122 SUPREME COURT REPORTS ANNOTATED VOL.

328, MARCH 14, 2000 123

Niñal vs. Bayadog Niñal vs. Bayadog
G.R. No. 133778. March 14, 2000. * riage license is dispensed with, one of which is that
ENGRACE NIÑAL for Herself and as Guardian ad provided in Article 76, referring to the marriage of a man and
Litem of the minors BABYLINE NIÑAL, INGRID a woman who have lived together and exclusively with each
NIÑAL, ARCHIE NIÑAL & PEPITO NIÑAL, JR., other as husband and wife for a continuous and unbroken
period of at least five years before the marriage. The
petitioners, vs. NORMA BAYADOG, respondent.
rationale why no license is required in such case is to avoid
Civil Law; Family Code; Marriages; A valid marriage
exposing the parties to humiliation, shame and
license is a requisite of marriage under Article 53 of the Civil
embarrassment concomitant with the scandalous
Code, the absence of which renders the marriage void ab initio
cohabitation of persons outside a valid marriage due to the
pursuant to Article 80 (3) in relation to Article 58.—A valid
publication of every applicant’s name for a marriage license.
marriage license is a requisite of marriage under Article 53
The publicity attending the marriage license may discourage
of the Civil Code, the absence of which renders the marriage
such persons from legitimizing their status. To preserve
void ab initio pursuant to Article 80(3) in relation to Article
peace in the family, avoid the peeping and suspicious eye of
58. The requirement and issuance of marriage license is the
public exposure and contain the source of gossip arising from
State’s demonstration of its involvement and participation in
the publication of their names, the law deemed it wise to
every marriage, in the maintenance of which the general
preserve their privacy and exempt them from that
public is interested. This interest proceeds from the
requirement.
constitutional mandate that the State recognizes the
Same; Same; Same; The five-year common-law
sanctity of family life and of affording protection to the family
cohabitation period, which is counted back from the date of
as a basic “autonomous social institution.” Specifically, the
celebration of marriage, should be a period of legal union had
Constitution considers marriage as an “inviolable social
it not been for the absence of the marriage.—Working on the
institution,” and is the foundation of family life which shall
assumption that Pepito and Norma have lived together as
be protected by the State. This is why the Family Code
husband and wife for five years without the benefit of
considers marriage as “a special contract of permanent
marriage, that five-year period should be computed on the
union” and case law considers it “not just an adventure but a
basis of a cohabitation as “husband and wife” where the only
lifetime commitment.”
missing factor is the special contract of marriage to validate
Same; Same; Same; There are several instances
the union. In other words, the five-year common-law
recognized by the Civil Code wherein a marriage license is
cohabitation period, which is counted back from the date of
dispensed with.—There are several instances recognized by
celebration of marriage, should be a period of legal union had
the Civil Code wherein a mar-
________________ it not been for the absence of the marriage. This 5-year period
should be the years immediately before the day of the
*FIRST DIVISION. marriage and it should be a period of cohabitation
123 characterized by exclusivity—meaning no third party was
involved at any time within the 5 years and continuity—that
is unbroken. Otherwise, if that continuous 5-year
cohabitation is computed without any distinction as to
whether the parties were capacitated to marry each other
during the entire five years, then the law would be
sanctioning immorality and encouraging parties to have
common law relationships and placing them on the same
footing with those who lived faithfully with their spouse.
Marriage being a special relationship must be respected as
such and its requirements must be strictly observed. The
presumption that a man and a woman deporting themselves
as husband and wife is based on the approximation of the
requirements of the law. The parties should not be afforded
any excuse to not comply with every single requirement and
later use the same missing element as a pre-conceived escape
ground to nul-
124
124 SUPREME COURT REPORTS ANNOTATED
Niñal vs. Bayadog
lify their marriage. There should be no exemption from
securing a marriage license unless the circumstances clearly
fall within the ambit of the exception. It should be noted that
a license is required in order to notify the public that two
persons are about to be united in matrimony and that anyone
who is aware or has knowledge of any impediment to the
union of the two shall make it known to the local civil
registrar.
Same; Same; Same; Any marriage subsequently
contracted during the lifetime of the first spouse shall be
illegal and void.—This is the same reason why our civil laws,
past or present, absolutely prohibited the concurrence of
multiple marriages by the same person during the same
period. Thus, any marriage subsequently contracted during
the lifetime of the first spouse shall be illegal and void,
subject only to the exception in cases of absence or where the
prior marriage was dissolved or annulled. The Revised Penal
Code complements the civil law in that the contracting of two
or more marriages and the having of extramarital affairs are
considered felonies, i.e., bigamy and concubinage and
adultery. The law sanctions monogamy.
Same; Same; Same; The subsistence of the marriage even
where there was actual severance of the filial companionship
between the spouses cannot make any cohabitation by either
spouse with any third party as being one as “husband and
wife.”—Even assuming that Pepito and his first wife had
separated in fact, and thereafter both Pepito and respondent
had started living with each other that has already lasted for
five years, the fact remains that their five-year period
cohabitation was not the cohabitation contemplated by law.
It should be in the nature of a perfect union that is valid
under the law but rendered imperfect only by the absence of
the marriage contract. Pepito had a subsisting marriage at
the time when he started cohabiting with respondent. It is
immaterial that when they lived with each other, Pepito had
already been separated in fact from his lawful spouse. The
subsistence of the marriage even where there was actual
severance of the filial companionship between the spouses
cannot make any cohabitation by either spouse with any
third party as being one as “husband and wife.”
Same; Same; Same; Void marriages can be questioned
even after the death of either party but voidable marriages
can be assailed only during the lifetime of the parties and not
after death of either, in
125
VOL. 328, MARCH 14, 2000 125
Niñal vs. Bayadog
which case the parties and their offspring will be left: as
if the marriage had been perfectly valid.—The Code is silent
as to who can file a petition to declare the nullity of a
marriage. Voidable and void marriages are not identical. A
marriage that is annulable is valid until otherwise declared
by the court; whereas a marriage that is void ab initio is
considered as having never to have taken place and cannot
be the source of rights. The first can be generally ratified or
confirmed by free cohabitation or prescription while the
other can never be ratified. A voidable marriage cannot be
assailed collaterally except in a direct proceeding while a
void marriage can be attacked collaterally. Consequently,
void marriages can be questioned even after the death of
either party but voidable marriages can be assailed only
during the lifetime of the parties and not after death of
either, in which case the parties and their offspring will be
left as if the marriage had been perfectly valid. That is why
the action or defense for nullity is imprescriptible, unlike
voidable marriages where the action prescribes. Only the
parties to a voidable marriage can assail it but any proper
interested party may attack a void marriage.
Same; Same; Same; No judicial decree is necessary in
order to establish the nullity of a marriage.—Jurisprudence
under the Civil Code states that no judicial decree is
necessary in order to establish the nullity of a marriage. “A
void marriage does not require a judicial decree to restore the
parties to their original rights or to make the marriage void
but though no sentence of avoidance be absolutely necessary,
yet as well for the sake of good order of society as for the
peace of mind of all concerned, it is expedient that the nullity
of the marriage should be ascertained and declared by the
decree of a court of competent jurisdiction.”
Same; Same; Same; Other than for purposes of
remarriage, no judicial action is necessary to declare a
marriage an absolute nullity.—Other than for purposes of
remarriage, no judicial action is necessary to declare a
marriage an absolute nullity. For other purposes, such as but
not limited to determination of heirship, legitimacy or
illegitimacy of a child, settlement of estate, dissolution of
property regime, or a criminal case for that matter, the court
may pass upon the validity of marriage even in a suit not
directly instituted to question the same so long as it is
essential to the determination of the case. This is without
prejudice to any issue that may arise in the case. When such
need arises, a final judgment of decla-
126
126 SUPREME COURT REPORTS ANNOTATED
Niñal vs. Bayadog
ration of nullity is necessary even if the purpose is other
than to remarry. The clause “on the basis of a final judgment
declaring such previous marriage void” in Article 40 of the
Family Code connotes that such final judgment need not be
obtained only for purpose of remarriage.
PETITION for review on certiorari of a decision of the
Court of Appeals.
The facts are stated in the opinion of the Court.
Roldan R. Mangubat for petitioners.
Daryll A. Amante for private respondent.
YNARES-SANTIAGO, J.:
May the heirs of a deceased person file a petition for the
declaration of nullity of his marriage after his death?
Pepito Niñal was married to Teodulfa Bellones on
September 26, 1974. Out of their marriage were born
herein petitioners. Teodulfa was shot by Pepito
resulting in her death on April 24, 1985. One year and
8 months thereafter or on December 11, 1986, Pepito
and respondent Norma Badayog got married without
any marriage license. In lieu thereof, Pepito and Norma
executed an affidavit dated December 11, 1986 stating
that they had lived together as husband and wife for at
least five years and were thus exempt from securing a
marriage license. On February 19, 1997, Pepito died in
a car accident. After their father’s death, petitioners
filed a petition for declaration of nullity of the marriage
of Pepito to Norma alleging that the said marriage was
void for lack of a marriage license. The case was filed
under the assumption that the validity or invalidity of
the second marriage would affect petitioner’s
successional rights. Norma filed a motion to dismiss on
the ground that petitioners have no cause of action since
they are not among the persons who could file an action
for “annulment of marriage” under Article 47 of the
Family Code.
127
VOL. 328, MARCH 14, 2000 127 of Civil Procedure, and because “the verification failed
Niñal vs. Bayadog
Judge Ferdinand J. Marcos of the Regional Trial Court
of Toledo City, Cebu, Branch 59, dismissed the petition
after finding that the Family Code is “rather silent,
obscure, insufficient” to resolve the following issues:
1. (1)Whether or not plaintiffs have a cause of
action against defendant in asking for the
declaration of the nullity of marriage of their
deceased father, Pepito G. Niñal, with her
specially so when at the time of the filing of this
instant suit, their father Pepito G. Niñal is
already dead;
2. (2)Whether or not the second marriage of
plaintiffs’ deceased father with defendant is null
and void ab initio;
3. (3)Whether or not plaintiffs are estopped from
assailing the validity of the second marriage
after it was dissolved due to their father’s
death. 1
Thus, the lower court ruled that petitioners should have
filed the action to declare null and void their father’s
marriage to respondent before his death, applying by
analogy Article 47 of the Family Code which
enumerates the time and the persons who could initiate
an action for annulment of marriage. Hence, this 2
petition for review with this Court grounded on a pure
question of law.
This petition was originally dismissed for non-
compliance with Section 11, Rule 13 of the 1997 Rules
to state the basis of petitioner’s averment that the
allegations in the petition are ‘true and correct.’ ” It was
thus treated as an unsigned pleading which produces
no legal effect under Section 3, Rule 7, of the 1997
Rules. However, upon motion of petitioners, this Court
3
________________
1 The dispositive portion of the Order dated March 27, 1998 issued
by Judge Ferdinand J. Marcos of Regional Trial Court (RTC)-Branch
59, Toledo City, reads: “WHEREFORE, premises considered,
defendant’s motion to dismiss is hereby granted and this instant case
is hereby ordered dismissed without costs.” (p. 6; Rollo, p. 21).
2 Order, p. 4; Rollo, p. 19.
3 Minute Resolution dated July 13, 1998; Rollo, p. 39.
128
128 SUPREME COURT REPORTS ANNOTATED
Niñal vs. Bayadog
reconsidered the dismissal and reinstated the petition
for review. 4
The two marriages involved herein having been
solemnized prior to the effectivity of the Family Code
(FC), the applicable law to determine their validity is
the Civil Code which was the law in effect at the time of
their celebration. A valid marriage license is a requisite
5
of marriage under Article 53 of the Civil Code, the 6
absence of which renders the marriage void ab
initio pursuant to Article 80(3) in relation to Article
7
58. The requirement and issuance of marriage license
8
is the State’s demonstration of its involvement and
participation in every marriage, in the maintenance of
which the general public is interested. This interest
9
proceeds from the constitutional mandate that the
State recognizes the sanctity of family life and of
affording protection to the family as a basic
__________________
4 Minute Resolution dated October 7, 1998; Rollo, p. 50.
5 Tamano v. Ortiz, 291 SCRA 584 (1998).
6 Now Article 3, Family Code. Art. 53. No marriage shall be
solemnized unless all the requisites are complied with:
1. (1)Legal capacity of the contracting parties; their consent,
freely given;
2. (2)Authority of the person performing the marriage; and
3. (3)A marriage license, except in a marriage of exceptional
character.
7 Now Article 4, Family Code. Art. 80. The following marriages
shall be void from the beginning:
xxx xxx xxx
(3) Those solemnized without a marriage license, save marriages
of exceptional character.
xxx xxx xxx
8 Art. 58. Save marriages of an exceptional character authorized in
Chapter 2 of this Title, but not those under article 76, no marriage
shall be solemnized without a license first being issued by the local
civil registrar of the municipality where either contracting party
habitually resides.
9 Perido v. Perido, 63 SCRA 97 (1975).
129
VOL. 328, MARCH 14, 2000 129
Niñal vs. Bayadog
“autonomous social institution.” Specifically, the
10
Constitution considers marriage as an “inviolable social
institution,” and is the foundation of family life which
shall be protected by the State. This is why the Family
11
Code considers marriage as “a special contract of
permanent union” and case law considers it “not just
12
an adventure but a lifetime commitment.” 13
However, there are several instances recognized by
the Civil Code wherein a marriage license is dispensed
with, one of which is that provided in Article
76, referring to the marriage of a man and a woman
14
who have lived together and exclusively with each other
as husband and wife for a continuous and unbroken
period of at least five years before the marriage. The
rationale why no license is required in such case is to
avoid exposing the parties to humiliation, shame and
embarrassment concomitant with the scandalous
cohabitation of persons outside a valid marriage due to
the publication of every applicant’s name for a marriage
license. The publicity attending the marriage license
may discourage such
________________
 10 Section 12, Article II, 1987 Constitution; Hernandez v. CA, G.R.
No. 126010, December 8, 1999, 320 SCRA 76; See also Tuason v.
CA, 256 SCRA 158 (1996).
11 Section 2, Article XV (The Family), 1987 Constitution.
12 Article 1, Family Code provides: “Marriage is a special contract
of permanent union between a man and a woman entered into in
accordance with law for the establishment of conjugal or family life. x
x x.
13 Santos v. CA, 240 SCRA 20 at 35 (1995); 58 SCAD 17 (1995); 310
Phil. 21, 41 (1995).
14 Now Article 34, Family Code. Art. 76. No marriage license shall
be necessary when a man and a woman who have attained the age of
majority and who, being unmarried, have lived together as husband
and wife for at least five years, desire to marry each other. The
contracting parties shall state the foregoing facts in an affidavit before
any person authorized by law to administer oaths. The official, priest
or minister who solemnized the marriage shall also state in an
affidavit that he took steps to ascertain the ages and other
qualifications of the contracting parties and that he found no legal
impediment to the marriage.
130
130 SUPREME COURT REPORTS ANNOTATED
Niñal vs. Bayadog
persons from legitimizing their status. To preserve 15
peace in the family, avoid the peeping and suspicious
eye of public exposure and contain the source of gossip
arising from the publication of their names, the law
deemed it wise to preserve their privacy and exempt
them from that requirement.
There is no dispute that the marriage of petitioners’
father to respondent Norma was celebrated without any
marriage license. In lieu thereof, they executed an
affidavit stating that “they have attained the age of
majority, and, being unmarried, have lived together as
husband and wife for at least five years, and that we
now desire to marry each other.” The only issue that
16
needs to be resolved pertains to what nature of
cohabitation is contemplated under Article 76 of the
Civil Code to warrant the counting of the five year
period in order to exempt the future spouses from
securing a marriage license. Should it be a cohabitation
wherein both parties are capacitated to marry each
other during the entire five-year continuous period or
should it be a cohabitation wherein both parties have
lived together and exclusively with each other as
husband and wife during the entire five-year
continuous period regardless of whether there is a legal
impediment to their being lawfully married, which
impediment may have either disappeared or intervened
sometime during the cohabitation period?
Working on the assumption that Pepito and Norma
have lived together as husband and wife for five years
without the benefit of marriage, that five-year period
should be computed on the basis of a cohabitation as
“husband and wife” where the only missing factor is the
special contract of marriage to validate the union. In
other words, the five-year common-law cohabitation
period, which is counted back from the date of
celebration of marriage, should be a period of legal
union had it not been for the absence of the marriage.
This 5-year period should be the years immediately
before the day of the marriage and it should be a period
of cohabitation characterized
_______________
Report of the Code Commission, p. 80.
15
Rollo, p. 29.
16
131
VOL. 328, MARCH 14, 2000 131
 Niñal vs. Bayadog
by exclusivity—meaning no third party was involved at
any time within the 5 years and continuity—that is
unbroken. Otherwise, if that continuous 5-year
cohabitation is computed without any distinction as to
whether the parties were capacitated to marry each
other during the entire five years, then the law would
be sanctioning immorality and encouraging parties to
have common law relationships and placing them on
the same footing with those who lived faithfully with
their spouse. Marriage being a special relationship
must be respected as such and its requirements must
be strictly observed. The presumption that a man and a
woman deporting themselves as husband and wife is
based on the approximation of the requirements of the
law. The parties should not be afforded any excuse to
not comply with every single requirement and later use
the same missing element as a preconceived escape
ground to nullify their marriage. There should be no
exemption from securing a marriage license unless the
circumstances clearly fall within the ambit of the
exception. It should be noted that a license is required
in order to notify the public that two persons are about
to be united in matrimony and that anyone who is
aware or has knowledge of any impediment to the union
of the two shall make it known to the local civil
registrar. The Civil Code provides:
17
Article 63: “x x x. This notice shall request all persons having
knowledge of any impediment to the marriage to advise the
local civil registrar thereof. x x x.”
Article 64: “Upon being advised of any alleged
impediment to the marriage, the local civil registrar shall
forthwith make an investigation, examining persons under
oath. x x x”
This is reiterated in the Family Code thus:
Article 17 provides in part: “x x x. This notice shall request
all persons having knowledge of any impediment to the
marriage to advise the local civil registrar thereof. x x x.”
_______________
Articles 63 and 64, Civil Code; Articles 17 and 18, Family Code.
17
132
132 SUPREME COURT REPORTS ANNOTATED
Niñal vs. Bayadog
Article 18 reads in part: “x x x.In case of any impediment
known to the local civil registrar or brought to his attention,
he shall note down the particulars thereof and his findings
thereon in the application for a marriage license. x x x.”
This is the same reason why our civil laws, past or
present, absolutely prohibited the concurrence of
multiple marriages by the same person during the same
period. Thus, any marriage subsequently contracted
during the lifetime of the first spouse shall be illegal
and void, subject only to the exception in cases of
18
absence or where the prior marriage was dissolved or
annulled. The Revised Penal Code complements the
civil law in that the contracting of two or more
marriages and the having of extramarital affairs are
considered felonies, i.e., bigamy and concubinage and
adultery. The law sanctions monogamy.
19
In this case, at the time of Pepito and respondent’s
marriage, it cannot be said that they have lived with
each other as husband and wife for at least five years
prior to their wedding day. From the time Pepito’s first
marriage was dissolved to the time of his marriage with
respondent, only about twenty months had elapsed.
Even assuming that Pepito and his first wife had
separated in fact, and thereafter both Pepito and
respondent had started living with each other that has
already lasted for five years, the fact remains that their
five-
_______________
18 Article 83, Civil Code provides “Any marriage subsequently
contracted by any person during the lifetime of the first spouse of such
person with any person other than such first spouse shall be illegal
and void from its performance, unless:
1. (1)the first marriage was annulled or dissolved; or
2. (2)the first spouse had been absent for seven consecutive years
. . .”
Article 41 of the Family Code reads: “A marriage contracted by any
person during the subsistence of a previous marriage shall be null and
void, unless before the celebration of the subsequent marriage, the
prior spouse had been absent for four consecutive years . . .”
19 Arts. 333 and 334, Revised Penal Code.
133
VOL. 328, MARCH 14, 2000
Niñal vs. Bayadog
year period cohabitation was not the cohabitation
contemplated by law. It should be in the nature of a
perfect union that is valid under the law but rendered
imperfect only by the absence of the marriage contract.
Pepito had a subsisting marriage at the time when he
started cohabiting with respondent. It is immaterial
that when they lived with each other, Pepito had
already been separated in fact from his lawful spouse.
The subsistence of the marriage even where there was
actual severance of the filial companionship between
the spouses cannot make any cohabitation by either
spouse with any third party as being one as “husband
and wife.”
Having determined that the second marriage
involved in this case is not covered by the exception to
the requirement of a marriage license, it is void ab
initio because of the absence of such element.
The next issue to be resolved is: do petitioners have
the personality to file a petition to declare their father’s
marriage void after his death?
Contrary to respondent judge’s ruling, Article 47 of
the Family Code cannot be applied even by analogy to
20
petitions
_________________
20 Art. 47. The action for annulment of marriage must be filed by
the following persons and within the periods indicated herein:
1. (1)For causes mentioned in number 1 of Article 45 by the party
whose parent or guardian did not give his or her consent,
within five years after attaining the age of twenty-one; or by
the parent or guardian or person having legal charge of the
133 minor, at any time before such party has reached the age of
twenty-one;
2. (2)For causes mentioned in number 2 of Article 45, by the sane
spouse, who had no knowledge of the other’s insanity; or by
any relative or guardian or person having legal charge of the
insane, at any time before the death of either party, or by the
insane spouse during a lucid interval or after regaining
sanity;
3. (3)For causes mentioned in number 3 of Article 45, by the
injured party, within five years after the discovery of the
fraud;
134
134 SUPREME COURT REPORTS ANNOTATED
 Niñal vs. Bayadog
for declaration of nullity of marriage. The second
ground for annulment of marriage relied upon by the
trial court, which allows “the sane spouse” to file an
annulment suit “at any time before the death of either
party” is inapplicable. Article 47 pertains to the
grounds, periods and persons who can file an
annulment suit, not a suit for declaration of nullity of
marriage. The Code is silent as to who can file a petition
to declare the nullity of a marriage. Voidable and void
marriages are not identical. A marriage that is
annulable is valid until otherwise declared by the court;
whereas a marriage that is void ab initio is considered
as having never to have taken place and cannot be the
21
source of rights. The first can be generally ratified or
confirmed by free cohabitation or prescription while the
other can never be ratified. A voidable marriage cannot
be assailed collaterally except in a direct proceeding
while a void marriage can be attacked collaterally.
Consequently, void marriages can be questioned even
after the death of either party but voidable marriages
can be assailed only during the lifetime of the parties
and not after death of either, in which case the parties
and their offspring will be left as if the marriage had
been perfectly valid. That is why the action or defense
22
for nullity is imprescriptible, unlike voidable marriages
where the action prescribes. Only the parties to a
voidable marriage can assail it but any proper
interested party may attack a void marriage. Void
marriages have no legal effects except those declared by
law concerning the properties of the alleged spouses,
regarding co-ownership (4) For causes mentioned in
number 4 of Article 45, by the injured party, within five
years from the time the force, intimidation or undue
influence disappeared or ceased; For causes mentioned
in numbers 5 and 6 of Article 45, by the injured party,
within five years after the marriage.
___________________
21 Suntay v. Cojuanco-Suntay, 300 SCRA 760 (1998); People v.
Retirement Board, 272 111. App. 59 cited in I Tolentino, Civil Code,
1990 ed., p. 271.
22 In re Conza’s Estate, 176 111. 192; Miller v. Miller, 175 Cal. 797,
167 Pac. 394 cited in I Tolentino, Civil Code, 1990 ed., p. 271.
135
VOL. 328, MARCH 14, 2000 135
Niñal vs. Bayadog
or ownership through actual joint contribution, and its 23
effect on the children born to such void marriages as
provided in Article 50 in relation to Articles 43 and 44
as well as Articles 51, 53 and 54 of the Family Code. On
the contrary, the property regime governing voidable
marriages is generally conjugal partnership and the
children conceived before its annulment are legitimate.
Contrary to the trial court’s ruling, the death of
petitioner’s father extinguished the alleged marital
bond between him and respondent. The conclusion is
erroneous and proceeds from a wrong premise that
there was a marriage bond that was dissolved between
the two. It should be noted that their marriage was void
hence it is deemed as if it never existed at all and the
death of either extinguished nothing.
Jurisprudence under the Civil Code states that no
judicial decree is necessary in order to establish the
nullity of a marriage. “A void marriage does not require
24
a judicial decree to restore the parties to their original
rights or to make the marriage void but though no
sentence of avoidance be absolutely necessary, yet as
well for the sake of good order of society as for the peace
of mind of all concerned, it is expedient that the nullity
of the marriage should be ascertained and declared by
the decree of a court of competent jurisdiction.” “Under 25
ordinary circumstances, the effect of a void marriage, so
far as concerns the conferring of legal rights upon the
parties, is as though no marriage had ever taken place.
And therefore, being good for no legal purpose, its
invalidity can be maintained in any proceeding in which
the fact of marriage may be material, either direct or
collateral, in any civil court between any parties at any
time, whether before or after the death of either or both
the husband and the wife, and upon mere proof
______________
23 Articles 148-149, Family Code; Article 144, Civil Code.
24 Odayat v. Amante, 77 SCRA 338 (1977); Weigel v. Sempio-Dy, 143
SCRA 499(1986); People v. Mendoza, 95 Phil. 845 (1954); 50 O.G. (10)
4767 cited in People v. Aragon, 100 Phil. 1033 (1957); 53 O.G. 3749.
25 35 Am. Jur. 219-220.
136
136 SUPREME COURT REPORTS ANNOTATED
Niñal vs. Bayadog
of the facts rendering such marriage void, it will be
disregarded or treated as non-existent by the courts.” It
is not like a voidable marriage which cannot be
collaterally attacked except in direct proceeding
instituted during the lifetime of the parties so that on
the death of either, the marriage cannot be impeached,
and is made good ab initio. But Article 40 of the Family
26
Code expressly provides that there must be a judicial
declaration of the nullity of a previous marriage, though
void, before a party can enter into a second
marriage and such absolute nullity can be based only
27
on a final judgment to that effect. For the same reason,
28
the law makes either the action or defense for the
declaration of absolute nullity of marriage
imprescriptible. Corollarily, if the death of either party
29
would extinguish the cause of action or the ground for
defense, then the same cannot be considered
imprescriptible.
However, other than for purposes of remarriage, no
judicial action is necessary to declare a marriage an
absolute nullity. For other purposes, such as but not
limited to determination of heirship, legitimacy or
illegitimacy of a child, settlement of estate, dissolution
of property regime, or a criminal case for that matter,
the court may pass upon the validity of marriage even
in a suit not directly instituted to question the same so
long as it is essential to the determination of the case.
This is without prejudice to any issue that may arise in
the case. When such need arises, a final judgment of
declaration of nullity is necessary even if the purpose is
other than to remarry. The clause “on the basis of a final
judgment declaring such previous marriage void” in
Article 40 of the Family Code connotes that such final
judgment need not be obtained only for purpose of
remarriage.
__________________
26 18 RCL 446-7; 35 Am Jur. 221.
 27 Apiag v. Cantero, 335 Phil. 511 (1997); 268 SCRA
47 (1997); Atienza v. Judge Brillantes, Jr., 243 SCRA 32 (1995); 60
SCAD 119; 312 Phil. 939 (1995).
28 Domingo v. CA, 226 SCRA 572 (1993).

29 Article 39, Family Code as amended by E.O. 209 and 227, s. 1987

and further amended by R.A. No. 8533 dated February 23, 1998.
137
VOL. 328, MARCH 14, 2000 137
Heirs of Alberto Suguitan vs. City of Mandaluyong
WHEREFORE, the petition is GRANTED. The assailed
Order of the Regional Trial Court, Toledo City, Cebu,
Branch 59, dismissing Civil Case No. T-639, is
REVERSED and SET ASIDE. The said case is ordered
REINSTATED.
SO ORDERED.
Davide, Jr. (C.J., Chairman), Puno and Kapun
an, JJ., concur.
Pardo, J., On official business abroad.
Petition granted, order reversed and set aside. Case
ordered reinstated.
Note.—Per current jurisprudence, “a marriage
though void still needs a judicial declaration of such
fact” before any party thereto can marry again;
otherwise, the second marriage will also be void. (Apiag
vs. Cantero, 268 SCRA 47 [1997])

——o0o——

© Copyright 2019 Central Book Supply, Inc. All rights

reserved.

