PERSONS CASES ART 56 90

G.R. No. L-13553

February 23, 1960

JOSE DE OCAMPO, petitioner,

vs.
SERAFINA FLORENCIANO, respondent.
Joselito J. Coloma for petitioner.
BENGZON, J.:
Action for legal separation by Jose de Ocampo against his wife Serafina, on the ground of adultery.
The court of first instance of Nueva Ecija dismissed it. The Court of Appeals affirmed, holding there
was confession of judgment, plus condonation or consent to the adultery and prescription.
We granted certiorari to consider the application of articles 100 and 101 of the New Civil Code,
which for convenience are quoted herewith:
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. 101.No decree of legal separation shall be promulgated upon a stipulation of facts or
by confession of judgment.
In case of non-appearance of the defendant, the court shall order the prosecuting attorney to
inquire whether or not a collusion between the parties exists. If there is no collusion, the
prosecuting attorney shall intervene for the State in order to take care that the evidence for
the plaintiff is not fabricated.
The record shows that on July 5, 1955, the complaint for legal separation was filed. As amended, it
described their marriage performed in 1938, and the commission of adultery by Serafina, in March
1951 with Jose Arcalas, and in June 1955 with Nelson Orzame.
Because the defendant made no answer, the court defaulted her, and pursuant to Art. 101 above,
directed the provincial fiscal to investigate whether or not collusion existed between the parties. The
fiscal examined the defendant under oath, and then reported to the Court that there was no
collusion. The plaintiff presented his evidence consisting of the testimony of Vicente Medina, Ernesto
de Ocampo, Cesar Enriquez, Mateo Damo, Jose de Ocampo and Capt. Serafin Gubat.
According to the Court of Appeals, the evidence thus presented shows that "plaintiff and defendant
were married in April 5, 1938 by a religious ceremony in Guimba, Nueva Ecija, and had lived
thereafter as husband and wife. They begot several children who are now living with plaintiff. In
March, 1951, plaintiff discovered on several occasions that his wife was betraying his trust by
maintaining illicit relations with one Jose Arcalas. Having found the defendant carrying marital

relations with another man plaintiff sent her to Manila in June 1951 to study beauty culture, where
she stayed for one year. Again, plaintiff discovered that while in the said city defendant was going
out with several other men, aside from Jose Arcalas. Towards the end of June, 1952, when
defendant had finished studying her course, she left plaintiff and since then they had lived
separately.
"On June 18, 1955, plaintiff surprised his wife in the act of having illicit relations with another man by
the name of Nelson Orzame. Plaintiff signified his intention of filing a petition for legal separation, to
which defendant manifested her conformity provided she is not charged with adultery in a criminal
action. Accordingly, plaintiff filed on July 5, 1955, a petition for legal separation."
The Court of Appeals held that the husband's right to legal separation on account of the defendant's
adultery with Jose Arcalas had prescribed, because his action was not filed within one year from
March 1951 when plaintiff discovered her infidelity. (Art. 102, New Civil Code) We must agree with
the Court of Appeals on this point.1
As to the adultery with Nelson Orzame, the appellate court found that in the night of June 18, 1955,
the husband upon discovering the illicit connection, expressed his wish to file a petition for legal
separation and defendant readily agreed to such filing. And when she was questioned by the Fiscal
upon orders of the court, she reiterated her conformity to the legal separation even as she admitted
having had sexual relations with Nelson Orzame. Interpreting these facts virtually to mean a
confession of judgment the Appellate Court declared that under Art. 101, legal separation could not
be decreed.
As we understand the article, it does not exclude, as evidence, any admission or confession made
by the defendant outside of the court. It merely prohibits a decree of separation upon a confession of
judgment. Confession of judgment usually happens when the defendant appears in court and
confesses the right of plaintiff to judgment or files a pleading expressly agreeing to the plaintiff's
demand.2 This is not occur.
Yet, even supposing that the above statement of defendant constituted practically a confession of
judgment, inasmuch as there is evidence of the adultery independently of such statement, the
decree may and should be granted, since it would not be based on her confession, but upon
evidence presented by the plaintiff. What the law prohibits is a judgment based exclusively or mainly
on defendant's confession. If a confession defeats the action ipso facto, any defendant who opposes
the separation will immediately confess judgment, purposely to prevent it.
The mere circumstance that defendants told the Fiscal that she "like also" to be legally separated
from her husband, is no obstacle to the successful prosecution of the action. When she refused to
answer the complaint, she indicated her willingness to be separated. Yet, the law does not order the
dismissal. Allowing the proceeding to continue, it takes precautions against collusion, which implies
more than consent or lack of opposition to the agreement.
Needless to say, when the court is informed that defendant equally desires the separation and
admitted the commission of the offense, it should be doubly careful lest a collusion exists. (The Court
of Appeals did not find collusion.)
Collusion in divorce or legal separation means the agreement.

. . . between husband and wife for one of them to commit, or to appear to commit, or to be
represented in court as having committed, a matrimonial offense, or to suppress evidence of
a valid defense, for the purpose of enabling the other to obtain a divorce. This agreement, if
not express, may be implied from the acts of the parties. It is a ground for denying the
divorce. (Griffiths vs. Griffiths, 69 N. J. Eq. 689 60 Atl. 1099; Sandoz vs. Sandoz, 107 Ore.
282, 214 Pas. 590.).
In this case, there would be collusion if the parties had arranged to make it appear that a matrimonial
offense had been committed although it was not, or if the parties had connived to bring about a legal
separation even in the absence of grounds therefor.
Here, the offense of adultery had really taking place, according to the evidence. The defendant could
not havefalsely told the adulterous acts to the Fiscal, because her story might send her to jail the
moment her husband requests the Fiscal to prosecute. She could not have practiced deception at
such a personal risk.
In this connection, it has been held that collusion may not be inferred from the mere fact that the
guilty party confesses to the offense and thus enables the other party to procure evidence necessary
to prove it. (Williams vs. Williams, [N. Y.] 40 N. E. (2d) 1017; Rosenweig vs. Rosenweig, 246 N. Y.
Suppl. 231; Conyers, vs. Conyers, 224 S. W. [2d] 688.).
And proof that the defendant desires the divorce and makes no defense, is not by itself collusion.
(Pohlman vs. Pohlman, [N. J.] 46 Atl. Rep. 658.).
We do not think plaintiff's failure actively to search for defendant and take her home (after the latter
had left him in 1952) constituted condonation or consent to her adulterous relations with Orzame. It
will be remembered that she "left" him after having sinned with Arcalas and after he had discovered
her dates with other men. Consequently, it was not his duty to search for her to bring her home. Hers
was the obligation to return.
Two decisions3 are cited wherein from apparently similar circumstances, this Court inferred the
husband's consent to or condonation of his wife's misconduct. However, upon careful examination, a
vital difference will be found: in both instances, the husband had abandoned his wife; here it was the
wife who "left" her husband.
Wherefore, finding no obstacles to the aggrieved husband's petition we hereby reverse the appealed
decision and decree a legal separation between these spouse, all the consequent effects. Costs of
all instances against Serafina Florenciano. So ordered.

G.R. No. L-30977 January 31, 1972

CARMEN LAPUZ SY, represented by her substitute MACARIO LAPUZ, petitioner-appellant,
vs.
EUFEMIO S. EUFEMIO alias EUFEMIO SY UY, respondent-appellee.
Jose W. Diokno for petitioner-appellant.

