Persons and Family Relations | Case digests for Articles 41 to 63
Art. 41 and 42 | Case No. 1:
Republic v. Nolasco
G.R. NO. 94053 March 17, 1993
FACTS:
Nolasco, a seaman, first met Janet
Monica Parker in a bar in England. After
that, she lived with him on his ship for 6
months. After his seaman's contract has
expired, he brought her to his hometown
in San Jose, Antique. They got married
in January 1982.
After the marriage celebration, he got
another employment contract and left
the province. In January 1983, Nolasco
received a letter from his mother that 15
days after Janet gave birth to their son,
she left. He cut short his contract to find
Janet. He returned home in November
1983.
He did so by securing another contract
which England is one of its port calls. He
wrote several letters to the bar where he
and Janet first met, but all were returned
to him. He claimed that he inquired from
his friends but they too had no news
about Janet. In 1988, Nolasco filed
before the RTC of Antique a petition for
the declaration of presumptive death of
his wife Janet.
RTC granted the petition. The Republic
through the Solicitor-General, appealed
to the CA, contending that the trial court
erred in declaring Janet presumptively
dead because Nolasco had failed to
show that there existed a well-founded
belief for such declaration. CA affirmed
the trial court's decision.
ISSUE:
Whether or not Nolasco has a well-
founded belief that his wife is already
dead.
RULING:
No. Nolasco failed to prove that he had
complied with the third requirement
under the Article 41 of the Family Code,
the existence of a "well-founded belief"
that Janet is already dead.
Under Article 41, the time required for
the presumption to arise has been
shortened to 4 years; however, there is
a need for judicial declaration of
presumptive death to enable the spouse
present to marry. However, Article 41
imposes a stricter standard before
declaring presumptive death of one
spouse. It requires a "well-founded
belief" that the absentee is already dead
before a petition for declaration of
presumptive death can be granted.
In the case at bar, the Court found
Nolasco's alleged attempt to ascertain
about Janet's whereabouts too sketchy
to form the basis of a reasonable or
well-founded belief that she was already
dead.
Nolasco, after returning from his
employment, instead of seeking help of
local authorities or of the British
Embassy, secured another contract to
London. Janet's alleged refusal to give
any information about her was too
convenient an excuse to justify his
failure to locate her. He did not explain
why he took him 9 months to finally
reached San Jose after he asked leave
from his captain. He refused to identify
his friends whom he inquired from.
When the Court asked Nolasco about
the returned letters, he said he had lost
them. Moreover, while he was in
London, he did not even dare to solicit
help of authorities to find his wife.
The circumstances of Janet's departure
and Nolasco's subsequent behavior
make it very difficult to regard the
claimed belief that Janet was dead a
well-founded one.
 Persons and Family Relations | Case digests for Articles 41 to 63
Art. 41 and 42 | Case No. 2:
Republic v. Tango
G.R. No. 161062, 31 July 2009,
FACTS:
In 1987, Ferventino Tango, respondent,
and Maria Jose Villarba were married in
civil rites. Tango and Villarba had only
spent a night together and had been
intimate once when Villarba told
Ferventino that she and her family will
soon be leaving for the USA. Villarba
assured Tango that the former will file a
petition so that the latter can live with
her in the USA and in the event that the
petition is denied, Villarba promised to
return to the Philippines to live with
Tango.
Thereafter, Villarba and her family flew
to Seattle, USA. Tango and Villarba kept
in touch for a year before Villarba
stopped responding to Tango’s
letters. Tango had inquired from
Villarba’s uncle of Villarba’s
whereabouts but it turned out that even
the latter’s relatives had no idea. Tango
solicited the assistance of a friend in
Texas, but to no avail. Finally, Tango
sought the aid of his parents in Los
Angeles and his aunt in Seattle, but
again, to no avail. This prompted Tango
to file a petition before the RTC for the
declaration of presumptive death of
Villarba under Article 41 of the Family
Code.
The RTC issued an Order declaring
Villarba presumptively dead. On appeal
by the Republic of the Philippines, the
CA affirmed the RTC’s order.
ISSUE:
Whether Tango has established a basis
to form a well-founded belief that his
absent spouse is already dead.
HELD:
By express provision of law, the
judgment of the court in a summary
proceeding shall be immediately final
and executory. As a matter of course, it
follows that no appeal can be had of the
trial court’s judgment in a summary
proceeding for the declaration of
presumptive death of an absent spouse
under Article 41 of the Family Code. It
goes without saying, however, that an
aggrieved party may file a petition for
certiorari to question abuse of discretion
amounting to lack of jurisdiction. Such
petition should be filed in the Court of
Appeals in accordance with the Doctrine
of Hierarchy of Courts. To be sure, even
if the Court’s original jurisdiction to issue
a writ of certiorari is concurrent with the
RTCs and the Court of Appeals in
certain cases, such concurrence does
not sanction an unrestricted freedom of
choice of court forum. From the decision
of the Court of Appeals, the losing party
may then file a petition for review on
certiorari under Rule 45 of the Rules of
Court with the Supreme Court. This is
because the errors which the court may
commit in the exercise of jurisdiction are
merely errors of judgment which are the
proper subject of an appeal. In the case
before us, petitioner committed a
serious procedural lapse when it filed a
notice of appeal in the Court of Appeals
instead of a petition for certiorari. The
RTC equally erred in giving due course
to said appeal and ordering the
transmittal of the records of the case to
the appellate court. By no means did the
Court of Appeals acquire jurisdiction to
review the judgment of the RTC which,
by express provision of law, was
immediately final and executory. Adding
to the confusion, the Court of Appeals
entertained the appeal and treated the
same as an ordinary appeal under Rule
41 of he Rules of Court. As it were, the
Court of Appeals committed grave
reversible error when it failed to dismiss
the erroneous appeal of the Republic on
the ground of lack of jurisdiction
because, by express provision of the
law, the judgment was not appealable.
 Persons and Family Relations | Case digests for Articles 41 to 63

