Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. L-63915 April 24, 1985
LORENZO M. TAADA, ABRAHAM F.
SARMIENTO, and MOVEMENT OF ATTORNEYS
FOR BROTHERHOOD, INTEGRITY AND
NATIONALISM, INC. [MABINI], petitioners,
vs.
HON. JUAN C. TUVERA, in his capacity as
Executive Assistant to the President, HON.
JOAQUIN VENUS, in his capacity as Deputy
Executive Assistant to the President ,
MELQUIADES P. DE LA CRUZ, in his capacity
as Director, Malacaang Records Office, and
FLORENDO S. PABLO, in his capacity as
Director, Bureau of Printing, respondents.
ESCOLIN, J.:
Invoking the people's right to be informed on
matters of public concern, a right recognized in
Section 6, Article IV of the 1973 Philippine
Constitution, 1 as well as the principle that laws to
be valid and enforceable must be published in the
Official Gazette or otherwise effectively
promulgated, petitioners seek a writ of mandamus
to compel respondent public officials to publish,
and/or cause the publication in the Official Gazette
of various presidential decrees, letters of
instructions, general orders, proclamations,
executive orders, letter of implementation and
administrative orders.
Specifically, the publication of the following
presidential issuances is sought:
a] Presidential Decrees Nos. 12, 22,
37, 38, 59, 64, 103, 171, 179, 184,
197, 200, 234, 265, 286, 298, 303,
312, 324, 325, 326, 337, 355, 358,
359, 360, 361, 368, 404, 406, 415,
427, 429, 445, 447, 473, 486, 491,
503, 504, 521, 528, 551, 566, 573,
574, 594, 599, 644, 658, 661, 718,
731, 733, 793, 800, 802, 835, 836,
923, 935, 961, 1017-1030, 1050,
1060-1061, 1085, 1143, 1165, 1166,
1242, 1246, 1250, 1278, 1279,
1300, 1644, 1772, 1808, 1810,
1813-1817, 1819-1826, 1829-1840,
1842-1847.
b] Letter of Instructions Nos.: 10, 39,
49, 72, 107, 108, 116, 130, 136,
141, 150, 153, 155, 161, 173, 180,
187, 188, 192, 193, 199, 202, 204,
205, 209, 211-213, 215-224, 226-
228, 231-239, 241-245, 248, 251,
253-261, 263-269, 271-273, 275-
283, 285-289, 291, 293, 297-299,
301-303, 309, 312-315, 325, 327,
343, 346, 349, 357, 358, 362, 367,
370, 382, 385, 386, 396-397, 405,
438-440, 444- 445, 473, 486, 488,
498, 501, 399, 527, 561, 576, 587,
594, 599, 600, 602, 609, 610, 611,
612, 615, 641, 642, 665, 702, 712-
713, 726, 837-839, 878-879, 881,
882, 939-940, 964,997,1149-
1178,1180-1278.
c] General Orders Nos.: 14, 52, 58,
59, 60, 62, 63, 64 & 65.
d] Proclamation Nos.: 1126, 1144,
1147, 1151, 1196, 1270, 1281,
1319-1526, 1529, 1532, 1535, 1538,
1540-1547, 1550-1558, 1561-1588,
1590-1595, 1594-1600, 1606-1609,
1612-1628, 1630-1649, 1694-1695,
1697-1701, 1705-1723, 1731-1734,
1737-1742, 1744, 1746-1751, 1752,
1754, 1762, 1764-1787, 1789-1795,
1797, 1800, 1802-1804, 1806-1807,
1812-1814, 1816, 1825-1826, 1829,
1831-1832, 1835-1836, 1839-1840,
1843-1844, 1846-1847, 1849, 1853-
1858, 1860, 1866, 1868, 1870,
1876-1889, 1892, 1900, 1918, 1923,
1933, 1952, 1963, 1965-1966, 1968-
1984, 1986-2028, 2030-2044, 2046-
2145, 2147-2161, 2163-2244.
e] Executive Orders Nos.: 411, 413,
414, 427, 429-454, 457- 471, 474-
492, 494-507, 509-510, 522, 524-
528, 531-532, 536, 538, 543-544,
549, 551-553, 560, 563, 567-568,
570, 574, 593, 594, 598-604, 609,
611- 647, 649-677, 679-703, 705-
707, 712-786, 788-852, 854-857.
f] Letters of Implementation Nos.: 7,
8, 9, 10, 11-22, 25-27, 39, 50, 51,
 59, 76, 80-81, 92, 94, 95, 107, 120,
122, 123.
g] Administrative Orders Nos.: 347,
348, 352-354, 360- 378, 380-433,
436-439.
The respondents, through the Solicitor General,
would have this case dismissed outright on the
ground that petitioners have no legal personality or
standing to bring the instant petition. The view is
submitted that in the absence of any showing that
petitioners are personally and directly affected or
prejudiced by the alleged non-publication of the
presidential issuances in question 2 said petitioners
are without the requisite legal personality to
institute this mandamus proceeding, they are not
being "aggrieved parties" within the meaning of
Section 3, Rule 65 of the Rules of Court, which we
quote:
SEC. 3. Petition for Mandamus.
When any tribunal, corporation,
board or person unlawfully neglects
the performance of an act which the
law specifically enjoins as a duty
resulting from an office, trust, or
station, or unlawfully excludes
another from the use a rd enjoyment
of a right or office to which such
other is entitled, and there is no
other plain, speedy and adequate
remedy in the ordinary course of
law, the person aggrieved thereby
may file a verified petition in the
proper court alleging the facts with
certainty and praying that judgment
be rendered commanding the
defendant, immediately or at some
other specified time, to do the act
required to be done to Protect the
rights of the petitioner, and to pay
the damages sustained by the
petitioner by reason of the wrongful
acts of the defendant.
Upon the other hand, petitioners maintain that since
the subject of the petition concerns a public right
and its object is to compel the performance of a
public duty, they need not show any specific
interest for their petition to be given due course.
The issue posed is not one of first impression. As
early as the 1910 case of Severino vs. Governor
General, 3 this Court held that while the general
rule is that "a writ of mandamus would be granted
to a private individual only in those cases where he
has some private or particular interest to be
subserved, or some particular right to be protected,
independent of that which he holds with the public
at large," and "it is for the public officers exclusively
to apply for the writ when public rights are to be
subserved [Mithchell vs. Boardmen, 79 M.e., 469],"
nevertheless, "when the question is one of public
right and the object of the mandamus is to procure
the enforcement of a public duty, the people are
regarded as the real party in interest and the relator
at whose instigation the proceedings are instituted
need not show that he has any legal or special
interest in the result, it being sufficient to show that
he is a citizen and as such interested in the
execution of the laws [High, Extraordinary Legal
Remedies, 3rd ed., sec. 431].
Thus, in said case, this Court recognized the relator
Lope Severino, a private individual, as a proper
party to the mandamus proceedings brought to
compel the Governor General to call a special
election for the position of municipal president in
the town of Silay, Negros Occidental. Speaking for
this Court, Mr. Justice Grant T. Trent said:
We are therefore of the opinion that
the weight of authority supports the
proposition that the relator is a
proper party to proceedings of this
character when a public right is
sought to be enforced. If the general
rule in America were otherwise, we
think that it would not be applicable
to the case at bar for the reason 'that
it is always dangerous to apply a
general rule to a particular case
without keeping in mind the reason
for the rule, because, if under the
particular circumstances the reason
for the rule does not exist, the rule
itself is not applicable and reliance
upon the rule may well lead to error'
No reason exists in the case at bar
for applying the general rule insisted
upon by counsel for the respondent.
The circumstances which surround
this case are different from those in
the United States, inasmuch as if the
relator is not a proper party to these
proceedings no other person could
be, as we have seen that it is not the
duty of the law officer of the
Government to appear and
 represent the people in cases of this
character.
The reasons given by the Court in recognizing a
private citizen's legal personality in the
aforementioned case apply squarely to the present
petition. Clearly, the right sought to be enforced by
petitioners herein is a public right recognized by no
less than the fundamental law of the land. If
petitioners were not allowed to institute this
proceeding, it would indeed be difficult to conceive
of any other person to initiate the same,
considering that the Solicitor General, the
government officer generally empowered to
represent the people, has entered his appearance
for respondents in this case.
Respondents further contend that publication in the
Official Gazette is not a sine qua non requirement
for the effectivity of laws where the laws
themselves provide for their own effectivity dates. It
is thus submitted that since the presidential
issuances in question contain special provisions as
to the date they are to take effect, publication in the
Official Gazette is not indispensable for their
effectivity. The point stressed is anchored on Article
2 of the Civil Code:
Art. 2. Laws shall take effect after
fifteen days following the completion
of their publication in the Official
Gazette, unless it is otherwise
provided, ...
The interpretation given by respondent is in accord
with this Court's construction of said article. In a
long line of decisions, 4 this Court has ruled that
publication in the Official Gazette is necessary in
those cases where the legislation itself does not
provide for its effectivity date-for then the date of
publication is material for determining its date of
effectivity, which is the fifteenth day following its
publication-but not when the law itself provides for
the date when it goes into effect.
Respondents' argument, however, is logically
correct only insofar as it equates the effectivity of
laws with the fact of publication. Considered in the
light of other statutes applicable to the issue at
hand, the conclusion is easily reached that said
Article 2 does not preclude the requirement of
publication in the Official Gazette, even if the law
itself provides for the date of its effectivity. Thus,
Section 1 of Commonwealth Act 638 provides as
follows:
Section 1. There shall be published
in the Official Gazette [1] all
important legisiative acts and
resolutions of a public nature of the,
Congress of the Philippines; [2] all
executive and administrative orders
and proclamations, except such as
have no general applicability; [3]
decisions or abstracts of decisions of
the Supreme Court and the Court of
Appeals as may be deemed by said
courts of sufficient importance to be
so published; [4] such documents or
classes of documents as may be
required so to be published by law;
and [5] such documents or classes
of documents as the President of the
Philippines shall determine from time
to time to have general applicability
and legal effect, or which he may
authorize so to be published. ...
The clear object of the above-quoted provision is to
give the general public adequate notice of the
various laws which are to regulate their actions and
conduct as citizens. Without such notice and
publication, there would be no basis for the
application of the maxim "ignorantia legis non
excusat." It would be the height of injustice to
punish or otherwise burden a citizen for the
transgression of a law of which he had no notice
whatsoever, not even a constructive one.
Perhaps at no time since the establishment of the
Philippine Republic has the publication of laws
taken so vital significance that at this time when the
people have bestowed upon the President a power
heretofore enjoyed solely by the legislature. While
the people are kept abreast by the mass media of
the debates and deliberations in the Batasan
Pambansaand for the diligent ones, ready access
to the legislative recordsno such publicity
accompanies the law-making process of the
President. Thus, without publication, the people
have no means of knowing what presidential
decrees have actually been promulgated, much
less a definite way of informing themselves of the
specific contents and texts of such decrees. As the
Supreme Court of Spain ruled: "Bajo la
denominacion generica de leyes, se comprenden
tambien los reglamentos, Reales decretos,
Instrucciones, Circulares y Reales ordines dictadas
de conformidad con las mismas por el Gobierno en
uso de su potestad. 5
The very first clause of Section I of Commonwealth
Act 638 reads: "There shall be published in the
Official Gazette ... ." The word "shall" used therein
imposes upon respondent officials an imperative
duty. That duty must be enforced if the
Constitutional right of the people to be informed on
matters of public concern is to be given substance
and reality. The law itself makes a list of what
should be published in the Official Gazette. Such
listing, to our mind, leaves respondents with no
discretion whatsoever as to what must be included
or excluded from such publication.
The publication of all presidential issuances "of a
public nature" or "of general applicability" is
mandated by law. Obviously, presidential decrees
that provide for fines, forfeitures or penalties for
their violation or otherwise impose a burden or. the
people, such as tax and revenue measures, fall
within this category. Other presidential issuances
which apply only to particular persons or class of
persons such as administrative and executive
orders need not be published on the assumption
that they have been circularized to all concerned. 6
It is needless to add that the publication of
presidential issuances "of a public nature" or "of
general applicability" is a requirement of due
process. It is a rule of law that before a person may
be bound by law, he must first be officially and
specifically informed of its contents. As Justice
Claudio Teehankee said in Peralta vs.
COMELEC 7:
In a time of proliferating decrees,
orders and letters of instructions
which all form part of the law of the
land, the requirement of due process
and the Rule of Law demand that
the Official Gazette as the official
government repository promulgate
and publish the texts of all such
decrees, orders and instructions so
that the people may know where to
obtain their official and specific
contents.
The Court therefore declares that presidential
issuances of general application, which have not
been published, shall have no force and effect.
Some members of the Court, quite apprehensive
about the possible unsettling effect this decision
might have on acts done in reliance of the validity
of those presidential decrees which were published
only during the pendency of this petition, have put
the question as to whether the Court's declaration
of invalidity apply to P.D.s which had been enforced
or implemented prior to their publication. The
answer is all too familiar. In similar situations in the
past this Court had taken the pragmatic and
realistic course set forth in Chicot County Drainage
District vs. Baxter Bank 8 to wit:
The courts below have proceeded
on the theory that the Act of
Congress, having been found to be
unconstitutional, was not a law; that
it was inoperative, conferring no
rights and imposing no duties, and
hence affording no basis for the
challenged decree. Norton v. Shelby
County, 118 U.S. 425, 442; Chicago,
1. & L. Ry. Co. v. Hackett, 228 U.S.
559, 566. It is quite clear, however,
that such broad statements as to the
effect of a determination of
unconstitutionality must be taken
with qualifications. The actual
existence of a statute, prior to such a
determination, is an operative fact
and may have consequences which
cannot justly be ignored. The past
cannot always be erased by a new
judicial declaration. The effect of the
subsequent ruling as to invalidity
may have to be considered in
various aspects-with respect to
particular conduct, private and
official. Questions of rights claimed
to have become vested, of status, of
prior determinations deemed to have
finality and acted upon accordingly,
of public policy in the light of the
nature both of the statute and of its
previous application, demand
examination. These questions are
among the most difficult of those
which have engaged the attention of
courts, state and federal and it is
manifest from numerous decisions
that an all-inclusive statement of a
principle of absolute retroactive
invalidity cannot be justified.
Consistently with the above principle, this Court
in Rutter vs. Esteban 9 sustained the right of a party
under the Moratorium Law, albeit said right had
accrued in his favor before said law was declared
unconstitutional by this Court.
Similarly, the implementation/enforcement of
presidential decrees prior to their publication in the
Official Gazette is "an operative fact which may
have consequences which cannot be justly ignored.
The past cannot always be erased by a new judicial
declaration ... that an all-inclusive statement of a
principle of absolute retroactive invalidity cannot be
justified."

From the report submitted to the Court by the Clerk

of Court, it appears that of the presidential decrees
sought by petitioners to be published in the Official
Gazette, only Presidential Decrees Nos. 1019 to
1030, inclusive, 1278, and 1937 to 1939, inclusive,
have not been so published. 10 Neither the subject
matters nor the texts of these PDs can be
ascertained since no copies thereof are available.
But whatever their subject matter may be, it is
undisputed that none of these unpublished PDs has
ever been implemented or enforced by the
government. In Pesigan vs. Angeles, 11 the Court,
through Justice Ramon Aquino, ruled that
"publication is necessary to apprise the public of
the contents of [penal] regulations and make the
said penalties binding on the persons affected
thereby. " The cogency of this holding is apparently
recognized by respondent officials considering the
manifestation in their comment that "the
government, as a matter of policy, refrains from
prosecuting violations of criminal laws until the
same shall have been published in the Official
Gazette or in some other publication, even though
some criminal laws provide that they shall take
effect immediately.

WHEREFORE, the Court hereby orders

respondents to publish in the Official Gazette all
unpublished presidential issuances which are of
general application, and unless so published, they
shall have no binding force and effect.

SO ORDERED.

Relova, J., concurs.

Aquino, J., took no part.

Concepcion, Jr., J., is on leave.

 Republic of the Philippines
SUPREME COURT
Manila
THIRD DIVISION
G.R. No. 80718 January 29, 1988
FELIZA P. DE ROY and VIRGILIO
RAMOS, petitioners,
vs.
COURT OF APPEALS and LUIS BERNAL, SR.,
GLENIA BERNAL, LUIS BERNAL, JR., HEIRS OF
MARISSA BERNAL, namely, GLICERIA DELA
CRUZ BERNAL and LUIS BERNAL,
SR., respondents.
RESOLUTION
CORTES, J.:
This special civil action for certiorari seeks to
declare null and void two (2) resolutions of the
Special First Division of the Court of Appeals in the
case of Luis Bernal, Sr., et al. v. Felisa Perdosa De
Roy, et al., CA-G.R. CV No. 07286. The first
resolution promulgated on 30 September 1987
denied petitioners' motion for extension of time to
file a motion for reconsideration and directed entry
of judgment since the decision in said case had
become final; and the second Resolution dated 27
October 1987 denied petitioners' motion for
reconsideration for having been filed out of time.
At the outset, this Court could have denied the
petition outright for not being verified as required by
Rule 65 section 1 of the Rules of Court. However,
even if the instant petition did not suffer from this
defect, this Court, on procedural and substantive
grounds, would still resolve to deny it.
The facts of the case are undisputed. The firewall
of a burned-out building owned by petitioners
collapsed and destroyed the tailoring shop
occupied by the family of private respondents,
resulting in injuries to private respondents and the
death of Marissa Bernal, a daughter. Private
respondents had been warned by petitioners to
vacate their shop in view of its proximity to the
weakened wall but the former failed to do so. On
the basis of the foregoing facts, the Regional Trial
Court. First Judicial Region, Branch XXXVIII,
presided by the Hon. Antonio M. Belen, rendered
judgment finding petitioners guilty of gross
negligence and awarding damages to private
respondents. On appeal, the decision of the trial
court was affirmed in toto by the Court of Appeals
in a decision promulgated on August 17, 1987, a
copy of which was received by petitioners on
August 25, 1987. On September 9, 1987, the last
day of the fifteen-day period to file an appeal,
petitioners filed a motion for extension of time to file
a motion for reconsideration, which was eventually
denied by the appellate court in the Resolution of
September 30, 1987. Petitioners filed their motion
for reconsideration on September 24, 1987 but this
was denied in the Resolution of October 27, 1987.
This Court finds that the Court of Appeals did not
commit a grave abuse of discretion when it denied
petitioners' motion for extension of time to file a
motion for reconsideration, directed entry of
judgment and denied their motion for
reconsideration. It correctly applied the rule laid
down in Habaluyas Enterprises, Inc. v. Japzon,
[G.R. No. 70895, August 5, 1985,138 SCRA 461,
that the fifteen-day period for appealing or for filing
a motion for reconsideration cannot be extended. In
its Resolution denying the motion for
reconsideration, promulgated on July 30, 1986 (142
SCRA 208), this Court en banc restated and
clarified the rule, to wit:
Beginning one month after the promulgation of this
Resolution, the rule shall be strictly enforced that
no motion for extension of time to file a motion for
reconsideration may be filed with the Metropolitan
or Municipal Trial Courts, the Regional Trial Courts,
and the Intermediate Appellate Court. Such a
motion may be filed only in cases pending with the
Supreme Court as the court of last resort, which
may in its sound discretion either grant or deny the
extension requested. (at p. 212)
Lacsamana v. Second Special Cases Division of
the intermediate Appellate Court, [G.R. No. 73146-
53, August 26, 1986, 143 SCRA 643], reiterated the
rule and went further to restate and clarify the
modes and periods of appeal.
Bacaya v. Intermediate Appellate Court, [G.R. No.
74824, Sept. 15, 1986,144 SCRA 161],stressed the
prospective application of said rule, and explained
the operation of the grace period, to wit:
In other words, there is a one-month
grace period from the promulgation
on May 30, 1986 of the Court's
Resolution in the clarificatory
 Habaluyas case, or up to June 30,
1986, within which the rule barring
extensions of time to file motions for
new trial or reconsideration is, as
yet, not strictly enforceable.
Since petitioners herein filed their
motion for extension on February 27,
1986, it is still within the grace
period, which expired on June 30,
1986, and may still be allowed.
This grace period was also applied in Mission v.
Intermediate Appellate Court [G.R. No. 73669,
October 28, 1986, 145 SCRA 306].]
Nor was there error in rejecting petitioners
argument that private respondents had the "last
clear chance" to avoid the accident if only they
heeded the. warning to vacate the tailoring shop
and , therefore, petitioners prior negligence should
be disregarded, since the doctrine of "last clear
chance," which has been applied to vehicular
accidents, is inapplicable to this case.
WHEREFORE, in view of the foregoing, the Court
Resolved to DENY the instant petition for lack of
merit.
Fernan (Chairman), Gutierrez, Jr., Feliciano and
Bidin, JJ., concur.

In the instant case, however, petitioners' motion for

extension of time was filed on September 9, 1987,
more than a year after the expiration of the grace
period on June 30, 1986. Hence, it is no longer
within the coverage of the grace period.
Considering the length of time from the expiration
of the grace period to the promulgation of the
decision of the Court of Appeals on August 25,
1987, petitioners cannot seek refuge in the
ignorance of their counsel regarding said rule for
their failure to file a motion for reconsideration
within the reglementary period.

Petitioners contend that the rule enunciated in

the Habaluyas case should not be made to apply to
the case at bar owing to the non-publication of
the Habaluyas decision in the Official Gazette as of
the time the subject decision of the Court of
Appeals was promulgated. Contrary to petitioners'
view, there is no law requiring the publication of
Supreme Court decisions in the Official Gazette
before they can be binding and as a condition to
their becoming effective. It is the bounden duty of
counsel as lawyer in active law practice to keep
abreast of decisions of the Supreme Court
particularly where issues have been clarified,
consistently reiterated, and published in the
advance reports of Supreme Court decisions (G. R.
s) and in such publications as the Supreme Court
Reports Annotated (SCRA) and law journals.

This Court likewise finds that the Court of Appeals

committed no grave abuse of discretion in affirming
the trial court's decision holding petitioner liable
under Article 2190 of the Civil Code, which provides
that "the proprietor of a building or structure is
responsible for the damage resulting from its total
or partial collapse, if it should be due to the lack of
necessary repairs.
 Republic of the Philippines
SUPREME COURT
Manila
EN BANC
A.M. No. MTJ-92-706 March 29, 1995
LUPO ALMODIEL ATIENZA, complainant,
vs.
JUDGE FRANCISCO F. BRILLANTES, JR.,
Metropolitan Trial Court, Branch 28,
Manila, respondent.
QUIASON, J.:
This is a complaint by Lupo A. Atienza for Gross
Immorality and Appearance of Impropriety against
Judge Francisco Brillantes, Jr., Presiding Judge of
the Metropolitan Trial Court, Branch 20, Manila.
Complainant alleges that he has two children with
Yolanda De Castro, who are living together at No.
34 Galaxy Street, Bel-Air Subdivision, Makati,
Metro Manila. He stays in said house, which he
purchased in 1987, whenever he is in Manila.
In December 1991, upon opening the door to his
bedroom, he saw respondent sleeping on his
(complainant's) bed. Upon inquiry, he was told by
the houseboy that respondent had been cohabiting
with De Castro. Complainant did not bother to wake
up respondent and instead left the house after
giving instructions to his houseboy to take care of
his children.
Thereafter, respondent prevented him from visiting
his children and even alienated the affection of his
children for him.
Complainant claims that respondent is married to
one Zenaida Ongkiko with whom he has five
children, as appearing in his 1986 and 1991 sworn
statements of assets and liabilities. Furthermore, he
alleges that respondent caused his arrest on
January 13, 1992, after he had a heated argument
with De Castro inside the latter's office.
For his part, respondent alleges that complainant
was not married to De Castro and that the filing of
the administrative action was related to
complainant's claim on the Bel-Air residence, which
was disputed by De Castro.
Respondent denies that he caused complainant's
arrest and claims that he was even a witness to the
withdrawal of the complaint for Grave Slander filed
by De Castro against complainant. According to
him, it was the sister of De Castro who called the
police to arrest complainant.
Respondent also denies having been married to
Ongkiko, although he admits having five children
with her. He alleges that while he and Ongkiko
went through a marriage ceremony before a Nueva
Ecija town mayor on April 25, 1965, the same was
not a valid marriage for lack of a marriage license.
Upon the request of the parents of Ongkiko,
respondent went through another marriage
ceremony with her in Manila on June 5, 1965.
Again, neither party applied for a marriage license.
Ongkiko abandoned respondent 17 years ago,
leaving their children to his care and custody as a
single parent.
Respondent claims that when he married De
Castro in civil rites in Los Angeles, California on
December 4, 1991, he believed, in all good faith
and for all legal intents and purposes, that he was
single because his first marriage was solemnized
without a license.
Under the Family Code, there must be a judicial
declaration of the nullity of a previous marriage
before a party thereto can enter into a second
marriage. Article 40 of said Code provides:
The absolute nullity of a previous
marriage may be invoked for the
purposes of remarriage on the basis
solely of a final judgment declaring
such previous marriage void.
Respondent argues that the provision of Article 40
of the Family Code does not apply to him
considering that his first marriage took place in
1965 and was governed by the Civil Code of the
Philippines; while the second marriage took place
in 1991 and governed by the Family Code.
Article 40 is applicable to remarriages entered into
after the effectivity of the Family Code on August 3,
1988 regardless of the date of the first marriage.
Besides, under Article 256 of the Family Code, said
Article is given "retroactive effect insofar as it does
not prejudice or impair vested or acquired rights in
accordance with the Civil Code or other laws." This
is particularly true with Article 40, which is a rule of greater demand on moral righteousness and
procedure. Respondent has not shown any vested uprightness of an individual than a seat in the
right that was impaired by the application of Article judiciary (Imbing v. Tiongzon, 229 SCRA 690
40 to his case. [1994]).

The fact that procedural statutes may somehow
affect the litigants' rights may not preclude their
retroactive application to pending actions. The
retroactive application of procedural laws is not
violative of any right of a person who may feel that
he is adversely affected (Gregorio v. Court of
Appeals, 26 SCRA 229 [1968]). The reason is that
as a general rule no vested right may attach to, nor
arise from, procedural laws (Billones v. Court of
Industrial Relations, 14 SCRA 674 [1965]).
WHEREFORE, respondent is DISMISSED from the
service with forfeiture of all leave and retirement
benefits and with prejudice to reappointment in any
branch, instrumentality, or agency of the
government, including government-owned and
controlled corporations. This decision is
immediately executory.
SO ORDERED.

Respondent is the last person allowed to invoke

good faith. He made a mockery of the institution of
marriage and employed deceit to be able to cohabit
with a woman, who beget him five children.

Respondent passed the Bar examinations in 1962

and was admitted to the practice of law in 1963. At
the time he went through the two marriage
ceremonies with Ongkiko, he was already a lawyer.
Yet, he never secured any marriage license. Any
law student would know that a marriage license is
necessary before one can get married. Respondent
was given an opportunity to correct the flaw in his
first marriage when he and Ongkiko were married
for the second time. His failure to secure a
marriage license on these two occasions betrays
his sinister motives and bad faith.

It is evident that respondent failed to meet the

standard of moral fitness for membership in the
legal profession.

While the deceit employed by respondent existed

prior to his appointment as a Metropolitan Trial
Judge, his immoral and illegal act of cohabiting with
De Castro began and continued when he was
already in the judiciary.

The Code of Judicial Ethics mandates that the

conduct of a judge must be free of a whiff of
impropriety, not only with respect to his
performance of his judicial duties but also as to his
behavior as a private individual. There is no duality
of morality. A public figure is also judged by his
private life. A judge, in order to promote public
confidence in the integrity and impartiality of the
judiciary, must behave with propriety at all times, in
the performance of his judicial duties and in his
everyday life. These are judicial guideposts too
self-evident to be overlooked. No position exacts a

Republic of the Philippines
Supreme Court
Manila
THIRD DIVISION
JUAN DE DIOS CARLOS, G.R. No. 179922
Petitioner,
Present:
- versus - YNARES-SANTIAGO, J.,
Chairperson,
AUSTRIA-MARTINEZ,
FELICIDAD SANDOVAL, also CHICO-NAZARIO,
known as FELICIDAD S. VDA. NACHURA, and
DE CARLOS or FELICIDAD REYES, JJ.
SANDOVAL CARLOS or
FELICIDAD SANDOVAL VDA.
DE CARLOS, and TEOFILO Promulgated:
CARLOS II,
Respondents. December 16,
2008
x------------------------------------
--------------x
DECISION
REYES, R.T., J.:
ONLY a spouse can initiate an action to
sever the marital bond for marriages solemnized
during the effectivity of the Family Code, except
cases commenced prior to March 15, 2003. The
nullity and annulment of a marriage cannot be
declared in a judgment on the pleadings, summary
judgment, or confession of judgment.
We pronounce these principles as We
review on certiorari the Decision[1] of the Court of
Appeals (CA) which reversed and set aside the
summary judgment[2] of the Regional Trial Court
(RTC) in an action for declaration of nullity of
marriage, status of a child, recovery of property,
reconveyance, sum of money, and damages.
The Facts
The events that led to the institution of the
instant suit are unveiled as follows:
Spouses Felix B. Carlos and Felipa Elemia
died intestate. They left six parcels of land to their
compulsory heirs, Teofilo Carlos and petitioner
Juan De Dios Carlos. The lots are particularly
described as follows:
Parcel No. 1
Lot No. 162 of the MUNTINLUPA
ESTATE SUBDIVISION, Case No.
6137 of the Court of Land
Registration.
Exemption from the provisions of
Article 567 of the Civil Code is
specifically reserved.
Area: 1 hectare, 06 ares, 07
centares.
Parcel No. 2
A parcel of land (Lot No. 159-B),
being a portion of Lot 159, situated
in the Bo. of
Alabang, Municipality of Muntinlupa,
Province of Rizal, x x x containing an
area of Thirteen Thousand Four
Hundred Forty One (13,441) square
meters.
Parcel No. 3
A parcel of land (Lot 159-B-2 of the
subd. plan [LRC] Psd-325903,
approved as a non-subd. project),
being a portion of Lot 159-B [LRC]
Psd- Alabang, Mun. of Muntinlupa,
Metro Manila, Island of Luzon. Boun
ded on the NE, points 2 to 4 by Lot
155, Muntinlupa Estate; on the SE,
point 4 to 5 by Lot 159-B-5; on the S,
points 5 to 1 by Lot 159-B-3; on the
W, points 1 to 2 by Lot 159-B-1
(Road widening) all of the subd.
plan, containing an area
of ONE HUNDRED THIRTY (130)
SQ. METERS, more or less.
PARCEL No. 4
A parcel of land (Lot 28-C of the
subd. plan Psd-13-007090, being a
portion of Lot 28, Muntinlupa Estate,
L.R.C. Rec. No. 6137), situated in
the Bo. of Alabang, Mun. of
Muntinlupa, Metro Manila. Bounded
on the NE, along lines 1-2 by Lot 27,
Muntinlupa Estate; on the East &
SE, along lines 2 to 6 by
Mangangata River; and on the
West., along line 6-1, by Lot 28-B of
the subd. plan x x x containing an
area
of ONE THUSAND AND SEVENTY-
SIX (1,076) SQUARE METERS.
PARCEL No. 5
PARCELA DE TERRENO No. 50,
Manzana No. 18, de la subd. de
Solocan. Linda por el NW, con la
parcela 49; por el NE, con la parcela
36; por el SE, con la parcela 51; y
por el SW, con la calle Dos
Castillas. Partiendo de un punto
marcado 1 en el plano, el cual se
halla a S. gds. 01'W, 72.50 mts.
Desde el punto 1 de esta manzana,
que es un mojon de concreto de la
Ciudad de Manila, situado on el
esquina E. que forman las Calles
Laong Laan y Dos. Castillas,
continiendo un extension superficial
de CIENTO CINCUENTA (150)
METROS CUADRADOS.
PARCEL No. 6
PARCELA DE TERRENO No. 51,
Manzana No. 18, de la subd. De
Solocon. Linda por el NW, con la
parcela 50; por el NE, con la parcela
37; por el SE, con la parcela 52; por
el SW, con la Calle Dos
Castillas. Partiendo de un punto
Marcado 1 en el plano, el cual se
halla at S. 43 gds. 01'E, 82.50 mts.
Desde el punto 1 de esta manzana,
que es un mojon de concreto de la
Ciudad de Manila, situado on el
esquina E. que forman las Calles
Laong Laan y Dos. Castillas,
continiendo una extension
superficial de CIENTO CINCUENTA
(150) METROS CUADRADOS.[3]
During the lifetime of Felix Carlos, he
agreed to transfer his estate to Teofilo. The
agreement was made in order to avoid the payment
of inheritance taxes. Teofilo, in turn, undertook to
deliver and turn over the share of the other legal
heir, petitioner Juan De Dios Carlos.
Eventually, the first three (3) parcels of land
were transferred and registered in the name of
Teofilo. These three (3) lots are now covered by
Transfer Certificate of Title (TCT) No. 234824
issued by the Registry of Deeds of Makati
City; TCT No. 139061 issued by the Registry of
Deeds of Makati City; and TCT No. 139058 issued
by the Registry of Deeds of Makati City.
Parcel No. 4 was registered in the name of
petitioner. The lot is now covered by TCT No.
160401 issued by the Registry of Deeds of Makati
City.
On May 13, 1992, Teofilo died intestate. He
was survived by respondents Felicidad and their
son, Teofilo Carlos II (Teofilo II). Upon Teofilos
death, Parcel Nos. 5 & 6 were registered in the
name of respondent Felicidad and co-respondent,
Teofilo II. The said two (2) parcels of land are
covered by TCT Nos. 219877 and 210878,
respectively, issued by the Registry of Deeds of
Manila.
In 1994, petitioner instituted a suit against
respondents before the RTC in Muntinlupa City,
docketed as Civil Case No. 94-1964. In the said
case, the parties submitted and caused the
approval of a partial compromise agreement. Under
the compromise, the parties acknowledged their
respective shares in the proceeds from the sale of
a portion of the first parcel of land. This includes the
remaining 6,691-square-meter portion of said land.
On September 17, 1994, the parties
executed a deed of extrajudicial partition, dividing
the remaining land of the first parcel between them.
Meanwhile, in a separate case entitled Rillo
v. Carlos,[4] 2,331 square meters of the second
parcel of land were adjudicated in favor of
plaintiffs Rillo. The remaining 10,000-square meter
portion was later divided between petitioner and
respondents.
The division was incorporated in a by such certificates of title, including the sums
supplemental compromise agreement executed
on August 17, 1994, with respect to Civil Case No.
94-1964. The parties submitted the supplemental
compromise agreement, which was approved
accordingly.
Petitioner and respondents entered into two
more contracts in August 1994. Under the
contracts, the parties equally divided between them
the third and fourth parcels of land.
In August 1995, petitioner commenced an
action, docketed as Civil Case No. 95-135, against
respondents before the court a quo with the
following causes of action: (a) declaration of nullity
of marriage; (b) status of a child; (c) recovery of
property; (d) reconveyance; and (e) sum of money
and damages. The complaint was raffled to Branch
256 of the RTC in Muntinlupa.
In his complaint, petitioner asserted that the
marriage between his late brother Teofilo and
respondent Felicidad was a nullity in view of the
absence of the required marriage license. He
likewise maintained that his deceased brother was
neither the natural nor the adoptive father of
respondent Teofilo Carlos II.
Petitioner likewise sought the avoidance of
the contracts he entered into with respondent
Felicidad with respect to the subject real
properties. He also prayed for the cancellation of
the certificates of title issued in the name of
respondents. He argued that the properties covered
received by respondents as proceeds, should be
reconveyed to him.
Finally, petitioner claimed indemnification as
and by way of moral and exemplary damages,
attorneys fees, litigation expenses, and costs of Registrar of Calumpit, Bulacan, certifying that there
suit. is no record of birth of respondent Teofilo II.