D. G. Eufemio for respondent-appellee.

REYES J.B.L., J.:p

Petition, filed after the effectivity of Republic Act 5440, for review by certiorari of an order, dated 29
July 1969, of the Juvenile and Domestic Relations Court of Manila, in its Civil Case No. 20387,
dismissing said case for legal separation on the ground that the death of the therein plaintiff, Carmen
O. Lapuz Sy, which occurred during the pendency of the case, abated the cause of action as well as
the action itself. The dismissal order was issued over the objection of Macario Lapuz, the heir of the
deceased plaintiff (and petitioner herein) who sought to substitute the deceased and to have the
case prosecuted to final judgment.
On 18 August 1953, Carmen O. Lapuz Sy filed a petition for legal separation against Eufemio S.
Eufemio, alleging, in the main, that they were married civilly on 21 September 1934 and canonically
on 30 September 1934; that they had lived together as husband and wife continuously until 1943
when her husband abandoned her; that they had no child; that they acquired properties during their
marriage; and that she discovered her husband cohabiting with a Chinese woman named Go Hiok at
1319 Sisa Street, Manila, on or about March 1949. She prayed for the issuance of a decree of legal
separation, which, among others, would order that the defendant Eufemio S. Eufemio should be
deprived of his share of the conjugal partnership profits.
In his second amended answer to the petition, herein respondent Eufemio S. Eufemio alleged
affirmative and special defenses, and, along with several other claims involving money and other
properties, counter-claimed for the declaration of nullity ab initio of his marriage with Carmen O.
Lapuz Sy, on the ground of his prior and subsisting marriage, celebrated according to Chinese law
and customs, with one Go Hiok, alias Ngo Hiok.
Issues having been joined, trial proceeded and the parties adduced their respective evidence. But
before the trial could be completed (the respondent was already scheduled to present surrebuttal
evidence on 9 and 18 June 1969), petitioner Carmen O. Lapuz Sy died in a vehicular accident on 31
May 1969. Counsel for petitioner duly notified the court of her death.
On 9 June 1969, respondent Eufemio moved to dismiss the "petition for legal separation" 1 on two (2)
grounds, namely: that the petition for legal separation was filed beyond the one-year period provided for
in Article 102 of the Civil Code; and that the death of Carmen abated the action for legal separation.
On 26 June 1969, counsel for deceased petitioner moved to substitute the deceased Carmen by her
father, Macario Lapuz. Counsel for Eufemio opposed the motion.
On 29 July 1969, the court issued the order under review, dismissing the case. 2 In the body of the
order, the court stated that the motion to dismiss and the motion for substitution had to be resolved on the
question of whether or not the plaintiff's cause of action has survived, which the court resolved in the
negative. Petitioner's moved to reconsider but the motion was denied on 15 September 1969.
After first securing an extension of time to file a petition for review of the order of dismissal issued by
the juvenile and domestic relations court, the petitioner filed the present petition on 14 October 1969.

The same was given due course and answer thereto was filed by respondent, who prayed for the
affirmance of the said order. 3
Although the defendant below, the herein respondent Eufemio S. Eufemio, filed counterclaims, he
did not pursue them after the court below dismissed the case. He acquiesced in the dismissal of said
counterclaims by praying for the affirmance of the order that dismissed not only the petition for legal
separation but also his counterclaim to declare the Eufemio-Lapuz marriage to be null and void ab
initio.
But petitioner Carmen O. Lapuz Sy (through her self-assumed substitute for the lower court did
not act on the motion for substitution) stated the principal issue to be as follows:
When an action for legal separation is converted by the counterclaim into one for a
declaration of nullity of a marriage, does the death of a party abate the proceedings?
The issue as framed by petitioner injects into it a supposed conversion of a legal separation suit to
one for declaration of nullity of a marriage, which is without basis, for even petitioner asserted that
"the respondent has acquiesced to the dismissal of his counterclaim" (Petitioner's Brief, page 22).
Not only this. The petition for legal separation and the counterclaim to declare the nullity of the self
same marriage can stand independent and separate adjudication. They are not inseparable nor was
the action for legal separation converted into one for a declaration of nullity by the counterclaim, for
legal separation pre-supposes a valid marriage, while the petition for nullity has a voidable marriage
as a pre-condition.
The first real issue in this case is: Does the death of the plaintiff before final decree, in an action for
legal separation, abate the action? If it does, will abatement also apply if the action involves property
rights? .
An action for legal separation which involves nothing more than the bed-and-board separation of the
spouses (there being no absolute divorce in this jurisdiction) is purely personal. The Civil Code of the
Philippines recognizes this in its Article 100, by allowing only the innocent spouse (and no one else)
to claim legal separation; and in its Article 108, by providing that the spouses can, by their
reconciliation, stop or abate the proceedings and even rescind a decree of legal separation already
rendered. Being personal in character, it follows that the death of one party to the action causes the
death of the action itself actio personalis moritur cum persona.
... When one of the spouses is dead, there is no need for divorce, because the
marriage is dissolved. The heirs cannot even continue the suit, if the death of the
spouse takes place during the course of the suit (Article 244, Section 3). The action
is absolutely dead (Cass., July 27, 1871, D. 71. 1. 81; Cass. req., May 8, 1933, D. H.
1933, 332.") 4 .
Marriage is a personal relation or status, created under the sanction of law, and an
action for divorce is a proceeding brought for the purpose of effecting a dissolution of
that relation. The action is one of a personal nature. In the absence of a statute to the
contrary, the death of one of the parties to such action abates the action, for the
reason that death has settled the question of separation beyond all controversy and
deprived the court of jurisdiction, both over the persons of the parties to the action
and of the subject-matter of the action itself. For this reason the courts are almost

unanimous in holding that the death of either party to a divorce proceeding, before
final decree, abates the action. 1 Corpus Juris, 208; Wren v. Moss, 2 Gilman, 72;
Danforth v. Danforth, 111 Ill. 236; Matter of Grandall, 196 N.Y. 127, 89 N.E. 578; 134
Am St. Rep. 830; 17 Ann. Cas. 874; Wilcon v. Wilson, 73 Mich, 620, 41 N.W. 817;
Strickland v. Strickland, 80 Ark. 452, 97 S. W. 659; McCurley v. McCurley, 60 Md.
185, 45 Am. Rep. 717; Begbie v. Begbie, 128 Cal. 155, 60 Pac. 667, 49 L.R.A. 141. 5
The same rule is true of causes of action and suits for separation and maintenance (Johnson vs.
Bates, Ark. 101 SW 412; 1 Corpus Juris 208).
A review of the resulting changes in property relations between spouses shows that they are solely
the effect of the decree of legal separation; hence, they can not survive the death of the plaintiff if it
occurs prior to the decree. On the point, Article 106 of the Civil Code provides: .
Art. 106. The decree of legal separation shall have the following effects:
(1) The spouses shall be entitled to live separately from each other, but the marriage
bonds shall not be severed; .
(2) The conjugal partnership of gains or the absolute conjugal community of property
shall be dissolved and liquidated, but the offending spouse shall have no right to any
share of the profits earned by the partnership or community, without prejudice to the
provisions of article 176;
(3) The custody of the minor children shall be awarded to the innocent spouse,
unless otherwise directed by the court in the interest of said minors, for whom said
court may appoint a guardian;
(4) 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 one shall be revoked by operation of law.
From this article it is apparent that the right to the dissolution of the conjugal partnership of gains (or
of the absolute community of property), the loss of right by the offending spouse to any share of the
profits earned by the partnership or community, or his disqualification to inherit by intestacy from the
innocent spouse as well as the revocation of testamentary provisions in favor of the offending
spouse made by the innocent one, are all rights and disabilities that, by the very terms of the Civil
Code article, are vested exclusively in the persons of the spouses; and by their nature and intent,
such claims and disabilities are difficult to conceive as assignable or transmissible. Hence, a claim to
said rights is not a claim that "is not thereby extinguished" after a party dies, under Section 17, Rule
3, of the Rules of Court, to warrant continuation of the action through a substitute of the deceased
party.
Sec. 17. Death of party. After a party dies and the claim is not thereby extinguished,
the court shall order, upon proper notice, the legal representative of the deceased to
appear and to be substituted for the deceased, within a period of thirty (30) days, or
within such time as may be granted...