Before us, petitioner filed a petition for

review on certiorari under Rule 45 of the
Rules of Court. But, even if petitioner
used the correct mode of appeal at this
level, the hands of the Court are tied.
Without a doubt, the decision of the trial
court had long become final. Deeply
ingrained in our jurisprudence is the
principle that a decision that has
acquired finality becomes immutable
and unalterable. As such, it may no
longer be modified in any respect even if
the modification is meant to correct
erroneous conclusions of fact or law and
whether it will be made by the court that
rendered it or by the highest court of the
land. In light of the foregoing, it would be
unnecessary, if not useless, to discuss
the issues raised by petitioner. The
doctrine of finality of judgment is
grounded on the fundamental principle
of public policy and sound practice that,
at the risk of occasional error, the
judgment of courts and the award of
quasi-judicial agencies must become
final on some definite date fixed by law.
The only exceptions to the general rule
are the correction of clerical errors, the
so called nunc pro tunc entries which
cause no prejudice to any party, void
judgments, and whenever
circumstances transpire after the finality
of the decision which render its
execution unjust and inequitable. None
of the exceptions obtains here to merit
the review sought.
 Persons and Family Relations | Case digests for Articles 41 to 63
Art. 41 and 42 | Case No. 3:
Republic v. Granada
G.R. No. 187512, [June 13, 2012]
DOCTRINE:
Even if the RTC erred in ruling that
therespondent was able to prove her
“well-founded belief” that her absent
spouse was already dead, such order
already final and can no longer be
modified or reversed. Indeed, “[n]othing
is more settled in law than that when a
judgment becomes final and executory,
it becomes immutable and unalterable.
The same may no longer be modified in
any respect, even if the modification is
meant to correct what is perceived to be
an erroneous conclusion of fact or law.”
FACTS:
Cyrus and Yolanda Granada, both
employees of Sumida Electric Company,
got married in 1993.
Sometime in May 1994, when Sumida
Electric Philippines closed down, Cyrus
went to Taiwan to seek employment.
Yolanda claimed that from that time, she
did not receive any communication from
her husband, notwithstanding efforts to
locate him. Her brother testified that he
had asked the relatives of Cyrus
regarding the latter’s whereabouts, to no
avail.
After nine (9) years of waiting, Yolanda
filed a Petition to have Cyrus declared
presumptively dead with the RTC Lipa
City. On 7 February 2005, the RTC
rendered a Decision declaring Cyrus as
presumptively dead.
On 10 March 2005, petitioner Republic
of the Philippines, represented by the
OSG, filed a Motion for Reconsideration
of this Decision. Petitioner argued that
Yolanda had failed to exert earnest
efforts to locate Cyrus and thus failed to
prove her well-founded belief that he
was already dead. The motion was
denied. The OSG then elevated the
case on appeal to the Court of Appeals.
Yolanda filed a Motion to Dismiss on the
ground that the CA had no jurisdiction
over the appeal. She argued that her
Petition for Declaration of Presumptive
Death, based on Article 41 of the Family
Code, was a summary judicial
proceeding, in which the judgment is
immediately final and executory and,
thus, not appealable.
The appellate court granted Yolanda’s
Motion to Dismiss on the ground of lack
of jurisdiction. Citing Republic v.
Bermudez-Lorino, the CA ruled that a
petition for declaration of presumptive
death under Rule 41 of the Family Code
is a summary proceeding. Thus,
judgment thereon is immediately final
and executory upon notice to the
parties.
Petitioner moved for reconsideration,
which was denied. Hence, the present
petition under Rule 45.
ISSUES:
1. Whether the order of the RTC in a
summary proceeding for the declaration
of presumptive death is immediately
final and executory upon notice to the
parties and, hence, is not subject to
ordinary appeal.
2. Whether the CA erred in affirming the
RTC’s grant of the petition for
declaration of presumptive death based
on evidence that respondent had
presented.
HELD:
Yes, the declaration of presumptive
death is finaland immediately executory.
Even if the RTC erred in granting the
petition, such order can no longer be
assailed.
 Persons and Family Relations | Case digests for Articles 41 to 63
RATIO:
1. A petition for declaration of
presumptive death of an absent spouse
for the purpose of contracting a
subsequent marriage under Article 41 of
the Family Code is a summary
proceeding “as provided for” under the
Family Code. Taken together, Articles
41, 238, 247 and 253 of the Family
Code provide that since a petition for
declaration of presumptive death is a
summary proceeding, the judgment of
the court therein shall be immediately
final and executory.
By express provision of law, the
judgment of the court in a summary
proceeding shall be immediately final
and executory. As a matter of course, it
follows that no appeal can be had of the
trial court’s judgment in a summary
proceeding for the declaration of
presumptive death of an absent spouse
under Article 41 of the Family Code. It
goes without saying, however, that an
aggrieved party may file a petition for
certiorari to question abuse of discretion
amounting to lack of jurisdiction. Such
petition should be filed in the Court of
Appeals in accordance with the Doctrine
of Hierarchy of Courts. To be sure, even
if the Court’s original jurisdiction to issue
a writ of certiorari is concurrent with the
RTCs and the Court of Appeals in
certain cases, such concurrence does
not sanction an unrestricted freedom of
choice of court forum. From the decision
of the Court of Appeals, the losing party
may then file a petition for review on
certiorari under Rule 45 of the Rules of
Court with the Supreme Court. This is
because the errors which the court may
commit in the exercise of jurisdiction are
merely errors of judgment which are the
proper subject of an appeal.
In sum, under Article 41 of the Family
Code, the losing party in a summary
proceeding for the declaration of
presumptive death may file a petition for
certiorari with the CA on the ground that,
in rendering judgment thereon, the trial
court committed grave abuse of
discretion amounting to lack of
jurisdiction. From the decision of the CA,
the aggrieved party may elevate the
matter to this Court via a petition for
review on certiorari under Rule 45 of the
Rules of Court.
2. Petitioner also assails the RTC’s
grant of the Petition for Declaration of
Presumptive Death of the absent
spouse of respondent on the ground that
she had not adduced the evidence
required to establish a well-founded
belief that her absent spouse was
already dead, as expressly required by
Article 41 of the Family Code.
For the purpose of contracting the
subsequent marriage under the
preceding paragraph, the spouse
present must institute a summary
proceeding as provided in this Code for
the declaration of presumptive death of
the absentee, without prejudice to the
effect of reappearance of the absent
spouse.
The spouse present is, thus, burdened
to prove that his spouse has been
absent and that he has a well-founded
belief that the absent spouse is already
dead before the present spouse may
contract a subsequent marriage. The
law does not define what is meant by a
well-grounded belief is a state of the
mind or condition prompting the doing of
an overt act. It may be proved by direct
evidence or circumstantial evidence
which may tend, even in a slight degree,
to elucidate the inquiry or assist to a
determination probably founded in truth.
Any fact or circumstance relating to the
character, habits, conditions,
attachments, prosperity and objects of
life which usually control the conduct of
men, and are the motives of their
actions, was, so far as it tends to explain
 Persons and Family Relations | Case digests for Articles 41 to 63

or characterize their disappearance or The RTC ruling on the issue of whether

throw light on their intentions,
competence evidence on the ultimate
question of his death.
The belief of the present spouse must
be the result of proper and honest to
goodness inquiries and efforts to
ascertain the whereabouts of the absent
spouse and whether the absent spouse
is still alive or is already dead. Whether
or not the spouse present acted on a
well-founded belief of death of the
absent spouse depends upon the
inquiries to be drawn from a great many
circumstances occurring before and
after the disappearance of the absent
spouse and the nature and extent of the
inquiries made by present spouse.
(Footnotes omitted, underscoring
supplied.)
respondent was able to prove her “well-
founded belief” that her absent spouse
was already dead prior to her filing of
the Petition to declare him presumptively
dead is already final and can no longer
be modified or reversed. Indeed,
“[n]othing is more settled in law than that
when a judgment becomes final and
executory, it becomes immutable and
unalterable. The same may no longer be
modified in any respect, even if the
modification is meant to correct what is
perceived to be an erroneous conclusion
of fact or law.