On October 16, 1995, respondents Petitioner also incorporated in the counter-

submitted their answer. They denied the material motion for summary judgment the testimony of
averments of petitioners complaint. Respondents respondent Felicidad in another
contended that the dearth of details regarding the case. Said testimony was made in Civil Case No.
requisite marriage license did not invalidate 89-2384, entitled Carlos v.
Felicidads marriage to Teofilo. Respondents Gorospe, before the RTC Branch 255, Las Pias. In
declared that Teofilo II was the illegitimate child of her testimony, respondent Felicidad narrated that
the deceased Teofilo Carlos with another woman. co-respondent Teofilo II is her child with Teofilo.[5]

On the grounds of lack of cause of action Subsequently, the Office of the City
and lack of jurisdiction over the subject matter, Prosecutor of Muntinlupa submitted to the trial court
respondents prayed for the dismissal of the case its report and manifestation, discounting the
before the trial court. They also asked that their possibility of collusion between the parties.
counterclaims for moral and exemplary damages, RTC and CA Dispositions
as well as attorneys fees, be granted.
On April 8, 1996, the RTC rendered
But before the parties could even proceed judgment, disposing as follows:
to pre-trial, respondents moved for summary
WHEREFORE, premises
judgment. Attached to the motion was the affidavit considered, defendants
of the justice of the peace who solemnized the (respondents) Motion for Summary
Judgment is hereby denied. Plaintiffs
marriage. Respondents also submitted the (petitioners) Counter-Motion for
Certificate of Live Birth of respondent Teofilo II. In Summary Judgment is hereby
granted and summary judgment is
the certificate, the late Teofilo Carlos and hereby rendered in favor of plaintiff
as follows:
respondent Felicidad were designated as parents.
1. Declaring the marriage
between defendant Felicidad
On January 5, 1996, petitioner opposed the Sandoval and Teofilo Carlos
motion for summary judgment on the ground of solemnized at Silang, Cavite on May
14, 1962, evidenced by the Marriage
irregularity of the contract evidencing the Certificate submitted in this case,
null and void ab initio for lack of the
marriage. In the same breath, petitioner lodged his
requisite marriage license;
own motion for summary judgment. Petitioner
2. Declaring that the
presented a certification from the Local Civil defendant minor, Teofilo S. Carlos II,
is not the natural, illegitimate, or
legally adopted child of the late
Teofilo E. Carlos;
3. Ordering defendant
Sandoval to pay and restitute to
plaintiff the sum of P18,924,800.00
together with the interest thereon at
the legal rate from date of filing of
the instant complaint until fully paid;
4. Declaring plaintiff as the
sole and exclusive owner of the
parcel of land, less the portion
adjudicated to plaintiffs in Civil Case
No. 11975, covered by TCT No.
139061 of the Register of Deeds of
Makati City, and ordering said
Register of Deeds to cancel said title
and to issue another title in the sole
name of plaintiff herein;
5. Declaring the Contract,
Annex K of complaint, between
plaintiff and defendant Sandoval null
and void, and ordering the Register
of Deeds of Makati City to
cancel TCT No. 139058 in the name
of Teofilo Carlos, and to issue
another title in the sole name of
plaintiff herein;
6. Declaring the Contract,
Annex M of the complaint, between
plaintiff and defendant Sandoval null
and void;
7. Ordering the cancellation
of TCT No. 210877 in the names of
defendant Sandoval and defendant
minor Teofilo S. Carlos II and
ordering the Register of Deeds of
Manila to issue another title in the
exclusive name of plaintiff herein;
8. Ordering the cancellation
of TCT No. 210878 in the name of
defendant Sandoval and defendant
Minor Teofilo S. Carlos II and
ordering the Register of Deeds of
Manila to issue another title in the
sole name of plaintiff herein.
Let this case be set for
hearing for the reception of plaintiffs
evidence on his claim for moral
damages, exemplary damages,
attorneys fees, appearance fees,
and litigation expenses on June 7,
1996 at 1:30 o'clock in the
afternoon.
SO ORDERED.[6]
Dissatisfied, respondents appealed to the
CA. In the appeal, respondents argued, inter alia,
that the trial court acted without or in excess of
jurisdiction in rendering summary judgment
annulling the marriage of Teofilo, Sr. and Felicidad
and in declaring Teofilo II as not an illegitimate child
of Teofilo, Sr.
On October 15, 2002, the CA reversed and
set aside the RTC ruling, disposing as follows:
WHEREFORE, the summary
judgment appealed from
is REVERSED and SET ASIDE and
in lieu thereof, a new
one is entered REMANDING the
case to the court of origin for further
proceedings.
SO ORDERED.[7]
The CA opined:
We find the rendition of the
herein appealed summary judgment
by the court a quo contrary to law
and public policy as ensconced in
the aforesaid safeguards. The fact
that it was appellants who first
sought summary judgment from the
trial court, did not justify the grant
thereof in favor of appellee. Not
being an action to recover upon a
claim or to obtain a declaratory
relief, the rule on summary judgment
apply (sic) to an action to annul a
marriage. The mere fact that no
genuine issue was presented and
the desire to expedite the disposition
of the case cannot justify a
misinterpretation of the rule. The first
paragraph of Article 88 and 101 of
the Civil Code expressly prohibit the
rendition of decree of annulment of a
marriage upon a stipulation of facts
or a confession of judgment. Yet, the
affidavits annexed to the petition for
summary judgment practically
amount to these methods explicitly
proscribed by the law.
We are not unmindful of
appellees argument that the
foregoing safeguards have
traditionally been applied to prevent
collusion of spouses in the matter of
dissolution of marriages and that the
death of Teofilo Carlos on May 13,
1992 had effectively dissolved the
marriage herein impugned. The fact,
however, that appellees own brother
and appellant Felicidad Sandoval
lived together as husband and wife
for thirty years and that the
annulment of their marriage is the
very means by which the latter is
sought to be deprived of her
participation in the estate left by the
former call for a closer and more
thorough inquiry into the
circumstances surrounding the
case. Rather that the summary
nature by which the court a
quo resolved the issues in the case,
the rule is to the effect that the
material facts alleged in the
complaint for annulment of marriage
should always be proved. Section 1,
Rule 19 of the Revised Rules of
Court provides:
Section
1. Judgment on the
pleadings. Where an
answer fails to tender
an issue, or otherwise
admits the material
allegations of the
adverse party's
pleading, the court
may, on motion of
that party, direct
judgment on such
pleading. But in
actions for annulment
of marriage or for
legal separation, the
material facts alleged
in the complaint shall
always be proved.
(Underscoring
supplied)
Moreover, even if We were to
sustain the applicability of the rules
on summary judgment to the case at
bench, Our perusal of the record
shows that the finding of the court a
quo for appellee would still not be
warranted. While it may be readily
conceded that a valid marriage
license is among the formal
requisites of marriage, the absence
of which renders the marriage
void ab initio pursuant to Article
80(3) in relation to Article 58 of
the Civil Code the failure to reflect
the serial number of the marriage
license on the marriage contract
evidencing the marriage between
Teofilo Carlos and appellant
Felicidad Sandoval, although
irregular, is not as fatal as appellee
represents it to be. Aside from the
dearth of evidence to the contrary,
appellant Felicidad Sandovals
affirmation of the existence of said
marriage license is corroborated by
the following statement in the
affidavit executed by Godofredo
Fojas, then Justice of the Peace who
officiated the impugned marriage, to
wit:
That as far as
I could remember,
there was a marriage
license issued at
Silang, Cavite on May
14, 1962 as basis of
the said marriage
contract executed by
Teofilo Carlos and
Felicidad Sandoval,
but the number of
said marriage license
was inadvertently not
placed in the
marriage contract for
the reason that it was
the Office Clerk who
filled up the blanks in
the Marriage Contract
 who in turn, may have
overlooked the same.
Rather than the inferences
merely drawn by the trial court, We
are of the considered view that the
veracity and credibility of the
foregoing statement as well as the
motivations underlying the same
should be properly threshed out in a
trial of the case on the merits.
If the non-presentation of the
marriage contract the primary
evidence of marriage is not proof
that a marriage did not take place,
neither should appellants non-
presentation of the subject marriage
license be taken as proof that the
same was not procured. The burden
of proof to
show the nullity of the marriage, it
must be emphasized, rests upon the
plaintiff and any doubt should be
resolved in favor of the validity of the
marriage.
Considering that the burden
of proof also rests on the party who
disputes the legitimacy of a
particular party, the same may be
said of the trial courts rejection of the
relationship between appellant
Teofilo Carlos II and his putative
father on the basis of the
inconsistencies in appellant
Felicidad Sandovals
statements. Although it had
effectively disavowed appellants
prior claims regarding the legitimacy
of appellant Teofilo Carlos II, the
averment in the answer that he is
the illegitimate son of appellees
brother, to Our mind, did not
altogether foreclose the possibility of
the said appellants illegitimate
filiation, his right to prove the same
or, for that matter, his entitlement to
inheritance rights as such.
Without trial on the merits
having been conducted in the case,
We find appellees bare allegation
that appellant Teofilo Carlos II was
merely purchased from an indigent
couple by appellant Felicidad
Sandoval, on the whole, insufficient
to support what could well be a
minors total forfeiture of the rights
arising from his
putative filiation. Inconsistent though
it may be to her previous
statements, appellant Felicidad
Sandovals declaration regarding the
illegitimate filiation of Teofilo Carlos
II is more credible when considered
in the light of the fact that, during the
last eight years of his life, Teofilo
Carlos allowed said appellant the
use of his name and the shelter of
his household. The least that the trial
court could have done in the
premises was to conduct a trial
on the merits in order to be able to
thoroughly resolve the issues
pertaining to the filiation of appellant
Teofilo Carlos II.[8]
On November 22, 2006, petitioner moved
for reconsideration and for the inhibition of
the ponente, Justice Rebecca De Guia-
Salvador. The CA denied the twin motions.
Issues
In this petition under Rule 45, petitioner
hoists the following issues:
1. That, in reversing and
setting aside the Summary
Judgment under the Decision,
Annex A hereof, and in denying
petitioners Motion for
reconsideration under the
Resolution, Annex F hereof, with
respect to the nullity of the impugned
marriage, petitioner respectfully
submits that the Court of Appeals
committed a grave reversible error in
applying Articles 88 and 101 of the
Civil Code, despite the fact that the
circumstances of this case are
different from that contemplated and
intended by law, or has otherwise
decided a question of substance not
theretofore decided by the Supreme
 Court, or has decided it in a manner summary judgment is allowed. So is confession
probably not in accord with law or
with the applicable decisions of this of judgment disallowed.
Honorable Court;
Petitioner faults the CA in applying Section
2. That in setting aside and
reversing the Summary Judgment 1, Rule 19[10] of the Revised Rules of Court, which
and, in lieu thereof, entering another provides:
remanding the case to the court of
origin for further proceedings, SECTION 1. Judgment on
petitioner most respectfully submits the pleadings. Where an answer
that the Court of Appeals committed fails to tender an issue, or otherwise
a serious reversible error in applying admits the material allegations of the
Section 1, Rule 19 (now Section 1, adverse partys pleading, the court
Rule 34) of the Rules of Court may, on motion of that party, direct
providing for judgment on the judgment on such pleading. But in
pleadings, instead of Rule 35 actions for annulment of marriage or
governing Summary Judgments; for legal separation, the material
facts alleged in the complaint shall
3. That in reversing and always be proved.
setting aside the Summary
Judgment and, in lieu thereof,
entering another remanding the case He argues that the CA should have applied Rule 35
to the court of origin for further of the Rules of Court governing summary
proceedings, petitioner most
respectfully submits that the Court of judgment, instead of the rule on judgment on the
Appeals committed grave abuse of pleadings.
discretion, disregarded judicial
admissions, made findings on
Petitioner is misguided. The CA did not limit its
ground of speculations, surmises,
and conjectures, or otherwise finding solely within the provisions of the Rule on
committed misapplications of the judgment on the pleadings. In disagreeing with the
laws and misapprehension of the
trial court, the CA likewise considered the
facts.[9] (Underscoring supplied)
provisions on summary judgments, to wit:

Essentially, the Court is tasked to resolve whether Moreover, even if We are to

a marriage may be declared void ab initio through a
judgment on the pleadings or a summary judgment
and without the benefit of a trial. But there are other
procedural issues, including the capacity of one
sustain the applicability of the rules
on summary judgment to the case at
bench, Our perusal of the record
shows that the finding of the court a
quo for appellee would still not be
warranted. x x x[11]

who is not a spouse in bringing the action for nullity

But whether it is based on judgment on the
of marriage. pleadings or summary judgment, the CA was
correct in reversing the summary judgment
Our Ruling rendered by the trial court. Both the rules on
judgment on the pleadings and summary
I. The grounds for declaration of judgments have no place in cases of declaration of
absolute nullity of marriage must be absolute nullity of marriage and even in annulment
proved. Neither judgment on the pleadings nor of marriage.
With the advent of A.M. No. 02-11-10-SC, known
as Rule on Declaration of Absolute Nullity of Void
Marriages and Annulment of Voidable Marriages,
the question on the application of summary
judgments or even judgment on the pleadings in
cases of nullity or annulment of marriage has been
stamped with clarity. The significant principle laid
down by the said Rule, which took effect on March
15, 2003[12] is found in Section 17, viz.:
SEC. 17. Trial. (1) The
presiding judge shall personally
conduct the trial of the case. No
delegation of evidence to a
commissioner shall be allowed
except as to matters involving
property relations of the spouses.
(2) The grounds for
declaration of absolute nullity or
annulment of marriage must be
proved. No judgment on the
pleadings, summary judgment, or
confession of judgment shall be
allowed. (Underscoring supplied)
Likewise instructive is the Courts pronouncement
in Republic v. Sandiganbayan.[13] In that case, We
excluded actions for nullity or annulment of
marriage from the application of summary
judgments.
Prescinding from the
foregoing discussion, save for
annulment of marriage or declaration
of its nullity or for legal separation,
summary judgment is applicable to
all kinds of actions.[14] (Underscoring
supplied)
By issuing said summary judgment, the trial
court has divested the State of its lawful right and
duty to intervene in the case. The participation of
the State is not terminated by the declaration of the
public prosecutor that no collusion exists between
the parties. The State should have been given the
opportunity to present controverting evidence
[15]
before the judgment was rendered.
Both the Civil Code and the Family Code ordain
that the court should order the prosecuting attorney
to appear and intervene for the State. It is at this
stage when the public prosecutor sees to it that
there is no suppression of evidence. Concomitantly,
even if there is no suppression of evidence, the
public prosecutor has to make sure that the
evidence to be presented or laid down before the
court is not fabricated.
To further bolster its role towards the preservation
of marriage, the Rule on Declaration of Absolute
Nullity of Void Marriages reiterates the duty of the
public prosecutor, viz.:
SEC. 13. Effect of failure to
appear at the pre-trial. (a) x x x
(b) x x x If there is no collusion, the
court shall require the public
prosecutor to intervene for the State
during the trial on the merits to
prevent suppression or fabrication of
evidence. (Underscoring supplied)
Truly, only the active participation of the public
prosecutor or the Solicitor General will ensure that
the interest of the State is represented and
protected in proceedings for declaration of nullity of
marriages by preventing the fabrication or
[16]
suppression of evidence.
II. A petition for declaration of absolute
nullity of void marriage may be filed solely by
the husband or wife. Exceptions: (1) Nullity of
marriage cases commenced before the
effectivity of A.M. No. 02-11-10-SC; and (2)
Marriages celebrated during the effectivity of
the Civil Code.
Under the Rule on Declaration of Absolute
Nullity of Void Marriages and Annulment of
Voidable Marriages, the petition for declaration of
absolute nullity of marriage may not be filed by any
party outside of the marriage. The Rule made it
exclusively a right of the spouses by stating:
SEC. 2. Petition for
declaration of absolute nullity of void
marriages.
(a) Who may file. A petition
for declaration of absolute nullity
of void marriage may be filed solely
by the husband or the
wife. (Underscoring supplied)
Section 2(a) of the Rule makes it the sole
right of the husband or the wife to file a petition for
declaration of absolute nullity of void
marriage. The rationale of the Rule
enlightening, viz.:
Only an aggrieved or injured
spouse may file a never intended to deprive the compulsory or
petition for annulment of voidable
marriages or declaration of absolute
nullity of void marriages. Such
petition cannot be filed by
compulsory or intestate heirs of the
spouses or by the State. The
Committee is of the belief that they
do not have a legal right to file the
petition. Compulsory or intestate
heirs have only inchoate rights prior
to the death of their predecessor,
and, hence, can only question the
validity of the marriage of the
spouses upon the death of a spouse
in a proceeding for the settlement of
the estate of the deceased spouse
filed in the regular courts. On the
other hand, the concern of the
State is to preserve marriage and
not to seek its
dissolution.[17] (Underscoring
supplied)
The new Rule recognizes that the husband
and the wife are the sole architects of a healthy,
loving, peaceful marriage. They are the only ones
who can decide when and how to build the
foundations of marriage. The spouses alone are the
engineers of their marital life. They are
simultaneously the directors and actors of their
matrimonial true-to-life play. Hence, they alone can
and should decide when to take a cut, but only in
accordance with the grounds allowed by law.
The innovation incorporated in A.M. No. 02-
11-10-SC sets forth a demarcation line between
marriages covered by the Family Code and those
solemnized under the Civil Code. The Rule extends
only to marriages entered into during the effectivity
of the Family Code which took effect on August 3,
1988.[18]
The advent of the Rule on Declaration of
Absolute Nullity of Void Marriages marks
is the beginning of the end of the right of the heirs of
the deceased spouse to bring a nullity of marriage
case against the surviving spouse. But the Rule
intestate heirs of their successional rights.
While A.M. No. 02-11-10-SC declares that a
petition for declaration of absolute nullity
of marriage may be filed solely by the husband or
the wife, it does not mean that the compulsory or
intestate heirs are without any recourse under the
law. They can still protect their successional right,
for, as stated in the Rationale of the Rules on
Annulment of Voidable Marriages and Declaration
of Absolute Nullity of Void Marriages, compulsory
or intestate heirs can still question the
validity of the marriage of the spouses, not in a
proceeding for declaration of nullity but upon the
death of a spouse in a proceeding for the
settlement of the estate of the deceased spouse
filed in the regular courts.[19]
It is emphasized, however, that the Rule
does not apply to cases already commenced
before March 15, 2003 although the marriage
involved is within the coverage of the Family
Code. This is so, as the new Rule which became
effective on March 15, 2003[20] is prospective in its the jurisdiction of the court as plaintiff in an
application. Thus, the Court held in Enrico v. Heirs action. When plaintiff is not the real party-in-
[21]
of Sps. Medinaceli, viz.: interest, the case is dismissible on the ground of
lack of cause of action.[27]
As has been emphasized,
A.M. No. 02-11-10-SC covers
marriages under the Family Code of Illuminating on this point is Amor-Catalan v.
the Philippines, and is prospective in
its application.[22] (Underscoring Court of Appeals,[28] where the Court held:
supplied)
True, under the New Civil
Code which is the law in force at the
Petitioner commenced the nullity of
time the respondents were married,
marriage case against respondent Felicidad in or even in the Family Code, there is
1995. The marriage in controversy was celebrated no specific provision as to who can
file a petition to declare the nullity of
on May 14, 1962. Which law would govern depends
marriage; however, only a party who
upon when the marriage took place.[23] can demonstrate proper interest can
file the same. A petition to declare
the nullity of marriage, like any
The marriage having been solemnized
other actions, must be prosecuted or
prior to the effectivity of the Family Code, the defended in the name of the real
applicable law is the Civil Code which was the law party-in-interest and must be based
on a cause of action. Thus, in Nial v.
in effect at the time of its
Badayog, the Court held that the
[24]
celebration. But the Civil Code is silent as to who children have the personality to file
may bring an action to declare the marriage the petition to declare the nullity of
marriage of their deceased father to
void. Does this mean that any person can bring an
their stepmother as it affects their
action for the declaration of nullity of marriage? successional rights.

We respond in the negative. The absence xxxx

of a provision in the Civil Code cannot be construed In fine, petitioners personality

as a license for any person to institute a nullity of
marriage case. Such person must appear to be the
party who stands to be benefited or injured by the
judgment in the suit, or the party entitled to the
avails of the suit.[25] Elsewise stated, plaintiff must
be the real party-in-interest. For it is basic in
procedural law that every action
prosecuted and defended in the name of the real
party-in-interest.[26]
Interest within the meaning of the rule
means material interest or an interest in issue to be
affected by the decree or judgment of the case, as
distinguished from mere curiosity
question involved or a mere incidental interest. One
having no material interest to protect cannot invoke
to file the petition to declare the
nullity of marriage cannot be
ascertained because of the absence
of the divorce decree and the foreign
law allowing it. Hence, a remand of
the case to the trial court for
reception of additional evidence is
necessary to determine whether
must be respondent Orlando was granted a
divorce decree and whether the
foreign law which granted the same
allows or restricts remarriage. If it is
proved that a valid divorce decree
was obtained and the same did not
allow respondent Orlandos
remarriage, then the trial court
should declare respondents
about the marriage as bigamous and void ab
initio but reduced the amount of
moral damages from P300,000.00
to P50,000.00 and exemplary
 damages from P200,000.00
to P25,000.00. On the contrary, if it (3) The widow or widower;
is proved that a valid divorce decree
was obtained which (4) Acknowledged natural children,
allowed Orlando to remarry, then the and natural children by legal
trial court must dismiss the instant fiction;
petition to declare nullity of marriage
on the ground that petitioner (5) Other illegitimate children
Felicitas Amor-Catalan lacks legal referred to in Article 287 of the
personality to file the Civil Code.[31]
same.[29] (Underscoring supplied)
Clearly, a brother is not among those considered as
III. The case must be remanded to compulsory heirs. But although a collateral relative,
determine whether or not petitioner is a real- such as a brother, does not fall within the ambit of a
party-in-interest to seek the declaration of compulsory heir, he
nullity of the marriage in controversy. still has a right to succeed to the estate. Articles
1001 and 1003 of the New Civil Code provide:
In the case at bench, the records reveal that when
Teofilo died intestate in 1992, his only surviving ART. 1001. Should brothers
compulsory heirs are respondent Felicidad and and sisters or their children survive
with the widow or widower, the latter
their son, Teofilo II. Under the law on succession, shall be entitled to one-half of the
successional rights are transmitted from the inheritance and the brothers and
moment of death of the decedent and the sisters or their children to the other
half.
compulsory heirs are called to succeed by
operation of law.[30] ART. 1003. If there are no
descendants, ascendants,
illegitimate children, or a surviving
Upon Teofilos death in 1992, all his property, rights spouse, the collateral relatives shall
succeed to the entire estate of the
and obligations to the extent of the value of the deceased in accordance with the
inheritance are transmitted to his compulsory following articles. (Underscoring
supplied)
heirs. These heirs were respondents Felicidad and
Teofilo II, as the surviving spouse and child, Indeed, only the presence of descendants,
respectively. ascendants or illegitimate children excludes
collateral relatives from succeeding to the estate of
Article 887 of the Civil Code outlined who are the decedent. The presence of legitimate,
compulsory heirs, to wit: illegitimate, or adopted child or children of the
deceasedprecludes succession by collateral
(1) Legitimate children and relatives. [32]
Conversely, if there are no
descendants, with respect to
descendants, ascendants, illegitimate children, or a
their legitimate parents and
ascendants; surviving spouse, the collateral relatives shall
succeed to the entire estate of the decedent.[33]
(2) In default of the foregoing,
legitimate parents and
ascendants, with respect to their If respondent Teofilo II is declared and
legitimate children and finally proven not to be the legitimate, illegitimate,
descendants;
or adopted son of Teofilo, petitioner would then
have a personality to seek the nullity of marriage of
his deceased brother Thus, the Court finds that a remand of the
with respondent Felicidad. This is so, considering case for trial on the merits to determine the validity
that collateral relatives, like a brother and sister, or nullity of the subject marriage is called for. But
acquire successional right over the estate if the the RTC is strictly instructed to dismiss the
decedent dies without issue and without nullity of marriage case for lack of cause of
ascendants in the direct line. action if it is proven by evidence that Teofilo II
is a legitimate, illegitimate, or legally adopted
The records reveal that Teofilo was son of Teofilo Carlos, the deceased brother of
predeceased by his parents. He had no other petitioner.
siblings but petitioner. Thus, if Teofilo II is finally
found and proven to be not a IV. Remand of the case regarding the
legitimate, illegitimate, or adopted son of Teofilo, question of filiation of respondent Teofilo II is
petitioner succeeds to the other half of the proper and in order. There is a need to vacate
estate of his brother, the first half being allotted the disposition of the trial court as to the other
to the widow pursuant to Article 1001 of the New causes of action before it.
Civil Code. This makes petitioner a real-party-
interest to seek the declaration of absolute nullity Petitioner did not assign as error or interpose as
of marriage of his deceased brother issue the ruling of the CA on the remand of the
with respondent Felicidad. If the subject case concerning the filiation of respondent Teofilo
marriage is found to be void ab initio, petitioner II. This notwithstanding, We should not leave the
succeeds to the entire estate. matter hanging in limbo.

It bears stressing, however, that the legal This Court has the authority to review
personality of petitioner to bring the nullity of matters not specifically raised or assigned as error
marriage case is contingent upon the final by the parties, if their consideration is necessary in
declaration that Teofilo II is not a legitimate, arriving at a just resolution of the case.[36]
adopted, or illegitimate son of Teofilo.
We agree with the CA that without trial on the
If Teofilo II is proven to be a legitimate, merits having been conducted in the case,
illegitimate, or legally adopted son of Teofilo, then petitioners bare allegation that respondent Teofilo II
petitioner has no legal personality to ask for the was adopted from an indigent couple is insufficient
nullity of marriage of his deceased brother and to support a total forfeiture of rights arising from his
respondent Felicidad. This is based on the ground putative filiation. However, We are not inclined to
that he has no successional right to be protected, support its pronouncement that the declaration of
hence, does not have proper interest. For although respondent Felicidad as to the illegitimate filiation
the marriage in controversy may be found to be of respondent Teofilo II is more credible. For the
void from the beginning, still, petitioner would not guidance of the appellate court, such declaration of
inherit. This is because the presence of respondent Felicidad should not be afforded
[34]
descendant, illegitimate, or even an adopted credence. We remind the CA of the guaranty
child[35] excludes the collateral relatives from provided by Article 167 of the Family Code to
inheriting from the decedent. protect the status of legitimacy of a child, to wit:
 3. The disposition of the RTC in Nos. 1 to 8
ARTICLE 167. The child shall be of the fallo of its decision
considered legitimate although the
mother may have declared against is VACATED AND SET ASIDE.
its legitimacy or may have been
sentenced as an The Regional Trial Court is ORDERED to
adulteress. (Underscoring supplied)
conduct trial on the merits with dispatch and to give
this case priority in its calendar.
It is stressed that Felicidads declaration against the
legitimate status of Teofilo II is the very act that is
No costs.
proscribed by Article 167 of the Family Code. The
language of the law is unmistakable. An assertion SO ORDERED.
by the mother against the legitimacy of her child
cannot affect the legitimacy of a child born or
conceived within a valid marriage.[37]

Finally, the disposition of the trial court in favor of

petitioner for causes of action concerning
reconveyance, recovery of property, and sum of
money must be vacated. This has to be so, as said
disposition was made on the basis of its finding that
the marriage in controversy was null and void ab
initio.
WHEREFORE, the appealed Decision
is MODIFIED as follows:

1. The case is REMANDED to the Regional

Trial Court in regard to the action on
the status and filiation of respondent
Teofilo Carlos II and the validity
or nullity of marriage between
respondent Felicidad Sandoval and
the late Teofilo Carlos;

2. If Teofilo Carlos II is proven to be the

legitimate, or illegitimate, or legally
adopted son of the late Teofilo
Carlos, the RTC is
strictly INSTRUCTED to DISMISS th
e action for nullity of marriage for
lack of cause of action;
 THIRD DIVISION
On March 16, 2004, the RTC, Branch
ANITA CHENG, G.R.7,No. 174238
Manila dismissed the estafa cases for failure of
Petitioner, the prosecution to prove the elements of the
Present:
crime. The Order dismissing Criminal Case No. 98-
969952 contained no declaration as to the civil
YNARES-SANTIAGO, J.,[3] On the other hand, the Order
liability of Tessie Sy.
Chairperson,
in Criminal Case No. 98-969953 contained a
- versus - CHICO-NAZARIO,
statement, Hence, if there is any liability of the
VELASCO,
accused, JR.,
the same is purely civil, not criminal in
nature.[4]and
NACHURA,
PERALTA, JJ.
Later, the MeTC, Branch 25, Manila, dismissed, on
SPOUSES WILLIAM SY and demurrer, the BP Blg. 22 cases in its Order[5] dated
Promulgated:
TESSIE SY, February 7, 2005 on account of the failure of
Respondents. July petitioner
7, 2009 to identify the accused respondents in
open court. The Order also did not make any
x------------------------------------------------------------------------ pronouncement as to the civil liability of accused
------------x respondents.

On April 26, 2005, petitioner lodged against

respondents before the RTC, Branch 18, Manila, a
DECISION complaint[6] for collection of a sum of money with
damages (Civil Case No. 05-112452) based on the
NACHURA, J.: same loaned amount of P600,000.00 covered by
the two PBC checks previously subject of the
estafa and BP Blg. 22 cases.

In the assailed Order[7] dated January 2, 2006, the

RTC, Branch 18, Manila, dismissed the complaint
This is a petition[1] for review on certiorari under for lack of jurisdiction, ratiocinating that the civil
Rule 45 of the Rules of Court of the Order dated action to collect the amount of P600,000.00 with
January 2, 2006[2] of the Regional Trial Court damages was already impliedly instituted in the BP
(RTC), Branch 18, Manila in Civil Case No. 05- Blg. 22 cases in light of Section 1, paragraph (b) of
112452 entitled Anita Cheng v. Spouses William Sy Rule 111 of the Revised Rules of Court.
and Tessie Sy.
Petitioner filed a motion for reconsideration[8] which
The antecedents are as follows the court denied in its Order[9] dated June 5,
2006. Hence, this petition, raising the sole legal
Petitioner Anita Cheng filed two (2) estafa cases issue
before the RTC, Branch 7, Manila against
respondent spouses William and Tessie Sy Whether or not Section 1 of Rule
(Criminal Case No. 98-969952 against Tessie Sy 111 of the 2000 Rules of Criminal
and Criminal Case No. 98-969953 against William Procedure and Supreme Court
Sy) for issuing to her Philippine Bank of Commerce Circular No. 57-97 on the Rules and
(PBC) Check Nos. 171762 and 71860 Guidelines in the filing and
for P300,000.00 each, in payment of their loan, prosecution of criminal cases under
both of which were dishonored upon presentment BP Blg. 22 are applicable to the
for having been drawn against a closed account. present case where the nature of
the order dismissing the cases for
Meanwhile, based on the same facts, petitioner, on bouncing checks against the
January 20, 1999, filed against respondents two (2) respondents was [based] on the
cases for violation of Batas Pambansa Bilang (BP failure of the prosecution to identify
Blg.) 22 before the Metropolitan Trial Court (MeTC), both the accused (respondents
Branch 25, Manila (Criminal Case Nos. 341458- herein)?[10]
59).

Essentially, petitioner argues that since the BP Blg.
22 cases were filed on January 20, 1999, the 2000
Revised Rules on Criminal Procedure promulgated
on December 1, 2000 should not apply, as it must
be given only prospective application. She further
contends that that her case falls within the following
exceptions to the rule that the civil action
correspondent to the criminal action is deemed
instituted with the latter
(1) additional evidence as to the
identities of the accused is
necessary for the resolution
of the civil aspect of the
case;
(2) a separate complaint would be
just as efficacious as or even
more expedient than a timely
remand to the trial court
where the criminal action
was decided for further
hearings on the civil aspect
of the case;
(3) the trial court failed to make any
pronouncement as to the civil
liability of the accused
amounting to a reservation of
the right to have the civil
liability litigated in a separate
action;
(4) the trial court did not declare that
the facts from which the civil
liability might arise did not
exist;
(5) the civil complaint is based on an
obligation ex-contractu and
not ex-delicto pursuant to
Article 31[11] of the Civil
Code; and
(6) the claim for civil liability for
damages may be had under
Article 29[12] of the Civil
Code.
Petitioner also points out that she was not
assisted by any private prosecutor in the BP Blg. 22
proceedings.
The rule is that upon the filing of the estafa and BP
Blg. 22 cases against respondents, where the
petitioner has not made any waiver, express
reservation to litigate separately, or has not
instituted the corresponding civil action to collect
the amount of P600,000.00 and damages prior to
the criminal action, the civil action is deemed
instituted with the criminal cases.[13]
This rule applies especially with the advent
of the 2000 Revised Rules on Criminal
Procedure. Thus, during the pendency of both the
estafa and the BP Blg. 22 cases, the action to
recover the civil liability was impliedly instituted and
remained pending before the respective trial
courts. This is consonant with our ruling
in Rodriguez v. Ponferrada[14] that the possible
single civil liability arising from the act of issuing a
bouncing check can be the subject of both civil
actions deemed instituted with the estafa case and
the prosecution for violation of BP Blg. 22,
simultaneously available to the complaining party,
without traversing the prohibition against forum
shopping.[15] Prior to the judgment in either the
estafa case or the BP Blg. 22 case, petitioner, as
the complainant, cannot be deemed to have
elected either of the civil actions both impliedly
instituted in the said criminal proceedings to the
exclusion of the other.[16]
The dismissal of the estafa cases for failure of the
prosecution to prove the elements of the crime
beyond reasonable doubtwhere in Criminal Case
No. 98-969952 there was no pronouncement as
regards the civil liability of the accused and in
Criminal Case No. 98-969953 where the trial court
declared that the liability of the accused was only
civil in natureproduced the legal effect of a
reservation by the petitioner of her right to litigate
separately the civil action impliedly instituted with
the estafa cases, following Article 29 of the Civil
Code.[17]
However, although this civil action could have been
litigated separately on account of the dismissal of
the estafa cases on reasonable doubt, the
petitioner was deemed to have also elected that
such civil action be prosecuted together with the BP
Blg. 22 cases in light of the Rodriguez v.
Ponferrada ruling.
With the dismissal of the BP Blg. 22 cases for
failure to establish the identity of the accused, the
question that arises is whether such dismissal
would have the same legal effect as the dismissed
estafa cases. Put differently, may petitioners action
to recover respondents civil liability be also allowed
to prosper separately after the BP Blg. 22 cases
were dismissed?