The same result flows from a consideration of the enumeration of the actions that survive for or
against administrators in Section 1, Rule 87, of the Revised Rules of Court:
SECTION 1. Actions which may and which may not be brought against executor or
administrator. No action upon a claim for the recovery of money or debt or interest
thereon shall be commenced against the executor or administrator; but actions to
recover real or personal property, or an interest therein, from the estate, or to enforce
a lien thereon, and actions to recover damages for an injury to person or property,
real or personal, may be commenced against him.
Neither actions for legal separation or for annulment of marriage can be deemed fairly included in
the enumeration..
A further reason why an action for legal separation is abated by the death of the plaintiff, even if
property rights are involved, is that these rights are mere effects of decree of separation, their source
being the decree itself; without the decree such rights do not come into existence, so that before the
finality of a decree, these claims are merely rights in expectation. If death supervenes during the
pendency of the action, no decree can be forthcoming, death producing a more radical and definitive
separation; and the expected consequential rights and claims would necessarily remain unborn.
As to the petition of respondent-appellee Eufemio for a declaration of nullity ab initio of his marriage
to Carmen Lapuz, it is apparent that such action became moot and academic upon the death of the
latter, and there could be no further interest in continuing the same after her demise, that
automatically dissolved the questioned union. Any property rights acquired by either party as a result
of Article 144 of the Civil Code of the Philippines 6 could be resolved and determined in a proper
action for partition by either the appellee or by the heirs of the appellant.
In fact, even if the bigamous marriage had not been void ab initio but only voidable under Article 83,
paragraph 2, of the Civil Code, because the second marriage had been contracted with the first wife
having been an absentee for seven consecutive years, or when she had been generally believed
dead, still the action for annulment became extinguished as soon as one of the three persons
involved had died, as provided in Article 87, paragraph 2, of the Code, requiring that the action for
annulment should be brought during the lifetime of any one of the parties involved. And furthermore,
the liquidation of any conjugal partnership that might have resulted from such voidable marriage
must be carried out "in the testate or intestate proceedings of the deceased spouse", as expressly
provided in Section 2 of the Revised Rule 73, and not in the annulment proceeding.
ACCORDINGLY, the appealed judgment of the Manila Court of Juvenile and Domestic Relations is
hereby affirmed. No special pronouncement as to costs.
G.R. No. 79284 November 27, 1987
FROILAN C. GANDIONCO, petitioner,
vs.
HON. SENEN C. PEARANDA, as Presiding Judge of the Regional Trial Court of Misamis
Oriental, Branch 18, Cagayan de Oro City, and TERESITA S. GANDIONCO, respondents.

PADILLA, J.:
A special civil action for certiorari, with application for injunction, to annul (1) the Order of the
respondent Judge, dated 10 December 1986, ordering petitioner to pay support pendente lite to
private respondent (his wife) and their child, and (2) the Order of the same respondent Judge, dated
5 August 1987, denying petitioner's motion to suspend hearings in the action for legal separation
filed against him by private respondent as well as his motion to inhibit respondent Judge from further
hearing and trying the case.
On 29 May 1986, private respondent, the legal wife of the petitioner, filed with the Regional Trial
Court of Misamis Oriental, 10th Judicial District, Branch 18, in Cagayan de Oro City, presided over
by respondent Judge, a complaint against petitioner for legal separation, on the ground of
concubinage, with a petition for support and payment of damages. This case was docketed as Civil
Case No. 10636. On 13 October 1986, private respondent also filed with the Municipal Trial Court,
General Santos City, a complaint against petitioner for concubinage, which was docketed on 23
October 1986 as Criminal Case No. 15437111. On 14 November 1986, application for the provisional
remedy of support pendente lite, pending a decision in the action for legal separation, was filed by
private respondent in the civil case for legal separation. The respondent judge, as already stated, on
10 December 1986, ordered The payment of support pendente lite.
In this recourse, petitioner contends that the civil action for legal separation and the incidents
consequent thereto, such as, application for support pendente lite, should be suspended in view of
the criminal case for concubinage filed against him the private respondent. In support of his
contention, petitioner cites Art. III. Sec. 3 of the 1985 Rules on Criminal Procedure, which states:
SEC. 3. Other Civil action arising from offenses. Whenever the offended party
shall have instituted the civil action to enforce the civil liability arising from the
offense. as contemplated in the first Section 1 hereof, the following rules shall be
observed:
(a) After a criminal action has been commenced the pending civil action arising from
the same offense shall be suspended, in whatever stage it may be found, until final
judgment in the criminal proceeding has been rendered. . . .
The civil action for legal separation, grounded as it is on concubinage, it is petitioner's position that
such civil action arises from, or is inextricably tied to the criminal action for concubinage, so that all
proceedings related to legal separation will have to be suspended to await conviction or acquittal for
concubinage in the criminal case. Authority for this position is this Court's decision in the case
of Jerusalem vs. Hon. Roberto Zurbano. 1
Petitioner's contention is not correct.
In Jerusalem, the Court's statement to the effect that suspension of an action for legal separation
would be proper if an allegation of concubinage is made therein, relied solely on Sec. 1 of Rule 107
of the then provisions of the Rules of Court on criminal procedure, to wit:
Sec. 1. Rules governing civil actions arising from offenses.-Except as otherwise
provided by law, the following rules shall he observed:

(a) When a criminal action is instituted, the civil action for recovery of civil liability
arising from the offense charged is impliedly instituted with the criminal action, unless
the offended party expressly waives the civil action or reserves his right to institute it
separately;
(b) Criminal and civil actions arising from the same offense may be instituted
separately, but after the criminal action has been commenced the civil action can not
be instituted until final judgment has been rendered in the criminal action;
(c) After a criminal action has been commenced, no civil action arising from the
same offense can be prosecuted and the same shall be suspended in whatever
stage it may be found until final judgment in the criminal proceeding has been
rendered ... (Emphasis supplied)
The provisions last quoted did not clearly state, as the 1985 Rules do, that the civil action to be
suspended, with or upon the filing of a criminal action, is one which is "to enforce the civil liability
arising from the offense". In other words, in view of the amendment under the 1985 Rules on
Criminal Procedure, a civil action for legal separation, based on concubinage, may proceed ahead
of, or simultaneously with, a criminal action for concubinage, because said civil action is not one "to
enforce the civil liability arising from the offense" even if both the civil and criminal actions arise from
or are related to the same offense. Such civil action is one intended to obtain the right to live
separately, with the legal consequences thereof, such as, the dissolution of the conjugal partnership
of gains, custody of offsprings, support, and disqualification from inheriting from the innocent
spouse, among others. As correctly pointed out by the respondent Judge in his Order dated 5 August
1987:
The unreported case of JERUSALEM vs. Hon. Roberto Zurbano, Judge of CFI of
Antique, et al., L-11935, April 24, 1959 (105 Phil. 1277) is not controlling. It applied
paragraph C of Sec. 1, of then Rule 107 of the Rules of Court, which reads:
After a criminal action has been commenced, no civil action arising
from the same offense can be prosecuted and the same shall be
suspended, in whatever stage it may be found, until final judgment in
the criminal proceeding has been rendered. (Emphasis supplied)
The governing rule is now Sec. 3, Rule 111, 1985 Rules on Criminal Procedure which refers to "civil
actions to enforce the civil liability arising from the offense" as contemplated in the first paragraph of
Section 1 of Rule 111-which is a civil action "for recovery of civil liability arising from the offense
charged." Sec. 1, Rule 111, (1985) is specific that it refers to civil action for the recovery of civil
liability arising from the offense charged. Whereas, the old Sec. 1 (c), Rule 107 simply referred to
"Civil action arising from the offense."
As earlier noted this action for legal separation is not to recover civil liability, in the main, but is aimed
at the conjugal rights of the spouses and their relations to each other, within the contemplation of
Articles 7 to 108, of the Civil Code." 2
Petitioner also argues that his conviction for concubinage will have to be first secured before the
action for legal separation can prosper or succeed, as the basis of the action for legal separation is
his alleged offense of concubinage.