Applying the foregoing standards to the

present case, petitioner points out that
respondent Yolanda did not initiate a
diligent search to locate her absent
husband. While her brother Diosdado
Cadacio testified to having inquired
about the whereabouts of Cyrus from
the latter’s relatives, these relatives
were not presented to corroborate
Diosdado’s testimony. In short,
respondent was allegedly not diligent in
her search for her husband. Petitioner
argues

that if she were, she would have sought

information from the Taiwanese
Consular Office or assistance from other
government agencies in Taiwan or the
Philippines. She could have also utilized
mass media for this end, but she did not.
Worse, she failed to explain these
omissions.

The Republic’s arguments are well-

taken. Nevertheless, we are constrained
to deny the Petition.
 Persons and Family Relations | Case digests for Articles 41 to 63
Art. 41 and 42 | Case No. 4:
Republic v. Cantor
FACTS:
The respondent and Jerry were married
on September 20, 1997. They lived
together as husband and wife in their
conjugal dwelling in Agan Homes,
Koronadal City, South Cotabato.
Sometime in January 1998, the couple
had a violent quarrel brought about by:
(1) the respondent’s inability to reach
"sexual climax" whenever she and Jerry
would have intimate moments; and (2)
Jerry’s expression of animosity toward
the respondent’s father.
After their quarrel, Jerry left their
conjugal dwelling and this was the last
time that the respondent ever saw him.
Since then, she had not seen,
communicated nor heard anything from
Jerry or about his whereabouts.
On May 21, 2002, or more than four (4)
years from the time of Jerry’s
disappearance, the respondent filed
before the RTC a petition4for her
husband’s declaration of presumptive
death, docketed as SP Proc. Case No.
313-25. She claimed that she had a
well-founded belief that Jerry was
already dead. She alleged that she had
inquired from her mother-in-law, her
brothers-in-law, her sisters-in-law, as
well as her neighbors and friends, but to
no avail. In the hopes of finding Jerry,
she also allegedly made it a point to
check the patients’ directory whenever
she went to a hospital. All these earnest
efforts, the respondent claimed, proved
futile, prompting her to file the petition in
court.
ISSUE:
W/N the petition for the declaration of
presumptive death should be granted
RULING:
NO. Before a judicial declaration of
presumptive death can be obtained, it
must be shown that the prior spouse
had been absent for four consecutive
years and the present spouse had a
well-founded belief that the prior spouse
was already dead. Under Article 41 of
the Family Code, there are four (4)
essential requisites for the declaration of
presumptive death:
1. That the absent spouse has been
missing for four consecutive years,
or two consecutive years if the
disappearance occurred where there
is danger of death under the
circumstances laid down in Article
391, Civil Code;
2. That the present spouse wishes to
remarry;
3. That the present spouse has a
well-founded belief that the absentee
is dead; and
4. That the present spouse files a
summary proceeding for the
declaration of presumptive death of
the absentee
Notably, Article 41 of the Family Code,
compared to the old provision of the
Civil Code which it superseded, imposes
a stricter standard. It requires a "well-
founded belief " that the absentee is
already dead before a petition for
declaration of presumptive death can be
granted.
In the case at bar, the respondent’s
"well-founded belief" was anchored on
her alleged "earnest efforts" to locate
Jerry, which consisted of the following:
(1) She made inquiries about Jerry’s
whereabouts from her in-laws,
neighbors and friends; and
(2) Whenever she went to a hospital,
she saw to it that she looked through
the patients’ directory, hoping to find
Jerry.
 Persons and Family Relations | Case digests for Articles 41 to 63

These efforts, however, fell short of the
"stringent standard" and degree of
diligence required by jurisprudence for
the following reasons:
First, the respondent did not actively
look for her missing husband. It can be
inferred from the records that her
hospital visits and her consequent
checking of the patients’ directory
therein were unintentional. She did not
purposely undertake a diligent search
for her husband as her hospital visits
were not planned nor primarily directed
to look for him. This Court thus
considers these attempts insufficient to
engender a belief that her husband is
dead.
evidence proving that she had a well-
founded belief other than her bare
claims that she inquired from her friends
and in-laws about her husband’s
whereabouts. In sum, the Court is of the
view that the respondent merely
engaged in a "passive search" where
she relied on uncorroborated inquiries
from her in-laws, neighbors and friends.
She failed to conduct a diligent search
because her alleged efforts are
insufficient to form a well-founded belief
that her husband was already dead.

Second, she did not report Jerry’s

absence to the police nor did she seek
the aid of the authorities to look for him.
While a finding of well-founded belief
varies with the nature of the situation in
which the present spouse is placed,
under present conditions, we find it
proper and prudent for a present
spouse, whose spouse had been
missing, to seek the aid of the
authorities or, at the very least, report
his/her absence to the police.

Third, she did not present as witnesses

Jerry’s relatives or their neighbors and
friends, who can corroborate her efforts
to locate Jerry. Worse, these persons,
from whom she allegedly made
inquiries, were not even named. As held
in Nolasco, the present spouse’s bare
assertion that he inquired from his
friends about his absent spouse’s
whereabouts is insufficient as the names
of the friends from whom he made
inquiries were not identified in the
testimony nor presented as witnesses.

