property and damages (with application for awrit of preliminary m
andatory injunction) against Anacletoand Elenette.13 Named as unwilling co-plaintiffs wereSulpic
io, Braulia and Veronica Limpahan, along withTeodorico, Josefina, Gliceria and Felicisima.
The properties subject of the action were the following: (1)Lot No. 4100, covered by Original Ce
rtificate of Title (OCT)No. OV-1379; (2) Lot No. 4054, covered by OCT No. OV-1380; (3) a parcel of
land covered by Tax Declaration No.6065; (4) a parcel of land covered by Tax Declaration No.2047
0; (5) a parcel of land covered by Tax Declaration No.11-028-A; (6) Lot No. 709 covered by OCT No
. OV-7784; (7) aparcel of land covered by Tax Declaration No. 87-011-215-A;(8) a parcel of land co
vered by Tax Declaration No. 87-011-217; (9) Lot No. 5234 covered by OCT No. 3489-A; and (10)L
ot No. 5224 covered by Tax Declaration No. 8-201.14 Theparties later stipulated that the first eight
of the subject properties hadpreviously belonged to Raymundo, while the last two hadbeen the pa
raphernal properties of Joaquina.15
The plaintiffs alleged in their complaint that whenRaymundo died in 1939, his properties wer
e inherited by hisson Nicolas alone as it was during the period of the old CivilCode, where the sp
ouse could not inherit but only a share ofthe usufruct, which was extinguished upon the death of
theusufructuary;16 that when Nicolas died in 1954 withoutissue, half of his properties were inher
ited by his wife,Florencia, and the other half by his mother, Joaquina; thatFlorencia was, in turn,
succeeded by her siblings Sulpicio,Braulia and Veronica; that during the marriage of Nicolasand
Florencia, the former had an affair with Francisca, fromwhich affair Anacleto was born, but it wa
s unknown whetherhe was the spurious son of Nicolas; that Nicolas did notrecognize Anacleto as
his spurious child during Nicolaslifetime; hence, Anacleto was not entitled to inherit fromNicolas
; that nonetheless, Anacleto claimed entitlement tothe properties as the heir of Nicolas and by vir
tue of the willexecuted by Joaquina; that the will was void for not havingbeen executed according
to the formalities of the law, andthe same did not reflect the true intention of Joaquina; thatthe s
upposed testator did not acknowledge the will, whichwas not submitted for probate; that they we
re the rightfulheirs to the properties; that notwithstanding their repeateddemands for the return

of the properties, the defendantspersistently refused; that a writ of preliminary mandatoryinjunc

tion should issue to prevent the defendants fromfurther violating their rights in the properties; a
nd that thedefendants should be ordered to reconvey the properties,and to pay P20,000.00 as act
ual damages, P20,000.00 asmoral and exemplary damages, and P20,000.00 asattorneys fees.17
In their answer,18 the defendants (respondents herein)countered that Anacleto was expressly r
ecognized byNicolas as the latters son, a fact evidenced by the certificateof birth of Anacleto; tha
t Anacleto thus had the right toinherit the properties from Nicolas; that because Anacletowas stil
l too young when Nicolas died, the administration ofthe properties passed to Anacletos grandmot
her, Joaquina;that Joaquina executed a last will and testament inAnacletos favor; that Joaquina
s possession of the propertieswas for and in behalf of Anacleto, who had been living withher since
his birth; that such possession began in 1954 whenNicolas died and continued until Joaquinas d
eath in 1981;that Anacleto then took over the possession of the propertiesto the exclusion of all ot
hers; that granting for the sake ofargument that the plaintiffs had rights in the properties,the sa
me were already lost through laches, estoppel andprescription; and that Anacleto was the rightfu
l owner of theproperties, and his ownership and possession should not bedisturbed.
By way of counterclaim, the defendants prayed that theplaintiffs be ordered to pay P50,000.00
as moral damages,P1,000.00 as initial expenses as costs of this litigationwhich will increase as t
he case progresses19 and P10,000.00as attorneys fees.
Veronica Limpahan and Sulpicio Limpahan likewise filed their answer20 to the complaint,
stating that they were not interested in pursuing any claim of ownership in the properties; that
assuming that they were entitled, they were abandoning their rights, interests, title and
participation in the properties; and that they be excluded from further court processes.
Judgment of the RTC
On January 15, 1997, the RTC rendered judgment,decreeing thusly:
Wherefore, premises considered, judgment is hereby rendereddismissing the complaint and the counte
rclaim for lack of merit.
Costs against the plaintiffs.
SO ORDERED.
21

The RTC opined that Anacleto established that he wasreally the acknowledged illegitimate so
n of Nicolas. It citedthe certificate of birth of Anacleto (Exhibit 4) and Page 53,Book 4, Register N
o. 214 of the Register of Births of theMunicipality of Bacong (Exhibit 3), which proved thatNicola
s had himself caused the registration of Anacletosbirth by providing the details thereof and indic
ating that hewas the father of Anacleto. It observed that the name ofNicolas appeared under the
column Remarks in theregister of births, which was the space provided for the nameof the infor
mant; that because the plaintiffs did not presentevidence to refute the entry in the register of bir
ths, theentry became conclusive with respect to the facts containedtherein; that Anacletos claim
of recognition was bolsteredby his baptismal certificate (Exhibit F), in which wasindicated that hi
s parents were Nicolas Alcoran andFrancisca Sarita; that also presented was a picture takenduri

ng the wake of Nicolas (Exhibit 5) showing the youngAnacleto being carried by Joaquina, and als
o Nicolas wife,Florencia; that in addition, the school records of Anacleto(Exhibit 6) showed that J
oaquina stood as his guardianduring his grade school years; that when Anacleto gotmarried, it w
as Joaquina who gave consent to his marriagebecause he was then still a minor (Exhibit 8); and t
hatJoaquina executed her will in 1978 (Exhibit 9), bequeathing the subject properties to Anacleto
, but the willwas yet to be probated.
As the case was filed during the effectivity of the Family
Code, the RTC ruled that Articles 172,22 17323 and 17524 ofthe Family
Code allowed Anacleto to establish his filiationduring his lifetime through the record of his birth
appearingin the civil register. It further ruled that because there wereno legitimate children of N
icolas who contested Anacletosright to inherit, the rule on the separation of the legitimatefrom t
he illegitimate family was rendered irrelevant; andthat, accordingly, Anacleto was entitled to pos
sess thesubjectproperties upon having established that he was theacknowledged illegitimate son
of Nicolas. Consequently, italso dismissed the defendants counterclaim for lack ofsufficient basis.
The plaintiffs appealed to the CA.25
Decision of the CA
On February 28, 2003, the CA promulgated its decision,26affirming the judgment of the RTC in
this wise:
WHEREFORE, premises considered, the instant appeal is herebyDISMISSED. Accordingly, the Decisi
on of the Regional Trial Courtof Dumaguete City, Branch 43 stands.

The CA sustained the ruling of the RTC to the effect thatAnacleto was an acknowledged illegit
imate son of Nicolas. Itagreed that the Register of Births of the Municipality ofBacong, Negros O
riental showed that Nicolas was the fatherof Anacleto, and that the former had supplied theinfor
mation on the latters birth. It declared that theplaintiffs did not rebut the filiation of Anacleto b
y contraryevidence; that the baptismal certificate of Anacleto and thepicture taken during the wa
ke of Nicolas further showedthat Anacleto had been acknowledged by Nicolas; that basedon the A
rticles 172, 173 and 175 of the Family
Code, the lawapplicable at the time of the filing of the case, Anacletosfiliation was established by
the record of his birth appearingin the civil register; and that Anacleto possessed rights inthe su
bject properties.
Anent the successional rights of the parties, the CApronounced that after Raymundo died in 1
939, his wife,Joaquina, and his son, Nicolas, inherited his properties; thatwhen Nicolas died in 1
954, he was survived by Joaquina (hismother), Florencia (his legitimate wife), and Anacleto (his
illegitimate son); that Joaquina was entitled to one-halfof Nicolas estate, and the remaining h
alf should be dividedbetween Florencia and Anacleto; that in 1960, whenFlorencia died without i
ssue, the share she had inheritedfrom Nicolas was inherited by her siblings Sulpicio, Brauliaand
Veronica; and that when Joaquina died in 1981, shewas survived by her sibling Alejandra; her ni

eces Jesusa,27Josefina, Gliceria and Felicisima; her nephews Pedro andTeodorico; and her illegiti
mate grandson, Anacleto.
The CA declared that the plaintiffs were already barredfrom asserting their rights in the prop
erties by estoppel bylaches; that Joaquina had executed her last will andtestament on April 19, 1
978, whereby she bequeathed herproperties to Anacleto; that the properties were thustransmitte
d to Anacleto upon her death in 1981; that theplaintiffs filed their complaint in the RTC only on J
anuary14, 1992; that it would be unjust to award the subjectproperties to the plaintiffs who had s
lept on their rights for along time; and that the plaintiffs could probably pursuetheir claim in the
appropriate intestate or testateproceedings.
The plaintiffs filed a Motion for Reconsideration,28 butthe CA denied their motion on March 24,
2004.
Issues
In this appeal, the plaintiffs, herein petitioners,29 implorethe Court to nullify the assailed rulin
gs of the CA, and todetermine once and for all the following issues:
Whether(a) Anacleto Alcoran is the illegitimate son of NicolasAlcoran x x x; and
Whether(b) he is entitled to the properties in litigation.
30

The petitioners insist that Anacleto was not dulyrecognized as Nicolas illegitimate son; that i
nasmuch asAnacleto was born to Francisca during the subsistence ofNicolas marriage to Florenc
ia, Anacleto could only be thespurious child of Nicolas; that there was no law for theacknowledgm
ent of a spurious child; that even if Anacletowould be given the benefit of the doubt and be consid
ered anatural child, Article 278 of the Civil
Code states that[r]ecognition shall be made in the record of birth, a will, astatement before a cou
rt of record, or in any authenticwriting; that the appearance of the fathers name in thecertificat
e of birth alone, without his actual intervention,was insufficient to prove paternity; that the mere
certificateby the civil registrar that the father himself registered thechild, without the fathers si
gnature, was not proof of thefathers voluntary acknowledgment; that the baptismalcertificate wa
s insufficient proof of paternity; and that ifthere was ground for Anacletos recognition, the period
toclaim recognition already prescribed.
The petitioners reject the claim of Anacleto thatJoaquina bequeathed the subject properties to
him by lastwill and testament. They assail the validity and dueexecution of the will, which was n
ot submitted for probate;that the joint affidavit allegedly executed in favor ofAnacleto by Sulpicio,
Braulia and Veronica Limpahan, withJosefina, Gliceria and Felicisima Arado, whereby they cede
dtheir rights in the subject properties in favor of Anacleto,was unwarranted; and that the veracit
y of the affidavit wasdoubtful because it waspurportedly inconsistent with Anacletos stance that
hehad inherited the properties in his own right.
In turn, the defendants, herein respondents, counter thatNicolas recognized Anacleto as his ill
egitimate childbecause Nicolas had himself caused the registration ofAnacletos birth; that the pe

titioners allegation ofprescription lacked basis inasmuch as Anacleto was notseeking compulsory
recognition; and that Anacleto hadalready been voluntarily recognized by Nicolas as hisillegitima
te son.
Ruling of the Court
We affirm the dismissal of the petitioners complaint bythe RTC, albeit for different reasons.
The complaint filed by the petitioners in the RTC torecover the subject properties is properly c
haracterized asan accion reivindicatoria. According to Caezo v. Bautista,31an [a]ccion
reivindicatoria seeks the recovery of ownershipand includes the jus utendi and the jus
fruendi brought inthe proper regional trial court. Accion
reivindicatoria is anaction whereby plaintiff alleges ownership over a parcel ofland and seeks rec
overy of its full possession. In essence,the petitioners seek to put an end to Anacletos possession
ofthe properties on the basis of their being the rightful heirsconsidering that Anacleto, being the
spurious child ofNicolas, held no successional rights in the estate of Nicolas.
The burden of proof to establish the averments of thecomplaint by preponderance of evidence
pertained to thepetitioners as the plaintiffs. In that regard, we havediscoursed on preponderance
of evidence in Amoroso v. Alegre, Jr.,32 thusly:
Preponderance of evidence is the weight, credit, and value ofthe aggregate evidence on either side an
d isusually considered to be synonymous with the term greaterweight of the evidence or greater weight
of the credible evidence.Preponderance of evidence is a phrase which, in the lastanalysis, means
probability of the truth. It is evidencewhich is more convincing to the court as worthy of belie
fthan that which is offered in opposition thereto. If plaintiffclaims a right granted or created b
y law, he must prove hisclaim by competent evidence. He must rely on the strengthof his own e
vidence and not upon the weakness of that ofhis opponent. (Bold underscoring for emphasis)

The petitioners did not discharge their burden of proof.

At the outset, the Court affirms the holding by the RTCand the CA that the provisions of the F
amily
Code33 shouldapply because the petitioners complaint was filed, litigatedand decided by the RTC
during the effectivity of the Family Code. Under the Family
Code, the classification of childrenis limited to either legitimate or illegitimate.34 Illegitimatefiliat
ion is proved in accordance with Article 175 of theFamily Code, to wit:Illegitimate175.
ART. children may establish their illegitimatefiliation in the same way and on the same evidence as legiti
matechildren.
The action must be brought within the same period specified inArticle 173, except when the action is b
ased on the secondparagraph of Article 172, in which case the action may be broughtduring the lifetime of
the alleged parent.