336 SUPREME COURT REPORTS ANNOTATED
Mallion vs. Alcantara
G.R. No. 141528. October 31, 2006. *
OSCAR P. MALLION, petitioner, vs. EDITHA
ALCANTARA, respondent.
Judgment; Res Judicata; Words and Phrases; Res
judicata is defined as “a matter adjudged; a thing judicially
acted upon or decided; refers to the rule that a final judgment
or decree on the merits by a court of competent jurisdiction is
conclusive of the rights of the parties or their privies in all
later suits on points and matters determined in the former
suit.”—Res judicata is defined as “a matter adjudged; a thing
judicially acted upon or decided; a thing or matter settled by
judgment. It also refers to the rule that a final judgment or
decree on the merits by a court of competent jurisdiction is
conclusive of the rights of the parties or their privies in all
later suits on points and matters determined in the former
suit.”
Same; Same; The doctrine of res judicata is a rule which
pervades every well-regulated system of jurisprudence and is
founded upon the following precepts of common law, namely:
(1) public policy and necessity, which makes it to the interest
of the State that there should be an end to litigation, and (2)
the hardship on the individual that he should be vexed twice
for the same cause.—The doctrine of res judicata is a rule
which pervades every well-regulated system of jurisprudence
and is founded upon the following precepts of common law,
namely: (1) public policy and necessity, which makes it to the
interest of the State that there should be an end to litigation,
and (2) the hardship on the individual that he should be
vexed twice for the same cause. A contrary doctrine would
subject the public peace and quiet to the will and neglect of
individuals and prefer the gratification of the litigious
disposition on the part of suitors to the preservation of the
public tranquility and happiness.
Same; Same; Section 47 pertains to the dual aspect of res
judicata which is “bar by prior judgment” or “estoppel by
verdict” for par. (b) of Section 47 and res judicata in its
concept as “conclusiveness
_______________
*SECOND DIVISION.
337
VOL. 506, OCTOBER 31, 2006 337
Mallion vs. Alcantara
of judgment” or “auter action” for par. (c) Section 47.—
Section 47 (b) and (c) of Rule 49 of the Rules of Court outlines
the dual aspect of res judicata. Section 47 (b) pertains to it in
its concept as “bar by prior judgment” or “estoppel by
verdict,” which is the effect of a judgment as a bar to the
prosecution of a second action upon the same claim,
demand or cause of action. On the other hand, Section 47
(c) pertains to res judicata in its concept as “conclusiveness
of judgment” or otherwise known as the rule of auter action
pendant which ordains that issues actually and directly
resolved in a former suit cannot again be raised in any future
case between the same parties involving a different cause
of action. Res judicata in its concept as a bar by prior
judgment obtains in the present case.
Same; Same; Res judicata as a bar by prior judgment
requires the concurrence of the following requisites: (1) the
former judgment is final; (2) it is rendered by a court having
jurisdiction over the subject matter and the parties; (3) it is a
judgment or an order on the merits; and (4) there is—between
the first and second actions—identity of parties, of subject
matter, and of causes of action.—Res judicata requires the
concurrence of the following requisites: (1) the former
judgment is final; (2) it is rendered by a court
having jurisdiction over the subject matter and the parties;
(3) it is a judgment or an order on the merits; and (4) there
is—between the first and the second—identity of parties, of
subject matter, and of causes of action.
Same; Same; The test to determine whether the causes of
action are identical is to ascertain whether the same evidence
will sustain both actions, or whether there is an identity in
the facts essential to the maintenance of the two actions.—
Petitioner does not dispute the existence of the first three
requisites. What is in issue is the presence of the fourth
requisite. In this regard, the test to determine whether the
causes of action are identical is to ascertain whether the
same evidence will sustain both actions, or whether there is
an identity in the facts essential to the maintenance of the
two actions. If the same facts or evidence would sustain both,
the two actions are considered the same, and a judgment in
the first case is a bar to the subsequent action.
338
338 SUPREME COURT REPORTS ANNOTATED
Mallion vs. Alcantara This is a petition for review on certiorari under Rule 45
Same; Same; Parties are bound not only as regards every
matter offered and received to sustain or defeat their claims
or demand but as to any other admissible matter which might
have been offered for that purpose and of all other matters
that could have been adjudged in that case.—The instant
case is premised on the claim that the marriage is null and
void because no valid celebration of the same took place due
to the alleged lack of a marriage license. In Civil Case No. SP
4341-95, however, petitioner impliedly conceded that the
marriage had been solemnized and celebrated in accordance
with law. Petitioner is now bound by this admission. The
alleged absence of a marriage license which petitioner raises
now could have been presented and heard in the earlier case.
Suffice it to state that parties are bound not only as regards
every matter offered and received to sustain or defeat their
claims or demand but as to any other admissible matter
which might have been offered for that purpose and of all
other matters that could have been adjudged in that case.
Same; Same; A party cannot evade or avoid the
application of res judicata by simply varying the form of his
action or adopting a different method of presenting his case.—
It must be emphasized that a party cannot evade or avoid the
application of res judicata by simply varying the form of his
action or adopting a different method of presenting his case.
PETITION for review on certiorari of a decision of the
Court of Appeals.
The facts are stated in the opinion of the Court.
Antonio R. Bautista & Partners for petitioner.
Reynaldo M. Alcantara for private respondent.
AZCUNA, J.:
of the Rules of Court raising a question of law: Does a
previous final judgment denying a petition for
declaration of nullity on the ground of psychological
incapacity bar a subsequent peti-
339
VOL. 506, OCTOBER 31, 2006 339
Mallion vs. Alcantara
tion for declaration of nullity on the ground of lack of
marriage license?
The facts are not disputed:
On October 24, 1995, petitioner Oscar P. Mallion
filed a petition with the Regional Trial Court (RTC),
1
Branch 29, of San Pablo City seeking a declaration of
nullity of his marriage to respondent Editha Alcantara
under Article 36 of Executive Order No. 209, as
amended, otherwise known as the Family Code, citing
respondent’s alleged psychological incapacity. The case
was docketed as Civil Case No. SP 4341-95. After trial
on the merits, the RTC denied the petition in a
decision dated November 11, 1997 upon the finding
2
that petitioner “failed to adduce preponderant evidence
to warrant the grant of the relief he is seeking.” The
3
appeal filed with the Court of Appeals was likewise
dismissed in a resolution dated June 11, 1998 for
4
failure of petitioner to pay the docket and other lawful
fees within the reglementary period.
After the decision in Civil Case No. SP 4341-95
attained finality, petitioner filed on July 12, 1999
another petition for declaration of nullity of marriage
5
with the RTC of San Pablo City, this time alleging that
his marriage with respondent was null and void due to
the fact that it was celebrated without a valid marriage
license. For her part, respondent filed an answer with a
motion to dismiss dated August 13, 1999, praying for
6
the dismissal of the petition on the ground of res
judicata and forum shopping.
_______________
1 Rollo, pp. 39-42.
2 Id., at pp. 43-53.
3 Id., at p. 53.
4 Records, p. 33.
5 Id., at pp. 3-10.
6 Id., at pp. 15-33.
340
340 SUPREME COURT REPORTS ANNOTATED
Mallion vs. Alcantara
In an order dated October 8, 1999, the RTC granted
7
respondent’s motion to dismiss, the dispositive portion
of which reads:
“WHEREFORE, for Forum Shopping and Multiplicity of
Suits, the Motion to Dismiss is GRANTED. This case is
DISMISSED.
SO ORDERED.” 8
Petitioner’s motion for reconsideration was also denied
in an order dated January 21, 2000.
9
Hence, this petition which alleges, as follows:
A. IN DISMISSING PETITIONER’S PETITION FOR THE
DECLARATION OF HIS MARRIAGE AS NULL AND
VOID AB INITIOFOR LACK OF THE REQUISITE
MARRIAGE LICENSE BECAUSE OF (THE) DISMISSAL
OF AN EARLIER PETITION FOR DECLARATION OF
NULLITY OF THE SAME MARRIAGE ON THE GROUND
OF HIS WIFE’S PSYCHOLOGICAL INCAPACITY UNDER
ARTICLE 36 OF THE FAMILY CODE, THE TRIAL COURT
HAD DECIDED A QUESTION OF SUBSTANCE WHICH
HAS PROBABLY NOT HERETOFORE BEEN
DETERMINED SQUARELY AND DEFINITIVELY BY
THIS COURT, OR HAD DECIDED IT IN A WAY NOT IN
ACCORD WITH LAW.
B. IN DISMISSING PETITIONER’S PETITION FOR
THE DECLARATION OF NULLITY OF HIS MARRIAGE
FOR LACK OF THE REQUISITE MARRIAGE LICENSE,
THE TRIAL COURT HAD CONFUSED, DISTORTED AND
MISAPPLIED THE FUNDAMENTAL RULES AND
CONCEPTS ON RES JUDICATA, SPLITTING OF A
CAUSE OF ACTION AND FORUM SHOPPING. 10
Petitioner argues that while the relief prayed for in the
two cases was the same, that is, the declaration of
nullity of his
_______________
 7 Id., at pp. 74-77.
Rollo, p. 28.
8
9 Records, p. 90.
10 Rollo, pp. 7-8.
341
VOL. 506, OCTOBER 31, 2006
Mallion vs. Alcantara
marriage to respondent, the cause of action in the
earlier case was distinct and separate from the cause of
action in the present case because the operative facts
upon which they were based as well as the evidence
required to sustain either were different. Because there
is no identity as to the cause of action, petitioner claims
that res judicata does not lie to bar the second
petition. In this connection, petitioner maintains that
there was no violation of the rule on forum shopping or
of the rule which proscribes the splitting of a cause of
action.
On the other hand, respondent, in her comment
dated May 26, 2000, counters that while the present
suit is anchored on a different ground, it still involves
the same issue raised in Civil Case No. SP 4341-95, that
is, the validity of petitioner and respondent’s marriage,
and prays for the same remedy, that is, the declaration
of nullity of their marriage. Respondent thus contends
that petitioner violated the rule on forum shopping.
Moreover, respondent asserts that petitioner violated
the rule on multiplicity of suits as the ground he cites
in this petition could have been raised during the trial
in Civil Case No. SP 4341-95.
The petition lacks merit.
The issue before this Court is one of first impression.
Should the matter of the invalidity of a marriage due to
the absence of an essential requisite prescribed by
Article 4 of the Family Code be raised in the same
proceeding where the marriage is being impugned on
the ground of a party’s psychological incapacity under
341 Article 36 of the Family Code?
Petitioner insists that because the action for
declaration of nullity of marriage on the ground of
psychological incapacity and the action for declaration
of nullity of marriage on the ground of absence of
marriage license constitute separate causes of action,
the present case would not fall under the prohibition
against splitting a single cause of action nor would it be
barred by the principle of res judicata.
342
342 SUPREME COURT REPORTS ANNOTATED
Mallion vs. Alcantara
The contention is untenable.
Res judicata is defined as “a matter adjudged; a thing
judicially acted upon or decided; a thing or matter
settled by judgment. It also refers to the rule that a final
judgment or decree on the merits by a court of
competent jurisdiction is conclusive of the rights of the
parties or their privies in all later suits on points and
matters determined in the former suit.” 11
This doctrine is a rule which pervades every well-
regulated system of jurisprudence and is founded upon
the following precepts of common law, namely: (1)
public policy and necessity, which makes it to the
interest of the State that there should be an end to
litigation, and (2) the hardship on the individual that
he should be vexed twice for the same cause. A contrary
doctrine would subject the public peace and quiet to the
will and neglect of individuals and prefer the
gratification of the litigious disposition on the part of
suitors to the preservation of the public tranquility and
happiness. 12
In this jurisdiction, the concept of res judicata is
embodied in Section 47 (b) and (c) of Rule 39 of the Rules
of Court, thus:
SEC. 47. Effect of judgments or final orders.—The effect of a
judgment or final order rendered by a court of the
Philippines, having jurisdiction to pronounce the judgment
or final order, may be as follows:
(a) In case of a judgment or final order against a specific
thing or in respect to the probate of a will, or the
administration of the estate of a deceased person, or in
respect to the personal, political, or legal condition or status
of a particular person or his relationship to another, the
judgment or final order is conclusive upon the title to the
thing, the will or administration, or the condition, status
_______________
11 Gutierrez v. Court of Appeals, G.R. No. 82475, January 28,
1991, 193 SCRA 437.
12Cruz v. Court of Appeals, G.R. No. 164797, February 13, 2006, 482
SCRA 379, quoting Heirs of the Late Faustina Adalid v. Court of
Appeals, G.R. No. 122202, May 26, 2005, 459 SCRA 27.
343
VOL. 506, OCTOBER 31, 2006
Mallion vs. Alcantara
or relationship of the person; however, the probate of a will
or granting of letters of administration shall only be prima
facie evidence of the death of the testator or intestate;
(b) In other cases, the judgment or final order is,
with respect to the matter directly adjudged or as to
any other matter that could have been raised in
relation thereto, conclusive between the parties and
their successors in interest by title subsequent to the
commencement of the action or special proceeding,
litigating for the same thing and under the same title
and in the same capacity; and,
(c) In any other litigation between the same parties
or their successors in interest, that only is deemed to
have been adjudged in a former judgment or final
order which appears upon its face to have been so
adjudged, or which was actually and necessarily
included therein or necessary thereto.
The above provision outlines the dual aspect of res
judicata. Section 47 (b) pertains to it in its concept as
13
“bar by prior judgment” or “estoppel by verdict,” which
is the effect of a judgment as a bar to the prosecution of
a second action upon the same claim, demand
or cause of action. On the other hand, Section 47 (c)
pertains to res judicata in its concept as “conclusiveness
of judgment” or otherwise known as the rule of auter
action pendant which ordains that issues actually and
directly resolved in a former suit cannot again be raised
in any future case between the same parties involving
a different cause of action. Res judicata in its
14
concept as a bar by prior judgment obtains in the
present case.
343 Res judicata in this sense requires the concurrence
of the following requisites: (1) the former judgment
is final; (2) it is rendered by a court
having jurisdiction over the sub-
_______________
13 National Housing Authority v. Baello, G.R. No. 143230, August
30, 2004, 437 SCRA 86.
14 Spouses Rasdas v. Estenor, G.R. No. 157605, December 13,
2005, 477 SCRA 538.
 344
344 SUPREME COURT REPORTS ANNOTATED
Mallion vs. Alcantara
ject matter and the parties; (3) it is a judgment or an
order on the merits; and (4) there is—between the first
and the second—identityof parties, of subject matter,
and of causes of action.15
Petitioner does not dispute the existence of the first
three requisites. What is in issue is the presence of the
fourth requisite. In this regard, the test to determine
whether the causes of action are identical is to ascertain
whether the same evidence will sustain both actions, or
whether there is an identity in the facts essential to the
maintenance of the two actions. If the same facts or
evidence would sustain both, the two actions are
considered the same, and a judgment in the first case is
a bar to the subsequent action. 16
Based on this test, petitioner would contend that the
two petitions brought by him seeking the declaration of
nullity of his marriage are anchored on separate causes
of action for the evidence necessary to sustain the first
petition which was anchored on the alleged
psychological incapacity of respondent is different from
the evidence necessary to sustain the present petition
which is anchored on the purported absence of a
marriage license.
Petitioner, however, forgets that he is simply
invoking different grounds for the same cause of action.
By definition, a cause of action is the act or omission by
which a party violates the right of another. In both
17
petitions, petitioner has the same cause—the
declaration of nullity of his marriage to respondent.
What differs is the ground upon which the cause of
action is predicated. These grounds cited by petitioner
essentially split the various aspects of the pivotal issue
that
_______________
15 Luzon Development Bank v. Conquilla, G.R. No. 163338,
September 21, 2005, 470 SCRA 533.
16 Sangalang v. Caparas, G.R. No. L-49749, June 18, 1987, 151
SCRA 53.
17 RULES OFCOURT, Rule 2, Section 2.
345
VOL. 506, OCTOBER 31, 2006 345
Mallion vs. Alcantara
holds the key to the resolution of this controversy, that
is, the actual status of petitioner and respondent’s
marriage.
Furthermore, the instant case is premised on the
claim that the marriage is null and void because no
valid celebration of the same took place due to the
alleged lack of a marriage license. In Civil Case No. SP
4341-95, however, petitioner impliedly conceded that
the marriage had been solemnized and celebrated in
accordance with law. Petitioner is now bound by this
admission. The alleged absence of a marriage license
which petitioner raises now could have been presented
and heard in the earlier case. Suffice it to state that
parties are bound not only as regards every matter
offered and received to sustain or defeat their claims or
demand but as to any other admissible matter which
might have been offered for that purpose and of all other
matters that could have been adjudged in that case.
18
 It must be emphasized that a party cannot evade or
avoid the application of res judicata by simply varying
the form of his action or adopting a different method of
presenting his case. As this Court stated in Perez v.
19
Court of Appeals: 20
“x x x the statement of a different form of liability is not a
different cause of action, provided it grows out of the same
transaction or act and seeks redress for the wrong. Two
actions are not necessarily for different causes of action
simply because the theory of the second would not have been
open under the pleadings in the first. A party cannot
preserve the right to bring a second action after the loss of
the first merely by having circumscribed and limited theories
of recovery opened by the pleadings in the first.
_______________
18 Carlet v. Court of Appeals, G.R. No. 114275, July 7, 1997, 275
SCRA 97.
19 Linzag v. Court of Appeals, G.R. No. 122181, June 26, 1998, 291
SCRA 304.
20 G.R. No. 157616, July 22, 2005, 464 SCRA 89.
346
346 SUPREME COURT REPORTS ANNOTATED
Mallion vs. Alcantara
It bears stressing that a party cannot divide the grounds for
recovery. A plaintiff is mandated to place in issue in his
pleading, all the issues existing when the suit began.
A lawsuit cannot be tried piecemeal. The plaintiff is
bound to set forth in his first action every ground for
relief which he claims to exist and upon which he
relied, and cannot be permitted to rely upon them by
piecemeal in successive action to recover for the same
wrong or injury.
A party seeking to enforce a claim, legal or
equitable, must present to the court, either by the
pleadings or proofs, or both, on the grounds upon
which to expect a judgment in his favor. He is not at
liberty to split up his demands, and prosecute it by
piecemeal or present only a portion of the grounds
upon which a special relief is sought and leave the rest
to the presentment in a second suit if the first fails.
There would be no end to litigation if such piecemeal
presentation is allowed.(Citations omitted.)
In sum, litigants are provided with the options on the
course of action to take in order to obtain judicial relief.
Once an option has been taken and a case is filed in
court, the parties must ventilate all matters and
relevant issues therein. The losing party who files
another action regarding the same controversy will be
needlessly squandering time, effort and financial
resources because he is barred by law from litigating
the same controversy all over again. 21
Therefore, having expressly and impliedly conceded
the validity of their marriage celebration, petitioner is
now deemed to have waived any defects therein. For
this reason, the Court finds that the present action for
declaration of nullity of marriage on the ground of lack
of marriage license is barred by the decision dated
November 11, 1997 of the RTC, Branch 29, of San Pablo
City, in Civil Case No. SP 4341-95.
_______________
Carlet v. Court of Appeals, supra note 18.
21
347
VOL. 506, OCTOBER 31, 2006 347
Mallion vs. Alcantara
WHEREFORE, the petition is DENIED for lack of
merit. Costs against petitioner.
 SO ORDERED.
Puno (Chairperson), Sandoval-
Gutierrez, Corona and Garcia, JJ., concur.
Petition denied.
Notes.—Two aspects: “bar by prior judgment,” is the
effect of a judgment as a bar to the prosecution of a
second action upon the same claim, demand or cause of
action; “conclusiveness of judgment” precludes the
relitigation of a particular fact or issue in another action
between the same parties on a different claim or cause
of action. (National Housing Authority vs. Baello, 437
SCRA 86[2004])
When material facts or questions in issue in a former
action were conclusively settled by a judgment rendered
therein, such facts or questions constitute res
judicata and may not again be litigated in subsequent
action between the same parties or their privies
regardless of the form of the latter. (Barbacina vs. Court
of Appeals, 437 SCRA 300 [2004])

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348
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reserved.