Petitioner's assumption is erroneous.

A decree of legal separation, on the ground of concubinage, may be issued upon proof by
preponderance of evidence in the action for legal separation. 3 No criminal proceeding or conviction is
necessary. To this end, the doctrine in Francisco vs. Tayao 4 has been modified, as that case was decided
under Act. No. 2710, when absolute divorce was then allowed and had for its grounds the same grounds
for legal separation under the New Civil Code, with the requirement, under such former law, that the guilt
of defendant spouses had to be established by final judgment in a criminal action. That requirement has
not been reproduced or adopted by the framers of the present Civil Code, and the omission has been
uniformly accepted as a modification of the stringent rule in Francisco v. Tayao. 5
Petitioner's attempt to resist payment of support pendente lite to his wife must also fail, as we find no
proof of grave abuse of discretion on the part of the respondent Judge in ordering the same.
Support pendente lite, as a remedy, can be availed of in an action for legal separation, and granted
at the discretion of the judge. 6 If petitioner finds the amount of support pendente lite ordered as too
onerous, he can always file a motion to modify or reduce the same. 7
Petitioner lastly seeks to have the respondent Judge disqualified from hearing the case, as the grant
of supportpendente lite and the denial of the motion to suspend hearings in the case, are taken by
the petitioner as a disregard of applicable laws and existing doctrines, thereby showing the
respondent Judge's alleged manifest partiality to private respondent.
Petitioner's contention is without merit. Divergence of opinions between a judge hearing a case and
a party's counsel, as to applicable laws and jurisprudence, is not a sufficient ground to disqualify the
judge from hearing the case, on the ground of bias and manifest partiality. This is more so, in this
case, where we find the judge's disposition of petitioner's motions to be sound and well-taken.
WHEREFORE, the instant petition is hereby DISMISSED. Costs against petitioner.
SO ORDERED.
G.R. No. L-10033

December 28, 1956

BENJAMIN BUGAYONG, plaintiff-appellant,

vs.
LEONILA GINEZ, defendant-appellee.
Florencio Dumapias for appellant.
Numeriano Tanopo, Jr. for 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 the 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 their
sisters who later moved to Sampaloc, Manila. After some time, or about July, 1951, Leonila Ginez
left the dwelling of her sister-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, Benjamin Bugayong began receiving letters from Valeriana Polangco
(plaintiff's sister-in-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 crossexamination, plaintiff admitted that his wife also informed him by letter, which she 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 latter's 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, defendant's 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 plaintiff's 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 plaintiffhusband 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 predicted 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 act
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, appellant's counsel maintaining that the lower court erred:
(a) In so prematurely dismissing the case;

(b) In finding that there were condonation on the part of plaintiff-appellant; and
(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 Superiority.
The Civil Code provides:
ART. 97. A petition for legal separation may be filed:
(1) For adultery on the part of the wife and for concubinage for the part of the husband as
defined on the Penal Code; or
(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 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
appellant's assignment of errors.
Condonation is the forgiveness of a marital offense constituting a ground for legal separation or, as
stated in I Bouver's 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 defendant's 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 the 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 defendant's 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 admitting that 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 plaintiff's 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 husband's
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 quo had the following to say on this point:
In the hearing of the case, the plaintiff further testified as follows:
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.)
lawphil.net

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 slept 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.)
The New Civil Code of the Philippines, in its Art. 97, says:
A 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 on the Penal Code.
and in its Art. 100 it says:

lawphil.net

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 cannot 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 wife all 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. The 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 necessary 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 husband's guilt,
her consent should operate as a pardon of his wrong."
In Tiffany's 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 lights 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) or sleeping
together for a single night (Toulson vs. Toulson, 50 Atl. 401, citing Phinizy vs. Phinizy, 114 S.
E. 185, 154 Ga. 199; Collins vs. 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 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
defendant's 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.
G.R. No. L-53880 March 17, 1994
ENRICO L. PACETE, CLARITA DE LA CONCEPCION, EMELDA C. PACETE, EVELINA C.
PACETE and EDUARDO C. PACETE, petitioners,
vs.
HON. GLICERIO V. CARRIAGA, JR. and CONCEPCION (CONCHITA) ALANIS
PACETE, respondents.
Juan G. Sibug and Rodolfo B. Quiachon for petitioners.
Julio F. Andres, Jr. for private respondent.

VITUG, J.:
The issue in this petition for certiorari is whether or not the Court of First Instance (now Regional
Trial Court) of Cotabato, Branch I, in Cotabato City, gravely abused its discretion
in denying petitioners' motion for extension of time to file their answer in Civil Case No. 2518,
in declaring petitioners in default and in rendering its decision of 17 March 1980 which, among other
things, decreed the legal separation of petitioner Enrico L. Pacete and private respondent
Concepcion Alanis and held to be null and void ab initio the marriage of Enrico L. Pacete to Clarita
de la Concepcion.
On 29 October 1979, Concepcion Alanis filed with the court below a complaint for the declaration of
nullity of the marriage between her erstwhile husband Enrico L. Pacete and one Clarita de la
Concepcion, as well as for legal separation (between Alanis and Pacete), accounting and separation
of property. In her complaint, she averred that she was married to Pacete on 30 April 1938 before
the Justice of the Peace of Cotabato, Cotabato; that they had a child named Consuelo who was born
on 11 March 1943; that Pacete subsequently contracted (in 1948) a second marriage with Clarita de
la Concepcion in Kidapawan, North Cotabato; that she learned of such marriage only on 01 August
1979; that during her marriage to Pacete, the latter acquired vast property consisting of large tracts
of land, fishponds and several motor vehicles; that he fraudulently placed the several pieces of
property either in his name and Clarita or in the names of his children with Clarita and other
"dummies;" that Pacete ignored overtures for an amicable settlement; and that reconciliation
between her and Pacete was impossible since he evidently preferred to continue living with Clarita.
The defendants were each served with summons on 15 November 1979. They filed a motion for an
extension of twenty (20) days from 30 November 1979 within which to file an answer. The court
granted the motion. On 18 December 1979, appearing through a new counsel, the defendants filed a
second motion for an extension of another thirty (30) days from 20 December 1979. On 07 January
1980, the lower court granted the motion but only for twenty (20) days to be counted from 20
December 1979 or until 09 January 1980. The Order of the court was mailed to defendants' counsel
on 11 January 1980. Likely still unaware of the court order, the defendants, on 05 February 1980,
again filed another motion (dated 18 January 1980) for an extension of "fifteen (15) days counted
from the expiration of the 30-day period previously sought" within which to file an answer. The
following day, or on 06 February 1980, the court denied this last motion on the ground that it was
"filed after the original period given . . . as first extension had expired." 1
The plaintiff thereupon filed a motion to declare the defendants in default, which the court forthwith
granted. The plaintiff was then directed to present her evidence. 2 The court received plaintiff's
evidence during the hearings held on 15, 20, 21 and 22 February 1980.
On 17 March 1980, the court 3 promulgated the herein questioned decision, disposing of the case, thus

WHEREFORE, order is hereby issued ordering:

1. The issuance of a Decree of Legal Separation of the marriage between, the
plaintiff, Concepcion (Conchita) Alanis Pacete and the herein defendants, Enrico L.
Pacete, in accordance with the Philippine laws and with consequences, as provided
for by our laws;