On the other hand, legitimate filiation is established inaccordance with Articles 172 and 173 o
f the Family Code,which state:
The172.ART. filiation of legitimate children is established byany of the following:
The(1) record of birth appearing in the civil register or a finaljudgment; or
An(2) admission of legitimate filiation in a public document ora private handwritten instrument and
signed by the parentconcerned.
In the absence of the foregoing evidence, the legitimate filiationshall be proved by:
The(1) open and continuous possession of the status of alegitimate child; or
Any(2) other means allowed by the Rules of Court and speciallaws.
The173.ART. action to claim legitimacy may be brought bythe child during his or her lifetime and s
hall be transmitted to theheirs should the child die during minority or in a state of insanity.In these cases
, the heirs shall have a period of five years withinwhich to institute the action.
The action already commenced by the child shall survivenotwithstanding the death of either or both of
the parties.

Rightly enough, the RTC and the CA unanimouslyconcluded that Nicolas had duly acknowledg
ed Anacleto ashis illegitimate son. The birth certificate of Anacletoappearing in the Register of B
irths of the Municipality ofBacong, Negros Oriental (Exhibits 3, 3-A) showed thatNicolas had hi
mself caused the registration of the birth ofAnacleto. The showing was by means of the name of
Nicolasappearing in the column Remarks in Page 53, Book 4,Register No. 214 of the Register of
Births. Based on thecertification (Exhibit 3-B) issued by the Local CivilRegistrar of the Municipa
lity of Bacong, Negros Oriental,the column in the Register of Births entitled Remarks(Observac
iones) was the space provided for the name of theinformant of the live birth to be registered. Con
sidering thatNicolas, the putative father, had a direct hand in thepreparation of the birth certific
ate, reliance on the birthcertificate of Anacleto as evidence of his paternity was fullywarranted.35
Anacletos baptismal certificate (Exhibit 7) was of noconsequence in determining his filiation.
We have alreadyheld in Cabatania v. Court of
Appeals36 that while abaptismal certificate may be considered a public document,it can only
serve as evidence of the administration of the sacramenton the date specified but not the verac
ity of the entries withrespect to the childs paternity; and that baptismalcertificates were per
se inadmissible in evidence as proof offiliation, and thus cannot be admitted indirectly ascircum
stantial evidence to prove [filiation]. Hence, weattach no probative value to the baptismal certific
ate asproof of the filiation of Anacleto.
The weight accorded by the RTC and the CA to thepicture depicting the young Anacleto in the
arms ofJoaquina as she stood beside the coffin of the departedNicolas (Exhibit 5) was also undese
rved. At best, the picturemerely manifested that it was Joaquina who hadacknowledged her filiat
ion with Anacleto. Cautioningagainst the admission in evidence of a picture of similarnature, we
have pointed out in Solinap v. Locsin, Jr.37 that:
[R]espondents photograph with his mother near the coffin of thelate Juan C. Locsin cannot and will no
t constitute proof of filiation,lest we recklessly set a very dangerous precedent that wouldencourage and sa
nction fraudulent claims. Anybody can have apicture taken while standing before a coffin with others andt
hereafter utilize it in claiming the estate of the deceased.

The school records of Anacleto (Exhibit 6), which evincedthat Joaquina was the guardian of A
nacleto in his gradeschool years, and the marriage contract between Anacletoand Elenette (Exhib
its 8 to 8-C), which indicated thatJoaquina had given consent to Anacletos marriage, did nothave
the evidentiary value accorded by the RTC and theCA. Joaquinas apparent recognition of Anacle
to matteredlittle, for, as we stressed in Cenido v.
Apacionado,38 therecognition must be made personally by the parent himselfor herself,not by any
brother, sister or relative; after all, theconcept of recognition speaks of a voluntary declaration by
the parent, of if the parent refuses, by judicial authority, toestablish the paternity or maternity of
children born outsidewedlock.
The lack of probative value of the respondents aforecitedcorroborative evidence notwithstandi
ng, Anacletosrecognition as Nicolas illegitimate child remained beyondquestion in view of the sh
owing that Nicolas had personallyand directly acknowledged Anacleto as his illegitimate son.
How should the acknowledgment of Anacleto by Nicolasaffect the respective rights of the parti
es in relation to thespecific properties subject of the complaint?
To recall, the parties stipulated that the first eight of thesubject properties had previously bel
onged to Raymundo,while the remaining two had been the paraphernalproperties of Joaquina.
With Raymundo having died in 1939, the Spanish Civil
Code of 1889 was the governing law on succession. UnderArticle 807 thereof,39 Joaquina and Nico
las, i.e., thesurviving spouse and the legitimate son of Raymundo, werethe forced heirs who acqui
red legal title to Raymundosestate upon his death. In accordance with Article 834thereof,40 Nicol
as was
entitled to inherit the entire estate of Raymundo, whileJoaquina was entitled to a portion in usuf
ruct equal to theone-third portion available for betterment.
When Nicolas died in 1954, the Civil Code of the
Philippines was already in effect.41 Under Article 1000thereof,42 the heirs entitled to inherit from
Nicolass estatewere Joaquina (his mother), Florencia (his survivingspouse), and Anacleto (his ac
knowledged illegitimate son).Said heirs became co-owners of the properties comprisingthe entire
estate of Nicolas prior to the estates partition inaccordance with Article 107843 of the Civil Code.
Anacleto had an established right to inherit from Nicolas,whose estate included the first eight
of the subject propertiesthat had previously belonged to Raymundo. Anacletobecame a co-owner o
f said properties, proindiviso, whenNicolas diedin 1954.44 Likewise, Joaquina succeeded to, and b
ecame apro indiviso coowner of, the properties that formed part ofthe estate of Nicolas. When Joaquina died in 1981, he
rhereditary estate included the two remaining properties, aswell as her share in the estate of Nic
olas. Inasmuch asJoaquina died without any surviving legitimate descendant,ascendant, illegiti
mate child or spouse, Article 100345 of theCivil
Code mandated that her collateral relatives shouldinherit her entire estate.
Contrary to the rulings of the lower courts, Anacleto wasbarred by law from inheriting from th
e estate of Joaquina.To start

with, Anacleto could not inherit from Joaquina byright of representation of Nicolas, the legitimat
e son ofJoaquina.46 Under Article 992 of the Civil
Code, anillegitimate child has no right to inherit ab
intestato fromthe legitimate children and relatives of his father or mother;in the same manner, s
uch children or relatives shall notinherit from the illegitimate child. As certified in Diaz v.
Intermediate Appellate
Court,47 the right of representationis not available to illegitimate descendants of legitimatechildre
n in the inheritance of a legitimate grandparent. Andsecondly, Anacleto could not
inherit from the estate of Joaquina by virtue of thelatters last will and testament, i.e., the Katap
usan Tugon (Testamento) (Exhibit K). Article 838 of the Civil
Codedictates that no will shall pass either real or personalproperty unless the same is proved an
d allowed inaccordance with the Rules of Court. We have clarified inGallanosa v.
Arcangel48 that in order that a will may takeeffect, it has to be probated, legalized or allowed in t
heproper testamentary proceeding. The probate of the will ismandatory. It appears that such wi
ll remained ineffectiveconsidering that the records are silent as to whether it hadever been prese
nted for probate, and had been allowed by acourt of competent jurisdiction. The petitioners allege
d thisfact in their complaint, and the respondents did notcontrovert the allegation. In the absenc
e of proof showingthat the supposed will of Joaquina had been duly approvedby the competent co
urt, we hold that it had not been soapproved. Hence, we cannot sustain the CAs ruling to theeffec
t that Joaquina had bequeathed her properties toAnacleto by will, and that the properties had be
entransmitted to him upon her death.
As the petitioners were among the collateral relatives ofJoaquina, they are the ones entitled to
inherit from herestate.
Nonetheless, the petitioners appeal still fails because theparties did not establish that the est
ates of Raymundo,Nicolas and Joaquina had been respectively settled withfinality through the ap
propriate testate or intestateproceedings, and partitioned in due course. Unless there wasa prope
r and valid partition of the assets of the respectiveestates of Raymundo, Nicolas and Joaquina, w
hetherextrajudicially or judicially, their heirs could not adjudicateunto themselves and claim spec
ific portions of their estates,because, as we have declared in Carvajal v. Court of Appeals:49
x x x Unless a project of partition is effected, each heir cannotclaim ownership over a definite portion of
the inheritance. Withoutpartition, either by agreement between the parties or by judicialproceeding, a coh
eir cannot dispose of a specific portion of the estate.For where there are two or more heirs, the whole estat
e of thedecedent is, before its partition, owned in common by such heirs.Upon the death of a person, each o
f his heirs becomes the undividedowner of the whole estate left with respect to the part or portionwhich m
ight be adjudicated to him, a community of ownershipbeing thus formed among the co-owners of the estat
e or coheirswhile it remains undivided.

Without the showing that the respective estates ofRaymundo, Nicolas and Joaquina had been
previouslypartitioned, the Court concludes and holds that none of theparties herein can lay claim
over any of the disputed specificproperties. The petitioners cannot contend, therefore, thatthey w

ere the rightful owners of the properties of the lateJoaquina to the exclusion of Anacleto. Thus, w
e uphold thedismissal of the petitioners complaint for recovery of suchproperties.
WHEREFORE, the Court AFFIRMS the decisionpromulgated on February 28, 2003 by the C
ourt of Appeals;and ORDERS the petitioners to pay the costs of suit.
SO ORDERED.

Sereno (CJ., Chairperson), Leonardo-De Castro, Perezand Perlas-Bernabe, JJ., concur.

Judgment affirmed.
Notes.The death of the putative father is not a bar tothe action commenced during his lifeti
me by one claiming tobe his illegitimate child. (Salas vs. Matusalem, 705 SCRA560 [2013])
Under Article 175 of the Family Code of the Philippines,illegitimate filiation may be establishe
d in the same wayand on the same evidence as legitimate children. (Id.)

G.R. No. 76873. October 26, 1989.

DOROTEA, VIRGILIO, APOLINARIO, JR., SULPICIO & DOMINADOR, all surnamed

UYGUANGCO, petitioners, vs.COURT OF APPEALS, Judge SENEN PEARANDA and
GRACIANO BACJAO UYGUANGCO, respondents.

The issue before the Court is not the status of the private respondent, who has been excluded
from the family and inheritance of the petitioners. What we are asked to decide is whether he
should be allowed to prove that he is an illegitimate child of his claimed father, who is already
dead, in the absence of the documentary evidence required by the Civil Code.
The trial court said he could and was sustained by the respondent Court of Appeals. The
latter court held that the trial judge had not committed any grave abuse of discretion or acted
without jurisdiction in allowing the private respondent to prove his filiation. Moreover, the
proper remedy was an ordinary appeal and not a petition for prohibition. The petitioners ask for
a reversal of these rulings on the ground that they are not in
1

accordance with law and jurisprudence.

Apolinario Uyguangco died intestate in 1975, leaving his wife, Dorotea, four legitimate
children (her co-petitioners here-in), and considerable properties which they divided among
themselves. Claiming to be an illegitimate son of the deceased Apolinario, and having been left
2

out in the extrajudicial settlement of his estate, Graciano Bacjao Uyguangco filed a complaint for
partition against all the petitioners.
3

Graciano alleged that he was born in 1952 to Apolinario Uyguangco and Anastacia Bacjao and
that at the age of 15 he moved to his fathers hometown at Medina, Misamis Oriental, at the
latters urging and also of Dorotea and his half-brothers. Here he received support from his
father while he was studying at the Medina High School, where he eventually graduated. He was
also assigned by his father, without objection from the rest of the family, as storekeeper at the
Uyguangco store in Mananom from 1967 to 1973.
4

In the course of his presentation of evidence at the trial, the petitioners elicited an admission
from Graciano that he had none of the documents mentioned in Article 278 to show that he was
the illegitimate son of Apolinario Uyguangco. These are the record of birth, a will, a statement
before a court of record, or (in) any authentic writing. The petitioners thereupon moved for the
dismissal of the case on the ground that the private respondent could no longer prove his alleged
filiation under the applicable provisions of the Civil Code.
5

Specifically, the petitioners argued that the only evidence allowed under Article 278 to prove
the private respondents claim was not available to him as he himself had admitted. Neither
could he now resort to the provisions of Article 285 because he was already an adult when his
alleged father died in 1975, and his claim did not come under the exceptions. The said article
provides as follows:
ART. 285. The action for the recognition of natural children may be brought only during the lifetime of the
presumed parents, except in the following cases:
1. (1)If the father or mother died during the minority of the child, in which case the latter may file the
action before the expiration of four years from the attainment of his majority;
2. (2)If after the death of the father or of the mother a document should appear of which nothing had
been heard and in which either or both parents recognize the child.
In this case, the action must be commenced within four years from the finding of the document.

As earlier related, the motion to dismiss was denied, prompting the petitioners to seek relief in
vain from the respondent court. In the case now before us, the petitioners reiterate and
emphasize their position that allowing the trial to proceed would only be a waste of time and
effort. They argue that the complaint for partition is actually an action for recognition as an
illegitimate child, which, being already barred, is a clear attempt to circumvent the said
provisions. The private respondent insists, on the other hand, that he has a right to show under
Article 283 that he is in continuous possession of the status of a child of his alleged father by the
direct acts of the latter or of his family.

We find that this case must be decided under a new if not entirely dissimilar set of rules
because the parties have been overtaken by events, to use the popular phrase. The Civil Code
provisions they invoke have been superseded, or at least modified, by the corresponding articles
in the Family Code, which became effective on August 3, 1988.
Under the Family Code, it is provided that:
Art. 175. Illegitimate children may establish their illegitimate filiation in the same way and on the same
evidence as legitimate children.

The following provision is therefore also available to the private respondent in proving his
illegitimate filiation:
Art. 172. The filiation of legitimate children is established by any of the following:
1. (1)The record of birth appearing in the civil register or a final judgment; or
2. (2)An admission of legitimate filiation in a public document or a private handwritten instrument
and signed by the parent concerned.
In the absence of the foregoing evidence, the legitimate filiation shall be proved by:
1. (1)The open and continuous possession of the status of a legitimate child; or
2. (2)Any other means allowed by the Rules of Court and special laws.

