In re ATTY.

ROQUE SANTIAGO
A.C. No. 932 | June 21, 1940 | LAUREL, J

Facts:

Spouses Ernesto Baniquit and Soledad Colares were living separately for 9 consecutive years.
Baniquit who is inclined to contract another marriage with Trinidad Aurelio, sought the advice
of herein defendant, Atty Roque Santiago who was practicing law and a notary public.

Santiago then assured Baniquit that the former can secure a separation from Colares and in
effect allow the latter’s marriage to Trinidad Aurelio. Atty Santiago asked both parties to bring
his legal wife (Colares) in his office and on the afternoon of May 29, 1939, the executed a
document stating “ that the contracting parties, who are husband and wife authorized each
other to marry again, at the same time renouncing or waiving whatever right of action one
might have against the party so marrying.”

Ernesto Baniquit said, “would there be no trouble?” and upon hearing this, the defendant
stood up and points at his diploma and said “I would tear that off if this document turns out
not to be valid." Subsequently, Ernesto Baniquit contracted a second marriage with Trinidad
Aurelio.

Defendant did not deny the preparation of the document but claims that at the time of the
execution he had the idea that seven years of separation of the contracting parties entitled
them the right to contract a second marriage. However, when he knew about his error, he
asked the parties to return to his office and to sign a deed of cancellation of the document in
question.

ISSUE:
Whether or not a married couple may terminate their marriage through a contract of
separation

Whether or not the defendant’s act of executing a contract of separation of marriage valid
and if not, the said act may constitute as malpractice of law

HELD:

1. NO. The law specially provides for its invalidity.

Art. 221. The following shall be void and of no effect:

(1) Any contract for personal separation between husband and wife;
(2) Every extra-judicial agreement, during marriage, for the dissolution of the conjugal
partnership of gains or of the absolute community of property between husband and
wife;
(3) Every collusion to obtain a decree of legal separation, or of annulment of marriage;

2. No. The advice and document execute by him is contrary to law, moral, and tends to
subvert the vital foundation of the family. Malpractice through recklessness and sheer
ignorance justifies the disbarment. However, majority of the court followed the
recommendation of the investigator, the Honorable Sotero Rodas, to suspend him from
practice for one year.