572 SUPREME COURT REPORTS ANNOTATED
Domingo vs. Court of Appeals
G.R. No. 104818. September 17, 1993. *
ROBERTO DOMINGO, petitioner, vs. COURT OF
APPEALS and DELIA SOLEDAD AVERA represented
by her Attorney-in-Fact MOISES R. AVERA,
respondents.
Marriages; A marriage though void still needs a judicial
declaration of such fact under the. Family Code even for
purposes other than remarriage.—Came the Family Code
which settled once and for all the conflicting jurisprudence
on the matter. A declaration of the absolute nullity of a
marriage is now explicitly required either as a cause of action
or a ground for defense. Where the absolute nullity of a
previous marriage is sought to be invoked for purposes of
contracting a second
_______________
*THIRD DIVISION.
573
VOL. 226, SEPTEMBER 17, 1993
Domingo vs. Court of Appeals
marriage, the sole basis acceptable in law for said
projected marriage to be free from legal infirmity is a final
judgment declaring the previous marriage void.
Same; Same.—In fact, the requirement for a declaration
of absolute nullity of a marriage is also for the protection of
the spouse who, believing that his or her marriage is illegal
and void, marries again. With the judicial declaration of the
nullity of his or her first marriage, the person who marries
again cannot be charged with bigamy.
Same; Same.—That Article 40 as finally formulated
included the significant clause denotes that such final
judgment declaring the previous marriage void need not be
obtained only for purposes of remarriage. Undoubtedly, one
can conceive of other instances where a party might well
invoke the absolute nullity of a previous marriage for
purposes other than remarriage, such as in case of an action
for liquidation, partition, distribution and separation of
property between the erstwhile spouses, as well as an action
for the custody and support of their common children and the
delivery of the latters’ presumptive legitimes. In such cases,
evidence needs must be adduced, testimonial or
documentary, to prove the existence of grounds rendering
such a previous marriage an absolute nullity. These need not
be limited solely to an earlier final judgment of a court
declaring such previous marriage void. Hence, in the
instance where a party who has previously contracted a
marriage which remains subsisting desires to enter into
another marriage which is legally unassailable, he is
required by law to prove that the previous one was an
absolute nullity. But this he may do on the basis solely of a
final judgment declaring such previous marriage void.
Same; Actions; Declaration of nullity of marriage carries
573 ipso facto a judgment for the liquidation of property, custody
and support of children, etc. There is no need of filing a
separate civil action for such purposes.—Based on the
foregoing provisions, private respondent’s ultimate prayer
for separation of property will simply be one of the necessary
consequences of the judicial declaration of absolute nullity of
their marriage. Thus, petitioner’s suggestion that in order for
their properties to be separated, an ordinary civil action has
to be instituted for that purpose is baseless. The Family Code
has clearly provided the effects of the declaration of nullity
of marriage, one of which is the separation of property
according to the regime of property relations governing them.
It stands to reason that the lower court before whom the
issue of nullity of a first marriage is brought is likewise
clothed with jurisdiction to decide the incidental questions
regarding the couple’s properties. Accordingly, the
respondent court committed no reversible
574
574 SUPREME COURT REPORTS ANNOTATED
Domingo vs. Court of Appeals The instant petition seeks the reversal of respondent
error in finding that the lower court committed no grave
abuse of discretion in denying petitioner’s motion to dismiss
SP No. 1989-J.
VITUG, J., Concurring:
Marriages; Certain effects of a valid marriage can flow
out of a void marriage.—A void marriage, even without its
being judicially declared a nullity, albeit the preferability for,
and justiciability (fully discussed in the majority opinion) of,
such a declaration, will not give it the status or the
consequences of a valid marriage, saving only specific
instances where certain effects of a valid marriage can still
flow from the void marriage. Examples of these cases are
children of void marriages under Article 36 (due to
psychological incapacity) and Article 53, in relation to Article
52 (due to failure of partition, delivery of presumptive
legitimes of children and recording thereof following the
annulment or declaration of nullity of a prior marriage),
conceived or born before the judicial declaration of nullity of
such void marriages, who the law deems as legitimate
(Article 54, Family Code).
PETITION for review of the decision of the Court of
Appeals.
The facts are stated in the opinion of the Court.
Jose P.O. Aliling IV for petitioner.
De Guzman, Meneses & Associates for private
respondent.
ROMERO, J.:
court’s ruling finding no grave abuse of discretion in the
lower court’s order denying petitioner’s motion to
dismiss the petition for declaration of nullity of
marriage and separation of property.
On May 29, 1991, private respondent Delia Soledad
A. Domingo filed a petition before the Regional Trial
Court of Pasig entitled “Declaration of Nullity of
Marriage and Separation of Property” against
petitioner Roberto Domingo. The petition which was
docketed as Special Proceedings No. 1989-J alleged
among others that: they were married on November 29,
1976 at the YMCA Youth Center Bldg., as evidenced by
a Marriage Contract Registry No. 1277K-76 with
Marriage License No. 4999036 issued at Carmona,
Cavite; unknown to her, he had a previous marriage
with one Emerlina dela Paz on April 25, 1969 which
marriage is valid and still existing; she came to know of
the prior marriage
575
VOL. 226, SEPTEMBER 17, 1993 575
Domingo vs. Court of Appeals
only sometime in 1983 when Emerlina dela Paz sued
them for bigamy; from January 23, 1979 up to the
present, she has been working in Saudi Arabia and she
used to come to the Philippines only when she would
avail of the one-month annual vacation leave granted
by her foreign employer; since 1983 up to the present,
he has been unemployed and completely dependent
upon her for support and subsistence; out of her
personal earnings, she purchased real and personal
properties with a total amount of approximately
P350,000.00, which are under the possession and
administration of Roberto; sometime in June 1989,
while on her one-month vacation, she discovered that
he was cohabiting with another woman; she further
discovered that he had been disposing of some of her
properties without her knowledge or consent; she
confronted him about this and thereafter appointed her
brother Moises R. Avera as her attorney-in-fact to take
care of her properties; he failed and refused to turn over
the possession and administration of said properties to
her brother/attorney-in-fact; and he is not authorized to
administer and possess the same on account of the
nullity of their marriage. The petition prayed that a
temporary restraining order or a writ of preliminary
injunction be issued enjoining Roberto from exercising
any act of administration and ownership over said
properties; their marriage be declared null and void and
of no force and effect; and Delia Soledad be declared the
sole and exclusive owner of all properties acquired at
the time of their void marriage and such properties be
placed under the proper management and
administration of the attorney-in-fact.
Petitioner filed a Motion to Dismiss on the ground
that the petition stated no cause of action. The marriage
being void ab initio,the petition for the declaration of its
nullity is, therefore, superfluous and unnecessary. It
added that private respondent has no property which is
in his possession.
On August 20, 1991, Judge Maria Alicia M. Austria
issued an Order denying the motion to dismiss for lack
of merit. She explained:
“Movant argues that a second marriage contracted after a
first marriage by a man with another woman is illegal and
void (citing the case of Yap v. Court of Appeals, 145 SCRA
229) and no judicial decree is necessary to establish the
invalidity of a void marriage (citing the cases
576
576 SUPREME COURT REPORTS ANNOTATED
Domingo vs. Court of Appeals
of People v. Aragon, 100 Phil. 1033; People v. Mendoza, 95
Phil. 845). Indeed, under the Yap case there is no dispute
that the second marriage contracted by respondent with
herein petitioner after a first marriage with another woman
is illegal and void. However, as to whether or not the second
marriage should first be judicially declared a nullity is not
an issue in said case. In the case of Vda. de Consuegra v.
GSIS, the Supreme Court ruled in explicit terms, thus:
And with respect to the right of the second wife, this Court
observed that although the second marriage can be presumed to be
void ab initio as it was celebrated while the first marriage was still
subsisting, still there is need for judicial declaration of its nullity.
(37 SCRA 316, 326)
The above ruling which is of later vintage deviated from the
previous rulings of the Supreme Court in the aforecited cases of
Aragon and Mendoza.
Finally, the contention of respondent movant that petitioner
has no property in his possession is an issue that may be
determined only after trial on the merits.” 1
A motion for reconsideration was filed stressing the
erroneous application of Vda. de Consuegra v.
GSIS and the absence of justiciable controversy as to
2
the nullity of the marriage. On September 11, 1991,
Judge Austria denied the motion for reconsideration
and gave petitioner fifteen (15) days from receipt within
which to file his answer.
Instead of filing the required answer, petitioner filed
a special civil action of certiorari and mandamus on the
ground that the lower court acted with grave abuse of
discretion amounting to lack of jurisdiction in denying
the motion to dismiss.
On February 7, 1992, the Court of Appeals dismissed
3 properties. Lastly, it noted that since the Court has
the petition. It explained that the case of Yap v.
CA cited by petitioner and that of Consuegra v.
4 motion to dismiss is merely one of law for which the
GSIS relied upon by the lower court do not have
relevance in the case at bar, there being no identity of
facts because these cases dealt with the successional
rights of the second wife while the instant case prays for
separa-
_______________
1Annex “C,” Rollo, pp. 28-29.
2L-28093, January 30, 1971, 37 SCRA 315.
3Annex “J,” Rollo, pp. 62-67, Justice Jorge S. Imperial, ponente and
Justices Luis A. Javellana and Serafin V.C. Guingona, concurring.
4L-40003, October 28, 1986, 145 SCRA 229.
577
VOL. 226, SEPTEMBER 17, 1993
Domingo vs. Court of Appeals
tion of property corollary with the declaration of nullity
of marriage. It observed that the separation and
subsequent distribution of the properties acquired
during the union can be had only upon proper
determination of the status of the marital relationship
between said parties, whether or not the validity of the
first marriage is denied by petitioner. Furthermore, in
order to avoid duplication and multiplicity of suits, the
declaration of nullity of marriage may be invoked in this
proceeding together with the partition and distribution
of the properties involved. Citing Articles 48, 50 and 52
of the Family Code, it held that private respondent’s
prayer for declaration of absolute nullity of their
marriage may be raised together with other incidents of
their marriage such as the separation of their
jurisdiction, the alleged error in refusing to grant the
remedy ordinarily would have been to file an answer,
proceed with the trial and in case of an adverse decision,
reiterate the issue on appeal. The motion for
reconsideration was subsequently denied for lack of
merit.
5
Hence, this petition.
The two basic issues confronting the Court in the
instant case are the following.
First, whether or not a petition for judicial
declaration of a void marriage is necessary. If in the
affirmative, whether the same should be filed only for
purposes of remarriage.
577 Second, whether or not SP N6. 1989-J is the proper
remedy of private respondent to recover certain real and
personal properties allegedly belonging to her
exclusively.
Petitioner, invoking the ruling in People v.
Aragon and People v. Mendoza, contends that SP. No.
6 7
1989-J for Declaration of Nullity of Marriage and
Separation of Property filed by private respondent must
be dismissed for being unnecessary and superfluous.
Furthermore, under his own interpretation of Article 40
of the Family Code, he submits that a petition for
declaration of absolute nullity of marriage is required
only for purposes of remarriage. Since the petition in SP
No. 1989-J contains no
_______________
Annex “M,” Rollo, p. 80.
5
6 100 Phil. 1033 (1957).
7 95 Phil. 845 (1954).
578
578 SUPREME COURT REPORTS ANNOTATED
Domingo vs. Court of Appeals
allegation of private respondent’s intention to remarry,
said petition should, therefore, be dismissed.
On the other hand, private respondent insists on the
necessity of a judicial declaration of the nullity of their
marriage, not for purposes of remarriage, but in order
to provide a basis for the separation and distribution of
the properties acquired during coverture.
There is no question that the marriage of petitioner
and private respondent celebrated while the former’s
previous marriage with one Emerlina de la Paz was still
subsisting, is bigamous. As such, it is void from the
beginning. Petitioner himself does not dispute the
8
absolute nullity of their marriage. 9
The cases of People v. Aragon and People v.
Mendoza relied upon by petitioner are cases where the
Court had earlier ruled that no judicial decree is
necessary to establish the invalidity of a void, bigamous
marriage. It is noteworthy to observe that Justice Alex
Reyes, however, dissented on these occasions stating
that:
“Though the logician may say that where the former
marriage was void there would be nothing to dissolve, still it
is not for the spouses to judge whether that marriage was
void or not. That judgment is reserved to the courts. x x x” 10
This dissenting opinion was adopted as the majority
position in subsequent cases involving the same issue.
Thus, in Gomez v. Lipana, the Court abandoned its
11
earlier ruling in the Aragon and Mendoza cases. In
reversing the lower court’s order forfeiting the
husband’s share of the disputed property acquired
during the second marriage, the Court stated that “if
the nullity, or annulment of the marriage is the basis
for the application of Article 1417, there is need for a
judicial declaration thereof, which of course
contemplates an action for that purpose.”
Citing Gomez v. Lipana, the Court subsequently held
in Vda. de Consuegra v. Government Service Insurance
System, that
_______________
8 CIVIL CODE, art. 80, par. 4; FAMILY CODE, arts. 35, par. 4 and
41.
9 Rollo, pp. 102 and 106.
10 See: Note 6 at p. 1036; Note 7 at p. 848.
11 L-23214, June 30, 1970, 33 SCRA 615, 620-621.
579
VOL. 226, SEPTEMBER 17, 1993 579
Domingo vs. Court of Appeals
“although the second marriage can be presumed to be
void ab initioas it was celebrated while the first
marriage was still subsisting, still there is need for
judicial declaration of such nullity.”
In Tolentino v. Paras, however, the Court turned
12
around and applied the Aragon and Mendoza ruling
once again. In granting the prayer of the first wife
asking for a declaration as the lawful surviving spouse
and the correction of the death certificate of her
deceased husband, it explained that “(t)he second
marriage that he contracted with private respondent
during the lifetime of his first spouse is null and void
from the beginning and of no force and effect. No
judicial decree is necessary to establish the invalidity of
a void marriage.”
However, in the more recent case of Wiegel v.
Sempio-Diy the Court reverted to the Consuegra case
13
and held that there was “no need of introducing
evidence about the existing prior marriage of her first
husband at the time they married each other, for then
such a marriage though void still needs according to
this Court a judicial declaration of such fact and for all
legal intents and purposes she would still be regarded
as a married woman at the time she contracted her
marriage with respondent Karl Heinz Wiegel.”
Came the Family Code which settled once and for all
the conflicting jurisprudence on the matter. A
declaration of the absolute nullity of a marriage is now
explicitly required either as a cause of action or a
ground for defense. Where the absolute nullity of a
14
previous marriage is sought to be invoked for purposes
of contracting a second marriage, the sole basis
acceptable in law for said projected marriage to be free
from legal infirmity is a final judgment declaring the
previous marriage void. 15
The Family Law Revision Committee and the Civil
Code Revision Committee which drafted what is now
16
the Family
_______________
12 L-43905, May 30, 1983, 122 SCRA 525.
13 G.R. No. 53703, August 19, 1986, 143 SCRA 499.
14 FAMILY CODE, art. 39.
15 Id., art. 40. See also: arts. 11, 13, 42, 44, 48, 50, 52, 54, 86, 99,
147, 148.
16 The Family Law Revision Committee of the Integrated Bar of the
Philippines (IBP) prepared the draft of the revision of Book I of the
580
580 SUPREME COURT REPORTS ANNOTATED
Domingo vs. Court of Appeals
Code of the Philippines took the position that parties to
a marriage should not be allowed to assume that their
marriage is void even if such be the fact but must first
secure a judicial declaration of the nullity of their
marriage before they can be allowed to marry again.
This is borne out by the following minutes of the 152nd
Joint Meeting of the Civil Code and Family Law
Committees where the present Article 40, then Art. 39,
was discussed.
“B. Article 39.—
The absolute nullity of a marriage may be invoked only on the
basis of a final judgment declaring the marriage void, except as
provided in Article 41.
Justice Caguioa remarked that the above provision should
include not only void but also voidable marriages. He then
suggested that the above provision be modified as follows:
The validity of a marriage may be invoked only . . . Justice Reyes
(J.B.L. Reyes), however, proposed that they say:
The validity or invalidity of a marriage may be invoked only. . .
On the other hand. Justice Puno suggested that they
say:
The invalidity of a marriage may be invoked only . . . Justice
Caguioa explained that his idea is that one cannot determine for
himself whether or not his marriage is valid and that a court action
is needed. Justice Puno accordingly proposed that the provision be
modified to read:
The invalidity of a marriage may be invoked only on the basis
of a final judgment annulling the marriage or declaring the
marriage void, except as provided in Article 41.
Justice Caguioa remarked that in annulment, there is no
question. Justice Puno, however, pointed out that, even if it
is a judgment of annulment, they still have to produce the
judgment. Justice Caguioa suggested that they say.
The invalidity of a marriage may be invoked only on the
_______________
Civil Code of the Philippines. After more than four years, the draft was
turned over to the Civil Code Revision Committee of the UP Law Center
which reviewed and revised the same for more than three years.
581
VOL. 226, SEPTEMBER 17, 1993
Domingo vs. Court of Appeals
basis of a final judgment declaring the marriage invalid, except as
provided in Article 41.
Justice Puno raised the question: When a marriage is
declared invalid, does it include the annulment of a marriage
and the declaration that the marriage is void? Justice
Caguioa replied in the affirmative. Dean Gupit added that in
some judgments, even if the marriage is annulled, it is
declared void. Justice Puno suggested that this matter be
made clear in the provision.
Prof. Baviera remarked that the original idea in the
provision is to require first a judicial declaration of a void
marriage and not annullable marriages, with which the
other members concurred. Judge Diy added that annullable
marriages are presumed valid until a direct action is filed to
annul it, which the other members affirmed. Justice Puno
remarked that if this is so, then the phrase ‘absolute nullity’
can stand since it might result in confusion if they change
the phrase to ‘invalidity’ if what they are referring to in the
provision is the declaration that the marriage is void.
Prof. Bautista commented that they will be doing away
with collateral defense as well as collateral attack. Justice
Caguioa explained that the idea in the provision is that there
should be a final judgment declaring the marriage void and
a party should not declare for himself whether or not the
marriage is void, which the other members affirmed. Justice
Caguioa added that they are, therefore, trying to avoid a
collateral attack on that point. Prof. Bautista stated that
there are actions which are brought on the assumption that
the marriage is valid. He then asked: Are they depriving one
of the right to raise the defense that he has no liability
because the basis of the liability is void? Prof. Bautista added
that they cannot say that there will be no judgment on the
581 validity or invalidity of the marriage because it will be taken
up in the same proceeding. It will not be a unilateral
declaration that it is a void marriage. Justice Caguioa saw
the point of Prof. Bautista and suggested that they limit the
provision to remarriage. He then proposed that Article 39 be
reworded as follows:
The absolute nullity of a marriage for purposes of remarriage may
be invoked only on the basis of final judgment . . . Justice Puno
suggested that the above be modified as follows:
The absolute nullity of a previous marriage may be invoked for
purposes of establishing the validity of a subsequent marriage only
on the basis of a final judgment declaring such previous marriage
void, except as provided in Article 41. Justice Puno later modified
the above as follows:
For the purpose of establishing the validity of a subsequent
582
582 SUPREME COURT REPORTS ANNOTATED
Domingo vs. Court of Appeals
marriage, the absolute nullity of a previous marriage may only be
invoked on the basis of a final judgment declaring such nullity,
except as provided in Article 41.
Justice Caguioa commented that the above provision is
too broad and will not solve the objection of Prof. Bautista.
He proposed that they say:
For the purpose of entering into a subsequent marriage, the
absolute nullity of a previous marriage may only be invoked on the
basis of a final judgment declaring such nullity, except as provided
in Article 41.
Justice Caguioa explained that the idea in the above
provision is that if one enters into a subsequent marriage
without obtaining a final judgment declaring the nullity of a
previous marriage, said subsequent marriage is void ab
initio.
After further deliberation, Justice Puno suggested that
they go back to the original wording of the provision as
follows:
The absolute nullity of a previous marriage may be invoked for
purposes of remarriage only on the basis of a final judgment
declaring such previous marriage void, except as provided in
Article 41.”
17
In fact, the requirement for a declaration of absolute
nullity of a marriage is also for the protection of the
spouse who, believing that his or her marriage is illegal
and void, marries again. With the judicial declaration of
the nullity of his or her first marriage, the person who
marries again cannot be charged with bigamy. 18
Just over a year ago, the Court made the
pronouncement that there is a necessity for a judicial
declaration of absolute nullity of a prior subsisting
marriage before contracting another in the recent case
of Terre v. Terre. The Court, in turning down the
19
defense of respondent Terre who was charged with
grossly immoral conduct consisting of contracting a
second marriage and living with another woman other
than complainant while his prior marriage with the
latter remained subsisting, said that “for purposes of
determining whether a person is legally free to
_______________
17August 23, 1986, pp. 4-7.
18J. A.V. SEMPIO-DIY, HANDBOOK OF THE FAMILY CODE OF
THE PHILIPPINES, 46 (1988).
19 Adm. Case No. 2349, July 3, 1992, 211 SCRA 6, 11.
583
VOL. 226, SEPTEMBER 17, 1993 583
Domingo vs. Court of Appeals
contract a second marriage, a judicial declaration that
the first marriage was null and void ab initio is
essential.”
As regards the necessity for a judicial declaration of
absolute nullity of marriage, petitioner submits that the
same can be maintained only if it is for the purpose of
remarriage. Failure to allege this purpose, according to
petitioner’s theory, will warrant dismissal of the same.
Article 40 of the Family Code provides:
“ART. 40. The absolute nullity of a previous marriage may
be invoked for purposes of remarriage on the basis solely of
a final judgment declaring such previous marriage void.” (n)
Crucial to the proper interpretation of Article 40 is the
position in the provision of the word “solely.” As it is
placed, the same shows that it is meant to qualify “final
judgment declaring such previous marriage void.”
Realizing the need for careful craftsmanship in
conveying the precise intent of the Committee
members, the provision in question, as it finally
emerged, did not state “The absolute nullity of a
previous marriage may be invoked solely for purposes of
remarriage . . .,” in which case “solely” would clearly
qualify the phrase “for purposes of remarriage.” Had the
phraseology been such, the interpretation of petitioner
would have been correct and, that is, that the absolute
nullity of a previous marriage may be invoked solely for
purposes of remarriage, thus rendering irrelevant the
clause “on the basis solely of a final judgment declaring
such previous marriage void.”
That Article 40 as finally formulated included the
significant clause denotes that such final judgment
declaring the previous marriage void need not be
obtained only for purposes of remarriage. Undoubtedly,
one can conceive of other instances where a party might
well invoke the absolute nullity of a previous marriage
for purposes other than remarriage, such as in case of
an action for liquidation, partition, distribution and
separation of property between the erstwhile spouses,
as well as an action for the custody and support of their
common children and the delivery of the latters’
presumptive legitimes. In such cases, evidence needs
must be adduced, testimonial or documentary, to prove
the existence of grounds rendering such a previous
marriage an absolute nullity. These need not be limited
solely to an
584
584 SUPREME COURT REPORTS ANNOTATED
Domingo vs. Court of Appeals
earlier final judgment of a court declaring such previous
marriage void. Hence, in the instance where a party
who has previously contracted a marriage which
remains subsisting desires to enter into another
marriage which is legally unassailable, he is required
by law to prove that the previous one was an absolute
nullity. But this he may do on the basis solely of a final
judgment declaring such previous marriage void.
This leads us to the question: Why the distinction? In
other words, for purposes of remarriage, why should the
only legally acceptable basis for declaring a previous
marriage an absolute nullity be a final judgment
declaring such previous marriage void? Whereas, for
purposes other than remarriage, other evidence is
acceptable?
Marriage, a sacrosanct institution, declared by the
Constitution as an “inviolable social institution, is the
foundation of the family;” as such, it “shall be protected
by the State.” In more explicit terms, the Family Code
20
characterizes it as a “special contract of permanent
union between a man and a woman entered into in
accordance with law for the establishment of conjugal
and family life.” So crucial are marriage and the family
21
to the stability and peace of the nation that their
“nature, consequences, and incidents are governed by
law and not subject to stipulation . . .,” As a matter of
22
policy, therefore, the nullification of a marriage for the
purpose of contracting another cannot be accomplished
merely on the basis of the perception of both parties or
of one that their union is so defective with respect to the
essential requisites of a contract of marriage as to
render it void ipso jure and with no legal effect—and
nothing more. Were this so, this inviolable social
institution would be reduced to a mockery and would
rest on very shaky foundations indeed. And the grounds
for nullifying marriage would be as diverse and
farranging as human ingenuity and fancy could
conceive. For such a socially significant institution, an
official state pronouncement through the courts, and
nothing less, will satisfy the exacting norms of society.
Not only would such an open and public
_______________
20 CONST., art. XV, sec. 2.
21 FAMILY CODE, art. 1.
22 Id.
585
VOL. 226, SEPTEMBER 17, 1993
Domingo vs. Court of Appeals
declaration by the courts definitively confirm the nullity
of the contract of marriage, but the same would be
easily verifiable through records accessible to everyone.
That the law seeks to ensure that a prior marriage is
no impediment to a second sought to be contracted by
one of the parties may be gleaned from new information
required in the Family Code to be included in the
application for a marriage license, viz, “If previously
married, how, when and where the previous marriage
was dissolved and annulled.” 23
Reverting to the case before us, petitioner’s
interpretation of Art. 40 of the Family Code is,
undoubtedly, quite restrictive. Thus, his position that
private respondent’s failure to state in the petition that
the same is filed to enable her to remarry will result in
the dismissal of SP No. 1989-J is untenable. His
misconstruction of Art. 40 resulting from the misplaced
emphasis on the term “solely” was in fact anticipated by
the members of the Committee.
“Dean Gupit commented that the word “only” may be
misconstrued to refer to “for purposes of remarriage.” Judge
Diy stated that “only” refers to “final judgment.” Justice Puno
suggested that they say “on the basis only of a final
judgment.” Prof. Baviera suggested that they use the legal
term “solely” instead of “only,” which the Committee
approved.” (Italics supplied)
24
Pursuing his previous argument that the declaration
for absolute nullity of marriage is unnecessary,
petitioner suggests that private respondent should have
filed an ordinary civil action for the recovery of the
585 properties alleged to have been acquired during their
union. In such an eventuality, the lower court would not
be acting as a mere special court but would be clothed
with jurisdiction to rule on the issues of possession and
ownership. In addition, he pointed out that there is
actually nothing to separate or partition as the petition
admits that all the properties were acquired with
private respondent’s money.
The Court of Appeals disregarded this argument and
concluded that “the prayer for declaration of absolute
nullity of marriage may be raised together with the
other incident of their
_______________
Id., art. 11.
23
See: Note 17, at p. 7.
24
586
586 SUPREME COURT REPORTS ANNOTATED
Domingo vs. Court of Appeals
marriage such as the separation of their properties.”
When a marriage is declared void ab initio, the law
states that the final judgment therein shall provide for
“the liquidation, partition and distribution of the
properties of the spouses, the custody and support of the
common children, and the delivery of their presumptive
legitimes, unless such matters had been adjudicated in
previous judicial proceedings.” Other specific effects
25
flowing therefrom, in proper cases, are the following:
“Art. 43. x x x xxx xxx
1. (2)The absolute community of property or the
conjugal partnership, as the case may be, shall be
dissolved and liquidated, but if either spouse
contracted said marriage in bad faith, his or her
share of the net profits of the community property or
conjugal partnership property shall be forfeited in
favor of the common children or, if there are none,
the children of the guilty spouse by a previous
marriage or, in default of children, the innocent
spouse;
2. (3)Donations by reason of marriage shall remain
valid, except that if the donee contracted the
marriage in bad faith, such donations made to said
donee are revoked by operation of law;
3. (4)The innocent spouse may revoke the designation of
the other spouse who acted in bad faith as a
beneficiary in any insurance policy, even if such
designation be stipulated as irrevocable; and
4. (5)The spouse who contracted the subsequent
marriage in bad faith shall be disqualified to inherit
from the innocent spouse by testate and intestate
succession. (n)
Art. 44. If both spouses of the subsequent marriage acted
in bad faith, said marriage shall be void ab initio and all
donations by reason of marriage and testamentary
disposition made by one in favor of the other are revoked by
operation of law. (n)” 26
Based on the foregoing provisions, private respondent’s
ultimate prayer for separation of property will simply
be one of the necessary consequences of the judicial
declaration of absolute nullity of their marriage. Thus,
petitioner’s suggestion that in
_______________
25 Art. 50 (2).
26 In relation to Art. 50 (1)—The effects provided for in paragraphs
(2), (3), (4) and (5) of Article 43 and in Article 44 shall also apply in
proper cases to marriages which are declared void ab initio or annulled
by final judgment under Articles 40 and 45.
587
VOL. 226, SEPTEMBER 17, 1993 587
Domingo vs. Court of Appeals
order for their properties to be separated, an ordinary
civil action has to be instituted for that purpose is
baseless. The Family Code has clearly provided the
effects of the declaration of nullity of marriage, one of
which is the separation of property according to the
regime of property relations governing them. It stands
to reason that the lower court before whom the issue of
nullity of a first marriage is brought is likewise clothed
with jurisdiction to decide the incidental questions
regarding the couple’s properties. Accordingly, the
respondent court committed no reversible error in
finding that the lower court committed no grave abuse
of discretion in denying petitioner’s motion to dismiss
SP No. 1989-J.
WHEREFORE, the instant petition is hereby
DENIED. The decision of respondent Court dated
February 7, 1992 and the Resolution dated March 20,
1992 are AFFIRMED.
SO ORDERED.
Bidin and Melo, JJ., concur.
Feliciano, J., On official leave.
Vitug, J., With concurring opinion.
CONCURRING OPINION
VITUG, J.:
I concur with the opinion so well expressed by Mme.
Justice Flerida Ruth P. Romero. I should like, however,
to put in a modest observation.
Void marriages are inexistent from the very
beginning and, I believe, no judicial decree is required to
establish their nullity, except in the following instances:
(a) For purposes of remarriage pursuant to the
provision of Article 40 of the Family Code; viz:
The absolute nullity of a previous marriage may be invoked
for purposes of remarriage on the basis solely of a final
judgment declaring such previous marriage void. (n)
(b) A marriage celebrated prior to the effectivity of the
Fam-
588
588 SUPREME COURT REPORTS ANNOTATED
Domingo vs. Court of Appeals
ily Code in case a party thereto was psychologically
incapacitated to comply with the essential marital
obligations of marriage (Article 36, Family Code), where
an action or defense for the declaration of nullity
prescribes ten (10) years after the Family Code took
effect (Article 39, Family Code); otherwise, the
marriage is deemed unaffected by the Family Code.
A void marriage, even without its being judicially
declared a nullity, albeit the preferability for, and
justiciability (fully discussed in the majority opinion) of,
such a declaration, will not give it the status or the
consequences of a valid marriage, saving only specific
instances where certain effects of a valid marriage can
still flow from the void marriage. Examples of these
cases are children of void marriages under Article 36
(due to psychological incapacity) and Article 53, in
relation to Article 52 (due to failure of partition,
delivery of presumptive legitimes of children and
recording thereof following the annulment or
declaration of nullity of a prior marriage), conceived or
born before the judicial declaration of nullity of such
void marriages, who the law deems as legitimate
(Article 54, Family Code).
In most, if not in all, other cases, a void marriage is
to be considered extant per se. Neither the conjugal
partnership of gain under the old regime nor the
absolute community of property under the new Code
(absent a marriage settlement), will apply; instead,
their property relations shall be governed by the co-
ownership rules under either Article 147 or Article 148
of the Family Code. I must hasten to add as a personal
view, however, that the exceptional effects on children
of a void marriage because of the psychological
incapacity of a party thereto should have been extended
to cover even the personal and property relations of the
spouses. Unlike the other cases of void marriages where
the grounds therefor may be established by hard facts
and with little uncertainty, the term “psychological
incapacity” is so relative and unsettling that until a
judicial declaration of nullity is made its interim effects
can long and literally hang on the balance not only
insofar as the spouses themselves are concerned but
also as regards third persons with whom the spouses
deal.
Petition denied. Questioned decision affirmed.
Notes.—Obligation to give or the right to ask for
support does
589
VOL. 226, SEPTEMBER 17, 1993 589
Arambulo vs. Court of Appeals
not cease permanently. Right to support subsists
throughout the period that the marriage subsists
(Canonizado vs. Benitez, 127 SCRA 610).
The best documentary evidence of a marriage is the
marriage contract itself (Villanueva vs. Court of
Appeals, 198 SCRA 472).

——o0o——

© Copyright 2019 Central Book Supply, Inc. All rights

reserved.
162 SUPREME COURT REPORTS ANNOTATED
De Castro vs. Assidao-De Castro
G.R. No. 160172. February 13, 2008. *
REINEL ANTHONY B. DE CASTRO,
petitioner, vs. ANNABELLE ASSIDAO-DE CASTRO,
respondent.
Civil Law; Marriages; Filiation; The validity of a void
marriage may be collaterally attacked; Other than for
purposes of remarriage, no judicial action is necessary to
declare a marriage an absolute nullity.—The Court holds
that the trial court had jurisdiction to determine the validity
of the marriage between petitioner and respondent. The
validity of a void marriage may be collaterally attacked.
Thus, in Niñal v. Bayadog, 328 SCRA 122 (2000), we held:
However, other than for purposes of remarriage, no judicial
action is necessary to declare a marriage an absolute nullity.
For other purposes, such as but not limited to determination
of heirship, legitimacy or illegitimacy of a child, settlement
of estate, dissolution of property regime, or a criminal case
for that matter, the court may pass upon the validity of
marriage even in a suit not directly instituted to question the
same so long as it is essential to the determination of the
case. This is without prejudice to any issue that may arise in
the case. When such need arises, a final judgment of
declaration of nullity is necessary even if the purpose is other
than to remarry. The clause “on the basis of a final judgment
declaring such previous marriage void” in Article 40 of the
Family Code connotes that such final judgment need not be
obtained only for purpose of remarriage.
Same; Same; Same; Court may pass upon the validity of
a marriage even in a suit not directly instituted to question
the validity of said marriage, so long as it is essential to the
determination of the case.—In Nicdao Cariño v. Yee Cariño,
351 SCRA 127 (2001), the Court ruled that it is clothed with
sufficient authority to pass upon the validity of two
marriages despite the main case being a claim for death
benefits. Reiterating Niñal, we held that the Court may pass
upon the validity of a marriage even in a suit not directly
instituted to question the validity of said marriage, so long
as it is essential to the determination of the case. However,
evidence must be adduced, testimonial or documentary, to
prove the existence of grounds rendering such a marriage an
absolute nullity.
_______________
*SECOND DIVISION.
163
VOL. 545, FEBRUARY 13, 2008 163
De Castro vs. Assidao-De Castro
Same; Same; Same; Under the Family Code, the absence
of any of the essential or formal requisites shall render the
marriage void ab initio, whereas a defect in any of the
essential requisites shall render the marriage voidable.—
Under the Family Code, the absence of any of the essential
or formal requisites shall render the marriage void ab initio,
whereas a defect in any of the essential requisites shall
render the marriage voidable. In the instant case, it is clear
from the evidence presented that petitioner and respondent
did not have a marriage license when they contracted their
marriage. Instead, they presented an affidavit stating that
they had been living together for more than five years.
However, respondent herself in effect admitted the falsity of
the affidavit when she was asked during crossexamination,
thus—ATTY. CARPIO: QBut despite of (sic) the fact that you
have not been living together as husband and wife for the
last five years on or before March 13, 1995, you signed the
Affidavit, is that correct? AYes, sir.
Same; Same; Same; Failure to obtain and present a
marriage license renders the marriage void ab initio.—The
falsity of the affidavit cannot be considered as a mere PETITION for review on certiorari of a decision of the
irregularity in the formal requisites of marriage. The law Court of Appeals.
dispenses with the marriage license requirement for a man
and a woman who have lived together and exclusively with The facts are stated in the opinion of the Court.
each other as husband and wife for a continuous and Macario D. Carpio & Christine P. Carpio for
unbroken period of at least five years before the marriage. petitioner.
The aim of this provision is to avoid exposing the parties to
Richard Lee for respondent.
humiliation, shame and embarrassment concomitant with
the scandalous cohabitation of persons outside a valid
TINGA, J.:
marriage due to the publication of every applicant’s name for
a marriage license. In the instant case, there was no
This is a petition for review of the Decision of the Court
1

“scandalous cohabitation” to protect; in fact, there was no

of Appeals in CA-GR CV. No. 69166, declaring that (1)
2
cohabitation at all. The false affidavit which petitioner and
respondent executed so they could push through with the Reianna Tricia A. De Castro is the legitimate child of
marriage has no value whatsoever; it is a mere scrap of the petitioner; and (2) that the marriage between
paper. They were not exempt from the marriage license petitioner and respondent is valid until properly
requirement. Their failure to obtain and present a marriage nullified by a competent court in a proceeding instituted
license renders their marriage void ab initio. for that purpose.
Same; Same; Same; Illegitimate children may establish The facts of the case, as culled from the records,
their illegitimate filiation in the same way and on the samefollow.
evidence as legitimate children.—Anent the second issue, we Petitioner and respondent met and became
find that the child is petitioner’s illegitimate daughter, and
sweethearts in 1991. They planned to get married, thus
therefore entitled to support. Illegitimate children may
they applied for a marriage license with the Office of the
establish their illegitimate filiation in the same way and on
Civil Registrar of Pasig City in September 1994. They
the same evidence as legitimate children.
164 had their first sexual relation sometime in October
164 SUPREME COURT REPORTS ANNOTATED 1994, and had regularly engaged in sex thereafter.
De Castro vs. Assidao-De Castro When the couple went back to the Office of the Civil
Thus, one can prove illegitimate filiation through the Registrar, the marriage license had already expired.
record of birth appearing in the civil register or a final Thus, in order to push through with the plan, in lieu of
judgment, an admission of legitimate filiation in a public a marriage license, they executed an affidavit dated 13
document or a private handwritten instrument and signed March 1995 stating that they had been living together
by the parent concerned, or the open and continuous as husband
possession of the status of a legitimate child, or any other _______________
means allowed by the Rules of Court and special laws.
 1Rollo, pp. 31-41.
Captioned Annabelle Assidao—De Castro v. Reinel Anthony B. De
2
Castro.
165
VOL. 545, FEBRUARY 13, 2008
De Castro vs. Assidao-De Castro
and wife for at least five years. The couple got married
on the same date, with Judge Jose C. Bernabe,
presiding judge of the Metropolitan Trial Court of Pasig
City, administering the civil rites. Nevertheless, after
the ceremony, petitioner and respondent went back to
their respective homes and did not live together as
husband and wife.
On 13 November 1995, respondent gave birth to a
child named Reinna Tricia A. De Castro. Since the
child’s birth, respondent has been the one supporting
her out of her income as a government dentist and from
her private practice.
On 4 June 1998, respondent filed a complaint for
support against petitioner before the Regional Trial
Court of Pasig City (trial court). In her complaint,
3
respondent alleged that she is married to petitioner and
that the latter has “reneged on his
responsibility/obligation to financially support her “as
his wife and Reinna Tricia as his child.” 4
Petitioner denied that he is married to respondent,
claiming that their marriage is void ab initio since the
marriage was facilitated by a fake affidavit; and that he
was merely prevailed upon by respondent to sign the
marriage contract to save her from embarrassment and
possible administrative prosecution due to her pregnant
state; and that he was not able to get parental advice
from his parents before he got married. He also averred
that they never lived together as husband and wife and
that he has never seen nor acknowledged the child.
In its Decision dated 16 October 2000, the trial court
5
165 ruled that the marriage between petitioner and
respondent is not valid because it was solemnized
without a marriage license. However, it declared
petitioner as the natural father of the child, and thus
obliged to give her support. Petitioner ele-
_______________
The case was eventually raffled to Branch 70 of the Pasig RTC,
3
presided by Judge Pablito M. Rojas.
Records,
4 p. 3, Complaint.
Rollo, pp. 92-94.
5
166
166 SUPREME COURT REPORTS ANNOTATED
De Castro vs. Assidao-De Castro
vated the case to the Court of Appeals, arguing that the
lower court committed grave abuse of discretion when,
on the basis of mere belief and conjecture, it ordered
him to provide support to the child when the latter is
not, and could not have been, his own child.
The Court of Appeals denied the appeal. Prompted
by the rule that a marriage is presumed to be subsisting
until a judicial declaration of nullity has been made, the
appellate court declared that the child was born during
the subsistence and validity of the parties’ marriage. In
addition, the Court of Appeals frowned upon
petitioner’s refusal to undergo DNA testing to prove the
paternity and filiation, as well as his refusal to state
with certainty the last time he had carnal knowledge
with respondent, saying that petitioner’s “forgetfulness
should not be used as a vehicle to relieve him of his
obligation and reward him of his being declaring Reianna Tricia A. De Castro, as the legitimate
irresponsible.” Moreover, the Court of Appeals noted
6 child of the appellant and the appellee and (2) declaring the
the affidavit dated 7 April 1998 executed by petitioner, marriage on 13 March 1995 between the appellant and the
wherein he voluntarily admitted that he is the appellee valid until properly annulled by a competent court
in a proceeding instituted for that purpose. Costs against the
legitimate father of the child.
appellant.” 8

The appellate court also ruled that since this case is

Petitioner filed a motion for reconsideration, but the
an action for support, it was improper for the trial court
motion was denied by the Court of Appeals. Hence this 9

to declare the marriage of petitioner and respondent as

petition.
null and void in the very same case. There was no
Before us, petitioner contends that the trial court
participation of the State, through the prosecuting
properly annulled his marriage with respondent
attorney or fiscal, to see to it that there is no collusion
because as shown by the evidence and admissions of the
between the parties, as required by the Family Code in
parties, the marriage was celebrated without a
actions for declaration of nullity of a marriage. The
marriage license. He stresses that the affidavit they
burden of proof to show that the marriage is void rests
executed, in lieu of a marriage license, contained a false
upon petitioner, but it is a matter that can be raised in
narration of facts, the truth being that he and
an action for declaration of nullity, and not in the
respondent never lived together as husband and wife.
instant proceedings. The proceedings before the trial
The false affidavit should never be allowed or admitted
court should have been limited to the obligation of
as a substitute to fill the absence of a marriage
petitioner to support the child and his wife on the basis
license. Petitioner additionally argues that there was
10

of the marriage apparently and

_______________ no need for the appearance of a prosecuting attorney in
this case because it is only an ordinary action for
6Id., at p. 37. support and not an action for annulment or declaration
167 of absolute nullity of marriage. In any case, petitioner
VOL. 545, FEBRUARY 13, 2008 167 argues that the trial court had jurisdiction to determine
De Castro vs. Assidao-De Castro the invalidity of their marriage since it was validly
voluntarily entered into by petitioner and invoked as an affirmative defense in the instant action
respondent. The dispositive portion of the decision
7
for
reads: _______________
“WHEREFORE, premises considered, the Decision dated 16
October 2000, of the Regional Trial Court of Pasig City,
7 Id., at p. 40.
8 Rollo, p. 41.
National Capital Judicial Region, Brach 70, in JDRC No. 9 Id., at pp. 43-44; Resolution dated 1 October 2003.