Section 1 (b), Rule 111 of the 2000 Revised
Rules on Criminal Procedure states
Section 1. Institution of criminal and
civil actions.
xxx
(b) The criminal action for violation
of Batas Pambansa Blg. 22 shall be
deemed to include the
corresponding civil action. No
reservation to file such civil action
separately shall be allowed.
Upon filing of the joint criminal and
civil actions, the offended party shall
pay in full the filing fees based on
the amount of the check involved,
which shall be considered as the
actual damages claimed. Where the
complaint or information also seeks
to recover liquidated, moral,
nominal, temperate or exemplary
damages, the offended party shall
pay the filing fees based on the
amounts alleged therein. If the
amounts are not so alleged but any
of these damages [is] subsequently
awarded by the court, the filing fees
based on the amount awarded shall
constitute a first lien on the
judgment.
Where the civil action has been filed
separately and trial thereof has not
yet commenced, it may be
consolidated with the criminal action
upon application with the court trying
the latter case. If the application is
granted, the trial of both actions shall
proceed in accordance with section
2 of this Rule governing
consolidation of the civil and criminal
actions.
Petitioner is in error when she insists that the 2000
Rules on Criminal Procedure should not apply
because she filed her BP Blg. 22 complaints in
1999. It is now settled that rules of procedure apply
even to cases already pending at the time of their
promulgation. The fact that procedural statutes may
somehow affect the litigants rights does not
preclude their retroactive application to pending
actions. It is axiomatic that the retroactive
application of procedural laws does not violate any
right of a person who may feel that he is adversely
affected, nor is it constitutionally objectionable. The
reason for this is that, as a general rule, no vested
right may attach to, nor arise from, procedural
laws.[18]
Indeed, under the present revised Rules, the
criminal action for violation of BP Blg. 22 includes
the corresponding civil action to recover the amount
of the checks. It should be stressed, this policy is
intended to discourage the separate filing of the
civil action. In fact, the Rules even prohibits the
reservation of a separate civil action, i.e., one can
no longer file a separate civil case after the criminal
complaint is filed in court. The only instance when
separate proceedings are allowed is when the civil
action is filed ahead of the criminal case. Even
then, the Rules encourages the consolidation of the
civil and criminal cases. Thus, where petitioners
rights may be fully adjudicated in the proceedings
before the court trying the BP Blg. 22 cases, resort
to a separate action to recover civil liability is clearly
unwarranted on account of res judicata, for failure
of petitioner to appeal the civil aspect of the
cases. In view of this special rule governing actions
for violation of BP Blg. 22, Article 31 of the Civil
Code is not applicable.[19]
Be it remembered that rules governing procedure
before the courts, while not cast in stone, are for
the speedy, efficient, and orderly dispensation of
justice and should therefore be adhered to in order
to attain this objective.[20]
However, in applying the procedure
discussed above, it appears that petitioner would
be left without a remedy to recover from
respondents the P600,000.00 allegedly loaned from
her. This could prejudice even the petitioners
Notice of Claim involving the same amount filed in
Special Proceedings No. 98-88390 (Petition for
Voluntary Insolvency by Kolin Enterprises, William
Sy and Tessie Sy), which case was reportedly
archived for failure to prosecute the petition for an
unreasonable length of time.[21] Expectedly,
respondents would raise the same defense that
petitioner had already elected to litigate the civil
action to recover the amount of the checks along
with the BP Blg. 22 cases.
It is in this light that we find petitioners contention
that she was not assisted by a private prosecutor
during the BP Blg. 22 proceedings
critical. Petitioner indirectly protests that the public
prosecutor failed to protect and prosecute her
cause when he failed to have her establish the
identities of the accused during the trial and when
he failed to appeal the civil action deemed impliedly
instituted with the BP Blg. 22 cases. On this
ground, we agree with petitioner.
Faced with the dismissal of the BP Blg. 22
cases, petitioners recourse pursuant to the
prevailing rules of procedure would have been to
appeal the civil action to recover the amount loaned
to respondents corresponding to the bounced
checks.Hence, the said civil action may proceed
requiring only a preponderance of evidence on the
part of petitioner. Her failure to appeal within the
reglementary period was tantamount to a waiver
altogether of the remedy to recover the civil liability
of respondents. However, due to the gross mistake
of the prosecutor in the BP Blg. 22 cases, we are
constrained to digress from this rule.
It is true that clients are bound by the mistakes,
negligence and omission of their counsel.[22] But
this rule admits of exceptions (1) where the
counsels mistake is so great and serious that the
client is prejudiced and denied his day in court, or
(2) where the counsel is guilty of gross negligence
resulting in the clients deprivation of liberty or
property without due process of law.[23] Tested
against these guidelines, we hold that petitioners lot
falls within the exceptions.
It is an oft-repeated exhortation to counsels
to be well-informed of existing laws and rules and
to keep abreast with legal developments, recent
enactments and jurisprudence. Unless they
faithfully comply with such duty, they may not be
able to discharge competently and diligently their
obligations as members of the Bar.[24] Further,
lawyers in the government service are expected to
be more conscientious in the performance of their
duties as they are subject to public scrutiny. They
are not only members of the Bar but are also public
servants who owe utmost fidelity to public
service.[25] Apparently, the public prosecutor
neglected to equip himself with the knowledge of
the proper procedure for BP Blg. 22 cases under
the 2000 Rules on Criminal Procedure such that he
failed to appeal the civil action impliedly instituted
with the BP Blg. 22 cases, the only remaining
remedy available to petitioner to be able to recover
the money she loaned to respondents, upon the
dismissal of the criminal cases on demurrer. By this
failure, petitioner was denied her day in court to
prosecute the respondents for their obligation to
pay their loan.
Moreover, we take into consideration the
trial courts observation when it dismissed the estafa
charge in Criminal Case No. 98-969953 that if there
was any liability on the part of respondents, it was
civil in nature. Hence, if the loan be proven true, the
inability of petitioner to recover the loaned amount
would be tantamount to unjust enrichment of
respondents, as they may now conveniently evade
payment of their obligation merely on account of a
technicality applied against petitioner.
There is unjust enrichment when (1) a
person is unjustly benefited, and (2) such benefit is
derived at the expense of or with damages to
another. This doctrine simply means that a person
shall not be allowed to profit or enrich himself
inequitably at anothers expense. One condition for
invoking this principle of unjust enrichment is that
the aggrieved party has no other recourse based
on contract, quasi-contract, crime, quasi-delict or
any other provision of law.[26]
Court litigations are primarily designed to
search for the truth, and a liberal interpretation and
application of the rules which will give the parties
the fullest opportunity to adduce proof is the best
way to ferret out the truth. The dispensation of
justice and vindication of legitimate grievances
should not be barred by technicalities.[27] For
reasons of substantial justice and equity, as the
complement of the legal jurisdiction that seeks to
dispense justice where courts of law, through the
inflexibility of their rules and want of power to adapt
their judgments to the special circumstances of
cases, are incompetent to do so,[28] we thus
rule, pro hac vice, in favor of petitioner.
WHEREFORE, the petition is GRANTED. Civil
Case No. 05-112452 entitled Anita Cheng v.
Spouses William Sy and Tessie Sy is hereby
ordered REINSTATED. No pronouncement as to
costs.
SO ORDERED.
 Republic of the Philippines
SUPREME COURT
Baguio City
THIRD DIVISION
G.R. No. 189649 April 20, 2015
ADORACION CARO LINO (spouse and in
substitution of the deceased JEREMIAS A.
CAROLINO),Petitioner,
vs.
GEN. GENEROSO SENGA, as Chief of Staff of
the Armed Forces of the Philippines (AFP);
BRIG GEN. FERNANDO ZABAT, as Chief of the
AFP Finance Center; COMMO. REYNALDO
BASILIO, as Chief of the AFP-GHQ Management
and Fiscal Office; and COMMO. EMILIO
MARAYAG, Pension and Gratuity Officer,
Pension and Gratuity Management Center, AFP
Finance Center, Respondents.
DECISION
PERALTA, J.:
Before us is a petition for review under Rule 45
seeking to reverse and set aside the
Decision1 dated May 25, 2009 of the Court of
Appeals (CA) in CA-G.R. SP No. 103502 and the
Resolution2 dated September 10, 2009 denying
reconsideration thereof.
The factual and legal antecedents are as follows:
On December 1, 1976, Jeremias A. Carolino,
petitioner's husband, Retired3 from the Armed
Forces of the Philippines (AFP) with the rank of
Colonel under General Order No. 1208 dated
November 29, 1976, pursuant to the provisions of
Sections 1(A) and 10 of Republic Act (RA) No.
340,4 as amended. He started receiving his monthly
retirement pay in the amount of P18,315.00 in
December 1976 until the same was withheld by
respondents in March 2005. On June 3, 2005,
Jeremias wrote a letter5 addressed to the AFP
Chief of Staff asking for the reasons of the
withholding of his retirement pay. In a letter
reply,6 Myrna F. Villaruz, LTC (FS) PA, Pension
and Gratuity Officer of the AFP Finance Center,
informed Jeremias that his loss of Filipino
citizenship caused the deletion of his name in the
alpha list of the AFP Pensioners Payroll effective
March 5, 2005; and that he could avail of re-
entitlement to his retirement benefits and the
restoration of his name in the AFP Pensioners'
Master list Payroll by complying with the
requirements prescribed under RA No. 9225, or the
Dual Citizenship Act.
It appeared that the termination of Jeremias'
pension was done pursuant to Disposition
Form7 dated October 29, 2004,which was approved
by the Chief of Staff and made effective in January
2005. In the said Disposition Form, the AFP Judge
Advocate General opined that under the provisions
of Sections 4, 5, and 6 of RA No. 340, retired
military personnel are disqualified from receiving
pension benefits once incapable to render military
service as a result of his having sworn allegiance to
a foreign country. It was also mentioned that
termination of retirement benefits of pensioner of
the AFP could be done pursuant to the provisions
of Presidential Decree (PD) No. 16388which
provides that the name of a retiree who loses his
Filipino citizenship shall be removed from the
retired list and his retirement benefits terminated
upon such loss. It being in consonance with the
policy consideration that all retirement laws
inconsistent with the provisions of PD No. 1638 are
repealed and modified accordingly.
On August 24, 2006, Jeremias filed with the
Regional Trial Court (RTC) of Quezon City, a
Petition for Mandamus9against Gen. Generoso
Senga, as Chief of Staff of the AFP, Brig. Gen.
Fernando Zabat, as Chief of the AFP Finance
Center, Comm. Reynaldo Basilio, as Chief of the
AFP- GHQ Management and Fiscal Office, and
Comm. Emilio Marayag, Pension and Gratuity
Management Officer, Pension and Gratuity
Management Center, AFP Finance Center, seeking
reinstatement of his name in the list of the AFP
retired officers, resumption of payment of his
retirement benefits under RA No. 340, and the
reimbursement of all his retirement pay and
benefits which accrued from March 5, 2005 up to
the time his name is reinstated and, thereafter, with
claim for damages and attorney's fees. The case
was docketed as Civil Case No. Q-06-58686, and
raffled off to Branch 220.
On February 26, 2007, the RTC rendered its
Decision10 granting the petition for mandamus, the
dispositive portion of which reads:
WHEREFORE, judgment is hereby rendered
ordering General Hermogenes Esperon, Jr., as
Chief of Staff of the AFP, Brigadier General
Fernando Zabat, as the Commanding Officer of the
AFP Finance Center, Commodore Reynaldo
Basilio, as Chief of the AFP-GHQ Management and
Fiscal Office, and Captain Theresa M. Nicdao, as
Pension and Gratuity Officer of the Pension and
Gratuity Management Center, or any of their
respective successors and those taking instructions
from them as agents or subordinates, to:
a. immediately reinstate the name of
petitioner in the list of retired AFP Officers,
and to resume payment of his retirement
benefits under RA 340; and
b. release to [petitioner] all retirement
benefits due him under RA 340 which
accrued to him from March 2005
continuously up to the time his name is
reinstated in the list of AFP retired officers.11
The RTC found that the issue for resolution is the
applicability of RA No. 340 and PD No. 1638 upon
Jeremias' retirement benefits. It found that he
retired as a commissioned officer of the AFP in
1976; thus, RA No. 340 is the law applicable in
determining his entitlement to his retirement
benefits and not PD No. 1638 which was issued
only in 1979. Article 4 of the Civil Code provides
that "laws shall have no retroactive effect unless
the contrary is provided." PD No. 1638 does not
provide for such retroactive application. Also, it
could not have been the intendment of PD No.
1638 to deprive its loyal soldiers of a monthly
pension during their old age especially where, as
here, the right had been vested to them through
time. RA No. 340 does not provide that the loss of
Filipino citizenship would terminate one's retirement
benefits; and that PD No. 1638 does not reduce
whatever benefits that any person has already
been receiving under existing law.
Respondents sought reconsideration,12 but the
RTC denied the same in an Order13 dated May 25,
2007, the decretal portion of which reads:
WHEREFORE, premises considered, the instant
Motion for Reconsideration is hereby DENIED,
considering that the questioned decision has not
yet attained its finality. The Motion for Execution in
the meantime is hereby DENIED.14
Aggrieved, respondents elevated the case to the
CA. After the submission of the parties' respective
memoranda, the case was submitted for decision.
Jeremias died on September 30, 200715 and was
substituted by his wife, herein petitioner. On May
25, 2009, the CA granted respondents' appeal. The
dispositive portion of the CA decision reads:
WHEREFORE, premises considered, the instant
appeal is GRANTED. The appealed decision is
REVOKED and SET ASIDE.16
In so ruling, the CA found that while it is true that
Jeremias retired in 1976 under the provisions of RA
No. 340, as amended, which does not contain any
provision anent cessation or loss of retirement
benefits upon acquiring another citizenship, PD No.
1638, which was signed in 1979, effectively
repealed RA No. 340, as amended. Section 27 of
PD No. 1638, which provides that the name of a
retiree who loses his Filipino citizenship shall be
removed from the retired list and his retirement
benefits terminated upon such loss, was correctly
made applicable to Jeremias' retirement benefits.
Logic dictates that since Jeremias had already
renounced his allegiance to the Philippines, he
cannot now be compelled by the State to render
active service and to render compulsory military
service when the need arises. The CA found that
for the writ of mandamus to lie, it is essential that
Jeremias should have a clear legal right to the thing
demanded and it must be the imperative duty of
respondents to perform the act required which
petitioner failed to show; thus, mandamus will not
lie.
Petitioner's motion for reconsideration was denied
in a Resolution dated September 10, 2009.
Hence, this petition raising the following:
RESPONDENT COURT OF APPEALS
COMMITTED GRAVE REVERSIBLE ERROR IN
RENDERING THE ASSAILED DECISION AND
RESOLUTION WHICH SET ASIDE AND
REVERSED THE 26 FEBRUARY 2007 DECISION
OF THE QC RTC BECAUSE:
PD 1638 should not have been applied and cannot
be used against petitioner as her husband's
retirement and pension were granted to him by the
AFP under RA 340 which was not superseded by
PD 1638, a later statute.
Petitioner correctly availed of the remedy of
mandamus to compel the reinstatement of his
pension and benefits from the AFP under RA 340
as PD 1638 was not applicable to him. Petitioner
contends that her husband's retirement from the
active service in 1976 was pursuant to the
provisions of RA No. No. 340 as PD No. 1638 was
not yet in existence then, and there was nothing in
RA No. 340 that disqualifies a retired military
personnel from receiving retirement benefits after
acquiring foreign citizenship. The concept of
retirement benefits is such that one is entitled to
them for services already rendered and not for
those to be made at a future time. Retirement
benefits due petitioner's husband under RA No.
340, is an acquired right which cannot be taken
away by a subsequent law. PD No. 1638 does not
expressly provide for its retroactive application.
Respondents, being officers of the AFP tasked to
implement the provisions of RA No. 340 have
neglected their function thereunder by delisting
petitioner's husband as a retiree, thus, mandamus
is proper.
In his Comment, the Solicitor General argues that
PD No. 1638 applies to all military personnel in the
service of the AFP whether active or retired; hence,
it applies retroactively to petitioner's husband. Even
when a retiree is no longer in the active service, his
being a Filipino still makes him a part of the Citizen
Armed Forces; that whether a military personnel
retires under the provisions of RA No. 340 or under
PD No. 1638, he is still in the service of the military
and/or the State only that he is retired, thus, they
should not be treated differently upon the loss of
Filipino citizenship. He argues when there is an
irreconcilable conflict between the two laws of
different vintages, i.e., RA No. 340 and PD No.
1638, the latter enactment prevails.
The Solicitor General argues that mandamus will
not issue to enforce a right to compel compliance
with a duty which is questionable or over which a
substantial doubt exists. In this case, petitioner's
husband does not have a well-defined, clear and
certain legal right to continuously receive retirement
benefits after becoming an American citizen.
Likewise, the AFP does not have a clear and
imperative duty to grant the said benefits
considering that Section 27 of PD No. 1638
provides that the name of a retiree who loses his
Filipino citizenship shall be removed from the
retired list and his retirement benefits terminated
upon such loss.
Petitioner filed her reply thereto.
We find merit in the petition.
Petitioner's husband retired in1976 under RA No.
340. He was already receiving his monthly
retirement benefit in the amount of P18,315.00
since December 1976 until it was terminated in
March 2005. Section 5, RA No. 340 provides:
Sec. 5. Officers and enlisted men placed in the
retired list shall be subject to the rules and articles
of war and to trial by court-martial for any breach
thereof. At any time said officers and enlisted men
may be called to active service by the President.
Refusal on the part of any officer or enlisted man to
perform such services shall terminate his right to
further participation in the benefits of this Act
provided he resides in the Philippines and is
physically fit for service. Such fitness for service
shall be determined by applicable regulations.
The afore-quoted provision clearly shows how a
retiree's retirement benefits may be terminated, i.e.,
when the retiree refuses to perform active service
when called to do so provided that (1) the retiree
resides in the Philippines and (2) is physically fit for
service. There is no other requirement found in the
law which would be the reason for the termination
of a retiree's retirement benefits. Petitioner's
husband was never called to perform active service
and refused to do so, however, his retirement
benefit was terminated. The reason for such
termination was his loss of Filipino citizenship
based on Section 27 of PD No. 1638, to wit:
Section 27. Military personnel retired under
Sections 4, 5, 10, 11 and 12 shall be carried in the
retired list of the Armed Forces of the Philippines.
The name of a retiree who loses his Filipino
citizenship shall be removed from the retired list
and his retirement benefits terminated upon such
loss.
We find that the CA erred in applying PD No. 1638
to the retirement benefits of petitioner's husband.
Firstly, PD No. 1638 was signed by then President
Ferdinand Marcos on September 10, 1979. Under
Article 4 of the Civil Code, it is provided that laws
shall have no retroactive effect, unless the contrary
is provided. It is said that the law looks to the future
only and has no retroactive effect unless the
legislator may have formally given that effect to
some legal provisions;17 that all statutes are to be
construed as having only prospective operation,
unless the purpose and intention of the legislature
to give them a retrospective effect is expressly
declared or is necessarily implied from the
language used; and that every case of doubt must
be resolved against retrospective effect.18 These
principles also apply to amendments of statutes.
PD No. 1638 does not contain any provision
regarding its retroactive application, nor the same
may be implied from its language. In fact, Section
36 of PD No. 1638 clearly provides that the decree
shall take effect upon its approval. As held in
Parreo v. COA,19 there is no question that PD No.
1638, as amended, applies prospectively. Since PD
No. 1638, as amended, is about the new system of
retirement and separation from service of military
personnel, it should apply to those who were in the
service at the time of its approval.20 Conversely, PD
No. 1638 is not applicable to those who retired
before its effectivity in 1979. The rule is familiar that
after an act is amended, the original act continues
to be in force with regard to all rights that had
accrued prior to such amendment.21
Moreover, Section 27 of PD No. 1638 specifically
provides for the retirees to whom the law shall be
applied, to wit:
Section 27. Military personnel retired under
Sections 4, 5, 10, 11 and 12 shall be carried in the
retired list of the Armed Forces of the Philippines.
The name of a retiree who loses his Filipino
citizenship shall be removed from the retired list
and his retirement benefits terminated upon such
loss. (emphasis supplied)
Notably, petitioner's husband did not retire under
those above-enumerated Sections of PD No. 1638
as he retired under RA No. 340.
Secondly, it has been held that before a right to
retirement benefits or pension vests in an
employee, he must have met the stated conditions
of eligibility with respect to the nature of
employment, age, and length of
service.22Undeniably, petitioner's husband had
complied with the conditions of eligibility to
retirement benefits as he was then receiving his
retirement benefits on a monthly basis until it was
terminated. Where the employee retires and meets
the eligibility requirements, he acquires a vested
right to the benefits that is protected by the due
process clause.23 It is only upon retirement that
military personnel acquire a vested right to
retirement benefits.24 Retirees enjoy a protected
property interest whenever they acquire a right to
immediate payment under pre-existing law.25
In Ayog v. Cusi,26 we expounded the nature of a
vested right, thus:
"A right is vested when the right to enjoyment has
become the property of some particular person or
persons as a present interest" (16 C.J.S.
1173).1wphi1 It is "the privilege to enjoy property
legally vested, to enforce contracts, and enjoy the
rights of property conferred by the existing law" (12
C.J.S. 955, Note 46, No. 6) or "some right or
interest in property which has become fixed and
established and is no longer open to doubt or
controversy" (Downs vs. Blount 170 Fed. 15, 20,
cited in Balboa vs. Farrales, 51 Phil. 498, 502).
The due process clause prohibits the annihilation of
vested rights. "A state may not impair vested rights
by legislative enactment, by the enactment or by
the subsequent repeal of a municipal ordinance, or
by a change in the constitution of the State, except
in a legitimate exercise of the police power" (16
C.J.S. 1177-78).
It has been observed that, generally, the term
"vested right" expresses the concept of present
fixed interest, which in right reason and natural
justice should be protected against arbitrary State
action, or an innately just and imperative right
which an enlightened free society, sensitive to
inherent and irrefragable individual rights, cannot
deny (16 C.J.S. 1174, Note 71, No. 5, citing
Pennsylvania Greyhound Lines, Inc. vs. Rosenthal,
192 Atl. 2nd 587). 27
Petitioner's husband acquired vested right to the
payment of his retirement benefits which must be
respected and cannot be affected by the
subsequent enactment of PD No. 1638 which
provides that loss of Filipino citizenship terminates
retirement benefits. Vested rights include not only
legal or equitable title to the enforcement of a
demand, but also an exemption from new
obligations after the right has vested.28
In fact, Sections 33 and 35 of PD No.1638
recognize such vested right, to wit:
Section 33. Nothing in this Decree shall be
construed in any manner to reduce whatever
retirement and separation pay or gratuity or other
monetary benefits which any person is heretofore
receiving or is entitled to receive under the
provisions of existing law.
xxxx
Section. 35. Except those necessary to give effect
to the provisions of this Decree and to preserve the
rights granted to retired or separated military
personnel, all laws, rules and regulations
inconsistent with the provisions of this Decree are
hereby repealed or modified accordingly.
Section 33 of PD No. 1638 is clear that the law has
no intention to reduce or to revoke whatever
retirement benefits being enjoyed by a retiree at the
time of its passage. Hence, Section 35 provides for
an exception to what the decree repealed or
modified, i.e., except those necessary to preserve
the rights granted to retired or separated military
personnel.
We also find that the CA erred in finding that
mandamus will not lie.
Section 3, Rule 65 of the Rules of Court lay down
under what circumstances petition for mandamus
may be filed, to wit:
SEC. 3. Petition for mandamus. When any
tribunal, corporation, board, officer or person
unlawfully neglects the performance of an act which
the law specifically enjoins as a duty resulting from
an office, trust, or station, or unlawfully excludes
another from the use and enjoyment of a right or
office to which such other is entitled, and there is
no other plain, speedy and adequate remedy in the
ordinary course of law, the person aggrieved
thereby may file a verified petition in the proper
court, alleging the facts with certainty and praying
that judgment be rendered commanding the
respondent, immediately or at some other time to
be specified by the court, to do the act required to
be done to protect the rights of the petitioner, and
to pay the damages sustained by the petitioner by
reason of the wrongful acts of the respondent.
A writ of mandamus can be issued only when
petitioners legal right to the performance of a
particular act which is sought to be compelled is
clear and complete. A clear legal right is a right
which is indubitably granted by law or is inferable
as a matter of law.29 A doctrine well-embedded in
our jurisprudence is that mandamus will issue only
when the petitioner has a clear legal right to the
performance of the act sought to be compelled and
the respondent has an imperative duty to perform
the same.30 The remedy of mandamus lies to
compel the performance of a ministerial duty.31 A
purely ministerial act or duty is one that an officer or
tribunal performs in a given state of facts, in a
prescribed manner, in obedience to the mandate of
a legal authority, without regard to or the exercise
of its own judgment upon the propriety or
impropriety of the act done.32 If the law imposes a
duty upon a public officer, and gives him the right to
decide how or when the duty shall be performed,
such duty is discretionary and not ministerial.33
The petition for mandamus filed by petitioner's
husband with the RTC was for the payment of his
terminated retirement benefits, which has become
vested, and being a ministerial duty on the part of
the respondents to pay such claim, mandamus is
the proper remedy to compel such payment.
The doctrine of exhaustion of administrative
remedies calls for resort first to the appropriate
administrative authorities in the resolution of a
controversy falling under their jurisdiction before the
same may be elevated to the courts of justice for
review.34 However, the principle of exhaustion of
administrative remedies need not be adhered to
when the question is purely legal.35 This is because
issues of law cannot be resolved with finality by the
administrative officer.36 Appeal to the administrative
officer would only be an exercise in futility.37 Here,
the question raised is purely legal, i.e., what law
should be applied in the payment of retirement
benefits of petitioner's husband. Thus, there was no
need to exhaust all administrative remedies before
a judicial relief can be sought.
WHEREFORE, the petition is GRANTED. The
Decision dated May 25, 2009 and the Resolution
dated September 10, 2009 of the Court of Appeals
are hereby REVERSED and SET ASIDE. The
Decision dated February 26, 2007 of the Regional
Trial Court of Quezon City, Branch 220, is
AFFIRMED.
SO ORDERED.
DIOSDADO M. PERALTA
Associate Justice
WE CONCUR:
Republic of the Philippines
SUPREME COURT
Manila
FIRST DIVISION
G.R. No. 150429 August 29, 2006
ROBERTO G. FAMANILA, Petitioner,
vs.
THE COURT OF APPEALS (Spc. Fmr. Seventh
Division) and BARBERSHIP MANAGEMENT
LIMITED and NFD INTERNATIONAL MANNING
AGENTS, INC. Respondents.
DECISION
YNARES-SANTIAGO, J.:
Before us is a petition for review on certiorari
assailing the Decision 1 of the Court of Appeals in
CA-G.R. SP No. 50615 dated March 30, 2001
which affirmed the Decision 2 of the National Labor
Relations Commission (NLRC) dated March 31,
1998 dismissing petitioners complaint for payment
of disability and other benefits for lack of merit and
the Resolution 3 dated October 5, 2001 of the Court
of Appeals denying petitioners motion for
reconsideration.
The antecedent facts are as follows:
In 1989, respondent NFD International Manning
Agents, Inc. hired the services of petitioner Roberto
G. Famanila as Messman 4 for Hansa Riga, a
vessel registered and owned by its principal and
co-respondent, Barbership Management Limited.
On June 21, 1990, while Hansa Riga was docked
at the port of Eureka, California, U.S.A. and while
petitioner was assisting in the loading operations,
the latter complained of a headache. Petitioner
experienced dizziness and he subsequently
collapsed. Upon examination, it was determined
that he had a sudden attack of left cerebral
hemorrhage from a ruptured cerebral
aneurysm. 5 Petitioner underwent a brain operation
and he was confined at the Emmanuel Hospital in
Portland, Oregon, U.S.A. On July 19, 1990, he
underwent a second brain operation.
Owing to petitioners physical and mental condition,
he was repatriated to the Philippines. On August
21, 1990, he was examined at the American
Hospital in Intramuros, Manila where the examining
physician, Dr. Patricia Abesamis declared that he
"cannot go back to sea duty and has been
observed for 120 days, he is being declared
permanently, totally disabled." 6
Thereafter, authorized representatives of the
respondents convinced him to settle his claim
amicably by accepting the amount of
US$13,200. 7 Petitioner accepted the offer as
evidenced by his signature in the Receipt and
Release dated February 28, 1991. 8 His wife, Gloria
Famanila and one Richard Famanila, acted as
witnesses in the signing of the release.
On June 11, 1997, petitioner filed a complaint 9 with
the NLRC which was docketed as NLRC OCW
Case No. 6-838-97-L praying for an award of
disability benefits, share in the insurance proceeds,
moral damages and attorneys fees. On September
29, 1997, Acting Executive Labor Arbiter Voltaire A.
Balitaan dismissed the complaint on the ground of
prescription. Petitioner appealed the decision with
the NLRC. On March 31, 1998, the NLRC
promulgated its decision 10 finding the appeal to be
without merit and ordered its dismissal. When the
motion for reconsideration 11 was denied by the
NLRC in its resolution dated June 29,
1998, 12 petitioner filed a petition for certiorari with
this Court. On December 2, 1998, we resolved to
refer the case to the Court of Appeals pursuant to
our ruling in St. Martin Funeral Home v. National
Labor Relations Commission. 13
On March 30, 2001, the Court of Appeals
promulgated the assailed decision which dismissed
the petition for lack of merit. Petitioners motion for
reconsideration was denied, hence, the present
petition for review raising the following issues:
I. THE COURT OF APPEALS COMMITTED
GRAVE ABUSE OF DISCRETION AMOUNTING
TO LACK OR EXCESS OF JURISDICTION IN
UPHOLDING THE VALIDITY OF THE RECEIPT
AND RELEASE SINCE PETITIONERS CONSENT
THERETO WAS VITIATED THEREBY MAKING
THE SAME VOID AND UNENFORCEABLE.
II. THE COURT OF APPEALS COMMITTED
GRAVE ABUSE OF DISCRETION AMOUNTING
TO LACK OR EXCESS OF JURISDICTION IN
HOLDING THAT THE PRESCRIPTION PERIOD
APPLICABLE TO THE CLAIM OF THE
PETITIONER IS THE 3-YEAR PERIOD
PROVIDED FOR UNDER THE LABOR CODE OF
THE PHILIPPINES AND NOT THE 10-YEAR
PERIOD PROVIDED FOR UNDER THE CIVIL
CODE.
Petitioner claims that he did not sign the Receipt
and Release voluntarily or freely because he was
permanently disabled and in financial constraints.
These factors allegedly vitiated his consent which
makes the Receipt and Release void and
unenforceable.
The petition lacks merit.
It is fundamental that the scope of the Supreme
Courts judicial review under Rule 45 of the Rules
of Court is confined only to errors of law. It does not
extend to questions of fact. More so in labor cases
where the doctrine applies with greater
force. 14 The Labor Arbiter and the NLRC have
already determined the factual issues, and these
were affirmed by the Court of Appeals. Thus, they
are accorded not only great respect but also finality
and are deemed binding upon this Court so long as
they are supported by substantial evidence. 15 We
reviewed the records of the case and we find no
reason to deviate from the findings of the labor
arbiter, NLRC and the Court of Appeals.
A vitiated consent does not make a contract void
and unenforceable. A vitiated consent only gives
rise to a voidable agreement. Under the Civil Code,
the vices of consent are mistake, violence,
intimidation, undue influence or fraud. 16 If consent
is given through any of the aforementioned vices of
consent, the contract is voidable. 17 A voidable
contract is binding unless annulled by a proper
action in court. 18
Petitioner contends that his permanent and total
disability vitiated his consent to the Receipt and
Release thereby rendering it void and
unenforceable. However, disability is not among the
factors that may vitiate consent. Besides, save for
petitioners self-serving allegations, there is no
proof on record that his consent was vitiated on
account of his disability. In the absence of such
proof of vitiated consent, the validity of the Receipt
and Release must be upheld. We agree with the
findings of the Court of Appeals that:
In the case at bar, there is nothing in the records to
show that petitioners consent was vitiated when he
signed the agreement. Granting that petitioner has
not fully recovered his health at the time he signed
the subject document, the same cannot still lead to
the conclusion that he did not voluntar[il]y accept
the agreement, for his wife and another relative
witnessed his signing.
Moreover, the document entitled receipt and
release which was attached by petitioner in his
appeal does not show on its face any violation of
law or public policy. In fact, petitioner did not
present any proof to show that the consideration for
the same is not reasonable and acceptable. Absent
any evidence to support the same, the Court
cannot, on its own accord, decide against the
unreasonableness of the consideration. 19
It is true that quitclaims and waivers are oftentimes
frowned upon and are considered as ineffective in
barring recovery for the full measure of the workers
right and that acceptance of the benefits therefrom
does not amount to estoppel. 20 The reason is plain.
Employer and employee, obviously do not stand on
the same footing. 21However, not all waivers and
quitclaims are invalid as against public policy. If the
agreement was voluntarily entered into and
represents a reasonable settlement, it is binding on
the parties and may not later be disowned simply
because of change of mind. It is only where there is
clear proof that the waiver was wangled from an
unsuspecting or gullible person, or the terms of the
settlement are unconscionable on its face, that the
law will step in to annul the questionable
transaction. But where it is shown that the person
making the waiver did so voluntarily, with full
understanding of what he was doing, and the
consideration for the quitclaim is credible and
reasonable, the transaction must be recognized as
a valid and binding undertaking, 22 as in this case.
To be valid and effective, waivers must be couched
in clear and unequivocal terms, leaving no doubt as
to the intention of those giving up a right or a
benefit that legally pertains to them. 23 We have
reviewed the terms and conditions contained in the
Receipt and Release and we find the same to be
clear and unambiguous. The signing was even
witnessed by petitioners wife, Gloria T. Famanila
and one Richard T. Famanila. The Receipt and
Release provides in part:
That for and in consideration of the sum of
THIRTEEN THOUSAND TWO HUNDRED
DOLLARS (US$13,200.00) or its equivalent in
Philippine currency THREE HUNDRED SIXTY
FIVE THOUSAND NINE HUNDRED FOUR PESOS
(365,904.00), the receipt of which is hereby
acknowledged to my full and complete satisfaction
x x x I, ROBERTO G. FAMANILA, x x x hereby
remise, release and forever discharge said vessel
"HANSA RIGA", her Owners, operators, managers,
charterers, agents, underwriters, P and I Club,
master, officers, and crew and all parties at interest
therein or thereon, whether named or not named,
including but not limited to BARBER SHIP
MANAGEMENT LIMITED, NFD INTERNATIONAL
MANNING AGENTS, INC. and
ASSURANCEFORENIGEN GARD from any and all
claims, demands, debts, dues, liens, actions or
causes of action, at law or in equity, in common law
or in admiralty, statutory or contractual, arising from
and under the laws of the United States of America,
Norway, Hongkong or the Republic of the
Philippines and/or any other foreign country now
held, owned or possessed by me or by any person
or persons, arising from or related to or concerning
whether directly or indirectly, proximately or
remotely, without being limited to but including the
said illness suffered by me on board the vessel
"HANSA RIGA" on or about 21st June 1990 at
Portland, Oregon and disability compensation in
connection therewith.
This instrument is a GENERAL RELEASE intended
to release all liabilities of any character and/or
claims or damages and/or losses and/or any other
liabilities whatsoever, whether contractual or
statutory, at common law or in equity, tortious or in
admiralty, now or henceforth in any way related to
or occurring as a consequence of the illness
suffered by me as Messman of the vessel "HANSA
RIGA", including but not limited to all damages
and/or losses consisting of loss of support, loss of
earning capacity, loss of all benefits of whatsoever
nature and extent incurred, physical pain and
suffering and/or all damages and/or indemnities
claimable in law, tort, contract, common law, equity
and/or admiralty by me or by any person or persons
pursuant to the laws of the United States of
America, Norway, Hongkong or the Republic of the
Philippines and of all other countries whatsoever.
I hereby certify that I am of legal age and that I fully
understand this instrument which was read to me in
the local dialect and I agree that this is a FULL
AND FINAL RELEASE AND DISCHARGE of all
parties and things referred to herein, and I further
agree that this release may be pleaded as an
absolute and final bar to any suit or suits or legal
proceedings that may hereafter be prosecuted by
me or by any one claiming by, through, or under
me, against any of the persons or things
referred to or related herein, for any matter or thing
referred to or related herein. 24
It is elementary that a contract is perfected by mere
consent and from that moment the parties are
bound not only to the fulfillment of what has been
expressly stipulated but also to all the
consequences which, according to their nature,
may be in keeping with good faith, usage and
law. 25 Further, dire necessity is not an acceptable
ground for annulling the Receipt and Release since
it has not been shown that petitioner was forced to
sign it. 26
Regarding prescription, the applicable prescriptive
period for the money claims against the
respondents is the three year period pursuant to
Article 291 of the Labor Code which provides that:
ART. 291. Money Claims. All money claims
arising from employer-employee relations accruing
during the effectivity of this Code shall be filed
within three (3) years from the time the cause of
action accrued; otherwise they shall be forever
barred.
xxxx
Since petitioners demand for an award of disability
benefits is a money claim arising from his
employment, Article 291 of the Labor Code applies.
From the time petitioner was declared permanently
and totally disabled on August 21, 1990 which gave
rise to his entitlement to disability benefits up to the
time that he filed the complaint on June 11, 1997,
more than three years have elapsed thereby
effectively barring his claim.
WHEREFORE, the petition is DENIED. The
Decision of the Court of Appeals dated March 30,
2001 in CA-G.R. SP No. 50615 which affirmed the
Decision of the National Labor Relations
Commission dismissing petitioners complaint for
disability and other benefits for lack of merit, and
the Resolution dated October 5, 2001 denying the
motion for reconsideration, are AFFIRMED.
SO ORDERED.
CONSUELO YNARES-SANTIAGO