2. That the following properties are hereby declared as the conjugal properties of the
partnership of the plaintiff, Concepcion (Conchita) Alanis Pacete and the defendant,
Enrico L. Pacete, half and half, to wit:
1. The parcel of land covered by TCT No. V-815 which is a parcel of land situated in
the barrio of Langcong, Municipality of Matanog (previously of Parang), province of
Maguindanao (previously of Cotabato province) with an area of 45,265 square
meters registered in the name of Enrico Pacete, Filipino, of legal age, married to
Conchita Alanis as shown in Exhibits "B" and "B-1" for the plaintiff.
2. A parcel of land covered by Transfer Certificate of Title No. T-20442, with an area
of 538 square meters and covered by Tax Declaration No. 2650 (74) in the name of
Enrico Pacete, situated in the Poblacion of Kidapawan, North Cotabato, together with
all its improvements, which parcel of land, as shown by Exhibits "K-1" was acquired
by way of absolute deed of sale executed by Amrosio Mondog on January 14, 1965.
3. A parcel of land covered by Transfer Certificate of Title No. T-20424 and covered
by Tax Declaration No. 803 (74), with an area of 5.1670 hectares, more or less, as
shown by Exhibit "R", the same was registered in the name of Enrico Pacete and the
same was acquired by Enrico Pacete last February 17, 1967 from Ambag Ampoy, as
shown by Exhibit "R-1", situated at Musan, Kidapawan, North Cotabato.
4. A parcel of land situated at Lanao, Kidapawan, North Cotabato, with an area of
5.0567 hectares, covered by Tax Declaration No. 4332 (74), as shown by Exhibit "S",
and registered in the name of Enrico Pacete.
5. A parcel of land covered by Transfer Certificate of Title No. T-9750, situated at
Lika, Mlang, North Cotabato, with an area of 4.9841 hectares and the same is
covered by Tax Declaration No. 803 (74) and registered in the name of Enrico Pacete
and which land was acquired by Enrico Pacete from Salvador Pacete on September
24, 1962, as shown by Exhibit "Q-1".
6. A parcel of land covered by Transfer Certificate of Title No. T-9944, with an area of
9.9566 and also covered by Tax Declaration No. 8608 (74) and registered in the
name of the defendant Enrico L. Pacete which Enrico L. Pacete acquired from
Sancho Balingcos last October 22, 1962, as shown by Exhibit "L-1" and which parcel
of land is situated at (Kialab), Kiab, Matalam, North Cotabato.
7. A parcel of land covered by Transfer Certificate of Title No. T-9227, situated at
Kiab, Matalam, North Cotabato, with an area of 12.04339 hectares, more or less, and
also covered by Tax Declaration No. 8607 (74) both in the name of the defendant
Enrico L. Pacete which he acquired last October 15, 1962 from Minda Bernardino, as
shown by Exhibit "M-1".
8. A parcel of land covered by Transfer Certificate of Title No. T-9228, situated at
Kiab, Matalam, North Cotabato, with an area of 10.8908 hectares, registered in the
name of Enrico Pacete and also covered by Tax Declaration No. 5781 (74) in the
name of Enrico Pacete and which parcel of land he acquired last September 25,
1962 from Conchita dela Torre, as shown by Exhibit "P-1".

9. A parcel of land covered by Transfer Certificate of Title No. T-10301, situated at

Linao, Matalam, North Cotabato, with an area of 7.2547 hectares, registered in the
name of Enrico Pacete and also covered by Tax Declaration No. 8716 (74) also in
the name of Enrico Pacete which Enrico Pacete acquired from Agustin Bijo last July
16, 1963, as shown by Exhibit "N-1".
10. A parcel of land covered by Transfer Certificate of Title No. 12728 in the name of
the defendant, Enrico L. Pacete, with an area of 10.9006 hectares, situated at Linao,
Matalam, North Cotabato and is also covered by Tax Declaration No. 5745 (74) in the
name of Enrico Pacete, as shown on Exhibit "O" and which Enrico Pacete acquired
last December 31, 1963 from Eliseo Pugni, as shown on Exhibit "0-1".
3. Ordering the Cancellation of Original Certificate of Title No. P-34243 covering Lot
No. 1066, issued in the name of Evelina Pacete, situated at Kiab, Matalam, North
Cotabato, and ordering the registration of the same in the joint name of Concepcion
(Conchita) Alanis Pacete and Enrico L. Pacete as their conjugal property, with
address on the part of Concepcion (Conchita) Alanis Pacete at Parang,
Maguindanao and on the part of Enrico L. Pacete at Kidapawan, North Cotabato.
4. Ordering likewise the cancellation of Original Certificate of Title No. V-20101,
covering Lot No. 77, in the name of Eduardo C. Pacete, situated at New Lawaan,
Mlang, North Cotabato, and the issuance of a new Transfer Certificate of Title in the
joint name of (half and half) Concepcion (Conchita) Alanis Pacete and Enrico L.
Pacete.
5. Ordering likewise the cancellation of Original Certificate of Title No. P-29890,
covering Lot 1068, situated at Kiab, Matalam, North Cotabato, with an area of
12.1031 hectares, in the name of Emelda C. Pacete and the issuance of a new
Transfer Certificate of Title in the joint name (half and half) of Concepcion (Conchita)
Alanis Pacete and Enrico L. Pacete; and declaring that the fishpond situated at
Barrio Tumanan, Bislig, Surigao Del Sur, with an area of 48 hectares and covered by
Fishpond Lease Agreement of Emelda C. Pacete, dated July 29, 1977 be cancelled
and in lieu thereof, the joint name of Concepcion (Conchita) Alanis Pacete and her
husband, Enrico L. Pacete, be registered as their joint property, including the 50
hectares fishpond situated in the same place, Barrio Timanan, Bislig, Surigao del
Sur.
6. Ordering the following motor vehicles to be the joint properties of the conjugal
partnership of Concepcion (Conchita) Alanis Pacete and Enrico L. Pacete, viz:
a. Motor vehicle with Plate No. T-RG-783; Make, Dodge; Motor No. T137-20561;
Chassis No. 83920393, and Type, Mcarrier;
b. Motor vehicle with Plate No. T-RG-784; Make, Dodge; Motor No. T214-229547;
Chassis No. 10D-1302-C; and Type, Mcarrier;
c. Motor vehicle with Plate No. J-PR-818; Make, Ford; Motor No. GRW-116188;
Chassis No. HOCC-GPW-1161-88-C; Type, Jeep;