Lastly, there was no other corroborative

evidence to support the respondent’s
claim that she conducted a diligent
search. Neither was there supporting
 Persons and Family Relations | Case digests for Articles 41 to 63
Art. 41 and 42 | Case No. 5:
Celerina Santos v. Ricardo Santos
**NO CASE DIGEST**
G.R. No. 187061, October 08, 2014
LEONEN, J.:
The proper remedy for a judicial declaration of
presumptive death obtained by extrinsic fraud
is an action to annul the judgment. An affidavit
of reappearance is not the proper remedy
when the person declared presumptively dead
has never been absent.
This is a petition for review on certiorari filed by
Celerina J. Santos, assailing the Court of
Appeals' resolutions dated November 28, 2008
and March 5, 2009. The Court of Appeals
dismissed the petition for the annulment of the
trial court's judgment declaring her
presumptively dead.
On July 27, 2007, the Regional Trial Court of
Tarlac City declared petitioner Celerina J.
Santos (Celerina) presumptively dead after her
husband, respondent Ricardo T. Santos
(Ricardo), had filed a petition for declaration of
absence or presumptive death for the purpose
of remarriage on June 15, 2007.[1] Ricardo
remarried on September 17, 2008.[2]
In his petition for declaration of absence or
presumptive death, Ricardo alleged that he and
Celerina rented an apartment somewhere in
San Juan, Metro Manila; after they had gotten
married on June 18, 1980.[3] After a year, they
moved to Tarlac City. They were engaged in
the buy and sell business.[4]
Ricardo claimed that their business did not
prosper.[5] As a result, Celerina convinced him
to allow her to work as a domestic helper in
Hong Kong.[6] Ricardo initially refused but
because of Celerina's insistence, he allowed
her to work abroad.[7] She allegedly applied in
an employment agency in Ermita, Manila, in
February 1995. She left Tarlac two months
after and was never heard from again.[8]
Ricardo further alleged that he exerted efforts
to locate Celerina.[9] He went to Celerina's
parents in Cubao, Quezon City, but they, too,
did not know their daughter's whereabouts.[10]
He also inquired about her from other relatives
and friends, but no one gave him any
information.[11]
Ricardo claimed that it was almost 12 years
from the date of his Regional Trial Court
petition since Celerina left. He believed that
she had passed away.[12]
Celerina claimed that she learned about
Ricardo's petition only sometime in October
2008 when she could no longer avail the
remedies of new trial, appeal, petition for relief,
or other appropriate remedies.[13]
On November 17, 2008, Celerina filed a
petition for annulment of judgment[14] before
the Court of Appeals on the grounds of
extrinsic fraud and lack of jurisdiction. She
argued that she was deprived her day in court
when Ricardo, despite his knowledge of her
true residence, misrepresented to the court that
she was a resident of Tarlac City.[15] According
to Celerina, her true residence was in Neptune
Extension, Congressional Avenue, Quezon
City.[16] This residence had been her and
Ricardo's conjugal dwelling since 1989 until
Ricardo left in May 2008.[17] As a result of
Ricardo's misrepresentation, she was deprived
of any notice of and opportunity to oppose the
petition declaring her presumptively dead.[18]
Celerina claimed that she never resided in
Tarlac. She also never left and worked as a
domestic helper abroad.[20] Neither did she go
to an employment agency in February 1995.
[21] She also claimed that it was not true that
she had been absent for 12 years. Ricardo was
aware that she never left their conjugal
dwelling in Quezon City.[22] It was he who left
the conjugal dwelling in May 2008 to cohabit
with another woman.[23] Celerina referred to a
joint affidavit executed by their children to
support her contention that Ricardo made false
allegations in his petition.[24]
Celerina also argued that the court did not
acquire jurisdiction over Ricardo's petition
 Persons and Family Relations | Case digests for Articles 41 to 63
because it had never been published in a
newspaper.[25] She added that the Office of
the Solicitor General and the Provincial
Prosecutor's Office were not furnished copies
of Ricardo's petition.[26]
The Court of Appeals issued the resolution
dated November 28, 2008, dismissing
Celerina's petition for annulment of judgment
for being a wrong mode of remedy.[27]
According to the Court of Appeals, the proper
remedy was to file a sworn statement before
the civil registry, declaring her reappearance in
accordance with Article 42 of the Family Code.
[28]
Celerina filed a motion for reconsideration of
the Court of Appeals' resolution dated
November 28, 2008.[29] The Court of Appeals
denied the motion for reconsideration in the
resolution dated March 5, 2009.[30]
Hence, this petition was filed.
The issue for resolution is whether the Court of
Appeals erred in dismissing Celerina's petition
for annulment of judgment for being a wrong
remedy for a fraudulently obtained judgment
declaring presumptive death.
Celerina argued that filing an affidavit of
reappearance under Article 42 of the Family
Code is appropriate only when the spouse is
actually absent and the spouse seeking the
declaration of presumptive death actually has a
well-founded belief of the spouse's death.[31]
She added that it would be inappropriate to file
an affidavit of reappearance if she did not
disappear in the first place.[32] She insisted
that an action for annulment of judgment is
proper when the declaration of presumptive
death is obtained fraudulently.[33]
Celerina further argued that filing an affidavit of
reappearance under Article 42 of the Family
Code would not be a sufficient remedy
because it would not nullify the legal effects of
the judgment declaring her presumptive death.
[34]
In Ricardo's comment,[35] he argued that a
petition for annulment of judgment is not the
proper remedy because it cannot be availed
when there are other remedies available.
Celerina could always file an affidavit of
reappearance to terminate the subsequent
marriage. Ricardo iterated the Court of
Appeals' ruling that the remedy afforded to
Celerina under Article 42 of the Family Code is
the appropriate remedy.
The petition is meritorious.
Annulment of judgment is the remedy when the
Regional Trial Court's judgment, order, or
resolution has become final, and the "remedies
of new trial, appeal, petition for relief (or other
appropriate remedies) are no longer available
through no fault of the petitioner."[36]
The grounds for annulment of judgment are
extrinsic fraud and lack of jurisdiction.[37] This
court defined extrinsic fraud in Stilianopulos v.
City of Legaspi:[38]
For fraud to become a basis for annulment of
judgment, it has to be extrinsic or actual. It is
intrinsic when the fraudulent acts pertain to an
issue involved in the original action or where
the acts constituting the fraud were or could
have been litigated, It is extrinsic or collateral
when a litigant commits acts outside of the trial
which prevents a parly from having a real
contest, or from presenting all of his case, such
that there is no fair submission of the
controversy.[39] (Emphasis supplied)
Celerina alleged in her petition for annulment of
judgment that there was fraud when Ricardo
deliberately made false allegations in the court
with respect to her residence.[40] Ricardo also
falsely claimed that she was absent for 12
years. There was also no publication of the
notice of hearing of Ricardo's petition in a
newspaper of general circulation.[41] Celerina
claimed that because of these, she was
deprived of notice and opportunity to oppose
Ricardo's petition to declare her presumptively
dead.[42]
 Persons and Family Relations | Case digests for Articles 41 to 63
Celerina alleged that all the facts supporting
Ricardo's petition for declaration of
presumptive death were false.[43] Celerina
further claimed that the court did not acquire
jurisdiction because the Office of the Solicitor
General and the Provincial Prosecutor's Office
were not given copies of Ricardo's petition.[44]
These are allegations of extrinsic fraud and
lack of jurisdiction. Celerina alleged in her
petition with the Court of Appeals sufficient
ground/s for annulment of judgment.
Celerina filed her petition for annulment of
judgment[45] on November 17, 2008. This was
less than two years from the July 27, 2007
decision declaring her presumptively dead and
about a month from her discovery of the
decision in October 2008. The petition was,
therefore, filed within the four-year period
allowed by law in case of extrinsic fraud, and
before the action is barred by laches, which is
the period allowed in case of lack of
jurisdiction.[46]
There was also no other sufficient remedy
available to Celerina at the time of her
discovery of the fraud perpetrated on her.
The choice of remedy is important because
remedies carry with them certain admissions,
presumptions, and conditions.
The Family Code provides that it is the proof of
absence of a spouse for four consecutive
years, coupled with a well-founded belief by the
present spouse that the absent spouse is
already dead, that constitutes a justification for
a second marriage during the subsistence of
another marriage.[47]
The Family Code also provides that the second
marriage is in danger of being terminated by
the presumptively dead spouse when he or she
reappears. Thus:
Article 42. The subsequent marriage referred to
in the preceding Article shall be automatically
terminated by the recording of the affidavit of
reappearance of the absent spouse, unless
there is a judgment annulling the previous
marriage or declaring it void ab initio.
A sworn statement of the fact and
circumstances of reappearance shall be
recorded in the civil registry of the residence of
the parties to the subsequent marriage at the
instance of any interested person, with due
notice to the spouses of the subsequent
marriage and without prejudice to the fact of
reappearance being judicially determined in
case such fact is disputed. (Emphasis
supplied)
In other words, the Family Code provides the
presumptively dead spouse with the remedy of
terminating the subsequent marriage by mere
reappearance.
The filing of an affidavit of reappearance is an
admission on the part of the first spouse that
his or her marriage to the present spouse was
terminated when he or she was declared
absent or presumptively dead.
Moreover, a close reading of the entire Article
42 reveals that the termination of the
subsequent marriage by reappearance is
subject to several conditions: (1) the non-
existence of a judgment annulling the previous
marriage or declaring it void ab initio; (2)
recording in the civil registry of the residence of
the parties to the subsequent marriage of the
sworn statement of fact and circumstances of
reappearance; (3) due notice to the spouses of
the subsequent marriage of the fact of
reappearance; and (4) the fact of reappearance
must either be undisputed or judicially
determined.
The existence of these conditions means that
reappearance does not always immediately
cause the subsequent marriage's termination.
Reappearance of the absent or presumptively
dead spouse will cause the termination of the
subsequent marriage only when all the
conditions enumerated in the Family Code are
present.
 Persons and Family Relations | Case digests for Articles 41 to 63
Hence, the subsequent marriage may still
subsist despite the absent or presumptively
dead spouse's reappearance (1) if the first
marriage has already been annulled or has
been declared a nullity; (2) if the sworn
statement of the reappearance is not recorded
in the civil registry of the subsequent spouses'
residence; (3) if there is no notice to the
subsequent spouses; or (4) if the fact of
reappearance is disputed in the proper courts
of law, and no judgment is yet rendered
confirming, such fact of reappearance.
When subsequent marriages are contracted
after a judicial declaration of presumptive
death, a presumption arises that the first
spouse is already dead and that the second
marriage is legal. This presumption should
prevail over the continuance of the marital
relations with the first spouse.[48] The second
marriage, as with all marriages, is presumed
valid.[49] The burden of proof to show that the
first marriage was not properly dissolved rests
on the person assailing the validity of the
second marriage.[50]
This court recognized the conditional nature of
reappearance as a cause for terminating the
subsequent marriage in Social Security System
v. Vda. de Bailon.[51] This court noted[52] that
mere reappearance will not terminate the
subsequent marriage even if the parties to the
subsequent marriage were notified if there was
"no step . . . taken to terminate the subsequent
marriage, either by [filing an] affidavit [of
reappearance] or by court action[.]"[53] "Since
the second marriage has been contracted
because of a presumption that the former
spouse is dead, such presumption continues
inspite of the spouse's physical reappearance,
and by fiction of law, he or she must still be
regarded as legally an absentee until the
subsequent marriage is terminated as provided
by law."[54]
The choice of the proper remedy is also
important for purposes of determining the
status of the second marriage and the liabilities
of the spouse who, in bad faith, claimed that
the other spouse was absent.
A second marriage is bigamous while the first
subsists. However, a bigamous subsequent
marriage may be considered valid when the
following are present:
1) The prior spouse had been absent for four
consecutive years;
2) The spouse present has a well-founded
belief that the absent spouse was already
dead;
3) There must be a summary proceeding for
the declaration of presumptive death of the
absent spouse; and
4) There is a court declaration of presumptive
death of the absent spouse.[55]
A subsequent marriage contracted in bad faith,
even if it was contracted after a court
declaration of presumptive death, lacks the
requirement of a well-founded belief[56] that
the spouse is already dead. The first marriage
will not be considered as. validly terminated.
Marriages contracted prior to the valid
termination of a subsisting marriage are
generally considered bigamous and void.[57]
Only a subsequent marriage contracted in
good faith is protected by law.
Therefore, the party who contracted the
subsequent marriage in bad faith is also not
immune from an action to declare his
subsequent marriage void for being bigamous.
The prohibition against marriage during the
subsistence of another marriage still applies.
[58]
If, as Celerina contends, Ricardo was in bad
faith when he filed his petition to declare her
presumptively dead and when he contracted
the subsequent marriage, such marriage would
be considered void for being bigamous under
Article 35(4) of the Family Code. This is
because the circumstances lack the element of
"well-founded belief under Article 41 of the
Family Code, which is essential for the
exception to the rule against bigamous
marriages to apply.[59]
 Persons and Family Relations | Case digests for Articles 41 to 63