4626, is AFFIRMED with the MODIFICATIONS(1) 10 Id., at pp. 15-20.

 168
168 SUPREME COURT REPORTS ANNOTATED
De Castro vs. Assidao-De Castro
support. Citing several authorities, petitioner claims
11
that a void marriage can be the subject of a collateral
attack. Thus, there is no necessity to institute another
independent proceeding for the declaration of nullity of
the marriage between the parties. The refiling of
another case for declaration of nullity where the same
evidence and parties would be presented would entail
enormous expenses and anxieties, would be time-
consuming for the parties, and would increase the
burden of the courts. Finally, petitioner claims that in
12
view of the nullity of his marriage with respondent and
his vigorous denial of the child’s paternity and filiation,
the Court of Appeals gravely erred in declaring the child
as his legitimate child.
In a resolution dated 16 February 2004, the Court
required respondent and the Office of the Solicitor
General (OSG) to file their respective comments on the
petition.13
In her Comment, respondent claims that the instant
14
petition is a mere dilatory tactic to thwart the finality
of the decision of the Court of Appeals. Echoing the
findings and rulings of the appellate court, she argues
that the legitimacy of their marriage cannot be attacked
collaterally, but can only be repudiated or contested in
a direct suit specifically brought for that purpose. With
regard to the filiation of her child, she pointed out that
compared to her candid and straightforward testimony,
petitioner was uncertain, if not evasive in answering
questions about their sexual encounters. Moreover, she
adds that despite the challenge from her and from the
trial court, petitioner strongly objected to being
subjected to DNA testing to prove paternity and
filiation. 15
_______________
11 Niñal v. Bayadog, 384 Phil. 661; 328 SCRA 122 (2000).
TOLENTINO, CIVIL CODE OF THE PHILIPPINES, Vol. I, 1990 Ed.
and SEMPIO-DIY,HANDBOOK ON THE FAMILY CODE, 1991 Ed.
12 Rollo, pp. 25-26.
13 Id., at p. 135.
14 Id., at pp. 119-126.
15 Id., at pp. 139-144.
169
VOL. 545, FEBRUARY 13, 2008 169
De Castro vs. Assidao-De Castro
For its part, the OSG avers that the Court of Appeals
erred in holding that it was improper for the trial court
to declare null and void the marriage of petitioner and
respondent in the action for support. Citing the case
of Niñal v. Bayadog, it states that courts may pass
16
upon the validity of a marriage in an action for support,
since the right to support from petitioner hinges on the
existence of a valid marriage. Moreover, the evidence
presented during the proceedings in the trial court
showed that the marriage between petitioner and
respondent was solemnized without a marriage license,
and that their affidavit (of a man and woman who have
lived together and exclusively with each other as
husband and wife for at least five years) was false.
Thus, it concludes the trial court correctly held that the
marriage between petitioner and respondent is not
valid. In addition, the OSG agrees with the findings of
17
the trial court that the child is an illegitimate child of
petitioner and thus entitled to support. 18
Two key issues are presented before us. First,
whether the trial court had the jurisdiction to
determine the validity of the marriage between
petitioner and respondent in an action for support
and second, whether the child is the daughter of
petitioner.
Anent the first issue, the Court holds that the trial
court had jurisdiction to determine the validity of the
marriage between petitioner and respondent. The
validity of a void marriage may be collaterally
attacked. Thus, in Niñal v. Bayadog, we held:
19
“However, other than for purposes of remarriage, no judicial
action is necessary to declare a marriage an absolute nullity.
For
_______________
16 384 Phil. 661, 673; 328 SCRA 122, 136 (2000).
17 Rollo, pp. 174-182.
18 Id., at pp. 183-185.
19 Vda. de Jacob v. Court of Appeals, 371 Phil. 693, 704; 312 SCRA
772, 781 (1999), citing TOLENTINO, CIVIL CODE OF THE
PHILIPPINES:COMMENTARIES AND JURISPRUDENCE, Vol. I,
1987 ed., p. 265.
170
170 SUPREME COURT REPORTS ANNOTATED
De Castro vs. Assidao-De Castro
other purposes, such as but not limited to determination of
heirship, legitimacy or illegitimacy of a child, settlement of
estate, dissolution of property regime, or a criminal case for
that matter, the court may pass upon the validity of marriage
even in a suit not directly instituted to question the same so
long as it is essential to the determination of the case. This
is without prejudice to any issue that may arise in the case.
When such need arises, a final judgment of declaration of
nullity is necessary even if the purpose is other than to
remarry. The clause “on the basis of a final judgment
declaring such previous marriage void” in Article 40 of the
Family Code connotes that such final judgment need not be
obtained only for purpose of remarriage.” 20
Likewise, in Nicdao Cariño v. Yee Cariño, the Court 21
ruled that it is clothed with sufficient authority to pass
upon the validity of two marriages despite the main
case being a claim for death benefits. Reiterating Niñal,
we held that the Court may pass upon the validity of a
marriage even in a suit not directly instituted to
question the validity of said marriage, so long as it is
essential to the determination of the case. However,
evidence must be adduced, testimonial or documentary,
to prove the existence of grounds rendering such a
marriage an absolute nullity. 22
Under the Family Code, the absence of any of the
essential or formal requisites shall render the marriage
void ab initio, whereas a defect in any of the essential
requisites shall render the marriage voidable. In the 23
instant case, it is clear from the evidence presented that
petitioner and respondent did not have a marriage
license when they contracted their marriage. Instead,
they presented an affidavit stating that
_______________
20 Niñal v. Bayadog, 384 Phil. 661, 675; 328 SCRA 122, 136 (2000).
21 Cariño v. Cariño, 403 Phil. 861; 351 SCRA 127 (2001).
22 Id., at p. 132.
23 FAMILY CODE, Art. 4.
171
VOL. 545, FEBRUARY 13, 2008 171
De Castro vs. Assidao-De Castro
they had been living together for more than five
years. However, respondent herself in effect admitted
24
the falsity of the affidavit when she was asked during
cross-examination, thus—
ATTY. CARPIO:
Q But despite of (sic) the fact that you have not been living
together as husband and wife for the last five years on or
before March 13, 1995, you signed the Affidavit, is that
correct?
A Yes, sir. 25
The falsity of the affidavit cannot be considered as a
mere irregularity in the formal requisites of marriage.
The law dispenses with the marriage license
requirement for a man and a woman who have lived
together and exclusively with each other as husband
and wife for a continuous and unbroken period of at
least five years before the marriage. The aim of this
provision is to avoid exposing the parties to humiliation,
shame and embarrassment concomitant with the
scandalous cohabitation of persons outside a valid
marriage due to the publication of every applicant’s
name for a marriage license. In the instant case, there
26
was no “scandalous cohabitation” to protect; in fact,
there was no cohabitation at all.
_______________
24 Purportedly complying with Art. 34 of the Family Code, which
provides:
Art. 34. No license shall be necessary for the marriage of a man and woman
who have lived together as husband and wife for at least five years and without
any legal impediment to marry each other. The contracting parties shall state
the foregoing facts in an affidavit before any person authorized by law to
administer oaths. The solemnizing officer shall also state under oath that he
ascertained the qualifications of the contracting parties and found no legal
impediment to the marriage.
25 TSN, 18 February 2000, p. 20.
Niñal v. Bayadog, 384 Phil. 661, 669; 328 SCRA 122, 129 (2000),
26
citing THEREPORT OF THE CODE COMMISSION, p. 80.
172
172 SUPREME COURT REPORTS ANNOTATED
De Castro vs. Assidao-De Castro
The false affidavit which petitioner and respondent
executed so they could push through with the marriage
has no value whatsoever; it is a mere scrap of paper.
They were not exempt from the marriage license
requirement. Their failure to obtain and present a
marriage license renders their marriage void ab initio.
Anent the second issue, we find that the child is
petitioner’s illegitimate daughter, and therefore
entitled to support. Illegitimate children may establish
their illegitimate filiation in the same way and on the
same evidence as legitimate children. Thus, one can
27
prove illegitimate filiation through the record of birth
appearing in the civil register or a final judgment, an
admission of legitimate filiation in a public document or
a private handwritten instrument and signed by the
parent concerned, or the open and continuous
possession of the status of a legitimate child, or any
other means allowed by the Rules of Court and special
laws. 28
The Certificate of Live Birth of the child lists
29
petitioner as the father. In addition, petitioner, in an
affidavit waiving additional tax exemption in favor of
respondent, admitted that he is the father of the child,
thus stating:
“1. I am the legitimate father of REIANNA TRICIA A. DE
CASTRO who was born on November 3, 1995 at Better
Living, Parañaque, Metro Manila;” 30
_______________ WHEREFORE, the petition is granted in part. The
assailed Decision and Resolution of the Court of
27 FAMILY CODE, Art. 175.
28 FAMILY CODE, Art. 172. Appeals in CA-GR CV No. 69166 are SET ASIDE and
In the book Handbook on the Family Code of the Philippines by Alicia V. the decision of the Regional Trial Court Branch 70 of
Sempio-Diy, p. 246 (1988), the following were given as examples of “other
means allowed by the Rules of Court and special laws:” (a) the baptismal
Pasig City in JDRC No. 4626 dated 16 October 2000 is
certificate of the child; (b) a judicial admission; (c) the family bible wherein the hereby REINSTATED.
name of the child is entered; (d) common reputation respecting pedigree; (e) SO ORDERED.
admission by silence; (f) testimonies of witnesses; and (g) other kinds of proof
admissible under Rule 130. Quisumbing (Chairperson), Carpio, Velasco,
Records, p. 6.
29 Jr. and Nachura, JJ., concur.
**

Id., at p. 160.
30
Petition granted in part, assailed decision and
173
resolution set aside. That of Regional Trial Court of
VOL. 545, FEBRUARY 13, 2008 173 Pasig City, Br. 70 reinstated.
De Castro vs. Assidao-De Castro _______________
We are likewise inclined to agree with the following
findings of the trial court: 31Rollo, pp. 93-94.
**As replacement of Justice Conchita Carpio-Morales who inhibited
“That Reinna Tricia is the child of the respondent with the herself per Administrative Circular No. 84-2007.
petitioner is supported not only by the testimony of the 174
latter, but also by respondent’s own admission in the course 174 SUPREME COURT REPORTS ANNOTATED
of his testimony wherein he conceded that petitioner was his
former girlfriend. While they were sweethearts, he used to
Quimpo, Sr. vs. Abad Vda. de Beltran
visit petitioner at the latter’s house or clinic. At times, they Note.—An illegitimate child born after the
would go to a motel to have sex. As a result of their sexual effectivity of the Family Code has no right to use her
dalliances, petitioner became pregnant which ultimately led father’s surname. Rule applies even if petitioner’s
to their marriage, though invalid, as earlier ruled. While father admits paternity. (Leonardo vs. Court of
respondent claims that he was merely forced to undergo the Appeals, 410 SCRA 446 [20003])
marriage ceremony, the pictures taken of the occasion reveal
otherwise (Exhs. “B,” “B-1,” to “B-3,” “C,” “C-1” and “C-2,” ——o0o——
“D,” “D-1” and “D-2,” “E,” “E-1” and “E-2,” “F,” “F-1” and “F-
2,” “G,” “G-1” and “G-2” and “H,” “H-1” to “H-3”). In one of the © Copyright 2019 Central Book Supply, Inc. All rights
pictures (Exhs. “D,” “D-1” and “D-2”), defendant is seen reserved.
putting the wedding ring on petitioner’s finger and in
another picture (Exhs. “E,” “E-1” and “E-2”) respondent is
seen in the act of kissing the petitioner.” 31
 [No. L-5877. September 28, 1954]
THE PEOPLE OF THE PHILIPPINES, plaintiff and
appellee, vs.ARTURO MENDOZA, defendant and
appellant.
BIGAMY; MARRIAGE CONTRACTED DURING
THE EXISTENCE OF THE FIRST MARRIAGE is VOID
AB INITIO; No JUDICIAL DECREE is NECESSARY TO
ESTABLISH ITS INVALIDITY.—A subsequent marriage
contracted by any person during the lifetime of his
espouse is illegal and void from its performance, and no
judicial decree is necessary to establish its invalidity. A
prosecution for bigamy based on said void marriage will
not lie.
APPEAL from a judgment of the Court of First Instance
of Laguna. Yatco. J.
The facts are stated in the opinion of the Court.
Nestor A. Andrada for appellant.
Solicitor General Pompeyo Diaz and Solicitor
Felicisimo R. Rosete for appellee.
846
846 PHILIPPINE REPORTS ANNOTATED
People vs. Mendoza
PARÁS, C. J.:
The defendant, Arturo Mendoza, has appealed from a
judgment of the Court of First Instance of Laguna,
finding him guilty of the crime of bigamy and
sentencing him to imprisonment for an indeterminate
term of from 6 months and 1 day to 6 years, with costs.
The f following f facts are undisputed: On August 5,
1936, the appellant and Jovita de Asis were married in
Marikina, Rizal. On May 14, 1941, during the
subsistence of the first marriage, the appellant was
married to Olga Lema in the City of Manila. On
Febrauary 2, 1943, Jovita de Asis died. On August 19,
1949, the appellant contracted another marriage with
Carmencita Panlilio in Calamba, Laguna. This last
marriage gave rise to his prosecution for and conviction
of the crime of bigamy.
The appellant contends that his marriage with Olga
Lema on May 14, 1941 is null and void and, therefore,
non-existent, having been contracted while his first
marriage with Jovita de Asis August 5, 1936 was still in
effect, and that his third marriage to Carmencita
Panlilio on August 19, 1949 cannot be the basis of a
charge for bigamy because it took place after the death
of Jovita de Asis. The Solicitor General, however,
argues that, even assuming that appellant's second
marriage to Olga Lema is void, he is not exempt from
criminal liability, in the absence of a previous judicial
annulment of said bigamous marriage; and the case
of People vs.Cotas, 40 Off. Gaz., 3134, is cited. The
decision invoked by the Solicitor General, rendered by
the Court of Appeals, is not controlling. Said case is
essentially different, because the defendant therein,
Jose Cotas, impeached the validity of his first marriage
for lack of necessary formalities, and the Court of
Appeals found his factual contention to be without
merit.
In the case at bar, it is admitted that appellant's
second marriage with Olga Lema was contracted during
the existence of his first marriage with Jovita de Asis.
Section 29 of the marriage law (.act 3613), in force at
the time the
 847
VOL. 95, SEPTEMBER 28, 1954
People vs. Mendoza
appellant contracted his second marriage in 1941,
provides as follows:
Illegal marriages.—Any marriage subsequently contracted
by any person during the lifetime of the first spouse of such
person with any person other than such first spouse shall be
illegal and void from its performance, unless:
(a) The first marriage was annulled or dissolved;
(b) The first spouse had been absent for seven consecutive
years at the time of the second marriage without the spouse
present having news of the absentee being alive, or the
absentee being generally considered as dead and believed to
be so by the spouse present at the time of contracting such
subsequent marriage, the marriage so contracted being valid
in either case until declared null and void by a competent
court.
This statutory provision plainly makes a subsequent
marriage contracted by any person during the lifetime
of his first spouse illegal and void from its perf ormance,
and no judicial decree is necessary to establish its
invalidity, as distinguished from mere annulable
marriages. There is here no pretence that appellant's
second marriage with Olga Lema was contracted in the
belief that the first spouse, Jovita de Asis, has been
absent ex or seven consecutive years or generally
considered as dead, so as to render said marriage valid
until declared null and void by a competent court.
Wherefore, the appealed judgment is reversed and
the defendant-appellant acquitted, with costs de
officio so ordered.
Pablo, Bengzon, Jugo, Bautista
847 Angelo, Labrador, Concepcion, and Reyes, J. B. L.,
JJ., concur.
REYES, J., dissenting:
I, dissent.
Article 349 of the Revised Penal Code punishes with prison
mayor "any person who shall contract a second or subsequent
marriage before the former marriage has
been legally dissolved".
848
848 PHILIPPINE REPORTS ANNOTATED
Cañaveral and Bautista vs. Encarnacion, etc., et al.
Though the logician may say that where the former marriage
was void there would be nothing to dissolve still it is not for the
spouses to judge whether that marriage was void or not. That
judgment is reserved to the courts. As Viada says "La santidad
e importancia del matrinonio no permite que los casados
juzguen por si mismos de su nulidad; esta ha de someterse
precisamente al judicio del Tribunal competente, y cuando este
declare la nulidad del matrimonio, y solo entonces, se tendra por
nulo; mientras no exista esta declaración, la presuncion esta
siempre a favor de la validez del matrimonio, y de consiguiente,
el que contrae otro segundo antes de dicha declaración de
nulidad, no puede menos de incurrir la pena de este articulo."
(3 Viada, Código penal p. 275.)
"This is a sound opinion," says Mr. Justice Tuason in the case of
People vs.Jose Cotas, (CA), 40 Off. Gaz., 3145, "and is in line with
the well-known rule established in cases of adultery, that "until by
competent authority in a final judgment the marriage contract is
set aside, the offense to the vows taken and the attack on the family
exist.'"
Padilla and Montemayor, JJ., concur.
Judgment reversed.
338 SUPREME COURT REPORTS ANNOTATED
Odayat vs. Amante
Adm. Matter No. P-58. June 2, 1977. *
PEDRO ODAYAT, complainant, vs. DEMETRIO
AMANTE, respondent.
Courts; Attorneys; Clerk of courts; Marriages: There
being no need for judicial declaration of a void marriage, a
clerk of court who contracted a second marriage is exonerated
from the charge of immorality.—On the other hand,
respondent Demetrio Amante testified, in his behalf, and
presented Atty. Demosthenes Duquilla, as well as Exhibits
“1” and “2”. Respondent admits his marriage with Filomena
Abella on October 16, 1948. He also admits that he has been
living with Beatriz Jornada, whom he married on April 4.
1964 during a religious revival in Almagro, Samar, before
Rev. Fr. John Belly, a Franciscan Missionary, and with
whom he begot six (6) children. Respondent, however, claims
he was coerced into marrying Filomena Abella, unaware that
she was already married to another man, and that they
separated in 1949 after Filomena Abella told him of her
previous marriage; that from 1949 to 1964, the respondent
did not hear or receive any communication from Filomena
Abella, much less knew of her whereabouts. xxx The
Investigator finds for the respondent and recommends his
exoneration from this charge, Indeed, there is no question
that Filomena Abella’s marriage with the respondent was
void ab initio under Article 80[4] of the New Civil Code, and
no judicial decree is necessary to establish the invalidity of
void marriages.
Same; Same; Same; Criminal law; No falsification of a
public document was committed where respondent clerk of
court put the
_______________
* EN BANC.
339
VOL. 77, JUNE 2, 1977 339
Odayat vs. Amante
word “married” opposite his civil status, and not the
word “single” as alleged in the complaint.—The Investigator
found that the complainant failed to prove this charge.
Contrary to the allegation of the complainant, the document
in question, shows that the respondent actually placed in
“Item 6. Civil Status” therein the word “Married”. In view of
the foregoing. We find that the recommendation of the
Investigator is in accordance with law and the evidence on
record.
ANTONIO, J.:
In a verified amended letter-complaint dated March 10,
1973, Pedro Odayat charged Atty. Demetrio Z. Amante,
1
Clerk of Court, Court of First Instance, Branch IX,
Basey, Samar, with oppression, immorality and
falsification of a public document. 2
Briefly stated, complainant’s basic allegations are:
(1) that respondent grabbed a portion of complainant’s
land, and, when the latter resented, the former
arrogantly challenged the complainant to bring the
matter to court; (2) that respondent is cohabiting with
one Beatriz Jornada, with whom he begot many
children, even while his spouse Filomena Abella is still
alive; and (3) that respondent, although married, falsely
represented his status as single in the information
sheet be submitted in connection with his appointment
to his present position as Clerk of Court.
After respondent Demetrio Amante had submitted
his letter-comment dated April 24, 1973, which was
3
considered as his answer to the amended complaint,
this Court, in its minute resolution of July 16,
1974, referred this Administrative Matter No. P-58 to
4 Pedro Odayat testified and presented Exhibits
the Executive Judge of the Court of First Instance,
Branch I, Catbalogan, Samar, for investigation, report
and recommendation, and the matter was docketed
therein as Administrative Case No. 264. The charges
were investigated by District Judge Segundo M. Zosa of
said Court. After appropriate proceedings, Judge Zosa
submitted to this Court his Report and
Recommendation dated December 3, 1974. 5 Church, Tacloban City, by Rev. Fr. Magdaleno
_______________
1 This amended letter-complaint was addressed to the Secretary of
Justice, Manila, and the latter forwarded the same to this Court,
pursuant to Presidential Decree No. 186.
2 Exhibit “A”, p. 1, Folder of Exhibits.
3 SC Rollo, pp. 7-8.
4 Ibid., p. 17
5 Ibid., pp. 38-46.
340
340 SUPREME COURT REPORTS ANNOTATED
Odayat vs. Amante
1. 1.Oppression.—In the course of formal
investigation on August 26, 1974 before Judge
Zosa, complainant acquiesced to the dropping of
this charge of oppression against respondent,
inasmuch as the issue involved therein refers to
a boundary dispute between the complainant
and the respondent and admittedly being more
properly a cause for a civil action. Hence, the
6 5, 1965, as per Certificate of Baptism, duly
scope of the investigation by Judge Zosa is
limited to the other two charges.
2. 2.Immorality.—To prove this charge of
immorality against respondent, complainant
“A” to “E”, to the effect that respondent and
Filomena Abella were married in Tacloban City
on October 16, 1948 before Judge Eugenio Brillo
(then Justice of the Peace of Tacloban, Leyte; )7
that they had one son, who was born on August
23, 1949 and baptized on October 1, 1949 by the
name of Romeo Amante, in the Sto. Nino
Agnes; that he came to know Filomena Abella,
8
who is a native of Sta. Rita, Samar, only after
her marriage to the respondent when they took
up their residence for five years in Basey,
Samar; that he did not know if Filomena Abella
was still single when she married the
respondent; that long before he filed his
complaint against respondent on March 10,
1973, he came to know that the respondent and
one Beatriz Jornado were living as husband and
wife in Basey, Samar; that they had several
children, two of whom are Maria Felisa J.
Amante, who was born on April 12, 1967, as per
certified true copy of the Certificate of Birth of
said child, duly signed and issued on May 7,
9
1973 by Perfecto Cabuquit, the Local Civil
Registrar, and Alma Amante y Jornada, who
10
was born on April 8, 1965 and baptized on July
signed and issued on March 6, 1973 by the
 Parish Priest, Rev. Fr, Jose M. Lentejas; and 11
that one of the reasons why he filed
_______________
6 T.s.n.-Rojas, Session of August 26, 1974, pp. 3-4.
7 Exhibit “B”, certified true copy of the Marriage Contract, duly
signed and issued on December 13, 1972 by Dr. Hermilo Quintero, City
Health Officer and Local Civil Registrar (Exhibit “B-l”).
Exhibit “C”, certified true copy of the Baptismal Certificate of
8
Romeo Amante, duly signed and issued on August 6, 1974 by Rev. Fr.
Honorio Ayuyao Pastor (Exhibit “C-2”) and By Gil Ramon J. Abug,
Parish Clerk (Exhibit “C-3”).
9 Exhibit “D”.
10Exhibit “D-1”.
11Exhibit “E”.
341
VOL. 77, JUNE 2, 1977
Odayat vs. Amante
his complaint against the respondent was because of
their land dispute.
On the other hand, respondent Demetrio Amante
testified, in his behalf, and presented Atty.
Demosthenes Duquilla, as well as Exhibits “1” and “2”.
Respondent admits his marriage with Filomena Abella
on October 16, 1948. He also admits that he has been
12
living with Beatriz Jornada, whom he married on April
4, 1964 during a religious revival in Almagro, Samar,
before Rev. Fr. John Belly, a Franciscan
Missionary, and with whom he begot six (6)
13
children. Respondent, however, claims he was coerced
14
into marrying Filomena Abella, unaware that she was
already married to another man, and they separated in
1949 after Filomena Abella told him of her previous
marriage; that from 1949 to 1964, the respondent did
not hear or received any communication from Filomena
Abella, much less knew of her whereabouts.
To rebut the charge of immorality, respondent
presented in evidence the certification dated September
12, 1974 of David C. Jacobe, the Local Civil Registrar of
Pateros, Rizal attesting that, in accordance with the
15
Register of Marriages in his office, Filomena Abella was
married to one Eliseo Portales on February 16, 1948.
Respondent’s contention is that his marriage with
Filomena Abella was void ab initio, because of her
previous marriage with said Eliseo Portales. The
Investigator finds for the respondent and recommends
his exoneration from this charge. Indeed, there is no
question that Filomena Abella’s marriage with the
341 respondent was void ab initiounder Article 80 [4] of the
New Civil code, and no judicial decree is necessary to
establish the invalidity of void marriages. 16
3. Falsification of a public document—The
Investigator found that the complainant failed to prove
this charge. Contrary to the allegation of the
complainant, the document in question, shows that the
17
respondent actually placed in “Item
_______________
Exhibit “B”, p. 3, Folder of Exhibits; Respondent’s Comment, p.
12
7, SC Rollo; t.s.n.-Cabelis, Session of October 28, 1974, p. 28.
T.s.n.-Cabelis, Session of October 28, 1974, pp. 21-24.
13
Ibid., p. 30.
14
Exhibit “2”, p. 10, Folder of Exhibits.
15
People v. Aragon, 100 Phil. 1083; People v. Mendoza, 95 Phil. 845.
16
Exhibit “1-b”.
17
342
342 SUPREME COURT REPORTS ANNOTATED
Odayat vs. Amante
6 Civil Status” therein the word “Married”. 18
In view of the foregoing. We find that the
recommendation of the Investigator is in accordance
with law and the evidence on record.
WHEREFORE, respondent Demetrio Amante is
hereby exonerated from the charges filed against him
by complainant. Let a copy of this decision be attached
to his personal record.
Castro,
C.J., Fernando, Teehankee, Barredo, Makasiar,Muñoz
Palma, Aquino and Martin, JJ., concur.
Notes.—The issue of ownership of land is not per se a
proper subject of an administrative case against court
employees. (Maspil vs. Romero, 61 SCRA 197).
A court employee found guilty of insubordination and
inefficiency is liable for suspension without pay.
A clerk of court who wilfully ignores the rules of
issuance of clearance is guilty of dishonesty and
falsification of public document. (Omadto vs.
Evangelista, 68 SCRA 133).
The imprisonment of a court stenographer who
defies a court’s resolution requiring him to transcribe
his stenographic notes is not constitutive of illegal
detention. (Aclaracion vs. Gatmaitan, 64 SCRA 131).
A sentence of dismissal was amended to 30 days
suspension for wilful failure of a court employee to pay
a just debt. (Pineda vs. Hizalan, 64 SCRA 160).
——o0o——
_______________
Exhibit “1-a”.
18