While the private respondent has admitted that he has none of the documents mentioned in the
first paragraph (which are practically the same documents mentioned in Article 278 of the Civil
Code except for the private handwritten instrument signed by the parent himself), he insists
that he has nevertheless been in open and continuous possession of the status of an illegitimate
child, which is now also admissible as evidence of filiation.
Thus, he claims that he lived with his father from 1967 until 1973, receiving support from him
during that time; that he has been using the surname Uyguangco without objection from his
father and the petitioners as shown in his high school diploma, a special power of attorney
executed in his favor by Dorotea Uyguangco, and another one by Sulpicio Uyguangco; that he has
shared in the profits of the copra business of the Uyguangcos, which is a strictly family business;
that he was a director, together with the petitioners, of the Alu and Sons Development
Corporation, a family corporation; and that in the addendum to the original extrajudicial
settlement concluded by the petitioners he was given a share in his deceased fathers estate.
7

It must be added that the illegitimate child is now also allowed to establish his claimed
filiation by any other means allowed by the Rules of Court and special laws, like his baptismal
certificate, a judicial admission, a family Bible in which his name has been entered, common

reputation respecting his pedigree, admission by silence, the testimonies of witnesses, and other
kinds of proof admissible under Rule 130 of the Rules of Court.
8

The problem of the private respondent, however, is that, since he seeks to prove his filiation
under the second paragraph of Article 172 of the Family Code, his action is now barred because
of his alleged fathers death in 1975. The second paragraph of this Article 175 reads as follows:
The action must be brought within the same period specified in Article 173, except when the action is
based on the second paragraph of Article 172, in which case the action may be broughtduring the lifetime
of the alleged parent. (Italics supplied.)

It is clear that the private respondent can no longer be allowed at this time to introduce evidence
of his open and continuous possession of the status of an illegitimate child or prove his alleged
filiation through any of the means allowed by the Rules of Court or special laws. The simple
reason is that Apolinario Uyguangco is already dead and can no longer be heard on the claim of
his alleged sons illegitimate filiation.
In her Handbook on the Family Code of the Philippines, Justice Alicia Sempio-Diy explains
the rationale of the rule, thus: It is a truism that unlike legitimate children who are publicly
recognized, illegitimate children are usually begotten and raised in secrecy and without the
legitimate family being aware of their existence. Who then can be sure of their filiation but the
parents themselves? But suppose the child claiming to be the illegitimate child of a certain
person is not really the child of the latter? The putative parent should thus be given the
opportunity to affirm or deny the childs filiation, and this, he or she cannot do if he or she is
already dead.
9

Finally, it must be observed that the provisions invoked by the parties are among those
affected by the following articles in the Family Code:
Art. 254. Titles III, IV, V, VI, VII, VIII, IX, XI and XV of Book I of Republic Act No. 386, otherwise known
as the Civil Code of the Philippines, as amended, and Articles 17, 18, 19, 27, 28, 29, 30, 31, 39, 40, 41 and
42 of Presidential Decree No. 603, otherwise known as the Child and Youth Welfare Code, as amended,
and all laws, decrees, executive orders, proclamations, rules and regulations, or parts thereof, inconsistent
herewith are hereby repealed.
Art. 256. This Code shall have retroactive effect insofar as it does not prejudice or impair vested or
acquired rights in accordance with the Civil Code or other laws.

Gracianos complaint is based on his contention that he is the illegitimate child of Apolinario
Uyguangco, whose estate is the subject of the partition sought. If this claim can no longer be
proved in an action for recognition, with more reason should it be rejected in the said complaint,
where the issue of Gracianos filiation is being raised only collaterally. The complaint is indeed a

circumvention of Article 172, which allows proof of the illegitimate childs filiation under the
second paragraph thereof only during the lifetime of the alleged parent.
Considering that the private respondent has, as we see it, established at least prima
facie proof of his alleged filiation, we find it regrettable that his action should be barred under
the said article. But that is the law and we have no choice but to apply it. Even so, the Court
expresses the hope that the parties will arrive at some kind of rapprochement, based on fraternal
and moral ties if not the strict language of the law, that will allow the private respondent an
equitable share in the disputed estate. Blood should tell.
WHEREFORE, the petition is GRANTED, and Civil Case No. 9067 in the Regional Trial
Court of Misamis Oriental, Branch 20, is hereby DISMISSED. It is so ordered.
Narvasa, Gancayco, Grio-Aquino and Medialdea, JJ., concur.
Petition granted.
Notes.The rules on proof of filiation of natural children or rules on voluntary and
compulsory acknowledgment for natural children are applicable to spurious children.
(Divinagracia vs. Rovira, 72 SCRA 307.)
Affidavits are insufficient to show filiation. (Berciles vs. Government Service Insurance
System, 128 SCRA 53.)

G.R. No. 104376. February 23, 1994.

ARTEMIO G. ILANO, petitioner, vs. THE COURT OF APPEALS and MERCEDITAS (sic) S.
ILANO, represented by her mother, LEONCIA DE LOS SANTOS, respondent.

After the great flood, man was commanded to go forth, be fertile, multiply and fill the earth.
Others did not heed the sequence of this command because they multiply first and then go.
Corollarily, it is now commonplace for an abandoned illegitimate offspring to sue his father for
recognition and support.
The antecedent facts are narrated in the trial courts decision, as follows:
Leoncia first met petitioner Artemio G. llano while she was working as secretary to Atty.
Mariano C. Virata. Petitioner was one of the clients of Atty. Virata. On several occasions, she and
petitioner took lunch together. In less than a years time, she resigned from her work.

Sometime in 1957, Leoncia, then managing a business of her own as Namarco distributor, met
petitioner again who was engaged in the same business and they renewed acquaintances. Since
then, he would give her his unsold allocation of goods. Later, he courted her for more than four
years. Their relationship became intimate and with his promise of marriage, they eloped to
Guagua, Pampanga in April, 1962. They stayed at La Mesa Apartment, located behind the
Filipinas Telephone Company branch office, of which he is the president and general manager.
He came home to her three or four times a week.
The apartment was procured by Melencio Reyes, Officer-in-Charge of the Filipinas Telephone
Company branch office. He also took care of the marketing and paid rentals, light and water
bills. Unable to speak the local dialect, Leoncia was provided also by Melencio with a maid by the
name of Nena. Petitioner used to give her P700.00 a month for their expenses at home.
1

In June, 1962, Leoncia, who was conceiving at that time, was fetched by petitioner and they
transferred to San Juan St., Pasay City. In October, 1962, she delivered a still-born female child
at the Manila Sanitarium. The death certificate was signed by petitioner. Thereafter, while they
were living at Highway 54, Makati, private respondent Merciditas S. llano was born on
December 30, 1963 also at the Manila Sanitarium. Her birth was recorded as Merciditas de los
Santos llano, child of Leoncia Aguinaldo de los Santos and Artemio Geluz Ilano. Leoncia
submitted receipt issued by the Manila Sanitarium to show that she was confined there from
December 30, 1963 until January 2, 1964 under the name Mrs. Leoncia llano.
2

The support by petitioner for Leoncia and Merciditas was sometimes in the form of cash
personally delivered by him, thru Melencio, thru Elynia (niece of Leoncia) or thru Merciditas
herself; and sometimes in the form of a check like Manila Banking Corporation Check No.
81532, the signature appearing thereon having been identified by Leoncia as that of petitioner
because he often gives her checks which he issues at home and saw him sign the checks. Both
petitioner and his daughter admitted that the check and signature are those of the former.
5

During the time that petitioner and Leoncia were living as husband and wife, he showed
concern as the father of Merciditas. When Merciditas was in Grade I at the St. Joseph Parochial
School, he signed her Report Card for the fourth and fifth grading periods as her parent. Those
signatures were both identified by Leoncia and Merciditas because he signed them at their
residence in their presence and of Elynia. Since Merciditas started to have discernment, he was
already the one whom she recognized as her Daddy. He treated her as a father would to his
child. He would bring home candies, toys, and anything a child enjoys. He would take her for a
drive, eat at restaurants, and even cuddle her to sleep.
10

11

12

13

When petitioner ran as a candidate in the Provincial Board of Cavite, he gave Leoncia his
picture with the following dedication: To Nene, with best regards, Temiong.
14

In May, 1963, Ruth Elynia Mabanglo, niece of Leoncia, lived with Leoncia and petitioner. She
accompanied her aunt when she started having labor pains in the morning of December 30, 1963.
Petitioner arrived after five oclock in the afternoon. When the nurse came to inquire about the
child, Leoncia was still unconscious so it was from petitioner that the nurse sought the
information. Inasmuch as it was already past seven oclock in the evening, the nurse promised to
return the following morning for his signature. However, he left an instruction to give the birth
certificate to Leoncia for her signature, as he was leaving early the following morning.
Prior to the birth of Merciditas, Elynia used to accompany her aunt and sometimes with
petitioner in his car to the Manila Sanitarium for prenatal check-up. At times, she used to go to
his office at 615 Sales St., Sta. Cruz, Manila, upon his instructions to get money as support and
sometimes he would send notes of explanation if he cannot come which she in turn gave to her
aunt. They stayed at 112 Arellano St., then at Sta. Cruz, Manila in 1966 before they finally
transferred to Gagalangin in 1967. Petitioner lived with them up to June, 1971 when he stopped
coming home.
15

Petitioners defense was a total and complete denial of any relationship with Leoncia and
Merciditas. He disowned the handwritten answers and signatures opposite column 16 of the
death certificate of a female child surnamed llano, although in column 13 thereof opposite
fathers name the typewritten name, Artemio G. llano, appears. He also denied the following: all
the notes alleged to have been received from him by Elynia for delivery to Leoncia; the signatures
appearing in Merciditas Report Card; and being the source of a photo of himself with a
handwritten dedication. He admitted that Manila Banking Corporation Check No. 81532
including the signature is his. He was sick on December 30, 1963 and was hospitalized on
January 7, 1964. He does not understand why this case was filed against him.
16

17

Melencio admitted that he was the one who procured the apartment for Leoncia, leased it in
his name, paid the rentals and bought the necessities therefor. He and Leoncia lived together and
shared the same bed. They later transferred to San Juan St., Pasay City and to Highway 54,
Makati. He stopped visiting her in March or April, 1963 because he planned to get married with
another which he eventually did in September, 1963.
Diosdado Datu, fish vendor, usually delivered to the apartment fishes ordered by Melencio
which were received by Leoncia.
Nilda llano Ramos, daughter of petitioner, does not know Leoncia; neither has she been
brought to their family home in Imus, Cavite, On December 30, 1963, her father was at their
home because he got sick on December 25, 1963 and was advised to have a complete bed rest. Her
father was hospitalized on January 7, 1964. She denied that her father was at the Manila
Sanitarium on December 30, 1963; that he fetched a certain woman on January 2, 1964, at the
Manila Sanitarium because he was at their home at that time, and that her father lived with a

certain woman in 1963 up to June, 1971 because all this time he was living with them in Imus,
Cavite. He was working and reporting to the office everyday and when he goes to Guagua or
Manila on business, her mother or brother goes with him.
Victoria J. llano, petitioners wife, further corroborated the previous testimonies about
petitioners sickness on December 30, 1963 and hospitalization on January 7, 1964. It could not
be true that her husband, during the years 1963 to 1968, lived three (3) times a week with a
certain Leoncia de los Santos because her husband never slept out of their house and that in his
capacity as President and Chairman of the Board of the Filipinas Telephone Company he does
not go to Guagua even once a year because they have a branch manager, Melencio Reyes.
After weighing the contradictory testimonies and evidence of the parties, the trial court was
not fully satisfied that petitioner is the father of Merciditas, on the basis of the following:
1. 1)petitioner and Leoncia were not in cohabitation during the period of Merciditas conception;
2. 2)testimony of Melencio that he frequented the apartment where Leoncia was living, took care of
all the bills and shared the same bed with her;
3. 3)the birth certificate of Merciditas was not signed by petitioner;
4. 4)petitioner denied his signature in the monthly report card of Merciditas; and
5. 5)there is no clear and sufficient showing that support was given by petitioner to Merciditas.

Thus, it rendered judgment on April 4, 1981 dismissing the complaint.

18

Fortunately for private respondent, respondent Court of Appeals did not share the same view
as the trial court. A review of the testimonial and documentary evidence adduced by private
respondent led respondent court to the firm conclusion that petitioner is her father, entitling her
to support. The dispositive portion of its decision dated December 17, 1991 reads:
WHEREFORE, the Decision appealed from is REVERSED and judgment is hereby rendered declaring
plaintiff MERCEDITAS S. ILANO as the duly acknowledged and recognized illegitimate child of
defendant ARTEMIO G. ILANO with all the rights appurtenant to such status.
Defendant is directed to pay the plaintiff support in arrears at the rate of EIGHT HUNDRED
(P800.00) PESOS a month from the date of the filing of the complaint on August 16, 1972 up to August 15,
1975; ONE THOUSAND (P1,000.00) PESOS a month from August 16, 1975 to August 15, 1978; ONE
THOUSAND THREE HUNDRED (P1,300.00) PESOS a month from August 18, 1978 to August 15, 1981;
and ONE THOUSAND FIVE HUNDRED (P1,500.00) a month from August 16, 1981 up to the time she
reached the age of majority on December 30, 1984.

Defendant is further ordered to pay the plaintiff the sum of P10,000.00 as attorneys fees plus the
costs.
SO ORDERED.

19

The motion for reconsideration was denied in the resolution dated February 26, 1992.

20

Hence, the present petition.

We shall resolve the following pertinent errors allegedly committed by respondent court:
1. 1)in awarding back support even in the absence of recognition or of a judgment declaring
petitioner father of Merciditas with finality;
2. 2)in not ruling that an adulterous child cannot file an action for recognition; and
3. 3)in deciding matters of substance manifestly against established decisions of this Court.