d. Motor vehicle with Plate No. TH-5J-583; Make, Ford: Motor No. F70MU5-11111;
Chassis No. HOCC-GPW-1161188-G; Type, Stake;
e. Motor vehicle with Plate No. TH-5J-584; Make, Hino; Motor No. ED300-45758;
Chassis No. KB222-22044; Type, Stake; and
f. Motor vehicle with Plate No. TH-5J-585; Make, Ford: Motor No. LTC-780-Dv;
Chassis No. 10F-13582-K; Type, Stake.
7. Ordering the defendant Enrico L. Pacete to pay the plaintiff the sum of P46,950.00
which is the share of the plaintiff in the unaccounted income of the ricemill and corn
sheller for three years from 1971 to 1973.
8. Ordering the defendant, Enrico L. Pacete, to reimburse the plaintiff the monetary
equipment of 30% of whether the plaintiff has recovered as attorney's fees;
9. Declaring the subsequent marriage between defendant Enrico L. Pacete and
Clarita de la Concepcion to be void ab initio; and
10. Ordering the defendants to pay the costs of this suit. 4
Hence, the instant special civil action of certiorari.
Under ordinary circumstances, the petition would have outrightly been dismissed, for, as also
pointed out by private respondents, the proper remedy of petitioners should have instead been either
to appeal from the judgment by default or to file a petition for relief from judgment. 5 This rule,
however, is not inflexible; a petition forcertiorari is allowed when the default order is improperly declared,
or even when it is properly declared, where grave abuse of discretion attended such declaration. 6 In these
exceptional instances, the special civil action of certiorari to declare the nullity of a judgment by default is
available. 7 In the case at bench, the default order unquestionably is not legally sanctioned. The Civil Code
provides:
Art. 101. No decree of legal separation shall be promulgated upon a stipulation of
facts or by confession of judgment.
In case of non-appearance of the defendant, the court shall order the prosecuting
attorney to inquire whether or not a collusion between the parties exists. If there is no
collusion, the prosecuting attorney shall intervene for the State in order to take care
that the evidence for the plaintiff is not fabricated.
The provision has been taken from Article 30 of the California Civil Code, 8 and it is, in substance,
reproduced in Article 60 of the Family Code. 9
Article 101 reflects the public policy on marriages, and it should easily explain the mandatory tenor
of the law. InBrown v. Yambao, 10 the Court has observed:
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 v. Gmur, 42 Phil.
855; Goitia v. 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.
Article 103 of the Civil Code, now Article 58 of the Family Code, further mandates that an action for
legal separation must "in no case be tried before six months shall have elapsed since the filing of the
petition," obviously in order to provide the parties a "cooling-off" period. In this interim, the court
should take steps toward getting the parties to reconcile.
The significance of the above substantive provisions of the law is further underscored by the
inclusion of the following provision in Rule 18 of the Rules of Court:
Sec. 6. No defaults in actions for annulments of marriage or for legal separation. If
the defendant in an action for annulment of marriage or for legal separation fails to
answer, the court shall order the prosecuting attorney to investigate whether or not a
collusion between the parties exists, and if there is no collusion, to intervene for the
State in order to see to it that the evidence submitted is not fabricated.
The special prescriptions on actions that can put the integrity of marriage to possible jeopardy are
impelled by no less than the State's interest in the marriage relation and its avowed intention not to
leave the matter within the exclusive domain and the vagaries of the parties to alone dictate.
It is clear that the petitioner did, in fact, specifically pray for legal separation. 11 That other remedies,
whether principal or incidental, have likewise been sought in the same action cannot dispense, nor
excuse compliance, with any of the statutory requirements aforequoted.
WHEREFORE, the petition for certiorari is hereby GRANTED and the proceedings below, including
the Decision of 17 March 1980 appealed from, are NULLIFIED and SET ASIDE. No costs.
SO ORDERED.
G.R. No. L-38287 October 23, 1981
ANTONIO MACADANGDANG, petitioner,
vs.
THE COURT OF APPEALS; HONORABLE ALEJANDRO E. SEBASTIAN, in his capacity as
Presiding Judge, Court of First Instance of Davao, 16th Judicial District, Sala 1, Tagum,
Davao del Norte; FILOMENA GAVIANA, MACADANGDANG; and ROLANDO
RAMA, respondents.
RESOLUTION

MAKASIAR, J.:

This petition for certiorari, prohibition and injunction with prayer for temporary restraining order
presents for review the Court of Appeal's resolution dated December 21, 1973, which dismissed the
petition in CA-G.R. No. Sp-02656-R, petitioner's motion for reconsideration of the said resolution
having been denied on January 29, 1974.
From the records, it appears that respondent Filomena Gaviana Macadangdang (hereinafter referred
to as private respondent) and petitioner Antonio Macadangdang contracted marriage in 1946 after
having lived together for two years. From a humble buy-and-sell business and sari-sari store
operation in Davao City, the spouses moved to Mawab Davao del Norte where, through hard work
and good fortune, their small business grew and expanded into merchandising, trucking,
transportation, rice and corn mill business, abaca stripping, real estate and others. They were
blessed with six children, three of whom were already of majority age and the other three were still
minors as of the time this case was initiated in the lower court. With their established businesses and
accumulated wealth, their once simple life became complicated and their relationship started to
suffer setbacks. While the economic or material aspect of their marriage was stabilized the physical
and spiritual aspects became shaky. Both accused each other of indulging in extramarital relations.
Married life for them became so intolerable that they separated in 1965 when private respondent left
for Cebu for good. When she returned to Davao in 1971, she learned of the illicit affairs of her
estranged husband. Then and there, she decided to take the initial action.
On April 28, 1971, private respondent (plaintiff therein) instituted a complaint for legal separation in
the Court of First Instance of Davao, Branch VI I I at Tagum, Davao, which complaint was docketed
as Civil Case No. 109 and entitled "Filomena Gaviana Macadangdang vs. Antonio Macadangdang"
[P. 156, rec].
Petitioner (then defendant) filed his answer with counterclaim dated May 31, 1971 [p. 158, rec].
On February 9, 1972, private respondent filed a petition for appointment of administrator, to
administer the estate of the conjugal partnership pending the termination of the case [p. 100, rec.].
Petitioner opposed the aforesaid petition in a pleading dated February 21, 1972 [P. 102, rec]
On January 4, 1973, the petition for appointment of administrator not having been acted upon, the
trial court handed down its decision, the dispositive portion of which states thus:
Wherefore, judgment is hereby rendered ordering the legal separation of plaintiff and
the defendant, or what under the old law was separation from bed and board a
mensa et thoro with all the legal effects attendant thereto, particularly the
dissolution and liquidation of the conjugal community of property. Since there is no
complete list of the community property which has to be divided, pending the
dissolution of the conjugal property, the defendant is ordered to pay to plaintiff
P10,000.00 for her support, for any way he had been disposing some of the
properties or mortgaging them without sharing the plaintiff any part of the fruits or
proceeds thereof until the court can appoint an administrator, as prayed for by
plaintiff in a separate petition, who will take over the administration and management
of all the conjugal partnership properties, and act as guardian of the minor children;
to protect said properties from dissipation, and who will submit a complete inventory
of said properties so that the Court can make a just division, such division to be
embodied in a supplemental decision. ... [pp. 104-115, rec.].

On August 7, 1973, private respondent filed a motion praying that she be allowed to withdraw
P10,000.00 from the lease rental of a portion of their conjugal property deposited by Francisco Dizon
[p. 116, rec.].
Respondent Judge acted on the aforesaid motion by issuing the order of August 13, 1973 which
directed the clerk of court "to deliver, under receipt, to plaintiff Filomena Gaviana Macadangdang
and/or to her counsel, Atty. Marcial Fernandez, the amount of P10,000.00" [p. 118, rec].
On August 25, 1973, private respondent filed another motion for the appointment of an administrator,
reiterating her previous petition and urging favorable action thereon "to impede unlawful
sequestration of some conjugal assets and clandestine transfers" by petitioner [p. 120, rec.].
Petitioner again filed his opposition dated September 6, 1973 [p. 122, rec.].
On September 20, 1973, respondent Judge issued an order directing plaintiff's counsel "to submit
three (3) names for appointment as administrator, including in the list, if possible, a banking
institution authorized to handle cases of administration of properties, furnishing a copy of said list to
defendant, who shag be given three (3) days from receipt thereof to present his observations and
objections to said recommended persons or entity, after which the Court will select the administrator
as may seem best suited for the purpose" [pp. 126-127, rec]
Petitioner then filed a motion for reconsideration dated October 3, 1973 of the order of September
20, 1973 with prayer that he be allowed to continue administering the conjugal properties in
accordance with law [p. 128, rec.]. This motion for reconsideration was denied in the order of
October 13, 1973 [p. 133, rec].
On October 13, 1973, herein private respondent filed a motion for appointment of administrator and
submission of complete fist of conjugal assets by defendant, submitting therein three nominees for
administrator [p. 135, rec].
On October 23, 1973, petitioner filed his second motion for reconsideration praying therein that the
orders of September 20, 1973 and October 13, 1973 be reconsidered by not proceeding with the
appointment of an administrator of the conjugal properties of the parties [p. 137, rec].
Respondent Judge denied the aforesaid second motion for reconsideration in his order of November
19, 1973, reiterating therein his ruling that the decree of legal separation had become final [p. 141,
rec].
Petitioner brought the case to the Court of Appeals in a petition for certiorari and prohibition with writ
of preliminary injunction and/or temporary restraining order filed on December 18, 1973. Said
petition sought to review, set aside and declare null and void the orders of September 20, 1973,
October 13, 1973 and November 19, 1973 of respondent Judge; to prohibit respondent Judge from
carrying out and executing the aforecited orders; and to prohibit him from treating, regarding and
construing his decision of January 4, 1973 as being "final and executory" as well as from enforcing
the same in any manner whatsoever [pp. 1, 4, & 5, CA rec.].
The Court of Appeals, in its resolution of December 21, 1973, ruled that the questioned January 4,
1973 decision of the lower court had become final and, consequently, the appointment of an
administrator was valid and that the petition was not sufficient in substance, since the applicable law