Republic of the Philippines
SUPREME COURT
Manila
FIRST DIVISION
G.R. No. 163707 September 15, 2006
MICHAEL C. GUY, petitioner,
vs.
HON. COURT OF APPEALS, HON. SIXTO
MARELLA, JR., Presiding Judge, RTC, Branch
138, Makati City and minors, KAREN DANES
WEI and KAMILLE DANES WEI, represented by
their mother, REMEDIOS OANES, respondents.
DECISION
YNARES-SANTIAGO, J.:
This petition for review on certiorari assails the
January 22, 2004 Decision1 of the Court of Appeals
in CA-G.R. SP No. 79742, which affirmed the
Orders dated July 21, 20002 and July 17, 20033 of
the Regional Trial Court of Makati City, Branch 138
in SP Proc. Case No. 4549 denying petitioner's
motion to dismiss; and its May 25, 2004
Resolution4 denying petitioner's motion for
reconsideration.
The facts are as follows:
On June 13, 1997, private respondent-minors
Karen Oanes Wei and Kamille Oanes Wei,
represented by their mother Remedios Oanes
(Remedios), filed a petition for letters of
administration5 before the Regional Trial Court of
Makati City, Branch 138. The case was docketed
as Sp. Proc. No. 4549 and entitled Intestate Estate
of Sima Wei (a.k.a. Rufino Guy Susim).
Private respondents alleged that they are the duly
acknowledged illegitimate children of Sima Wei,
who died intestate in Makati City on October 29,
1992, leaving an estate valued at P10,000,000.00
consisting of real and personal properties. His
known heirs are his surviving spouse Shirley Guy
and children, Emy, Jeanne, Cristina, George and
Michael, all surnamed Guy. Private respondents
prayed for the appointment of a regular
administrator for the orderly settlement of Sima
Wei's estate. They likewise prayed that, in the
meantime, petitioner Michael C. Guy, son of the
decedent, be appointed as Special Administrator of
the estate. Attached to private respondents' petition
was a Certification Against Forum
Shopping6 signed by their counsel, Atty. Sedfrey A.
Ordoez.
In his Comment/Opposition,7 petitioner prayed for
the dismissal of the petition. He asserted that his
deceased father left no debts and that his estate
can be settled without securing letters of
administration pursuant to Section 1, Rule 74 of the
Rules of Court. He further argued that private
respondents should have established their status
as illegitimate children during the lifetime of Sima
Wei pursuant to Article 175 of the Family Code.
The other heirs of Sima Wei filed a Joint Motion to
Dismiss8 on the ground that the certification against
forum shopping should have been signed by private
respondents and not their counsel. They contended
that Remedios should have executed the
certification on behalf of her minor daughters as
mandated by Section 5, Rule 7 of the Rules of
Court.
In a Manifestation/Motion as Supplement to the
Joint Motion to Dismiss,9 petitioner and his co-heirs
alleged that private respondents' claim had been
paid, waived, abandoned or otherwise extinguished
by reason of Remedios' June 7, 1993 Release and
Waiver of Claim stating that in exchange for the
financial and educational assistance received from
petitioner, Remedios and her minor children
discharge the estate of Sima Wei from any and all
liabilities.
The Regional Trial Court denied the Joint Motion to
Dismiss as well as the Supplemental Motion to
Dismiss. It ruled that while the Release and Waiver
of Claim was signed by Remedios, it had not been
established that she was the duly constituted
guardian of her minor daughters. Thus, no
renunciation of right occurred. Applying a liberal
application of the rules, the trial court also rejected
petitioner's objections on the certification against
forum shopping.
Petitioner moved for reconsideration but was
denied. He filed a petition for certiorari before the
Court of Appeals which affirmed the orders of the
Regional Trial Court in its assailed Decision dated
January 22, 2004, the dispositive portion of which
states:
WHEREFORE, premises considered, the
present petition is hereby DENIED DUE
 COURSE and accordingly DISMISSED, for
lack of merit. Consequently, the assailed
Orders dated July 21, 2000 and July 17,
2003 are hereby both AFFIRMED.
Respondent Judge is hereby DIRECTED to
resolve the controversy over the illegitimate
filiation of the private respondents (sic)
minors [-] Karen Oanes Wei and Kamille
Oanes Wei who are claiming successional
rights in the intestate estate of the deceased
Sima Wei, a.k.a. Rufino Guy Susim.
SO ORDERED.10
The Court of Appeals denied petitioner's motion for
reconsideration, hence, this petition.
Petitioner argues that the Court of Appeals
disregarded existing rules on certification against
forum shopping; that the Release and Waiver of
Claim executed by Remedios released and
discharged the Guy family and the estate of Sima
Wei from any claims or liabilities; and that private
respondents do not have the legal personality to
institute the petition for letters of administration as
they failed to prove their filiation during the lifetime
of Sima Wei in accordance with Article 175 of the
Family Code.
Private respondents contend that their counsel's
certification can be considered substantial
compliance with the rules on certification of non-
forum shopping, and that the petition raises no new
issues to warrant the reversal of the decisions of
the Regional Trial Court and the Court of Appeals.
The issues for resolution are: 1) whether private
respondents' petition should be dismissed for
failure to comply with the rules on certification of
non-forum shopping; 2) whether the Release and
Waiver of Claim precludes private respondents
from claiming their successional rights; and 3)
whether private respondents are barred by
prescription from proving their filiation.
The petition lacks merit.
Rule 7, Section 5 of the Rules of Court provides
that the certification of non-forum shopping should
be executed by the plaintiff or the principal party.
Failure to comply with the requirement shall be
cause for dismissal of the case. However, a liberal
application of the rules is proper where the higher
interest of justice would be served. In Sy Chin v.
Court of Appeals,11 we ruled that while a petition
may have been flawed where the certificate of non-
forum shopping was signed only by counsel and
not by the party, this procedural lapse may be
overlooked in the interest of substantial
justice.12 So it is in the present controversy where
the merits13 of the case and the absence of an
intention to violate the rules with impunity should be
considered as compelling reasons to temper the
strict application of the rules.
As regards Remedios' Release and Waiver of
Claim, the same does not bar private respondents
from claiming successional rights. To be valid and
effective, a waiver must be couched in clear and
unequivocal terms which leave no doubt as to the
intention of a party to give up a right or benefit
which legally pertains to him. A waiver may not be
attributed to a person when its terms do not
explicitly and clearly evince an intent to abandon a
right.14
In this case, we find that there was no waiver of
hereditary rights. The Release and Waiver of Claim
does not state with clarity the purpose of its
execution. It merely states that Remedios received
P300,000.00 and an educational plan for her minor
daughters "by way of financial assistance and in full
settlement of any and all claims of whatsoever
nature and kind x x x against the estate of the late
Rufino Guy Susim."15 Considering that the
document did not specifically mention private
respondents' hereditary share in the estate of Sima
Wei, it cannot be construed as a waiver of
successional rights.
Moreover, even assuming that Remedios truly
waived the hereditary rights of private respondents,
such waiver will not bar the latter's claim. Article
1044 of the Civil Code, provides:
ART. 1044. Any person having the free
disposal of his property may accept or
repudiate an inheritance.
Any inheritance left to minors or
incapacitated persons may be accepted
by their parents or guardians. Parents or
guardians may repudiate the inheritance
left to their wards only by judicial
authorization.
The right to accept an inheritance left to the
poor shall belong to the persons designated
by the testator to determine the
beneficiaries and distribute the property, or
in their default, to those mentioned in Article
1030. (Emphasis supplied)
Parents and guardians may not therefore repudiate
the inheritance of their wards without judicial
approval. This is because repudiation amounts to
an alienation of property16 which must pass the
court's scrutiny in order to protect the interest of the
ward. Not having been judicially authorized, the
Release and Waiver of Claim in the instant case is
void and will not bar private respondents from
asserting their rights as heirs of the deceased.
Furthermore, it must be emphasized that waiver is
the intentional relinquishment of a known right.
Where one lacks knowledge of a right, there is no
basis upon which waiver of it can rest. Ignorance of
a material fact negates waiver, and waiver cannot
be established by a consent given under a mistake
or misapprehension of fact.17
In the present case, private respondents could not
have possibly waived their successional rights
because they are yet to prove their status as
acknowledged illegitimate children of the deceased.
Petitioner himself has consistently denied that
private respondents are his co-heirs. It would thus
be inconsistent to rule that they waived their
hereditary rights when petitioner claims that they do
not have such right. Hence, petitioner's invocation
of waiver on the part of private respondents must
fail.
Anent the issue on private respondents' filiation, we
agree with the Court of Appeals that a ruling on the
same would be premature considering that private
respondents have yet to present evidence. Before
the Family Code took effect, the governing law on
actions for recognition of illegitimate children was
Article 285 of the Civil Code, to wit:
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) 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) 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. (Emphasis supplied)
We ruled in Bernabe v. Alejo18 that illegitimate
children who were still minors at the time the Family
Code took effect and whose putative parent died
during their minority are given the right to seek
recognition for a period of up to four years from
attaining majority age. This vested right was not
impaired or taken away by the passage of the
Family Code.19
On the other hand, Articles 172, 173 and 175 of the
Family Code, which superseded Article 285 of the
Civil Code, provide:
ART. 172. The filiation of legitimate children
is established by any of the following:
(1) The record of birth appearing in the civil
register or a final judgment; or
(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) The open and continuous possession of
the status of a legitimate child; or
(2) Any other means allowed by the Rules
of Court and special laws.
ART. 173. The action to claim legitimacy
may be brought by the child during his or
her lifetime and shall be transmitted to the
heirs should the child die during minority or
in a state of insanity. In these cases, the
heirs shall have a period of five years within
which to institute the action.
The action already commenced by the child
shall survive notwithstanding the death of
either or both of the parties.
ART. 175. Illegitimate children may
establish their illegitimate filiation in the
same way and on the same, evidence as
legitimate children.
 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 brought during the lifetime of
the alleged parent.
Under the Family Code, when filiation of an
illegitimate child is established by a record of birth
appearing in the civil register or a final judgment, or
an admission of filiation in a public document or a
private handwritten instrument signed by the parent
concerned, the action for recognition may be
brought by the child during his or her lifetime.
However, if the action is based upon open and
continuous possession of the status of an
illegitimate child, or any other means allowed by the
rules or special laws, it may only be brought during
the lifetime of the alleged parent.
It is clear therefore that the resolution of the issue
of prescription depends on the type of evidence to
be adduced by private respondents in proving their
filiation. However, it would be impossible to
determine the same in this case as there has been
no reception of evidence yet. This Court is not a
trier of facts. Such matters may be resolved only by
the Regional Trial Court after a full-blown trial.
While the original action filed by private
respondents was a petition for letters of
administration, the trial court is not precluded from
receiving evidence on private respondents' filiation.
Its jurisdiction extends to matters incidental and
collateral to the exercise of its recognized powers in
handling the settlement of the estate, including the
determination of the status of each heir.20 That the
two causes of action, one to compel recognition
and the other to claim inheritance, may be joined in
one complaint is not new in our jurisprudence.21 As
held in Briz v. Briz:22
The question whether a person in the
position of the present plaintiff can in any
event maintain a complex action to compel
recognition as a natural child and at the
same time to obtain ulterior relief in the
character of heir, is one which in the opinion
of this court must be answered in the
affirmative, provided always that the
conditions justifying the joinder of the two
distinct causes of action are present in the
particular case. In other words, there is no
absolute necessity requiring that the action
to compel acknowledgment should have
been instituted and prosecuted to a
successful conclusion prior to the action in
which that same plaintiff seeks additional
relief in the character of heir. Certainly,
there is nothing so peculiar to the action to
compel acknowledgment as to require that a
rule should be here applied different from
that generally applicable in other cases. x x
x
The conclusion above stated, though not
heretofore explicitly formulated by this court,
is undoubtedly to some extent supported by
our prior decisions. Thus, we have held in
numerous cases, and the doctrine must be
considered well settled, that a natural child
having a right to compel acknowledgment,
but who has not been in fact acknowledged,
may maintain partition proceedings for the
division of the inheritance against his
coheirs (Siguiong vs. Siguiong, 8 Phil., 5;
Tiamson vs. Tiamson, 32 Phil., 62); and the
same person may intervene in proceedings
for the distribution of the estate of his
deceased natural father, or mother
(Capistrano vs. Fabella, 8 Phil., 135; Conde
vs. Abaya, 13 Phil., 249; Ramirez vs. Gmur,
42 Phil., 855). In neither of these situations
has it been thought necessary for the
plaintiff to show a prior decree compelling
acknowledgment. The obvious reason is
that in partition suits and distribution
proceedings the other persons who might
take by inheritance are before the court; and
the declaration of heirship is appropriate to
such proceedings.
WHEREFORE, the instant petition is DENIED. The
Decision dated January 22, 2004 of the Court of
Appeals in CA-G.R. SP No. 79742 affirming the
denial of petitioner's motion to dismiss; and its
Resolution dated May 25, 2004 denying petitioner's
motion for reconsideration, are AFFIRMED. Let the
records be REMANDED to the Regional Trial Court
of Makati City, Branch 138 for further proceedings.
SO ORDERED.
Republic of the Philippines
SUPREME COURT
Manila
FIRST DIVISION
G.R. No. 174689 October 22, 2007
ROMMEL JACINTO DANTES
SILVERIO, petitioner,
vs.
REPUBLIC OF THE PHILIPPINES, respondent.
DECISION
CORONA, J.:
When God created man, He made him in
the likeness of God; He created them male
and female. (Genesis 5:1-2)
Amihan gazed upon the bamboo reed
planted by Bathala and she heard voices
coming from inside the bamboo. "Oh North
Wind! North Wind! Please let us out!," the
voices said. She pecked the reed once,
then twice. All of a sudden, the bamboo
cracked and slit open. Out came two human
beings; one was a male and the other was a
female. Amihan named the man "Malakas"
(Strong) and the woman "Maganda"
(Beautiful). (The Legend of Malakas and
Maganda)
When is a man a man and when is a woman a
woman? In particular, does the law recognize the
changes made by a physician using scalpel, drugs
and counseling with regard to a persons sex? May
a person successfully petition for a change of name
and sex appearing in the birth certificate to reflect
the result of a sex reassignment surgery?
On November 26, 2002, petitioner Rommel Jacinto
Dantes Silverio filed a petition for the change of his
first name and sex in his birth certificate in the
Regional Trial Court of Manila, Branch 8. The
petition, docketed as SP Case No. 02-105207,
impleaded the civil registrar of Manila as
respondent.
Petitioner alleged in his petition that he was born in
the City of Manila to the spouses Melecio Petines
Silverio and Anita Aquino Dantes on April 4, 1962.
His name was registered as "Rommel Jacinto
Dantes Silverio" in his certificate of live birth (birth
certificate). His sex was registered as "male."
He further alleged that he is a male transsexual,
that is, "anatomically male but feels, thinks and acts
as a female" and that he had always identified
himself with girls since childhood.1 Feeling trapped
in a mans body, he consulted several doctors in
the United States. He underwent psychological
examination, hormone treatment and breast
augmentation. His attempts to transform himself to
a "woman" culminated on January 27, 2001 when
he underwent sex reassignment surgery2 in
Bangkok, Thailand. He was thereafter examined by
Dr. Marcelino Reysio-Cruz, Jr., a plastic and
reconstruction surgeon in the Philippines, who
issued a medical certificate attesting that he
(petitioner) had in fact undergone the procedure.
From then on, petitioner lived as a female and was
in fact engaged to be married. He then sought to
have his name in his birth certificate changed from
"Rommel Jacinto" to "Mely," and his sex from
"male" to "female."
An order setting the case for initial hearing was
published in the Peoples Journal Tonight, a
newspaper of general circulation in Metro Manila,
for three consecutive weeks.3 Copies of the order
were sent to the Office of the Solicitor General
(OSG) and the civil registrar of Manila.
On the scheduled initial hearing, jurisdictional
requirements were established. No opposition to
the petition was made.
During trial, petitioner testified for himself. He also
presented Dr. Reysio-Cruz, Jr. and his American
fianc, Richard P. Edel, as witnesses.
On June 4, 2003, the trial court rendered a
decision4 in favor of petitioner. Its relevant portions
read:
Petitioner filed the present petition not to
evade any law or judgment or any infraction
thereof or for any unlawful motive but solely
for the purpose of making his birth records
compatible with his present sex.
The sole issue here is whether or not
petitioner is entitled to the relief asked for.
The [c]ourt rules in the affirmative.
 Firstly, the [c]ourt is of the opinion that
granting the petition would be more in
consonance with the principles of justice
and equity. With his sexual [re-assignment],
petitioner, who has always felt, thought and
acted like a woman, now possesses the
physique of a female. Petitioners
misfortune to be trapped in a mans body is
not his own doing and should not be in any
way taken against him.
Likewise, the [c]ourt believes that no harm,
injury [or] prejudice will be caused to
anybody or the community in granting the
petition. On the contrary, granting the
petition would bring the much-awaited
happiness on the part of the petitioner and
her [fianc] and the realization of their
dreams.
Finally, no evidence was presented to show
any cause or ground to deny the present
petition despite due notice and publication
thereof. Even the State, through the [OSG]
has not seen fit to interpose any
[o]pposition.
WHEREFORE, judgment is hereby
rendered GRANTING the petition and
ordering the Civil Registrar of Manila to
change the entries appearing in the
Certificate of Birth of [p]etitioner, specifically
for petitioners first name from "Rommel
Jacinto" to MELY and petitioners gender
from "Male" to FEMALE. 5
On August 18, 2003, the Republic of the Philippines
(Republic), thru the OSG, filed a petition for
certiorari in the Court of Appeals.6 It alleged that
there is no law allowing the change of entries in the
birth certificate by reason of sex alteration.
On February 23, 2006, the Court of
Appeals7 rendered a decision8 in favor of the
Republic. It ruled that the trial courts decision
lacked legal basis. There is no law allowing the
change of either name or sex in the certificate of
birth on the ground of sex reassignment through
surgery. Thus, the Court of Appeals granted the
Republics petition, set aside the decision of the
trial court and ordered the dismissal of SP Case
No. 02-105207. Petitioner moved for
reconsideration but it was denied.9 Hence, this
petition.
Petitioner essentially claims that the change of his
name and sex in his birth certificate is allowed
under Articles 407 to 413 of the Civil Code, Rules
103 and 108 of the Rules of Court and RA 9048.10
The petition lacks merit.
A Persons First Name Cannot Be Changed On
the Ground of Sex Reassignment
Petitioner invoked his sex reassignment as the
ground for his petition for change of name and sex.
As found by the trial court:
Petitioner filed the present petition not to
evade any law or judgment or any infraction
thereof or for any unlawful motive but solely
for the purpose of making his birth
records compatible with his present sex.
(emphasis supplied)
Petitioner believes that after having acquired the
physical features of a female, he became entitled to
the civil registry changes sought. We disagree.
The State has an interest in the names borne by
individuals and entities for purposes of
identification.11 A change of name is a privilege, not
a right.12 Petitions for change of name are
controlled by statutes.13 In this connection, Article
376 of the Civil Code provides:
ART. 376. No person can change his name
or surname without judicial authority.
This Civil Code provision was amended by RA
9048 (Clerical Error Law). In particular, Section 1 of
RA 9048 provides:
SECTION 1. Authority to Correct Clerical or
Typographical Error and Change of First
Name or Nickname. No entry in a civil
register shall be changed or corrected
without a judicial order, except for clerical or
typographical errors and change of first
name or nickname which can be corrected
or changed by the concerned city or
municipal civil registrar or consul general in
accordance with the provisions of this Act
and its implementing rules and regulations.
RA 9048 now governs the change of first name.14 It
vests the power and authority to entertain petitions
for change of first name to the city or municipal civil
registrar or consul general concerned. Under the
law, therefore, jurisdiction over applications for
change of first name is now primarily lodged with
the aforementioned administrative officers. The
intent and effect of the law is to exclude the change
of first name from the coverage of Rules 103
(Change of Name) and 108 (Cancellation or
Correction of Entries in the Civil Registry) of the
Rules of Court, until and unless an administrative
petition for change of name is first filed and
subsequently denied.15 It likewise lays down the
corresponding venue,16 form17 and procedure. In
sum, the remedy and the proceedings regulating
change of first name are primarily administrative in
nature, not judicial.
RA 9048 likewise provides the grounds for which
change of first name may be allowed:
SECTION 4. Grounds for Change of First
Name or Nickname. The petition for
change of first name or nickname may be
allowed in any of the following cases:
(1) The petitioner finds the first name or
nickname to be ridiculous, tainted with
dishonor or extremely difficult to write or
pronounce;
(2) The new first name or nickname has
been habitually and continuously used by
the petitioner and he has been publicly
known by that first name or nickname in the
community; or
(3) The change will avoid confusion.
Petitioners basis in praying for the change of his
first name was his sex reassignment. He intended
to make his first name compatible with the sex he
thought he transformed himself into through
surgery. However, a change of name does not alter
ones legal capacity or civil status.18 RA 9048 does
not sanction a change of first name on the ground
of sex reassignment. Rather than avoiding
confusion, changing petitioners first name for his
declared purpose may only create grave
complications in the civil registry and the public
interest.
Before a person can legally change his given
name, he must present proper or reasonable cause
or any compelling reason justifying such
change.19 In addition, he must show that he will be
prejudiced by the use of his true and official
name.20 In this case, he failed to show, or even
allege, any prejudice that he might suffer as a result
of using his true and official name.
In sum, the petition in the trial court in so far as it
prayed for the change of petitioners first name was
not within that courts primary jurisdiction as the
petition should have been filed with the local civil
registrar concerned, assuming it could be legally
done. It was an improper remedy because the
proper remedy was administrative, that is, that
provided under RA 9048. It was also filed in the
wrong venue as the proper venue was in the Office
of the Civil Registrar of Manila where his birth
certificate is kept. More importantly, it had no merit
since the use of his true and official name does not
prejudice him at all. For all these reasons, the Court
of Appeals correctly dismissed petitioners petition
in so far as the change of his first name was
concerned.
No Law Allows The Change of Entry In The
Birth Certificate As To Sex On the Ground of
Sex Reassignment
The determination of a persons sex appearing in
his birth certificate is a legal issue and the court
must look to the statutes.21 In this connection,
Article 412 of the Civil Code provides:
ART. 412. No entry in the civil register shall
be changed or corrected without a judicial
order.
Together with Article 376 of the Civil Code, this
provision was amended by RA 9048 in so far
as clerical or typographical errors are involved. The
correction or change of such matters can now be
made through administrative proceedings and
without the need for a judicial order. In effect, RA
9048 removed from the ambit of Rule 108 of the
Rules of Court the correction of such errors.22 Rule
108 now applies only to substantial changes and
corrections in entries in the civil register.23
Section 2(c) of RA 9048 defines what a "clerical or
typographical error" is:
SECTION 2. Definition of Terms. As used
in this Act, the following terms shall mean:
xxx xxx xxx
(3) "Clerical or typographical error"
refers to a mistake committed in the
performance of clerical work in
 writing, copying, transcribing or
typing an entry in the civil register
that is harmless and innocuous,
such as misspelled name or
misspelled place of birth or the like,
which is visible to the eyes or
obvious to the understanding, and
can be corrected or changed only by
reference to other existing record or
records: Provided, however, That
no correction must involve the
change of nationality, age, status
or sex of the petitioner. (emphasis
supplied)
Under RA 9048, a correction in the civil registry
involving the change of sex is not a mere clerical or
typographical error. It is a substantial change for
which the applicable procedure is Rule 108 of the
Rules of Court.
The entries envisaged in Article 412 of the Civil
Code and correctable under Rule 108 of the Rules
of Court are those provided in Articles 407 and 408
of the Civil Code:24
ART. 407. Acts, events and judicial decrees
concerning the civil status of persons shall
be recorded in the civil register.
ART. 408. The following shall be entered in
the civil register:
(1) Births; (2) marriages; (3) deaths; (4)
legal separations; (5) annulments of
marriage; (6) judgments declaring
marriages void from the beginning; (7)
legitimations; (8) adoptions; (9)
acknowledgments of natural children; (10)
naturalization; (11) loss, or (12) recovery of
citizenship; (13) civil interdiction; (14)
judicial determination of filiation; (15)
voluntary emancipation of a minor; and (16)
changes of name.
The acts, events or factual errors contemplated
under Article 407 of the Civil Code include even
those that occur after birth.25 However, no
reasonable interpretation of the provision can justify
the conclusion that it covers the correction on the
ground of sex reassignment.
To correct simply means "to make or set aright; to
remove the faults or error from" while to change
means "to replace something with something else
of the same kind or with something that serves as a
substitute."26 The birth certificate of petitioner
contained no error. All entries therein, including
those corresponding to his first name and sex, were
all correct. No correction is necessary.
Article 407 of the Civil Code authorizes the entry in
the civil registry of certain acts (such as
legitimations, acknowledgments of illegitimate
children and naturalization), events (such as births,
marriages, naturalization and deaths) and judicial
decrees (such as legal separations, annulments of
marriage, declarations of nullity of marriages,
adoptions, naturalization, loss or recovery of
citizenship, civil interdiction, judicial determination
of filiation and changes of name). These acts,
events and judicial decrees produce legal
consequences that touch upon the legal capacity,
status and nationality of a person. Their effects are
expressly sanctioned by the laws. In contrast, sex
reassignment is not among those acts or events
mentioned in Article 407. Neither is it recognized
nor even mentioned by any law, expressly or
impliedly.
"Status" refers to the circumstances affecting the
legal situation (that is, the sum total of capacities
and incapacities) of a person in view of his age,
nationality and his family membership.27
The status of a person in law includes all his
personal qualities and relations, more or
less permanent in nature, not ordinarily
terminable at his own will, such as his
being legitimate or illegitimate, or his being
married or not. The comprehensive
term status include such matters as the
beginning and end of legal personality,
capacity to have rights in general, family
relations, and its various aspects, such as
birth, legitimation, adoption, emancipation,
marriage, divorce, and sometimes even
succession.28 (emphasis supplied)
A persons sex is an essential factor in marriage
and family relations. It is a part of a persons legal
capacity and civil status. In this connection, Article
413 of the Civil Code provides:
ART. 413. All other matters pertaining to the
registration of civil status shall be governed
by special laws.
But there is no such special law in the Philippines
governing sex reassignment and its effects. This is
fatal to petitioners cause.
Moreover, Section 5 of Act 3753 (the Civil Register
Law) provides:
SEC. 5. Registration and certification of
births. The declaration of the physician or
midwife in attendance at the birth or, in
default thereof, the declaration of either
parent of the newborn child, shall be
sufficient for the registration of a birth in the
civil register. Such declaration shall be
exempt from documentary stamp tax and
shall be sent to the local civil registrar not
later than thirty days after the birth, by the
physician or midwife in attendance at the
birth or by either parent of the newborn
child.
In such declaration, the person above
mentioned shall certify to the following facts:
(a) date and hour of birth; (b) sex and
nationality of infant; (c) names, citizenship
and religion of parents or, in case the father
is not known, of the mother alone; (d) civil
status of parents; (e) place where the infant
was born; and (f) such other data as may be
required in the regulations to be issued.
xxx xxx xxx (emphasis supplied)
Under the Civil Register Law, a birth certificate is a
historical record of the facts as they existed at the
time of birth.29 Thus, the sex of a person is
determined at birth, visually done by the birth
attendant (the physician or midwife) by examining
the genitals of the infant. Considering that there is
no law legally recognizing sex reassignment, the
determination of a persons sex made at the time of
his or her birth, if not attended by error,30is
immutable.31
When words are not defined in a statute they are to
be given their common and ordinary meaning in the
absence of a contrary legislative intent. The words
"sex," "male" and "female" as used in the Civil
Register Law and laws concerning the civil registry
(and even all other laws) should therefore be
understood in their common and ordinary usage,
there being no legislative intent to the contrary. In
this connection, sex is defined as "the sum of
peculiarities of structure and function that
distinguish a male from a female"32 or "the
distinction between male and female."33 Female is
"the sex that produces ova or bears young"34 and
male is "the sex that has organs to produce
spermatozoa for fertilizing ova."35 Thus, the words
"male" and "female" in everyday understanding do
not include persons who have undergone sex
reassignment. Furthermore, "words that are
employed in a statute which had at the time a well-
known meaning are presumed to have been used
in that sense unless the context compels to the
contrary."36 Since the statutory language of the Civil
Register Law was enacted in the early 1900s and
remains unchanged, it cannot be argued that the
term "sex" as used then is something alterable
through surgery or something that allows a post-
operative male-to-female transsexual to be
included in the category "female."
For these reasons, while petitioner may have
succeeded in altering his body and appearance
through the intervention of modern surgery, no law
authorizes the change of entry as to sex in the civil
registry for that reason. Thus, there is no legal
basis for his petition for the correction or change of
the entries in his birth certificate.
Neither May Entries in the Birth Certificate As to
First Name or Sex Be Changed on the Ground
of Equity
The trial court opined that its grant of the petition
was in consonance with the principles of justice and
equity. It believed that allowing the petition would
cause no harm, injury or prejudice to anyone. This
is wrong.
The changes sought by petitioner will have serious
and wide-ranging legal and public policy
consequences. First, even the trial court itself found
that the petition was but petitioners first step
towards his eventual marriage to his male fianc.
However, marriage, one of the most sacred social
institutions, is a special contract of permanent
union between a man and a woman.37 One of its
essential requisites is the legal capacity of the
contracting parties who must be a male and a
female.38 To grant the changes sought by petitioner
will substantially reconfigure and greatly alter the
laws on marriage and family relations. It will allow
the union of a man with another man who has
undergone sex reassignment (a male-to-female
post-operative transsexual). Second, there are
various laws which apply particularly to women
such as the provisions of the Labor Code on
employment of women,39 certain felonies under the
Revised Penal Code40 and the presumption of
survivorship in case of calamities under Rule 131 of
the Rules of Court,41 among others. These laws
underscore the public policy in relation to women
which could be substantially affected if petitioners
petition were to be granted.
It is true that Article 9 of the Civil Code mandates
that "[n]o judge or court shall decline to render
judgment by reason of the silence, obscurity or
insufficiency of the law." However, it is not a license
for courts to engage in judicial legislation. The duty
of the courts is to apply or interpret the law, not to
make or amend it.

In our system of government, it is for the

legislature, should it choose to do so, to determine
what guidelines should govern the recognition of
the effects of sex reassignment. The need for
legislative guidelines becomes particularly
important in this case where the claims asserted
are statute-based.

To reiterate, the statutes define who may file

petitions for change of first name and for correction
or change of entries in the civil registry, where they
may be filed, what grounds may be invoked, what
proof must be presented and what procedures shall
be observed. If the legislature intends to confer on
a person who has undergone sex reassignment the
privilege to change his name and sex to conform
with his reassigned sex, it has to enact legislation
laying down the guidelines in turn governing the
conferment of that privilege.

It might be theoretically possible for this Court to

write a protocol on when a person may be
recognized as having successfully changed his sex.
However, this Court has no authority to fashion a
law on that matter, or on anything else. The Court
cannot enact a law where no law exists. It can only
apply or interpret the written word of its co-equal
branch of government, Congress.

Petitioner pleads that "[t]he unfortunates are also

entitled to a life of happiness, contentment and [the]
realization of their dreams." No argument about
that. The Court recognizes that there are people
whose preferences and orientation do not fit neatly
into the commonly recognized parameters of social
convention and that, at least for them, life is indeed
an ordeal. However, the remedies petitioner seeks
involve questions of public policy to be addressed
solely by the legislature, not by the courts.

WHEREFORE, the petition is hereby DENIED.

Costs against petitioner.

SO ORDERED.
Republic of the Philippines
SUPREME COURT
Manila
THIRD DIVISION
G.R. No. 193707 December 10, 2014
NORMA A. DEL SOCORRO, for and in behalf
of her minor child RODERIGO NORJO VAN
WILSEM,Petitioner,
vs.
ERNST JOHAN BRINKMAN VAN
WILSEM, Respondent.
DECISION
PERALTA, J.:
Before the Court is a petition for review on
certiorari under Rule 45 of the Rules of Court
seeking to reverse and set aside the
Orders1 dated February 19, 2010 and September
1, 2010, respectively, of the Regional Trial Court
of Cebu City (RTC-Cebu), which dismissed the
criminal case entitled People of the Philippines v.
Ernst Johan Brinkman Van Wilsem, docketed as
Criminal Case No. CBU-85503, for violation of
Republic Act (R.A.) No. 9262, otherwise known
as the Anti-Violence Against Women and Their
Children Act of 2004.
The following facts are culled from the records:
Petitioner Norma A. Del Socorro and respondent
Ernst Johan Brinkman Van Wilsem contracted
marriage in Holland on September 25, 1990.2 On
January 19, 1994, they were blessed with a son
named Roderigo Norjo Van Wilsem, who at the
time of the filing of the instant petition was
sixteen (16) years of age.3
Unfortunately, their marriage bond ended on July
19, 1995 by virtue of a Divorce Decree issued by
the appropriate Court of Holland.4 At that time,
their son was only eighteen (18) months
old.5 Thereafter, petitioner and her son came
home to the Philippines.6
According to petitioner, respondent made a
promise to provide monthly support to their son in
the amount of Two Hundred Fifty (250) Guildene
(which is equivalent to Php17,500.00 more or
less).7 However, since the arrival of petitioner and
her son in the Philippines, respondent never
gave support to the son, Roderigo.8
Not long thereafter, respondent cameto the
Philippines and remarried in Pinamungahan,
Cebu, and since then, have been residing
thereat.9 Respondent and his new wife
established a business known as Paree Catering,
located at Barangay Tajao, Municipality of
Pinamungahan, Cebu City.10 To date, all the
parties, including their son, Roderigo, are
presently living in Cebu City.11
On August 28, 2009, petitioner, through her
counsel, sent a letter demanding for support from
respondent. However, respondent refused to
receive the letter.12
Because of the foregoing circumstances,
petitioner filed a complaint affidavit with the
Provincial Prosecutor of Cebu City against
respondent for violation of Section 5, paragraph
E(2) of R.A. No. 9262 for the latters unjust
refusal to support his minor child with
petitioner.13 Respondent submitted his counter-
affidavit thereto, to which petitioner also
submitted her reply-affidavit.14 Thereafter, the
Provincial Prosecutor of Cebu City issued a
Resolution recommending the filing of an
information for the crime charged against herein
respondent.
The information, which was filed with the RTC-
Cebu and raffled to Branch 20 thereof, states
that:
That sometime in the year 1995 and up to the
present, more or less, in the Municipality of
Minglanilla, Province of Cebu, Philippines, and
within the jurisdiction of this Honorable Court, the
above-named accused, did then and there
wilfully, unlawfully and deliberately deprive,
refuse and still continue to deprive his son
RODERIGO NORJO VAN WILSEM, a fourteen
(14) year old minor, of financial support legally
due him, resulting in economic abuse to the
victim. CONTRARY TO LAW.15
Upon motion and after notice and hearing, the
RTC-Cebu issued a Hold Departure Order
against respondent.16Consequently, respondent
was arrested and, subsequently, posted
bail.17 Petitioner also filed a Motion/Application of
Permanent Protection Order to which respondent
filed his Opposition.18 Pending the resolution
thereof, respondent was
arraigned.19 Subsequently, without the RTC-Cebu
having resolved the application of the protection
order, respondent filed a Motion to Dismiss on
the ground of: (1) lack of jurisdiction over the
offense charged; and (2) prescription of the crime
charged.20
On February 19, 2010, the RTC-Cebu issued the
herein assailed Order,21 dismissing the instant
criminal case against respondent on the ground
that the facts charged in the information do not
constitute an offense with respect to the
respondent who is an alien, the dispositive part of
which states:
WHEREFORE, the Court finds that the facts
charged in the information do not constitute an
offense with respect to the accused, he being an
alien, and accordingly, orders this case
DISMISSED.
The bail bond posted by accused Ernst Johan
Brinkman Van Wilsem for his provisional liberty is
hereby cancelled (sic) and ordered released.
SO ORDERED.
Cebu City, Philippines, February 19, 2010.22
Thereafter, petitioner filed her Motion for
Reconsideration thereto reiterating respondents
obligation to support their child under Article
19523 of the Family Code, thus, failure to do so
makes him liable under R.A. No. 9262 which
"equally applies to all persons in the Philippines
who are obliged to support their minor children
regardless of the obligors nationality."24
On September 1, 2010, the lower court issued an
Order25 denying petitioners Motion for
Reconsideration and reiterating its previous
ruling. Thus:
x x x The arguments therein presented are
basically a rehash of those advanced earlier in
the memorandum of the prosecution. Thus, the
court hereby reiterates its ruling that since the
accused is a foreign national he is not subject to
our national law (The Family Code) in regard to a
parents duty and obligation to givesupport to his
child. Consequently, he cannot be charged of
violating R.A. 9262 for his alleged failure to
support his child. Unless it is conclusively
established that R.A. 9262 applies to a foreigner
who fails to give support tohis child,
notwithstanding that he is not bound by our
domestic law which mandates a parent to give
such support, it is the considered opinion of the
court that no prima faciecase exists against the
accused herein, hence, the case should be
dismissed.
WHEREFORE, the motion for reconsideration is
hereby DENIED for lack of merit.
SO ORDERED.
Cebu City, Philippines, September 1, 2010.26
Hence, the present Petition for Review on
Certiorari raising the following issues:
1. Whether or not a foreign national has
an obligation to support his minor child
under Philippine law; and
2. Whether or not a foreign national can
be held criminally liable under R.A. No.
9262 for his unjustified failure to support
his minor child.27
At the outset, let it be emphasized that We are
taking cognizance of the instant petition despite
the fact that the same was directly lodged with
the Supreme Court, consistent with the ruling in
Republic v. Sunvar Realty Development
Corporation,28 which lays down the instances
when a ruling of the trial court may be brought on
appeal directly to the Supreme Court without
violating the doctrine of hierarchy of courts, to
wit:
x x x Nevertheless, the Rules do not prohibit any
of the parties from filing a Rule 45 Petition with
this Court, in case only questions of law are
raised or involved. This latter situation was one
that petitioners found themselves in when they
filed the instant Petition to raise only questions of
law. In Republic v. Malabanan, the Court clarified
the three modes of appeal from decisions of the
RTC, to wit: (1) by ordinary appeal or appeal by
writ of error under Rule 41, whereby judgment
was rendered in a civil or criminal action by the
RTC in the exercise of its original jurisdiction; (2)
by a petition for review under Rule 42, whereby
judgment was rendered by the RTC in the
exercise of its appellate jurisdiction; and (3) by a
petition for review on certiorari before the
Supreme Court under Rule 45. "The first mode of
appeal is taken to the [Court of Appeals] on
questions of fact or mixed questions of fact and
law. The second mode of appeal is brought to the
CA on questions of fact, of law, or mixed
questions of fact and law. The third mode of
appealis elevated to the Supreme Court only on
questions of law." (Emphasis supplied)
There is a question of law when the issue does
not call for an examination of the probative value
of the evidence presented or of the truth or
falsehood of the facts being admitted, and the
doubt concerns the correct application of law and
jurisprudence on the matter. The resolution of the
issue must rest solely on what the law provides
on the given set of circumstances.29
Indeed, the issues submitted to us for resolution
involve questions of law the response thereto
concerns the correct application of law and
jurisprudence on a given set of facts, i.e.,whether
or not a foreign national has an obligation to
support his minor child under Philippine law; and
whether or not he can be held criminally liable
under R.A. No. 9262 for his unjustified failure to
do so.
It cannot be negated, moreover, that the instant
petition highlights a novel question of law
concerning the liability of a foreign national who
allegedly commits acts and omissions punishable
under special criminal laws, specifically in
relation to family rights and duties. The
inimitability of the factual milieu of the present
case, therefore, deserves a definitive ruling by
this Court, which will eventually serve as a
guidepost for future cases. Furthermore,
dismissing the instant petition and remanding the
same to the CA would only waste the time, effort
and resources of the courts. Thus, in the present
case, considerations of efficiency and economy
in the administration of justice should prevail over
the observance of the hierarchy of courts.
Now, on the matter of the substantive issues, We
find the petition meritorious. Nonetheless, we do
not fully agree with petitioners contentions.
To determine whether or not a person is
criminally liable under R.A. No. 9262, it is
imperative that the legal obligation to support
exists.
Petitioner invokes Article 19530 of the Family
Code, which provides the parents obligation to
support his child. Petitioner contends that
notwithstanding the existence of a divorce decree
issued in relation to Article 26 of the Family
Code,31 respondent is not excused from
complying with his obligation to support his minor
child with petitioner.
On the other hand, respondent contends that
there is no sufficient and clear basis presented
by petitioner that she, as well as her minor son,
are entitled to financial support.32 Respondent
also added that by reason of the Divorce Decree,
he is not obligated topetitioner for any financial
support.33
On this point, we agree with respondent that
petitioner cannot rely on Article 19534 of the New
Civil Code in demanding support from
respondent, who is a foreign citizen, since Article
1535 of the New Civil Code stresses the principle
of nationality. In other words, insofar as
Philippine laws are concerned, specifically the
provisions of the Family Code on support, the
same only applies to Filipino citizens. By
analogy, the same principle applies to foreigners
such that they are governed by their national law
with respect to family rights and duties.36
The obligation to give support to a child is a
matter that falls under family rights and duties.
Since the respondent is a citizen of Holland or
the Netherlands, we agree with the RTC-Cebu
that he is subject to the laws of his country, not to
Philippinelaw, as to whether he is obliged to give
support to his child, as well as the consequences
of his failure to do so.37
In the case of Vivo v. Cloribel,38 the Court held
that
Furthermore, being still aliens, they are not in
position to invoke the provisions of the Civil Code
of the Philippines, for that Code cleaves to the
principle that family rights and duties are
governed by their personal law, i.e.,the laws of
the nation to which they belong even when
staying in a foreign country (cf. Civil Code, Article
15).39
It cannot be gainsaid, therefore, that the
respondent is not obliged to support petitioners
son under Article195 of the Family Code as a
consequence of the Divorce Covenant obtained
in Holland. This does not, however, mean that
respondent is not obliged to support petitioners
son altogether.
In international law, the party who wants to have
a foreign law applied to a dispute or case has the
burden of proving the foreign law.40 In the present
case, respondent hastily concludes that being a
national of the Netherlands, he is governed by
such laws on the matter of provision of and
capacity to support.41 While respondent pleaded
the laws of the Netherlands in advancing his
position that he is not obliged to support his son,
he never proved the same.
It is incumbent upon respondent to plead and
prove that the national law of the Netherlands
does not impose upon the parents the obligation
to support their child (either before, during or
after the issuance of a divorce decree), because
Llorente v. Court of Appeals,42 has already
enunciated that:
True, foreign laws do not prove themselves in our
jurisdiction and our courts are not authorized to
takejudicial notice of them. Like any other fact,
they must be alleged and proved.43
In view of respondents failure to prove the
national law of the Netherlands in his favor, the
doctrine of processual presumption shall govern.
Under this doctrine, if the foreign law involved is
not properly pleaded and proved, our courts will
presume that the foreign law is the same as our
local or domestic or internal law.44 Thus, since the
law of the Netherlands as regards the obligation
to support has not been properly pleaded and
proved in the instant case, it is presumed to be
the same with Philippine law, which enforces the
obligation of parents to support their children and
penalizing the non-compliance therewith.
Moreover, while in Pilapil v. Ibay-Somera,45 the
Court held that a divorce obtained in a foreign
land as well as its legal effects may be
recognized in the Philippines in view of the
nationality principle on the matter of status of
persons, the Divorce Covenant presented by
respondent does not completely show that he is
notliable to give support to his son after the
divorce decree was issued. Emphasis is placed
on petitioners allegation that under the second
page of the aforesaid covenant, respondents
obligation to support his child is specifically
stated,46which was not disputed by respondent.
We likewise agree with petitioner that
notwithstanding that the national law of
respondent states that parents have no obligation
to support their children or that such obligation is
not punishable by law, said law would still not
find applicability,in light of the ruling in Bank of
America, NT and SA v. American Realty
Corporation,47 to wit:
In the instant case, assuming arguendo that the
English Law on the matter were properly pleaded
and proved in accordance with Section 24, Rule
132 of the Rules of Court and the jurisprudence
laid down in Yao Kee, et al. vs. Sy-Gonzales,
said foreign law would still not find applicability.
Thus, when the foreign law, judgment or contract
is contrary to a sound and established public
policy of the forum, the said foreign law,
judgment or order shall not be applied.
Additionally, prohibitive laws concerning persons,
their acts or property, and those which have for
their object public order, public policy and good
customs shall not be rendered ineffective by laws
or judgments promulgated, or by determinations
or conventions agreed upon in a foreign country.
The public policy sought to be protected in the
instant case is the principle imbedded in our
jurisdiction proscribing the splitting up of a single
cause of action.
Section 4, Rule 2 of the 1997 Rules of Civil
Procedure is pertinent
If two or more suits are instituted on the basis of
the same cause of action, the filing of one or a
judgment upon the merits in any one is available
as a ground for the dismissal of the others.
Moreover, foreign law should not be applied
when its application would work undeniable
injustice to the citizens or residents of the forum.
To give justice is the most important function of
law; hence, a law, or judgment or contract that is
obviously unjust negates the fundamental
principles of Conflict of Laws.48
Applying the foregoing, even if the laws of the
Netherlands neither enforce a parents obligation
to support his child nor penalize the
noncompliance therewith, such obligation is still
duly enforceable in the Philippines because it
would be of great injustice to the child to be
denied of financial support when the latter is
entitled thereto.
We emphasize, however, that as to petitioner
herself, respondent is no longer liable to support
his former wife, in consonance with the ruling in
San Luis v. San Luis,49 to wit:
As to the effect of the divorce on the Filipino wife,
the Court ruled that she should no longerbe
considered marriedto the alien spouse. Further,
she should not be required to perform her marital
duties and obligations. It held:
To maintain, as private respondent does, that,
under our laws, petitioner has to be considered
still married to private respondent and still subject
to a wife's obligations under Article 109, et. seq.
of the Civil Code cannot be just. Petitioner should
not be obliged to live together with, observe
respect and fidelity, and render support to private
respondent. The latter should not continue to be
one of her heirs with possible rights to conjugal
property. She should not be discriminated
against in her own country if the ends of justice
are to be served. (Emphasis added)50
Based on the foregoing legal precepts, we find
that respondent may be made liable under
Section 5(e) and (i) of R.A. No. 9262 for unjustly
refusing or failing to give support topetitioners
son, to wit:
SECTION 5. Acts of Violence Against Women
and Their Children.- The crime of violence
against women and their children is committed
through any of the following acts:
xxxx
(e) Attempting to compel or compelling the
woman or her child to engage in conduct which
the woman or her child has the right to desist
from or desist from conduct which the woman or
her child has the right to engage in, or attempting
to restrict or restricting the woman's or her child's
freedom of movement or conduct by force or
threat of force, physical or other harm or threat of
physical or other harm, or intimidation directed
against the woman or child. This shall include,
butnot limited to, the following acts committed
with the purpose or effect of controlling or
restricting the woman's or her child's movement
or conduct:
xxxx
(2) Depriving or threatening to deprive the
woman or her children of financial support legally
due her or her family, or deliberately providing
the woman's children insufficient financial
support; x x x x
(i) Causing mental or emotional anguish, public
ridicule or humiliation to the woman or her child,
including, but not limited to, repeated verbal and
emotional abuse, and denial of financial support
or custody of minor childrenof access to the
woman's child/children.51
Under the aforesaid special law, the deprivation
or denial of financial support to the child is
considered anact of violence against women and
children.
In addition, considering that respondent is
currently living in the Philippines, we find strength
in petitioners claim that the Territoriality Principle
in criminal law, in relation to Article 14 of the New
Civil Code, applies to the instant case, which
provides that: "[p]enal laws and those of public
security and safety shall be obligatory upon all
who live and sojourn in Philippine territory,
subject to the principle of public international law
and to treaty stipulations." On this score, it is
indisputable that the alleged continuing acts of
respondent in refusing to support his child with
petitioner is committed here in the Philippines as
all of the parties herein are residents of the
Province of Cebu City. As such, our courts have
territorial jurisdiction over the offense charged
against respondent. It is likewise irrefutable that
jurisdiction over the respondent was acquired
upon his arrest.
Finally, we do not agree with respondents
argument that granting, but not admitting, that
there is a legal basis for charging violation of
R.A. No. 9262 in the instant case, the criminal
liability has been extinguished on the ground of
prescription of crime52 under Section 24 of R.A.
No. 9262, which provides that:

SECTION 24. Prescriptive Period. Acts falling

under Sections 5(a) to 5(f) shall prescribe in
twenty (20) years. Acts falling under Sections
5(g) to 5(I) shall prescribe in ten (10) years.

The act of denying support to a child under

Section 5(e)(2) and (i) of R.A. No. 9262 is a
continuing offense,53which started in 1995 but is
still ongoing at present. Accordingly, the crime
charged in the instant case has clearly not
prescribed.