Petitioner argues that since the complaint against him has been dismissed by the trial court,
therefore, there was absolutely no obligation on his part to give support to Merciditas. It would
have been only from the date of the judgment of the trial court that support should have
commenced, if so granted. Under the law in force when the complaint was filed, an adulterous
child cannot maintain an action for compulsory recognition. In order that the birth certificate
may constitute a voluntary recognition, it must be signed by the father. Equivocal act, such as
signing under the caption parent in the report card, is not sufficient. Merciditas has never been
to the family home of petitioner at Imus, Cavite; nor introduced to his family; nor brought around
town by him, treated as his child, introduced to other people as his child, led people to believe
that she was part of his family.
The petition utterly lacks merit.
Under the then prevailing provisions of the Civil Code, illegitimate children or those who are
conceived and born out of wedlock were generally classified into two groups: (1) Natural, whether
actual or by fiction, were those born outside of lawful wedlock of parents who, at the time of
conception of the child, were not disqualified by any impediment to marry each other (Article 119,
old Civil Code; Article 269, new Civil Code) and (2) Spurious, whether incestuous, adulterous or
illicit, were those born of parents who, at the time of conception, were disqualified to marry each
other on account of certain legal impediments. Since petitioner had a subsisting marriage to
another at the time Merciditas was conceived, she is a spurious child. In this regard, Article 287
of the Civil Code provides that illegitimate children other than natural in accordance with Article
269 and other than natural children by legal fiction are entitled to support and such
successional rights as are granted in the Civil Code. The Civil Code has given these rights to
them because the transgressions of social conventions committed by the parents should not be
21

22

23

visited upon them. They were born with a social handicap and the law should help them to
surmount the disadvantages facing them through the misdeeds of their parents. However, before
Article 287 can be availed of, there must first be a recognition of paternity either voluntarily or
by court action. This arises from the legal principle that an unrecognized spurious child like a
natural child has no rights from his parents or to their estate because his rights spring not from
the filiation or blood relationship but from his acknowledgement by the parent. In other words,
the rights of an illegitimate child arose not because he was the true or real child of his parents
but because under the law, he had been recognized or acknowledged as such a child. The
relevant law on the matter is Article 283 of the Civil Code, which provides:
24

25

26

ART. 283. In any of the following cases, the father is obliged to recognize the child as his natural child:
1. (1)In cases of rape, abduction or seduction, when the period of the offense coincides more or less
with that of the conception;
2. (2)When the child is in continuous possession of status of a child of the alleged father by the direct
acts of the latter or of his family;
3. (3)When the child was conceived during the time when the mother cohabited with the supposed
father;
4. (4)When the child has in his favor any evidence or proof that the defendant is his father.

While the aforementioned provision speaks of the obligation of the father to recognize the child
as his natural child, for the purpose of the present case, petitioner is obliged to recognize
Merciditas as his spurious child. This provision should be read in conjunction with Article 289 of
the Civil Code which provides:
ART. 289. Investigation of the paternity or maternity of (other illegitimate) children x x x is permitted
under the circumstances specified in articles 283 and 284.

In reversing the decision of the trial court, respondent court found, as it is likewise our finding,
that private respondents evidence to establish her filiation with and the paternity of petitioner is
too overwhelming to be ignored or brushed aside by the highly improbable and fatally flawed
testimony of Melencio and the inherently weak denials of petitioner:
Significantly, the Court a quo believed that plaintiffs mother and defendant carried an intimate
relations. It nonetheless was not satisfied that defendant is the father of the plaintiff because it is not
convinced that her mother and defendant were in cohabitation during the period of her conception, and
took into account the testimony of Melencio S. Reyes who frequented the apartment where Leoncia de los
Santos was living and who positively testified that he took care of all the bills and that he shared the
same bed with plaintiffs mother.

The court a quo completely ignored the fact that the apartment at Guagua was rented by the
defendant, and that Melencio Reyes, who was a mere employee and godson of the defendant with a
monthly salary of P560.00 was a mere subaltern of the latter, and only frequented the place upon
instruction of the defendant to take care of the needs of the plaintiff.
As pointed out by appellant, Leoncia and Artemio stayed in an apartment at the back of the Guagua
Telephone System owned by and of which Artemio was the General Manager (TSN, p. 46, 8/18/73) and
Melencio was the Officer-in-Charge in the absence of Artemio whose residence and main office was in
Cavite. There, for the first time, Leoncia met Melencio (TSN, pp. 3-4, 1/25/74). The apartment in Guagua
was rented in the name of Melencio. As Leoncia does not speak the Pampango dialect (TSN, p. 50,
8/18/73), Artemio gave Leoncia the instruction to call upon Melencio for whatever Leoncia needs (TSN, pp.
11-12, 1/25/74). Thus, it was Melencio who procured all the supplies and services needed in the apartment
for which procurement Melencio gives to Leoncia the corresponding receipts of payment for liquidations of
cash advances Artemio or the Guagua Telephone System or Leoncia herself, gives to Melencio (Exh. A, A1 to 14; TSN, p. 32, 8/13/73; TSN, pp. 7, 12 and 14, 1/25/74).
At the Guagua apartment, Artemio would visit Leoncia three or four times a week and sleeps there
(TSN, p. 47, 8/13/73). Artemio was giving Leoncia an allowance of P700.00 a month (TSN, p. 38, 7/18/73).
Leoncia got pregnant and Artemio found it difficult to commute between Cavite and Guagua so that in
June 1962, Artemio transferred
Leoncia to Calle San Juan, Pasay City (TSN, pp. 19-20, 7/18/73) where they were known as husband
and wife (id. p. 41). In leaving Guagua for San Juan, Pasay City, Leoncia was fetched by Artemio in a car
driven by Artemio himself. (pp. 9-11, Appellants Brief)
Even as Artemio and Leoncia lived and transferred to several places heretofore mentioned, Melencio
continued to be a trusted man Friday of Artemio who would deliver notes (Exh. F, F-1 and F-3) and
money from Artemio to Leoncia. For reference, among the notes identified by Leoncia as having come from
defendant were the following:
Exh. F-1
Dear Ne,
Magsimula akong makausap ni Gracing ay nagkaroon ako ng diferencia sa paa at ngayon ay masakit pa.
Si Miling ay ngayon lamang nakarating dito kung hindi ka aalis diyan ay si Miling na lamang and
utusan mo sa Makati kung may kailangan ka dian.
Sgn.
Mayroon akong nakitang bahay na mayayari malapit sa municipio ng Makati. Ipakikita ko sa iyo kung
papayag ka.
Sabihin mo kay Miling kung hindi ka aalis diyan bukas ay pupunta ako.

Walang makitang bahay sa San Juan.

Sgn.
Exh. F-2
Ne, sa Viernes ay pupunta ako dian marami akong ginagawa.
Sgn.
Exh. F-3
Ne, si Miling ay bukas pupunta dito ay sa tanghali ay pupunta ako diyan (11:30 am) Wala akong pera
ngayon kaya bukas na, Sigurado yon.
Sgn.
Exh. F-4
Dear Ne, Pacencia ka na at hindi ako nakapaglalakad gawa ng mataas ang dugo, kaya minsan-minsan
lamang ako makapunta sa oficena.
Ibigay mo ang bayad sa bahay sa Sabado ng umaga, pipilitin kong makarating dian sa Jueves.
Sgn.
The address Ne in the beginning of these notes refer to Leoncia whose nickname is Nene but which
Artemio shortens to Ne. Miling is the nickname of Melencio. The Gracing mentioned in Exh. F-1 refer
to Gracia delos Santos, a sister-in-law of Leoncia who was with Artemio when Leoncia was removed from
the hospital during the birth of Merciditas. (pp. 17-19, Appellants Brief). These tiny bits of evidence
when pieced together ineluctably gives lie to defendants diversionary pretense that it was with Melencio
S. Reyes with whom the mother lived with during her period of conception.
The attempt of Melencio S. Reyes to show that he was the lover of Leoncia being in the apartment and
sharing together the same bedroom and the same bed hardly inspires belief.
xxx

xxx

x x x.

Undoubtedly, the role played by Melencio S. Reyes in the relationship between Leoncia and appellant
(sic) was that of a man Friday although appellant (sic) would not trust him to the hilt and unwittingly
required him to submit to Leoncia an accounting of his expenditures (Exhs. A, A-1 to A-14) for cash
advances given to him by Leoncia, Artemio or Guagua Telephone System which would not have been the
case, if it were true that there was an intimate relationship between him and plaintiffs mother.
Evidently, following the instruction of his employer and Godfather, Melencio foisted on the court a
quo the impression that he was the lover and paramour of Leoncia but since there was really no such

relationship, he could not state the place in San Juan or Highway 54 where he took Leoncia, nor how long
they stayed there belying his pretence (sic) of an intimate relationship with piaintiffs mother.
27

Having discredited the testimonies of petitioner and Melencio, respondent court then applied
paragraph (2) of Article 283:
The court a quo did not likewise consider the evidence as sufficient to establish that plaintiff was in
continuous possession of status of a child in view of the denial by appellee of his paternity, and there is no
clear and sufficient evidence that the support was really given to plaintiffs mother. The belated denial of
paternity after the action has been filed against the putative father is not the denial that would destroy
the paternity of the child which had already been recognized by defendant by various positive acts clearly
evidencing that he is plaintiffs father. A recognition once validly made is irrevocable. It cannot be
withdrawn. A mere change of mind would be incompatible with the stability of the civil status of person,
the permanence of which affects public interest. Even when the act in which it is made should be
revocable, the revocation of such act will not revoke the recognition itself (1 Tolentino, pp. 579-580, 1983
Ed.).
To be sure, to establish the open and continuous possession of the status of an illegitimate child, it is
necessary to comply with certain jurisprudential requirements. Continuous does not, however, mean that
the concession of status shall continue forever but only that it shall not be of an intermittent character
while it continues (De Jesus vs. Syquia, 58 Phil. 866). The possession of such status means that the father
has treated the child as his own, directly and not through others, spontaneously and without concealment
though without publicity (since the relation is illegitimate) (J.B.L. Reyes and R.C. Puno, Outline of
Philippine Civil Law, Vol. 1, 1964 ed., pp. 269-270 citing Coquia vs. Coquia, CA 50, O.G. 3701). There
must be a showing of the permanent intention of the supposed father to consider the child as his own, by
continuous and clear manifestation of paternal affection and care. (Tolentino, Civil Code of the
Philippines, Vol. 1, 1983 ed., p. 602). (Mendoza vs. Court of Appeals, G.R. No. 86302, September 24, 1991.)
It was Artemio who made arrangement for the delivery of Merceditas (sic) at the Manila Sanitarium
and Hospital. Prior to the delivery, Leoncia underwent prenatal examination accompanied by Artemio
(TSN, p. 33, 5/17/74). After delivery, they went home to their residence at EDSA in a car owned and
driven by Artemio himself (id. p. 36).
Merceditas (sic) bore the surname of Ilano since birth without any objection on the part of Artemio,
the fact that since Merceditas (sic) had her discernment she had always known and called Artemio as her
Daddy (TSN, pp. 28-29, 10/18/74); the fact that each time Artemio was at home, he would play with
Merceditas (sic), take her for a ride or restaurants to eat, and sometimes sleeping with Merceditas (sic)
(id. p. 34) and does all what a father should do for his childbringing home goodies, candies, toys and
whatever he can bring her which a child enjoys which Artemio gives to Merceditas (sic) (TSN, pp. 38-39,
5/17/74) are positive evidence that Merceditas (sic) is the child of Artemio and recognized by Artemio as
such. Special attention is called to Exh. E-7 where Artemio was telling Leoncia the need for a frog test
to know the status of Leoncia.
Plaintiff pointed out that the support by Artemio for Leoncia and Merceditas (sic) was sometimes in
the form of cash personally delivered to her by Artemio, thru Melencio, thru Elynia (Exhs. E-2 and E-

3, and D-6), or thru Merceditas (sic) herself (TSN, p. 40, 5/17/74) and sometimes in the form of a check
as the Manila Banking Corporation Check No. 81532 (Exh. G) and the signature appearing therein
which was identified by Leoncia as that of Artemio because Artemio often gives her checks and Artemio
would write the check at home and saw Artemio sign the check (TSN, p. 49, 7/18/73). Both Artemio and
Nilda admitted that the check and signature were those of Artemio (TSN, p. 53, 10/17/77; TSN, p. 19,
10/9/78).
During the time that Artemio and Leoncia were living as husband and wife, Artemio has shown
concern as the father of Merceditas (sic). When Merceditas (sic) was in Grade 1 at the St. Joseph
Parochial School, Artemio signed the Report Card of Merceditas (sic) (Exh. H) for the fourth and fifth
grading period(s) (Exh. H-1 and H-2) as the parent of Merceditas (sic). Those signatures of Artemio
where both identified by Leoncia and Merceditas (sic) because Artemio signed Exh. H-1 and H-2 at
their residence in the presence of Leoncia, Merceditas (sic) and of Elynia (TSN, p. 57, 7/18/73; TSN, p. 28,
10/1/73). x x x.
xxx

xxx

x x x.