The provision on reappearance in the Family
Code as a remedy to effect the termination of
the subsequent marriage does not preclude the
spouse who was declared presumptively dead
from availing other remedies existing in law.
This court had, in fact, recognized that a
subsequent marriage may also be terminated
by filing "an action in court to prove the
reappearance of the absentee and obtain a
declaration of dissolution or termination of the
subsequent marriage."[60]
marriage,[65] this remedy is not available to
her.
Therefore, for the purpose of not only
terminating the subsequent marriage but also
of nullifying the effects of the declaration of
presumptive death and the subsequent
marriage, mere filing of an affidavit of
reappearance would not suffice. Celerina's
choice to file an action for annulment of
judgment will, therefore, lie.

Celerina does not admit to have been absent.
She also seeks not merely the termination of
the subsequent marriage but also the
nullification of its effects. She contends that
reappearance is not a sufficient remedy
because it will only terminate the subsequent
marriage but not nullify the effects of the
declaration of her presumptive death and the
subsequent marriage.
WHEREFORE, the case is REMANDED to the
Court of Appeals for determination of the
existence of extrinsic fraud, grounds for
nullity/annulment of the first marriage, and the
merits of the petition.
SO ORDERED.

Celerina is correct. Since an undisturbed

subsequent marriage under Article 42 of the
Family Code is valid until terminated, the
"children of such marriage shall be considered
legitimate, and the property relations of the
spouse[s] in such marriage will be the same as
in valid marriages."[61] If it is terminated by
mere reappearance, the children of the
subsequent marriage conceived before the
termination shall still be considered legitimate.
[62] Moreover, a judgment declaring
presumptive death is a defense against
prosecution for bigamy.[63]

It is true that in most cases, an action to

declare the nullity of the subsequent marriage
may nullify the effects of the subsequent
marriage, specifically, in relation to the status of
children and the prospect of prosecuting a
respondent for bigamy.