and jurisprudence afford the petitioner no valid cause to impugn the three questioned orders. The
appellate court accordingly dismissed the petition [pp. 70-80, rec].
Hence, this appeal from the resolution of December 21, 1973.
On February 6, 1980, counsel for petitioner, through a notice of death and motion to dismiss,
informed this Court that petitioner Antonio Macadangdang died on November 30, 1979 and as a
consequence thereof, this case and Civil Case No. 109 of the Court of First Instance of Davao have
become moot and academic [p. 516, rec.].
Private respondent, when required to comment on the aforesaid motion, moved for a resolution of
this case although she believes that petitioner's death has posed new intervening circumstances that
would affect the entire purpose in filing the same. In effect, private respondent agrees with
petitioner's counsel that her husband's death has rendered the instant petition moot and academic
[pp. 522, 524, rec.].
Petitioner had averred that the Court of Appeals gravely erred in holding that respondent Judge's
incomplete decision of January 4, 1973 had become final and executory and that the same Court
committed an error in holding that the appointment of an administrator in the case below was proper.
Private respondent, upon the other hand, has always maintained that
1. the decision of January 4, 1973 had become final and executory when the
petitioner failed to appeal therefrom within the reglementary period of 30 days from
receipt thereof, despite the non-issuance of a supplemental decision regarding the
division of the conjugal properties; and
2. the appointment of an administrator pending the actual division of said properties
is proper being a must and an exercise of the sound discretion of the Honorable
Presiding Judge in the Court of First Instance of Davao, Branch VIII in Tagum [pp.
193-194, rec].
Did petitioner's death on November 30, 1979 render the case moot and academic? Legal problems
do not cease simply because one of the parties dies; the same problems may come up again in
another case of similar magnitude. Considering also the far-reaching significance and implications of
a pronouncement on the very important issues involved, this Court feels bound to meet said issues
frontally and come out with a decisive resolution of the same.
Thus, the questions for resolution have been narrowed down to the following:
1. Whether the decision of the trial court dated January 4, 1973 in Civil Case No. 109
finding herein petitioner guilty of concubinage and decreeing legal separation
between him and his wife Filomena Gaviana Macadangdang (private respondent
herein) had already become final and executory long before the herein petition was
filed;
2. Should the children of both spouses predecease the surviving spouse, whether the
intestate heirs of the deceased could inherit from the innocent surviving spouse,

particularly where the latter's share in the conjugal assets is concerned, in view of
Article 106, No. 4 of the New Civil Code; and
3. The effect of the pendency of Special Proceedings No. 134 in the Court of First
Instance of Davao for the settlement of the estate of the deceased petitioner herein,
on the decision in Civil Case No. 109 as well as on the instant petition.
In support of his contention that the Court of Appeals committed grave error in holding that
respondent Judge's incomplete decision of January 4, 1973 had become final and executory,
petitioner had consistently asserted the following reasons:
1. Private respondent's complaint for legal separation and division of properties was
a single complaint. Thus, she explicitly prayed:
xxx xxx xxx
3. That upon trial of this action judgment be rendered ordering the legal separation of
the plaintiff and the defendant and the division of all the assets of the conjugal
partnership, ... [p. 157, rec)
In this single action, private respondent asked the trial court to decide if petitioner and she should be
legally separated, and if they should, what properties would form part of the conjugal regime and
which properties would be assigned to each spouse.
2. Of the aforesaid issues, the lower court resolved only the issue of legal separation and reserved
for supplemental decision the division of the conjugal properties. Petitioner had further argued that

Inasmuch as the Decision failed to dispose of all the issues before the Court, which
necessitated the announcement of a forthcoming supplemental decision, petitioner
respectfully submits that the Decision was an incomplete judgment. In Santos v. de
Guzman, 1 SCRA 1048, is found this very succinct explanation of what an
incomplete judgment is:
... There was but one case before the lower court. Its first decision (of June 12, 1956)
was, as already stated, incomplete the same not having resolved the issues involved
in the litigation. For this reason the trial had to be reopened and a supplemental
decision had to be rendered ... (at p. 1053; emphasis supplied).
WE do not find merit in petitioner's submission that the questioned decision had not become final
and executory since the law explicitly and clearly provides for the dissolution and liquidation of the
conjugal partnership of gains of the absolute community of property as among the effects of the final
decree of legal separation. Article 106 of the Civil Code thus reads:
Art. 106. The decree of legal separation shall have the following effects:
1) The spouses shall be entitled to live separately from each other, but the marriage
bonds shall not be severed;

2) The conjugal partnership of gains or the absolute conjugal community of property

shall be dissolved and liquidated but the offending spouse shall have no right to any
share of the profits earned by the partnership or community, without prejudice to the
provisions of article 176;
xxx xxx xxx
[emphasis supplied].
The aforequoted provision mandates the dissolution and liquidation of the property regime of the
spouses upon finality of the decree of legal separation. Such dissolution and liquidation are
necessary consequences of the final decree. This legal effect of the decree of legal separation ipso
facto or automatically follows, as an inevitable incident of, the judgment decreeing legal separation
for the purpose of determining the share of each spouse in the conjugal assets.
Even American courts have made definite pronouncements on the aforestated legal effect of a
divorce (legal separation) decree.
Generally speaking, the purpose of a decree in divorce insofar as the disposition of property is
concerned is to fix and make certain the property rights and interests of the parties (Mich-Westgate
vs. Westgate, 288 N.W. 860, 291 Mich. 18, 300 [1] p. 354, C.J.S. Vol. 27B); and it has been held that
the provisions of the decree should definitely and finally determine the property rights and interests
of the parties (Wash.-Shaffer vs. Shaffer, 262 P. 2d. 763, 43 Wash. 2d 629; 300 [11 p. 354 C.J.S. Vol.
27B); and that any attempted reservation of such questions for future determination is improper and
error (Mich.-Karwowski vs. Karwowski, 20 N.W. 2d 851, 313 Mich. 167, 300 11] p. 354, C.J.S., Vol.
27B; emphasis supplied).
Some statutes providing for the division or disposition of the property of the parties to a divorce have
been held mandatory and hence to require the court to decree some division of their property rights
(U.S.Pearce vs. CIR, 62 S. Ct. 154, 315 U.S. 543, 86 L. ed. 1016, construing Texas statute; 291
[1] p. 263 C.J.S. Vol. 27B).
Likewise, it has been held that the settlement of some pro-property rights between the parties is an
incident of every decree of divorce where there is any property involved (Utah-Smith vs. Smith, 291
P. 298, 77 Utah 60, 291 [1] p. 264, C.J.S., Vol. 27B).
It has been held that notwithstanding the division of property between the parties, the subject matter
of a divorce action remains the marital status of the parties, the settlement of the property rights
being merely incidental(Wash.-State ex rel. Atkins vs. Superior Court of King Country, 97 P. 2d. 139,
1 Wash. 2d 677; 291 [1] p. 264 C.J.S., Vol. 27B; emphasis supplied).
Under other authorities, by the very nature of the litigation, all property rights growing out of marital
relations are settled and included in divorce proceedings (Ind.-Novak vs. Novak, 133 N.E. 2d 578,
126 Ind. App. 428) and a decree of divorce is an adjudication of all property rights connected with
the marriage and precludes the parties as to all matters which might have been legitimately proved
in support of charges or defenses in the action (U.S.Spreckles vs. Wakefield, C.C.A. 286 F. 465)
and bars any action thereafter brought by either party to determine the question of property rights
(Fla.Cooper vs. Cooper, 69 So. 2d 881; Finston vs. Finston, 37 So. 2d 423,160 Fla. 935; p. 751,
C.J.S. Vol. 27A).