When Artemio run as a candidate in the Provincial Board of Cavite Artemio gave Leoncia his picture
with the following dedication: To Nene, with best regards, Temiong. (Exh. 1). (pp. 19-20, Appellants
Brief)
The mere denial by defendant of his signature is not sufficient to offset the totality of the evidence
indubitably showing that the signature thereon belongs to him. The entry in the Certificate of Live Birth
that Leoncia and Artemio was falsely stated therein as married does not mean that Leoncia is not
appellees daughter. This particular entry was caused to be made by Artemio himself in order to avoid
embarrassment.
It is difficult to believe that plaintiffs mother, who is a mere dressmaker, had long beforehand
diabolically conceived of a plan to make it appear that defendant, who claims to be a total stranger, was
the father of her child, and in the process falsified the latters signatures and handwriting.
28

Granting ex gratia argumenti that private respondents evidence is not sufficient proof of
continuous possession of status of a spurious child, respondent court applied next paragraph (4)
of Article 283:
x x x plaintiffs testimonial and documentary evidence x x x (is) too replete with details that are coherent,
logical and natural which cannot be categorized as mere fabrications of an inventive and malicious mind
of which Leoncia de los Santos was not shown to possess.
The natural, logical and coherent evidence of plaintiff from the genesis of the relationship between
Leoncia and appellee, their living together as husband and wife in several places, the birth of the first
still-born child, the circumstances of plaintiffs birth, the act of appellee in recognizing and supporting
plaintiff, find ample support from the testimonial and documentary evidence which leaves no room to
reasonably doubt his paternity which may not be infirmed by his belated denials.

Notably, the court a quo did not consider plaintiffs evidence as lacking in credibility but did not deem
them as convincing proof that defendant is the father since the Certificate of live Birth was not signed by
appellee and since the monthly report card is not sufficient to establish recognition, considering the denial
of the defendant of his signature appearing thereon.
While defendants signature does not appear in the Certificate of Live Birth, the evidence indubitably
disclose(s) that Leoncia gave birth on December 30, 1963 to Merceditas (sic) at 4:27 p.m. at the Manila
Sanitarium. Artemio arrived at about 5:00 (TSN, p. 25, 5/17/74). At about 7:00 p.m., a nurse came (id., p.
26) who made inquiries about the biodata of the born child. The inquiries were directed to Artemio in the
presence of Elynia who heard the answers of Artemio which the nurse took down in a sheet of paper (id. p.
28). The inquiries were about the name of the father, mother and child. After the interview the nurse told
them that the information has to be recorded in the formal form and has to be signed by Artemio (id., p.
30) but because there is no office, as it was past 7:00 p.m. the nurse would just return in the morning for
Artemios signature. Artemio gave the instruction to the nurse to give the biodata to Leoncia for her
signature as he was leaving very early the following morning as in fact Artemio left at 5:00 a.m. of
December 31, 1963 (id. p. 33). Artemio stayed in the hospital in the evening of December 30, 1963 (id. p.
26). As pointed out in Castro vs. Court of Appeals, 173 SCRA 656:
The ruling in Roces vs. Local Civil Registrar of Manila (102 Phil. 1050[1958] and Berciles v. Government Service
Insurance System (128 SCRA 53 [1984]) that if the father did not sign in the birth certificate, the placing of his name
by the mother, doctor, registrar, or other person is incompetent evidence of paternity does not apply to this case
because it was Eustaquio himself who went to the municipal building and gave all the data about his daughters
birth. x x x.

x x x the totality of the evidence, as pointed to above, is more than sufficient to establish beyond
reasonable doubt that appellee is the father of the plaintiff Merceditas (sic) Ilano.
As elucidated in Mendoza vs. Court of Appeals, Supra:
xxx

xxx

xxx

x x x although Teopista has failed to show that she was in open and continuous possession of the status of an
illegitimate child of Casimiro, we find that she has nevertheless established that status by another method.
What both the trial court and the respondent did not take into account is that an illegitimate child is allowed to
establish his claimed filiation by any other means allowed by the Rules of Court and special laws, according to the
Civil Code, x x x. Such evidence may consist of his baptismal certificate, a judicial admission, a family Bible in which
his name has been entered, common reputation respecting his pedigree, admission by silence, the testimonies of
witnesses, and other kinds of proof admissible under Rule 130 of the Rules of Court.
29

The last paragraph of Article 283 contains a blanket provision that practically covers all the
other cases in the preceding paragraphs. Any other evidence or proof that the defendant is the
father is broad enough to render unnecessary the other paragraphs of this article. When the
evidence submitted in the action for compulsory recognition is not sufficient to meet the
requirements of the first three paragraphs, it may still be enough under the last paragraph. This
30

paragraph permits hearsay and reputation evidence, as provided in the Rules of Court, with
respect to illegitimate filiation.
31

As a necessary consequence of the finding that private respondent is the spurious child of
petitioner, she is entitled to support. In awarding support to her, respondent court took into
account the following:
The obligation to give support shall be demandable from the time the person who has a right to recover
the same needs it for maintenance, but it shall not be paid except from the date of judicial or extrajudicial
demand. (Article 203, Family Code of the Philippines.)
The complaint in this case was filed on August 14, 1972. Plaintiff, having been born on December 30,
1963, was about nine (9) years old at the time and was already of school age spending about P400.00 to
P500.00 a month for her school expenses alone, while defendant was earning about P10,000.00 a month.
She attained the age of majority on December 30, 1984 (Article 234, Supra). She is therefore entitled to
support in arrears for a period of twelve (12) years four (4) months and fourteen (14) days, which is hereby
fixed at P800.00 a month for the first three (3) years; and considering the declining value of the peso as
well as her needs as she grows older, at a graduated increase of P1,000.00 a month for the next three (3)
years; P1,300.00 a month for the succeeding three (3) years; and P1,500.00 a month for the last three (3)
years, four (4) months and fourteen (14) days until she attained the age of majority.
This being an action for legal support, the award of attorneys fees is appropriate under Article 2208
(6) of the Civil Code. Moreover, the court deems it just and equitable under the given facts and
circumstances that attorneys fees and expenses of litigation should be recovered.
32

We concur with the foregoing disposition, in the absence of proof that it was arrived at
arbitrarily.
The other allegation of petitioner that the appeal was prosecuted almost ten years after the
decision of the trial court was rendered does not deserve any consideration because it appears
that it is being raised for the first time in this petition.
33

WHEREFORE, the petition is hereby DENIED. The decision of the Court of Appeals dated
December 17, 1991 and its resolution dated February 26, 1992 are AFFIRMED.
SO ORDERED.
Narvasa (C.J., Chairman), Padilla, Regalado andPuno, JJ., concur.
Petition denied; Assailed decision and resolution affirmed.
Notes.The mother is in the best position to know whether petitioner was really her son
(Chua Keng Giap vs. Intermediate Appellate Court, 158 SCRA 18 [1988]).

Illegitimate children have rights of the same nature as legitimate and adopted children
(Dempsey vs. Regional Trial Court, Br. LXXV, Olongapo City, 164 SCRA 384 [1988]).
o0o
No. L-39537. March 19, 1985.

IRENE REYES (alias IRENE RAMERO, alias IRENE DELGADO), MOISES VILLANUEVA
and GENOVEVA RAMERO, petitioners, vs. COURT OF APPEALS, PLACIDA DELGADO,
DOMINGO DELGADO, PAULA DELGADO and MAXIMINA DELGADO, respondents.

MAKASIAR, J.:
This is a petition for certiorari to review the decision of the Court of Appeals Special Division of
Five dated October 7, 1974 in CA-G.R. No. L-44964-R, reversing the decision of the Court of First
lnstance of Batangas, Branch I, dated December 28, 1969 in Civil Case No. 1144 dismissing the
action for reconveyance.
On January 29, 1967, private respondents as plaintiffs filed a complaint in the Court of First
Instance of Batangas praying that the defendant Irene Reyes, alias Irene Ramero or Irene
Delgado, be ordered to execute a deed of reconveyance in favor of plaintiffs Placida Delgado,
Domingo Delgado, and Paula Delgado over four parcels of land located in Tayabas, Quezon, and
one parcel of land located in Pagbilao, Quezon, and another deed of reconveyance in favor of
plaintiff Maximina Delgado over three parcels of land located inAlitagtag, Batangas,
It was alleged in the complaint that the defendants thru abuse of confidence, fraud, deceit,
misrepresentation and other falsifications succeeded in registering in the offices of the Register of
Deeds of Quezon and Batangas a document of selfadjudication (Exhibit 24"), wherein defendant
Irene Delgado alleged that she was the sole child of the deceased Francisco Delgado and entitled
to inherit the parcels of lands described in the complaint; that as a result thereof Transfer
Certificate of Title Nos. 9913, 10348, 14937, T-11747 and 13489 were cancelled and new Transfer
Certificates of Title were issued in the name of Irene Delgado; that defendant Irene Delgado is
not the illegitimate daughter of Francisco Delgado, who died without issue, but is the legitimate
daughter of Genoveva Ramero and Justino Reyes; that plaintiffs Placida Delgado, Domingo
Delgado and Paula Delgado, sisters and brother of the deceased Francisco Delgado are the heirs
entitled to inherit from Francisco Delgado; and that Paula, Placido and Domingo Delgado
defrayed the expenses of the last illness and the funeral expenses of Francisco Delgado and for
the purpose they borrowed the sum of P7,000.00 from theirniece, plaintiff Maximina Delgado,
and to pay Maximina Delgado they conveyed to her the three parcels of land described in
subparagraphs (f) to (g) of paragraph 9 of the complaint. They also alleged that the defendant
spouses Irene and Moises Villanueva borrowed from plaintiffs common fund the sum of

P23,000.00 which they used in the purchase of a parcel of land (pp. 144, Record on Appeal; p. 63,
rec.).
On or about March 2, 1967, defendant Irene Delgado, one of the petitioners herein, filed an
answer to the complaint and set up the affirmative defense that she is the illegitimate daughter
of the defendant Genoveva Ramero and the deceased Francisco Delgado; that for several years
preceding the birth of Irene Delgado, her mother Genoveva Ramero had separated from her
lawful husband Justino Reyes and never reconciled since then; and that Irene was born during
the cohabitation of Francisco Delgado and Genoveva Ramero as common-Iaw husband and wife,
and since her birth, lived with Francisco Delgado and Genoveva Ramero, who reared and treated
her as their child, maintaining her and sending her through college. Defendants also denied
having contracted a debt of P23,000.00 from plaintiffs, or that plaintiffs spent for the last illness
and funeral of Francisco Delgado. Irene Delgado likewise set up a counterclaim, alleging that, as
the illegitimate daughter of Francisco Delgado, she has the right to represent her father to the
inheritance left by her grandmother (pp. 1543, Record on Appeal; p. 63, rec.).
On March 18, 1967, the plaintiffs thru counsel filed an answer to the counterclaim denying
that the defendant Irene Delgado was the illegitimate child of Francisco Delgado, and hence has
no right to claim from the estate of Franciscos mother, Benigna Castillo, and that the properties
claimed by the defendant Irene Delgado no longer formed part of the estate of Benigna Castillo
as she had previously disposed of them during her lifetime (pp. 4346, Record on Appeal; p. 63,
rec.).
On August 15, 1967, a pre-trial in Civil Case No. 1144 was conducted.
On March 25, 1969, the plaintiffs filed a motion to admit an amended answer to the
counterclaim posed by defendant, wherein the plaintiffs alleged that the counterclaim of the
defendant, in so far as it would have the effect of being an indirect action for acknowledgment,
has already prescribed (pp. 5055, Record on Appeal; p. 63, rec.).
On April 14, 1969, the lower court admitted the amended answer to the counterclaim over the
objections of the defendant (pp. 5661, Record on Appeal; p. 63, rec.).
After trial on the merits, the Court rendered its decision on December 26,1969 dismissing the
action for reconveyance and declaring defendant Irene Delgado the lawful owner of the eight
parcels of land. The counterclaim of Irene Delgado was dismissed for insufficiency of evidence.
Both parties appealed to the Court of Appeals (now IAC), the plaintiffs with respect to their
complaint and the defendants with respect to their counterclaim.
The then Court of Appeals sitting as a Special Division of Five rendered its decision on
October 7, 1974, the dispositive portion of which reads as follows:
Wherefore, the decision of the court a quo is hereby reversed, The deed of self-adjudication executed by
Irene Delgado is hereby declared null and void and set aside. The transfer certificates of title issued in the
name of Irene Delgado in lieu of Transfer Certificate of Title Nos. 9913, 10348, 14937, T-11747 and 13489
are hereby cancelled, and T.C.T. 9913, 10348, 14937, T-11747 and 13489 are reinstated in the name of
Francisco Delgado. Likewise, the extrajudicial declaration executed by Irene Delgado adjudicating to
herself the 3 parcels of land located in Alitagtag, Batangas, with Tax Declaration Nos. 8625, 8626 and
8627 are declared null and void, No costs (pp. 5859, rec.).