(Madrid vs. Razo, Jr., 61 SCRA 357). 343

A clerk of court’s liability is diminished by the © Copyright 2019 Central Book Supply, Inc. All rights
absence of great harm resulting from her negligence in reserved.
not excercising closer supervision over her
subordinates. (In re: Motion for Reconsideration of Adm.
Order No. 353, 60 SCRA 248).
A branch clerk of court is prohibited from engaging
in the practice of law and appearing as counsel of giving
professional advice to litigants in a law suit as the same
is clearly incompatible with the duties and functions of
his office. (Ranoza vs. Garcia, 62 SCRA 406). The
purpose of such prohibition against unauthorized
practice of law by an officer of the court is to help
maintain public confidence in the courts of justice.
(Ibid.)
 VOL. 143, AUGUST 19, 1986 499 though void still needs according to this Court a judicial
Wiegel vs. Sempio-Diy declaration of such fact and for all legal intents and purposes
she would still be regarded as a married woman at the time
No. L-53703. August 19, 1986. *

she contracted her marriage with respondent Karl Heinz

LILIA OLIVA WIEGEL, petitioner, vs. THE Wiegel); accordingly, the marriage of petitioner and
HONORABLE ALICIA V. SEMPIO-DIY (as presiding respondent would be regarded VOID under the law.
judge of the Juvenile and Domestic Relations Court of
Caloocan City) and KARL HEINZ WIEGEL, PETITION to review the orders of the Juvenile and
respondents. Domestic Relations Court of Caloocan City.
Civil Law; Persons and Family
Relations; Marriage; Nullity of marriage; Proof that first The facts are stated in the opinion of the Court.
marriage was vitiated by force, not necessary in an action for Dapucanta, Dulay & Associates for petitioner.
a declaration of nullity of marriage filed by the second Siguion Reyna, Montecillo and Ongsiako Law
husband; Reason.—There is no need for petitioner to prove
Office for private respondent.
that her first marriage was vitiated by force committed
against both parties because assuming this to be so, the
PARAS, J.:
marriage will not be void but merely voidable (Art. 85, Civil
Code), and therefore valid until annulled. Since no
In an action (Family Case No. 483) filed before the
annulment has yet been made, it is clear that when she
erstwhile Juvenile and Domestic Relations Court of
married respondent she was still validly married to her first
husband, consequently, her marriage to respondent is VOID Caloocan City, herein respondent Karl Heinz Wiegel
(Art. 80, Civil Code). (plaintiff therein) asked for the declaration of Nullity of
_________________ his marriage (celebrated on July, 1978 at the Holy
Catholic Apostolic Christian Church Branch in Makati,
SECOND DIVISION.
Metro Manila) with herein petitioner Lilia Oliva Wiegel
*

500
500 SUPREME COURT REPORTS ANNOTATED (Lilia, for short, and defendant therein) on the ground
of Lilia’s previous existing marriage to one Eduardo A.
Wiegel vs. Sempio-Diy
Maxion, the ceremony having been performed on June
Same; Same; Same; Same; Same; Introducing evidence
about existing prior marriage, not necessary as the first
25, 1972 at our Lady of Lourdes Church in Quezon City.
marriage though void, still needs a judicial declaration of Lilia, while admitting the existence of said prior
such fact; Woman’s marriage to second husband void; Case at subsisting marriage claimed that said marriage was
bar.—There is likewise no need of introducing evidence null and void, she and the first husband Eduardo A.
about the existing prior marriage of her first husband at the Maxion having been allegedly forced to enter said
time they married each other, for then such a marriage marital union. In the pre-trial that ensued, the issue
agreed upon by both parties was the status of the first
marriage (assuming the presence of force exerted
against both parties): was said prior marriage void or
was it merely voidable? Contesting the validity of the
pre-trial order, Lilia asked the respondent court for an
opportunity to present evidence—
501
VOL. 143, AUGUST 19, 1986 501 first husband, consequently, her marriage to
Wiegel vs. Sempio-Diy
1. (1)that the first marriage was vitiated by force
exercised upon both her and the first husband;
and
2. (2)that the first husband was at the time of the
marriage in 1972 already married to someone
else.
Respondent judge ruled against the presentation of
evidence because the existence of force exerted on both
parties of the first marriage had already been agreed
upon. Hence, the present petition for certiorari
assailing the following Orders of the respondent
Judge—
1. (1)the Order dated March 17, 1980 in which the
parties were compelled to submit the case for
resolution based on “agreed facts;” and
2. (2)the Order dated April 14, 1980, denying
petitioner’s motion to allow her to present
evidence in her favor.
We find the petition devoid of merit.
There is no need for petitioner to prove that her first
marriage was vitiated by force committed against both
parties because assuming this to be so, the marriage
will not be void but merely voidable (Art. 85, Civil
Code), and therefore valid until annulled. Since no
annulment has yet been made, it is dear that when she
married respondent she was still validly married to her
respondent is VOID (Art. 80, Civil Code).
There is likewise no need of introducing evidence
about the existing prior marriage of her first husband
at the time they married each other, for then such a
marriage though void still needs according to this Court
a judicial declaration of such fact and for all legal
1
intents and purposes she would still be regarded as a
married woman at the time she contracted her marriage
with respondent Karl Heinz Wiegel); accordingly, the
marriage of petitioner and respondent would be
regarded VOID under the law.
WHEREFORE, this petition is hereby DISMISSED,
for
________________
1Vda. de Consuegra vs. GSIS, 37 SCRA 315.
502
502 SUPREME COURT REPORTS ANNOTATED
Valisno vs. Plan
lack of merit, and the Orders complained of are hereby
AFFIRMED. Costs against petitioner.
SO ORDERED.
Feria (Chairman), Fernan, Alampay and Gutier
rez, Jr., JJ.,concur.
Petition dismissed, orders affirmed.
 Note.—The conclusion that the second marriage is
the better one that deserves the law’s recognition and
protection over the first is a dangerous proposition. It
legalizes a continuing polygamy by permitting a spouse
to just drop at pleasure her consort for another in as
many jurisdiction as would grant divorce on the excuse
that the new marriage is better than the previous one;
and, instead of fitting the concept of marriage as a social
institution, the proposition altogether does away with
the social aspects of marriage in favor of its being a
matter of private contract and personal
adventure. (Tenchavez vs. Escaho, 17 SCRA 674.)

——o0o——

© Copyright 2019 Central Book Supply, Inc. All rights

reserved.
 VOL. 145, OCTOBER 28, 1986
Yap vs. Court of Appeals
No. L-40003. October 28,1986. *
SHIRLEY YAP, in her own behalf and in her capacity
as Administratrix of the estate of MANING YAP,
JAIME YAP, and TALINA BIANONG VDA. DE YAP,
petitioners, vs. COURT OF APPEALS, NANCY J. YAP,
MANING YAP, JR., JULIA YAP, JASMIN YAP, and
SAMUEL YAP, respondents.
Successiorty; Eights to inheritance of a person who died
after the new Civil Code took effect skall be governed by said
Code.—We have accordingly ruled that the rights to the
inheritance of a person who died before the ef fectivity of the
New Civil Code shall be goveraed by the Civil Code of 1889,
by other previous laws and by the Rules of Court (See
Vidaurrazaga v. Court of Appeals, 91 PhiL 492; Canales v,
Arrogante, 91 PhiL 9; and Morales, et al v. Yaftez, 98 Pha
677), whiie the rights to the inheritance of a person who died
after the effectivity of the New Civil Code shall be governed
by the New C4vii Code (Del Prado v. Santos, 18 SCRA 68).
Marriages; A second marriage (civilj contracted after a
first marriage (Muslim rites) by a man with another woman
is ittegal and void—There is no dispute that the marriage of
Talina Bianong to Maning Yap was vaiid and that the second
marriage contracted by the latter with Nancy Yap was iiiegal
and void pursuant to Act 3613 of the Philippine Legislature,
the Marriage Law which was in foree when the two
marriages were celebrated.
Same; Succession; Where a man dies leaving his
surviving spouse and children by his first marriage and his
spouse and ckildren by his second marriage, the children by
tke second marriage are natural children by legal fiction and
entitled to inherit after the conjugal estate is divided equally
between the decedent and the 1st wife. Tke2nd wife is not
229 entitled to inherit—Pursuant to these provisions, the net
remainder of the conjugal partnership of gains after money
claims filed by creditors against the intestate estate of
Maning Yap approved by the lower eourt have beeii paid by
the administratrix should be equally divided between
Maning Yap and Talina Bianong as their shares. The one-
half share of Maning Yap would then comprise his intestate
estate to be distributed among his heirs.
_______________
*SECOND DIVISION.
230
230 SUPREME COURT REPORTS ANNOTATED
Yap vs. Court of Appeals
Same; Same; Same.—Under the law of succession in the
New Civii Code, Maning Yap’s iegai heirs are Taiina
Bianong, her chiidren Shirley Yap and Jaime Yap and the
children of Nancy Yap by Maning Yap namely: Maning Yap,
Jr., Julia Yap, Jasmin Yap and Samuel Yap. Talina Bianong,
the first wife had not lost or relinquished her status as
putative heir of her husband. She is entitled to share in
Maning Yap’s estate upon his death (Gomez v. Lipana, 33
SCRA 615). On the other hand, Nancy Yap, the second wife
cannot inherit from Maning Yap because their marriage was
void ab initio. (Art. 83, New Civil Code; People v. Mendoza,
95 PhiL 845) However, Nancy Yap’s children by Maning Yap
have the status of natural children by legal fiction and are
considered compulsory heirs of the late Maning Yap.
(Articles 89 and 997, New Civil Code).
Same; Same; How to divide intestate estate where
decedent has also children by a second marriage.—
Considering the foregoing, the estate of Maning Yap which
is one-half (1/2) pro indiviso of the net rfrmainder of the
conjugal partnership of gains of the first marriage (Articles
142 and 185, New Civil Code), the other half being the share
of Talina Bianong, should be distributed as follows: a. To the
legitimate children, Shirley Yap and Jaime Yap—one-half
(1/2) of the resulting net estate to be divided equally between
them pursuant to Article 888 of the New Civil Code; b. To the
legitimate widow Talina Bianong—one-fourth (1/4) of the net
estate taken from the free portion or disposable half of the
estate pursuani to Article 999 in relation to Article 897 of the
New Civil Code; and c. To the natural children by legal
fiction—Maning Yap, Jr., Julian Yap, Jasmin Yap and
Samuel Yap—the remaining one-fourth (1/4) of the net estate
to be shared equally between them pursuant to the first and
third paragraphs of Article 895 in relation to Article 983 of
the New Civil Code.
PETITION to review the decision of the Court of
Appeals.
The facts are stated in the opinion of the Court.
Francisco Vittanueva for petitioners.
Ramon Tuangco for respondents.
GUTIERREZ,JR., J.:
This is a petition to review the decision of the Court of
Appeals which set aside the earlier decision of the then
Court of First Instance of Lanao del Sur in Special
Proceeding No. 1334
231
VOL. 145, OCTOBER 28, 1986 231 Sarenas of the Court of First Instance of Cotabato.
Yap vs. Court of Appeals
(R-61), declaring the petitioners as the legal heirs of the
late Maning Yap entitled to inherit his estate and
dismissing the opposition filed by the private
respondents. The dispositive portion of the decision on
appeal reads:
“WHEREFORE, the decisiou appealed from is hereby set
aside and, after a complete and correct inventory is returned
by the administratrix, the entire estate of the deceased
Maning Yap shall be divided into two equal parts, one-half
(1/2) corresponding to the petitioner Talina Bianong and her
children Shiriey Yap and Jaime Yap and the other half
corresponding to the oppositors Nancy J. Yap and her
children Maning Yap, Jr., Julia Yap, Jasmin Yap and
Samuel Yap, without pronouncement as to costs.”
Maning Yap, during his lifetime married twice: first, to
Talina Bianong in 1939 and second, to Nancy Yap on
Decemberl 1,1948.
Maning Yap and Talina Bianong were married at
Bara-as Plantation, Malabang, Lanao del Sur, in
accordance with the Muslim rites and practices
prescribed by the Islam religion professed by both of
thein. Immediately, after the marriage, the couple lived
in the house of the parents of Maning Yap at the
pobiacion of Malabang, Lanao dei Sur. Out of the
marriage, four children were born; two of them died in
infancy dur~ ing the Japanese occupation, while the two
others are petitioners Shirley Yap and Jaime Yap.
While the first marriage was still subsisting, Maning
Yap married Nancy J. Yap on December 11, 1948 in a
civil ceremony performed by District Judge Juan
Nancy Yap entered into the marriage in the belief that
Maning Yap was not a married man. They had four
children, namely respondents Maning Yap, Jr., Julia
Yap, Jasmin Yap and Samuel Yap. On Febraary 21,
1964, Maning Yap died in Piagapo, Lanao del Sur, in
the crash of an airplane of the Philippine Air Lines. At
the time of his death, hef therefore, had two families
iiving separately about 80 kilometers apart.
On March 3,1964, Talina Bianong Vda. de Yap filed
Special Proceeding No. 1334 (Intestate Estate of
Maning Yap) before the Court of First Instance of Lanao
del Sur, seeking the is-
232
232 SUPREME COURT REPORTS ANNOTATED
Yap vs. Court ofAppeals
suance of letters of administration for the estate of
Maning Yap. Among other things, the petition alleged
that Maning Yap left personal and real properties all
located at Malabang, Lanao del Sur, with an
approximate value of P100,000.00.
The petition was opposed by Nancy J. Yap and her
minor children on the ground that she is the legitimate
widow of Maning Yap and that Maning Yap, Jr., Julia
Yap, Jasmin Yap and Samuel Yap, all minors, are their
legitimate children.
Talina Bianong was initially appointed special
administratrix of the intestate estate of Maning Yap.
However, after a formal hearing and on
recommendation of Talina, the lower court appointed
Shirley Yap as regular administratrix of the intestate
estate of Maning Yap.
Various claims filed by the creditors against the
intestate estate of Maning Yap were duly approved by
the court and paid by the administratrix. Since there
still existed a residue of the intestate estate consisting
of real and personal properties and collectible debts
after payments to creditors, the court set the case for
hearing to arrive at a declaration of heirship for the
purpose of liquidating the conjugal partnership of the
late Maning Yap and his surviving spouse and to
determine the heirs entitled to inherit his intestate
estate.
After trial, the lower court rendered decision
declaring Talina Bianong and her children as the legal
heirs of Maning Yap. The dispositive portion of the
decision reads:
“IN VIEW OF ALL THE FOREGOING, judgment is hereby
rendered:
1. "(a)Declaring Talina Bianong, Shirley Yap and Jaime
Yap, the legal heirs of the late Maning Yap and
entitled to inherit or succeed to his intestate estate
with Talina Bianong. as his surviving spouse, and
Shirley Yap and Jaime Yap, as his surviving
legitimate children;
2. "(b)Adjudicating to Talina Bianong one-third (1/3) of
the whole intestate estate of the late Maning Yap, as
her share, pursuant to Art. 996 of the New Civil
Code; to Shirley Yap, the other one-third (1/3) as her
share and to Jaime Yap the remaining one-third
(1/3), also as his share, pursuant to Art. 980 in
conjunction with Art. 996 of the new Civil Code.
233
VOL. 145, OCTOBER 28, 1986 233
Yap vs. Court ofAppeals
“The opposition and claim of the opposition is hereby
dismissed withoutcosts.”
Upon appeal by Nancy Yap and her children, the
appellate court reversed and set aside the decision. As
stated earlier, the Court of Appeals ruled that the estate
of Maning Yap should be equally divided into two equal
parts: one-half (1/2) to Talina Bianong and her children
and the other half (1/2) to Nancy Yap and her children.
The appellate court applied the ruling in Lao and
Lao v. Dee Tim(45 Phil. 739). The facts in the cited case
are similar to the case at bar in that Yap Siong in his
lifetiine contracted two marriages; first to Dee Tim on
Septeinber 14, 1893 in China with whom he had three
children and second to Maria Lao on June 24, 1903 with
whom he had one child. Moreover, Maria Lao entered
into the marriage beiieving that Yap Siong was not then
a married man, Yap Siong died on September 1922
leaving properties which were claimed by the two
farnilies. In resolving the issue on how the properties of
Yap Siong should be divided, this Court applied the
Leyes de Partidas (Law 1; Title 13, Partida 4), to wit:
xxx xxx xxx
“x x x [W]here two women innocently and in good faith are
legaily united in holy matriinony to the same man, their
children and each family will be entitied to one-half of the
estate of the husband upon distribution of his estate. That
provision of the Leyes de Partidas is a very humane and wise
law. It justly protects those who innoeently have entered into
the solemn relation of marriage and their descendants. The
good faith of all the parties will be presumed until the
contrary is positively proved. (Article 69, Civil Code;
Las Leyes de Matrimonio, section 96; Gaines v. Hennen, 65
U.S., 553.)
“A woman who is deceived by a man who represents
himself as singie and who marries him, she and her children
born while the deception lasted, under the Spanish law, are
entitled to all the rights of a legitimate wife and children,
The common kw allowing none of the incidents of a true
marriage to follow another marriage entered into during the
continuance of a first, was early found to work a great
injustice upon the innocent parties to the second marriage,
and specially upon the off spring of such second marriage. x
x x.”
234
234 SUPREME COURT REPORTS ANNOTATED
Yap vs. Court ofAppeals
The petitioners now contend that Maning Yap died in
1964 when the New Civil Code had already superseded
the old Spanish Civil Code. They state that pursuant to
Article 2263 of the New Civil Code, the distribution of
the estate of Maning Yap should be in accordance with
the new codal provisions and not the Leyes Partidas,
which is an old law no longer applicable.
We agree.
Article 2263, a transitional provision in the New
Civil Code which took effect on August 30,1950 states:
“Rights to the inheritance of a person who died, with or
without a will, before the effectivity of this Code, shall be
governed by the CivilCode of 1889, by other previous laws,
and by the Rules of Court. The inheritance of those who, with
or without a will, die after the beginning of the effectivity of
this Code, shall be adjudicated and distributed in accordance
with this new body of laws and by the Rules of Court; but the
testamentary provisions shall be carried out insofar as they
may be permitted by this Code. Therefore, legitimes,
betterments. legaciea and bequests shall be respeeted;
however. their amount shall be reduced if in no other manner
can every compulsory heir be given his full share according
to this Code. (Rule 12a)"
The Report of the Code Commission explains the rule,
to wit:
‘The decisive fact which gives origin to the right of the heirs, absentee being alive, or the absentee being generaliy
devisees and legatees is the death of the decedent. This is the considered as dead and believed to be so by the
basis of the foregoing rule. No heir, devisee or legatee has spouse present at the time of contracting such
any vested right until the moment of such death (Civil Code, subsequent inarriage, the marriage so contracted
Padilla, Volume VII, 1975, p. 712)." being valid in either case until declared nuli and
We have accordingly ruled that the rights to the void by a competent court.”
inheritance of a person who died before the effectivity of
the New Civil Code shall be governed by the Civil Code Bearing this in mind, how must the estate of Maning
of 1889, by other previous laws and by the Rules of Yap be distributed?
Court (See Vidaurrazaga v. Court of Appeals, 91 Phil. The records show that the real and personai
492; Canales v. Arrogante, 91 Phil. 9; and Morales, et properties under admmistration in the intestate estate
al. v. Yanez, 98 PWl. 677), while the rights to the proceedings of Maning Yap were acquired by Talina
inheritance of a person who died after the effectivity of Bianong and the deeeased Maning Yap during their
the New Civil Code shall be governed by the New Civil marriage. Hence, these properties, in the absence of any
Code (Del Prado v. Santos, 18 SCRA 68). evidence to the contrary are considered conjugal
235 properties of Talina Bianong and Maning Yap (Article
VOL. 145, OCTOBER 28, 1986 235 142, New Civil Code). Considering that there was no
Yap vs. Court of Appeals liquidation of the conjugal partnership of gains during
There is no dispute that the marriage of Talina Bianong the lifetime of Maning Yap, such liquidation must be
to Maning Yap was valid and that the second marriage carried out in the intestate proceedings of Maning Yap,
contracted by the latter with Nancy Yap was illegal and the deceased spouse as expressly provided in Section 2,
void pursuant to Act 3613 of the Philippine Legislature, Rule 73, Revised Rules of Court (Lapuz v. Eufemio, 43
the Marriage Law which was in force when the two SCRA 177).
marriages were celebrated to wit: Article 142 of the New Civil Code provides:
“SEC. 29. lllegal Marriages.—Any marriage subsequently “By means of the conjugal partnership of gains the husband
contracted by any person during the lifetime of the first and wife place in a cominon fund the fruits of their separate
spouse of such person with any person other than such first property and the income from their work or industry, and
spouse shall be illegal and void from its performance, unless; divide equally, upon the dissolution of the marriage or of the
partnership, the net gains or
1. "(a)The first marriage was annulled or dissolved; 236
2. "(b)The first spouse had been absent for seven 236 SUPREME COURT REPORTS ANNOTATED
consecutive years at the time of the second marriage Yap vs. Court ofAppeals
without the spouse present having news of the
benefits obtained indiscriminately by either spouse during Considering the foregoing, the estate of Maning Yap
the marriage.” which is one-half (1/2) pro indiviso of the net remainder
and Article 185 thereof states: of the conjugal partnership of gains of the first niarriage
“The net remaincler of the conjugal partnership of gains shall (Articles 142 and 185 New Civil Code), the other half
be divided equally between the husband and the wife or their being the share of Talina Bianong, should be
respective heirs, unless a different basis of division was
distributed as follows:
agreed upon in the marriage settlements.”
a. To the legitimate children, Shirley Yap and Jaime
Pursuant to these provisions, the net remainder of the
Yap—one-half (1/2) of the resulting net estate to be
conjugal partnership of gains after money claims filed
divided
by creditors against the intestate estate of Maning Yap 237
approved by the lower court have been paid by the VOL. 145, OCTOBER 28, 1986 237
administratrix should be equally divided between Yap vs. Court of Appeals
Maning Yap and Talina Bianong as their shares. The
equally between them pursuant to Article 888 of the
one-half share of Maning Yap would then comprise his
New Civil Code;
intestate estate to be distributed among his heirs. (See
b. To the legitimate widow Talina Bianong—one-
also Vda. de Delizo v. Delizo, 69 SCRA 216)
fourth (1/4) of the net estate taken from the free portion
Under the law of succession in the New Civil Code,
or disposable half of the estate pursuant to Article 999
Maning Yap’s legal heirs are Talina Bianong, her
in relation to Article 897 of the New Civil Code; and
children Shirley Yap and Jaime Yap and the children of
c. To the natural children by legal fiction—Maning
Nancy Yap by Maning Yap namely: Maning Yap, Jr.,
Yap, Jr., Julia Yap, Jasmin Yap and Samuel Yap—the
Julia Yap, Jasmin Yap and Samuel Yap. Talina
remaining one-fourth (1/4) of the net estate to be shared
Bianong, the first wife had not iost or reiinquished her
equally between them pursuant to the first and third
status as putative heir of her husband. She is entitled
paragraphs of Article 895 in relation to Article 983 of
to share in Maning Yap’s estate upon his death (Gomez
the New Civil Code.
v. Lipana, 33 SCRA 615). On the other hand, Nancy
WHEREFORE, the instant PETITION is
Yap, the second wife cannot inherit from Maning Yap
GRANTED. The questioned decision of the Court of
because their marriage was void ab initio. (Art. 83, New
Appeals is hereby REVERSED and SET ASIDE. The
Civil Code; People v. Mendoza, 95 Phil. 845) However,
widow, Talina Bianong shall receive one half (1/2) of the
Nancy Yap’s children by Maning Yap have the status of
whole intestate estate as her share in the net remainder
natural children by legal f iction and are considered
of the conjugal partnership of gains. The other half,
compulsory heirs of the late Maning Yap. (Articles 89
which is the net estate of the late Maning Yap, is
and 887, New Civil Code).
distributed and adjudicated as stated above.
 SO ORDERED.
Feria (Chairman), Fernan, Alampay and Paras,
JJ., concur.
Petition granted. Decision reversed and set aside.
Note.—The compulsory heirs as enumerated in Art.
887 of the New Civil Cotfe may be classified into
primary compulsory heirs and secondary compulsory
heirs. Primary compulsory heirs are those who are
always entitled to their legitime as provided by law
regardless of the class of compulsory heirs with which
they may concur, while secondary compulsory heirs are
those who may be excluded by other classes of
compulsory heirs. The first includes all kinds of
compulsory heirs with the exception of parents or
ascendanis, while the second embraces only parents or
ascendants. (Turado: Comments and Jurisprudence on
Succession, 1970 Fifth Edition, p. 230.)