However, "a Petition for Declaration of Absolute

Nullity of Void Marriages may be filed solely by
the husband or wife."[64] This means that
even if Celerina is a real party in interest who
stands to be benefited or injured by the
outcome of an action to nullify the second
 Persons and Family Relations | Case digests for Articles 41 to 63
Art. 45 | Case No. 1:
Reyes v. Zaballero
**NO AVAILABLE CASE DIGEST**
89 Phil. 39
BENGZON, J.:
During the Japanese occupation the creditor of
a prewar debt reluctantly received Japanese
military notes tendered in full payment of his
credit. After liberation he sued for recovery of
the debt, contending that his acceptance of the
money was invalidated by duress. This is that
suit, coming from the Court of Appeals wherein
the payment was held valid and the debt fully
discharged.
The creditor-appellant has submitted a brief
vigorously ascribing error to the court's holding:
(1) that the facts and circumstances of the case
are not sufficient to constitute the duress that
would invalidate the payment made by the
debtor and (2) that the discharge in full with
Japanese military notes of the pre-war
obligation calling for payments in ten yearly
installments in Philippine money or its
equivalent in U. S. currency, at the option of the
creditor, was properly made.
The case is adequately related by the Court of
Appeals as follows:
"This case originated from a loan of P6,500
with interest at 10 per cent per annum payable
in advance, made by the plaintiff-appellee, Dr.
Cesar Reyes, to the defendants-appellants
Zaballero on October 1, 1942. The defendants-
appellants secured the payment with a first
mortgage on 10 parcels of land, situated in the
municipality of Lucena, Quezon Province, more
particularly described in the Deed of Mortgage
Exhibit A, appearing on pages 6-16 in the
Record of Appeals. Paragraph 2 of said Deed
of Mortgage is as follows:
" '2. Los deudores hipotecarios se obligan a
pagar el capital dentro del termino de diez (10)
anos contados desde esta fecha, mediante
amortizaciones anuales de sbiscientos
cincuenta pesos (P650) en moneda filipina 6
su erjuivalente en moneda de los EE. UU. de
America a opcion del acreedor hipotecario, y
satisfacer los intereses convenidos * * *."
"The installments due for 1942 and 1943,
totalling the sum of P1,300 plus interest were
paid in Japanese Military Scrip and the
payments were unreservedly accepted. On
November 30, 1944, defendant-appellant
Exequiel Zaballero offered to pay the third
installments and its interest which fell due in
October of the same year; but plaintiff-appellee
refused to accept on the ground that it was
immoral and unjust that the payment be made
in Japanese military notes which had
considerably devaluated, and that he had an
option according to the contract to have the
payment made in Philippine or United States
currency. After some discussion, and as
plaintiff-appellee remained adamant in his
refusal, defendant-appellant Exequiel Zaballero
announced that the next day, December 1,
1944 he would tender the whole balance of
P5,812; which he did by way of complete
satisfaction of the entire indebtedness. Plaintiff-
appellee, acting upon advice given by his
attorneys to whom he had meanwhile resorted
for guidance in his plight, received the money
and executed on December 1, 1944, the
notarial deed of release of the real estate
mortgage (Exh. B, Rec. App., pp. 16-19) which
was registered in the following day at the office
of the Register of Deeds. On the same day,
December 1, 1944, that he received payment,
the mortgagee, now plaintiff-appellee, executed
an affidavit in secret, without defendants'
knowledge, before Notary Public Alfredo Bonus
(who also ratified the deed of release) stating
that he had accepted under protest and
"obligado por las circunstancias actuates", the
payment of P5,200 plus interest in the sum of
P612, and that he had deposited the whole
amount paid by the debtors in the Philippine
National Bank in Lucena, as trustee for the said
amount. It is uncontroverted that the deposit
was made in a special account which remains
untouched to this day."
On the point of duress that Court makes the
finding,
"The Lower Court also found that the plaintiff-
appellee accepted the payment tendered by
defendants-appellants because of the
 Persons and Family Relations | Case digests for Articles 41 to 63
menacing attitude of the latter. This finding is
not sustained by the preponderance of
evidence and there is no proof that the plaintiff
creditor was threatened into accepting the
payment, except the latter's own testimony that
the debtor told him that he ought to know that
the Japanese disliked non-acceptance of their
money.
"This averment, however, was denied by the
appellant Exequiel Zaballero, who made the
payment, and it is significant that in his affidavit
of protest (Exh. C) the appellee creditor made
no mention whatever of any threat on the part
of the defendant, merely stating that he was
'obligado por las circunstancias actuales' * * *.
"The testimony of the Notary fails to show that
any threat had been made to secure the assent
of the appellee. That duress was required is
indeed questionable, since the debtor could
have judicially consigned the money if the
creditor persisted in refusing it. In other words,
the appellee decided to accept the payment
reluctantly but voluntarily, in the expectation
that he could adopt nullifying measures that
would preserve his rights and not because of
any undue influence exercised by another
person * * *".
The appellate court declared, in short, that
Cesar Reyes received the money on
December 1, 1944 without any duress, without
any protest, albeit reluctantly, executed the
notarial document of release of the mortgage
and immediately thereafter: (a) swore to an
affidavit, in secret, without the debtors'
knowledge, declaring that "compelled by the
present circumstances" he had accepted the
payment under protest, and (b) deposited the
amount in the Philippine National Bank in a
special account, as trustee.
Under the facts above related we do not see
how the payment may be invalidated on the
ground of duress.
The finding of the Court of Appeals on such
factual issue is final. And from the facts
declared by it we cannot, as a question of law,
conclude that there was duress.
According to the Civil Code, there is duress or
intimidation when one of the contracting parties
is inspired by a rational and well-grounded fear
of suffering an imminent and serious injury to
his person or property, or to the person or
property of his spouse, descendants or
ascendants. (Art 1267, Civil Code.)
Describing how or why he was afraid to reject
the tendered payment, appellant testified that
after he had declined to receive payment, "the
debtors told him that he ought to know that the
Japanese disliked non-acceptance of their
money" and that, as he remained adamant, the
appellees induced Attorney Bonus to counsel
appellant to accept the payment reminding him
of "antecedents" other cases that had reached
the Provincial Fiscal's office of persons who
refused to accept the Japanese military notes.
However the Court of Appeals discredited
appellant's testimony on the first point. And as
to the alleged advice by Attorney Bonus the
Court of Appeals said nothing about it, and we
are not free to look into the record to uncover
new facts contradicting those found by the
appellate court.
Appellant's statement in the affidavit that he
received the money "obligado por las
circunstancias actuates" besides being self-
serving and not binding upon the adverse
party, is too indefinite to justify a finding of
duress, for it may refer to the circumstance that
Japanese "fiat" money was then the current
money and that payments of debts were then
being made with it despite its very depreciated
valuation.
As it is, the important thing is that the creditor,
Cesar Reyes received the money, and
executed the release. What he did afterwards
without the knowledge or consent of the
debtors is entirely of no consequence. For that
matter, he could have burned the Japanese
notes, or thrown them into the sea, without in
 Persons and Family Relations | Case digests for Articles 41 to 63

the least obliterating the legal effect of his difference in law * * *" (Vales vs. Villa, 35 Phil,
receipt of the money. 789.)