The then Court of Appeals in arriving at this decision found that, although Irene Delgado was
the spurious daughter of Francisco Delgado, she nevertheless cannot inherit from the estate of
the deceased Francisco Delgado because she was not recognized either voluntarily or by court
action (pp. 5253, rec.).
The titles to the questioned lot however cannot be executed in favor of the plaintiffs; because in
so doing it will be in effect a recognition by the court that the plaintiffs are the only heirs of
Francisco Delgado to the prejudice of other possible heirs or creditors of the deceased.
As to alleged loan contracted by Irene from the plaintiffs, the then Court of Appeals affirmed
the lower courts decision that it was without merit, because if it were true, the plaintiffs could
have demanded a receipt for such a big amount,
The counterclaim of Irene that she has the share to the inheritance of Benigna Castillo,
Francisco Delgados mother, and her alleged share in the expenses for the sickness and funeral of
Francisco Delgado which was advanced by the plaintiffs, need not be ruled upon because of the
findings that Irene is not an heir of Francisco Delgado (pp. 5758, rec.).
On December 2, 1974, defendants, petitioners herein, filed a petition to review the decision of
the Court of Appeals (pp. 2237, rec.).
On January 2, 1975, the plaintiffs, respondents herein, submitted their comment on the
petition for review filed by the petitioner (pp. 6771, rec.).
On January 15, 1975, the petition for review filed by petitioners was denied in a resolution by
the First Division of the Supreme Court for lack of merit (p. 75, rec.).
On February 18, 1975, petitioners filed a motion for reconsideration (pp. 86113, rec.).
On April 5, 1975, respondents filed their comments on the motion for reconsideration filed by
petitioners (pp. 130134, rec.).
On April 23, 1975, petitioners filed their reply to respondents comment (pp. 118125, rec.).
On May 23, 1975, the Supreme Court reconsidered its resolution denying petitioners motion
for reconsideration (p. 142, rec.).
In their petition, petitioners sought to reverse the decision of the Court of Appeals raising the
following arguments:
1. 1.There are strong and cogent reasons why this Honorable Court must return to and even
enhance the doctrine in Zuzuarregui vs. Zuzuarregui, considering serious flaws in the
reasoning of the currently prevailing doctrine, so that assumingarguendo and pro hac
vice that Irene was not duly recognized or acknowledged as illegitimate child, she is
nevertheless entitled to successional rights as sole heir of the late Francisco Delgado,
considering that her filiation as illegitimate daughter of Francisco Delgado is undisputed
and beyond question (p. 12, Petitioners Brief; p. 164, rec.).
2. 2.Upon the other hand, this time assuming arguendoand pro hac vice that under the Civil
Code recognition of an other illegitimate is a pre-requisite to enjoyment of rights, Irene
Delgado was legally acknowledged by her father Francisco Delgado, specially by his

consent or advice to her marriage with Moises Villanueva contrary to the erroneous
conclusions of the Court of Appeals (p. 39,Petitioners Brief, p. 164, rec.).
The petition is without merit,
The doctrine that for an illegitimate child other than natural to inherit must be first
recognized voluntarily or by court action is well settled in Our jurisprudence. (Bercilles vs.
GSIS, 128 SCRA 53 [1984]; Divinagracia vs. Rovira, 72 SCRA 307 [1976]; Clemea vs.
Clemea, 24 SCRA 720[1968]; Noble vs. Noble, 18 SCRA 1104 [1966]; Republic vs. Workmens
Compensation Commission, 13 SCRA 272[1969]; Paulino vs. Paulino, 3 SCRA 730 [1961]; Barles
vs. Ponce Enrile, 109 Phil. 522 [1960]).
There is no reason to overturn this doctrine and revert to what was enunciated in the case
of Zuzuarregui vs. Zuzuarregui (103 Phil. 346 [1958]); as suggested by herein petitioners in their
first assignment of errors.
It is the contention of the petitioners that the silence of the Civil Code as to the recognition of
illegitimate children other than natural, in contrast to natural children who are expressly
required to be recognized in order to inherit, only meant that illegitimate children need not be
recognized in order to inherit from his or her alleged parent (p. 13, Petitioners Brief; p. 164,
rec.). Petitioners also raised the argument that under Article 287 of the New Civil Code which
reads: Illegitimate children other than natural in accordance with Article 269 and other than
natural children by legal fiction are entitled to support and such successional rights as are
granted in this code. The term other illegitimate children refers not only to those who are not
natural or merely adulterous or incestuous but also includes natural children who were not
acknowledged or recognised (p. 18, Petitioners Brief; p. 164, rec.). In other words, unrecognized
natural children can inherit not the share of a natural child but the share of a spurious child so
long as his filiation shall be duly proved. So, in effect, illegitimate children need only to prove his
filiation to inherit and such does not place him in a more advantageous position than natural
children, as they are placed in the same situation.
WE do not find these arguments persuasive.
Though the Civil Code is silent with respect to spurious children as to their recognition, this
Court, in applying the rules of recognition, applicable to natural children, to said spurious
children, declared in Clemea vs. Clemea, supra,that:
The considerations of fairness and justice that underlie the time limit fixed in Article 285 of the Civil
Code for actions seeking compulsory acknowledgment of natural children are fully applicable, if not more,
to actions to investigate and declare the paternity of illegitimate children that are not natural. The motive
that led the codifiers to restrict the period for bringing action for compulsory recognition of natural
children were stated by this Court in Serrano vs. Aragon, 22 Phil. 18, to be as follows:
x x x the writers of the code no doubt had in mind that there would arise instances where certain
illegitimate children, on account of the strong temptation due to the large estates left by deceased
persons, would attempt to establish that they were natural children of such persons in order to get part of
the property, and furthermore, they considered that it is nothing but just and right that alleged parents

should have a personal opportunity to be heard. It was for these reasons and others equally as well
founded that Article 137 was enacted' (p. 724).

There are two (2) general classifications of illegitimate children or those who are conceived and
born out of wedlock. They may be either natural (actually or by fiction) or spurious (the
incestuous, adulterous or illicit). Natural children are defined as those born outside of wedlock of
parents, who at the time of conception of the former, were not disqualified by any impediment to
many each other (Article 269, New Civil Code), On the other hand, spurious children are those
born of parents, who at the time of their conception, are disqualified to marry each other on
account of certain impediment. Because of this basic distinction between these children, it is not
legally possible to classify unrecognized natural children under the class of spurious children.
Besides, commentators construe the phrase illegitimate children other than natural as
excluding from the grants of rights under Article 287 of the New Civil Code those children who
are natural child proper by birth and who have not secured voluntary or compulsory recognition
(p. 276.An Outline of Civil Law, J.B.L. Reyes and R.C. Puno, Vol. 1). They fall within the scope of
the definition of natural children enumerated in Article 269, New Civil Code (p. 142,Civil Law
Reviewer, D. Jurado, 1982 ed.). Lastly, to follow petitioners contention will not be in accordance
with the consistent pronouncements of this Court. It is an elementary and basic principle under
the old and new Civil Code, that an unrecognized natural child has no rights whatsoever against
his parent or his estate. His rights spring not from the filiation itself, but from the childs
acknowledgment by the natural parent (Alabat vs. Alabat,21 SCRA 1479 [1967]; Mise vs.
Rodriguez, 95 Phil. 396[1954]; Magallanes vs. CA, 95 Phil. 797 [1954]; Canales vs. Ugarte, 91
Phil. 6 [1952]; Malonda vs. Malonda, 81 Phil. 149[1948]; Buenaventura vs. Urbano, 5 Phil.
1 [1905]).
As to the second assignment of error raised by petitioners, We find that there was no sufficient
legal recognition of petitioner Irene Delgado by Francisco Delgado.
It can be seen from the record of birth (Exhibit L-2") that the name of the petitioner was
Irene Ramero, and signed by Genoveva Ramero and of an unknown father. This was certified to
by the treasurer of the municipality of Alitagtag, Batangas (Exhibits L" and L-1"). Another
certified copy of another birth certificate issued by the municipal treasurer and local civil
registrar of the municipality of Alitagtag (Exhibit 20") stated therein that the name of the child
is Irene Ramero, and the name of the father is Francisco and the mother Genoveva Ramero.
Any of these records of birth cannot be sufficient recognition under the law. The birth certificate,
to be sufficient recognition, must be signed by the father and mother jointly, or by the mother
alone if the father refuses, otherwise she may be penalized (Sec. 5, Act 3753; Madredejo vs. De
Leon, 55 Phil. 1 [1930]); and if the alleged father did not sign in the birth certificate, the placing
of his name by the mother, or doctor or registrar, is incompetent evidence of paternity of said
child (Bercilles vs. GSIS, 128 SCRA 53 [1984]; Roces vs. Local Civil Registrar of Manila, 102
Phil. 1050 [1958]). Since any of the certificates of birth presented were not signed by Francisco
Delgado, it cannot be taken as record of birth to prove recognition of Irene Delgado; nor can this

birth certificate be taken as a recognition in a public instrument (Pareja vs. Pareja, 95 Phil.
167 [1954]).
Irenes certificate of baptism (Exhibit 1") cannot be taken as proof of recognition (Bercilles vs.
GSIS, supra;People vs. Villeza, 127 SCRA 349 [1984]; Cid vs. Burnaman,24 SCRA
434 [1968]; Vudaurrazaga vs. CA, 91 Phil. 492[1952]; Capistrano vs. Gabino, 8 Phil. 135 [1907]).
In the case of Macadangdang vs. CA [100 SCRA 73 [1980]), this Court said that while baptismal
certificates may be considered public documents, they are evidence only to prove the
administration of the sacraments on the dates therein specified, but not the veracity of the
statements or declarations made therein with respect to his kinsfolk.
Irenes secondary student permanent record (Exhibits 12", 13", 15" and 16") nor the
written consent given by Irene to the operation of her alleged father (Exhibit 4") cannot be taken
as an authentic writing. An authentic writing does not have to be a public instrument; it is suf
ficient that it is genuine and not a forgery. It must generally be signed by the alleged parent
(Madredejo vs. De Leon,supra) unless the whole instrument is in the handwriting of the alleged
parent and the facts mentioned therein correspond to actual and real facts (Varela vs.
Villanueva,95 Phil. 248 [1954]). Thus, Irenes secondary student permanent record and her
written consent to the operation of her father, not being signed nor written in the handwriting of
Francisco Delgado, cannot be taken as an authentic writing to prove her recognition by her
alleged father.
The marriage contract (Exhibit 17") of Irene Delgado and Moises Villanueva, wherein it was
stated that Francisco Delgado gave his consent or advice for Irene Delgado to marry, that he was
her father cannot be also as recognition in an authentic document because it was not signed nor
in the handwriting of Francisco Delgado, It cannot also be taken as recognition in a public
instrument as held in the case of Lim vs. CA, (65 SCRA 161, 164 [1975]) wherein the Court said:
According to Article 1216 of the Civil Code of 1889. Public documents are those authenticated by a
notary or by a competent public official with the formalities required by law/ Thus, there are two classes
of public documents, those executed by private individuals which must be authenticated by notaries, and
those issued by competent public officials by reason of their office. The public document pointed out in
Article 131 as one of the means by which recognition may be made belongs to the first class.
The marriage contract presented by Felisa Lim does :not satisfy the requirements of solemnity
prescribed by article 131 of the Civil Code of 1889. Such contract is not a written act with the intervention
of a notary; it is not an instrument executed in due form before a notary and certified by him. The
marriage contract is a mere declaration by the contracting parties, in the presence of the person
solemnizing the marriage and of two witnesses of legal age, that they take each other as husband and
wife, signed by signature or mark by said contracting parties and the said witnesses, and attested by the
person solemnizing the marriage. The marriage contract does not possess then requisites of a public
document of recognition. x x x

The family pictures (Exhibits 11" to 11-E") presented by Irene, showing Irene posing with
Francisco Delgado, cannot be a sufficient proof of recognition. In the case of Bercilles vs.
GSIS, supra, it was held that pictures do not constitute proof of filiation.

What Irene may have proved is that she had been in continuous possession of a status of an
illegitimate child who is not natural. But such fact alone without a valid recognition in a record
of birth, will, statement before a court of record, or authentic writing does not make Irene a
recognized illegitimate child who is not natural. She nevertheless possesses the right to compel
judicial recognition and the action for this must be brought within the proper prescriptive period
(Clemea vs. Clemea,supra). Article 285 of the New Civil Code provides that the action for the
recognition of natural children may be brought only during the lifetime of the presumed parents,
except when the father or mother dies during the minority of the child, the action shall be
brought within four years from the age of majority, or if after the death of the father or of the
mother a document should appear of which nothing had been heard and in which either or both
parents recognize the child, the action shall be brought within four years from the finding of the
document. Since Irene was already of age (35 years old) when her alleged father died, and she
had not presented any discovered document wherein her presumed father recognized her, the
action to compel recognition is already barred (Canales vs. Arrogante, 91 Phil. 6 [1952]).
WE affirm the findings of the then Court of Appeals that Irene Reyes alias Irene Delgado is
not an heir of the late Francisco Delgado.
WHEREFORE, THE DECISION OF THE THEN COURT OF APPEALS IS HEREBY
AFFIRMED IN TOTO,WITH COSTS AGAINST PETITIONERS.
Concepcion, Jr., Abad Santos, Escolin and Cuevas, JJ., concur.
Aquino, J., see dissent.
BIENVENIDO RODRIGUEZ, petitioner, vs. COURT OF APPEALS and CLARITO AGBULOS,
respondents.

This is a petition for review on certiorari under Rule 45 of the Revised Rules of Court of the
Decision of the Court of Appeals dated November 2, 1988 in CA-G.R. SP No. 14276, which
allowed, in an action for compulsory recognition, the testimony of the mother of a natural child on
the identity of the putative father.
I
On October 15, 1986, an action for compulsory recognition and support was brought before the
Regional Trial Court, Branch 9, Baguio-Benguet, by respondent Alarito (Clarito) Agbulos against
Bienvenido Rodriguez, petitioner herein. At the trial, the plaintiff presented his mother, Felicitas
Agbulos Haber, as first witness. In the course of her direct examination, she was asked by
counsel to reveal the identity of the plaintiffs father but the defendants counsel raised a timely
objection which the court sustained.
The plaintiff filed before this Court a petition for review on certiorari questioning the said
order in UDK 8516 entitled Clarito Agbulos v. Hon. Romeo A. Brawner and Bienvenido

Rodriguez. On March 18, 1988, this Court referred the petition to the Court of Appeals (CA-G.R.
SP No. 14276), which promulgated the questioned Decision dated November 2, 1988.
II
In the instant petition for review on certiorari, petitioner alleged that the Court of Appeals erred:
(1) in not dismissing the petition for certiorari on the ground that the order of the trial court
disallowing the testimony of Felicitas Agbulos Haber was interlocutory and could not be reviewed
separately from the judgment; and (2) in reversing the said order and allowing the admission of
said testimony.
As a rule, errors of judgment or of procedure, not relating to the courts jurisdiction nor
involving grave abuse of discretion, are not reviewable by certiorari under Rule 65 of the Revised
Rules of Court (Villalon v. Intermediate Appellate Court, 144 SCRA 443 [1986]). However, there
are exceptions to said rule. For instance, certiorari is justified in order to prevent irreparable
damages and injury to a party, where the trial judge capriciously and whimsically exercised his
judgment, or where there may be danger of failure of justice. Certiorari may also be availed of
where an appeal would be slow, inadequate and insufficient (Presco v. Court of Appeals, 192
SCRA 232 [1990]; Saludes v. Pajarillo, 78 Phil. 754 [1947]).
We find that had the appellate court sanctioned the trial courts disallowance of the testimony of
plaintiffs mother, private respondent would have been deprived of a speedy and adequate remedy
considering the importance of said testimony and the erroneous resolution of the trial court.
On the merits of his petition, petitioner contended that Felicitas Agbulos Haber should not be
allowed to reveal the name of the father of private respondent because such revelation was
prohibited by Article 280 of the Civil Code of the Philippines. Said Article provided:
When the father or the mother makes the recognition separately, he or she shall not reveal the name of
the person with whom he or she had the child; neither shall he or she state any circumstance whereby the
other party may be identified.