Given, however, that the issue on whether

respondent has provided support to petitioners
child calls for an examination of the probative
value of the evidence presented, and the truth
and falsehood of facts being admitted, we hereby
remand the determination of this issue to the
RTC-Cebu which has jurisdiction over the case.

WHEREFORE, the petition is GRANTED. The

Orders dated February 19, 2010 and September
1, 2010, respectively, of the Regional Trial Court
of the City of Cebu are hereby REVERSED and
SET ASIDE. The case is REMANDED to the
same court to conduct further proceedings based
on the merits of the case.

SO ORDERED.

DIOSDADO M. PERALTA
Associate Justice

Republic of the Philippines
SUPREME COURT
Manila
SECOND DIVISION
G.R. No. 80116 June 30, 1989
IMELDA MANALAYSAY PILAPIL, petitioner,
vs.
HON. CORONA IBAY-SOMERA, in her capacity
as Presiding Judge of the Regional Trial Court
of Manila, Branch XXVI; HON. LUIS C. VICTOR,
in his capacity as the City Fiscal of Manila; and
ERICH EKKEHARD GEILING, respondents.
REGALADO, J.:
An ill-starred marriage of a Filipina and a foreigner
which ended in a foreign absolute divorce, only to
be followed by a criminal infidelity suit of the latter
against the former, provides Us the opportunity to
lay down a decisional rule on what hitherto appears
to be an unresolved jurisdictional question.
On September 7, 1979, petitioner Imelda
Manalaysay Pilapil, a Filipino citizen, and private
respondent Erich Ekkehard Geiling, a German
national, were married before the Registrar of
Births, Marriages and Deaths at Friedensweiler in
the Federal Republic of Germany. The marriage
started auspiciously enough, and the couple lived
together for some time in Malate, Manila where
their only child, Isabella Pilapil Geiling, was born on
April 20, 1980. 1
Thereafter, marital discord set in, with mutual
recriminations between the spouses, followed by a
separation de facto between them.
After about three and a half years of marriage, such
connubial disharmony eventuated in private
respondent initiating a divorce proceeding against
petitioner in Germany before the Schoneberg Local
Court in January, 1983. He claimed that there was
failure of their marriage and that they had been
living apart since April, 1982. 2
Petitioner, on the other hand, filed an action for
legal separation, support and separation of property
before the Regional Trial Court of Manila, Branch
XXXII, on January 23, 1983 where the same is still
pending as Civil Case No. 83-15866. 3
On January 15, 1986, Division 20 of the
Schoneberg Local Court, Federal Republic of
Germany, promulgated a decree of divorce on the
ground of failure of marriage of the spouses. The
custody of the child was granted to petitioner. The
records show that under German law said court
was locally and internationally competent for the
divorce proceeding and that the dissolution of said
marriage was legally founded on and authorized by
the applicable law of that foreign jurisdiction. 4
On June 27, 1986, or more than five months after
the issuance of the divorce decree, private
respondent filed two complaints for adultery before
the City Fiscal of Manila alleging that, while still
married to said respondent, petitioner "had an affair
with a certain William Chia as early as 1982 and
with yet another man named Jesus Chua sometime
in 1983". Assistant Fiscal Jacinto A. de los Reyes,
Jr., after the corresponding investigation,
recommended the dismissal of the cases on the
ground of insufficiency of evidence. 5 However,
upon review, the respondent city fiscal approved a
resolution, dated January 8, 1986, directing the
filing of two complaints for adultery against the
petitioner. 6 The complaints were accordingly filed
and were eventually raffled to two branches of the
Regional Trial Court of Manila. The case
entitled "People of the Philippines vs. Imelda Pilapil
and William Chia", docketed as Criminal Case No.
87-52435, was assigned to Branch XXVI presided
by the respondent judge; while the other
case, "People of the Philippines vs. Imelda Pilapil
and James Chua", docketed as Criminal Case No.
87-52434 went to the sala of Judge Leonardo Cruz,
Branch XXV, of the same court. 7
On March 14, 1987, petitioner filed a petition with
the Secretary of Justice asking that the aforesaid
resolution of respondent fiscal be set aside and the
cases against her be dismissed. 8 A similar petition
was filed by James Chua, her co-accused in
Criminal Case No. 87-52434. The Secretary of
Justice, through the Chief State Prosecutor, gave
due course to both petitions and directed the
respondent city fiscal to inform the Department of
Justice "if the accused have already been
arraigned and if not yet arraigned, to move to defer
further proceedings" and to elevate the entire
records of both cases to his office for review. 9
Petitioner thereafter filed a motion in both criminal
cases to defer her arraignment and to suspend
further proceedings thereon. 10 As a consequence,
Judge Leonardo Cruz suspended proceedings in
Criminal Case No. 87-52434. On the other hand,
respondent judge merely reset the date of the
arraignment in Criminal Case No. 87-52435 to April
6, 1987. Before such scheduled date, petitioner
moved for the cancellation of the arraignment and
for the suspension of proceedings in said Criminal
Case No. 87-52435 until after the resolution of the
petition for review then pending before the
Secretary of Justice. 11 A motion to quash was also
filed in the same case on the ground of lack of
jurisdiction, 12 which motion was denied by the
respondent judge in an order dated September 8,
1987. The same order also directed the
arraignment of both accused therein, that is,
petitioner and William Chia. The latter entered a
plea of not guilty while the petitioner refused to be
arraigned. Such refusal of the petitioner being
considered by respondent judge as direct
contempt, she and her counsel were fined and the
former was ordered detained until she submitted
herself for arraignment. 13 Later, private respondent
entered a plea of not guilty. 14
On October 27, 1987, petitioner filed this special
civil action for certiorari and prohibition, with a
prayer for a temporary restraining order, seeking
the annulment of the order of the lower court
denying her motion to quash. The petition is
anchored on the main ground that the court is
without jurisdiction "to try and decide the charge of
adultery, which is a private offense that cannot be
prosecuted de officio (sic), since the purported
complainant, a foreigner, does not qualify as an
offended spouse having obtained a final divorce
decree under his national law prior to his filing the
criminal complaint." 15
On October 21, 1987, this Court issued a
temporary restraining order enjoining the
respondents from implementing the aforesaid order
of September 8, 1987 and from further proceeding
with Criminal Case No. 87-52435. Subsequently,
on March 23, 1988 Secretary of Justice Sedfrey A.
Ordoez acted on the aforesaid petitions for review
and, upholding petitioner's ratiocinations, issued a
resolution directing the respondent city fiscal to
move for the dismissal of the complaints against
the petitioner. 16
We find this petition meritorious. The writs prayed
for shall accordingly issue.
Under Article 344 of the Revised Penal Code, 17 the
crime of adultery, as well as four other crimes
against chastity, cannot be prosecuted except upon
a sworn written complaint filed by the offended
spouse. It has long since been established, with
unwavering consistency, that compliance with this
rule is a jurisdictional, and not merely a formal,
requirement. 18 While in point of strict law the
jurisdiction of the court over the offense is vested in
it by the Judiciary Law, the requirement for a sworn
written complaint is just as jurisdictional a mandate
since it is that complaint which starts the
prosecutory proceeding 19 and without which the
court cannot exercise its jurisdiction to try the case.
Now, the law specifically provides that in
prosecutions for adultery and concubinage the
person who can legally file the complaint should be
the offended spouse, and nobody else. Unlike the
offenses of seduction, abduction, rape and acts of
lasciviousness, no provision is made for the
prosecution of the crimes of adultery and
concubinage by the parents, grandparents or
guardian of the offended party. The so-called
exclusive and successive rule in the prosecution of
the first four offenses above mentioned do not
apply to adultery and concubinage. It is significant
that while the State, as parens patriae, was added
and vested by the 1985 Rules of Criminal
Procedure with the power to initiate the criminal
action for a deceased or incapacitated victim in the
aforesaid offenses of seduction, abduction, rape
and acts of lasciviousness, in default of her
parents, grandparents or guardian, such
amendment did not include the crimes of adultery
and concubinage. In other words, only the offended
spouse, and no other, is authorized by law to
initiate the action therefor.
Corollary to such exclusive grant of power to the
offended spouse to institute the action, it
necessarily follows that such initiator must have the
status, capacity or legal representation to do so at
the time of the filing of the criminal action. This is a
familiar and express rule in civil actions; in fact, lack
of legal capacity to sue, as a ground for a motion to
dismiss in civil cases, is determined as of the filing
of the complaint or petition.
The absence of an equivalent explicit rule in the
prosecution of criminal cases does not mean that
the same requirement and rationale would not
apply. Understandably, it may not have been found
necessary since criminal actions are generally and
fundamentally commenced by the State, through
the People of the Philippines, the offended party
being merely the complaining witness therein.
However, in the so-called "private crimes" or those
which cannot be prosecuted de oficio, and the
present prosecution for adultery is of such genre,
the offended spouse assumes a more predominant
role since the right to commence the action, or to
refrain therefrom, is a matter exclusively within his
power and option.
This policy was adopted out of consideration for the
aggrieved party who might prefer to suffer the
outrage in silence rather than go through the
scandal of a public trial. 20 Hence, as cogently
argued by petitioner, Article 344 of the Revised
Penal Code thus presupposes that the marital
relationship is still subsisting at the time of the
institution of the criminal action for, adultery. This is
a logical consequence since the raison d'etre of
said provision of law would be absent where the
supposed offended party had ceased to be the
spouse of the alleged offender at the time of the
filing of the criminal case. 21
In these cases, therefore, it is indispensable that
the status and capacity of the complainant to
commence the action be definitely established and,
as already demonstrated, such status or capacity
must indubitably exist as of the time he initiates the
action. It would be absurd if his capacity to bring
the action would be determined by his
status before or subsequent to the commencement
thereof, where such capacity or status existed prior
to but ceased before, or was acquired subsequent
to but did not exist at the time of, the institution of
the case. We would thereby have the anomalous
spectacle of a party bringing suit at the very time
when he is without the legal capacity to do so.
To repeat, there does not appear to be any local
precedential jurisprudence on the specific issue as
to when precisely the status of a complainant as an
offended spouse must exist where a criminal
prosecution can be commenced only by one who in
law can be categorized as possessed of such
status. Stated differently and with reference to the
present case, the inquiry ;would be whether it is
necessary in the commencement of a criminal
action for adultery that the marital bonds between
the complainant and the accused be unsevered
and existing at the time of the institution of the
action by the former against the latter.
American jurisprudence, on cases involving
statutes in that jurisdiction which are in pari
materia with ours, yields the rule that after a divorce
has been decreed, the innocent spouse no longer
has the right to institute proceedings against the
offenders where the statute provides that the
innocent spouse shall have the exclusive right to
institute a prosecution for adultery. Where,
however, proceedings have been properly
commenced, a divorce subsequently granted can
have no legal effect on the prosecution of the
criminal proceedings to a conclusion. 22
In the cited Loftus case, the Supreme Court of Iowa
held that
'No prosecution for adultery can be
commenced except on the complaint
of the husband or wife.' Section
4932, Code. Though Loftus was
husband of defendant when the
offense is said to have been
committed, he had ceased to be
such when the prosecution was
begun; and appellant insists that his
status was not such as to entitle him
to make the complaint. We have
repeatedly said that the offense is
against the unoffending spouse, as
well as the state, in explaining the
reason for this provision in the
statute; and we are of the opinion
that the unoffending spouse must be
such when the prosecution is
commenced. (Emphasis supplied.)
We see no reason why the same doctrinal rule
should not apply in this case and in our jurisdiction,
considering our statutory law and jural policy on the
matter. We are convinced that in cases of such
nature, the status of the complainant vis-a-vis the
accused must be determined as of the time the
complaint was filed. Thus, the person who initiates
the adultery case must be an offended spouse, and
by this is meant that he is still married to the
accused spouse, at the time of the filing of the
complaint.
In the present case, the fact that private respondent
obtained a valid divorce in his country, the Federal
Republic of Germany, is admitted. Said divorce and
its legal effects may be recognized in the
Philippines insofar as private respondent is
concerned 23 in view of the nationality principle in
our civil law on the matter of status of persons.
Thus, in the recent case of Van Dorn vs. Romillo,
Jr., et al., 24 after a divorce was granted by a United
States court between Alice Van Dornja Filipina, and
her American husband, the latter filed a civil case in
a trial court here alleging that her business concern
was conjugal property and praying that she be
ordered to render an accounting and that the
plaintiff be granted the right to manage the
business. Rejecting his pretensions, this Court
perspicuously demonstrated the error of such
stance, thus:
There can be no question as to the
validity of that Nevada divorce in any
of the States of the United States.
The decree is binding on private
respondent as an American citizen.
For instance, private respondent
cannot sue petitioner, as her
husband, in any State of the Union.
...
It is true that owing to the nationality
principle embodied in Article 15 of
the Civil Code, only Philippine
nationals are covered by the policy
against absolute divorces the same
being considered contrary to our
concept of public policy and morality.
However, aliens may obtain divorces
abroad, which may be recognized in
the Philippines, provided they are
valid according to their national law.
...
Thus, pursuant to his national law,
private respondent is no longer the
husband of petitioner. He would
have no standing to sue in the case
below as petitioner's husband
entitled to exercise control over
conjugal assets. ... 25
Under the same considerations and rationale,
private respondent, being no longer the husband of
petitioner, had no legal standing to commence the
adultery case under the imposture that he was the
offended spouse at the time he filed suit.
The allegation of private respondent that he could
not have brought this case before the decree of
divorce for lack of knowledge, even if true, is of no
legal significance or consequence in this case.
When said respondent initiated the divorce
proceeding, he obviously knew that there would no
longer be a family nor marriage vows to protect
once a dissolution of the marriage is decreed.
Neither would there be a danger of introducing
spurious heirs into the family, which is said to be
one of the reasons for the particular formulation of
our law on adultery, 26 since there would
thenceforth be no spousal relationship to speak of.
The severance of the marital bond had the effect of
dissociating the former spouses from each other,
hence the actuations of one would not affect or cast
obloquy on the other.
The aforecited case of United States vs.
Mata cannot be successfully relied upon by private
respondent. In applying Article 433 of the old Penal
Code, substantially the same as Article 333 of the
Revised Penal Code, which punished adultery
"although the marriage be afterwards declared
void", the Court merely stated that "the lawmakers
intended to declare adulterous the infidelity of a
married woman to her marital vows, even though it
should be made to appear that she is entitled to
have her marriage contract declared null and void,
until and unless she actually secures a formal
judicial declaration to that effect". Definitely, it
cannot be logically inferred therefrom that the
complaint can still be filed after the declaration of
nullity because such declaration that the marriage
is void ab initio is equivalent to stating that it never
existed. There being no marriage from the
beginning, any complaint for adultery filed after said
declaration of nullity would no longer have a leg to
stand on. Moreover, what was consequently
contemplated and within the purview of the decision
in said case is the situation where the criminal
action for adultery was filed before the termination
of the marriage by a judicial declaration of its
nullity ab initio. The same rule and requisite would
necessarily apply where the termination of the
marriage was effected, as in this case, by a valid
foreign divorce.
Private respondent's invocation of Donio-Teves, et
al. vs. Vamenta, hereinbefore cited, 27 must suffer
the same fate of inapplicability. A cursory reading of
said case reveals that the offended spouse therein
had duly and seasonably filed a complaint for
adultery, although an issue was raised as to its
sufficiency but which was resolved in favor of the
complainant. Said case did not involve a factual
situation akin to the one at bar or any issue
determinative of the controversy herein.
WHEREFORE, the questioned order denying
petitioner's motion to quash is SET ASIDE and
another one entered DISMISSING the complaint in
Criminal Case No. 87-52435 for lack of jurisdiction.
The temporary restraining order issued in this case
on October 21, 1987 is hereby made permanent.
SO ORDERED.

THIRD DIVISION
[G.R. No. 138322. October 2, 2001]
GRACE J. GARCIA, a.k.a. GRACE J. GARCIA-
RECIO, petitioner, vs. REDERICK A.
RECIO, respondent.
DECISION
PANGANIBAN, J.:
A divorce obtained abroad by an alien may be
recognized in our jurisdiction, provided such decree
is valid according to the national law of the
foreigner. However, the divorce decree and the
governing personal law of the alien spouse who
obtained the divorce must be proven. Our courts do
not take judicial notice of foreign laws and
judgments; hence, like any other facts, both the
divorce decree and the national law of the alien
must be alleged and proven according to our law
on evidence.
The Case
Before us is a Petition for Review under Rule
45 of the Rules of Court, seeking to nullify the
January 7, 1999 Decision[1] and the March 24, 1999
Order[2] of the Regional Trial Court of Cabanatuan
City, Branch 28, in Civil Case No. 3026AF. The
assailed Decision disposed as follows:
WHEREFORE, this Court declares the marriage
between Grace J. Garcia and Rederick A. Recio
solemnized on January 12, 1994 at Cabanatuan
City as dissolved and both parties can now remarry
under existing and applicable laws to any and/or
both parties.[3]
The assailed Order denied reconsideration of
the above-quoted Decision.
The Facts
Rederick A. Recio, a Filipino, was married to
Editha Samson, an Australian citizen, in Malabon,
Rizal, on March 1, 1987.[4] They lived together as
husband and wife in Australia. On May 18,
1989, [5] a decree of divorce, purportedly dissolving
the marriage, was issued by an Australian family
court.
On June 26, 1992, respondent became an
Australian citizen, as shown by a Certificate of
Australian Citizenship issued by the Australian
government.[6] Petitioner -- a Filipina -- and
respondent were married on January 12, 1994 in
Our Lady of Perpetual Help Church in Cabanatuan
City.[7]In their application for a marriage license,
respondent was declared as single and Filipino.[8]
Starting October 22, 1995, petitioner and
respondent lived separately without prior judicial
dissolution of their marriage. While the two were
still in Australia, their conjugal assets were divided
on May 16, 1996, in accordance with their Statutory
Declarations secured in Australia.[9]
On March 3, 1998, petitioner filed a Complaint
for Declaration of Nullity of Marriage[10] in the
court a quo, on the ground of bigamy -- respondent
allegedly had a prior subsisting marriage at the time
he married her on January 12, 1994. She claimed
that she learned of respondents marriage to Editha
Samson only in November, 1997.
In his Answer, respondent averred that, as far
back as 1993, he had revealed to petitioner his
prior marriage and its subsequent dissolution.[11] He
contended that his first marriage to an Australian
citizen had been validly dissolved by a divorce
decree obtained in Australia in 1989;[12] thus, he
was legally capacitated to marry petitioner in 1994.
On July 7, 1998 -- or about five years after the
couples wedding and while the suit for the
declaration of nullity was pending -- respondent
was able to secure a divorce decree from a family
court in Sydney, Australia because the marriage
ha[d] irretrievably broken down.[13]
Respondent prayed in his Answer that the
Complaint be dismissed on the ground that it stated
no cause of action.[14] The Office of the Solicitor
General agreed with respondent.[15] The court
marked and admitted the documentary evidence of
both parties.[16] After they submitted their respective
memoranda, the case was submitted for
resolution.[17]
Thereafter, the trial court rendered the assailed
Decision and Order.
Ruling of the Trial Court
 The trial court declared the marriage dissolved
on the ground that the divorce issued in Australia
was valid and recognized in the Philippines. It
deemed the marriage ended, but not on the basis
of any defect in an essential element of the
marriage; that is, respondents alleged lack of legal
capacity to remarry. Rather, it based its Decision on
the divorce decree obtained by respondent. The
Australian divorce had ended the marriage; thus,
there was no more marital union to nullify or annul.
Hence, this Petition.[18]
Issues
Petitioner submits the following issues for our
consideration:
1
The trial court gravely erred in finding that the
divorce decree obtained in Australia by the
respondent ipso facto terminated his first marriage
to Editha Samson thereby capacitating him to
contract a second marriage with the petitioner.
2 existence of (1) the foreign law allowing absolute
The failure of the respondent, who is now a
naturalized Australian, to present a certificate of
legal capacity to marry constitutes absence of a
substantial requisite voiding the petitioners
marriage to the respondent
3 (the lex loci celebrationis). In effect, the Code
The trial court seriously erred in the application of
Art. 26 of the Family Code in this case.
4 At the outset, we lay the following basic legal
The trial court patently and grievously erred in
disregarding Arts. 11, 13, 21, 35, 40, 52 and 53 of
the Family Code as the applicable provisions in this
case.
5 Code.[24] In mixed marriages involving a Filipino and
The trial court gravely erred in pronouncing that the
divorce decree obtained by the respondent in
Australia ipso facto capacitated the parties to
remarry, without first securing a recognition of the
judgment granting the divorce decree before our
courts.[19]
The Petition raises five issues, but for
purposes of this Decision, we shall concentrate on
two pivotal ones: (1) whether the divorce between
respondent and Editha Samson was proven, and
(2) whether respondent was proven to be legally
capacitated to marry petitioner. Because of our
ruling on these two, there is no more necessity to
take up the rest.
The Courts Ruling
The Petition is partly meritorious.
First Issue:
Proving the Divorce Between Respondent and
Editha Samson
Petitioner assails the trial courts recognition of
the divorce between respondent and Editha
Samson. Citing Adong v. Cheong Seng
Gee,[20] petitioner argues that the divorce decree,
like any other foreign judgment, may be given
recognition in this jurisdiction only upon proof of the
divorce and (2) the alleged divorce decree
itself. She adds that respondent miserably failed to
establish these elements.
Petitioner adds that, based on the first
paragraph of Article 26 of the Family Code,
marriages solemnized abroad are governed by the
law of the place where they were celebrated
requires the presentation of the foreign law to show
the conformity of the marriage in question to the
legal requirements of the place where the marriage
was performed.
principles as the take-off points for our
discussion. Philippine law does not provide for
absolute divorce; hence, our courts cannot grant
it.[21] A marriage between two Filipinos cannot be
dissolved even by a divorce obtained abroad,
because of Articles 15[22] and 17[23] of the Civil
a foreigner, Article 26[25] of the Family Code allows
the former to contract a subsequent marriage in
case the divorce is validly obtained abroad by the
alien spouse capacitating him or her to
remarry.[26] A divorce obtained abroad by a couple,
who are both aliens, may be recognized in the
Philippines, provided it is consistent with their
respective national laws.[27]
A comparison between marriage and divorce,
as far as pleading and proof are concerned, can be
made. Van Dorn v. Romillo Jr. decrees that aliens
may obtain divorces abroad, which may be
recognized in the Philippines, provided they are
valid according to their national law.[28] Therefore,
before a foreign divorce decree can be recognized
by our courts, the party pleading it must prove the
divorce as a fact and demonstrate its conformity to
the foreign law allowing it.[29] Presentation solely of
the divorce decree is insufficient.
Divorce as a Question of Fact
Petitioner insists that before a divorce decree
can be admitted in evidence, it must first comply
with the registration requirements under Articles 11,
13 and 52 of the Family Code. These articles read
as follows:
ART. 11. Where a marriage license is required,
each of the contracting parties shall file separately
a sworn application for such license with the proper
local civil registrar which shall specify the following:
xxxxxxxxx
(5) If previously married, how, when and where the
previous marriage was dissolved or annulled;
xxxxxxxxx
ART. 13. In case either of the contracting parties
has been previously married, the applicant shall be
required to
ART. 13. In case either of the contracting parties
has been previously married, the applicant shall be
required to furnish, instead of the birth or baptismal
certificate required in the last preceding article, the
death certificate of the deceased spouse or the
judicial decree of the absolute divorce, or the
judicial decree of annulment or declaration of nullity
of his or her previous marriage. x x x.
ART. 52. The judgment of annulment or of absolute
nullity of the marriage, the partition and distribution
of the properties of the spouses, and the delivery of
the childrens presumptive legitimes shall be
recorded in the appropriate civil registry and
registries of property; otherwise, the same shall not
affect their persons.
Respondent, on the other hand, argues that
the Australian divorce decree is a public document
-- a written official act of an Australian family
court. Therefore, it requires no further proof of its
authenticity and due execution.
Respondent is getting ahead of himself. Before
a foreign judgment is given presumptive evidentiary
value, the document must first be presented and
admitted in evidence.[30] A divorce obtained abroad
is proven by the divorce decree itself. Indeed the
best evidence of a judgment is the judgment
itself.[31] The decree purports to be a written act or
record of an act of an official body or tribunal of a
foreign country.[32]
Under Sections 24 and 25 of Rule 132, on the
other hand, a writing or document may be proven
as a public or official record of a foreign country by
either (1) an official publication or (2) a copy thereof
attested[33] by the officer having legal custody of the
document. If the record is not kept in the
Philippines, such copy must be (a) accompanied by
a certificate issued by the proper diplomatic or
consular officer in the Philippine foreign service
stationed in the foreign country in which the record
is kept and (b) authenticated by the seal of his
office. [34]
The divorce decree between respondent and
Editha Samson appears to be an authentic one
issued by an Australian family court.[35] However,
appearance is not sufficient; compliance with the
aforementioned rules on evidence must be
demonstrated.
Fortunately for respondents cause, when the
divorce decree of May 18, 1989 was submitted in
evidence, counsel for petitioner objected, not to its
admissibility, but only to the fact that it had not
been registered in the Local Civil Registry of
Cabanatuan City.[36] The trial court ruled that it was
admissible, subject to petitioners
[37]
qualification. Hence, it was admitted in evidence
and accorded weight by the judge. Indeed,
petitioners failure to object properly rendered the
divorce decree admissible as a written act of the
Family Court of Sydney, Australia.[38]
Compliance with the quoted articles (11, 13
and 52) of the Family Code is not necessary;
respondent was no longer bound by Philippine
personal laws after he acquired Australian
citizenship in 1992.[39] Naturalization is the legal act
of adopting an alien and clothing him with the
political and civil rights belonging to a
citizen.[40] Naturalized citizens, freed from the
protective cloak of their former states, don the
attires of their adoptive countries. By becoming an
Australian, respondent severed his allegiance to
the Philippines and the vinculum juris that had tied
him to Philippine personal laws.
Burden of Proving Australian Law
Respondent contends that the burden to prove
Australian divorce law falls upon petitioner,
because she is the party challenging the validity of
a foreign judgment. He contends that petitioner was
satisfied with the original of the divorce decree and
was cognizant of the marital laws of Australia,
because she had lived and worked in that country
for quite a long time. Besides, the Australian
divorce law is allegedly known by Philippine courts;
thus, judges may take judicial notice of foreign laws
in the exercise of sound discretion.
We are not persuaded. The burden of proof
lies with the party who alleges the existence of a
fact or thing necessary in the prosecution or
defense of an action.[41] In civil cases, plaintiffs
have the burden of proving the material allegations
of the complaint when those are denied by the
answer; and defendants have the burden of proving
the material allegations in their answer when they
introduce new matters.[42] Since the divorce was a
defense raised by respondent, the burden of
proving the pertinent Australian law validating it
falls squarely upon him.
It is well-settled in our jurisdiction that our
courts cannot take judicial notice of foreign
laws.[43] Like any other facts, they must be alleged
and proved. Australian marital laws are not among
those matters that judges are supposed to know by
reason of their judicial function.[44] The power of
judicial notice must be exercised with caution, and
every reasonable doubt upon the subject should be
resolved in the negative.
Second Issue: Respondents Legal Capacity to
Remarry
Petitioner contends that, in view of the
insufficient proof of the divorce, respondent was
legally incapacitated to marry her in 1994. Hence,
she concludes that their marriage was void ab
initio.
Respondent replies that the Australian divorce
decree, which was validly admitted in evidence,
adequately established his legal capacity to marry
under Australian law.
Respondents contention is untenable. In its
strict legal sense, divorce means the legal
dissolution of a lawful union for a cause arising
after marriage. But divorces are of different
types. The two basic ones are (1) absolute divorce
or a vinculo matrimonii and (2) limited divorce or a
mensa et thoro. The first kind terminates the
marriage, while the second suspends it and leaves
the bond in full force.[45] There is no showing in the
case at bar which type of divorce was procured by
respondent.
Respondent presented a decree nisi or an
interlocutory decree -- a conditional or provisional
judgment of divorce. It is in effect the same as a
separation from bed and board, although an
absolute divorce may follow after the lapse of the
prescribed period during which no reconciliation is
effected.[46]
Even after the divorce becomes absolute, the
court may under some foreign statutes and
practices, still restrict remarriage. Under some
other jurisdictions, remarriage may be limited by
statute; thus, the guilty party in a divorce which was
granted on the ground of adultery may be
prohibited from marrying again. The court may
allow a remarriage only after proof of good
behavior.[47]
On its face, the herein Australian divorce
decree contains a restriction that reads:
1. A party to a marriage who marries again
before this decree becomes absolute
(unless the other party has died)
commits the offence of bigamy.[48]
This quotation bolsters our contention that the
divorce obtained by respondent may have been
restricted. It did not absolutely establish his legal
capacity to remarry according to his national
law. Hence, we find no basis for the ruling of the
trial court, which erroneously assumed that the
Australian divorce ipso facto restored respondents
capacity to remarry despite the paucity of evidence
on this matter.
We also reject the claim of respondent that the
divorce decree raises a disputable presumption or
presumptive evidence as to his civil status based
on Section 48, Rule 39[49] of the Rules of Court, for
the simple reason that no proof has been presented
on the legal effects of the divorce decree obtained
under Australian laws.
Significance of the Certificate of Legal Capacity
Petitioner argues that the certificate of legal
capacity required by Article 21 of the Family Code
was not submitted together with the application for
a marriage license. According to her, its absence is
proof that respondent did not have legal capacity to under Australian law, he was really capacitated to
remarry. marry petitioner as a direct result of the divorce
decree. Hence, we believe that the most judicious
We clarify. To repeat, the legal capacity to course is to remand this case to the trial court to
contract marriage is determined by the national law receive evidence, if any, which show petitioners
of the party concerned. The certificate mentioned in legal capacity to marry petitioner. Failing in that,
Article 21 of the Family Code would have been then the court a quo may declare a nullity of the
sufficient to establish the legal capacity of parties marriage on the ground of bigamy, there
respondent, had he duly presented it in court. A being already in evidence two existing marriage
duly authenticated and admitted certificate is prima certificates, which were both obtained in the
facie evidence of legal capacity to marry on the part Philippines, one in Malabon, Metro Manila dated
of the alien applicant for a marriage license.[50] March 1, 1987 and the other, in Cabanatuan City
As it is, however, there is absolutely no dated January 12, 1994.
evidence that proves respondents legal capacity to WHEREFORE, in the interest of orderly
marry petitioner. A review of the records before this
procedure and substantial justice, we REMAND the
Court shows that only the following exhibits were case to the court a quo for the purpose of receiving
presented before the lower court: (1) for petitioner: evidence which conclusively show respondents
(a) Exhibit A Complaint;[51] (b) Exhibit B Certificate legal capacity to marry petitioner; and failing in that,
of Marriage Between Rederick A. Recio (Filipino- of declaring the parties marriage void on the ground
Australian) and Grace J. Garcia (Filipino) on of bigamy, as above discussed. No costs.
January 12, 1994 in Cabanatuan City, Nueva
Ecija;[52] (c) Exhibit C Certificate of Marriage SO ORDERED.
Between Rederick A. Recio (Filipino) and Editha D.
Samson (Australian) on March 1, 1987 in Malabon, Melo, (Chairman), Vitug, and Sandoval-
Metro Manila;[53] (d) Exhibit D Office of the City Gutierrez, JJ., concur.
Registrar of Cabanatuan City Certification that no
information of annulment between Rederick A.
Recio and Editha D. Samson was in its
records;[54] and (e) Exhibit E Certificate of
Australian Citizenship of Rederick A. Recio;[55] (2)
for respondent: (a) Exhibit 1 -- Amended
Answer;[56] (b) Exhibit 2 Family Law Act 1975
Decree Nisi of Dissolution of Marriage in the Family
Court of Australia;[57] (c) Exhibit 3 Certificate of
Australian Citizenship of Rederick A. Recio;[58] (d)
Exhibit 4 Decree Nisi of Dissolution of Marriage in
the Family Court of Australia Certificate;[59] and
Exhibit 5 -- Statutory Declaration of the Legal
Separation Between Rederick A. Recio and Grace
J. Garcia Recio since October 22, 1995.[60]
Based on the above records, we cannot
conclude that respondent, who was then a
naturalized Australian citizen, was legally
capacitated to marry petitioner on January 12,
1994. We agree with petitioners contention that the
court a quo erred in finding that the divorce decree
ipso facto clothed respondent with the legal
capacity to remarry without requiring him to adduce
sufficient evidence to show the Australian personal
law governing his status; or at the very least, to
prove his legal capacity to contract the second
marriage.
Neither can we grant petitioners prayer to
declare her marriage to respondent null and void on
the ground of bigamy. After all, it may turn out that
 SECOND DIVISION
[G.R. No. 124862. December 22, 1998]
FE D. QUITA, petitioner, vs. COURT OF
APPEALS and BLANDINA
DANDAN,* respondents.
DECISION
BELLOSILLO, J .:
FE D. QUITA and Arturo T. Padlan, both
Filipinos, were married in the Philippines on 18 May
1941. They were not however blessed with
children. Somewhere along the way their
relationship soured. Eventually Fe sued Arturo for
divorce in San Francisco, California, U.S.A. She
submitted in the divorce proceedings a private
writing dated 19 July 1950 evidencing their
agreement to live separately from each other and a
settlement of their conjugal properties. On 23 July
1954 she obtained a final judgment of
divorce. Three (3) weeks thereafter she married a
certain Felix Tupaz in the same locality but their
relationship also ended in a divorce. Still in the
U.S.A., she married for the third time, to a certain
Wernimont.
On 16 April 1972 Arturo died. He left no
will. On 31 August 1972 Lino Javier Inciong filed a
petition with the Regional Trial Court of Quezon
City for issuance of letters of administration
concerning the estate of Arturo in favor of the
Philippine Trust Company. Respondent Blandina
Dandan (also referred to as Blandina Padlan),
claiming to be the surviving spouse of Arturo
Padlan, and Claro, Alexis, Ricardo, Emmanuel,
Zenaida and Yolanda, all surnamed Padlan, named
in the petition as surviving children of Arturo
Padlan, opposed the petition and prayed for the
appointment instead of Atty. Leonardo Cabasal,
which was resolved in favor of the latter. Upon
motion of the oppositors themselves, Atty. Cabasal
was later replaced by Higino Castillon. On 30 April
1973 the oppositors (Blandina and the Padlan
children) submitted certified photocopies of the 19
July 1950 private writing and the final judgment of
divorce between petitioner and Arturo. Later
Ruperto T. Padlan, claiming to be the sole surviving
brother of the deceased Arturo, intervened.
On 7 October 1987 petitioner moved for the
immediate declaration of heirs of the decedent and
the distribution of his estate. At the scheduled
hearing on 23 October 1987, private respondent as
well as the six (6) Padlan children and Ruperto
failed to appear despite due notice. On the same
day, the trial court required the submission of the
records of birth of the Padlan children within ten
(10) days from receipt thereof, after which, with or
without the documents, the issue on the declaration
of heirs would be considered submitted for
resolution. The prescribed period lapsed without
the required documents being submitted.
The trial court invoking Tenchavez v.
Escao[1] which held that "a foreign divorce between
Filipino citizens sought and
decreed after the effectivity of the present Civil
Code (Rep. Act 386) was not entitled to recognition
as valid in this jurisdiction,"[2] disregarded the
divorce between petitioner and
Arturo. Consequently, it expressed the view that
their marriage subsisted until the death of Arturo in
1972. Neither did it consider valid their extrajudicial
settlement of conjugal properties due to lack of
judicial approval.[3] On the other hand, it opined that
there was no showing that marriage existed
between private respondent and Arturo, much less
was it shown that the alleged Padlan children had
been acknowledged by the deceased as his
children with her. As regards Ruperto, it found that
he was a brother of Arturo. On 27 November
1987[4] only petitioner and Ruperto were declared
the intestate heirs of Arturo. Accordingly, equal
adjudication of the net hereditary estate was
ordered in favor of the two intestate heirs.[5]
On motion for reconsideration, Blandina and
the Padlan children were allowed to present proofs
that the recognition of the children by the deceased
as his legitimate children, except Alexis who was
recognized as his illegitimate child, had been made
in their respective records of birth.Thus on 15
February 1988[6] partial reconsideration was
granted declaring the Padlan children, with the
exception of Alexis, entitled to one-half of the estate
to the exclusion of Ruperto Padlan, and petitioner
to the other half.[7] Private respondent was not
declared an heir. Although it was stated in the
aforementioned records of birth that she and Arturo
were married on 22 April 1947, their marriage was
clearly void since it was celebrated during the
existence of his previous marriage to petitioner.
In their appeal to the Court of Appeals,
Blandina and her children assigned as one of the
errors allegedly committed by the trial court the
circumstance that the case was decided without a
hearing, in violation of Sec. 1, Rule 90, of the Rules
of Court, which provides that if there is a
controversy before the court as to who are the
lawful heirs of the deceased person or as to the
distributive shares to which each person is entitled
under the law, the controversy shall be heard and
decided as in ordinary cases.
Respondent appellate court found this ground
alone sufficient to sustain the appeal; hence, on 11
September 1995 it declared null and void the 27
November 1987 decision and 15 February 1988
order of the trial court, and directed the remand of
the case to the trial court for further
proceedings.[8] On 18 April 1996 it denied
reconsideration.[9]
Should this case be remanded to the lower
court for further proceedings? Petitioner insists that
there is no need because, first, no legal or factual
issue obtains for resolution either as to the heirship
of the Padlan children or as to their respective
shares in the intestate estate of the decedent; and,
second, the issue as to who between petitioner and
private respondent is the proper heir of the
decedent is one of law which can be resolved in the
present petition based on established facts and
admissions of the parties.
We cannot sustain petitioner. The provision
relied upon by respondent court is clear: If there is
a controversy before the court as to who are
the lawful heirs of the deceased person or as to the
distributive shares to which each person is entitled
under the law, the controversy shall be heard and
decided as in ordinary cases.
We agree with petitioner that no dispute exists
either as to the right of the six (6) Padlan children to
inherit from the decedent because there are proofs
that they have been duly acknowledged by him and
petitioner herself even recognizes them as heirs of
Arturo Padlan;[10] nor as to their respective
hereditary shares. But controversy remains as to
who is the legitimate surviving spouse of
Arturo. The trial court, after the parties other than
petitioner failed to appear during the scheduled
hearing on 23 October 1987 of the motion for
immediate declaration of heirs and distribution of
estate, simply issued an order requiring the
submission of the records of birth of the Padlan
children within ten (10) days from receipt thereof,
after which, with or without the documents, the
issue on declaration of heirs would be deemed
submitted for resolution.
We note that in her comment to petitioner's
motion private respondent raised, among others,
the issue as to whether petitioner was still entitled
to inherit from the decedent considering that she
had secured a divorce in the U.S.A. and in fact had
twice remarried. She also invoked the above
quoted procedural rule.[11] To this, petitioner replied
that Arturo was a Filipino and as such remained
legally married to her in spite of the divorce they
obtained.[12] Reading between the lines, the
implication is that petitioner was no longer a Filipino
citizen at the time of her divorce from Arturo. This
should have prompted the trial court to conduct a
hearing to establish her citizenship. The purpose of
a hearing is to ascertain the truth of the matters in
issue with the aid of documentary and testimonial
evidence as well as the arguments of the parties
either supporting or opposing the
evidence. Instead, the lower court perfunctorily
settled her claim in her favor by merely applying the
ruling in Tenchavez v. Escao.
Then in private respondent's motion to set
aside and/or reconsider the lower court's decision
she stressed that the citizenship of petitioner was
relevant in the light of the ruling in Van Dorn v.
Romillo Jr.[13] that aliens may obtain divorces
abroad, which may be recognized in the
Philippines, provided they are valid according to
their national law. She prayed therefore that the
case be set for hearing.[14] Petitioner opposed the
motion but failed to squarely address the issue on
her citizenship.[15] The trial court did not grant
private respondent's prayer for a hearing but
proceeded to resolve her motion with the finding
that both petitioner and Arturo were "Filipino
citizens and were married in the Philippines."[16] It
maintained that their divorce obtained in 1954 in
San Francisco, California, U.S.A., was not valid in
Philippine jurisdiction. We deduce that the finding
on their citizenship pertained solely to the time
of their marriage as the trial court was not supplied
with a basis to determine petitioner's citizenship at
the time of their divorce. The doubt persisted as to
whether she was still a Filipino citizen when their
divorce was decreed. The trial court must have
overlooked the materiality of this aspect. Once
proved that she was no longer a Filipino citizen at
the time of their divorce, Van Dorn would become
applicable and petitioner could very well lose her
right to inherit from Arturo.
Respondent again raised in her appeal the
issue on petitioner's citizenship;[17] it did not merit
enlightenment however from petitioner.[18] In the
present proceeding, petitioner's citizenship is
brought anew to the fore by private
respondent. She even furnishes the Court with the
transcript of stenographic notes taken on 5 May
1995 during the hearing for the reconstitution of the
original of a certain transfer certificate title as well
as the issuance of new owner's duplicate copy
thereof before another trial court. When asked of petitioner as the surviving spouse of Arturo
whether she was an American citizen petitioner Padlan.
answered that she was since 1954.[19] Significantly,
the decree of divorce of petitioner and Arturo was The motion to declare petitioner and her
obtained in the same year. Petitioner however did counsel in contempt of court and to dismiss the
not bother to file a reply memorandum to erase the present petition for forum shopping is DENIED.
uncertainty about her citizenship at the time of their SO ORDERED.
divorce, a factual issue requiring hearings to be
conducted by the trial court. Consequently,
respondent appellate court did not err in ordering
the case returned to the trial court for further
proceedings.
We emphasize however that the question to be
determined by the trial court should be limited only
to the right of petitioner to inherit from Arturo as his
surviving spouse. Private respondent's claim to
heirship was already resolved by the trial court. She
and Arturo were married on 22 April 1947 while the
prior marriage of petitioner and Arturo
was subsisting thereby resulting in a bigamous
marriage considered void from the beginning under
Arts. 80 and 83 of the Civil Code. Consequently,
she is not a surviving spouse that can inherit from
him as this status presupposes a legitimate
relationship.[20]
As regards the motion of private respondent for
petitioner and her counsel to be declared in
contempt of court and that the present petition be
dismissed for forum shopping,[21] the same lacks
merit. For forum shopping to exist the actions must
involve the same transactions and same essential
facts and circumstances. There must also be
identical causes of action, subject matter and
issue.[22] The present petition deals with declaration
of heirship while the subsequent petitions filed
before the three (3) trial courts concern the
issuance of new owner's duplicate copies of titles of
certain properties belonging to the estate of
Arturo. Obviously, there is no reason to declare the
existence of forum shopping.
WHEREFORE, the petition is DENIED. The
decision of respondent Court of Appeals ordering
the remand of the case to the court of origin for
further proceedings and declaring null and void its
decision holding petitioner Fe D. Quita and Ruperto
T. Padlan as intestate heirs isAFFIRMED. The
order of the appellate court modifying its previous
decision by granting one-half (1/2) of the net
hereditary estate to the Padlan children, namely,
Claro, Ricardo, Emmanuel, Zenaida and Yolanda,
with the exception of Alexis, all surnamed Padlan,
instead of Arturo's brotherRuperto Padlan, is
likewise AFFIRMED. The Court however
emphasizes that the reception of evidence by the
trial court should be limited to the hereditary rights
Republic of the Philippines
SUPREME COURT
Manila
FIRST DIVISION
G.R. No. 162580 January 27, 2006
ELMAR O. PEREZ, Petitioner,
vs.
COURT OF APPEALS, Fifth Division, TRISTAN
A. CATINDIG and LILY GOMEZ-
CATINDIG, Respondents.
DECISION
YNARES-SANTIAGO, J.:
This petition for certiorari and prohibition under
Rule 65 of the Rules of Court assails the July 25,
2003 Decision1of the Court of Appeals in CA-G.R.
SP No. 74456 which set aside and declared as null
and void the September 30, 2002 Order2 of the
Regional Trial Court of Quezon City, Branch 84,
granting petitioners motion for leave to file
intervention and admitting the Complaint-in-
Intervention3 in Civil Case No. Q-01-44847; and its
January 23, 2004 Resolution4 denying the motion
for reconsideration.
Private respondent Tristan A. Catindig married Lily
Gomez Catindig5 twice on May 16, 1968. The first
marriage ceremony was celebrated at the Central
Methodist Church at T.M. Kalaw Street, Ermita,
Manila while the second took place at the Lourdes
Catholic Church in La Loma, Quezon City. The
marriage produced four children.
Several years later, the couple encountered marital
problems that they decided to separate from each
other. Upon advice of a mutual friend, they decided
to obtain a divorce from the Dominican Republic.
Thus, on April 27, 1984, Tristan and Lily executed a
Special Power of Attorney addressed to the Judge
of the First Civil Court of San Cristobal, Dominican
Republic, appointing an attorney-in-fact to institute
a divorce action under its laws.6
Thereafter, on April 30, 1984, the private
respondents filed a joint petition for dissolution of
conjugal partnership with the Regional Trial Court
of Makati. On June 12, 1984, the civil court in the
Dominican Republic ratified the divorce by mutual
consent of Tristan and Lily. Subsequently, on June
23, 1984, the Regional Trial Court of Makati City,
Branch 133, ordered the complete separation of
properties between Tristan and Lily.
On July 14, 1984, Tristan married petitioner Elmar
O. Perez in the State of Virginia in the United
States7 and both lived as husband and wife until
October 2001. Their union produced one offspring.8
During their cohabitation, petitioner learned that the
divorce decree issued by the court in the
Dominican Republic which "dissolved" the marriage
between Tristan and Lily was not recognized in the
Philippines and that her marriage to Tristan was
deemed void under Philippine law. When she
confronted Tristan about this, the latter assured her
that he would legalize their union after he obtains
an annulment of his marriage with Lily. Tristan
further promised the petitioner that he would adopt
their son so that he would be entitled to an equal
share in his estate as that of each of his children
with Lily.9
On August 13, 2001, Tristan filed a petition for the
declaration of nullity of his marriage to Lily with the
Regional Trial Court of Quezon City, docketed as
Case No. Q-01-44847.
Subsequently, petitioner filed a Motion for Leave to
File Intervention10 claiming that she has a legal
interest in the matter in litigation because she
knows certain information which might aid the trial
court at a truthful, fair and just adjudication of the
annulment case, which the trial court granted on
September 30, 2002. Petitioners complaint-in-
intervention was also ordered admitted.
Tristan filed a petition for certiorari and prohibition
with the Court of Appeals seeking to annul the
order dated September 30, 2002 of the trial court.
The Court of Appeals granted the petition and
declared as null and void the September 30, 2002
Order of the trial court granting the motion for leave
to file intervention and admitting the complaint-in-
intervention.
Petitioners motion for reconsideration was denied,
hence this petition for certiorari and prohibition filed
under Rule 65 of the Rules of Court. Petitioner
contends that the Court of Appeals gravely abused
its discretion in disregarding her legal interest in the
annulment case between Tristan and Lily.
The petition lacks merit.
Ordinarily, the proper recourse of an aggrieved
party from a decision of the Court of Appeals is a
petition for review on certiorari under Rule 45 of the
Rules of Court. However, if the error subject of the
recourse is one of jurisdiction, or the act
complained of was granted by a court with grave
abuse of discretion amounting to lack or excess of
jurisdiction, as alleged in this case, the proper
remedy is a petition for certiorari under Rule 65 of
the said Rules.11 This is based on the premise that
in issuing the assailed decision and resolution, the
Court of Appeals acted with grave abuse of
discretion, amounting to excess of lack of
jurisdiction and there is no plain, speedy and
adequate remedy in the ordinary course of law. A
remedy is considered plain, speedy, and adequate
if it will promptly relieve the petitioner from the
injurious effect of the judgment and the acts of the
lower court.12
It is therefore incumbent upon the petitioner to
establish that the Court of Appeals acted with grave
abuse of discretion amounting to excess or lack of
jurisdiction when it promulgated the assailed
decision and resolution.
We have previously ruled that grave abuse of
discretion may arise when a lower court or tribunal
violates or contravenes the Constitution, the law or
existing jurisprudence. By grave abuse of discretion
is meant, such capricious and whimsical exercise of
judgment as is equivalent to lack of jurisdiction. The
abuse of discretion must be grave as where the
power is exercised in an arbitrary or despotic
manner by reason of passion or personal hostility
and must be so patent and gross as to amount to
an evasion of positive duty or to a virtual refusal to
perform the duty enjoined by or to act at all in
contemplation of law.13 The word "capricious,"
usually used in tandem with the term "arbitrary,"
conveys the notion of willful and unreasoning
action. Thus, when seeking the corrective hand of
certiorari, a clear showing of caprice and
arbitrariness in the exercise of discretion is
imperative.14
The Rules of Court laid down the parameters
before a person, not a party to a case can
intervene, thus:
Who may intervene. A person who has a legal
interest in the matter in litigation, or in the success
of either of the parties, or an interest against both,
or is so situated as to be adversely affected by a
distribution or other disposition of property in the
custody of the court or of an officer thereof may,
with leave of court, be allowed to intervene in the
action. The court shall consider whether or not the
intervention will unduly delay or prejudice the
adjudication of the rights of the original parties, and
whether or not the intervenors rights may be fully
protected in a separate proceeding.15
The requirements for intervention are: [a] legal
interest in the matter in litigation; and [b]
consideration must be given as to whether the
adjudication of the original parties may be delayed
or prejudiced, or whether the intervenors rights
may be protected in a separate proceeding or not.16
Legal interest, which entitles a person to intervene,
must be in the matter in litigation and of such direct
and immediate character that the intervenor will
either gain or lose by direct legal operation and
effect of the judgment.17 Such interest must be
actual, direct and material, and not simply
contingent and expectant.18
Petitioner claims that her status as the wife and
companion of Tristan for 17 years vests her with
the requisite legal interest required of a would-be
intervenor under the Rules of Court.
Petitioners claim lacks merit. Under the law,
petitioner was never the legal wife of Tristan, hence
her claim of legal interest has no basis.
When petitioner and Tristan married on July 14,
1984, Tristan was still lawfully married to Lily. The
divorce decree that Tristan and Lily obtained from
the Dominican Republic never dissolved the
marriage bond between them. It is basic that laws
relating to family rights and duties, or to the status,
condition and legal capacity of persons are binding
upon citizens of the Philippines, even though living
abroad.19 Regardless of where a citizen of the
Philippines might be, he or she will be governed by
Philippine laws with respect to his or her family
rights and duties, or to his or her status, condition
and legal capacity. Hence, if a Filipino regardless of
whether he or she was married here or abroad,
initiates a petition abroad to obtain an absolute
divorce from spouse and eventually becomes
successful in getting an absolute divorce decree,
the Philippines will not recognize such absolute
divorce.20
When Tristan and Lily married on May 18, 1968,
their marriage was governed by the provisions of
the Civil Code21 which took effect on August 30,
1950. In the case of Tenchavez v. Escano22 we
held:
(1) That a foreign divorce between Filipino citizens,
sought and decreed after the effectivity of the
present Civil Code (Rep. Act No. 386), is not
entitled to recognition as valid in this jurisdiction;
and neither is the marriage contracted with another
party by the divorced consort, subsequently to the
foreign decree of divorce, entitled to validity in the
country. (Emphasis added)