Had the creditor interposed a downright Concurring with the Court of Appeals, as we
refusal, the debtors could have made a valid must, on the finding that the payment was
consignment of the money and thus get a voluntarily accepted, we deem it unnecessary
discharge. The creditor should not therefore, by to go into the alleged option of the creditor to
means of the secret protest do indirectly what select United States currency, because such
he could not do directly. At this juncture we are voluntary acceptance was in effect a waiver of
confronted with appellant's argument that the the option. Besides, our recent ruling in
consignation could not discharge the whole Tambunting de Legarda vs. Desbarats Miailhe,
indebtedness, especially in so far as the etc., (88 Phil., 637) sufficiently answers
installments not yet due, because the debtor appellant's argument premised on such option.
had no right to accelerate payment. There is
indeed something to that contention. The The appealed decision is affirmed, with costs.
creditor was entitled to interest upon the other
annual installments and yet the Usury Law Paras, C. J., Feria, Pablo, Montemayor, Jugo
prohibits collection of interest in advance for and Bautista Angelo, JJ., concur.
more than one year. [1] However that issue not
having been raised in the lower court, the
debtors had no opportunity to prove that the
term had been established for their exclusive
benefit. Anyway the equitable consideration
should not be overlooked that if the creditor
had rejected the money, it could have been
utilized by the debtors for other valuable or
useful purposes. The money kept by the
creditor is now utterly valueless.

We have to admit that the creditor accepted the

money grudgingly or reluctantly. But this court
has already ruled that mere reluctance does
not detract from the voluntariness of one's acts.

"There must, then, be a distinction to be made

between a case where a person gives his
consent reluctantly and even against his good
sense and judgment, and where he, in reality,
gives no consent at all, as where he executes a
contract or performs an act against his will
under a pressure which he cannot resist. It is
clear that one acts as voluntarily and
independently in the eye of the law when he
acts reluctantly and with hesitation as when he
acts spontaneously and joyously. Legally
speaking he acts as voluntarily and freely when
he acts wholly against his better sense and
judgment as when he acts in conformity with
them. Between the two acts there is no
 Persons and Family Relations | Case digests for Articles 41 to 63
Art. 45 | Case No. 2:
Jimenez v. Republic
109 Phil 273
FACTS:
Plaintiff Joel Jimenez filed a complaint
praying of a decree annulling his
marriage with Remedios Canizares. He
claimed that the orifice of her genitals
was too small to allow the penetration of
a male organ or penis for copulation. He
also claimed that the condition of her
genitals existed at the time of marriage
and continues to exist. The wife was
summoned and served with a copy of
the complaint but she did not file an
answer. The court entered an order
requiring defendant to submit to a
physical examination by a competent
lady physician to determine her physical
capacity for copulation. Defendant did
not submit herself to the examination
and the court entered a decree annulling
the marriage. The City Attorney filed a
Motion for Reconsideration, among the
grounds that the defendant’s impotency
has not been satisfactorily established
as required by law; that she had not
been physically examined because she
refused to be examined.
ISSUE:
Whether or not the marriage may be
annulled on the strength only of the lone
testimony of the husband who claimed
and testified that his wife is impotent.
HELD:
The law specifically enumerates the
legal grounds that must be proved to
exist by indubitable evidence to annul a
marriage. In the case at bar, the
annulment of the marriage in question
was decreed upon the sole testimony of
the husband who was expected to give
testimony tending or aiming at securing
the annulment of his marriage he sought
and seeks. Whether the wife is really
impotent cannot be deemed to have
been satisfactorily established because
from the commencement of the
proceedings until the entry of the decree
she had abstained from taking part
therein.
Although her refusal to be examined or
failure to appear in court show
indifference on her part, yet from such
attitude the presumption arising out of
the suppression of evidence could not
arise or be inferred because women of
this country are by nature coy, bashful
and shy and would not submit to a
physical examination unless compelled
to by competent authority.
A physical examination in this case is
not self-incriminating. She is not
charged with any offense. She is not
being compelled to be a witness against
herself.
“Impotency being an abnormal
condition should not be presumed. The
presumption is in favor of potency.” The
lone testimony of the husband that his
wife is physically incapable of sexual
intercourse is insufficient to tear asunder
the ties that have bound them together
as husband and wife.
Ruling:
The decree appealed from is set aside
and the case remanded to the lower
court for further proceedings in
accordance with this decision, without
pronouncement as to costs.
 Persons and Family Relations | Case digests for Articles 41 to 63
Art. 48 | Case No. 1:
Tuason v. CA
G.R. No. 116607, 10 April 1996
FACTS:
On June 1972, respondent Victoria
Lopez Tuazon married petitioner Emilio
Tuazon. Due to the series of physical
abuse against the respondent, the
petitioner use of prohibited drugs,
cohabitating with three women, leaving
the conjugal home and giving minimal
child support, abuse of conjugal property
use and incurring of bank debts without
the respondent consent, respondent
filed a petition for annulment of marriage
in 1989 on the ground of psychological
incapacity and prayed for powers of
administration to save the conjugal
properties from further dissipation.
Petitioner filed his Opposition in April
1990 and was scheduled to present his
evidence. Counsel for petitioner moved
for a postponement, however, petitioner
failed to appear. The trial court rendered
judgment declaring the nullity of
marriage and awarding the custody of
common children to respondent. No
appeal was taken.
Thereafter, respondent filed Motion for
Dissolution of Conjugal Partnership of
Gains and Adjudication to Plaintiff of the
Conjugal Properties which was opposed
by petitioner. Petitioner filed a Petitioner
from Relief of Judgment on the held
decision. The trial court denied the
petition which was affirmed by the CA.
Hence, this petition for review on
certiorari.
ISSUE:
Whether or not in the absence of
petitioner in the hearing, the court
should have ordered a prosecuting
officer to intervene.
RULING:
A petition for relief from judgment is an
equitable remedy; it is allowed only in
exceptional cases where there is no
other available or adequate remedy.
When a party has another remedy
available to him, which may be either a
motion for new trial or appeal from an
adverse decision of the trial court, and
he was not prevented by fraud, accident,
mistake or excusable negligence from
filing such motion or taking such appeal,
he cannot avail himself of this petition.
Indeed, relief will not be granted to a
party who seeks avoidance from the
effects of the judgment when the loss of
the remedy at law was due to his own
negligence; otherwise the petition for
relief can be used to revive the right to
appeal which had been lost thru
inexcusable negligence.
Petitioner also insists that he has a valid
and meritorious defense. He cites the
Family Code which provides that in
actions for annulment of marriage or
legal separation, the prosecuting officer
should intervene for the state because
the law looks with disfavor upon the
haphazard declaration of annulment of
marriages by default. He contends that
when he failed to appear at the
scheduled hearings, the trial court
should have ordered the prosecuting
officer to intervene for the state and
inquire as to the reason for his non-
appearance.
Articles 48 and 60 of the Family Code
read as follows:
Art. 48. In all cases of annulment or
declaration of absolute nullity of
marriage, the Court shall order the
prosecution attorney or fiscal assigned
to it to appear on behalf of the State to
take steps to prevent collusion between
the parties and to take care that
evidence is not fabricated or
suppressed.
 Persons and Family Relations | Case digests for Articles 41 to 63