On the other hand, private respondent argued that his mother should be allowed to testify on the
identity of his father, pursuant to paragraph 4, Article 283 of the Civil Code of the Philippines
and Section 30, Rule 130 of the Revised Rules of Court. Article 283 of the Civil Code of the
Philippines provided:
In any of the following cases, the father is obliged to recognize the child as his natural child:
1. (1)In cases of rape, abduction or seduction, when the period of the offense coincides more or less
with that of the conception;

2. (2)When the child is in continuous possession of status of a child of the alleged father by the direct
acts of the latter or of his family;
3. (3)When the child was conceived during the time when the mother cohabited with the supposed
father;
4. (4)When the child has in his favor any evidence or proof that the defendant is his father.

Section 30, Rule 130 of the Revised Rules of Court provides:

Testimony generally confined to personal knowledge; hearsay excluded.A witness can testify only to
those facts which he knows of his own knowledge, that is, which are derived from his own perception,
except as otherwise provided in these rules.

Private respondent cannot invoke our decision in Navarro v. Bacalla, 15 SCRA 114 (1965). While
we ruled in Navarrothat the testimony of the mother of the plaintiff in said case, could be used to
establish his paternity, such testimony was admitted during the trial without objection and the
defendant accepted the finding of the trial court that he was the father of the plaintiff.
In the case at bench, petitioner timely objected to the calling of the mother of private
respondent to the witness stand to name petitioner as the father of said respondent.
Likewise, in Navarro we clearly stated:
We are not ruling whether the mere testimony of the mother, without more, is sufficient to prove the
paternity of the child. Neither are we ruling on the scope of Art. 280, New Civil Code which enjoins the
mother in making a separate and voluntary recognition of a child from revealing the name of the father,
specifically, as to whether the mothers testimony identifying the father is admissible in an action to
compel recognition if and when a timely objection to such oral evidence is interposed (at p. 117).

Navarro, therefore, is not the end but only the beginning of our quest, which felicitously was
reached with our conclusion that the prohibition in Article 280 against the identification of the
father or mother of a child applied only in voluntary and not in compulsory recognition. This
conclusion becomes abundantly clear if we consider the relative position of the progenitor of
Article 280, which was Article 132 of the Spanish Civil Code of 1889, with the other provisions on
the acknowledgment of natural children of the same Code.
Article 132 was found in Section I (Acknowledgment of Natural Children), Chapter IV
(Illegitimate Children), Title V (Paternity and Filiation), Book First (Persons) of the Spanish
Civil Code of 1889.
The first article in said Section provided:

ART. 129A natural child may be acknowledged by the father and mother jointly or by either of them
alone.

The next article provided:

ART. 130In case the acknowledgment is made by only one of the parents, it shall be presumed that the
child is a natural one if the parent acknowledging it was, at the time of the conception, legally competent
to contract marriage.

The article immediately preceding Article 132 provided:

ART. 131The acknowledgment of a natural child must be made in the record of birth, in a will, or in
some other public document.

Article 132 of the Spanish Civil Code provided:

When the acknowledgment is made separately by the father or the mother, the name of the childs other
parent shall not be revealed by the parent acknowledging it, nor shall any circumstance be mentioned by
which such person might be recognized.
No public officer shall authenticate any document drawn in violation of this provision and should he
do so notwithstanding this prohibition shall be liable to a fine of from 125 to 500 pesetas, and the words
containing such revelation shall be striken out.

Article 280 of the Civil Code of the Philippines was found in Section 1 (Recognition of Natural
Children), Chapter 4 (Illegitimate Children), Title VIII (Paternity and Filiation) of said Code.
The whole section was repealed by the Family Code.
The first article of this section was Article 276 which was a reproduction of Article 129 of the
Spanish Civil Code. The second article was Article 277 which was a reproduction of Article 130 of
the Spanish Civil Code. The third article was Article 278 which was a reproduction of Article 131
of the Spanish Civil Code.
However, unlike in the Spanish Civil Code, wherein the progenitor of Article 280 followed
immediately the progenitor of Article 278, a new provision was inserted to separate Article 280
from Article 278. The new provision, Article 279, provided:
A minor who may contract marriage without parental consent cannot acknowledge a natural child, unless
the parent or guardian approves the acknowledgment, or unless the recognition is made in the will.

If the sequencing of the provisions in the Spanish Civil Code were maintained in the Civil Code
of the Philippines, and Article 280 was numbered Article 279, it becomes clear that the
prohibition against the identification by the parent acknowledging a child of the latters other
parent refers to the voluntary recognition provided for in Article 278.

Senator Arturo M. Tolentino is of the view that the prohibition in Article 280 does not apply in
an action for compulsory recognition. According to him:
The prohibition to reveal the name or circumstance of the parent who does not intervene in the separate
recognition is limited only to the very act of making such separate recognition. It does not extend to any
other act or to cases allowed by law. Thus, when a recognition has been made by one parent, the name of
the other parent may be revealed in an action by the child to compel such other parent to recognize him
also (I Commentaries and Jurisprudence on the Civil Code of the Philippines 590 [1985]).

Justice Eduardo Caguioa also opines that the said prohibition refers merely to the act of
recognition. It does prevent inquiry into the identity of the other party in case an action is
brought in court to contest recognition on the ground that the child is not really natural because
the other parent had no legal capacity to contract marriage (I Comments and Cases on Civil
Law 380 [1967] citing In re Estate of Enriquez, 29 Phil. 167 [1915]).
We have not lost sight of our decision in Infante v. Figueras, 4 Phil. 738 (1905), where we
rejected the testimony of the mother of a child that the defendant was the father of the plaintiff.
The action for recognition in that case was brought under Article 135 of the Spanish Civil Code,
which limited actions to compel recognition to cases when an indubitable writing existed wherein
the father expressly acknowledged his paternity and when the child was in the uninterrupted
possession of the status of a natural child of the defendant father justified by the conduct of the
father himself or that of his family.
The action filed by private respondent herein was brought under Article 283 of the Civil Code
of the Philippines, which added new grounds for filing an action for recognition: namely,
xxx

xxx

xxx

1. 3)When the child was conceived during the time when the mother cohabited with the supposed
father;
2. 4)When the child has in his favor any evidence or proof that the defendant is his father.
157

Likewise, the testimony of the mother of the plaintiff inInfante was not admissible under the
procedural law then in force, which was the Law of Bases of May 11, 1888. Said law in pertinent
part provided:
No se admitira la investigacion de la paternidad si no en los casos de delito o cuando existe escrito del
padre en el que conste su voluntad indubitada de reconnocer por suyo al hijo, deliberadamente expresada
con ese fin, o cuando medie posesion de estado. Se permitira la investigacion de la maternidad.

Traditionally, there was a free inquiry into the paternity of children allowed by French royal
decrees but the investigation of paternity was forbidden by the French Revolutionary
Government in order to repress scandal and blackmail. This prohibition passed to the French
Civil Code and from it to the Spanish Civil Code of 1889 (I Reyes and Puno, An Outline of
Philippine Civil Code 266 [4th ed.]).
Worth noting is the fact that no similar prohibition found in Article 280 of the Civil Code of
the Philippines has been replicated in the present Family Code. This undoubtedly discloses the
intention of the legislative authority to uphold the Code Commissions stand to liberalize the rule
on the investigation of the paternity of illegitimate children.
Articles 276, 277, 278, 279 and 280 of the Civil Code of the Philippines were repealed by the
Family Code, which now allows the establishment of illegitimate filiation in the same way and on
the same evidence as legitimate children (Art. 175).
Under Article 172 of the Family Code, filiation of legitimate children is by any of the following:
The filiation of legitimate children is established by any of the following:
1. (1)The record of birth appearing in the civil register or a final judgment; or
2. (2)An admission of legitimate filiation in a public document or a private handwritten instrument
and signed by the parent concerned.
In the absence of the foregoing evidence, the legitimate filiation shall be proved by:
1. (1)The open and continuous possession of the status of a legitimate child; or
2. (2)Any other means allowed by the Rules of Court and special laws. (265a, 266a, 267a)

Of interest is that Article 172 of the Family Code adopts the rule in Article 283 of the Civil Code
of the Philippines, that filiation may be proven by any evidence or proof that the defendant is his
father.
WHEREFORE, the Decision of the Court of Appeals is AFFIRMED. The trial court is
DIRECTED to PROCEED with dispatch in the disposition of the action for compulsory
recognition.
SO ORDERED.
Davide, Jr., Bellosillo and Kapunan, JJ., concur.
Padilla (Chairman), J., No part; personal reasons.

Judgment affirmed.
Notes.Voluntary recognition may be done incidentally in any of the documents required by
law for proof of recognition. But in compulsory evidence of direct or express acknowledgment is
required. (Baluyut vs. Baluyut, 186 SCRA 506 [1990])
Under the New Civil Code, an action for compulsory recognition should be brought against the
putative father subject to the exceptions under Article 285. (Hernaez, Jr. vs. Intermediate
Appellate Court, 208 SCRA 449 [1992])

February 18, 2014.G.R. No. 206248.*

GRACE M. GRANDE, petitioner, vs. PATRICIO T. ANTONIO, respondent.

Before this Court is a Petition for Review on Certiorari under Rule 45, assailing the July 24,
2012 Decision1 and March 5, 2013 Resolution 2 of the Court of Appeals (CA) in CA-G.R. CV No.
96406.
As culled from the records, the facts of this case are:
Petitioner Grace Grande (Grande) and respondent Patricio Antonio (Antonio) for a period of
time lived together as husband and wife, although Antonio was at that time already married to
someone else.3 Out of this illicit relationship, two sons were born: Andre Lewis (on February 8,
1998) and Jerard Patrick (on October 13, 1999). 4 The children were not expressly recognized by
respondent as his own in the Record of Births of the children in the Civil Registry. The parties
relationship, however, eventually turned sour, and Grande left for the United States with her two
children in May 2007. This prompted respondent Antonio to file a Petition for Judicial Approval
of Recognition with Prayer to take Parental Authority, Parental Physical Custody,
Correction/Change of Surname of Minors and for the Issuance of Writ of Preliminary Injunction
before the Regional Trial Court, Branch 8 of Aparri, Cagayan (RTC), appending a notarized Deed
of Voluntary Recognition of Paternity of the children.5
On September 28, 2010, the RTC rendered a Decision in favor of herein respondent Antonio,
ruling that [t]he evidence at hand is overwhelming that the best interest of the children can be
promoted if they are under the sole parental authority and physical custody of [respondent
Antonio].6 Thus, the court a quo decreed the following:

WHEREFORE, foregoing premises considered, the Court hereby grants [Antonios] prayer for
recognition and the same is hereby judicially approved. x x x Consequently, the Court forthwith
issues the following Order granting the other reliefs sought in the Petition, to wit:
a. Ordering the Office of the City Registrar of the City of Makati to cause the entry of the name of
[Antonio] as the father of the aforementioned minors in their respective Certificate of Live Birth
and causing the correction/change and/or annotation of the surnames of said minors in
their Certificate of Live Birth from Grande to Antonio;
b. Granting [Antonio] the right to jointly exercise Parental Authority with [Grande] over the persons of
their minor children, Andre Lewis Grande and Jerard Patrick Grande;
c. Granting [Antonio] primary right and immediate custody over the parties minor children Andre
Lewis Grandre and Jerard Patrick Grande who shall stay with [Antonios] residence in the
Philippines from Monday until Friday evening and to [Grandes] custody from Saturday to Sunday
evening;
d. Ordering [Grande] to immediately surrender the persons and custody of minors Andre Lewis
Grande and Jerard Patrick Grande unto [Antonio] for the days covered by the Order;
e. Ordering parties to cease and desist from bringing the aforenamed minors outside of the country,
without the written consent of the other and permission from the court.
f. Ordering parties to give and share the support of the minor children Andre Lewis Grande and Jerard
Patrick Grande in the amount of P30,000 per month at the rate of 70% for [Antonio] and 30% for
[Grande]. (Emphasis supplied.)
7

Aggrieved, petitioner Grande moved for reconsideration. However, her motion was denied by
the trial court in its Resolution dated November 22, 2010 8 for being pro formaand for lack of
merit.
Petitioner Grande then filed an appeal with the CA attributing grave error on the part of the
RTC for allegedly ruling contrary to the law and jurisprudence respecting the grant of sole
custody to the mother over her illegitimate children. 9 In resolving the appeal, the appellate court
modified in part the Decision of the RTC. The dispositive portion of the CA Decision reads:
WHEREFORE, the appeal is partly GRANTED. Accordingly, the appealed Decision of the
Regional Trial Court Branch 8, Aparri Cagayan in SP Proc. Case No. 11-4492 is MODIFIED in
part and shall hereinafter read as follows:
a. The Offices of the Civil Registrar General and the City Civil Registrar of Makati City are
DIRECTED to enter the surname Antonio as the surname of Jerard Patrick and Andre
Lewis, in their respective certificates of live birth, and record the same in the Register of
Births;

b. [Antonio] is ORDERED to deliver the minor children Jerard Patrick and Andre Lewis to the custody
of their mother herein appellant, Grace Grande who by virtue hereof is hereby awarded the full or
sole custody of these minor children;
c. [Antonio] shall have visitorial rights at least twice a week, and may only take the children out upon
the written consent of [Grande]; and
d. The parties are DIRECTED to give and share in support of the minor children Jerard Patrick and
Andre Lewis in the amount of P30,000.00 per month at the rate of 70% for [Antonio] and 30% for
[Grande]. (Emphasis supplied.)