Thus, petitioners claim that she is the wife of

Tristan even if their marriage was celebrated
abroad lacks merit. Thus, petitioner never acquired
the legal interest as a wife upon which her motion
for intervention is based.

Since petitioners motion for leave to file

intervention was bereft of the indispensable
requirement of legal interest, the issuance by the
trial court of the order granting the same and
admitting the complaint-in-intervention was
attended with grave abuse of discretion.
Consequently, the Court of Appeals correctly set
aside and declared as null and void the said order.

WHEREFORE, the petition is DISMISSED. The

assailed Decision dated July 25, 2003 and
Resolution dated January 23, 2004 of the Court of
Appeals in CA-G.R. SP No. 74456 are AFFIRMED.

No pronouncement as to costs.

SO ORDERED.

CONSUELO YNARES-SANTIAGO
Associate Justice
Republic of the Philippines On June 20, 1974, Felicisimo married respondent
SUPREME COURT Felicidad San Luis, then surnamed Sagalongos,
Manila before Rev. Fr. William Meyer, Minister of the
United Presbyterian at Wilshire Boulevard, Los
THIRD DIVISION Angeles, California, U.S.A. 7 He had no children
with respondent but lived with her for 18 years from
G.R. No. 133743 February 6, 2007 the time of their marriage up to his death on
December 18, 1992.
EDGAR SAN LUIS, Petitioner,
vs. Thereafter, respondent sought the dissolution of
FELICIDAD SAN LUIS, Respondent. their conjugal partnership assets and the settlement
of Felicisimos estate. On December 17, 1993, she
x ---------------------------------------------------- x filed a petition for letters of administration 8 before
the Regional Trial Court of Makati City, docketed as
G.R. No. 134029 February 6, 2007 SP. Proc. No. M-3708 which was raffled to Branch
146 thereof.
RODOLFO SAN LUIS, Petitioner,
vs. Respondent alleged that she is the widow of
FELICIDAD SAGALONGOS alias FELICIDAD Felicisimo; that, at the time of his death, the
SAN LUIS, Respondent. decedent was residing at 100 San Juanico Street,
New Alabang Village, Alabang, Metro Manila; that
the decedents surviving heirs are respondent as
DECISION
legal spouse, his six children by his first marriage,
and son by his second marriage; that the decedent
YNARES-SANTIAGO, J.: left real properties, both conjugal and exclusive,
valued at P30,304,178.00 more or less; that the
Before us are consolidated petitions for review decedent does not have any unpaid debts.
assailing the February 4, 1998 Decision 1 of the Respondent prayed that the conjugal partnership
Court of Appeals in CA-G.R. CV No. 52647, which assets be liquidated and that letters of
reversed and set aside the September 12, administration be issued to her.
1995 2 and January 31, 1996 3Resolutions of the
Regional Trial Court of Makati City, Branch 134 in On February 4, 1994, petitioner Rodolfo San Luis,
SP. Proc. No. M-3708; and its May 15, 1998 one of the children of Felicisimo by his first
Resolution 4 denying petitioners motion for marriage, filed a motion to dismiss 9 on the grounds
reconsideration. of improper venue and failure to state a cause of
action. Rodolfo claimed that the petition for letters
The instant case involves the settlement of the of administration should have been filed in the
estate of Felicisimo T. San Luis (Felicisimo), who Province of Laguna because this was Felicisimos
was the former governor of the Province of Laguna. place of residence prior to his death. He further
During his lifetime, Felicisimo contracted three claimed that respondent has no legal personality to
marriages. His first marriage was with Virginia Sulit file the petition because she was only a mistress of
on March 17, 1942 out of which were born six Felicisimo since the latter, at the time of his death,
children, namely: Rodolfo, Mila, Edgar, Linda, was still legally married to Merry Lee.
Emilita and Manuel. On August 11, 1963, Virginia
predeceased Felicisimo. On February 15, 1994, Linda invoked the same
grounds and joined her brother Rodolfo in seeking
Five years later, on May 1, 1968, Felicisimo the dismissal10 of the petition. On February 28,
married Merry Lee Corwin, with whom he had a 1994, the trial court issued an Order 11 denying the
son, Tobias. However, on October 15, 1971, Merry two motions to dismiss.
Lee, an American citizen, filed a Complaint for
Divorce 5 before the Family Court of the First Unaware of the denial of the motions to dismiss,
Circuit, State of Hawaii, United States of America respondent filed on March 5, 1994 her
(U.S.A.), which issued a Decree Granting Absolute opposition 12 thereto. She submitted documentary
Divorce and Awarding Child Custody on December evidence showing that while Felicisimo exercised
14, 1973. 6 the powers of his public office in Laguna, he
regularly went home to their house in New Alabang
Village, Alabang, Metro Manila which they bought
sometime in 1982. Further, she presented the
decree of absolute divorce issued by the Family
Court of the First Circuit, State of Hawaii to prove
that the marriage of Felicisimo to Merry Lee had
already been dissolved. Thus, she claimed that
Felicisimo had the legal capacity to marry her by
virtue of paragraph 2, 13 Article 26 of the Family
Code and the doctrine laid down in Van Dorn v.
Romillo, Jr. 14
Thereafter, Linda, Rodolfo and herein petitioner
Edgar San Luis, separately filed motions for
reconsideration from the Order denying their
motions to dismiss. 15 They asserted that paragraph
2, Article 26 of the Family Code cannot be given
retroactive effect to validate respondents bigamous
marriage with Felicisimo because this would impair
vested rights in derogation of Article 256 16 of the
Family Code.
On April 21, 1994, Mila, another daughter of
Felicisimo from his first marriage, filed a motion to
disqualify Acting Presiding Judge Anthony E.
Santos from hearing the case.
On October 24, 1994, the trial court issued an
Order 17 denying the motions for reconsideration. It
ruled that respondent, as widow of the decedent,
possessed the legal standing to file the petition and
that venue was properly laid. Meanwhile, the
motion for disqualification was deemed moot and
academic 18 because then Acting Presiding Judge
Santos was substituted by Judge Salvador S.
Tensuan pending the resolution of said motion.
Mila filed a motion for inhibition 19 against Judge
Tensuan on November 16, 1994. On even date,
Edgar also filed a motion for reconsideration 20 from
the Order denying their motion for reconsideration
arguing that it does not state the facts and law on
which it was based.
On November 25, 1994, Judge Tensuan issued an
Order 21 granting the motion for inhibition. The case
was re-raffled to Branch 134 presided by Judge
Paul T. Arcangel.
On April 24, 1995, 22 the trial court required the
parties to submit their respective position papers on
the twin issues of venue and legal capacity of
respondent to file the petition. On May 5, 1995,
Edgar manifested 23 that he is adopting the
arguments and evidence set forth in his previous
motion for reconsideration as his position paper.
Respondent and Rodolfo filed their position papers
on June 14, 24 and June 20, 25 1995, respectively.
On September 12, 1995, the trial court dismissed
the petition for letters of administration. It held that,
at the time of his death, Felicisimo was the duly
elected governor and a resident of the Province of
Laguna. Hence, the petition should have been filed
in Sta. Cruz, Laguna and not in Makati City. It also
ruled that respondent was without legal capacity to
file the petition for letters of administration because
her marriage with Felicisimo was bigamous, thus,
void ab initio. It found that the decree of absolute
divorce dissolving Felicisimos marriage to Merry
Lee was not valid in the Philippines and did not
bind Felicisimo who was a Filipino citizen. It also
ruled that paragraph 2, Article 26 of the Family
Code cannot be retroactively applied because it
would impair the vested rights of Felicisimos
legitimate children.
Respondent moved for reconsideration 26 and for
the disqualification 27 of Judge Arcangel but said
motions were denied. 28
Respondent appealed to the Court of Appeals
which reversed and set aside the orders of the trial
court in its assailed Decision dated February 4,
1998, the dispositive portion of which states:
WHEREFORE, the Orders dated September 12,
1995 and January 31, 1996 are hereby
REVERSED and SET ASIDE; the Orders dated
February 28 and October 24, 1994 are
REINSTATED; and the records of the case is
REMANDED to the trial court for further
proceedings. 29
The appellante court ruled that under Section 1,
Rule 73 of the Rules of Court, the term "place of
residence" of the decedent, for purposes of fixing
the venue of the settlement of his estate, refers to
the personal, actual or physical habitation, or actual
residence or place of abode of a person as
distinguished from legal residence or domicile. It
noted that although Felicisimo discharged his
functions as governor in Laguna, he actually
resided in Alabang, Muntinlupa. Thus, the petition
for letters of administration was properly filed in
Makati City.
The Court of Appeals also held that Felicisimo had
legal capacity to marry respondent by virtue of
paragraph 2, Article 26 of the Family Code and the
rulings in Van Dorn v. Romillo, Jr. 30 and Pilapil v.
Ibay-Somera. 31 It found that the marriage between
Felicisimo and Merry Lee was validly dissolved by
virtue of the decree of absolute divorce issued by
the Family Court of the First Circuit, State of
Hawaii. As a result, under paragraph 2, Article 26,
Felicisimo was capacitated to contract a
subsequent marriage with respondent. Thus
With the well-known rule express mandate of
paragraph 2, Article 26, of the Family Code of the
Philippines, the doctrines in Van Dorn, Pilapil, and
the reason and philosophy behind the enactment of
E.O. No. 227, there is no justiciable reason to
sustain the individual view sweeping statement
of Judge Arc[h]angel, that "Article 26, par. 2 of
the Family Code, contravenes the basic policy of
our state against divorce in any form whatsoever."
Indeed, courts cannot deny what the law grants. All
that the courts should do is to give force and effect
to the express mandate of the law. The foreign
divorce having been obtained by the Foreigner on
December 14, 1992,32 the Filipino divorcee, "shall x
x x have capacity to remarry under Philippine laws".
For this reason, the marriage between the
deceased and petitioner should not be
denominated as "a bigamous marriage.
Therefore, under Article 130 of the Family Code,
the petitioner as the surviving spouse can institute
the judicial proceeding for the settlement of the
estate of the deceased. x x x 33
Edgar, Linda, and Rodolfo filed separate motions
for reconsideration 34 which were denied by the
Court of Appeals.
On July 2, 1998, Edgar appealed to this Court via
the instant petition for review on
certiorari. 35 Rodolfo later filed a manifestation and
motion to adopt the said petition which was
granted. 36
In the instant consolidated petitions, Edgar and
Rodolfo insist that the venue of the subject petition
for letters of administration was improperly laid
because at the time of his death, Felicisimo was a
resident of Sta. Cruz, Laguna. They contend that
pursuant to our rulings in Nuval v. Guray 37 and
Romualdez v. RTC, Br. 7, Tacloban
38
City, "residence" is synonymous with "domicile"
which denotes a fixed permanent residence to
which when absent, one intends to return. They
claim that a person can only have one domicile at
any given time. Since Felicisimo never changed his
domicile, the petition for letters of administration
should have been filed in Sta. Cruz, Laguna.
Petitioners also contend that respondents marriage
to Felicisimo was void and bigamous because it
was performed during the subsistence of the latters
marriage to Merry Lee. They argue that paragraph
2, Article 26 cannot be retroactively applied
because it would impair vested rights and ratify the
void bigamous marriage. As such, respondent
cannot be considered the surviving wife of
Felicisimo; hence, she has no legal capacity to file
the petition for letters of administration.
The issues for resolution: (1) whether venue was
properly laid, and (2) whether respondent has legal
capacity to file the subject petition for letters of
administration.
The petition lacks merit.
Under Section 1, 39 Rule 73 of the Rules of Court,
the petition for letters of administration of the estate
of Felicisimo should be filed in the Regional Trial
Court of the province "in which he resides at the
time of his death." In the case of Garcia Fule v.
Court of Appeals, 40 we laid down the doctrinal rule
for determining the residence as
contradistinguished from domicile of the decedent
for purposes of fixing the venue of the settlement of
his estate:
[T]he 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. Even where the statute uses the
word "domicile" still it is construed as meaning
residence and not domicile in the technical sense.
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." 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. It
signifies physical presence in a place and actual
stay thereat. In this popular sense, the term means
merely residence, that is, personal residence, not
legal residence or domicile. Residence simply
requires bodily presence as an inhabitant in a given
place, while domicile requires bodily presence in
that place and also an intention to make it ones
domicile. No particular length of time of residence is
required though; however, the residence must be
more than temporary. 41 (Emphasis supplied)
It is incorrect for petitioners to argue that
"residence," for purposes of fixing the venue of the
settlement of the estate of Felicisimo, is
synonymous with "domicile." The rulings in Nuval
and Romualdez are inapplicable to the instant case
because they involve election cases. Needless to
say, there is a distinction between "residence" for
purposes of election laws and "residence" for
purposes of fixing the venue of actions. In election
cases, "residence" and "domicile" are treated as
synonymous terms, that is, the fixed permanent
residence to which when absent, one has the
intention of returning. 42 However, for purposes of
fixing venue under the Rules of Court, the
"residence" of a person is his personal, actual or
physical habitation, or actual residence or place of
abode, which may not necessarily be his legal
residence or domicile provided he resides therein
with continuity and consistency. 43 Hence, it is
possible that a person may have his residence in
one place and domicile in another.
In the instant case, while petitioners established
that Felicisimo was domiciled in Sta. Cruz, Laguna,
respondent proved that he also maintained a
residence in Alabang, Muntinlupa from 1982 up to
the time of his death. Respondent submitted in
evidence the Deed of Absolute Sale 44 dated
January 5, 1983 showing that the deceased
purchased the aforesaid property. She also
presented billing statements 45 from the Philippine
Heart Center and Chinese General Hospital for the
period August to December 1992 indicating the
address of Felicisimo at "100 San Juanico, Ayala
Alabang, Muntinlupa." Respondent also presented
proof of membership of the deceased in the Ayala
Alabang Village Association 46 and Ayala Country
Club, Inc., 47 letter-envelopes 48from 1988 to 1990
sent by the deceaseds children to him at his
Alabang address, and the deceaseds calling
cards 49 stating that his home/city address is at
"100 San Juanico, Ayala Alabang Village,
Muntinlupa" while his office/provincial address is in
"Provincial Capitol, Sta. Cruz, Laguna."
From the foregoing, we find that Felicisimo was a
resident of Alabang, Muntinlupa for purposes of
fixing the venue of the settlement of his estate.
Consequently, the subject petition for letters of
administration was validly filed in the Regional Trial
Court 50 which has territorial jurisdiction over
Alabang, Muntinlupa. The subject petition was filed
on December 17, 1993. At that time, Muntinlupa
was still a municipality and the branches of the
Regional Trial Court of the National Capital Judicial
Region which had territorial jurisdiction over
Muntinlupa were then seated in Makati City as per
Supreme Court Administrative Order No. 3. 51 Thus,
the subject petition was validly filed before the
Regional Trial Court of Makati City.
Anent the issue of respondent Felicidads legal
personality to file the petition for letters of
administration, we must first resolve the issue of
whether a Filipino who is divorced by his alien
spouse abroad may validly remarry under the Civil
Code, considering that Felicidads marriage to
Felicisimo was solemnized on June 20, 1974, or
before the Family Code took effect on August 3,
1988. In resolving this issue, we need not
retroactively apply the provisions of the Family
Code, particularly Art. 26, par. (2) considering that
there is sufficient jurisprudential basis allowing us
to rule in the affirmative.
The case of Van Dorn v. Romillo, Jr. 52 involved a
marriage between a foreigner and his Filipino wife,
which marriage was subsequently dissolved
through a divorce obtained abroad by the latter.
Claiming that the divorce was not valid under
Philippine law, the alien spouse alleged that his
interest in the properties from their conjugal
partnership should be protected. The Court,
however, recognized the validity of the divorce and
held that the alien spouse had no interest in the
properties acquired by the Filipino wife after the
divorce. Thus:
In this case, the divorce in Nevada released private
respondent from the marriage from the standards of
American law, under which divorce dissolves the
marriage. As stated by the Federal Supreme Court
of the United States in Atherton vs. Atherton, 45 L.
Ed. 794, 799:
"The purpose and effect of a decree of divorce from
the bond of matrimony by a competent jurisdiction
are to change the existing status or domestic
relation of husband and wife, and to free them both
from the bond. The marriage tie, when thus
severed as to one party, ceases to bind either. A
husband without a wife, or a wife without a
husband, is unknown to the law. When the law
provides, in the nature of a penalty, that the guilty
party shall not marry again, that party, as well as
the other, is still absolutely freed from the bond of
the former marriage."
Thus, pursuant to his national law, private
respondent is no longer the husband of petitioner.
He would have no standing to sue in the case
below as petitioners husband entitled to exercise
control over conjugal assets. As he is bound by the
Decision of his own countrys Court, which validly
exercised jurisdiction over him, and whose decision
he does not repudiate, he is estopped by his own
representation before said Court from asserting his
right over the alleged conjugal property. 53
As to the effect of the divorce on the Filipino wife,
the Court ruled that she should no longer be
considered married to the alien spouse. Further,
she should not be required to perform her marital
duties and obligations. It held:
To maintain, as private respondent does, that,
under our laws, petitioner has to be
considered still married to private
respondent and still subject to a wife's
obligations under Article 109, et. seq. of the
Civil Code cannot be just. Petitioner should not
be obliged to live together with, observe respect
and fidelity, and render support to private
respondent. The latter should not continue to be
one of her heirs with possible rights to conjugal
property. She should not be discriminated
against in her own country if the ends of justice
are to be served. 54 (Emphasis added)
This principle was thereafter applied in Pilapil v.
Ibay-Somera 55 where the Court recognized the
validity of a divorce obtained abroad. In the said
case, it was held that the alien spouse is not a
proper party in filing the adultery suit against his
Filipino wife. The Court stated that "the severance
of the marital bond had the effect of dissociating the
former spouses from each other, hence the
actuations of one would not affect or cast obloquy
on the other." 56
Likewise, in Quita v. Court of Appeals, 57 the Court
stated that where a Filipino is divorced by his
naturalized foreign spouse, the ruling in Van
Dorn applies. 58 Although decided on December 22,
1998, the divorce in the said case was obtained in
1954 when the Civil Code provisions were still in
effect.
The significance of the Van Dorn case to the
development of limited recognition of divorce in the
Philippines cannot be denied. The ruling has long
been interpreted as severing marital ties between
parties in a mixed marriage and capacitating the
Filipino spouse to remarry as a necessary
consequence of upholding the validity of a divorce
obtained abroad by the alien spouse. In his treatise,
Dr. Arturo M. Tolentino cited Van Dorn stating that
"if the foreigner obtains a valid foreign divorce, the
Filipino spouse shall have capacity to remarry
under Philippine law." 59 In Garcia v. Recio, 60 the
Court likewise cited the aforementioned case in
relation to Article 26. 61
In the recent case of Republic v. Orbecido III, 62 the
historical background and legislative intent behind
paragraph 2, Article 26 of the Family Code were
discussed, to wit:
Brief Historical Background
On July 6, 1987, then President Corazon Aquino
signed into law Executive Order No. 209, otherwise
known as the "Family Code," which took effect on
August 3, 1988. Article 26 thereof states:
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, 37, and 38.
On July 17, 1987, shortly after the signing of the
original Family Code, Executive Order No. 227 was
likewise signed into law, amending Articles 26, 36,
and 39 of the Family Code. A second paragraph
was added to Article 26. As so amended, it now
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 have capacity to remarry
under Philippine law. (Emphasis supplied)
x x x x
Legislative Intent
Records of the proceedings of the Family Code
deliberations showed that the intent of Paragraph 2
of Article 26, according to Judge Alicia Sempio-Diy,
a member of the Civil Code Revision Committee, is
to avoid the absurd situation where the Filipino
spouse remains married to the alien spouse who,
after obtaining a divorce, is no longer married to the
Filipino spouse.
Interestingly, Paragraph 2 of Article 26 traces
its origin to the 1985 case of Van Dorn v.
Romillo, Jr. The Van Dorn case involved a
marriage between a Filipino citizen and a
foreigner. The Court held therein that a divorce
decree validly obtained by the alien spouse is
valid in the Philippines, and consequently, the
Filipino spouse is capacitated to remarry under
Philippine law. 63 (Emphasis added)
As such, the Van Dorn case is sufficient basis in
resolving a situation where a divorce is validly
obtained abroad by the alien spouse. With the
enactment of the Family Code and paragraph 2,
Article 26 thereof, our lawmakers codified the law
already established through judicial
precedent.1awphi1.net
Indeed, when the object of a marriage is defeated
by rendering its continuance intolerable to one of
the parties and productive of no possible good to
the community, relief in some way should be
obtainable. 64 Marriage, being a mutual and shared
commitment between two parties, cannot possibly
be productive of any good to the society where one
is considered released from the marital bond while
the other remains bound to it. Such is the state of
affairs where the alien spouse obtains a valid
divorce abroad against the Filipino spouse, as in
this case.
Petitioners cite Articles 15 65 and 17 66 of the Civil
Code in stating that the divorce is void under
Philippine law insofar as Filipinos are concerned.
However, in light of this Courts rulings in the cases
discussed above, the Filipino spouse should not be
discriminated against in his own country if the ends
of justice are to be served. 67 In Alonzo v.
Intermediate Appellate Court, 68 the Court stated:
But as has also been aptly observed, we test a law
by its results; and likewise, we may add, by its
purposes. It is a cardinal rule that, in seeking the
meaning of the law, the first concern of the judge
should be to discover in its provisions the intent of
the lawmaker. Unquestionably, the law should
never be interpreted in such a way as to cause
injustice as this is never within the legislative intent.
An indispensable part of that intent, in fact, for we
presume the good motives of the legislature, is
to render justice.
Thus, we interpret and apply the law not
independently of but in consonance with justice.
Law and justice are inseparable, and we must keep
them so. To be sure, there are some laws that,
while generally valid, may seem arbitrary when
applied in a particular case because of its peculiar
circumstances. In such a situation, we are not
bound, because only of our nature and functions, to
apply them just the same, in slavish obedience to
their language. What we do instead is find a
balance between the word and the will, that justice
may be done even as the law is obeyed.
As judges, we are not automatons. We do not and
must not unfeelingly apply the law as it is worded,
yielding like robots to the literal command without
regard to its cause and consequence. "Courts are
apt to err by sticking too closely to the words of a
law," so we are warned, by Justice Holmes again,
"where these words import a policy that goes
beyond them."
xxxx
More than twenty centuries ago, Justinian defined
justice "as the constant and perpetual wish to
render every one his due." That wish continues to
motivate this Court when it assesses the facts and
the law in every case brought to it for decision.
Justice is always an essential ingredient of its
decisions. Thus when the facts warrants, we
interpret the law in a way that will render justice,
presuming that it was the intention of the lawmaker,
to begin with, that the law be dispensed with
justice. 69
Applying the above doctrine in the instant case, the
divorce decree allegedly obtained by Merry Lee
which absolutely allowed Felicisimo to remarry,
would have vested Felicidad with the legal
personality to file the present petition as
Felicisimos surviving spouse. However, the
records show that there is insufficient evidence to
prove the validity of the divorce obtained by Merry
Lee as well as the marriage of respondent and
Felicisimo under the laws of the U.S.A. In Garcia v.
Recio, 70 the Court laid down the specific guidelines
for pleading and proving foreign law and divorce
judgments. It held that presentation solely of the
divorce decree is insufficient and that proof of its
authenticity and due execution must be presented.
Under Sections 24 and 25 of Rule 132, a writing or
document may be proven as a public or official
record of a foreign country by either (1) an official
publication or (2) a copy thereof attested by the
officer having legal custody of the document. If the
record is not kept in the Philippines, such copy
must be (a) accompanied by a certificate issued by
the proper diplomatic or consular officer in the
Philippine foreign service stationed in the foreign
country in which the record is kept and (b)
authenticated by the seal of his office. 71
With regard to respondents marriage to Felicisimo
allegedly solemnized in California, U.S.A., she
submitted photocopies of the Marriage Certificate
and the annotated text 72 of the Family Law Act of
California which purportedly show that their
marriage was done in accordance with the said law.
As stated in Garcia, however, the Court cannot take
judicial notice of foreign laws as they must be
alleged and proved. 73
Therefore, this case should be remanded to the trial
court for further reception of evidence on the
divorce decree obtained by Merry Lee and the
marriage of respondent and Felicisimo.
Even assuming that Felicisimo was not capacitated
to marry respondent in 1974, nevertheless, we find
that the latter has the legal personality to file the
subject petition for letters of administration, as she
may be considered the co-owner of Felicisimo as
regards the properties that were acquired through
their joint efforts during their cohabitation.
74
Section 6, Rule 78 of the Rules of Court states
that letters of administration may be granted to the
surviving spouse of the decedent. However,
Section 2, Rule 79 thereof also provides in part:
SEC. 2. Contents of petition for letters of
administration. A petition for letters of
administration must be filed by an interested person
and must show, as far as known to the petitioner: x
x x.
An "interested person" has been defined as one
who would be benefited by the estate, such as an
heir, or one who has a claim against the estate,
such as a creditor. The interest must be material
and direct, and not merely indirect or contingent. 75
In the instant case, respondent would qualify as an
interested person who has a direct interest in the
estate of Felicisimo by virtue of their cohabitation,
the existence of which was not denied by
petitioners. If she proves the validity of the divorce
and Felicisimos capacity to remarry, but fails to
prove that her marriage with him was validly
performed under the laws of the U.S.A., then she
may be considered as a co-owner under Article
144 76 of the Civil Code. This provision governs the
property relations between parties who live together
as husband and wife without the benefit of
marriage, or their marriage is void from the
beginning. It provides that the property acquired by
either or both of them through their work or industry
or their wages and salaries shall be governed by
the rules on co-ownership. In a co-ownership, it is
not necessary that the property be acquired
through their joint labor, efforts and industry. Any
property acquired during the union is prima
facie presumed to have been obtained through their
joint efforts. Hence, the portions belonging to the
co-owners shall be presumed equal, unless the
contrary is proven. 77
Meanwhile, if respondent fails to prove the validity
of both the divorce and the marriage, the applicable
provision would be Article 148 of the Family Code
which has filled the hiatus in Article 144 of the Civil
Code by expressly regulating the property relations
of couples living together as husband and wife but
are incapacitated to marry. 78In Saguid v. Court of
Appeals, 79 we held that even if the cohabitation or
the acquisition of property occurred before the
Family Code took effect, Article 148 governs. 80 The
Court described the property regime under this
provision as follows:
The regime of limited co-ownership of property
governing the union of parties who are not legally
capacitated to marry each other, but who
nonetheless live together as husband and wife,
applies to properties acquired during said
cohabitation in proportion to their respective
contributions. Co-ownership will only be up to the
extent of the proven actual contribution of money,
property or industry. Absent proof of the extent
thereof, their contributions and corresponding
shares shall be presumed to be equal.
xxxx
In the cases of Agapay v. Palang, and Tumlos v.
Fernandez, which involved the issue of co-
ownership of properties acquired by the parties to a
bigamous marriage and an adulterous relationship,
respectively, we ruled that proof of actual
contribution in the acquisition of the property is
essential. x x x
As in other civil cases, the burden of proof rests
upon the party who, as determined by the
pleadings or the nature of the case, asserts an
affirmative issue. Contentions must be proved by
competent evidence and reliance must be had on
the strength of the partys own evidence and not
upon the weakness of the opponents defense. x x
x81

In view of the foregoing, we find that respondents

legal capacity to file the subject petition for letters of
administration may arise from her status as the
surviving wife of Felicisimo or as his co-owner
under Article 144 of the Civil Code or Article 148 of
the Family Code.