Art. 60. No decree of legal separation

shall be based upon a stipulation of
facts or a confession of judgment.

The facts in the case at bar do not call

for the strict application of Articles 48
and 60 of the Family Code. For one,
petitioner was not declared in default by
the trial court for failure to answer.
Petitioner filed his answer to the
complaint and contested the cause of
action alleged by private respondent. He
actively participated in the proceedings
below by filing several pleadings and
cross-examining the witnesses of private
respondent. It is crystal clear that every
stage of the litigation was characterized
by a no-holds barred contest and not by
collusion.

The role of the prosecuting attorney or

fiscal in annulment of marriage and legal
separation proceedings is to determine
whether collusion exists between the
parties and to take care that the
evidence is not suppressed or
fabricated. Petitioner’s vehement
opposition to the annulment proceedings
negates the conclusion that collusion
existed between the parties. There is no
allegation by the petitioner that evidence
was suppressed or fabricated by any of
the parties. Under these circumstances,
we are convinced that the non-
intervention of a prosecuting attorney to
assure lack of collusion between the
contending parties is not fatal to the
validity of the proceedings in the trial
court.
 Persons and Family Relations | Case digests for Articles 41 to 63
Art. 58 | Case No. 1:
Pacete v. Carriaga
231 SCRA 321
FACTS:
Concepcion Alanis filed a complaint on
October 1979, for the Declaration of
Nullity of Marriage between her
erstwhile husband Enrico Pacete and
one Clarita de la Concepcion, as well as
for legal separation between her and
Pacete, accounting and separation of
property. She averred in her complaint
that she was married to Pacete on April
1938 and they had a child named
Consuelo; that Pacete subsequently
contracted a second marriage with
Clarita de la Concepcion and that she
learned of such marriage only on August
1979. Reconciliation between her and
Pacete was impossible since he
evidently preferred to continue living
with Clarita.
The defendants were each served with
summons. They filed an extension within
which to file an answer, which the court
partly granted. Due to unwanted
misunderstanding, particularly in
communication, the defendants failed to
file an answer on the date set by the
court. Thereafter, the plaintiff filed a
motion to declare the defendants in
default, which the court forthwith
granted. The court received plaintiffs’
evidence during the hearings held on
February 15, 20, 21, and 22, 1980. After
trial, the court rendered a decision in
favor of the plaintiff on March 17,1980.
ISSUE:
Whether or not the RTC gravely abused
its discretion in denying petitioner’s
motion for extension of time to file their
answer, in declaring petitioners in
default and in rendering its decision on
March 17, 1980 which decreed the legal
separation of Pacete and Alanis and
held to be null and void the marriage of
Pacete to Clarita.
HELD:
The Civil Code provides that “no decree
of legal separation shall be promulgated
upon a stipulation of facts or by
confession of judgment. In case of non-
appearance of the defendant, the court
shall order the prosecuting attorney to
inquire whether or not collusion between
parties exists. If there is no collusion, the
prosecuting attorney shall intervene for
the State in order to take care that the
evidence for the plaintiff is not
fabricated.”
The above stated provision calling for
the intervention of the state attorneys in
case of uncontested proceedings for
legal separation (and of annulment of
marriages, under Article 88) is to
emphasize that marriage is more than a
mere contract.
Article 103 of the Civil Code, now Article
58 of the Family Code, further mandates
that an action for legal separation must
“in no case be tried before six months
shall have elapsed since the filing of the
petition,” obviously in order to provide
the parties a “cooling-off” period. In this
interim, the court should take steps
toward getting the parties to reconcile.
The significance of the above
substantive provisions of the law is
further or underscored by the inclusion
of a provision in Rule 18 of the Rules of
Court which provides that no defaults in
actions for annulments of marriage or for
legal separation. Therefore, “if the
defendant in an action for annulment of
marriage or for legal separation fails to
answer, the court shall order the
prosecuting attorney to investigate
whether or not a collusion between the
parties exists, and if there is no
collusion, to intervene for the State in
order to see to it that the evidence
submitted is not fabricated.”
 Persons and Family Relations | Case digests for Articles 41 to 63

Art. 63 | Case No. 1: Furthermore, applying Rule 103 is not a

Laperal v. Republic sufficient ground to justify a change of
GR No. 18008, October 30, 1962 the name of Elisea for to hold otherwise
would be to provide for an easy
FACTS: circumvention of the mandatory
The petitioner, a bona fide resident of provision of Art. 372.
Baguio City, was married with Mr.
Enrique R. Santamaria on March 1939. Petition was dismissed.
However, a decree of legal separation
was later on issued to the spouses.
Aside from that, she ceased to live with
Enrique. During their marriage, she
naturally uses Elisea L. Santamaria.
She filed this petition to be permitted to
resume in using her maiden name
Elisea Laperal. This was opposed by
the City Attorney of Baguio on the
ground that it violates Art. 372 of the
Civil Code. She was claiming that
continuing to use her married name
would give rise to confusion in her
finances and the eventual liquidation of
the conjugal assets.

ISSUE:
Whether Rule 103 which refers to
change of name in general will prevail
over the specific provision of Art. 372 of
the Civil Code with regard to married
woman legally separated from his
husband.

HELD:
In legal separation, the married status is
unaffected by the separation, there
being no severance of the vinculum.
The finding that petitioner’s continued
use of her husband surname may cause
undue confusion in her finances was
without basis. It must be considered
that the issuance of the decree of legal
separation in 1958, necessitate that the
conjugal partnership between her and
Enrique had automatically been
dissolved and liquidated. Hence, there
could be no more occasion for an
eventual liquidation of the conjugal
assets.