An absolute divorce ordinarily terminates all property rights and interests, not actually vested, of
divorced persons in property of each other, which are dependent on the marriage (U.S.Cockrill vs.
Woodson, D.C. Mo., 70 F. 752), at least where no proceedings have been taken to vacate or modify
the decree by appeal until the statutory time therefor has expired (Kan.Roberts vs. Fagan 92 P.
559, 76 Kan. 536). Accordingly, unless the court granting the decree is without jurisdiction, inchoate
rights of the wife in the husband's property are usually cut off (KyBowling vs. Little, 206 S.W. 1,
182 Ky 86) especially where by the terms of the decree all property obtained by either spouse from
or through the other during the marriage is restored to such spouse (Tex. Houston, etc., R. Co. vs.
Helm, Civ. App. 93 S.W. 697; pp. 752-753, C.J.S. Vol. 27A).
Enunciating with directness and finality, one U.S. court held: "The part of a divorce suit regarding
property is a part of the very divorce action itself" (Tex.Ex parte Scott 123 S.W. 2d. 306, 313, 133
Tex. 1, answers to certified questions conformed to, Civ. App. 126, S.W. 2d 525; 291 [1] p. 264,
C.J.S. Vol. 27B).
Petitioner erred in invoking the case of Vda. de Zaldarriaga vs. Zaldarriaga which in turn cited the
doctrine of Fuentebella vs. Carrascoso, which We have already declared abrogated in the case of
Miranda vs. Court of Appeals (L-33007, 71 SCRA 295, [June 18, 1976]). In this case, this Court
explicitly stated:
For the guidance of the bench and bar, the court declares as abandoned the doctrine
of Fuentebella vs. Carrascoso and adopts the opposite rule that judgments for
recovery with accounting are final and appealable (without need of awaiting the
accounting) and would become final and executory if not appealed within the
reglementary period.
In resolving the question of whether or not the judgment directing an accounting in an action for
recovery of properties is final and appealable, this Court further explained:
The judgment "directing an accounting is appealable, regardless of whether the
accounting is the principal relief sought or a mere incident or consequence of the
judgment which grants recovery and delivery of absconded properties as the
principal relief and expressly provides that"a judgment or order directing an
accounting in an action, shall not be stayed after its rendition and before an appeal is
taken or during the pendency of an appeal.
xxx xxx xxx
If a judgment which directs solely an accounting is appealable notwithstanding that it
"does not finally dispose of the action and the accounting has yet to be rendered to
complete the relief sought," much more so is a judgment which orders accounting as
a mere incident appealable, because the judgment which orders the delivery of
properties does finally dispose of the action on its merits,
xxx xxx xxx
Imperative and controlling considerations of public policy and of sound practice in the
courts to achieve the desideratum of just, speedy and inexpensive determination of
every action militate against such a novel and unprecedented situation where a

judgment on the merits for recovery of properties would be left dangling and would
be considered as "interlocutory" and subject to revision and alteration at will for as
long as the accounting ordered as a mere incident and logical consequence has not
been rendered and acted upon by the trial court.
xxx xxx xxx
The Court, however, deems it proper for the guidance of the bench and bar to now
declare as is clearly indicated from the compelling reasons and considerations
herein-above stated: that the court considers the better rule to be that stated in
H.E. Heacock Co. vs. American Trading Co. (53 Phil. 481 [19291, to wit, that where
the primary purpose of a case is to ascertain and determine whobetween plaintiff and
defendant is the true owner and entitled to the exclusive use of the disputed property,
"the judgment ... rendered by the lower court [is] a judgment on the merits as to
those questions, and (that) the order of the court for an accounting was based upon
and is incidental to the judgment on the merits. That is to say, that the judgment ...
(is) a final judgment ... ; that in this kind of a case an accounting is a mere incident to
the judgment; that an appeal lies from the rendition of the judgment as rendered ...
xxx xxx xxx
that accordingly, the contrary ruling in Fuentebella vs. Carrascoso which expressly
reversed the Heacock case and a line of similar decisions (Africa vs. Africa, 42 Phil.
934; Villanueva vs. Capistrano; Prophylactic Brush Co., et al. vs. Court of Appeals,
G.R. No. 46254, Nov. 23, 1938 [Unpublished) and ruled that such a decision for
recovery of property with accounting 'is not final but merely interlocutory and
therefore not appealable and subsequent cases Adhering to the same Zaldarriaga
vs. Enriquez, 1 SCRA 1188) must be now in turn abandoned and set aside.
xxx xxx xxx
The Court's considered opinion is that imperative considerations of public policy and
of sound practice in the courts and adherence to the constitutional mandate of
simplified, just, speedy and inexpensive determination of every action can for
considering such judgments for recovery of property with
accounting as final judgments which are duly appealable (and would therefore
become final and executory if not appealed within the reglementary period) with
the accounting as a mereincident of the judgment to be rendered during the course
of the appeal as provided in Rule 39, section 4 or to be implemented at the execution
stage upon final affirmance on appeal of the judgment (as in Court of Industrial
Relations unfair labor practice cases ordering reinstatement of the worker with
accounting, computation and payment of his backwages less earnings elsewhere
during his layoff) and that the only reason given in Fuentebella for the contrary ruling,
viz, "the general harm that would follow from throwing the door open to multiplicity of
appeals in a single case is of lesser import and consequence".
Considering the aforestated well-established jurisprudence on the matter, the clear mandate of
Article 106 of the Civil Code and the aforequoted ruling in the Miranda case, the decision of the trial
court dated January 4, 1973 decreeing the legal separation between then spouses Antonio

Macadangdang and Filomena Gaviana Macadangdang had long become final and executory and
the division of the conjugal property in a "supplemental decision" is a mere incident of the decree of
legal separation.
Since We have ruled on the finality of the judgment decreeing the spouses' legal separation as of
January 4, 1973, the remaining issue for Our resolution is the final disposition of their conjugal
partnership of gains which partnership, by reason of the final decree, had been automatically
dissolved. The law (Articles 106, 107 and 176 of the Civil Code) clearly spells out the effects of a
final decree of legal separation on the conjugal property.
The death on November 30, 1979 of herein petitioner who was declared the guilty spouse by the trial
court, before the liquidation of the conjugal property is effected, poses a new problem which can be
resolved simply by the application of the rules on intestate succession with respect to the properties
of the deceased petitioner.
Thus, the rules on dissolution and liquidation of the conjugal partnership of gains under the
aforecited provisions of the Civil Code would be applied effective January 4, 1973 when the decree
of legal separation became final. Upon the liquidation and distribution conformably with the law
governing the effects of the final decree of legal separation, the law on intestate succession should
take over in the disposition of whatever remaining properties have been allocated to petitioner. This
procedure involves details which properly pertain to the lower court.
The properties that may be allocated to the deceased petitioner by virtue of the liquidation of the
conjugal assets, shall be distributed in accordance with the laws of intestate succession in Special
Proceedings No. 134.
WHEREFORE, THIS PETITION IS HEREBY DISMISSED, WITH COSTS AGAINST PETITIONER'S
ESTATE.
SO ORDERED.