——o0o——

238
© Copyright 2019 Central Book Supply, Inc. All rights
reserved.
572 SUPREME COURT REPORTS ANNOTATED
Domingo vs. Court of Appeals
G.R. No. 104818. September 17, 1993. *
ROBERTO DOMINGO, petitioner, vs. COURT OF
APPEALS and DELIA SOLEDAD AVERA represented
by her Attorney-in-Fact MOISES R. AVERA,
respondents.
Marriages; A marriage though void still needs a judicial
declaration of such fact under the. Family Code even for
purposes other than remarriage.—Came the Family Code
which settled once and for all the conflicting jurisprudence
on the matter. A declaration of the absolute nullity of a
marriage is now explicitly required either as a cause of action
or a ground for defense. Where the absolute nullity of a
previous marriage is sought to be invoked for purposes of
contracting a second
_______________
*THIRD DIVISION.
573
VOL. 226, SEPTEMBER 17, 1993
Domingo vs. Court of Appeals
marriage, the sole basis acceptable in law for said
projected marriage to be free from legal infirmity is a final
judgment declaring the previous marriage void.
Same; Same.—In fact, the requirement for a declaration
of absolute nullity of a marriage is also for the protection of
the spouse who, believing that his or her marriage is illegal
and void, marries again. With the judicial declaration of the
nullity of his or her first marriage, the person who marries
again cannot be charged with bigamy.
Same; Same.—That Article 40 as finally formulated
included the significant clause denotes that such final
judgment declaring the previous marriage void need not be
obtained only for purposes of remarriage. Undoubtedly, one
can conceive of other instances where a party might well
invoke the absolute nullity of a previous marriage for
purposes other than remarriage, such as in case of an action
for liquidation, partition, distribution and separation of
property between the erstwhile spouses, as well as an action
for the custody and support of their common children and the
delivery of the latters’ presumptive legitimes. In such cases,
evidence needs must be adduced, testimonial or
documentary, to prove the existence of grounds rendering
such a previous marriage an absolute nullity. These need not
be limited solely to an earlier final judgment of a court
declaring such previous marriage void. Hence, in the
instance where a party who has previously contracted a
marriage which remains subsisting desires to enter into
another marriage which is legally unassailable, he is
required by law to prove that the previous one was an
absolute nullity. But this he may do on the basis solely of a
final judgment declaring such previous marriage void.
Same; Actions; Declaration of nullity of marriage carries
573 ipso facto a judgment for the liquidation of property, custody
and support of children, etc. There is no need of filing a
separate civil action for such purposes.—Based on the
foregoing provisions, private respondent’s ultimate prayer
for separation of property will simply be one of the necessary
consequences of the judicial declaration of absolute nullity of
their marriage. Thus, petitioner’s suggestion that in order for
their properties to be separated, an ordinary civil action has
to be instituted for that purpose is baseless. The Family Code
has clearly provided the effects of the declaration of nullity
of marriage, one of which is the separation of property
according to the regime of property relations governing them.
It stands to reason that the lower court before whom the
issue of nullity of a first marriage is brought is likewise
clothed with jurisdiction to decide the incidental questions
regarding the couple’s properties. Accordingly, the
respondent court committed no reversible
574
574 SUPREME COURT REPORTS ANNOTATED
Domingo vs. Court of Appeals The instant petition seeks the reversal of respondent
error in finding that the lower court committed no grave
abuse of discretion in denying petitioner’s motion to dismiss
SP No. 1989-J.
VITUG, J., Concurring:
Marriages; Certain effects of a valid marriage can flow
out of a void marriage.—A void marriage, even without its
being judicially declared a nullity, albeit the preferability for,
and justiciability (fully discussed in the majority opinion) of,
such a declaration, will not give it the status or the
consequences of a valid marriage, saving only specific
instances where certain effects of a valid marriage can still
flow from the void marriage. Examples of these cases are
children of void marriages under Article 36 (due to
psychological incapacity) and Article 53, in relation to Article
52 (due to failure of partition, delivery of presumptive
legitimes of children and recording thereof following the
annulment or declaration of nullity of a prior marriage),
conceived or born before the judicial declaration of nullity of
such void marriages, who the law deems as legitimate
(Article 54, Family Code).
PETITION for review of the decision of the Court of
Appeals.
The facts are stated in the opinion of the Court.
Jose P.O. Aliling IV for petitioner.
De Guzman, Meneses & Associates for private
respondent.
ROMERO, J.:
court’s ruling finding no grave abuse of discretion in the
lower court’s order denying petitioner’s motion to
dismiss the petition for declaration of nullity of
marriage and separation of property.
On May 29, 1991, private respondent Delia Soledad
A. Domingo filed a petition before the Regional Trial
Court of Pasig entitled “Declaration of Nullity of
Marriage and Separation of Property” against
petitioner Roberto Domingo. The petition which was
docketed as Special Proceedings No. 1989-J alleged
among others that: they were married on November 29,
1976 at the YMCA Youth Center Bldg., as evidenced by
a Marriage Contract Registry No. 1277K-76 with
Marriage License No. 4999036 issued at Carmona,
Cavite; unknown to her, he had a previous marriage
with one Emerlina dela Paz on April 25, 1969 which
marriage is valid and still existing; she came to know of
the prior marriage
575
VOL. 226, SEPTEMBER 17, 1993 575
Domingo vs. Court of Appeals
only sometime in 1983 when Emerlina dela Paz sued
them for bigamy; from January 23, 1979 up to the
present, she has been working in Saudi Arabia and she
used to come to the Philippines only when she would
avail of the one-month annual vacation leave granted
by her foreign employer; since 1983 up to the present,
he has been unemployed and completely dependent
upon her for support and subsistence; out of her
personal earnings, she purchased real and personal
properties with a total amount of approximately
P350,000.00, which are under the possession and
administration of Roberto; sometime in June 1989,
while on her one-month vacation, she discovered that
he was cohabiting with another woman; she further
discovered that he had been disposing of some of her
properties without her knowledge or consent; she
confronted him about this and thereafter appointed her
brother Moises R. Avera as her attorney-in-fact to take
care of her properties; he failed and refused to turn over
the possession and administration of said properties to
her brother/attorney-in-fact; and he is not authorized to
administer and possess the same on account of the
nullity of their marriage. The petition prayed that a
temporary restraining order or a writ of preliminary
injunction be issued enjoining Roberto from exercising
any act of administration and ownership over said
properties; their marriage be declared null and void and
of no force and effect; and Delia Soledad be declared the
sole and exclusive owner of all properties acquired at
the time of their void marriage and such properties be
placed under the proper management and
administration of the attorney-in-fact.
Petitioner filed a Motion to Dismiss on the ground
that the petition stated no cause of action. The marriage
being void ab initio,the petition for the declaration of its
nullity is, therefore, superfluous and unnecessary. It
added that private respondent has no property which is
in his possession.
On August 20, 1991, Judge Maria Alicia M. Austria
issued an Order denying the motion to dismiss for lack
of merit. She explained:
“Movant argues that a second marriage contracted after a
first marriage by a man with another woman is illegal and
void (citing the case of Yap v. Court of Appeals, 145 SCRA
229) and no judicial decree is necessary to establish the
invalidity of a void marriage (citing the cases
576
576 SUPREME COURT REPORTS ANNOTATED
Domingo vs. Court of Appeals
of People v. Aragon, 100 Phil. 1033; People v. Mendoza, 95
Phil. 845). Indeed, under the Yap case there is no dispute
that the second marriage contracted by respondent with
herein petitioner after a first marriage with another woman
is illegal and void. However, as to whether or not the second
marriage should first be judicially declared a nullity is not
an issue in said case. In the case of Vda. de Consuegra v.
GSIS, the Supreme Court ruled in explicit terms, thus:
And with respect to the right of the second wife, this Court
observed that although the second marriage can be presumed to be
void ab initio as it was celebrated while the first marriage was still
subsisting, still there is need for judicial declaration of its nullity.
(37 SCRA 316, 326)
The above ruling which is of later vintage deviated from the
previous rulings of the Supreme Court in the aforecited cases of
Aragon and Mendoza.
Finally, the contention of respondent movant that petitioner
has no property in his possession is an issue that may be
determined only after trial on the merits.” 1
A motion for reconsideration was filed stressing the
erroneous application of Vda. de Consuegra v.
GSIS and the absence of justiciable controversy as to
2
the nullity of the marriage. On September 11, 1991,
Judge Austria denied the motion for reconsideration
and gave petitioner fifteen (15) days from receipt within
which to file his answer.
Instead of filing the required answer, petitioner filed
a special civil action of certiorari and mandamus on the
ground that the lower court acted with grave abuse of
discretion amounting to lack of jurisdiction in denying
the motion to dismiss.
On February 7, 1992, the Court of Appeals dismissed
3 properties. Lastly, it noted that since the Court has
the petition. It explained that the case of Yap v.
CA cited by petitioner and that of Consuegra v.
4 motion to dismiss is merely one of law for which the
GSIS relied upon by the lower court do not have
relevance in the case at bar, there being no identity of
facts because these cases dealt with the successional
rights of the second wife while the instant case prays for
separa-
_______________
1Annex “C,” Rollo, pp. 28-29.
2L-28093, January 30, 1971, 37 SCRA 315.
3Annex “J,” Rollo, pp. 62-67, Justice Jorge S. Imperial, ponente and
Justices Luis A. Javellana and Serafin V.C. Guingona, concurring.
4L-40003, October 28, 1986, 145 SCRA 229.
577
VOL. 226, SEPTEMBER 17, 1993
Domingo vs. Court of Appeals
tion of property corollary with the declaration of nullity
of marriage. It observed that the separation and
subsequent distribution of the properties acquired
during the union can be had only upon proper
determination of the status of the marital relationship
between said parties, whether or not the validity of the
first marriage is denied by petitioner. Furthermore, in
order to avoid duplication and multiplicity of suits, the
declaration of nullity of marriage may be invoked in this
proceeding together with the partition and distribution
of the properties involved. Citing Articles 48, 50 and 52
of the Family Code, it held that private respondent’s
prayer for declaration of absolute nullity of their
marriage may be raised together with other incidents of
their marriage such as the separation of their
jurisdiction, the alleged error in refusing to grant the
remedy ordinarily would have been to file an answer,
proceed with the trial and in case of an adverse decision,
reiterate the issue on appeal. The motion for
reconsideration was subsequently denied for lack of
merit.
5
Hence, this petition.
The two basic issues confronting the Court in the
instant case are the following.
First, whether or not a petition for judicial
declaration of a void marriage is necessary. If in the
affirmative, whether the same should be filed only for
purposes of remarriage.
577 Second, whether or not SP N6. 1989-J is the proper
remedy of private respondent to recover certain real and
personal properties allegedly belonging to her
exclusively.
Petitioner, invoking the ruling in People v.
Aragon and People v. Mendoza, contends that SP. No.
6 7
1989-J for Declaration of Nullity of Marriage and
Separation of Property filed by private respondent must
be dismissed for being unnecessary and superfluous.
Furthermore, under his own interpretation of Article 40
of the Family Code, he submits that a petition for
declaration of absolute nullity of marriage is required
only for purposes of remarriage. Since the petition in SP
No. 1989-J contains no
_______________
Annex “M,” Rollo, p. 80.
5
6 100 Phil. 1033 (1957).
7 95 Phil. 845 (1954).
578
578 SUPREME COURT REPORTS ANNOTATED
Domingo vs. Court of Appeals
allegation of private respondent’s intention to remarry,
said petition should, therefore, be dismissed.
On the other hand, private respondent insists on the
necessity of a judicial declaration of the nullity of their
marriage, not for purposes of remarriage, but in order
to provide a basis for the separation and distribution of
the properties acquired during coverture.
There is no question that the marriage of petitioner
and private respondent celebrated while the former’s
previous marriage with one Emerlina de la Paz was still
subsisting, is bigamous. As such, it is void from the
beginning. Petitioner himself does not dispute the
8
absolute nullity of their marriage. 9
The cases of People v. Aragon and People v.
Mendoza relied upon by petitioner are cases where the
Court had earlier ruled that no judicial decree is
necessary to establish the invalidity of a void, bigamous
marriage. It is noteworthy to observe that Justice Alex
Reyes, however, dissented on these occasions stating
that:
“Though the logician may say that where the former
marriage was void there would be nothing to dissolve, still it
is not for the spouses to judge whether that marriage was
void or not. That judgment is reserved to the courts. x x x” 10
This dissenting opinion was adopted as the majority
position in subsequent cases involving the same issue.
Thus, in Gomez v. Lipana, the Court abandoned its
11
earlier ruling in the Aragon and Mendoza cases. In
reversing the lower court’s order forfeiting the
husband’s share of the disputed property acquired
during the second marriage, the Court stated that “if
the nullity, or annulment of the marriage is the basis
for the application of Article 1417, there is need for a
judicial declaration thereof, which of course
contemplates an action for that purpose.”
Citing Gomez v. Lipana, the Court subsequently held
in Vda. de Consuegra v. Government Service Insurance
System, that
_______________
8 CIVIL CODE, art. 80, par. 4; FAMILY CODE, arts. 35, par. 4 and
41.
9 Rollo, pp. 102 and 106.
10 See: Note 6 at p. 1036; Note 7 at p. 848.
11 L-23214, June 30, 1970, 33 SCRA 615, 620-621.
579
VOL. 226, SEPTEMBER 17, 1993 579
Domingo vs. Court of Appeals
“although the second marriage can be presumed to be
void ab initioas it was celebrated while the first
marriage was still subsisting, still there is need for
judicial declaration of such nullity.”
In Tolentino v. Paras, however, the Court turned
12
around and applied the Aragon and Mendoza ruling
once again. In granting the prayer of the first wife
asking for a declaration as the lawful surviving spouse
and the correction of the death certificate of her
deceased husband, it explained that “(t)he second
marriage that he contracted with private respondent
during the lifetime of his first spouse is null and void
from the beginning and of no force and effect. No
judicial decree is necessary to establish the invalidity of
a void marriage.”
However, in the more recent case of Wiegel v.
Sempio-Diy the Court reverted to the Consuegra case
13
and held that there was “no need of introducing
evidence about the existing prior marriage of her first
husband at the time they married each other, for then
such a marriage though void still needs according to
this Court a judicial declaration of such fact and for all
legal intents and purposes she would still be regarded
as a married woman at the time she contracted her
marriage with respondent Karl Heinz Wiegel.”
Came the Family Code which settled once and for all
the conflicting jurisprudence on the matter. A
declaration of the absolute nullity of a marriage is now
explicitly required either as a cause of action or a
ground for defense. Where the absolute nullity of a
14
previous marriage is sought to be invoked for purposes
of contracting a second marriage, the sole basis
acceptable in law for said projected marriage to be free
from legal infirmity is a final judgment declaring the
previous marriage void. 15
The Family Law Revision Committee and the Civil
Code Revision Committee which drafted what is now
16
the Family
_______________
12 L-43905, May 30, 1983, 122 SCRA 525.
13 G.R. No. 53703, August 19, 1986, 143 SCRA 499.
14 FAMILY CODE, art. 39.
15 Id., art. 40. See also: arts. 11, 13, 42, 44, 48, 50, 52, 54, 86, 99,
147, 148.
16 The Family Law Revision Committee of the Integrated Bar of the
Philippines (IBP) prepared the draft of the revision of Book I of the
580
580 SUPREME COURT REPORTS ANNOTATED
Domingo vs. Court of Appeals
Code of the Philippines took the position that parties to
a marriage should not be allowed to assume that their
marriage is void even if such be the fact but must first
secure a judicial declaration of the nullity of their
marriage before they can be allowed to marry again.
This is borne out by the following minutes of the 152nd
Joint Meeting of the Civil Code and Family Law
Committees where the present Article 40, then Art. 39,
was discussed.
“B. Article 39.—
The absolute nullity of a marriage may be invoked only on the
basis of a final judgment declaring the marriage void, except as
provided in Article 41.
Justice Caguioa remarked that the above provision should
include not only void but also voidable marriages. He then
suggested that the above provision be modified as follows:
The validity of a marriage may be invoked only . . . Justice Reyes
(J.B.L. Reyes), however, proposed that they say:
The validity or invalidity of a marriage may be invoked only. . .
On the other hand. Justice Puno suggested that they
say:
The invalidity of a marriage may be invoked only . . . Justice
Caguioa explained that his idea is that one cannot determine for
himself whether or not his marriage is valid and that a court action
is needed. Justice Puno accordingly proposed that the provision be
modified to read:
The invalidity of a marriage may be invoked only on the basis
of a final judgment annulling the marriage or declaring the
marriage void, except as provided in Article 41.
Justice Caguioa remarked that in annulment, there is no
question. Justice Puno, however, pointed out that, even if it
is a judgment of annulment, they still have to produce the
judgment. Justice Caguioa suggested that they say.
The invalidity of a marriage may be invoked only on the
_______________
Civil Code of the Philippines. After more than four years, the draft was
turned over to the Civil Code Revision Committee of the UP Law Center
which reviewed and revised the same for more than three years.
581
VOL. 226, SEPTEMBER 17, 1993
Domingo vs. Court of Appeals
basis of a final judgment declaring the marriage invalid, except as
provided in Article 41.
Justice Puno raised the question: When a marriage is
declared invalid, does it include the annulment of a marriage
and the declaration that the marriage is void? Justice
Caguioa replied in the affirmative. Dean Gupit added that in
some judgments, even if the marriage is annulled, it is
declared void. Justice Puno suggested that this matter be
made clear in the provision.
Prof. Baviera remarked that the original idea in the
provision is to require first a judicial declaration of a void
marriage and not annullable marriages, with which the
other members concurred. Judge Diy added that annullable
marriages are presumed valid until a direct action is filed to
annul it, which the other members affirmed. Justice Puno
remarked that if this is so, then the phrase ‘absolute nullity’
can stand since it might result in confusion if they change
the phrase to ‘invalidity’ if what they are referring to in the
provision is the declaration that the marriage is void.
Prof. Bautista commented that they will be doing away
with collateral defense as well as collateral attack. Justice
Caguioa explained that the idea in the provision is that there
should be a final judgment declaring the marriage void and
a party should not declare for himself whether or not the
marriage is void, which the other members affirmed. Justice
Caguioa added that they are, therefore, trying to avoid a
collateral attack on that point. Prof. Bautista stated that
there are actions which are brought on the assumption that
the marriage is valid. He then asked: Are they depriving one
of the right to raise the defense that he has no liability
because the basis of the liability is void? Prof. Bautista added
that they cannot say that there will be no judgment on the
581 validity or invalidity of the marriage because it will be taken
up in the same proceeding. It will not be a unilateral
declaration that it is a void marriage. Justice Caguioa saw
the point of Prof. Bautista and suggested that they limit the
provision to remarriage. He then proposed that Article 39 be
reworded as follows:
The absolute nullity of a marriage for purposes of remarriage may
be invoked only on the basis of final judgment . . . Justice Puno
suggested that the above be modified as follows:
The absolute nullity of a previous marriage may be invoked for
purposes of establishing the validity of a subsequent marriage only
on the basis of a final judgment declaring such previous marriage
void, except as provided in Article 41. Justice Puno later modified
the above as follows:
For the purpose of establishing the validity of a subsequent
582
582 SUPREME COURT REPORTS ANNOTATED
Domingo vs. Court of Appeals
marriage, the absolute nullity of a previous marriage may only be
invoked on the basis of a final judgment declaring such nullity,
except as provided in Article 41.
Justice Caguioa commented that the above provision is
too broad and will not solve the objection of Prof. Bautista.
He proposed that they say:
For the purpose of entering into a subsequent marriage, the
absolute nullity of a previous marriage may only be invoked on the
basis of a final judgment declaring such nullity, except as provided
in Article 41.
Justice Caguioa explained that the idea in the above
provision is that if one enters into a subsequent marriage
without obtaining a final judgment declaring the nullity of a
previous marriage, said subsequent marriage is void ab
initio.
After further deliberation, Justice Puno suggested that
they go back to the original wording of the provision as
follows:
The absolute nullity of a previous marriage may be invoked for
purposes of remarriage only on the basis of a final judgment
declaring such previous marriage void, except as provided in
Article 41.”
17
In fact, the requirement for a declaration of absolute
nullity of a marriage is also for the protection of the
spouse who, believing that his or her marriage is illegal
and void, marries again. With the judicial declaration of
the nullity of his or her first marriage, the person who
marries again cannot be charged with bigamy. 18
Just over a year ago, the Court made the
pronouncement that there is a necessity for a judicial
declaration of absolute nullity of a prior subsisting
marriage before contracting another in the recent case
of Terre v. Terre. The Court, in turning down the
19
defense of respondent Terre who was charged with
grossly immoral conduct consisting of contracting a
second marriage and living with another woman other
than complainant while his prior marriage with the
latter remained subsisting, said that “for purposes of
determining whether a person is legally free to
_______________
17August 23, 1986, pp. 4-7.
18J. A.V. SEMPIO-DIY, HANDBOOK OF THE FAMILY CODE OF
THE PHILIPPINES, 46 (1988).
19 Adm. Case No. 2349, July 3, 1992, 211 SCRA 6, 11.
583
VOL. 226, SEPTEMBER 17, 1993 583
Domingo vs. Court of Appeals
contract a second marriage, a judicial declaration that
the first marriage was null and void ab initio is
essential.”
As regards the necessity for a judicial declaration of
absolute nullity of marriage, petitioner submits that the
same can be maintained only if it is for the purpose of
remarriage. Failure to allege this purpose, according to
petitioner’s theory, will warrant dismissal of the same.
Article 40 of the Family Code provides:
“ART. 40. The absolute nullity of a previous marriage may
be invoked for purposes of remarriage on the basis solely of
a final judgment declaring such previous marriage void.” (n)
Crucial to the proper interpretation of Article 40 is the
position in the provision of the word “solely.” As it is
placed, the same shows that it is meant to qualify “final
judgment declaring such previous marriage void.”
Realizing the need for careful craftsmanship in
conveying the precise intent of the Committee
members, the provision in question, as it finally
emerged, did not state “The absolute nullity of a
previous marriage may be invoked solely for purposes of
remarriage . . .,” in which case “solely” would clearly
qualify the phrase “for purposes of remarriage.” Had the
phraseology been such, the interpretation of petitioner
would have been correct and, that is, that the absolute
nullity of a previous marriage may be invoked solely for
purposes of remarriage, thus rendering irrelevant the
clause “on the basis solely of a final judgment declaring
such previous marriage void.”
That Article 40 as finally formulated included the
significant clause denotes that such final judgment
declaring the previous marriage void need not be
obtained only for purposes of remarriage. Undoubtedly,
one can conceive of other instances where a party might
well invoke the absolute nullity of a previous marriage
for purposes other than remarriage, such as in case of
an action for liquidation, partition, distribution and
separation of property between the erstwhile spouses,
as well as an action for the custody and support of their
common children and the delivery of the latters’
presumptive legitimes. In such cases, evidence needs
must be adduced, testimonial or documentary, to prove
the existence of grounds rendering such a previous
marriage an absolute nullity. These need not be limited
solely to an
584
584 SUPREME COURT REPORTS ANNOTATED
Domingo vs. Court of Appeals
earlier final judgment of a court declaring such previous
marriage void. Hence, in the instance where a party
who has previously contracted a marriage which
remains subsisting desires to enter into another
marriage which is legally unassailable, he is required
by law to prove that the previous one was an absolute
nullity. But this he may do on the basis solely of a final
judgment declaring such previous marriage void.
This leads us to the question: Why the distinction? In
other words, for purposes of remarriage, why should the
only legally acceptable basis for declaring a previous
marriage an absolute nullity be a final judgment
declaring such previous marriage void? Whereas, for
purposes other than remarriage, other evidence is
acceptable?
Marriage, a sacrosanct institution, declared by the
Constitution as an “inviolable social institution, is the
foundation of the family;” as such, it “shall be protected
by the State.” In more explicit terms, the Family Code
20
characterizes it as a “special contract of permanent
union between a man and a woman entered into in
accordance with law for the establishment of conjugal
and family life.” So crucial are marriage and the family
21
to the stability and peace of the nation that their
“nature, consequences, and incidents are governed by
law and not subject to stipulation . . .,” As a matter of
22
policy, therefore, the nullification of a marriage for the
purpose of contracting another cannot be accomplished
merely on the basis of the perception of both parties or
of one that their union is so defective with respect to the
essential requisites of a contract of marriage as to
render it void ipso jure and with no legal effect—and
nothing more. Were this so, this inviolable social
institution would be reduced to a mockery and would
rest on very shaky foundations indeed. And the grounds
for nullifying marriage would be as diverse and
farranging as human ingenuity and fancy could
conceive. For such a socially significant institution, an
official state pronouncement through the courts, and
nothing less, will satisfy the exacting norms of society.
Not only would such an open and public
_______________
20 CONST., art. XV, sec. 2.
21 FAMILY CODE, art. 1.
22 Id.
585
VOL. 226, SEPTEMBER 17, 1993
Domingo vs. Court of Appeals
declaration by the courts definitively confirm the nullity
of the contract of marriage, but the same would be
easily verifiable through records accessible to everyone.
That the law seeks to ensure that a prior marriage is
no impediment to a second sought to be contracted by
one of the parties may be gleaned from new information
required in the Family Code to be included in the
application for a marriage license, viz, “If previously
married, how, when and where the previous marriage
was dissolved and annulled.” 23
Reverting to the case before us, petitioner’s
interpretation of Art. 40 of the Family Code is,
undoubtedly, quite restrictive. Thus, his position that
private respondent’s failure to state in the petition that
the same is filed to enable her to remarry will result in
the dismissal of SP No. 1989-J is untenable. His
misconstruction of Art. 40 resulting from the misplaced
emphasis on the term “solely” was in fact anticipated by
the members of the Committee.
“Dean Gupit commented that the word “only” may be
misconstrued to refer to “for purposes of remarriage.” Judge
Diy stated that “only” refers to “final judgment.” Justice Puno
suggested that they say “on the basis only of a final
judgment.” Prof. Baviera suggested that they use the legal
term “solely” instead of “only,” which the Committee
approved.” (Italics supplied)
24
Pursuing his previous argument that the declaration
for absolute nullity of marriage is unnecessary,
petitioner suggests that private respondent should have
filed an ordinary civil action for the recovery of the
585 properties alleged to have been acquired during their
union. In such an eventuality, the lower court would not
be acting as a mere special court but would be clothed
with jurisdiction to rule on the issues of possession and
ownership. In addition, he pointed out that there is
actually nothing to separate or partition as the petition
admits that all the properties were acquired with
private respondent’s money.
The Court of Appeals disregarded this argument and
concluded that “the prayer for declaration of absolute
nullity of marriage may be raised together with the
other incident of their
_______________
Id., art. 11.
23
See: Note 17, at p. 7.
24
586
586 SUPREME COURT REPORTS ANNOTATED
Domingo vs. Court of Appeals
marriage such as the separation of their properties.”
When a marriage is declared void ab initio, the law
states that the final judgment therein shall provide for
“the liquidation, partition and distribution of the
properties of the spouses, the custody and support of the
common children, and the delivery of their presumptive
legitimes, unless such matters had been adjudicated in
previous judicial proceedings.” Other specific effects
25
flowing therefrom, in proper cases, are the following:
“Art. 43. x x x xxx xxx
1. (2)The absolute community of property or the
conjugal partnership, as the case may be, shall be
dissolved and liquidated, but if either spouse
contracted said marriage in bad faith, his or her
share of the net profits of the community property or
conjugal partnership property shall be forfeited in
favor of the common children or, if there are none,
the children of the guilty spouse by a previous
marriage or, in default of children, the innocent
spouse;
2. (3)Donations by reason of marriage shall remain
valid, except that if the donee contracted the
marriage in bad faith, such donations made to said
donee are revoked by operation of law;
3. (4)The innocent spouse may revoke the designation of
the other spouse who acted in bad faith as a
beneficiary in any insurance policy, even if such
designation be stipulated as irrevocable; and
4. (5)The spouse who contracted the subsequent
marriage in bad faith shall be disqualified to inherit
from the innocent spouse by testate and intestate
succession. (n)
Art. 44. If both spouses of the subsequent marriage acted
in bad faith, said marriage shall be void ab initio and all
donations by reason of marriage and testamentary
disposition made by one in favor of the other are revoked by
operation of law. (n)” 26
Based on the foregoing provisions, private respondent’s
ultimate prayer for separation of property will simply
be one of the necessary consequences of the judicial
declaration of absolute nullity of their marriage. Thus,
petitioner’s suggestion that in
_______________
25 Art. 50 (2).
26 In relation to Art. 50 (1)—The effects provided for in paragraphs
(2), (3), (4) and (5) of Article 43 and in Article 44 shall also apply in
proper cases to marriages which are declared void ab initio or annulled
by final judgment under Articles 40 and 45.
587
VOL. 226, SEPTEMBER 17, 1993 587
Domingo vs. Court of Appeals
order for their properties to be separated, an ordinary
civil action has to be instituted for that purpose is
baseless. The Family Code has clearly provided the
effects of the declaration of nullity of marriage, one of
which is the separation of property according to the
regime of property relations governing them. It stands
to reason that the lower court before whom the issue of
nullity of a first marriage is brought is likewise clothed
with jurisdiction to decide the incidental questions
regarding the couple’s properties. Accordingly, the
respondent court committed no reversible error in
finding that the lower court committed no grave abuse
of discretion in denying petitioner’s motion to dismiss
SP No. 1989-J.
WHEREFORE, the instant petition is hereby
DENIED. The decision of respondent Court dated
February 7, 1992 and the Resolution dated March 20,
1992 are AFFIRMED.
SO ORDERED.
Bidin and Melo, JJ., concur.
Feliciano, J., On official leave.
Vitug, J., With concurring opinion.
CONCURRING OPINION
VITUG, J.:
I concur with the opinion so well expressed by Mme.
Justice Flerida Ruth P. Romero. I should like, however,
to put in a modest observation.
Void marriages are inexistent from the very
beginning and, I believe, no judicial decree is required to
establish their nullity, except in the following instances:
(a) For purposes of remarriage pursuant to the
provision of Article 40 of the Family Code; viz:
The absolute nullity of a previous marriage may be invoked
for purposes of remarriage on the basis solely of a final
judgment declaring such previous marriage void. (n)
(b) A marriage celebrated prior to the effectivity of the
Fam-
588
588 SUPREME COURT REPORTS ANNOTATED
Domingo vs. Court of Appeals
ily Code in case a party thereto was psychologically
incapacitated to comply with the essential marital
obligations of marriage (Article 36, Family Code), where
an action or defense for the declaration of nullity
prescribes ten (10) years after the Family Code took
effect (Article 39, Family Code); otherwise, the
marriage is deemed unaffected by the Family Code.
A void marriage, even without its being judicially
declared a nullity, albeit the preferability for, and
justiciability (fully discussed in the majority opinion) of,
such a declaration, will not give it the status or the
consequences of a valid marriage, saving only specific
instances where certain effects of a valid marriage can
still flow from the void marriage. Examples of these
cases are children of void marriages under Article 36
(due to psychological incapacity) and Article 53, in
relation to Article 52 (due to failure of partition,
delivery of presumptive legitimes of children and
recording thereof following the annulment or
declaration of nullity of a prior marriage), conceived or
born before the judicial declaration of nullity of such
void marriages, who the law deems as legitimate
(Article 54, Family Code).
In most, if not in all, other cases, a void marriage is
to be considered extant per se. Neither the conjugal
partnership of gain under the old regime nor the
absolute community of property under the new Code
(absent a marriage settlement), will apply; instead,
their property relations shall be governed by the co-
ownership rules under either Article 147 or Article 148
of the Family Code. I must hasten to add as a personal
view, however, that the exceptional effects on children
of a void marriage because of the psychological
incapacity of a party thereto should have been extended
to cover even the personal and property relations of the
spouses. Unlike the other cases of void marriages where
the grounds therefor may be established by hard facts
and with little uncertainty, the term “psychological
incapacity” is so relative and unsettling that until a
judicial declaration of nullity is made its interim effects
can long and literally hang on the balance not only
insofar as the spouses themselves are concerned but
also as regards third persons with whom the spouses
deal.
Petition denied. Questioned decision affirmed.
Notes.—Obligation to give or the right to ask for
support does
589
VOL. 226, SEPTEMBER 17, 1993 589
Arambulo vs. Court of Appeals
not cease permanently. Right to support subsists
throughout the period that the marriage subsists
(Canonizado vs. Benitez, 127 SCRA 610).
The best documentary evidence of a marriage is the
marriage contract itself (Villanueva vs. Court of
Appeals, 198 SCRA 472).