WHEREFORE, the petition is DENIED. The

Decision of the Court of Appeals reinstating and
affirming the February 28, 1994 Order of the
Regional Trial Court which denied petitioners
motion to dismiss and its October 24, 1994 Order
which dismissed petitioners motion for
reconsideration is AFFIRMED. Let this case be
REMANDED to the trial court for further
proceedings.

SO ORDERED.

CONSUELO YNARES-SANTIAGO
Associate Justice

WE CONCUR:
Republic of the Philippines
SUPREME COURT
Manila
FIRST DIVISION
G.R. No. 171914 July 23, 2014
SOLEDAD L. LAVADIA, Petitioner,
vs.
HEIRS OF JUAN LUCES LUNA, represented by
GREGORIO Z. LUNA and EUGENIA
ZABALLERO-LUNA, Respondents.
DECISION
BERSAMIN, J.:
Divorce between Filipinos is void and ineffectual
under the nationality rule adopted by Philippine law.
Hence, any settlement of property between the
parties of the first marriage involving Filipinos
submitted as an incident of a divorce obtained in a
foreign country lacks competent judicial approval,
and cannot be enforceable against the assets of
the husband who contracts a subsequent marriage.
The Case
The petitioner, the second wife of the late Atty.
Juan Luces Luna, appeals the adverse decision
promulgated on November 11, 2005,1 whereby the
Court of Appeals (CA) affirmed with modification
the decision rendered on August 27, 2001 by the
Regional Trial Court (RTC), Branch 138, in Makati
City.2 The CA thereby denied her right in the
25/100 pro indiviso share of the husband in a
condominium unit, and in the law books of the
husband acquired during the second marriage.
Antecedents
The antecedent facts were summarized by the CA
as follows:
ATTY. LUNA, a practicing lawyer, was at first a
name partner in the prestigious law firm Sycip,
Salazar, Luna, Manalo, Hernandez & Feliciano Law
Offices at that time when he was living with his first
wife, herein intervenor-appellant Eugenia
Zaballero-Luna (EUGENIA), whom he initially
married ina civil ceremony conducted by the Justice
of the Peace of Paraaque, Rizal on September 10,
1947 and later solemnized in a church ceremony at
the Pro-Cathedral in San Miguel, Bulacan on
September 12, 1948. In ATTY. LUNAs marriage to
EUGENIA, they begot seven (7) children, namely:
Regina Maria L. Nadal, Juan Luis Luna, Araceli
Victoria L. Arellano, Ana Maria L. Tabunda,
Gregorio Macario Luna, Carolina Linda L. Tapia,
and Cesar Antonio Luna. After almost two (2)
decades of marriage, ATTY. LUNA and EUGENIA
eventually agreed to live apart from each other in
February 1966 and agreed to separation of
property, to which end, they entered into a written
agreement entitled "AGREEMENT FOR
SEPARATION AND PROPERTY SETTLEMENT"
dated November 12, 1975, whereby they agreed to
live separately and to dissolve and liquidate their
conjugal partnership of property.
On January 12, 1976, ATTY. LUNA obtained a
divorce decree of his marriage with EUGENIA from
the Civil and Commercial Chamber of the First
Circumscription of the Court of First Instance of
Sto. Domingo, Dominican Republic. Also in
Sto.Domingo, Dominican Republic, on the same
date, ATTY. LUNA contracted another marriage,
this time with SOLEDAD. Thereafter, ATTY. LUNA
and SOLEDAD returned to the Philippines and lived
together as husband and wife until 1987.
Sometime in 1977, ATTY. LUNA organized a new
law firm named: Luna, Puruganan, Sison and
Ongkiko (LUPSICON) where ATTY. LUNA was the
managing partner.
On February 14, 1978, LUPSICON through ATTY.
LUNA purchased from Tandang Sora Development
Corporation the 6th Floor of Kalaw-Ledesma
Condominium Project(condominium unit) at
Gamboa St., Makati City, consisting of 517.52
square meters, for P1,449,056.00, to be paid on
installment basis for 36months starting on April 15,
1978. Said condominium unit was to be usedas law
office of LUPSICON. After full payment, the Deed
of Absolute Sale over the condominium unit was
executed on July 15, 1983, and CCT No. 4779 was
issued on August 10, 1983, which was registered
bearing the following names:
"JUAN LUCES LUNA, married to Soledad L. Luna
(46/100); MARIO E. ONGKIKO, married to Sonia
P.G. Ongkiko (25/100); GREGORIO R.
PURUGANAN, married to Paz A. Puruganan
(17/100); and TERESITA CRUZ SISON, married to
Antonio J.M. Sison (12/100) x x x" Subsequently,
8/100 share of ATTY. LUNA and 17/100 share of
Atty. Gregorio R. Puruganan in the condominium
unit was sold to Atty. Mario E. Ongkiko, for which a
new CCT No. 21761 was issued on February 7,
1992 in the following names:
"JUAN LUCES LUNA, married to Soledad L. Luna
(38/100); MARIO E. ONGKIKO, married to Sonia
P.G. Ongkiko (50/100); TERESITA CRUZ SISON,
married to Antonio J.M. Sison (12/100) x x x"
Sometime in 1992, LUPSICON was dissolved and
the condominium unit was partitioned by the
partners but the same was still registered in
common under CCT No. 21716. The parties
stipulated that the interest of ATTY. LUNA over the
condominium unit would be 25/100 share. ATTY.
LUNA thereafter established and headed another
law firm with Atty. Renato G. Dela Cruzand used a
portion of the office condominium unit as their
office. The said law firm lasted until the death of
ATTY. JUAN on July 12, 1997.
After the death of ATTY. JUAN, his share in the
condominium unit including the lawbooks, office
furniture and equipment found therein were taken
over by Gregorio Z. Luna, ATTY. LUNAs son of the
first marriage. Gregorio Z. Luna thenleased out the
25/100 portion of the condominium unit belonging
to his father to Atty. Renato G. De la Cruz who
established his own law firm named Renato G. De
la Cruz & Associates.
The 25/100 pro-indiviso share of ATTY. Luna in the
condominium unit as well as the law books, office
furniture and equipment became the subject of the
complaint filed by SOLEDAD against the heirs of
ATTY. JUAN with the RTC of Makati City, Branch
138, on September 10, 1999, docketed as Civil
Case No. 99-1644. The complaint alleged that the
subject properties were acquired during the
existence of the marriage between ATTY. LUNA
and SOLEDAD through their joint efforts that since
they had no children, SOLEDAD became co-owner
of the said properties upon the death of ATTY.
LUNA to the extent of pro-indiviso share
consisting of her share in the said properties plus
her share in the net estate of ATTY. LUNA which
was bequeathed to her in the latters last will and
testament; and thatthe heirs of ATTY. LUNA
through Gregorio Z. Luna excluded SOLEDAD from
her share in the subject properties. The complaint
prayed that SOLEDAD be declared the owner of
the portion of the subject properties;that the
same be partitioned; that an accounting of the
rentals on the condominium unit pertaining to the
share of SOLEDAD be conducted; that a receiver
be appointed to preserve ad administer the subject
properties;and that the heirs of ATTY. LUNA be
ordered to pay attorneys feesand costs of the suit
to SOLEDAD.3
Ruling of the RTC
On August 27, 2001, the RTC rendered its decision
after trial upon the aforementioned facts,4 disposing
thusly:
WHEREFORE, judgment is rendered as follows:
(a) The 24/100 pro-indiviso share in the
condominium unit located at the SIXTH
FLOOR of the KALAW LEDESMA
CONDOMINIUM PROJECT covered by
Condominium Certificate of Title No. 21761
consisting of FIVE HUNDRED
SEVENTEEN (517/100) SQUARE METERS
is adjudged to have been acquired by Juan
Lucas Luna through his sole industry;
(b) Plaintiff has no right as owner or under
any other concept over the condominium
unit, hence the entry in Condominium
Certificate of Title No. 21761 of the Registry
of Deeds of Makati with respect to the civil
status of Juan Luces Luna should be
changed from "JUAN LUCES LUNA married
to Soledad L. Luna" to "JUAN LUCES
LUNA married to Eugenia Zaballero Luna";
(c) Plaintiff is declared to be the owner of
the books Corpus Juris, Fletcher on
Corporation, American Jurisprudence and
Federal Supreme Court Reports found in
the condominium unit and defendants are
ordered to deliver them to the plaintiff as
soon as appropriate arrangements have
been madefor transport and storage.
No pronouncement as to costs.
SO ORDERED.5
Decision of the CA
Both parties appealed to the CA.6
On her part, the petitioner assigned the following
errors to the RTC, namely:
I. THE LOWER COURT ERRED IN
RULING THAT THE CONDOMINIUM UNIT
WAS ACQUIRED THRU THE SOLE
INDUSTRY OF ATTY. JUAN LUCES LUNA;
II. THE LOWER COURT ERRED IN
RULING THAT PLAINTIFFAPPELLANT
DID NOT CONTRIBUTE MONEY FOR THE
ACQUISITION OF THE CONDOMINIUM
UNIT;
III. THE LOWER COURT ERRED IN
GIVING CREDENCE TO PORTIONS OF
THE TESTIMONY OF GREGORIO LUNA,
WHO HAS NO ACTUAL KNOWLEDGE OF
THE ACQUISITION OF THE UNIT, BUT
IGNORED OTHER PORTIONS OF HIS
TESTIMONY FAVORABLE TO THE
PLAINTIFF-APPELLANT;
IV. THE LOWER COURT ERRED IN NOT
GIVING SIGNIFICANCE TO THE FACT
THAT THE CONJUGAL PARTNERSHIP
BETWEEN LUNA AND INTERVENOR-
APPELLANT WAS ALREADY DISSOLVED
AND LIQUIDATED PRIOR TO THE UNION
OF PLAINTIFF-APPELLANT AND LUNA;
V. THE LOWER COURT ERRED IN
GIVING UNDUE SIGNIFICANCE TO THE
ABSENCE OF THE DISPOSITION OF THE
CONDOMINIUM UNIT IN THE
HOLOGRAPHIC WILL OF THE PLAINTIFF-
APPELLANT;
VI. THE LOWER COURT ERRED IN
GIVING UNDUE SIGNIFICANCE TO THE
FACTTHAT THE NAME OF PLAINTIFF-
APPELLANT DID NOT APPEAR IN THE
DEED OF ABSOLUTE SALE EXECUTED
BY TANDANG SORA DEVELOPMENT
CORPORATION OVER THE
CONDOMINIUM UNIT;
VII. THE LOWER COURT ERRED IN
RULING THAT NEITHER ARTICLE 148 OF
THE FAMILYCODE NOR ARTICLE 144 OF
THE CIVIL CODE OF THE PHILIPPINES
ARE APPLICABLE;
VIII. THE LOWER COURT ERRED IN NOT
RULING THAT THE CAUSE OF ACTION
OF THE INTERVENOR-APPELLANT HAS
BEEN BARRED BY PESCRIPTION AND
LACHES; and
IX. THE LOWER COURT ERRED IN NOT
EXPUNGING/DISMISSING THE
INTERVENTION FOR FAILURE OF
INTERVENOR-APPELLANT TO PAY
FILING FEE.7
In contrast, the respondents attributedthe following
errors to the trial court, to wit:
I. THE LOWER COURT ERRED IN
HOLDING THAT CERTAIN FOREIGN LAW
BOOKS IN THE LAW OFFICE OF ATTY.
LUNA WERE BOUGHT WITH THE USE OF
PLAINTIFFS MONEY;
II. THE LOWER COURT ERRED IN
HOLDING THAT PLAINTIFF PROVED BY
PREPONDERANCE OF EVIDENCE (HER
CLAIM OVER) THE SPECIFIED FOREIGN
LAW BOOKS FOUND IN ATTY. LUNAS
LAW OFFICE; and
III. THE LOWER COURT ERRED IN NOT
HOLDING THAT, ASSUMING PLAINTIFF
PAID FOR THE SAID FOREIGN LAW
BOOKS, THE RIGHT TO RECOVER THEM
HAD PRESCRIBED AND BARRED BY
LACHES AND ESTOPPEL.8
On November 11, 2005, the CA promulgated its
assailed modified decision,9 holding and ruling:
EUGENIA, the first wife, was the legitimate wife of
ATTY. LUNA until the latters death on July 12,
1997. The absolute divorce decree obtained by
ATTY. LUNA inthe Dominican Republic did not
terminate his prior marriage with EUGENIA
because foreign divorce between Filipino citizens is
not recognized in our jurisdiction. x x x10
xxxx
WHEREFORE, premises considered, the assailed
August 27, 2001 Decision of the RTC of MakatiCity,
Branch 138, is hereby MODIFIEDas follows:
(a) The 25/100 pro-indiviso share in the
condominium unit at the SIXTH FLOOR of
the KALAW LEDESMA CONDOMINIUM
PROJECT covered by Condominium
Certificate of Title No. 21761 consisting of
FIVE HUNDRED SEVENTEEN (517/100)
(sic) SQUARE METERS is hereby adjudged
to defendants-appellants, the heirs of Juan
Luces Luna and Eugenia Zaballero-Luna
(first marriage), having been acquired from
the sole funds and sole industry of Juan
Luces Luna while marriage of Juan Luces
Luna and Eugenia Zaballero-Luna (first
marriage) was still subsisting and valid;
 (b) Plaintiff-appellant Soledad Lavadia has
no right as owner or under any other
concept over the condominium unit, hence
the entry in Condominium Certificate of Title
No. 21761 of the Registry of Deeds
ofMakati with respect to the civil status of
Juan Luces Luna should be changed from
"JUAN LUCES LUNA married to Soledad L.
Luna" to "JUAN LUCES LUNA married to
Eugenia Zaballero Luna";
(c) Defendants-appellants, the heirs of Juan
Luces Luna and Eugenia Zaballero-
Luna(first marriage) are hereby declared to
be the owner of the books Corpus Juris,
Fletcher on Corporation, American
Jurisprudence and Federal Supreme Court
Reports found in the condominium unit.
No pronouncement as to costs.
SO ORDERED.11
On March 13, 2006,12 the CA denied the
petitioners motion for reconsideration.13
Issues
In this appeal, the petitioner avers in her petition for
review on certiorarithat:
A. The Honorable Court of Appeals erred in
ruling that the Agreement for Separation
and Property Settlement executed by Luna
and Respondent Eugenia was
unenforceable; hence, their conjugal
partnership was not dissolved and
liquidated;
B. The Honorable Court of Appeals erred in
not recognizing the Dominican Republic
courts approval of the Agreement;
C. The Honorable Court of Appeals erred in
ruling that Petitioner failed to adduce
sufficient proof of actual contribution to the
acquisition of purchase of the
subjectcondominium unit; and
D. The Honorable Court of Appeals erred in
ruling that Petitioner was not entitled to the
subject law books.14
The decisive question to be resolved is who among
the contending parties should be entitled to the
25/100 pro indivisoshare in the condominium unit;
and to the law books (i.e., Corpus Juris, Fletcher on
Corporation, American Jurisprudence and Federal
Supreme Court Reports).
The resolution of the decisive question requires the
Court to ascertain the law that should determine,
firstly, whether the divorce between Atty. Luna and
Eugenia Zaballero-Luna (Eugenia) had validly
dissolved the first marriage; and, secondly, whether
the second marriage entered into by the late Atty.
Luna and the petitioner entitled the latter to any
rights in property. Ruling of the Court
We affirm the modified decision of the CA.
1. Atty. Lunas first marriage with Eugenia
subsisted up to the time of his death
The first marriage between Atty. Luna and Eugenia,
both Filipinos, was solemnized in the Philippines on
September 10, 1947. The law in force at the time of
the solemnization was the Spanish Civil Code,
which adopted the nationality rule. The Civil
Codecontinued to follow the nationality rule, to the
effect that Philippine laws relating to family rights
and duties, or to the status, condition and legal
capacity of persons were binding upon citizens of
the Philippines, although living abroad.15 Pursuant
to the nationality rule, Philippine laws governed
thiscase by virtue of bothAtty. Luna and Eugenio
having remained Filipinos until the death of Atty.
Luna on July 12, 1997 terminated their marriage.
From the time of the celebration ofthe first marriage
on September 10, 1947 until the present, absolute
divorce between Filipino spouses has not been
recognized in the Philippines. The non-recognition
of absolute divorce between Filipinos has remained
even under the Family Code,16 even if either or
both of the spouses are residing abroad.17 Indeed,
the only two types of defective marital unions under
our laws have beenthe void and the voidable
marriages. As such, the remedies against such
defective marriages have been limited to the
declaration of nullity ofthe marriage and the
annulment of the marriage.
It is true that on January 12, 1976, the Court of First
Instance (CFI) of Sto. Domingo in the Dominican
Republic issued the Divorce Decree dissolving the
first marriage of Atty. Luna and
18
Eugenia. Conformably with the nationality rule,
however, the divorce, even if voluntarily obtained
abroad, did not dissolve the marriage between Atty.
Luna and Eugenia, which subsisted up to the time
of his death on July 12, 1997. This finding conforms
to the Constitution, which characterizes marriage
as an inviolable social institution,19 and regards it
as a special contract of permanent union between a
man and a woman for the establishment of a
conjugal and family life.20 The non-recognition of
absolute divorce in the Philippines is a
manifestation of the respect for the sanctity of the
marital union especially among Filipino citizens. It
affirms that the extinguishment of a valid marriage
must be grounded only upon the death of either
spouse, or upon a ground expressly provided
bylaw. For as long as this public policy on marriage
between Filipinos exists, no divorce decree
dissolving the marriage between them can ever be
given legal or judicial recognition and enforcement
in this jurisdiction.
2. The Agreement for Separation and Property
Settlement
was void for lack of court approval
The petitioner insists that the Agreement for
Separation and Property Settlement (Agreement)
that the late Atty. Luna and Eugenia had entered
into and executed in connection with the divorce
proceedings before the CFI of Sto. Domingo in the
Dominican Republic to dissolve and liquidate their
conjugal partnership was enforceable against
Eugenia. Hence, the CA committed reversible error
in decreeing otherwise.
The insistence of the petitioner was unwarranted.
Considering that Atty. Luna and Eugenia had not
entered into any marriage settlement prior to their
marriage on September 10, 1947, the system of
relative community or conjugal partnership of gains
governed their property relations. This is because
the Spanish Civil Code, the law then in force at the
time of their marriage, did not specify the property
regime of the spouses in the event that they had
not entered into any marriage settlement before or
at the time of the marriage. Article 119 of the Civil
Codeclearly so provides, to wit:
Article 119. The future spouses may in the
marriage settlements agree upon absolute or
relative community of property, or upon complete
separation of property, or upon any other regime. In
the absence of marriage settlements, or when the
same are void, the system of relative community or
conjugal partnership of gains as established in this
Code, shall govern the property relations between
husband and wife.
Article 142 of the Civil Codehas defined a conjugal
partnership of gains thusly:
Article 142. By means of the conjugal partnership of
gains the husband and wife place in a common
fund the fruits of their separate property and the
income from their work or industry, and divide
equally, upon the dissolution of the marriage or of
the partnership, the net gains or benefits obtained
indiscriminately by either spouse during the
marriage.
The conjugal partnership of gains subsists until
terminated for any of various causes of termination
enumerated in Article 175 of the Civil Code, viz:
Article 175. The conjugal partnership of gains
terminates:
(1) Upon the death of either spouse;
(2) When there is a decree of legal
separation;
(3) When the marriage is annulled;
(4) In case of judicial separation of property
under Article 191.
The mere execution of the Agreement by Atty. Luna
and Eugenia did not per sedissolve and liquidate
their conjugal partnership of gains. The approval of
the Agreement by a competent court was still
required under Article 190 and Article 191 of the
Civil Code, as follows:
Article 190. In the absence of an express
declaration in the marriage settlements, the
separation of property between spouses during the
marriage shall not take place save in virtue of a
judicial order. (1432a)
Article 191. The husband or the wife may ask for
the separation of property, and it shall be decreed
when the spouse of the petitioner has been
sentenced to a penalty which carries with it civil
interdiction, or has been declared absent, or when
legal separation has been granted.
xxxx
The husband and the wife may agree upon the
dissolution of the conjugal partnership during the
marriage, subject to judicial approval. All the
creditors of the husband and of the wife, as well as
of the conjugal partnership shall be notified of any
petition for judicialapproval or the voluntary
dissolution of the conjugal partnership, so that any
such creditors may appear atthe hearing to
safeguard his interests. Upon approval of the
petition for dissolution of the conjugal partnership,
the court shall take such measures as may protect
the creditors and other third persons.
After dissolution of the conjugal partnership, the
provisions of articles 214 and 215 shall apply. The
provisions of this Code concerning the effect of
partition stated in articles 498 to 501 shall be
applicable. (1433a)
But was not the approval of the Agreement by the
CFI of Sto. Domingo in the Dominican Republic
sufficient in dissolving and liquidating the conjugal
partnership of gains between the late Atty. Luna
and Eugenia?
The query is answered in the negative. There is no
question that the approval took place only as an
incident ofthe action for divorce instituted by Atty.
Luna and Eugenia, for, indeed, the justifications for
their execution of the Agreement were identical to
the grounds raised in the action for divorce.21 With
the divorce not being itself valid and enforceable
under Philippine law for being contrary to Philippine
public policy and public law, the approval of the
Agreement was not also legally valid and
enforceable under Philippine law. Consequently,
the conjugal partnership of gains of Atty. Luna and
Eugenia subsisted in the lifetime of their marriage.
3. Atty. Lunas marriage with Soledad, being
bigamous,
was void; properties acquired during their marriage
were governed by the rules on co-ownership
What law governed the property relations of the
second marriage between Atty. Luna and Soledad?
The CA expressly declared that Atty. Lunas
subsequent marriage to Soledad on January 12,
1976 was void for being bigamous,22 on the ground
that the marriage between Atty. Luna and Eugenia
had not been dissolved by the Divorce Decree
rendered by the CFI of Sto. Domingo in the
Dominican Republic but had subsisted until the
death of Atty. Luna on July 12, 1997.
The Court concurs with the CA.
In the Philippines, marriages that are bigamous,
polygamous, or incestuous are void. Article 71 of
the Civil Codeclearly states:
Article 71. All marriages performed outside the
Philippines in accordance with the laws in force in
the country where they were performed, and valid
there as such, shall also be valid in this country,
except bigamous, polygamous, or incestuous
marriages as determined by Philippine law.
Bigamy is an illegal marriage committed by
contracting a second or subsequent marriage
before the first marriage has been legally dissolved,
or before the absent spouse has been declared
presumptively dead by means of a judgment
rendered in the proper proceedings.23 A bigamous
marriage is considered void ab initio.24
Due to the second marriage between Atty. Luna
and the petitioner being void ab initioby virtue of its
being bigamous, the properties acquired during the
bigamous marriage were governed by the rules on
co-ownership, conformably with Article 144 of the
Civil Code, viz:
Article 144. When a man and a woman live
together as husband and wife, but they are not
married, ortheir marriage is void from the
beginning, the property acquired by eitheror both of
them through their work or industry or their wages
and salaries shall be governed by the rules on co-
ownership.(n)
In such a situation, whoever alleges co-ownership
carried the burden of proof to confirm such
fact.1wphi1 To establish co-ownership, therefore,
it became imperative for the petitioner to offer proof
of her actual contributions in the acquisition of
property. Her mere allegation of co-ownership,
without sufficient and competent evidence, would
warrant no relief in her favor. As the Court
explained in Saguid v. Court of Appeals:25
In the cases of Agapay v. Palang, and Tumlos v.
Fernandez, which involved the issue of co-
ownership ofproperties acquired by the parties to a
bigamous marriage and an adulterous relationship,
respectively, we ruled that proof of actual
contribution in the acquisition of the property is
essential. The claim of co-ownership of the
petitioners therein who were parties to the
bigamous and adulterousunion is without basis
because they failed to substantiate their allegation
that they contributed money in the purchase of the
disputed properties. Also in Adriano v. Court of
Appeals, we ruled that the fact that the controverted
property was titled in the name of the parties to an
adulterous relationship is not sufficient proof of
coownership absent evidence of actual contribution
in the acquisition of the property.
As in other civil cases, the burden of proof rests
upon the party who, as determined by the
pleadings or the nature of the case, asserts an
affirmative issue. Contentions must be proved by
competent evidence and reliance must be had on
the strength of the partys own evidence and not
upon the weakness of the opponents defense. This
applies with more vigor where, as in the instant
case, the plaintiff was allowed to present evidence
ex parte.1wphi1 The plaintiff is not automatically
entitled to the relief prayed for. The law gives the
defendantsome measure of protection as the
plaintiff must still prove the allegations in the
complaint. Favorable relief can be granted only
after the court isconvinced that the facts proven by
the plaintiff warrant such relief. Indeed, the party
alleging a fact has the burden of proving it and a
mereallegation is not evidence.26
The petitioner asserts herein that she sufficiently
proved her actual contributions in the purchase of
the condominium unit in the aggregate amount of at
least P306,572.00, consisting in direct contributions
of P159,072.00, and in repaying the loans Atty.
Luna had obtained from Premex Financing and
Banco Filipino totaling P146,825.30;27 and that
such aggregate contributions of P306,572.00
corresponded to almost the entire share of Atty.
Luna in the purchase of the condominium unit
amounting to P362,264.00 of the units purchase
price of P1,449,056.00.28 The petitioner further
asserts that the lawbooks were paid for solely out
of her personal funds, proof of which Atty. Luna had
even sent her a "thank you" note;29 that she had the
financial capacity to make the contributions and
purchases; and that Atty. Luna could not acquire
the properties on his own due to the meagerness of
the income derived from his law practice.
Did the petitioner discharge her burden of proof on
the co-ownership?
In resolving the question, the CA entirely debunked
the petitioners assertions on her actual
contributions through the following findings and
conclusions, namely:
SOLEDAD was not able to prove by preponderance
of evidence that her own independent funds were
used to buy the law office condominium and the law
books subject matter in contentionin this case
proof that was required for Article 144 of the New
Civil Code and Article 148 of the Family Code to
apply as to cases where properties were acquired
by a man and a woman living together as husband
and wife but not married, or under a marriage which
was void ab initio. Under Article 144 of the New
Civil Code, the rules on co-ownership would
govern. But this was not readily applicable to many
situations and thus it created a void at first because
it applied only if the parties were not in any way
incapacitated or were without impediment to marry
each other (for it would be absurd to create a co-
ownership where there still exists a prior conjugal
partnership or absolute community between the
man and his lawful wife). This void was filled upon
adoption of the Family Code. Article 148 provided
that: only the property acquired by both of the
parties through their actual joint contribution of
money, property or industry shall be owned in
common and in proportion to their respective
contributions. Such contributions and
corresponding shares were prima faciepresumed to
be equal. However, for this presumption to arise,
proof of actual contribution was required. The same
rule and presumption was to apply to joint deposits
of money and evidence of credit. If one of the
parties was validly married to another, his or her
share in the co-ownership accrued to the absolute
community or conjugal partnership existing in such
valid marriage. If the party who acted in bad faith
was not validly married to another, his or her share
shall be forfeited in the manner provided in the last
paragraph of the Article 147. The rules on forfeiture
applied even if both parties were in bad faith. Co-
ownership was the exception while conjugal
partnership of gains was the strict rule whereby
marriage was an inviolable social institution and
divorce decrees are not recognized in the
Philippines, as was held by the Supreme Court in
the case of Tenchavez vs. Escao, G.R. No. L-
19671, November 29, 1965, 15 SCRA 355, thus:
xxxx
As to the 25/100pro-indivisoshare of ATTY. LUNA
in the condominium unit, SOLEDAD failed to prove
that she made an actual contribution to purchase
the said property. She failed to establish that the
four (4) checks that she presented were indeed
used for the acquisition of the share of ATTY.
LUNA in the condominium unit. This was aptly
explained in the Decision of the trial court, viz.:
"x x x The first check, Exhibit "M" for P55,000.00
payable to Atty. Teresita Cruz Sison was issued on
January 27, 1977, which was thirteen (13) months
before the Memorandum of Agreement, Exhibit "7"
was signed. Another check issued on April 29,
1978 in the amount of P97,588.89, Exhibit "P" was
payable to Banco Filipino. According to the plaintiff,
thiswas in payment of the loan of Atty. Luna. The
third check which was for P49,236.00 payable to
PREMEX was dated May 19, 1979, also for
payment of the loan of Atty. Luna. The fourth
check, Exhibit "M", for P4,072.00 was dated
December 17, 1980. None of the foregoing prove
that the amounts delivered by plaintiff to the payees
were for the acquisition of the subject condominium
unit. The connection was simply not established. x
x x"
SOLEDADs claim that she made a cash
contribution of P100,000.00 is unsubstantiated.
Clearly, there is no basis for SOLEDADs claim of
co-ownership over the 25/100 portion of the
condominium unit and the trial court correctly found
that the same was acquired through the sole
industry of ATTY. LUNA, thus:
his earnings from his practice of law rather than
embarrassingly beg or ask from SOLEDAD money
for use of the law firm that he headed.30
The Court upholds the foregoing findings and
conclusions by the CA both because they were
substantiated by the records and because we have
not been shown any reason to revisit and undo
them. Indeed, the petitioner, as the party claiming
the co-ownership, did not discharge her burden of
proof. Her mere allegations on her contributions,
not being evidence,31 did not serve the purpose. In
contrast, given the subsistence of the first marriage
between Atty. Luna and Eugenia, the presumption
that Atty. Luna acquired the properties out of his
own personal funds and effort remained. It should
then be justly concluded that the properties in
litislegally pertained to their conjugal partnership of
gains as of the time of his death. Consequently, the
sole ownership of the 25/100 pro indivisoshare of
Atty. Luna in the condominium unit, and of the
lawbooks pertained to the respondents as the
lawful heirs of Atty. Luna.

"The Deed of Absolute Sale, Exhibit "9", covering WHEREFORE, the Court AFFIRMS the decision
the condominium unit was in the name of Atty. promulgated on November 11, 2005; and ORDERS
Luna, together with his partners in the law firm. The the petitioner to pay the costs of suit.
name of the plaintiff does not appear as vendee or
as the spouse of Atty. Luna. The same was SO ORDERED.
acquired for the use of the Law firm of Atty. Luna.
The loans from Allied Banking Corporation and Far LUCAS P. BERSAMIN
East Bank and Trust Company were loans of Atty. Associate Justice
Luna and his partners and plaintiff does not have
evidence to show that she paid for them fully or WE CONCUR:
partially. x x x"

The fact that CCT No. 4779 and subsequently,

CCT No. 21761 were in the name of "JUAN LUCES
LUNA, married to Soledad L. Luna" was no proof
that SOLEDAD was a co-owner of the
condominium unit. 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. The phrase
"married to" preceding "Soledad L. Luna" is merely
descriptive of the civil status of ATTY. LUNA.

SOLEDAD, the second wife, was not even a

lawyer. So it is but logical that SOLEDAD had no
participation in the law firm or in the purchase of
books for the law firm. SOLEDAD failed to prove
that she had anything to contribute and that she
actually purchased or paid for the law office
amortization and for the law books. It is more
logical to presume that it was ATTY. LUNA who
bought the law office space and the law books from
 Republic of the Philippines
Maria Aurora, Aurora
SUPREME COURT
Manila USA
PROPERTY FAIR MARKET VALUE
SECOND DIVISION
House and Lot at 1155 Hanover Street,
G.R. No. 188289 August 20, 2014 Daly City, California
$550,000.00
DAVID A. NOVERAS, Petitioner, (unpaid debt
vs. $285,000.00)
LETICIA T. NOVERAS, Respondent.
Furniture and furnishings $3,000
DECISION Jewelries (ring and watch) $9,000
PEREZ, J.: 2000 Nissan Frontier 4x4 pickup truck $13,770.00
Bank of America Checking Account $8,000
Before the Court is a petition for review assailing
the 9 May 2008 Decision1 of the Court of Appeals
Bank of America Cash Deposit
in CA-G.R .. CV No. 88686, which affirmed in part
the 8 December 2006 Decision2 of the Regional Life Insurance (Cash Value) $100,000.00
Trial Court (RTC) of Baler, Aurora, Branch 96. Retirement, pension, profit-sharing, $56,228.00
annuities
The factual antecedents are as follow:
The Sampaloc property used to beowned by
David A. Noveras (David) and Leticia T. Noveras Davids parents. The parties herein secured a loan
(Leticia) were married on 3 December 1988 in from a bank and mortgaged the property. When
Quezon City, Philippines. They resided in said property was about to be foreclosed, the
California, United States of America (USA) where couple paid a total of P1.5 Million for the
they eventually acquired American citizenship. redemption of the same.
They then begot two children, namely: Jerome T.
Due to business reverses, David left the USA and
Noveras, who was born on 4 November 1990 and returned to the Philippines in 2001. In December
JenaT. Noveras, born on 2 May 1993. David was 2002,Leticia executed a Special Power of Attorney
engaged in courier service business while Leticia (SPA) authorizing David to sell the Sampaloc
worked as a nurse in San Francisco, California. property for P2.2 Million. According to Leticia,
sometime in September 2003, David abandoned
During the marriage, they acquired the following his family and lived with Estrellita Martinez in
properties in the Philippines and in the USA: Aurora province. Leticia claimed that David agreed
toand executed a Joint Affidavit with Leticia in the
LIPPINES presence of Davids father, Atty. Isaias Noveras, on
3 December 2003 stating that: 1) the P1.1Million
OPERTY FAIR MARKET VALUE proceeds from the sale of the Sampaloc property
se and Lot with an area of 150 sq. m. P1,693,125.00 shall be paid to and collected by Leticia; 2) that
ted at 1085 Norma Street, Sampaloc, David shall return and pay to Leticia P750,000.00,
ila (Sampaloc property) which is equivalent to half of the amount of the
redemption price of the Sampaloc property; and 3)
cultural land with an area of 20,742 sq. P400,000.00 that David shall renounce and forfeit all his rights
ocated at Laboy, Dipaculao, Aurora and interest in the conjugal and real properties
situated in the Philippines.5 David was able to
arcel of land with an area of 2.5 P490,000.00
collect P1,790,000.00 from the sale of the
ares located at Maria Aurora, Aurora
Sampaloc property, leaving an unpaid balance
arcel of land with an area of 175 sq.m. P175,000.00 of P410,000.00.
3