In ruling thus, the appellate court ratiocinated that notwithstanding the fathers recognition
of his children, the mother cannot be deprived of her sole parental custody over them absent the
most compelling of reasons.10 Since respondent Antonio failed to prove that petitioner Grande
committed any act that adversely affected the welfare of the children or rendered her unsuitable
to raise the minors, she cannot be deprived of her sole parental custody over their children.
The appellate court, however, maintained that the legal consequence of the recognition

made by respondent Antonio that he is the father of the minors, taken in conjunction
with the universally protected best-interest-of-the-child clause, compels the use by
the children of the surname ANTONIO.11

As to the issue of support, the CA held that the grant is legally in order considering that not
only did Antonio express his willingness to give support, it is also a consequence of his
acknowledging the paternity of the minor children. 12 Lastly, the CA ruled that there is no reason
to deprive respondent Antonio of his visitorial right especially in view of the constitutionally
inherent and natural right of parents over their children.13
Not satisfied with the CAs Decision, petitioner Grande interposed a partial motion for
reconsideration, particularly assailing the order of the CA insofar as it decreed the change of the
minors surname to Antonio. When her motion was denied, petitioner came to this Court via the
present petition. In it, she posits that Article 176 of the Family Code as amended by Republic
Act No. (RA) 9255, couched as it is in permissive language may not be invoked by a father to
compel the use by his illegitimate children of his surname without the consent of their mother.
We find the present petition impressed with merit.
The sole issue at hand is the right of a father to compel the use of his surname by his
illegitimate children upon his recognition of their filiation. Central to the core issue is the
application of Art. 176 of the Family Code, originally phrased as follows:

Illegitimate children shall use the surname and shall be under the parental authority of their
mother, and shall be entitled to support in conformity with this Code. The legitime of each
illegitimate child shall consist of one-half of the legitime of a legitimate child. Except for this
modification, all other provisions in the Civil Code governing successional rights shall remain in
force.

This provision was later amended on March 19, 2004 by RA 9255 14 which now reads:
Illegitimate children shall use the surname and shall be under the parental authority of their
mother, and shall be entitled to support in conformity with this Code. However,176.
Art. illegitimate children may use the surname of their father if their filiation has been

expressly recognized by their father through the record of birth appearing in the civil
register, or when an admission in a public document or private handwritten instrument is made
by the father. Provided, the father has the right to institute an action before the regular courts to
prove non-filiation during his lifetime. The legitime of each illegitimate child shall consist of onehalf of the legitime of a legitimate child. (Emphasis supplied.)
From the foregoing provisions, it is clear that the general rule is that an illegitimate
child shall use the surname of his or her mother. The exception provided by RA 9255 is, in case
his or her filiation is expressly recognized by the father through the record of birth appearing in
the civil register or when an admission in a public document or private handwritten instrument
is made by the father. In such a situation, the illegitimate child may use the surname of the
father.
In the case at bar, respondent filed a petition for judicial approval of recognition of the filiation
of the two children with the prayer for the correction or change of the surname of the minors
from Grande to Antonio when a public document acknowledged before a notary public under Sec.
19, Rule 132 of the Rules of Court 15 is enough to establish the paternity of his children. But he
wanted more: a judicial conferment of parental authority, parental custody, and an official
declaration of his childrens surname as Antonio.
Parental authority over minor children is lodged by Art. 176 on the mother; hence,
respondents prayer has no legal mooring. Since parental authority is given to the mother, then
custody over the minor children also goes to the mother, unless she is shown to be unfit.
Now comes the matter of the change of surname of the illegitimate children. Is there a legal
basis for the court a quo to order the change of the surname to that of respondent?
Clearly, there is none. Otherwise, the order or ruling will contravene the explicit and
unequivocal provision of Art. 176 of the Family Code, as amended by RA 9255.

Art. 176 gives illegitimate children the right to decide if they want to use the surname of their
father or not. It is not the father (herein respondent) or the mother (herein petitioner) who is
granted by law the right to dictate the surname of their illegitimate children.
Nothing is more settled than that when the law is clear and free from ambiguity, it must be
taken to mean what it says and it must be given its literal meaning free from any
interpretation.16 Respondents position that the court can order the minors to use his surname,
therefore, has no legal basis.
On its face, Art. 176, as amended, is free from ambiguity. And where there is no ambiguity,
one must abide by its words. The use of the word may in the provision readily shows that an
acknowledged illegitimate child is under no compulsion to use the surname of his illegitimate
father. The word may is permissive and operates to confer discretion 17 upon the illegitimate
children.
It is best to emphasize once again that the yardstick by which policies affecting children are to
be measured is their best interest. On the matter of childrens surnames, this Court has, time
and again, rebuffed the idea that the use of the fathers surname serves the best interest of the
minor child. In Alfon v. Republic,18 for instance, this Court allowed even a legitimate child to
continue using the surname of her mother rather than that of her legitimate father as it serves
her best interest and there is no legal obstacle to prevent her from using the surname of her
mother to which she is entitled. In fact, in Calderon v. Republic,19 this Court, upholding the best
interest of the child concerned, even allowed the use of a surname different from the surnames of
the childs father or mother. Indeed, the rule regarding the use of a childs surname is second only
to the rule requiring that the child be placed in the best possible situation considering his
circumstances.
In Republic of the Philippines v. Capote,20 We gave due deference to the choice of an illegitimate
minor to use the surname of his mother as it would best serve his interest, thus:
The foregoing discussion establishes the significant connection of a persons name to his identity,
his status in relation to his parents and his successional rights as a legitimate or illegitimate child.
For sure, these matters should not be taken lightly as to deprive those who may, in any way, be
affected by the right to present evidence in favor of or against such change.
The law and facts obtaining here favor Giovannis petition. Giovanni availed of the proper
remedy, a petition for change of name under Rule 103 of the Rules of Court, and complied with all
the procedural requirements. After hearing, the trial court found (and the appellate court affirmed)
that the evidence presented during the hearing of Giovannis petition sufficiently established that,
under Art. 176 of the Civil Code, Giovanni is entitled to change his name as he was never
recognized by his father while his mother has always recognized him as her child. A change of name
will erase the impression that he was ever recognized by his father. It is also to his best interest
as it will facilitate his mothers intended petition to have him join her in the United

States. This Court will not stand in the way of the reunification of mother and son .
(Emphasis supplied.)

An argument, however, may be advanced advocating the mandatory use of the fathers
surname upon his recognition of his illegitimate children, citing the Implementing Rules and
Regulations (IRR) of RA 9255,21 which states:

7.RuleRequirements for the Child to Use the Surname of the Father

For Births Not Yet Registered7.1
The illegitimate child7.1.1 shall use the surname of the father if a public document is executed by
the father, either at the back of the Certificate of Live Birth or in a separate document.
If admission of paternity is made through a private instrument, the child7.1.2 shall use the
surname of the father, provided the registration is supported by the following documents:
xxxx
For Births Previously Registered under the Surname of the Mother7.2.
If filiation has been expressly recognized by the father, the child7.2.1 shall use the surname of the
father upon the submission of the accomplished AUSF [Affidavit of Use of the Surname of the
Father].
If filiati7.2.2on has not been expressly recognized by the father, the child shall use the surname of
the father upon submission of a public document or a private handwritten instrument supported by
the documents listed in Rule 7.1.2.
Except in Item 7.2.1, the consent of the illegitimate child is required if he/she has reached the age of
majority. The consent may be contained in a separate instrument duly notarized.7.3
xxxx
8.RuleEffects of Recognition
For Births Not Yet Registered8.1
The surname of the father8.1.1 shall be entered as the last name of the child in the Certificate of
Live Birth. The Certificate of Live Birth shall be recorded in the Register of Births.
xxxx
For Births Previously Registered under the Surname of the Mother8.2

If admission of paternity was made either at the back of the Certificate of Live Birth or in a
separate public document or in a private handwritten document, the public document or AUSF shall
be recorded in the Register of Live Birth and the Register of Births as follows:8.2.1
The surname of the child is hereby changed from (original surname) to (new surname) pursuant
to RA 9255.
The original surname of the child appearing in the Certificate of Live Birth and Register of Births
shall not be changed or deleted.
If filiation was not expressly recognized at the time of registration, the public document or AUSF
shall be recorded in the Register of Legal Instruments. Proper annotation shall be made in the
Certificate of Live Birth and the Register of Births as follows:8.2.2
711

Acknowledged by (name of father) on (date). The surname of the child is hereby changed from
(original surname) on (date) pursuant to RA 9255. (Emphasis supplied.)

Nonetheless, the hornbook rule is that an administrative issuance cannot amend a legislative
act. In MCC Industrial Sales Corp. v. Ssangyong Corporation,22 We held:
After all, the power of administrative officials to promulgate rules in the implementation of a
statute is necessarily limited to what is found in the legislative enactment itself. The implementing
rules and regulations of a law cannot extend the law or expand its coverage, as the power to amend
or repeal a statute is vested in the Legislature. Thus, if a discrepancy occurs between the basic law
and an implementing rule or regulation, it is the former that prevails, because the law cannot be
broadened by a mere administrative issuance an administrative agency certainly cannot amend
an act of Congress.

Thus, We can disregard contemporaneous construction where there is no ambiguity in law

and/or the construction is clearly erroneous.23 What is more, this Court has the constitutional
prerogative and authority to strike down and declare as void the rules of procedure of special
courts and quasi-judicial bodies24 when found contrary to statutes and/or the
Constitution.25 Section 5(5), Art. VIII of the Constitution provides:
5.Sec.The Supreme Court shall have the following powers:
xxxx
Promulgate rules concerning the protection and enforcement of constitutional rights, pleading,
practice and procedure in all courts, the admission to the practice of law, the Integrated Bar, and
legal assistance to the underprivileged. Such rules shall provide a simplified and inexpensive

procedure for the speedy disposition of cases, shall be uniform for all courts of the same grade, and
shall not diminish, increase, or modify substantive rights.(5) Rules of procedure of special
courts and quasi-judicial bodies shall remain effective unless disapproved by the
Supreme Court. (Emphasis supplied.)

Thus, We exercise this power in voiding the above-quoted provisions of the IRR of RA 9255
insofar as it provides the mandatory use by illegitimate children of their fathers surname upon
the latters recognition of his paternity.
To conclude, the use of the word shall in the IRR of RA 9255 is of no moment. The clear,
unambiguous, and unequivocal use of may in Art. 176 rendering the use of an illegitimate
fathers surname discretionary controls, andillegitimate children are given the choice on
the surnames by which they will be known.

At this juncture, We take note of the letters submitted by the children, now aged thirteen (13)
and fifteen (15) years old, to this Court declaring their opposition to have their names changed to
Antonio.26 However, since these letters were not offered before and evaluated by the trial court,
they do not provide any evidentiary weight to sway this Court to rule for or against petitioner. 27 A
proper inquiry into, and evaluation of the evidence of, the childrens choice of surname by the
trial court is necessary.
WHEREFORE, the instant petition is PARTIALLY GRANTED. The July 24, 2012 Decision

of the Court of Appeals in CA-G.R. CV No. 96406 is MODIFIED, the dispositive portion of which
shall read:
WHEREFORE, the appeal is partly GRANTED. Accordingly, the appealed Decision of the Regional

Trial Court Branch 8, Aparri Cagayan in SP Proc. Case No. 11-4492 is MODIFIED in part and shall
hereinafter read as follows:
a. [Antonio] is ORDERED to deliver the minor children Jerard Patrick and Andre Lewis to the custody
of their mother herein appellant, Grace Grande who by virtue hereof is hereby awarded the full or
sole custody of these minor children;
b. [Antonio] shall have visitation rights at least twice a week, and may only take the children out upon
the written consent of [Grande];
28

c. The parties are DIRECTED to give and share in support of the minor children Jerard Patrick and
Andre Lewis in the amount of P30,000.00 per month at the rate of 70% for [Antonio] and 30% for
[Grande]; and

d. The case is REMANDED to the Regional Trial Court, Branch 8 of Aparri, Cagayan for the
sole purpose of determining the surname to be chosen by the children Jerard Patrick
and Andre Lewis.

Rule 7 and Rule 8 of the Office of the Civil Registrar General Administrative Order No. 1,
Series of 2004 areDISAPPROVED and hereby declared NULL and VOID.
SO ORDERED.
Sereno
(CJ.),
Carpio,
Leonardo-De
Castro,
Peralta,
Bersamin, Del Castillo, Abad, Villarama, Jr., Perez, Reyes, Perlas-Bernabe and Leonen, JJ.,
concur.
Brion, J., On Leave.
Mendoza, J., No part.
Petition partially granted, judgment modified.
Notes.It is a settled rule that only legitimate children follow the citizenship of the father
and that illegitimate children are under the parental authority of the mother and follow her
nationality. (Go, Sr. vs. Ramos, 598 SCRA 266 [2009])
The filing of a record on appeal is not necessary where no other matter remains to be heard
and determined by the trial court after it issued the appealed order granting the petition for
cancellation of birth record and change of surname in the civil registry. (Republic vs. Nishina,
634 SCRA 716 [2010])