——o0o——

© Copyright 2019 Central Book Supply, Inc. All rights

reserved.
 VOL. 260, JULY 31, 1996 221 the conjugal partnership of gains, the fruits of the couple’s
Valdes vs. Regional Trial Court, Br. 102, Quezon City separate property are not included in the co-ownership.
G.R. No. 122749. July 31, 1996. *
ANTONIO A.S. VALDES, petitioner, vs. REGIONAL
TRIAL COURT, BRANCH 102, QUEZON CITY, and
CONSUELO M. GOMEZ-VALDES, respondents.
Civil Law; Family Code; In a void marriage, regardless
of the cause thereof, the property relations of the parties
during the period of cohabitation is governed by the
provisions of Article 147 or Article 148 of the Family Code.—
The trial court correctly applied the law. In a void marriage,
regardless of the cause thereof, the property relations of the
parties during the period of cohabitation is governed by the
provisions of Article 147 or Article 148, such as the case may
be, of the Family Code.
Same; Same; Property acquired by both spouses through
their work and industry shall be governed by the rules on
equal co-ownership.—Under this property regime, property
acquired by both spouses through
their workand industry shall be governed by the rules
on equal co-ownership. Any property acquired during the
union
_______________
*FIRST DIVISION.
222
222 SUPREME COURT REPORTS ANNOTATED
Valdes vs. Regional Trial Court, Br. 102, Quezon City
is prima facie presumed to have been obtained through
their joint efforts. A party who did not participate in the
acquisition of the property shall still be considered as having
contributed thereto jointly if said party’s “efforts consisted in
the care and maintenance of the family household.” Unlike
Same; Same; When the common-law spouses suffer from
a legal impediment to marry or when they do not live
exclusively with each other, only the property acquired by
both of them through their actual joint contribution of money,
property or industry shall be owned in common and in
proportion to their respective contributions.—When the
common-law spouses suffer from a legal impediment to
marry or when they do not live exclusively with each other
(as husband and wife), only the property acquired by both of
them 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, however, are prima
facie presumed to be equal. The share of any party who is
married to another shall accrue to the absolute community
or conjugal partnership, as the case may be, if so existing
under a valid marriage. If the party who has acted in bad
faith is not validly married to another, his or her share shall
be forfeited in the manner already heretofore expressed.
Same; Same; The first paragraph of Article 50 of the
Family Code, applying paragraphs (2), (3), (4) and (5) of
Article 43 relates only by its explicit terms, to voidable
marriages and exceptionally, to void marriages under Article
40 of the Code.—The rules set up to govern the liquidation of
either the absolute community or the conjugal partnership of
gains, the property regimes recognized for valid and voidable
marriages (in the latter case until the contract is annulled),
are irrelevant to the liquidation of the co-ownership that
exists between common-law spouses. The first paragraph of
Article 50 of the Family Code, applying paragraphs (2), (3),
(4) and (5)of Article 43, relates only, by its explicit terms,
to voidable marriages and, exceptionally, to void marriages
under Article 40 of the Code, i.e., the declaration of nullity of
a subsequent marriage contracted by a spouse of a prior void
marriage before the latter is judicially declared void. The
latter is a special rule that somehow recognizes the
philosophy and an old doctrine that void marriages are
inexistent
223
VOL. 260, JULY 31, 1996 223 (docketed Civil Case No. Q-92-12539, Regional Trial
Valdes vs. Regional Trial Court, Br. 102, Quezon City
from the very beginning and no judicial decree is
necessary to establish their nullity.
PETITION for review of a decision of the Regional
Trial Court of Quezon City, Br. 102.
The facts are stated in the opinion of the Court.
Romulo, Mabanta, Buenaventura, Sayoc & De los
Angeles for petitioner.
Roco, Buñag, Kapunan & Migallos for private
respondent.
VITUG, J.:
The petition for review bewails, purely on a question of
law, an alleged error committed by the Regional Trial
Court in Civil Case No. Q-92-12539. Petitioner avers
that the court a quo has failed to apply the correct law
that should govern the disposition of a family dwelling
in a situation where a marriage is declared void ab
initiobecause of psychological incapacity on the part of
either or both of the parties to the contract.
The pertinent facts giving rise to this incident are, by
and large, not in dispute.
Antonio Valdes and Consuelo Gomez were married
on 05 January 1971. Begotten during the marriage were
five children. In a petition, dated 22 June 1992, Valdes
sought the declaration of nullity of the marriage
pursuant to Article 36 of the Family Code
Court of Quezon City, Branch 102). After hearing the
parties following the joinder of issues, the trial court, in
1
its decision of 29 July 1994, granted the petition; viz:
“WHEREFORE, judgment is hereby rendered as follows:
“(1) The marriage of petitioner Antonio Valdez and
respondent Consuelo Gomez-Valdes is hereby declared null
and void under
________________
1 Hon. Perlita Tria Tirona, presiding.
224
224 SUPREME COURT REPORTS ANNOTATED
Valdes vs. Regional Trial Court, Br. 102, Quezon City
Article 36 of the Family Code on the ground of their mutual
psychological incapacity to comply with their essential
marital obligations;
“(2) The three older children, Carlos Enrique III, Antonio
Quintin and Angela Rosario shall choose which parent they
would want to stay with.
“Stella Eloisa and Joaquin Pedro shall be placed in the
custody of their mother, herein respondent Consuelo Gomez-
Valdes.
“The petitioner and respondent shall have visitation
rights over the children who are in the custody of the other.
“(3) The petitioner and respondent are directed to start
proceedings on the liquidation of their common properties as
defined by Article 147 of the Family Code, and to comply with
the provisions of Articles 50, 51 and 52 of the same code,
within thirty (30) days from notice of this decision.
“Let a copy of this decision be furnished the Local Civil
Registrar of Mandaluyong, Metro Manila, for proper
recording in the registry of marriages.” (Italics ours.)
2
Consuelo Gomez sought a clarification of that portion of
the decision directing compliance with Articles 50, 51
and 52 of the Family Code. She asserted that the Family
Code contained no provisions on the procedure for the
liquidation of common property in “unions without
marriage.” Parenthetically, during the hearing on the
motion, the children filed a joint affidavit expressing
their desire to remain with their father, Antonio Valdes,
herein petitioner.
In an Order, dated 05 May 1995, the trial court made
the following clarification:
“Consequently, considering that Article 147 of the Family
Code explicitly provides that the property acquired by both
parties during their union, in the absence of proof to the
contrary, are presumed to have been obtained through the
joint efforts of the parties and will be owned by them in equal
shares, plaintiff and defendant will own their ‘family
home’ and all their other properties for that matter in equal
shares.
_________________
2Rollo, p. 22.
225
VOL. 260, JULY 31, 1996
Valdes vs. Regional Trial Court, Br. 102, Quezon City
“In the liquidation and partition of the properties owned in
common by the plaintiff and defendant, the provisions on co-
ownership found in the Civil Code shall apply.” (Emphasis
3
supplied.)
In addressing specifically the issue regarding the
disposition of the family dwelling, the trial court said:
“Considering that this Court has already declared the
marriage between petitioner and respondent as null and
void ab initio, pursuant to Art. 147, the property regime of
petitioner and respondent shall be governed by the rules on
co-ownership.
“The provisions of Articles 102 and 129 of the Family Code
finds no application since Article 102 refers to the procedure
for the liquidation of the conjugal partnership property and
Article 129 refers to the procedure for the liquidation of
the absolute community of property.”
4
Petitioner moved for a reconsideration of the order. The
motion was denied on 30 October 1995.
In his recourse to this Court, petitioner submits that
Articles 50, 51 and 52 of the Family Code should be held
controlling; he argues that:
“I
“Article 147 of the Family Code does not apply to cases where
the parties are psychologically incapacitated.
“II
“Articles 50, 51 and 52 in relation to Articles 102 and 129
of the Family Code govern the disposition of the family
dwelling in cases where a marriage is declared void ab initio,
including a marriage declared void by reason of the
225 psychological incapacity of the spouses.
_________________
3 Rollo, p. 42.
4 Rollo, pp. 38-39.
226
226 SUPREME COURT REPORTS ANNOTATED
 Valdes vs. Regional Trial Court, Br. 102, Quezon City
“III
“Assuming arguendo that Article 147 applies to
marriages declared void ab initio on the ground of the
psychological incapacity of a spouse, the same may be read
consistently with Article 129.
“IV
“It is necessary to determine the parent with whom
majority of the children wish to stay.”
5
The trial court correctly applied the law. In a void
marriage, regardless of the cause thereof, the property
relations of the parties during the period of cohabitation
is governed by the provisions of Article 147 or Article
148, such as the case may be, of the Family Code. Article
147 is a remake of Article 144 of the Civil Code as
interpreted and so applied in previous cases; it 6 or their descendants, each vacant share shall belong to the
provides:
“ART. 147. When a man and a woman who are capacitated
to marry each other, live exclusively with each other as
husband and wife without the benefit of marriage or under a
void marriage, their wages and salaries shall be owned by
them in equal shares and the property acquired by both of
them through their work or industry shall be governed by the
rules on co-ownership.
“In the absence of proof to the contrary, properties
acquired while they lived together shall be presumed to have
been obtained by their joint efforts, work or industry, and
shall be owned by them in equal shares. For purposes of this
Article, a party who did not participate in the acquisition by
the other party of any property shall be deemed to have
contributed jointly in the acquisition thereof if the former’s
efforts consisted in the care and maintenance of the family
and of the household.
“Neither party can encumber or dispose by acts inter
vivos of his or her share in the property acquired during
cohabitation and owned in common, without the consent of
the other, until after the
__________________
5 Rollo, pp. 24-25.
6 See Margaret Maxey vs. Court of Appeals, 129 SCRA 187; Aznar, et
al. vs. Garcia, et al., 102 Phil. 1055.
227
VOL. 260, JULY 31, 1996 227
Valdes vs. Regional Trial Court, Br. 102, Quezon City
termination of their cohabitation.
“When only one of the parties to a void marriage is in good
faith, the share of the party in bad faith in the co-ownership
shall be forfeited in favor of their common children. In case
of default of or waiver by any or all of the common children
respective surviving descendants. In the absence of
descendants, such share shall belong to the innocent party.
In all cases, the forfeiture shall take place upon termination
of the cohabitation.”
This peculiar kind of co-ownership applies when a man
and a woman, suffering no legal impediment to marry
each other, so exclusively live together as husband and
wife under a void marriage or without the benefit of
marriage. The term “capacitated” in the provision (in
the first paragraph of the law) refers to the legal
capacity of a party to contract marriage, i.e., any “male
or female of the age of eighteen years or upwards not
under any of the impediments mentioned in Articles 37
and 38” of the Code.
7
___________________
7 Art. 5. Any male or female of the age of eighteen years or upwards
not under any of the impediments mentioned in Articles 37 and 38,
may contract marriage.
Art. 37. Marriages between the following are incestuous and void
from the beginning, whether the relationship between the parties be
legitimate or illegitimate:
1. (1)Between ascendants and descendants of any degree; and
2. (2)Between brothers and sisters, whether of the full-or half-
blood.
Art. 38. The following marriages shall be void from the beginning
for reasons of public policy:
1. (1)Between collateral blood relatives; whether legitimate or
illegitimate, up to the fourth civil degree;
2. (2)Between step-parents and stepchildren;
3. (3)Between parents-in-law and children-in-law;
4. (4)Between the adopting parent and the adopted child;
5. (5)Between the surviving spouse of the adopting parent and
the adopted child;
228
228 SUPREME COURT REPORTS ANNOTATED
Valdes vs. Regional Trial Court, Br. 102, Quezon City
Under this property regime, property acquired by both
spouses through their work and industry shall be
governed by the rules on equal co-ownership. Any
property acquired during the union is prima
facie presumed to have been obtained through their
joint efforts. A party who did not participate in the
acquisition of the property shall still be considered as
having contributed thereto jointly if said party’s “efforts
consisted in the care and maintenance of the family
household.” Unlike the conjugal partnership of gains,
8
the fruits of the couple’s separate property are not
included in the co-ownership.
Article 147 of the Family Code, in substance and to
the above extent, has clarified Article 144 of the Civil
Code; in addition, the law now expressly provides
that—
(a) Neither party can dispose or encumber by
act inter vivos his or her share in co-ownership property,
without the consent of the other, during the period of
cohabitation; and
(b) In the case of a void marriage, any party in bad
faith shall forfeit his or her share in the co-ownership
in favor of their common children; in default thereof or
waiver by any or all of the common children, each
vacant share shall belong to the respective surviving
descendants, or still in default thereof, to the innocent
party. The forfeiture shall take place upon the
termination of the cohabitation or declaration of nullity
9
of the marriage. 10
When the common-law spouses suffer from a legal
impediment to marry or when they do not live exclusively
with each
__________________
1. (6)Between the surviving spouse of the adopted child and the
adopter;
2. (7)Between an adopted child and a legitimate child of the
adopter;
3. (8)Between adopted children of the same adopter; and
4. (9)Between parties where one, with the intention to marry the
other, killed that other person’s spouse or his or her own
spouse.
 8 Article 147, Family Code.
9 Article 147, Family Code.
10 Articles 43, 50 and 51, Family Code.
229
VOL. 260, JULY 31, 1996
Valdes vs. Regional Trial Court, Br. 102, Quezon City
other (as husband and wife), only the property acquired
by both of them 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, however, are prima facie presumed to be equal.
The share of any party who is married to another shall
accrue to the absolute community or conjugal
partnership, as the case may be, if so existing under a
valid marriage. If the party who has acted in bad faith
is not validly married to another, his or her share shall
be forfeited in the manner already heretofore
expressed. 11
In deciding to take further cognizance of the issue on
the settlement of the parties’ common property, the trial
court acted neither imprudently nor precipitately; a
court which had jurisdiction to declare the marriage a
nullity must be deemed likewise clothed with authority
to resolve incidental and consequential matters. Nor did
it commit a reversible error in ruling that petitioner and
private respondent own the “family home” and all their
common property in equal shares, as well as in
concluding that, in the liquidation and partition of the
property owned in common by them, the provisions on
co-ownership under the Civil Code, not Articles 50, 51
and 52, in relation to Articles 102 and 129, of the
12
Family Code,
_______________
11 Article 148, Family Code.
12 Art. 50. The effects provided for in paragraph (2), (3), (4) and (5)
229 of Article 43 and in Article 44 shall also apply in proper cases to
marriages which are declared void ab initio or annulled by final
judgment under Articles 40 and 45.
The final judgment in such cases shall provide for the liquidation,
partition and distribution of the properties of the spouses, the custody
and support of the common children, and the delivery of their
presumptive legitimes, unless such matters had been adjudicated in
previous judicial proceedings.
All creditors of the spouses as well as of the absolute community or
the conjugal partnership shall be notified of the proceedings for
liquidation.
In the partition, the conjugal dwelling and the lot on which it is
situated, shall be adjudicated in accordance with the provisions of
230
230 SUPREME COURT REPORTS ANNOTATED
Valdes vs. Regional Trial Court, Br. 102, Quezon City
should aptly prevail. The rules set up to govern the
liquidation of either the absolute community or the
conjugal partnership
__________________
Articles 102 and 129.
Art. 51. In said partition, the value of the presumptive legitimes of
all common children, computed as of the date of the final judgment of
the trial court, shall be delivered in cash, property or sound securities,
unless the parties, by mutual agreement judicially approved, had
already provided for such matters.
The children or their guardian, or the trustee of their property,
may ask for the enforcement of the judgment.
The delivery of the presumptive legitimes herein prescribed shall
in no way prejudice the ultimate successional rights of the children
accruing upon the death of either or both of the parents; but the value
of the properties already received under the decree of annulment or
absolute nullity shall be considered as advances on their legitime.
 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 children’s presumptive legitimes shall
be recorded in the appropriate civil registry and registries of property;
otherwise, the same shall not affect their persons.
Art. 102. Upon dissolution of the absolute community regime, the
following procedure shall apply:
1. (1)An inventory shall be prepared, listing separately all the
properties of the absolute community and the exclusive
properties of each spouse.
2. (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. (3)Whatever remains of the exclusive properties of the spouses
shall thereafter be delivered to each of them.
4. (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 as provided in this Code. For purposes of
computing the net profits subject to forfeiture in accordance
with Article 43, No. (2) and 63, No. (2), the said profits shall
be the increase in
231
VOL. 260, JULY 31, 1996 231
Valdes vs. Regional Trial Court, Br. 102, Quezon City
of gains, the property regimes recognized for valid and
voidable marriages (in the latter case until the contract
is annulled), are irrelevant to the liquidation of the co-
ownership
_________________
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.
1. (5)The presumptive legitimes of the common children shall be
delivered upon partition, in accordance with Article 51.
2. (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 to the 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.
Art. 129. Upon the dissolution of the conjugal partnership regime,
the following procedure shall apply;
1. (1)An inventory shall be prepared, listing separately all the
properties of the conjugal partnership and the exclusive
properties of each spouse.
2. (2)Amounts advanced by the conjugal partnership in payment
of personal debts and obligations of either spouse shall be
credited to the conjugal partnership as an asset thereof.
3. (3)Each spouse shall be reimbursed for the use of his or her
exclusive funds in the acquisition of property or for the value
of his or her exclusive property, the ownership of which has
been vested by law in the conjugal partnership.
4. (4)The debts and obligations of the conjugal partnership shall
be paid out of the conjugal 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 paragraph (2) of Article 121.
5. (5)Whatever remains of the exclusive properties of the spouses
shall thereafter be delivered to each of them.
6. (6)Unless the owner has been indemnified from whatever
source, the loss or deterioration of movables used for the
benefit of the family, belonging to either spouse, even due to
fortuitous event, shall be paid to said spouse from the
conjugal
 232
232 SUPREME COURT REPORTS ANNOTATED
Valdes vs. Regional Trial Court, Br. 102, Quezon City
that exists between common-law spouses. The first
paragraph of Article 50 of the Family Code, applying
paragraphs (2), (3), (4) and (5) of Article 43, relates 13
only, by its explicit terms, to
________________
1. funds, if any.
2. (7)The net remainder of the conjugal partnership properties
shall constitute the profits, 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 or forfeiture of such
share as provided in this Code.
3. (8)The presumptive legitimes of the common children shall be
delivered upon partition in accordance with Article 51.
4. (9)In the partition of the properties, the conjugal dwelling and
the lot on which it is situated shall, unless otherwise agreed
upon by the parties, be adjudicated to the 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.
13 Art. 43. The termination of the subsequent marriage referred to
in the preceding Article shall produce the following effects:
1. (1)The children of the subsequent marriage conceived prior to
its termination shall be considered legitimate, and their
custody and support in case of dispute shall be decided by the
court in a proper proceeding;
2. (2)The absolute community of property or the conjugal
partnership, as the case may be, shall be dissolved and
liquidated, but if either spouse contracted said marriage in
bad faith, his or her share of the net profits of the community
property or conjugal partnership property shall be forfeited
in favor of the common children or, if there are none, the
children of the guilty spouse by a previous marriage or, in
default of children, the innocent spouse;
3. (3)Donations by reason of marriage shall remain valid, except
that if the donee contracted the marriage in bad faith, such
donations made to said donee are revoked by operation of
law;
4. (4)The innocent spouse may revoke the designation of the
other spouse who acted in bad faith as a beneficiary in any
insurance policy, even if such designation be stipulated as ir-
233
VOL. 260, JULY 31, 1996 233
Valdes vs. Regional Trial Court, Br. 102, Quezon City
voidable marriages and, exceptionally,
to void marriages under Article 40 of the Code, i.e., the
14
declaration of nullity of a subsequent marriage
contracted by a spouse of a prior void marriage before
the latter is judicially declared void. The latter is a
special rule that somehow recognizes the philosophy
and an old doctrine that void marriages are inexistent
from the very beginning and no judicial decree is
necessary to establish their nullity. In now requiring
for purposes of remarriage, the declaration of nullity by
final judgment of the previously contracted void
marriage, the present law aims to do away with any
continuing uncertainty on the status of the second
marriage. It is not then illogical for the provisions of
Article 43, in relation to Articles 41 and 42, of the
15 16
Family
_________________
1. revocable; and
 2. (5)The spouse who contracted the subsequent marriage in bad
faith shall be disqualified to inherit from the innocent spouse
by testate and intestate succession.
14 Art. 40. The absolute nullity of a previous marriage may be
invoked for purposes of remarriage on the basis solely of a final
judgment declaring such previous marriage void.
15 Art. 41. A marriage contracted by any person during the
subsistence of a previous marriage shall be null and void, unless before
the celebration of the subsequent marriage, the prior spouse had been
absent for four consecutive years and the spouse present had a well-
founded belief that the absent spouse was already dead. In case of
disappearance where there is danger of death under the circumstances
set forth in the provisions of Article 391 of the Civil Code, an absence
of only two years shall be sufficient.
For the purpose of contracting the subsequent marriage under the
preceding paragraph, the spouse present must institute 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.
16 Art. 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
234
234 SUPREME COURT REPORTS ANNOTATED
Valdes vs. Regional Trial Court, Br. 102, Quezon City
Code, on the effects of the termination of a subsequent
marriage contracted during the subsistence of a
previous marriage to be made applicable pro hac vice.
In all other cases, it is not to be assumed that the law
has also meant to have coincident property relations, on
the one hand, between spouses in valid and voidable
marriages (before annulment) and, on the other,
between common-law spouses or spouses of void
marriages, leaving to ordain, in the latter case, the
ordinary rules on co-ownership subject to the provision
of Article 147 and Article 148 of the Family Code. It
must be stressed, nevertheless, even as it may merely
state the obvious, that the provisions of the Family
Code on the “family home,” i.e., the provisions found in
Title V, Chapter 2, of the Family Code, remain in force
and effect regardless of the property regime of the
spouses.
WHEREFORE, the questioned orders, dated 05 May
1995 and 30 October 1995, of the trial court are
AFFIRMED. No costs.
SO ORDERED.
Padilla (Chairman), Kapunan and Hermosisima,
Jr., JJ.,concur.
Bellosillo, J., On leave.
Orders affirmed.
——o0o——
________________
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.
235
© Copyright 2019 Central Book Supply, Inc. All rights
reserved.
122 SUPREME COURT REPORTS ANNOTATED
Mercado vs. Tan
G.R. No. 137110. August 1, 2000. *
VINCENT PAUL G. MERCADO a.k.a. VINCENT G.
MERCADO, petitioner, vs. CONSUELO TAN,
respondent.
Criminal Law; Bigamy; Family Code; Jurisprudence
regarding the need for a judicial declaration of nullity of the
previous marriage has been characterized as
“conflicting”; Under the Family Code, a declaration of the
absolute nullity of a marriage is now explicitly required either
as a cause of action or a ground for defense.—Jurisprudence
regarding the need for a judicial declaration of nullity of the
previous marriage has been characterized as “conflicting.” x
x x x x x x x x In Domingo v. CA, the issue raised was whether
a judicial declaration of nullity was still necessary for the
recovery and the separation of properties of erstwhile
spouses. Ruling in the affirmative, the Court declared: “The
Family Code has settled once and for all the conflicting
jurisprudence on the matter. A declaration of the
_______________
*THIRD DIVISION.
123
VOL. 337, AUGUST 1, 2000
Mercado vs. Tan
absolute nullity of a marriage is now explicitly required
either as a cause of action or a ground for defense; in fact, the
requirement for a declaration of absolute nullity of a
marriage is also for the protection of the spouse who,
believing that his or her marriage is illegal and void, marries
again. With the judicial declaration of the nullity of his or
her first marriage, the person who marries again cannot be
charged with bigamy.”
Same; Same; Same; Absent that declaration, Court
holds that one may be charged with and convicted of
bigamy.—The statutory mooring of the ruling
in Mendoza and Aragon—that there is no need for a judicial
declaration of nullity of a void marriage—has been cast aside
by Article 40 of the Family Code. Such declaration is now
necessary before one can contract a second marriage. Absent
that declaration, we hold that one may be charged with and
convicted of bigamy.
Same; Same; Same; By contracting a second marriage
while the first was still subsisting, petitioner committed the
acts punishable under Article 349 of the Revised Penal
Code.—Petitioner contracted a second marriage although
there was yet no judicial declaration of nullity of his first
marriage. In fact, he instituted the Petition to have the first
marriage declared void only after complainant had filed a
letter-complaint charging him with bigamy. By contracting a
second marriage while the first was still subsisting, he
committed the acts punishable under Article 349 of the
Revised Penal Code.
Same; Same; Same; Fact that he subsequently obtained
a judicial declaration of the nullity of the first marriage was
immaterial.—That he subsequently obtained a judicial
declaration of the nullity of the first marriage was
immaterial. To repeat, the crime had already been
123 consummated by then. Moreover, his view effectively
encourages delay in the prosecution of bigamy cases; an
accused could simply file a petition to declare his previous
marriage void and invoke the pendency of that action as a
prejudicial question in the criminal case.
PETITION for review on certiorari of a decision of the
Court of Appeals.
The facts are stated in the opinion of the Court.
 Tan, Acut & Madrid for petitioner.
Julius C. Baldado for private respondent.
124
124 SUPREME COURT REPORTS ANNOTATED
Mercado vs. Tan
PANGANIBAN, J.:
A judicial declaration of nullity of a previous marriage
is necessary before a subsequent one can be legally
contracted. One who enters into a subsequent marriage
without first obtaining such judicial declaration is
guilty of bigamy. This principle applies even if the
earlier union is characterized by statutes as “void.”
The Case
Before us is a Petition for Review on Certiorari assailing
the July 14, 1998 Decision of the Court of Appeals
(CA) in CA-GR CR No. 19830 and its January 4, 1999
1 duly executed and signed by the parties. As entered in said
Resolution denying reconsideration. The assailed
Decision affirmed the ruling of the Regional Trial Court
(RTC) of Bacolod City in Criminal Case No. 13848,
which convicted herein petitioner of bigamy as follows:
“WHEREFORE, finding the guilt of accused Dr. Vincent
Paul G. Mercado a.k.a. Dr. Vincent G. Mercado of the crime
of Bigamy punishable under Article 349 of the Revised Penal
Code to have been proven beyond reasonable doubt, [the
court hereby renders] judgment imposing upon him a prison
term of three (3) years, four (4) months and fifteen (15) days
of prision correccional, as minimum of his indeterminate
sentence, to eight (8) years and twenty-one (21) days of
prision mayor, as maximum, plus accessory penalties
provided by law.
Costs against accused.” 2
The Facts
The facts are quoted by Court of Appeals (CA) from the
trial court’s judgment, as follows:
“From the evidence adduced by the parties, there is no
dispute that accused Dr. Vincent Mercado and complainant
Ma. Consuelo Tan got married on June 27, 1991 before
MTCC-Bacolod City Br. 7 Judge Gorgo-
_______________
1 Penned by J. Salome A. Montoya, Division chairman; with the
concurrence of JJ.Conchita Carpio Morales and Bernardo P. Abesamis,
members.
2 RTC Decision, pp. 16-17; rollo, pp. 136-137. This was written by Judge
Edgar G. Garvilles.
125
VOL. 337, AUGUST 1, 2000 125
Mercado vs. Tan
nio J. Ibañez [by reason of] which a Marriage Contract was
document, the status of accused was ‘single.’ There is no
dispute either that at the time of the celebration of the
wedding with complainant, accused was actually a married
man, having been in lawful wedlock with Ma. Thelma Oliva
in a marriage ceremony solemnized on April 10, 1976 by
Judge Leonardo B. Cañares, CFI-Br. XIV, Cebu City per
Marriage Certificate issued in connection therewith, which
matrimony was further blessed by Rev. Father Arthur Baur
on October 10, 1976 in religious rites at the Sacred Heart
Church, Cebu City. In the same manner, the civil marriage
between accused and complainant was confirmed in a church
ceremony on June 29, 1991 officiated by Msgr. Victorino A.
Rivas, Judicial Vicar, Diocese of Bacolod City. Both
marriages were consummated when out of the first
consortium, Ma. Thelma Oliva bore accused two children,
while a child, Vincent Paul, Jr. was sired by accused with
complainant Ma. Consuelo Tan.
“On October 5, 1992, a letter-complaint for bigamy was
filed by complainant through counsel with the City
Prosecutor of Bacolod City, which eventually resulted [in]
the institution of the present case before this Court against
said accused, Dr. Vincent C. Mercado, on March 1, 1993 in
an Information dated January 22, 1993.
“On November 13, 1992, or more than a month after the
bigamy case was lodged in the Prosecutor’s Office, accused
filed an action for Declaration of Nullity of Marriage against
Ma. Thelma V. Oliva in RTC-Br. 22, Cebu City, and in a
Decision dated May 6, 1993 the marriage between Vincent
C. Mercado and Ma. Thelma V. Oliva was declared null and
void.
“Accused is charged [with] bigamy under Article 349 of
the Revised Penal Code for having contracted a second
marriage with herein complainant Ma. Consuelo Tan on
June 27, 1991 when at that time he was previously united in
lawful marriage with Ma. Thelma V. Oliva on April 10, 1976
at Cebu City, without said first marriage having been legally
dissolved. As shown by the evidence and admitted by
accused, all the essential elements of the crime are present,
namely: (a) that the offender has been previously legally
married; (2) that the first marriage has not been legally
dissolved or in case the spouse is absent, the absent spouse
could not yet be presumed dead according to the Civil Code;
(3) that he contract[ed] a second or subsequent marriage; and
(4) that the second or subsequent marriage ha[d] all the
essential requisites for validity, x x x
“While acknowledging the existence of the two
marriage[s], accused posited the defense that his previous
marriage ha[d] been judicially de-
126
126 SUPREME COURT REPORTS ANNOTATED
Mercado vs. Tan
dared null and void and that the private complainant had
knowledge of the first marriage of accused.
“It is an admitted fact that when the second marriage was
entered into with Ma. Consuelo Tan on June 27, 1991,
accused’s prior marriage with Ma. Thelma V. Oliva was
subsisting, no judicial action having yet been initiated or any
judicial declaration obtained as to the nullity of such prior
marriage with Ma. Thelma V. Oliva. Since no declaration of
the nullity of his first marriage ha[d] yet been made at the
time of his, second marriage, it is clear that accused was a
married man when he contracted such second marriage with
complainant on June 27, 1991. He was still at the time
validly married to his first wife.”3
Ruling of the Court of Appeals
Agreeing with the lower court, the Court of Appeals
stated:
“Under Article 40 of the Family Code, ‘the absolute nullity of
a previous marriage may be invoked for purposes of
remarriage on the basis solely of a final judgment declaring
such previous marriage void.’ But here, the final judgment
declaring null and void accused’s previous marriage came not
before the celebration of the second marriage, but after,
when the case for bigamy against accused was already tried
in court. And what constitutes the crime of bigamy is the act
of any person who shall contract a second subsequent
marriage ‘before’ the former marriage has been legally
dissolved.”4
Hence, this Petition. 5
The Issues
In his Memorandum, petitioner raises the following
issues:
_______________
 3 CA Decision, pp. 2-4; rollo, pp. 45-47.
4 Ibid., p. 6; rollo, p. 13.
5 The case was deemed submitted for resolution on May 26, 2000,
upon receipt by this Court of the OSG Memorandum signed by Sol.
Gen. Ricardo P. Galvez, Asst. Sol. Gen. Mariano M. Martinez and Sol.
Jesus P. Castelo. Respondent’s Memorandum, which was signed by
Atty. Julius C. Baldado, was received on November 11, 1999; while
petitioner’s Memorandum, signed by Attys. Bernard B. Lopez and
Maritoni Z. Liwanag, had been filed earlier on September 30, 1999.
127
VOL. 337, AUGUST 1, 2000
Mercado vs. Tan
“A
Whether or not the element of previous legal marriage is
present in order to convict petitioner.
“B
Whether or not a liberal interpretation in favor of
petitioner of Article 349 of the Revised Penal Code punishing
bigamy, in relation to Articles 36 and 40 of the Family Code,
negates the guilt of petitioner.
“C
Whether or not petitioner is entitled to an acquittal on the
basis of reasonable doubt.”
6
The Court’s Ruling
The Petition is not meritorious.
Main Issue:
Effect of Nullity of Previous Marriage
Petitioner was convicted of bigamy under Article 349 of
the Revised Penal Code, which provides:
“The penalty of prision mayor shall be imposed upon any
person who shall contract a second or subsequent marriage
before the former 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.”
The elements of this crime are as follows:
1. “1.That the offender has been legally married;
127
2. 2.That the marriage has not been legally
dissolved or, in case his or her spouse is absent,
the absent spouse could not yet be presumed
dead according to the Civil Code;
3. 3.That he contracts a second or subsequent
marriage;
4. 4.That the second or subsequent marriage has all
the essential requisites for validity.” 7
_______________
6Petitioner’s Memorandum, p. 5; rollo, p. 215.
7Reyes, The Revised Penal Code, Book Two, 13th ed. (1993), p. 828.
128
128 SUPREME COURT REPORTS ANNOTATED
Mercado vs. Tan
When the Information was filed on January 22, 1993,
all the elements of bigamy were present. It is
undisputed that petitioner married Thelma G. Oliva on
April 10, 1976 in Cebu City. While that marriage was
still subsisting, he contracted a second marriage, this
time with Respondent Ma. Consuelo Tan who
subsequently filed the Complaint for bigamy.
 Petitioner contends, however, that he obtained a
judicial declaration of nullity of his first marriage under
Article 36 of the Family Code, thereby rendering it
void ab initio. Unlike voidable marriages which are
considered valid until set aside by a competent court, he
argues that a void marriage is deemed never to have
taken place at all. Thus, he concludes that there is no
8
first marriage to speak of. Petitioner also quotes the
commentaries of former Justice Luis Reyes that “it is
9
now settled that if the first marriage is void from the
beginning, it is a defense in a bigamy charge. But if the
first marriage is voidable, it is not a defense.”
Respondent, on the other hand, admits that the first
marriage was declared null and void under Article 36 of
the Family Code, but she points out that that
declaration came only after the Information had been
filed. Hence, by then, the crime had already been
consummated. She argues that a judicial declaration of
nullity of a void previous marriage must be obtained
before a person can marry for a subsequent time.
We agree with the respondent.
To be sure, jurisprudence regarding the need for a
judicial declaration of nullity of the previous marriage
has been characterized as “conflicting.” In People v.
10
Mendoza, a bigamy case involving an accused who
11
married three times, the Court ruled that there was no
need for such declaration. In that case, the accused
contracted a second marriage during the subsistence of
the first. When the first
_______________
8 Citing Tolentino, Civil Code of the Philippines, Commentaries and
Jurisprudence, Vol. I, p. 265.
9 Reyes, The Revised Penal Code, Book Two, 12th ed. (1981), p. 907.
10 Domingo v. CA, 226 SCRA 572, September 17, 1993, per
Romero, J.
11 95 Phil. 845, September 28, 1954.
129
VOL. 337, AUGUST 1, 2000 129
Mercado vs. Tan
wife died, he married for the third time. The second wife
then charged him with bigamy. Acquitting him, the
Court held that the second marriage was void ab
initio because it had been contracted while the first
marriage was still in effect. Since the second marriage
was obviously void and illegal, the Court ruled that
there was no need for a judicial declaration of its nullity.
Hence, the accused did not commit bigamy when he
married for the third time. This ruling was affirmed by
the Court in People v. Aragon, which involved 12
substantially the same facts.
But in subsequent cases, the Court impressed the
need for a judicial declaration of nullity. In Vda de
Consuegra v. GSIS, Jose Consuegra married for the
13
second time while the first marriage was still
subsisting. Upon his death, the Court awarded one half
of the proceeds of his retirement benefits to the first
wife and the other half to the second wife and her
children, notwithstanding the manifest nullity of the
second marriage. It held: “And with respect to the right
of the second wife, this Court observes that although the
second marriage can be presumed to be void ab initio as
it was celebrated while the first marriage was still
subsisting, still there is need for judicial declaration of
such nullity.”
In Tolentino v. Paras however, the Court again held
14
that judicial declaration of nullity of a void marriage
was not necessary. In that case, a man married twice.
In his Death Certificate, his second wife was named as
his surviving spouse. The first wife then filed a Petition
to correct the said entry in the Death Certificate. The
Court ruled in favor of the first wife, holding that “the
second marriage that he contracted with private
respondent during the lifetime of the first spouse is null
and void from the beginning and of no force and
effect. No judicial decree is necessary to establish the
invalidity of a void marriage.”
_______________
12 100 Phil. 1033, February 28, 1957.
13 37 SCRA 315, 326, January 30, 1971, per Zaldivar, J. Emphasis
supplied. See also Gomez v. Lipana, 33 SCRA 615, June 30, 1970.
122 SCRA 525, 529, May 30, 1983; per Melencio-
14
Herrera, J. Emphasis supplied.
130
130 SUPREME COURT REPORTS ANNOTATED
Mercado vs. Tan
In Wiegel v. Sempio-Diy, the Court stressed the need
15
for such declaration. In that case, Karl Heinz Wiegel
filed an action for the declaration of nullity of his
marriage to Lilia Olivia Wiegel on the ground that the
latter had a prior existing marriage. After pretrial, Lilia
asked that she be allowed to present evidence to prove,
among others, that her first husband had previously
been married to another woman. In holding that there
was no need for such evidence, the Court ruled: “x x x
There is likewise no need of introducing evidence about
the existing prior marriage of her first husband at the
time they married each other, for then such a marriage
though void still needs, according to this Court, a
judicial declaration of such fact and for all legal intents
and purposes she would still be regarded as a married
woman at the time she contracted her marriage with
respondent Karl Heinz Wiegel; x x x.”
Subsequently, in Yap v. CA, the Court reverted to
16
the ruling in People v. Mendoza, holding that there was
no need for such declaration of nullity.
In Domingo v. CA, the issue raised was whether a
17
judicial declaration of nullity was still necessary for the
recovery and the separation of properties of erstwhile
spouses. Ruling in the affirmative, the Court declared:
“The Family Code has settled once and for all the
conflicting jurisprudence on the matter. A declaration
of the absolute nullity of a marriage is now explicitly
required either as a cause of action or a ground for
defense; in fact, the requirement for a declaration of
absolute nullity of a marriage is also for the protection
of the spouse who, believing that his or her marriage is
illegal and void, marries again. With the judicial
declaration of the nullity of his or her first marriage, the
person who marries again cannot be charged with
bigamy.” 18
Unlike Mendoza and Aragon, Domingo as well as the
other cases herein cited was not a criminal prosecution
for bigamy. Nonetheless, Domingo underscored the
need for a judicial declaration of
________________
 15 143 SCRA 499, August 19, 1986, per Paras, J. Emphasis supplied
145 SCRA 229, October 28, 1986.
16
17 226 SCRA 572, September 17, 1993, per Romero, J, citing
SempioDiy, Handbook of the Family Code of the Philippines, 1988 p.
46.
18 Supra, p. 579.
131
VOL. 337, AUGUST 1, 2000
Mercado vs. Tan
nullity of a void marriage on the basis of a new provision
of the Family Code, which came into effect several years
after the promulgation of Mendoza and Aragon.
In Mendoza and Aragon, the Court relied on Section
29 of Act No. 3613 (Marriage Law), which provided:
“Illegal marriages.—Any marriage subsequently contracted
by any person during the lifetime of the first spouse shall
be illegal and void from its performance, unless:
1. (a)The first marriage was annulled or dissolved;
2. (b)The first spouse had been absent for seven
consecutive years at the time of the second marriage
without the spouse present having news of the
absentee being alive, or the absentee being generally
considered as dead and believed to be so by the
spouse present at the time of contracting such
subsequent marriage, the marriage as contracted
being valid in either case until declared null and
void by a competent court.”
The Court held in those two cases that the said
provision “plainly makes a subsequent marriage
contracted by any person during the lifetime of his first
spouse illegal and void from its performance, and no
judicial decree is necessary to establish its invalidity, as
distinguished from mere annulable marriages.”
19
The provision appeared in substantially the same
form under Article 83 of the 1950 Civil Code and Article
41 of the Family Code. However, Article 40 of the
Family Code, a new provision, expressly requires a
131 judicial declaration of nullity of the previous marriage,
as follows:
“ART. 40. The absolute nullity of a previous marriage may
be invoked for purposes of remarriage on the basis solely of
a final judgment declaring such marriage void.”
In view of this provision, Domingo stressed that a final
judgment declaring such marriage void was necessary.
Verily, the Family Code and Domingo affirm the earlier
ruling in Wiegel.
_______________
19People v. Mendoza, 95 Phil. 845, 847, September 28, 1954, per
Paras, CJ. See also People v. Aragon, 100 Phil. 1033, 1034-1035,
February 28, 1957, per Labrador, J.
132
132 SUPREME COURT REPORTS ANNOTATED
Mercado vs. Tan
Thus, a Civil Law authority and member of the Civil
Code Revision Commitee has observed:
“[Article 40] is also in line with the recent decisions of the
Supreme Court that the marriage of a person may be null
and void but there is need of a judicial declaration of such
fact before that person can marry again; otherwise, the
second marriage will also be void (Wiegel v. SempioDiy, Aug.
19/86, 143 SCRA 499, Vda. De Consuegra v. GSIS, 37 SCRA
315). This provision changes the old rule that where a
marriage is illegal and void from its performance, no judicial
decree is necessary to establish its validity (People v.
Mendoza, 95 Phil. 843; People v. Aragon, 100 Phil. 1033) 20
In this light, the statutory mooring of the ruling
in Mendoza and Aragon—that there is no need for a
judicial declaration of nullity of a void marriage—has
been cast aside by Article 40 of the Family Code. Such
declaration is not necessary before one can contract a
second marriage. Absent that declaration, we hold that
one may be charged with and convicted of bigamy.
The present ruling is consistent with our
pronouncement in Terre v. Terre, which involved an
21
administrative Complaint against a lawyer for
marrying twice. In rejecting the lawyer’s argument that
he was free to enter into a second marriage because the
first one was void ab initio, the Court ruled: “for
purposes of determining whether a person is legally free
to contract a second marriage, a judicial declaration
that the first marriage was null and void ab
initio is essential.” The Court further noted that the said
rule was “cast into statutory form by Article 40 of the
Family Code.” Significantly, it observed that the second
marriage, contracted without a judicial declaration that
the first marriage was void, was “bigamous and
criminal in character.”
Moreover, Justice Reyes, an authority in Criminal
Law whose earlier work was cited by petitioner,
changed his view on the subject in view of Article 40 of
the Family Code and wrote in 1993 that
_______________
20 Sempio-Diy, Handbook on the Family Code of the Philippines,
1995 ed., p. 56.
211 SCRA 6, 11, July 3, 1992, per curiam.
21
133
VOL. 337, AUGUST 1, 2000 133
Mercado vs. Tan
a person must first obtain a judicial declaration of the
nullity of a void marriage before contracting a
subsequent marriage: 22
“It is now settled that the fact that the first marriage is void
from the beginning is not a defense in a bigamy charge. As
with a voidable marriage, there must be a judicial
declaration of the nullity of a marriage before contracting the
second marriage. Article 40 of the Family Code states that x
x x. The Code Commission believes that the parties to a
marriage should not be allowed to assume that their
marriage is void, even if such is the fact, but must first secure
a judicial declaration of nullity of their marriage before they
should be allowed to marry again, x x x.”
In the instant case, petitioner contracted a second
marriage although there was yet no judicial declaration
of nullity of his first marriage. In fact, he instituted the
Petition to have the first marriage declared void only
after complainant had filed a letter-complaint charging
him with bigamy. By contracting a second marriage
while the first was still subsisting, he committed the
acts punishable under Article 349 of the Revised Penal
Code.
That he subsequently obtained a judicial declaration
of the nullity of the first marriage was immaterial. To
repeat, the crime had already been consummated by
then. Moreover, his view effectively encourages delay in
the prosecution of bigamy cases; an accused could
simply file a petition to declare his previous marriage
void and invoke the pendency of that action as a
prejudicial question in the criminal case. We cannot
allow that.
Under the circumstances of the present case, he is
guilty of the charge against him.
Damages
In her Memorandum, respondent prays that the Court
set aside the ruling of the Court of Appeals insofar as it
denied her claim of damages and attorney’s fees. 23
_______________
22 Reyes, Revised Penal Code, Book Two, 13th ed. (1993), p. 829.
Emphasis supplied. Petitioner had cited the statement of Justice
Reyes that “if the first marriage is void from the beginning, it is a
defense in a big-amy charge.” This statement, however, appeared in
the 1981 edition of Reyes’ book, before the enactment of the Family
Code.
23 Respondent’s Memorandum, p. 16; rollo, p. 259.
134
134 SUPREME COURT REPORTS ANNOTATED
Mercado vs. Tan
Her prayer has no merit. She did not appeal the ruling
of the CA against her; hence, she cannot obtain
affirmative relief from this Court. In any event, we find
24
no reason to reverse or set aside the pertinent ruling of
the CA on this point, which we quote hereunder:
“We are convinced from the totality of the evidence presented
in this case that Consuelo Tan is not the innocent victim that
she claims to be; she was well aware of the existence of the
previous marriage when she contracted matrimony with Dr.
Mercado. The testimonies of the defense witnesses prove
this, and we find no reason to doubt said testimonies.
xxx xxx xxx
“Indeed, the claim of Consuelo Tan that she was not
aware of his previous marriage does not inspire belief,
especially as she had seen that Dr. Mercado had two (2)
children with him. We are convinced that she took the plunge
anyway, relying on the fact that the first wife would no
longer return to Dr. Mercado, she being by then already
living with another man.
“Consuelo Tan can therefore not claim damages in this
case where she was fully conscious of the consequences of her
act. She should have known that she would suffer
humiliation in the event the truth [would] come out, as it did
in this case, ironically because of her personal instigation. If
there are indeed damages caused to her reputation, they are
of her own willful making.” 25
WHEREFORE, the Petition is DENIED and the
assailed Decision AFFIRMED. Costs against petitioner.
SO ORDERED.
Melo (Chairman), Purisima and Gonzaga-Reyes,
JJ.,concur.
Vitug, J., Please see Concurring and Dissenting
Opinion.
_______________
24 Lagandaon v. Court of Appeals, 290 SCRA 330, May 21, 1998; Dio
v. Concepcion, 296 SCRA 579, September 25, 1998.
25 CA Decision, pp. 7-9; rollo, pp. 50-52.
135
VOL. 337, AUGUST 1, 2000 135
Mercado vs. Tan
CONCURRING AND DISSENTING OPINION
VITUG, J.:
At the pith of the controversy is the defense of the
absolute nullity of a previous marriage in an indictment
for bigamy. The majority opinion, penned by my
esteemed brother, Mr. Justice Artemio V. Panganiban,
enunciates that it is only a judicially decreed prior void
marriage which can constitute a defense against the
criminal charge.
The civil law rule stated in Article 40 of the Family
Code is a given but I have strong reservations on its
application beyond what appears to be its expressed
context. The subject of the instant petition is a criminal
prosecution, not a civil case, and the ponenciaaffirms
the conviction of petitioner Vincent Paul G. Mercado for
bigamy.
Article 40 of the Family Code reads:
“ART. 40. The absolute nullity of a previous marriage may
be invoked for purposes of remarriage on the basis solely of a
final judgment declaring such previous marriage void.”
The phrase “for purposes of remarriage” is not at all
insignificant. Void marriages, like void contracts, are
inexistent from the very beginning. It is only by way of
exception that the Family Code requires a judicial
declaration of nullity of the previous marriage before a
subsequent marriage is contracted; without such
declaration, the validity and the full legal consequence
of the subsequent marriage would itself be in similar
jeopardy under Article 53, in relation to Article 52, of
the Family Code. Parenthetically, I would daresay that
the necessity of a judicial declaration of nullity of a void
marriage for the purpose of remarriage should be held
to refer merely to cases where it can be said that a
marriage, at least ostensibly, had taken place. No such
judicial declaration of nullity, in my view, should still
be deemed essential when the “marriage,” for instance,
is between persons of the same sex or when either or
both parties had not at all given consent to the
“marriage.” Indeed, it is likely that Article 40 of the
Family Code has been meant and in-
136
136 SUPREME COURT REPORTS ANNOTATED
Mercado vs. Tan
tended to refer only to marriages declared void under
the provisions of Articles 35, 36, 37, 38 and 53 thereof.
In fine, the Family Code I respectfully submit, did
not have the effect of overturning the rule in criminal
law and related jurisprudence. The Revised Penal Code
expresses:
“Art. 349. Bigamy.—The penalty of prision mayor shall be
imposed upon any person who shall contract a second or
subsequent marriage before the former 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.
Surely, the foregoing provision contemplated an
existing, not void, prior marriage. Covered by Article
349 would thus be, for instance, a voidable marriage, it
obviously being valid and subsisting until set aside by a
competent court. As early as People vs. Aragon, this 1
Court has underscored:
“x x x Our Revised Penal Code is of recent enactment and
had the rule enunciated in Spain and in America requiring
judicial declaration of nullity of ab initio void marriages been
within the contemplation of the legislature, an express
provision to that effect would or should have been inserted
in the law. In its absence, we are bound by said rule of strict
interpretation.”
Unlike a voidable marriage which legally exists until
judicially annulled (and therefore not a defense in
bigamy if the second marriage were contracted prior to
the decree of annulment), the complete nullity however,
of a previously contracted marriage, being a total
nullity and inexistent, should be capable of being
independently raised by way of a defense in a criminal
case for bigamy. I see no incongruence between this rule
in criminal law and that of the Family Code, and each
may be applied within the respective spheres of
governance.
Accordingly, I vote to grant the petition.
Petition denied, judgment affirmed.
_______________

1100 Phil. 1033 (1957).

137
VOL. 337, AUGUST 1, 2000 137
Garcia vs. Court of Appeals
Note.—While it is true that bigamy is a public
offense, it is entirely incorrect to state that only the
State is the offended party in such case and, therefore,
only the State’s discovery of the crime could effectively
commence the running of the period of prescription
therefor. (Garcia vs. Court of Appeals, 266 SCRA
678 [1997])

——o0o——

© Copyright 2019 Central Book Supply, Inc. All rights

reserved.
 [No. L-10016. February 28, 1957]
THE PEOPLE OF THE PHILIPPINES, plaintiff and
appellee, vs.PROCESO S. ARAGON, defendant and
appellant.
MARRIAGE LAW; NULL AND VOID
MARRIAGES; JUDICIAL DECREE TO ESTABLISH
INVALIDITY, NOT NECESSARY.—A subsequent
marriage contracted by any person during the lifetime of
his first spouse is illegal and void from its performance,
and no judicial decree is necessary to establish its
invalidity as distinguished from mere annulable
marriages. (People vs. Mendoza, L-5877, September 28,
1954.)
APPEAL from a judgment of the Court of First Instance
of Cebu. Mejia, J.
The facts are stated in the opinion of the Court.
Solicitor General Ambrosio Padilla and Solicitor
Adolfo Brillantes for appellee.
Prospero V. Manuel, Fernando Moncada and Antonio
Abad Tornis for defendant and appellant.
LABRADOR, J.:
Appeal from a judgment of the Court of First Instance
of Cebu finding appellant guilty of bigamy. The facts are
not disputed and, as found by the trial court, are as
follows:
“On September 28, 1925, the accused, under the name of
Proceso Rosima, contracted marriage with a certain Maria
Gorrea in the Philippine Independent Church in Cebu
(Exhibits “1" and “1-A"). While his mariage with Maria
Gorrea was subsisting, the accused, under the name of
Proceso Aragon, contracted a canonical marriage with Maria
Faicol on August 27, 1934, in the Santa Teresita Church in
Iloilo City.
“The sponsors of the accused and Maria Faicol were
Eulogio Giroy, who was then an employee of the Office of the
Municipal Treasurer of Iloilo, and a certain Emilio Tomesa,
a clerk in the said office (Exhibit “A", and testimonies of
Eulogio Giroy and complainant Maria Faicol). After the said
marriage, the accused and Maria Faicol established
residence in Iloilo. As the accused was then a traveling
salesman, he commuted between Iloilo where he maintained
Maria Faicol, and Cebu where he maintained his
1034
1034 PHILIPPINE REPORTS ANNOTATED
People vs. Aragon
first wife, Maria Gorrea. Maria Gorrea died in Cebu City on
August 5, 1939 (Exhibit “2")- After Maria Gorrea’s death, and
seeing that the coast was clear in Cebu, the accused brought
Maria Faicol to Cebu City in 1940, where she worked as a
teachernurse.
“It would seem that the accused and Maria Faicol did not
live a happy marital life in Cebu, for it appears that in 1949
and 1950,. Maria Faicol suffered injuries to her eyes because
of physical maltreatment in the hands of the accused. On
January 22, 1953, the accused sent Maria Faicol to Iloilo,
allegedly for the purpose of undergoing treatment of her
eyesight. During her absence, the accused contracted a third
marriage with a certain Jesusa C. Maglasang on October 3,
1953, in Sibonga, Cebu. (See Exhibits “C", “D", “E" and “F").
“The accused admitted having contracted marriage with
Jesusa C. Maglasang in Sibonga, Cebu, on October 3, 1953.
Although the accused made an attempt to deny his previous
marriage with Maria Faicol, the Court, however, believes
that the attempt is futile for the fact of the said second
marriage was fully established not only by the certificate of
the said marriage, but also by the testimony of Maria Faicol
and of Eulogio Giroy, one of the sponsors of the wedding, and
the identification of the accused made by Maria Faicol. (See
Exhibits “A" and “B"; t.s.n. pp. 32–33, 40, 41, hearing of April
27, 1954)."
The Court of First Instance of Cebu held that even in
the absence of an express provision in Act No. 3613
authorizing the filing of an action for judicial
declaration of nullity of a marriage void ab
initio,defendant could not legally contract marriage
with Jesusa C. Maglasang without the dissolution of his
marriage to Maria Faicol, either by the death of the
latter or by the judicial declaration of the nullity of such
marriage, at the instance of the latter. Authorities given
for this ruling are 5 Viada, 5th edition, 651; 35
American Jurisprudence, Marriage, Sec. 46, p.
212; Bickford vs. Bickford, 74 N.H. 466, 69 A. 579.
Appellant in this Court relies on the case
of People vs. Mendoza, (95 Phil., 845; 50 Off. Gaz., [10]
4767). In this case the majority of this Court declared:
“The statutory provision (section 29 of the Marriage Law or
Act No. 3613) plainly makes a subsequent marriage
contracted by any
1035
VOL. 100, FEBRUARY 28, 1957
People vs. Aragon
person during the lifetime of his first spouse illegal and void
from its performance, and no judicial decree is necessary to
establish its invalidity, as distinguished from mere
annulable marriages. There is here no pretense that
appellant’s second marriage with Olga Lema was contracted
in the belief that the first spouse, Jovita de Asis, had been
absent for seven consecutive years or generally considered as
dead, so as to render said marriage valid until declared null
and void by a subsequent court.”
We are aware of the very weighty reasons expressed by
Justice Alex Reyes in his dissent in the case above-
quoted But these weighty reasons notwithstanding, the
very fundamental principle of strict construction of
penal laws in favor of the accused, which principle we
may not ignore, seems to justify our stand in the above-
cited case of People vs. Mendoza. Our Revised Penal
Code is of recent enactment and had the rule
enunciated in Spain and in America requiring judicial
declaration of nullity of ab initio void marriages been
within the contemplation of the legislature, an express
provision to that effect would or should have been
inserted in the law. In its absence, we are bound by said
rule of strict interpretation already adverted to.
It is to be noted that the action was instituted upon
complaint of the second wife, whose marriage with the
appellant was not renewed after the death of the first
wife and before the third marriage was entered into.
Hence, the last marriage was a valid one and
appellant’s prosecution for contracting this marriage
1035 can not prosper.
For the foregoing considerations, the judgment ap-,
pealed from is hereby reversed and the defendant-
appellant acquitted, with costs de oficio, without
prejudice to his prosecution for having contracted the
second bigamous marriage. So ordered.
Parás, C.J., Bengzon, Bautista Angelo, Reyes, J.B.
L.,Endencia, and Felix, JJ., concur.
REYES, A., J., dissenting:
I dissent. Judgment reversed.
1036
1036 PHILIPPINE REPORTS ANNOTATED _____________
Phil. Bank of Commerce vs. Santos
Dissenting in the case of People vs. Mendoza, replied on © Copyright 2019 Central Book Supply, Inc. All rights
by the majority, I there said: reserved.
“Article 349 of the Revised Penal Code punishes with prision
mayor ‘any person who shall contract a second or subsequent
marriage before the former marriage has been legally
dissolved.’
“Though the logician may say that where the former
marriage was void there would be nothing to dissolve, still it
is- not for the spouses to judge whether that marriage was
void or not. That judgment is reserved to the courts. As Viada
says, ‘La satidad e importancia del matrimonio no permite
que los casados juzguen por si mismos de su nulidad; esta ha
de someterse precisamente al juicio del Tribunal competente,
vs cuando este declare la nulidad del matrimonio, vs solo
entonces, se tendra por nulo; mientras no exista esta
declaración, la presuncion esta siempre a favor de la validez
del matrimonio, vs de consiguiente, el que contrae otro
segundo antes de dicha declaracion de nulidad, no puede
menos de incurrir la pena de este articulo.’ (3 Viada, Codigo
Penal, p. 275.)
“‘This is a sound opinion,’ says Mr. Justice Tuason in the
case of People vs. Jose Cotas, (CA), 40 Off. Gaz. 3145, ‘and is
in line with the well-known rule established in cases of
adultery, that “until by competent authority in a final
judgment the marriage contract is set aside, the offense to
the vows taken and the attack on the family exists.’ "
I may add that the construction placed by the majority
upon the law penalizing bigamy would frustrate the
legislative intent rather than give effect thereto.
Padilla and Montemayor, JJ., concur.