ted at Sabang Baler, Aurora

Upon learning that David had an extra-marital
as. coconut plantation in San Joaquin P750,000.00 affair, Leticia filed a petition for divorce with the
Superior Court of California, County of San Mateo,
USA. The California court granted the divorce on
24 June 2005 and judgment was duly entered on
29 June 2005.6 The California court granted to
Leticia the custody of her two children, as well as
all the couples properties in the USA.7
On 8 August 2005, Leticia filed a petition for
Judicial Separation of Conjugal Property before the
RTC of Baler, Aurora. She relied on the 3
December 2003 Joint Affidavit and Davids failure
to comply with his obligation under the same. She
prayed for: 1) the power to administer all conjugal
properties in the Philippines; 2) David and his
partner to cease and desist from selling the subject
conjugal properties; 3) the declaration that all
conjugal properties be forfeited in favor of her
children; 4) David to remit half of the purchase price
as share of Leticia from the sale of the Sampaloc
property; and 5) the payment ofP50,000.00
and P100,000.00 litigation expenses.8
In his Answer, David stated that a judgment for the
dissolution of their marriage was entered on 29
June 2005 by the Superior Court of California,
County of San Mateo. He demanded that the
conjugal partnership properties, which also include
the USA properties, be liquidated and that all
expenses of liquidation, including attorneys fees of
both parties be charged against the conjugal
partnership.9
The RTC of Baler, Aurora simplified the issues as
follow:
1. Whether or not respondent David A.
Noveras committed acts of abandonment
and marital infidelity which can result intothe
forfeiture of the parties properties in favor of
the petitioner and their two (2) children.
2. Whether or not the Court has jurisdiction
over the properties in California, U.S.A. and
the same can be included in the judicial
separation prayed for.
3. Whether or not the "Joint Affidavit" x x x
executed by petitioner Leticia T. Noveras
and respondent David A. Noveras will
amount to a waiver or forfeiture of the
latters property rights over their conjugal
properties.
4. Whether or not Leticia T. Noveras
isentitled to reimbursement of onehalf of
the P2.2 [M]illion sales proceeds of their
property in Sampaloc, Manila and one-half
of the P1.5 [M]illion used to redeem the
property of Atty. Isaias Noveras, including
interests and charges.
5. How the absolute community properties
should be distributed.
6. Whether or not the attorneys feesand
litigation expenses of the parties were
chargeable against their conjugal
properties.
Corollary to the aboveis the issue of:
Whether or not the two common children of the
parties are entitled to support and presumptive
legitimes.10
On 8 December 2006, the RTC rendered judgment
as follows:
1. The absolute community of property of
the parties is hereby declared DISSOLVED;
2. The net assets of the absolute community
of property ofthe parties in the Philippines
are hereby ordered to be awarded to
respondent David A. Noveras only, with the
properties in the United States of America
remaining in the sole ownership of petitioner
Leticia Noveras a.k.a. Leticia Tacbiana
pursuant to the divorce decree issuedby the
Superior Court of California, County of San
Mateo, United States of America, dissolving
the marriage of the parties as of June 24,
2005. The titles presently covering said
properties shall be cancelled and new titles
be issued in the name of the party to whom
said properties are awarded;
3. One-half of the properties awarded to
respondent David A. Noveras in the
preceding paragraph are hereby given to
Jerome and Jena, his two minor children
with petitioner LeticiaNoveras a.k.a. Leticia
Tacbiana as their presumptive legitimes and
said legitimes must be annotated on the
titles covering the said properties.Their
share in the income from these properties
shall be remitted to them annually by the
respondent within the first half of January of
each year, starting January 2008;
4. One-half of the properties in the United
States of America awarded to petitioner
Leticia Noveras a.k.a. Leticia Tacbiana in
paragraph 2 are hereby given to Jerome
and Jena, her two minor children with
respondent David A. Noveras as their
presumptive legitimes and said legitimes
must be annotated on the titles/documents
covering the said properties. Their share in
the income from these properties, if any,
shall be remitted to them annually by the
petitioner within the first half of January of
each year, starting January 2008;
5. For the support of their two (2) minor
children, Jerome and Jena, respondent
David A. Noveras shall give them
US$100.00 as monthly allowance in
addition to their income from their
presumptive legitimes, while petitioner
Leticia Tacbiana shall take care of their
food, clothing, education and other needs
while they are in her custody in the USA.
The monthly allowance due from the
respondent shall be increased in the future
as the needs of the children require and his
financial capacity can afford;
6. Of the unpaid amount of P410,000.00 on
the purchase price of the Sampaloc
property, the Paringit Spouses are hereby
ordered to pay P5,000.00 to respondent
David A. Noveras and P405,000.00 to the
two children. The share of the respondent
may be paid to him directly but the share of
the two children shall be deposited with a
local bank in Baler, Aurora, in a joint
account tobe taken out in their names,
withdrawal from which shall only be made
by them or by their representative duly
authorized with a Special Power of Attorney.
Such payment/deposit shall be made
withinthe period of thirty (30) days after
receipt of a copy of this Decision, with the
passbook of the joint account to be
submitted to the custody of the Clerk of
Court of this Court within the same period.
Said passbook can be withdrawn from the
Clerk of Court only by the children or their
attorney-in-fact; and
7. The litigation expenses and attorneys
fees incurred by the parties shall be
shouldered by them individually.11
The trial court recognized that since the parties are
US citizens, the laws that cover their legal and
personalstatus are those of the USA. With respect
to their marriage, the parties are divorced by virtue
of the decree of dissolution of their marriage issued
by the Superior Court of California, County of San
Mateo on 24June 2005. Under their law, the
parties marriage had already been dissolved.
Thus, the trial court considered the petition filed by
Leticia as one for liquidation of the absolute
community of property regime with the
determination of the legitimes, support and custody
of the children, instead of an action for judicial
separation of conjugal property.
With respect to their property relations, the trial
court first classified their property regime as
absolute community of property because they did
not execute any marriage settlement before the
solemnization of their marriage pursuant to Article
75 of the Family Code. Then, the trial court ruled
that in accordance with the doctrine of processual
presumption, Philippine law should apply because
the court cannot take judicial notice of the US law
since the parties did not submit any proof of their
national law. The trial court held that as the instant
petition does not fall under the provisions of the law
for the grant of judicial separation of properties, the
absolute community properties cannot beforfeited
in favor of Leticia and her children. Moreover, the
trial court observed that Leticia failed to prove
abandonment and infidelity with preponderant
evidence.
The trial court however ruled that Leticia is not
entitled to the reimbursements she is praying for
considering that she already acquired all of the
properties in the USA. Relying still on the principle
of equity, the Court also adjudicated the Philippine
properties to David, subject to the payment of the
childrens presumptive legitimes. The trial court
held that under Article 89 of the Family Code, the
waiver or renunciation made by David of his
property rights in the Joint Affidavit is void.
On appeal, the Court of Appeals modified the trial
courts Decision by directing the equal division of
the Philippine properties between the spouses.
Moreover with respect to the common childrens
presumptive legitime, the appellate court ordered
both spouses to each pay their children the amount
of P520,000.00, thus:
WHEREFORE, the instant appeal is PARTLY
GRANTED. Numbers 2, 4 and 6 of the
assailedDecision dated December 8, 2006 of
Branch 96, RTC of Baler, Aurora Province, in Civil
Case No. 828 are hereby MODIFIED to read as
follows:
2. The net assets of the absolute community
of property of the parties in the Philippines
are hereby divided equally between
petitioner Leticia Noveras a.k.a. Leticia
Tacbiana (sic) and respondent David A.
Noveras;
xxx
4. One-half of the properties awarded to
petitioner Leticia Tacbiana (sic) in
paragraph 2 shall pertain to her minor
children, Jerome and Jena, as their
presumptive legitimes which shall be
annotated on the titles/documents covering
the said properties. Their share in the
income therefrom, if any, shall be remitted
to them by petitioner annually within the first
half of January, starting 2008;
xxx
6. Respondent David A. Noveras and
petitioner Leticia Tacbiana (sic) are each
ordered to pay the amount ofP520,000.00 to
their two children, Jerome and Jena, as
their presumptive legitimes from the sale of
the Sampaloc property inclusive of the
receivables therefrom, which shall be
deposited to a local bank of Baler, Aurora,
under a joint account in the latters names.
The payment/deposit shall be made within a
period of thirty (30) days from receipt ofa
copy of this Decision and the corresponding
passbook entrusted to the custody ofthe
Clerk of Court a quowithin the same period,
withdrawable only by the children or their
attorney-in-fact.
A number 8 is hereby added, which shall
read as follows:
8. Respondent David A. Noveras is hereby
ordered to pay petitioner Leticia Tacbiana
(sic) the amount of P1,040,000.00
representing her share in the proceeds from
the sale of the Sampaloc property.
The last paragraph shall read as follows:
Send a copy of this Decision to the local civil
registry of Baler, Aurora; the local civil registry of
Quezon City; the Civil RegistrarGeneral, National
Statistics Office, Vibal Building, Times Street corner
EDSA, Quezon City; the Office of the Registry of
Deeds for the Province of Aurora; and to the
children, Jerome Noveras and Jena Noveras.
The rest of the Decision is AFFIRMED.12
In the present petition, David insists that the Court
of Appeals should have recognized the California
Judgment which awarded the Philippine properties
to him because said judgment was part of the
pleading presented and offered in evidence before
the trial court. David argues that allowing Leticia to
share in the Philippine properties is tantamount to
unjust enrichment in favor of Leticia considering
that the latter was already granted all US properties
by the California court.
In summary and review, the basic facts are: David
and Leticia are US citizens who own properties in
the USA and in the Philippines. Leticia obtained a
decree of divorce from the Superior Court of
California in June 2005 wherein the court awarded
all the properties in the USA to Leticia. With respect
to their properties in the Philippines, Leticiafiled a
petition for judicial separation ofconjugal properties.
At the outset, the trial court erred in recognizing the
divorce decree which severed the bond of marriage
between the parties. In Corpuz v. Sto. Tomas,13 we
stated that:
The starting point in any recognition of a foreign
divorce judgment is the acknowledgment that our
courts do not take judicial notice of foreign
judgments and laws. Justice Herrera explained
that, as a rule, "no sovereign is bound to give effect
within its dominion to a judgment rendered by a
tribunal of another country." This means that the
foreign judgment and its authenticity must beproven
as facts under our rules on evidence, together with
the aliens applicable national law to show the
effect of the judgment on the alien himself or
herself. The recognition may be made in an action
instituted specifically for the purpose or in another
action where a party invokes the foreign decree as
an integral aspect of his claim or defense.14
The requirements of presenting the foreign divorce
decree and the national law of the foreigner must
comply with our Rules of Evidence. Specifically, for
Philippine courts to recognize a foreign judgment
relating to the status of a marriage, a copy of the
foreign judgment may be admitted in evidence and
proven as a fact under Rule 132, Sections 24 and
25, in relation to Rule 39, Section 48(b) of the
Rules of Court.15
Under Section 24 of Rule 132, the record of public
documents of a sovereign authority or tribunal may
be proved by: (1) an official publication thereof or
(2) a copy attested by the officer having the legal
custody thereof. Such official publication or copy
must beaccompanied, if the record is not kept in the
Philippines, with a certificate that the attesting
officer has the legal custody thereof. The certificate
may be issued by any of the authorized Philippine
embassy or consular officials stationed in the
foreign country in which the record is kept, and
authenticated by the seal of his office. The
attestation must state, in substance, that the copy
is a correct copy of the original, or a specific part
thereof, asthe case may be, and must be under the
official seal of the attesting officer.
Section 25 of the same Rule states that whenever a
copy of a document or record is attested for the
purpose of evidence, the attestation must state, in
substance, that the copy is a correct copy of the
original, or a specific part thereof, as the case may
be. The attestation must be under the official seal
of the attesting officer, if there be any, or if hebe the
clerk of a court having a seal, under the seal of
such court.
Based on the records, only the divorce decree was
presented in evidence. The required certificates to
prove its authenticity, as well as the pertinent
California law on divorce were not presented.
It may be noted that in Bayot v. Court of
Appeals,16 we relaxed the requirement on
certification where we held that "[petitioner therein]
was clearly an American citizenwhen she secured
the divorce and that divorce is recognized and
allowed in any of the States of the Union, the
presentation of a copy of foreign divorce decree
duly authenticatedby the foreign court issuing said
decree is, as here, sufficient." In this case however,
it appears that there is no seal from the office
where the divorce decree was obtained.
Even if we apply the doctrine of processual
presumption17 as the lower courts did with respect
to the property regime of the parties, the
recognition of divorce is entirely a different matter
because, to begin with, divorce is not recognized
between Filipino citizens in the Philippines. Absent
a valid recognition of the divorce decree, it follows
that the parties are still legally married in the
Philippines. The trial court thus erred in proceeding
directly to liquidation.
As a general rule, any modification in the marriage
settlements must be made before the celebration of
marriage. An exception to this rule is allowed
provided that the modification isjudicially approved
and refers only to the instances provided in Articles
66,67, 128, 135 and 136 of the Family Code.18
Leticia anchored the filing of the instant petition for
judicial separation of property on paragraphs 4 and
6 of Article 135 of the Family Code, to wit:
Art. 135. Any of the following shall be considered
sufficient cause for judicial separation of property:
(1) That the spouse of the petitioner has
been sentenced to a penalty which carries
with it civil interdiction;
(2) That the spouse of the petitioner has
been judicially declared an absentee;
(3) That loss of parental authority ofthe
spouse of petitioner has been decreed by
the court;
(4) That the spouse of the petitioner has
abandoned the latter or failed to comply with
his or her obligations to the family as
provided for in Article 101;
(5) That the spouse granted the power of
administration in the marriage settlements
has abused that power; and
(6) That at the time of the petition, the
spouses have been separated in fact for at
least one year and reconciliation is highly
improbable.
In the cases provided for in Numbers (1), (2), and
(3), the presentation of the final judgment against
the guiltyor absent spouse shall be enough basis
for the grant of the decree ofjudicial separation of
property. (Emphasis supplied).
The trial court had categorically ruled that there
was no abandonment in this case to necessitate
judicial separation of properties under paragraph 4
of Article 135 of the Family Code. The trial court
ratiocinated:
Moreover, abandonment, under Article 101 of the
Family Code quoted above, must be for a valid
cause and the spouse is deemed to have
abandoned the other when he/she has left the
conjugal dwelling without intention of returning. The
intention of not returning is prima facie presumed if
the allegedly [sic] abandoning spouse failed to give
any information as to his or her whereabouts within
the period of three months from such
abandonment.
In the instant case, the petitioner knows that the
respondent has returned to and stayed at his
hometown in Maria Aurora, Philippines, as she
even went several times to visit him there after the
alleged abandonment. Also, the respondent has
been going back to the USA to visit her and their
children until the relations between them worsened.
The last visit of said respondent was in October
2004 when he and the petitioner discussed the
filing by the latter of a petition for dissolution of
marriage with the California court. Such turn for the
worse of their relationship and the filing of the
saidpetition can also be considered as valid causes
for the respondent to stay in the Philippines.19
Separation in fact for one year as a ground to grant
a judicial separation of property was not tackled in
the trial courts decision because, the trial court
erroneously treated the petition as liquidation of the
absolute community of properties.
The records of this case are replete with evidence
that Leticia and David had indeed separated for
more than a year and that reconciliation is highly
improbable. First, while actual abandonment had
not been proven, it is undisputed that the spouses
had been living separately since 2003 when David
decided to go back to the Philippines to set up his
own business. Second, Leticia heard from her
friends that David has been cohabiting with
Estrellita Martinez, who represented herself as
Estrellita Noveras. Editha Apolonio, who worked in
the hospital where David was once confined,
testified that she saw the name of Estrellita listed
as the wife of David in the Consent for Operation
form.20 Third and more significantly, they had filed
for divorce and it was granted by the California
court in June 2005.
Having established that Leticia and David had
actually separated for at least one year, the petition
for judicial separation of absolute community of
property should be granted.
The grant of the judicial separation of the absolute
community property automatically dissolves the
absolute community regime, as stated in the 4th
paragraph of Article 99 ofthe Family Code, thus:
Art. 99. The absolute community terminates:
(1) Upon the death of either spouse;
(2) When there is a decree of legal
separation;
(3) When the marriage is annulled or
declared void; or
(4) In case of judicial separation of property
during the marriage under Articles 134 to
138. (Emphasis supplied).
Under Article 102 of the same Code, liquidation
follows the dissolution of the absolute community
regime and the following procedure should apply:
Art. 102. Upon dissolution of the absolute
community regime, the following procedure shall
apply:
(1) An inventory shall be prepared, listing
separately all the properties of the absolute
community and the exclusive properties of
each spouse.
(2) The debts and obligations of the
absolute community shall be paid out of its
assets. In case of insufficiency of said
assets, the spouses shall be solidarily liable
for the unpaid balance with their separate
properties in accordance with the provisions
of the second paragraph of Article 94.
(3) Whatever remains of the exclusive
properties of the spouses shall thereafter be
delivered to each of them.
(4) The net remainder of the properties of
the absolute community shall constitute its
net assets, which shall be divided equally
between husband and wife, unless a
different proportion or division was agreed
upon in the marriage settlements, or unless
there has been a voluntary waiver of such
share provided in this Code. For purposes
of computing the net profits subject to
forfeiture in accordance with Articles 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.
(5) The presumptive legitimes of the
common children shall be delivered upon
partition, in accordance with Article 51.
(6) Unless otherwise agreed upon by the
parties, in the partition of the properties, the
conjugal dwelling and the lot on which it is
situated shall be adjudicated tothe spouse
with whom the majority of the common
children choose to remain. Children below
the age of seven years are deemed to have
chosen the mother, unless the court has
decided otherwise. In case there is no such
majority, the court shall decide, taking into
consideration the best interests of said
children. At the risk of being repetitious, we
will not remand the case to the trial court.
Instead, we shall adopt the modifications
made by the Court of Appeals on the trial
courts Decision with respect to liquidation.
We agree with the appellate court that the
Philippine courts did not acquire jurisdiction over
the California properties of David and Leticia.
Indeed, Article 16 of the Civil Code clearly states
that real property as well as personal property is
subject to the law of the country where it is situated.
Thus, liquidation shall only be limited to the
Philippine properties.
We affirm the modification madeby the Court of
Appeals with respect to the share of the spouses in
the absolutecommunity properties in the
Philippines, as well as the payment of their
childrens presumptive legitimes, which the
appellate court explained in this wise:
Leticia and David shall likewise have an equal
share in the proceeds of the Sampaloc
property.1wphi1 While both claimed to have
contributed to the redemption of the Noveras
property, absent a clear showing where their
contributions came from, the same is presumed to
have come from the community property. Thus,
Leticia is not entitled to reimbursement of half of the
redemption money.
David's allegation that he used part of the proceeds
from the sale of the Sampaloc property for the
benefit of the absolute community cannot be given
full credence. Only the amount of P120,000.00
incurred in going to and from the U.S.A. may be
charged thereto. Election expenses in the amount
of P300,000.00 when he ran as municipal councilor
cannot be allowed in the absence of receipts or at
least the Statement of Contributions and
Expenditures required under Section 14 of Republic
Act No. 7166 duly received by the Commission on
Elections. Likewise, expenses incurred to settle the
criminal case of his personal driver is not deductible
as the same had not benefited the family. In sum,
Leticia and David shall share equally in the
proceeds of the sale net of the amount
of P120,000.00 or in the respective amounts
of P1,040,000.00.
xxxx
Under the first paragraph of Article 888 of the Civil
Code, "(t)he legitime of legitimate children and
descendants consists of one-half or the hereditary
estate of the father and of the mother." The children
arc therefore entitled to half of the share of each
spouse in the net assets of the absolute
community, which shall be annotated on the
titles/documents covering the same, as well as to
their respective shares in the net proceeds from the
sale of the Sampaloc property including the
receivables from Sps. Paringit in the amount
of P410,000.00. Consequently, David and Leticia
should each pay them the amount of P520,000.00
as their presumptive legitimes therefrom.21
WHEREFORE, the petition is DENIED. The
assailed Decision of the Court of Appeals in CA
G.R. CV No. 88686 is AFFIRMED.
SO ORDERED.
JOSE PORTUGAL PEREZ
Associate Justice

Republic of the Philippines
SUPREME COURT
Manila
SECOND DIVISION
G.R. No. 205487 November 12, 2014
ORION SAVINGS BANK, Petitioner,
vs.
SHIGEKANE SUZUKI, Respondent.
DECISION
BRION, J.:
Before us is the Petition for Review on
Certiorari1 filed by petitioner Orion Savings Bank
(Orion) under Rule 45 of the Rules of Court,
assailing the decision2 dated August 23, 2012
and the resolution3 dated January 25, 2013 of the
Court of Appeals (CA) in CA-G.R. CV No. 94104.
The Factual Antecedents
In the first week of August 2003, respondent
Shigekane Suzuki (Suzuki), a Japanese national,
met with Ms. Helen Soneja (Soneja) to inquire
about a condominium unit and a parking slot at
Cityland Pioneer, Mandaluyong City, allegedly
owned by Yung Sam Kang (Kang), a Korean
national and a Special Resident Retiree's Visa
(SRRV) holder.
At the meeting, Soneja informed Suzuki that Unit
No. 536 [covered by Condominium Certificate of
Title (CCT) No. 18186]4 and Parking Slot No. 42
[covered by CCT No. 9118]5 were for sale
for P3,000,000.00. Soneja likewise assured
Suzuki that the titles to the unit and the parking
slot were clean. After a brief negotiation, the
parties agreed to reduce the price
to P2,800,000.00. On August 5, 2003, Suzuki
issued Kang a Bank of the Philippine Island (BPI)
Check No. 833496 for One Hundred Thousand
Pesos (P100,000.00) as reservation fee.7 On
August 21, 2003, Suzuki issued Kang another
check, BPI Check No. 83350,8 this time
for P2,700,000.00 representing the remaining
balance of the purchase price. Suzuki and Kang
then executed a Deed of Absolute Sale dated
August 26, 20039 covering Unit No. 536 and
Parking Slot No. 42. Soon after, Suzuki took
possession of the condominium unit and parking
lot, and commenced the renovation of the interior
of the condominium unit.
Kang thereafter made several representations
with Suzuki to deliver the titles to the properties,
which were then allegedly in possession of
Alexander Perez (Perez, Orions Loans Officer)
for safekeeping. Despite several verbal
demands, Kang failed to deliver the documents.
Suzuki later on learned that Kang had left the
country, prompting Suzuki to verify the status of
the properties with the Mandaluyong City
Registry of Deeds.
Before long, Suzuki learned that CCT No. 9118
representing the title to the Parking Slot No. 42
contained no annotations although it remained
under the name of Cityland Pioneer. This
notwithstanding, Cityland Pioneer, through
Assistant Vice President Rosario D. Perez,
certified that Kang had fully paid the purchase
price of Unit. No. 53610 and Parking Slot No.
42.11 CCT No. 18186 representing the title to the
condominium unit had no existing encumbrance,
except for anannotation under Entry No.
73321/C-10186 which provided that any
conveyance or encumbrance of CCT No. 18186
shall be subject to approval by the Philippine
Retirement Authority (PRA). Although CCT No.
18186 contained Entry No. 66432/C-10186 dated
February 2, 1999 representing a mortgage in
favor of Orion for a P1,000,000.00 loan, that
annotation was subsequently cancelled on June
16, 2000 by Entry No. 73232/T. No. 10186.
Despite the cancellation of the mortgage to
Orion, the titles to the properties remained in
possession of Perez.
To protect his interests, Suzuki thenexecuted an
Affidavit of Adverse Claim 12 dated September 8,
2003, withthe Registry of Deeds of Mandaluyong
City, annotated as Entry No. 3292/C-No. 18186
in CCT No. 18186. Suzuki then demanded the
delivery of the titles.13 Orion, (through Perez),
however, refused to surrender the titles, and
cited the need to consult Orions legal counsel as
its reason.
On October 14, 2003, Suzuki received a letter
from Orions counsel dated October 9, 2003,
stating that Kang obtained another loan in the
amount of P1,800,000.00. When Kang failed to
pay, he executed a Dacion en Pagodated
February 2, 2003, in favorof Orion covering Unit
No. 536. Orion, however, did not register the
Dacion en Pago, until October 15, 2003.
On October 28, 2003, Suzuki executed an
Affidavit of Adverse Claim over Parking Slot No.
42 (covered by CCT No. 9118) and this was
annotated as Entry No. 4712/C-No. 9118 in the
parking lots title.
On January 27, 2004, Suzuki filed a complaint for
specific performance and damages against Kang
and Orion. At the pre-trial, the parties made the
following admissions and stipulations:
1. That as of August 26, 2003, Kang was
the registered owner of Unit No. 536 and
Parking Slot No. 42;
2. That the mortgage in favor ofOrion
supposedly executed by Kang, with Entry
No. 66432/C-10186 dated February 2,
1999, was subsequently cancelled by
Entry No. 73232/T No. 10186 dated June
16, 2000;
3. That the alleged Dacion en Pagowas
never annotated in CCT Nos. 18186 and
9118;
4. That Orion only paid the appropriate
capital gains tax and the documentary
stamp tax for the alleged Dacion en Pago
on October 15, 2003;
5. That Parking Slot No. 42, covered by
CCT No. 9118, was never mortgaged to
Orion; and
6. That when Suzuki bought the
properties, he went to Orion to obtain
possession of the titles.
The RTC Ruling
In its decision14 dated June 29, 2009, the
Regional Trial Court (RTC), Branch 213,
Mandaluyong City ruled infavor of Suzuki and
ordered Orion to deliver the CCT Nos. 18186 and
9118 to Suzuki.
The court found that Suzuki was an innocent
purchaser for value whose rights over the
properties prevailed over Orions. The RTC
further noted that Suzuki exerted efforts to verify
the status of the properties but he did not find
any existing encumbrance inthe titles. Although
Orion claims to have purchased the property by
way of a Dacion en Pago, Suzuki only learned
about it two (2) months after he bought the
properties because Orion never bothered to
register or annotate the Dacion en Pagoin CCT
Nos. 18186 and 9116.
The RTC further ordered Orion and Kang to
jointly and severally pay Suzuki moral damages,
exemplary damages, attorneys fees, appearance
fees, expenses for litigation and cost ofsuit. Orion
timely appealed the RTC decision with the CA.
The CA Ruling
On August 23, 2012, the CA partially granted
Orions appeal and sustained the RTC insofar as
it upheld Suzukis right over the properties. The
CA further noted that Entry No. 73321/C-10186
pertaining to the withdrawal of investment of an
SRRV only serves as a warning to an SRRV
holder about the implications of a conveyance of
a property investment. It deviated from the RTC
ruling, however, by deleting the award for moral
damages, exemplary damages, attorneys fees,
expenses for litigation and cost of suit.
Orion sought a reconsideration of the CA
decision but the CA denied the motion in its
January 25, 2013 resolution. Orion then filed a
petition for review on certiorariunder Rule 45 with
this Court.
The Petition and Comment
Orions petition is based on the following
grounds/arguments:15
1. The Deed of Sale executed by Kang in
favor of Suzuki is null and void. Under
Korean law, any conveyance of a conjugal
property should be made with the consent
of both spouses;
2. Suzuki is not a buyer in good faith for
he failed to check the owners duplicate
copies of the CCTs;
 3. Knowledge of the PRA restriction under
Entry No. 73321/C-10186, which prohibits
any conveyance or encumbrance of the
property investment, defeats the alleged
claim of good faith by Suzuki; and
4. Orion should not be faulted for
exercising due diligence.
In his Comment,16 Suzuki asserts that the issue
on spousal consent was belatedly raised on
appeal. Moreover, proof of acquisition during the
marital coverture is a condition sine qua nonfor
the operation of the presumption of conjugal
ownership.17 Suzuki additionally maintains that he
is a purchaser in good faith, and is thus entitled
to the protection of the law.
The Courts Ruling
We deny the petition for lack of merit.
The Court may inquire into conclusions of fact
when the inference made is manifestly mistaken
In a Rule 45 petition, the latitude of judicial
review generally excludes a factual and
evidentiary re-evaluation, and the Court ordinarily
abides by the uniform factual conclusions of the
trial court and the appellate court.18 In the present
case, while the courts below both arrived at the
same conclusion, there appears tobe an
incongruence in their factual findings and the
legal principle they applied to the attendant
factual circumstances. Thus, we are compelled to
examine certain factual issues in the exercise of
our sound discretion to correct any mistaken
inference that may have been made.19
Philippine Law governs the transfer of real
property
Orion believes that the CA erred in not ruling on
the issue of spousal consent. We cannot uphold
this position, however, because the issue of
spousal consent was only raised on appeal to the
CA. It is a well-settled principle that points of law,
theories, issues, and arguments not brought to
the attention of the trial court cannot be raised for
the first time on appeal and considered by a
reviewing court.20 To consider these belated
arguments would violate basic principles of
fairplay, justice, and due process.
Having said these, we shall nonetheless discuss
the issues Orion belatedly raised, if only to put an
end to lingering doubts on the correctness of the
denial of the present petition.
It is a universal principle thatreal or immovable
property is exclusively subject to the laws of the
country or state where it is located.21 The reason
is found in the very nature of immovable property
its immobility. Immovables are part of the
country and so closely connected to it that all
rights over them have their natural center of
gravity there.22
Thus, all matters concerning the titleand
disposition ofreal property are determined by
what is known as the lex loci rei sitae, which can
alone prescribe the mode by which a title
canpass from one person to another, or by which
an interest therein can be gained or lost.23 This
general principle includes all rules governing the
descent, alienation and transfer of immovable
property and the validity, effect and construction
of wills and other conveyances.24
This principle even governs the capacity of the
person making a deed relating to immovable
property, no matter what its nature may be. Thus,
an instrument will be ineffective to transfer title to
land if the person making it is incapacitated by
the lex loci rei sitae, even though under the law
of his domicile and by the law of the place where
the instrument is actually made, his capacity is
undoubted.25
On the other hand, property relations between
spouses are governed principally by the national
law of the spouses.26 However, the party invoking
the application of a foreign law has the burden of
proving the foreign law. The foreign law is a
question of fact to be properly pleaded and
proved as the judge cannot take judicial notice of
a foreign law.27 He is presumed to know only
domestic or the law of the forum.28
To prove a foreign law, the party invoking it must
present a copy thereof and comply with Sections
24 and 25 of Rule 132 of the Revised Rules of
Court which reads:
SEC. 24. Proof of official record. The record of
public documents referred to in paragraph (a) of
Section 19, when admissible for any purpose,
may be evidenced by an official publication
thereof or by a copy attested by the officer having
the legal custody of the record, or by his deputy,
and accompanied, if the record is not kept in the
Philippines, with a certificate that such officer has
the custody. If the office in which the record is
kept is in a foreign country, the certificate may be
made by a secretary of the embassy or legation,
consul general, consul, vice consul, or consular
agent or by any officer in the foreign service of
the Philippines stationed in the foreign country
inwhich the record is kept, and authenticated by
the seal of his office. (Emphasis supplied)
SEC. 25. What attestation ofcopy must state.
Whenever a copy of a document or record is
attested for the purpose of the evidence, the
attestation must state, in substance, that the
copy is a correct copy of the original, or a specific
part thereof, as the case may be. The attestation
must be under the official seal of the attesting
officer, if there be any, or if he be the clerk of a
court having a seal, under the seal of such court.
Accordingly, matters concerning the title and
disposition of real property shall be governed by
Philippine law while issues pertaining to the
conjugal natureof the property shall be governed
by South Korean law, provided it is proven as a
fact.
In the present case, Orion, unfortunately failed to
prove the South Korean law on the conjugal
ownership ofproperty. It merely attached a
"Certification from the Embassy of the Republic
of Korea"29 to prove the existence of Korean Law.
This certification, does not qualify as sufficient
proof of the conjugal nature of the property for
there is no showing that it was properly
authenticated bythe seal of his office, as required
under Section 24 of Rule 132.30
Accordingly, the International Law doctrine of
presumed-identity approachor processual
presumption comes into play, i.e., where a
foreign law is not pleaded or, evenif pleaded, is
not proven, the presumption is that foreign law is
the same as Philippine Law.31
Under Philippine Law, the phrase "Yung Sam
Kang married to' Hyun Sook Jung" is merely
descriptive of the civil status of Kang.32 In other
words, the import from the certificates of title is
that Kang is the owner of the properties as they
are registered in his name alone, and that he is
married to Hyun Sook Jung.
We are not unmindful that in numerous cases we
have held that registration of the property in the
name of only one spouse does not negate the
possibility of it being conjugal or community
property.33 In those cases, however, there was
proof that the properties, though registered in the
name of only one spouse, were indeed either
conjugal or community properties.34 Accordingly,
we see no reason to declare as invalid Kangs
conveyance in favor of Suzuki for the supposed
lack of spousal consent.
The petitioner failed to adduce sufficient
evidence to prove the due execution of the
Dacion en Pago
Article 1544 of the New Civil Codeof the
Philippines provides that:
ART. 1544. If the same thing should have been
sold to different vendees, the ownership shall be
transferred to the person who may have first
taken possession thereof in good faith, if it should
be movable property.
Should it be immovable property, the ownership
shall belong to the person acquiring it who in
good faith first recorded it in the Registry of
Property.
Should there be no inscription, the ownership
shall pertain to the person who in good faith was
first in the possession; and, in the absence
thereof, to the person who presents the oldest
title, provided there is good faith.
The application of Article 1544 of the New Civil
Code presupposes the existence of two or more
duly executed contracts of sale. In the present
case, the Deed of Sale dated August 26,
200335 between Suzuki and Kang was admitted
by Orion36 and was properly identified by Suzukis
witness Ms. Mary Jane Samin (Samin).37
It is not disputed, too, that the Deed of Sale
dated August 26, 2003 was consummated. In a
contract of sale, the seller obligates himself to
transfer the ownership of the determinate thing
sold, and to deliver the same to the buyer, who
obligates himself to pay a price certain to the
seller.38 The execution of the notarized deed of
saleand the actual transfer of possession
amounted to delivery that produced the legal
effect of transferring ownership to Suzuki.39
On the other hand, although Orion claims priority
in right under the principle of prius tempore,
potior jure (i.e.,first in time, stronger in right), it
failedto prove the existence and due execution of
the Dacion en Pagoin its favor.
At the outset, Orion offered the Dacion en
Pagoas Exhibit "5"with submarkings "5-a" to "5-c"
to prove the existence of the February 6, 2003
transaction in its Formal Offer dated July 20,
2008. Orion likewise offered in evidence the
supposed promissory note dated September 4,
2002 as Exhibit "12"to prove the existence of the
additional P800,000.00 loan. The RTC, however,
denied the admission of Exhibits "5" and
"12,"among others, in its order dated August 19,
2008 "since the same [were] not identified in
court by any witness."40
Despite the exclusion of its most critical
documentary evidence, Orion failed to make a
tender ofexcluded evidence, as provided under
Section 40, Rule 132 of the Rules of Court. For
this reason alone, we are prevented from
seriously considering Exhibit "5" and its
submarkings and Exhibit "12" in the present
petition.
Moreover, even if we consider Exhibit "5" and its
submarkings and Exhibit "12" in the present
petition, the copious inconsistencies and
contradictions in the testimonial and
documentary evidence of Orion, militate against
the conclusion that the Dacion en Pagowas duly
executed. First, there appears to be no due and
demandable obligation when the Dacion en Pago
was executed, contrary to the allegations of
Orion. Orions witness Perez tried to impress
upon the RTC that Kang was in default in
his P1,800,000.00 loan. During his direct
examination, he stated:
ATTY. CRUZAT:
Q: Okay, so this loan of P1.8 million, what
happened to this loan, Mr. Witness?
A: Well it became past due, there has
been delayed interest payment by Mr.
Kangand...
Q: So what did you do after there were
defaults[?]
A: We have to secure the money or the
investment of the bank through loans and
we have executed a dacion en
pagobecause Mr. Kang said he has no
money. So we just execute[d] the dacion
en pago rather than going through the
Foreclosure proceedings.
xxxx
Q: Can you tell the court when was this
executed?
A: February 6, 2003, your Honor.41
A reading of the supposed promissory note,
however, shows that there was nodefault to
speak of when the supposed Dacion en Pagowas
executed.
Based on the promissory note, Kangs loan
obligation wouldmature only on August 27, 2003.
Neither can Orion claim that Kang had been in
default in his installment payments because the
wordings of the promissory note provide that
"[t]he principal of this loanand its interest and
other charges shall be paid by me/us in
accordance hereunder: SINGLE PAYMENT
LOANS.42 "There was thus no due and
demandable loan obligation when the alleged
Dacion en Pago was executed.
Second, Perez, the supposed person who
prepared the Dacion en Pago,appears to only
have a vague idea of the transaction he
supposedly prepared. During his cross-
examination, he testified:
ATTY. DE CASTRO:
Q: And were you the one who prepared
this [dacion en pago] Mr. witness?
A: Yes, sir. I personally prepared this.
xxxx
Q: So this 1.8 million pesos is already
inclusive of all the penalties, interest and
surcharge due from Mr. Yung Sam Kang?
A: Its just the principal, sir.
Q: So you did not state the interest [and]
penalties?
A: In the [dacion en pago], we do not
include interest, sir. We may actually
includethat but....
Q: Can you read the Second Whereas
Clause, Mr. Witness?
A: Whereas the first party failed to pay the
said loan to the second party and as of
February 10, 2003, the outstanding
obligation which is due and demandable
principal and interest and other charges
included amounts to P1,800,000.00
pesos, sir.
xxxx
Q: You are now changing your answer[.]
[I]t now includes interest and other
charges, based on this document?
A: Yes, based on that document, sir.43
Third, the Dacion en Pago,mentioned that
the P1,800,000.00 loan was secured by a
real estate mortgage. However, no
document was ever presented to prove
this real estate mortgage aside from it
being mentioned in the Dacion en Pago
itself.
ATTY. DE CASTRO:
Q: Would you know if there is any other
document like a supplement to that Credit
Line Agreement referring to this 1.8
million peso loan by Mr. Yung Sam Kang
which says that there was a subsequent
collateralization or security given by Mr.
Yung [Sam]
Kang for the loan?
xxxx
A: The [dacion en pago], sir.44
Fourth,the Dacion en Pago was first mentioned
only two (2) months after Suzuki and Samin
demanded the delivery of the titles sometime in
August 2003,and after Suzuki caused the
annotation of his affidavit of adverse claim.
Records show that it was only on October 9,
2003, when Orion, through its counsel, Cristobal
Balbin Mapile & Associates first spoke of the
Dacion en Pago.45 Not even Perez mentioned any
Dacion en Pago on October 1, 2003, when he
personally received a letter demanding the
delivery of the titles.Instead, Perez refused to
accept the letter and opted to first consult with his
lawyer.46
Notably, even the October 9, 2003 letter
contained material inconsistencies in its recital of
facts surrounding the execution of the Dacion en
Pago. In particular, it mentioned that "on
[September 4, 2002], after paying the original
loan, [Kang] applied and was granted a new
Credit Line Facility by [Orion] x x x for ONE
MILLION EIGHT HUNDRED THOUSAND
PESOS (P1,800,000.00)." Perez, however,
testified that there was "no cash movement" in
the original P1,000,000.00 loan. In his testimony,
he said:
COURT:
xxxx
Q: Would you remember what was the
subject matter of that real estate
mortgage for that first P1,000,000.00
loan?
A: Its a condominium Unit in Cityland, sir.
xxxx
Q: Would you recall if there was any
payment by Mr. Yung Sam Kang of
this P1,000,000.00 loan?
A: None sir.
Q: No payments?
A: None sir.
 Q: And from 1999 to 2002, there was no
payment, either by way of payment to the
principal, by way ofpayment of interest,
there was no payment by Mr. Yung Sam
Kang of this loan?
A: Literally, there was no actual cash
movement, sir.
Q: There was no actual cash?
A: Yes, sir.
Q: And yet despite no payment, the bank
Orion Savings Bank still extended
an P800,000.00 additional right?
A: Yes, sir.47
Fifth, it is undisputed that notwithstanding the
supposed execution of theDacion en Pago on
February 2, 2003, Kang remained in possession
of the condominium unit. In fact, nothing in the
records shows that Orion even bothered to take
possession of the property even six (6) months
after the supposed date of execution of the
Dacion en Pago. Kang was even able to transfer
possession of the condominium unit to Suzuki,
who then made immediate improvements
thereon. If Orion really purchased the
condominium unit on February 2, 2003 and
claimed to be its true owner, why did it not assert
its ownership immediately after the alleged sale
took place? Why did it have to assert its
ownership only after Suzuki demanded the
delivery of the titles? These gaps have remained
unanswered and unfilled.
In Suntay v. CA,48 we held that the most
prominent index of simulation is the complete
absence of anattempt on the part of the vendee
to assert his rights of ownership over the property
in question. After the sale, the vendee should
have entered the land and occupied the
premises. The absence of any attempt on the
part of Orion to assert its right of dominion over
the property allegedly soldto it is a clear badge of
fraud. That notwithstanding the execution of the
Dacion en Pago, Kang remained in possession of
the disputed condominium unit from the time of
the execution of the Dacion en Pagountil the
propertys subsequent transfer to Suzuki
unmistakably strengthens the fictitious nature of
the Dacion en Pago.
These circumstances, aside from the glaring
inconsistencies in the documents and testimony
of Orions witness, indubitably prove the spurious
nature of the Dacion en Pago.
The fact that the Dacion en Pago
is a notarized document does not
support the conclusion that the
sale it embodies is a true
conveyance
Public instruments are evidence of the facts that
gave rise to their execution and are to be
considered as containing all the terms of the
agreement.49 While a notarized document enjoys
this presumption, "the fact that a deed is
notarized is not a guarantee of the validity of its
contents."50 The presumption of regularity of
notarized documents is not absolute and may be
rebutted by clear and convincing evidence to the
contrary.51
In the present case, the presumption cannot
apply because the regularity in the execution of
the Dacion en Pago and the loan documents was
challenged in the proceedings below where their
prima facievalidity was overthrown by the highly
questionable circumstances surrounding their
execution.52
Effect of the PRA restriction on
the validity of Suzukis title to the
property
Orion argues that the PRA restriction in CCT No.
18186 affects the conveyance to Suzuki. In
particular, Orion assails the status of Suzuki as a
purchaser in good faith in view of the express
PRA restriction contained in CCT No. 18186.53
We reject this suggested approachoutright
because, to our mind, the PRA restriction cannot
affect the conveyance in favor of Suzuki. On this
particular point, we concur withthe following
findings of the CA:
x x x the annotation merely servesas a warning
to the owner who holds a Special Resident
Retirees Visa(SRRV) that he shall lose his visa if
he disposes his property which serves as his
investment in order to qualify for such status.
Section 14 of the Implementing Investment
Guidelines under Rule VIII-A of the Rules and
Regulations Implementing Executive Order No.
1037, Creating the Philippine Retirement Park
System Providing Funds Therefor and For Other
Purpose ( otherwise known as the Philippine
Retirement Authority) states:

Section 14. Should the retiree-investor withdraw

his investment from the Philippines, or transfer
the same to another domestic enterprise, orsell,
convey or transfer his condominium unit or units
to another person, natural or juridical without the
prior approval of the Authority, the Special
Resident Retirees Visa issued to him, and/or
unmarried minor child or children[,] may be
cancelled or revoked by the Philippine
Government, through the appropriate
government department or agency, upon
recommendation of the Authority.54

Moreover, Orion should not be allowed to

successfully assail the good faith of Suzuki on
the basis of the PRA restriction. Orion knew of
the PRA restriction when it transacted with Kang.
Incidentally, Orion admitted accommodating
Kangs request to cancel the mortgage
annotation despite the lack of payment to
circumvent the PRA restriction. Orion, thus, is
estopped from impugning the validity of the
conveyance in favor of Suzuki on the basis of the
PRA restriction that Orion itself ignored and
"attempted" to circumvent.

With the conclusion that Orion failed to prove the

authenticity of the Dacion en Pago, we see no
reason for the application of the rules on double
sale under Article 1544 of the New Civil Code.
Suzuki, moreover, successfully adduced
sufficient evidence to establish the validity of
conveyance in his favor.

WHEREFORE, premises considered, we DENY

the petition for lack of merit. Costs against
petitioner Orion Savings Bank.

SO ORDERED.

ARTURO D. BRION
Associate Justice

WE CONCUR: