Beruflich Dokumente
Kultur Dokumente
In August, 1952, plaintiff went to Asingan, Pangasinan, and sought for his
Florencio Dumapias for appellant.
wife whom he met in the house of one Mrs. Malalang, defendant's
Numeriano Tanopo, Jr. for appellee.
godmother. She came along with him and both proceeded to the house of
Pedro Bugayong, a cousin of the plaintiff-husband, where they stayed and
lived for 2 nights and 1 day as husband and wife. Then they repaired to the
plaintiff's house and again passed the night therein as husband and wife.
FELIX, J.: On the second day, Benjamin Bugayong tried to verify from his wife the
truth of the information he received that she had committed adultery but
This is a case for legal separation filed in the Court of First Instance of Leonila, instead of answering his query, merely packed up and left, which
Pangasinan wherein on motion of the defendant, the case was dismissed. he took as a confirmation of the acts of infidelity imputed on her. After
The order of dismissal was appealed to the Court of Appeals, but said that and despite such belief, plaintiff exerted efforts to locate her and
Tribunal certified the case to the Court on the ground that there is failing to find her, he went to Bacarra, Ilocos Norte, "to soothe his
absolutely no question of fact involved, the motion being predicated on wounded feelings".
the assumption as true of the very facts testified to by plaintiff-husband.
On November 18, 1952, Benjamin Bugayong filed in the Court of First
The facts of the case abridgedly stated are as follows: Benjamin Bugayong, Instance of Pangasinan a complaint for legal separation against his wife,
a serviceman in the United States Navy, was married to defendant Leonila Leonila Ginez, who timely filed an answer vehemently denying the
Ginez on August 27, 1949, at Asingan, Pangasinan, while on furlough leave. averments of the complaint and setting up affirmative defenses. After the
Immediately after their marriage, the couple lived with their sisters who issues were joined and convinced that a reconciliation was not possible,
later moved to Sampaloc, Manila. After some time, or about July, 1951, the court set the case for hearing on June 9, 1953. Plaintiff's counsel
Leonila Ginez left the dwelling of her sister-in-law and informed her announced that he was to present 6 witnesses but after plaintiff-husband
husband by letter that she had gone to reside with her mother in Asingan, finished testifying in his favor, counsel for the defendant orally moved for
Pangasinan, from which place she later moved to Dagupan City to study in the dismissal of the complaint, but the Court ordered him to file a written
a local college there. motion to that effect and gave plaintiff 10 days to answer the same.
As early as July, 1951, Benjamin Bugayong began receiving letters from The motion to dismiss was predicted on the following grounds: (1)
Valeriana Polangco (plaintiff's sister-in-law) and some from anonymous Assuming arguendo the truth of the allegations of the commission of "acts
writers(which were not produced at the hearing) informing him of alleged of rank infidelity amounting to adultery", the cause of action, if any, is
acts of infidelity of his wife which he did not even care to mention. On barred by the statute of limitations; (2) That under the same
assumption, the act charged have been condoned by the plaintiff-husband; ART. 102. An action for legal separation cannot be filed except
and (3) That the complaint failed to state a cause of action sufficient for within one year from and after the date on which the plaintiff
this court to render a valid judgment. became cognizant of the cause and within five years from and
after the date when such cause occurred.
The motion to dismiss was answered by plaintiff and the Court, considering
only the second ground of the motion to dismiss i. e., condonation, As the only reason of the lower Court for dismissing the action was the
ordered the dismissal of the action. After the motion for reconsideration alleged condonation of the charges of adultery that the plaintiff-husband
filed by plaintiff was denied, the case was taken up for review to the Court had preferred in the complaint against his wife, We will disregard the other
of Appeals, appellant's counsel maintaining that the lower court erred: 2 grounds of the motion to dismiss, as anyway they have not been raised in
appellant's assignment of errors.
(a) In so prematurely dismissing the case;
Condonation is the forgiveness of a marital offense constituting a ground
(b) In finding that there were condonation on the part of plaintiff- for legal separation or, as stated in I Bouver's Law Dictionary, p. 585,
appellant; and condonation is the "conditional forgiveness or remission, by a husband or
wife of a matrimonial offense which the latter has committed". It is to be
(c) In entertaining condonation as a ground for dismissal inasmuch noted, however, that in defendant's answer she vehemently and vigorously
as same was not raised in the answer or in a motion to dismiss. denies having committed any act of infidelity against her husband, and
even if We were to give full weight to the testimony of the plaintiff, who
was the only one that had the chance of testifying in Court and link such
As the questions raised in the brief were merely questions of law, the
evidence with the averments of the complaint, We would have to conclude
Court of Appeals certified the case to Superiority.
that the facts appearing on the record are far from sufficient to establish
the charge of adultery, or, as the complaint states, of "acts of rank
The Civil Code provides: infidelity amounting to adultery" preferred against the defendant.
Certainly, the letter that plaintiff claims to have received from his sister-in-
ART. 97. A petition for legal separation may be filed: law Valeriana Polangco, which must have been too vague and indefinite as
to defendant's infidelity to deserve its production in evidence; nor the
(1) For adultery on the part of the wife and for concubinage for anonymous letters which plaintiff also failed to present; nor the alleged
the part of the husband as defined on the Penal Code; or letter that, according to plaintiff, his wife addressed to him admitting that
she had been kissed by one Eliong, whose identity was not established and
(2) An attempt by one spouse against the life of the other. which admission defendant had no opportunity to deny because the
motion to dismiss was filed soon after plaintiff finished his testimony in
ART. 100. The legal separation may be claimed only by the Court, do not amount to anything that can be relied upon.
innocent spouse, provided there has been no condonation of or
consent to the adultery or concubinage. Where both spouses are But this is not a question at issue. In this appeal, We have to consider
offenders, a legal separation cannot by either of them. Collusion plaintiff's line of conduct under the assumption that he really believed his
between the parties to obtain legal separation shall cause the wife guilty of adultery. What did he do in such state of mind. In August,
dismissal of the petition. 1952, he went to Pangasinan and looked for his wife and after finding her
they lived together as husband and wife for 2 nights and 1 day, after which Q. On the next night, when you slept in your own house, did you
he says that he tried to verify from her the truth of the news he had about sleep together also as husband and wife? — A. Yes, sir. (p. 19.
her infidelity, but failed to attain his purpose because his wife, instead of t.s.n.)
answering his query on the matter, preferred to desert him, probably
enraged for being subjected to such humiliation. And yet he tried to locate Q. When was that? — A. That was in August, 1952. (p. 19 t.s.n.)
her, though in vain. Now, do the husband's attitude of sleeping with his
wife for 2 nights despite his alleged belief that she was unfaithful to him, Q. How many nights did you sleep together as husband and wife?
amount to a condonation of her previous and supposed adulterous acts? In — A. Only two nights. (p. 19, t.s.n.)
the order appealed from, the Court a quo had the following to say on this
point:
The New Civil Code of the Philippines, in its Art. 97, says:
Q. Now Mr. Bugayong, you have filed this action for legal
(1) For adultery on the part of the wife and concubinage on the
separation from your wife. Please tell this Hon. Court why you
part of the husband as defined on the Penal Code.
want to separate from your wife? — A. I came to know that my
wife is committing adultery, I consulted the chaplain and he told
and in its Art. 100 it says:lawphil.net
me to consult the legal adviser. (p. 11, t.s.n.)
There is no merit in the contention of appellant that the lower court erred
in entertaining condonation as a ground for dismissal inasmuch as same
was not raised in the answer or in a motion to dismiss, because in the
second ground of the motion to dismiss. It is true that it was filed after the
answer and after the hearing had been commenced, yet that motion
serves to supplement the averments of defendant's answer and to adjust
the issues to the testimony of plaintiff himself (section 4, Rule 17 of the
Rules of Court).
Wherefore, and on the strength of the foregoing, the order appealed from
is hereby affirmed, with costs against appellant. It is so ordered.
A.M. No. 02-11-11-SC March 4, 2003 (a) Repeated physical violence or grossly abusive
conduct directed against the petitioner, a common
child, or a child of the petitioner;
RE: PROPOSED RULE ON LEGAL SEPARATION
(b) Physical violence or moral pressure to compel
RESOLUTION the petitioner to change religious or political
affiliation;
Acting on the letter of the Chairman of the Committee on
Revision of the Rules of Court submitting for this Court's (c) Attempt of respondent to corrupt or induce the
consideration and approval the Proposed Rule on Legal petitioner, a common child, or a child of the
Separation, the Court Resolved to APPROVED the same. petitioner, to engage in prostitution, or connivance
in such corruption or inducement;
The Rule shall take effect on March 15, 2003 following its
publication in a newspaper of general circulation not later than (d) Final judgment sentencing the respondent to
March 7, 2003 imprisonment of more than six years, even if
pardoned;
March 4, 2003
(e) Drug addiction or habitual alcoholism of the
Davide Jr. C.J., Bellosillo, Puno, Vitug, Mendoza, Panganiban, respondent;
Quisumbing, Sandoval Gutierrez, Carpio, Austria-Martinez,
Carpio-Morales, Callejo, Sr. and Azcuna, JJ. (f) Lesbianism or homosexuality of the
Ynares-Santiago, on leave, respondent;
Corona, officially on leave.
(g) Contracting by the respondent of a subsequent
RULE ON LEGAL SEPARATION bigamous marriage, whether in or outside the
Philippines;
Section 1. Scope. - This Rule shall govern petitions for legal
separation under the Family Code of the Philippines. (h) Sexual infidelity or perversion of the
respondent;
The Rules of Court shall apply suppletorily.
(i) Attempt on the life of petitioner by the
Section 2. Petition. - (a) Who may and when to file. - (1) A respondent; or
petition for legal separation may be filed only by the husband or
(j) Abandonment of petitioner by respondent Failure to comply with the preceding
without justifiable cause for more than one year. requirements may be a ground for immediate
dismissal of the petition.
(b) Contents and form. - The petition for legal separation
shall: (c) Venue. - The petition shall be filed in the Family Court
of the province or city where the petitioner or the
(1) Allege the complete facts constituting the respondent has been residing for at least six months prior
cause of action. to the date of filing "or in The case of a non-resident
respondent, where he may be found in the Philippines, at
(2) State the names and ages of the common the election of the petitioner.
children of the parties, specify the regime
governing their property relations, the properties Section 3. Summons. - The service of summons shall be
involved, and creditors, if any. If there is no governed by Rule 14 of the Rules of Court and by the following
adequate provision in a written agreement rules:
between the parties, the petitioner may apply for a
provisional order for spousal support, custody and (a) Where the respondent cannot be located at his given
support of common children, visitation rights, address or his whereabouts are unknown and cannot be
administration of community or conjugal property, ascertained by diligent inquiry, service of summons may,
and other similar matters requiring urgent action, by leave of court, be effected upon him by publication
once a week for two consecutive weeks in a newspaper of
(3) Be verified and accompanied by a certification general circulation in the Philippines and in such place as
against forum shopping. The verification and the court may order. In addition, a copy of the summons
certification must be personally signed by the shall be served on respondent at his last known address
petitioner. No petition may be filed solely by by registered mail or by any other means the court may
counsel or through an attorney-in-fact. If the deem sufficient.
petitioner is in a foreign country, the verification
and certification against forum shopping shall be (b) The summons to be published shall be contained in an
authenticated by the duly authorized officer of the order of the court with the following data; (1) title of the
Philippine embassy or legation, consul general, case; (2) docket number; (3) nature of the petition; (4)
consul or vice-consul or consular agent in said principal grounds of the petition and the reliefs prayed for,
country and (5) a directive for respondent to answer within thirty
days from the last issue of publication.
(4) Be filed in six copies. The petitioner shall,
within five days from such filing, furnish a copy of Section 4. Motion to Dismiss. - No motion to dismiss the petition
the petition to the City or Provincial Prosecutor shall be allowed except on the ground of lack of jurisdiction over
and the creditors, if any, and submit to the court the subject matter or over the parties; provided, however, that any
proof of such service within the same period.
other ground that might warrant a dismissal of the case may be Section 7. Social Worker. - The court may require a social worker
raised as an affirmative defense in an answer. to conduct a case study and to submit the corresponding report at
least three days before the pre-trial. The court may also require a
Section 5. Answer. - (a) The respondent shall file his answer case study at any stage of the case whenever necessary,
within fifteen days from receipt of summons, or within thirty days
from the last issue of publication in case of service of summons Section 8. Pre-trial. -
by publication. The answer must be verified by respondent
himself and not by counsel or attorney-in-fact. (a) Pre-trial mandatory.-A pre-trial is mandatory. On
motion or motu proprio, the court shall set the pre-trial
(b) If the respondent fails to file an answer, the court shall after the last pleading has been served and filed, or upon
not declare him in default. receipt of the report of the public prosecutor that no
collusion exists between the parties on a date not earlier
(c) Where no answer is filed/or if the answer does not than six months from date of the filing of the petition.
tender an issue the court shall order the public prosecutor
to investigate whether collusion exists between the (b) Notice of Pre-trial.-(1) The notice of pre-trial shall
parties. contain:
Section 6. Investigation Report of Public Prosecutor. - (a) Within (a) the date of pre-trial conference; and
one one month after receipt of the court order mentioned in
paragraph (c) of the preceeding section, the public prosecutor (b) an order directing the parties to file and
shall submit a report to the court on whether the parties are in serve their respective pre-trial briefs in
collusion and serve copies on the parties and their respective such manner as shall ensure the receipt
counsels, if any. thereof by the adverse party at least three
days before the date of pre-trial.
(b) If the public prosecutor finds that collusion exists, he
shall state the basis thereof in his report. The parties shall (2) The notice shall be served separately on the
file their respective comments on the finding of collusion parties and their respective counsels as well as on
within ten days from receipt of copy of the report. The the public prosecutor. It shall be their duty to
court shall set the report for hearing and if convinced that appear personally at the pre-trial.
parties are in collusion,-it shall dismiss the petition.
(3) Notice of pre-trial shall be sent to the
(c) If the public prosecutor reports that no collusion exists, respondent even if he fails to file an answer. In
the court shall set the case for pre-trial. It shall be the duty case of summons by publication and the
of the public prosecutor to appear for the State at the pre- respondent failed to file his answer, notice of pre-
trial. trial shall be sent to respondent at his last known
address.
Section 9. Contents of pre-trial brief. - The pre-trial brief shall any collusion between the parties/ If there is no collusion
contain the following: the court shall require the public prosecutor to intervene
for the State during the trial on the.merits to prevent
(1) A statement of the willingness of the parties to enter suppression or fabrication of evidence.
into agreements as may be allowed by law, indicating the
desired terms thereof; Section 11. Pre-trial conference. - At the pre-trial conference, the
court may refer the issues to a mediator who shall assist the
(2) A concise statement of their respective claims together parties in reaching an agreement on matters not prohibited by
with the applicable laws and authorities; law.
(3) Admitted facts and proposed stipulations of facts, as The mediator shall render a report within one month from
well as the disputed factual and legal issues; referral which, for good reasons, the court may extend for a
period not exceeding one month.
(4) All the evidence to be presented, including expert
opinion, if any, briefly stating or describing the nature and In case mediation is not availed of or where it fails, the
purpose thereof; court shall proceed with the pre-trial conference, on which
occasion it shall consider the advisability of receiving expert
(5) The number and names of the witnesses and their testimony and such other matters as may aid in the prompt
respective affidavits; and disposition of the petition.
(6) Such other matters as the court may require. Section 12. Pre-trial order. - (a) The proceedings in the pre-trial
shall be recorded. Upon termination of the pre-trial, the court shall
issue a pre-trial order which shall recite in detail the matters taken
Failure to file the pre-trial brief or to comply with its required
up in the conference, the action taken thereon, the amendments
contents shall have the same effect as failure to appear at the
allowed on the pleadings, and, except as to the ground of legal
pre-trial under the succeeding section.
separation, the agreements or admissions made by the parties on
any of the matters considered, including any provisional order
Section 10. Effect of failure to appear at the pre-trial. - (1) If the that may be necessary or agreed upon by the parties.
petitioner fails to appear personally, the case shall be dismissed
unless his counsel or a duly authorized representative appears in
(b) Should the action proceed to trial, the order shall
court and proves a valid excuse for the non-appearance of the
contain a recital of the following:
petitioner.
(1) Facts undisputed, admitted, and those which
(2) If the respondent filed his answer but fails to appear,
need not be proved subject to Section 13 of this
the court shall proceed with the pre-trial and require the
Rule;
public prosecutor to investigate the non-appearance of
the respondent and submit within fifteen days a report to
the court stating whether his non-appearance is due to (2) Factual and legal issues to be litigated;
(3) Evidence, including objects and documents, (6) Future legitime.
that have been marked and will be presented;
Section 14. Trial. - (a) The presiding judge shall personally
(4) Names of witnesses who will be presented and conduct the trial of the case. No delegation of the reception of
their testimonies in the form of affidavits; and evidence to a commissioner shall be allowed except as to matters
involving property relations of the spouses.
(5) Schedule of the presentation of evidence.
(b) The grounds for legal separation must be proved. No
The pre-trial order shall also contain a directive to judgment on the pleadings, summary judgment, or
the public prosecutor to appear for the State and take confession of judgment shall be allowed.
steps to prevent collusion between the parties at any
stage of the proceedings and fabrication or suppression (c) The court may order the exclusion from the courtroom
of evidence during the trial on the merits. of all persons, including members of the press, who do
not have a direct interest in the case. Such an order may
(c) The parties shall not be allowed to raise issues or be made if the court determines on the record othat
present witnesses and evidence other than those stated requiring a party to testify in open court would not
in the pre-trial order. The order shall control the trial of the enhance the ascertainment of truth; would cause to the
case unless modified by the court to prevent manifest party psychological harm or inability to effectively
injustice. communicate due to embarrassment, fear, or timidity;
would violate the party's right to privacy; or would be
(d) The parties shall have five days from receipt of the offensive to decency
pre-trial order to propose corrections or modifications.
(d) No copy shall be taken nor any examination or perusal
Section 13. Prohibited compromise. - The court shall not allow of the records of the case or parts thereof be made by any
compromise on prohibited matters, such as the following: person other than a party or counsel of a party, except by
order of the court.
(1) The civil status of persons;
Section 15. Memoranda. - The court may require the parties and
the public prosecutor to file their respective memoranda in
(2) The validity of a marriage or of a legal separation;
support of their claims within fifteen days from the date the trial is
terminated. No other pleadings or papers may be submitted
(3) Any ground lor legal separation; without leave of court. After the lapse of the period herein
provided, the case will be considered submitted for decision, with
(4) Future support; or without the memoranda.
(5) The jurisdiction of courts; and Section 16. Decision. - (a) The court shall deny the petition on
any of the following grounds:
(1) The aggrieved party has condoned the offense (3) The offending spouse is disqualified from
or act complained of or has consented to the inheriting from the innocent spouse by intestate
commission of the offense or act complained of; succession, and provisions in favor of the
offending spouse made in the will of the innocent
(2) There is connivance in the commission of the spouse are revoked by operation of law.
offense-or act constituting the ground for legal
separation; (d) The parties, including the Solicitor General and the
public prosecutor, shall be served with copies of the
(3) Both parties have given ground for legal decision personally or by registered mail. If the
separation; respondent summoned by publication failed to appear in
the action, the dispositive part of the decision shall also
(4) There is collusion between the parties to be published once in a newspaper of general circulation.
obtain the decree of legal separation; or
Section 17. Appeal. -
(5) The action is barred by prescription.
(a) Pre-condition. - No appeal from the decision shall be
(b) If the court renders a decision granting the petition, it allowed unless the appellant has filed a motion for
shall declare therein that the Decree of Legal Separation reconsideration or new trial within fifteen days from notice
shall be issued by the court only after full compliance with of judgment.
liquidation under the Family Code.
(b) Notice of Appeal - An aggrieved party or the Solicitor
However, in the absence of any property of.the General may appeal from the decision by filing a Notice of
parties, the court shall forthwith issue a Decree of Legal Appeal within fifteen days from notice of denial of the
Separation which shall be registered in the Civil Registry motion for reconsideration or new trial. The appellant shall
where the marriage was recorded and in the Civil Registry serve a copy of the notice of appeal upon the adverse
where the Family Court granting the legal separation is parties.
located.
Section 18. Liquidation, partition and distribution, custody, and
(c) The decision shall likewise declare that: support of minor children. - Upon entry of the judgment granting
the petition, or, in case of appeal, upon receipt of the entry of
judgment of the appellate court granting the petition, the Family
(1) The spouses are entitled to live separately
Court, on motion of either party, shall proceed with the liquidation,
from each other but the marriage bond is not
partition and distribution of the properties of the spouses,
severed;
including custody and support of common children, under the
Family Code unless such matters had been adjudicated in
(2) The obligation of mutual support between the previous judicial proceedings.
spouses ceases; and
Section 19. Issuance of Decree of Legal Separation. - (a) The and shall serve as notice to third persons concerning the
court shall issue the Decree of Legal Separation after: properties of petitioner and respondent.
(1) registration of the entry of judgment granting Section 21. Effect of death of a party; duty of the Family Court or
the petition tor legal separation in the Civil Appellate Court. - (a) In case a party dies at any stage of me
Registry where the marriage was celebrated and proceedings before the entry of judgment, the court shall order
in the Civil Registry where the Family Court is the case closed and terminated without prejudice to the
located; and settlement of estate proper proceedings in the regular courts.
(2) registration of the approved partition and (b) If the party dies after the entry of judgment, the same
distribution of the properties of the spouses, in the shall be binding upon the parties and their successors in
proper Register of Deeds where the real interest in the settlement of the estate in the regular
properties are located. courts.
(b) The court shall quote in the Decree the dispositive Section 22. Petition for revocation of donations. - (a) Within five
portion of the judgment entered and attach to the Decree (5) years from the date the decision granting the petition for legal
the approved deed of partition. separation has become final, the innocent spouse may file a
petition under oath the same proceeding for legal separation to
Section 20. Registration and publication of the Decree of Legal revoke the donations in favor of the offending spouse.
Separation; decree as best evidence. -
(b)The revocation of the donations shall be recorded in
(a) Registration of decree.-The prevailing party shall the Register of Deeds of Deeds in the places where the
cause the registration of the Decree in the Civil Registry properties are located.
where the marriage was registered, in the Civil Registry of
the place where the Family Court is situated, and in the (c)Alienations, liens, and encumbrances registered in
National Census and Statistics Office. He shall report to good faith. before the recording of the petition for
the court compliance with this requirement within thirty revocation in the registries of property shall be respected.
days iron receipt of the copy of the Decree.
(d)After the issuance of the Decree of Legal Separation,
(b) Publication of decree.-- In case service of summons the innocent spouse may revoke the designation of the
was made by publication, the parties shall cause the offending spouse as a beneficiary in any insurance policy
publication of the Decree once in a newspaper of general even if such designation be stipulated as irrevocable. The
circulation. revocation or change shall take effect upon written
notification thereof to the insurer.
(c) Best evidence.-The registered Decree shall be the
best evidence to prove the legal separation of the parties Section 23. Decree of Reconciliation. - (a) If the spouses had
reconciled, a joint manifestation under oath, duly signed by the
spouses, may be filed in the same proceeding for legal (f) The decree of reconciliation shall be recorded in the
separation. Civil Registries where the marriage and the Decree had
been registered.
(b) If the reconciliation occurred while the proceeding for
legal separation is pending, the court shall immediately Section 24. Revival of property regime or adoption of another. -
issue an order terminating the proceeding.
(a) In case of reconciliation under Section 23, paragraph
(c) If the reconciliation occurred after the rendition of the (c) above, the parties shall file a verified motion for revival
judgment granting the petition for legal separation but of regime of property relations or the adoption of another
before the issuance of the Decree, the spouses shall regime of property relations in the same proceeding for
express in their manifestation whether or not they agree legal separation attaching to said motion their agreement
to revive the former regime of their property relations or for the approval of the court.
choose a new regime.
(b) The agreement which shall be verified shall specify the
The court shall immediately issue a Decree of following:
Reconciliation declaring that the legal separation
proceeding is set aside and specifying the regime of (1) The properties to be contributed to the
property relations under which the spouses shall be restored or new regime;
covered.
(2) Those to be retained as separate properties of
(d) If the spouses reconciled after the issuance of the each spouse; and
Decree, the court, upon proper motion, shall issue a
decree of reconciliation declaring therein that the Decree (3) The names of all their known creditors, their
is set aside but the separation of property and any addresses, and the amounts owing to each.
forfeiture of the share of the guilty spouse already
effected subsists, unless the spouses have agreed to
(c) The creditors shall be furnished with copies of the
revive their former regime of property relations or adopt a
motion and the agreement.
new regime.
(d) The court shall require the spouses to cause the
(e) In case of paragraphs (b), (c), and (d). if the reconciled
publication of their verified motion for two consecutive
spouses choose to adopt a regime of property relations
weeks in a newspaper of general circulation.
different from that which they had prior to the filing of the
petition for legal separation, the spouses shall comply
with Section 24 hereof. (e) After due hearing, and the court decides to grant the
motion, it shall issue an order directing the parties to
record the order in the proper registries of property within
thirty days from receipt of a copy of the order and submit
proof of compliance within the same period.
Section 25. Effectivity. - This Rule shall take effect on March
15,2003 following its publication in a newspaper of general
circulation not later than March 7, 2003.
ARTICLE 58-62 On 18 August 1953, Carmen O. Lapuz Sy filed a petition
for legal separation against Eufemio S. Eufemio, alleging,
SECTION 19. Legal Separation Cases. – In cases of legal in the main, that they were married civilly on 21
separation, where violence as specified in this Act is alleged, September 1934 and canonically on 30 September 1934;
Article 58 of the Family Code shall not apply. The court shall that they had lived together as husband and wife
proceed on the main case and other incidents of the case as continuously until 1943 when her husband abandoned
soon as possible. The hearing on any application for a her; that they had no child; that they acquired properties
protection order filed by the petitioner must be conducted during their marriage; and that she discovered her
within the mandatory period specified in this Act. husband cohabiting with a Chinese woman named Go
Hiok at 1319 Sisa Street, Manila, on or about March 1949.
_____________________________________________________________ She prayed for the issuance of a decree of legal
_________ separation, which, among others, would order that the
defendant Eufemio S. Eufemio should be deprived of his
G.R. No. L-30977 January 31, 1972 share of the conjugal partnership profits.
CARMEN LAPUZ SY, represented by her substitute In his second amended answer to the petition, herein
MACARIO LAPUZ, petitioner-appellant, respondent Eufemio S. Eufemio alleged affirmative and
vs. special defenses, and, along with several other claims
EUFEMIO S. EUFEMIO alias EUFEMIO SY involving money and other properties, counter-claimed
UY, respondent-appellee. for the declaration of nullity ab initio of his marriage with
Carmen O. Lapuz Sy, on the ground of his prior and
Jose W. Diokno for petitioner-appellant. subsisting marriage, celebrated according to Chinese law
and customs, with one Go Hiok, alias Ngo Hiok.
D. G. Eufemio for respondent-appellee.
Issues having been joined, trial proceeded and the
parties adduced their respective evidence. But before the
trial could be completed (the respondent was already
REYES J.B.L., J.:p scheduled to present surrebuttal evidence on 9 and 18
June 1969), petitioner Carmen O. Lapuz Sy died in a
Petition, filed after the effectivity of Republic Act 5440, for review by certiorari of vehicular accident on 31 May 1969. Counsel for petitioner
an order, dated 29 July 1969, of the Juvenile and Domestic Relations Court of duly notified the court of her death.
Manila, in its Civil Case No. 20387, dismissing said case for legal separation on
the ground that the death of the therein plaintiff, Carmen O. Lapuz Sy, which
occurred during the pendency of the case, abated the cause of action as well as On 9 June 1969, respondent Eufemio moved to dismiss
the action itself. The dismissal order was issued over the objection of Macario
Lapuz, the heir of the deceased plaintiff (and petitioner herein) who sought to the "petition for legal separation" on two (2) grounds,
1
substitute the deceased and to have the case prosecuted to final judgment. namely: that the petition for legal separation was filed
beyond the one-year period provided for in Article 102 of
the Civil Code; and that the death of Carmen abated the When an action for legal separation is
action for legal separation. converted by the counterclaim into one for
a declaration of nullity of a marriage, does
On 26 June 1969, counsel for deceased petitioner moved the death of a party abate the proceedings?
to substitute the deceased Carmen by her father, Macario
Lapuz. Counsel for Eufemio opposed the motion. The issue as framed by petitioner injects into it a
supposed conversion of a legal separation suit to one for
On 29 July 1969, the court issued the order under review, declaration of nullity of a marriage, which is without
dismissing the case. In the body of the order, the court
2 basis, for even petitioner asserted that "the respondent
stated that the motion to dismiss and the motion for has acquiesced to the dismissal of his counterclaim"
substitution had to be resolved on the question of (Petitioner's Brief, page 22). Not only this. The petition for
whether or not the plaintiff's cause of action has legal separation and the counterclaim to declare the
survived, which the court resolved in the negative. nullity of the self same marriage can stand independent
Petitioner's moved to reconsider but the motion was and separate adjudication. They are not inseparable nor
denied on 15 September 1969. was the action for legal separation converted into one for
a declaration of nullity by the counterclaim, for legal
After first securing an extension of time to file a petition separation pre-supposes a valid marriage, while the
for review of the order of dismissal issued by the juvenile petition for nullity has a voidable marriage as a pre-
and domestic relations court, the petitioner filed the condition.
present petition on 14 October 1969. The same was
given due course and answer thereto was filed by The first real issue in this case is: Does the death of the
respondent, who prayed for the affirmance of the said plaintiff before final decree, in an action for legal
order.3 separation, abate the action? If it does, will abatement
also apply if the action involves property rights? .
Although the defendant below, the herein respondent
Eufemio S. Eufemio, filed counterclaims, he did not An action for legal separation which involves nothing
pursue them after the court below dismissed the case. He more than the bed-and-board separation of the spouses
acquiesced in the dismissal of said counterclaims by (there being no absolute divorce in this jurisdiction) is
praying for the affirmance of the order that dismissed not purely personal. The Civil Code of the Philippines
only the petition for legal separation but also his recognizes this in its Article 100, by allowing only the
counterclaim to declare the Eufemio-Lapuz marriage to innocent spouse (and no one else) to claim legal
be null and void ab initio. separation; and in its Article 108, by providing that the
spouses can, by their reconciliation, stop or abate the
But petitioner Carmen O. Lapuz Sy (through her self- proceedings and even rescind a decree of legal
assumed substitute — for the lower court did not act on separation already rendered. Being personal in character,
the motion for substitution) stated the principal issue to it follows that the death of one party to the action causes
be as follows:
the death of the action itself — actio personalis moritur 45 Am. Rep. 717; Begbie v. Begbie, 128 Cal.
cum persona. 155, 60 Pac. 667, 49 L.R.A. 141. 5
... When one of the spouses is dead, there is The same rule is true of causes of action and suits for
no need for divorce, because the marriage separation and maintenance (Johnson vs. Bates, Ark. 101
is dissolved. The heirs cannot even continue SW 412; 1 Corpus Juris 208).
the suit, if the death of the spouse takes
place during the course of the suit (Article A review of the resulting changes in property relations
244, Section 3). The action is absolutely between spouses shows that they are solely the effect of
dead (Cass., July 27, 1871, D. 71. 1. 81; the decree of legal separation; hence, they can not
Cass. req., May 8, 1933, D. H. 1933, survive the death of the plaintiff if it occurs prior to the
332.") .
4
decree. On the point, Article 106 of the Civil Code
provides: .
Marriage is a personal relation or status,
created under the sanction of law, and an Art. 106. The decree of legal separation
action for divorce is a proceeding brought shall have the following effects:
for the purpose of effecting a dissolution of
that relation. The action is one of a personal (1) The spouses shall be entitled to live
nature. In the absence of a statute to the separately from each other, but the
contrary, the death of one of the parties to marriage bonds shall not be severed; .
such action abates the action, for the
reason that death has settled the question
(2) The conjugal partnership of gains or the
of separation beyond all controversy and absolute conjugal community of property
deprived the court of jurisdiction, both over
shall be dissolved and liquidated, but the
the persons of the parties to the action and offending spouse shall have no right to any
of the subject-matter of the action itself. For
share of the profits earned by the
this reason the courts are almost partnership or community, without
unanimous in holding that the death of
prejudice to the provisions of article 176;
either party to a divorce proceeding, before
final decree, abates the action. 1 Corpus
(3) The custody of the minor children shall
Juris, 208; Wren v. Moss, 2 Gilman, 72;
Danforth v. Danforth, 111 Ill. 236; Matter of be awarded to the innocent spouse, unless
otherwise directed by the court in the
Grandall, 196 N.Y. 127, 89 N.E. 578; 134
Am St. Rep. 830; 17 Ann. Cas. 874; Wilcon interest of said minors, for whom said court
may appoint a guardian;
v. Wilson, 73 Mich, 620, 41 N.W. 817;
Strickland v. Strickland, 80 Ark. 452, 97 S.
W. 659; McCurley v. McCurley, 60 Md. 185, (4) The offending spouse shall be
disqualified from inheriting from the
innocent spouse by intestate succession. SECTION 1. Actions which may and which
Moreover, provisions in favor of the may not be brought against executor or
offending spouse made in the will of the administrator. No action upon a claim for
innocent one shall be revoked by operation the recovery of money or debt or interest
of law. thereon shall be commenced against the
executor or administrator; but actions to
From this article it is apparent that the right to the recover real or personal property, or an
dissolution of the conjugal partnership of gains (or of the interest therein, from the estate, or to
absolute community of property), the loss of right by the enforce a lien thereon, and actions to
offending spouse to any share of the profits earned by recover damages for an injury to person or
the partnership or community, or his disqualification to property, real or personal, may be
inherit by intestacy from the innocent spouse as well as commenced against him.
the revocation of testamentary provisions in favor of the
offending spouse made by the innocent one, are all rights Neither actions for legal separation or for annulment of
and disabilities that, by the very terms of the Civil Code marriage can be deemed fairly included in the
article, are vested exclusively in the persons of the enumeration..
spouses; and by their nature and intent, such claims and
disabilities are difficult to conceive as assignable or A further reason why an action for legal separation is
transmissible. Hence, a claim to said rights is not a claim abated by the death of the plaintiff, even if property
that "is not thereby extinguished" after a party dies, rights are involved, is that these rights are mere effects
under Section 17, Rule 3, of the Rules of Court, to of decree of separation, their source being the decree
warrant continuation of the action through a substitute of itself; without the decree such rights do not come into
the deceased party. existence, so that before the finality of a decree, these
claims are merely rights in expectation. If death
Sec. 17. Death of party. After a party dies supervenes during the pendency of the action, no decree
and the claim is not thereby extinguished, can be forthcoming, death producing a more radical and
the court shall order, upon proper notice, definitive separation; and the expected consequential
the legal representative of the deceased to rights and claims would necessarily remain unborn.
appear and to be substituted for the
deceased, within a period of thirty (30) As to the petition of respondent-appellee Eufemio for a
days, or within such time as may be declaration of nullity ab initio of his marriage to Carmen
granted... Lapuz, it is apparent that such action became moot and
academic upon the death of the latter, and there could
The same result flows from a consideration of the be no further interest in continuing the same after her
enumeration of the actions that survive for or against demise, that automatically dissolved the questioned
administrators in Section 1, Rule 87, of the Revised Rules union. Any property rights acquired by either party as a
of Court: result of Article 144 of the Civil Code of the Philippines 6
could be resolved and determined in a proper action for
partition by either the appellee or by the heirs of the
appellant.
Petitioner's contention is not correct. The provisions last quoted did not clearly state, as the
1985 Rules do, that the civil action to be suspended, with
In Jerusalem, the Court's statement to the effect that or upon the filing of a criminal action, is one which is "to
suspension of an action for legal separation would be enforce the civil liability arising from the offense". In
proper if an allegation of concubinage is made therein, other words, in view of the amendment under the 1985
relied solely on Sec. 1 of Rule 107 of the then provisions Rules on Criminal Procedure, a civil action for legal
of the Rules of Court on criminal procedure, to wit: separation, based on concubinage, may proceed ahead
of, or simultaneously with, a criminal action for
Sec. 1. Rules governing civil actions arising concubinage, because said civil action is not one "to
from offenses.-Except as otherwise enforce the civil liability arising from the offense" even if
provided by law, the following rules shall he both the civil and criminal actions arise from or are
observed: related to the same offense. Such civil action is one
intended to obtain the right to live separately, with the
legal consequences thereof, such as, the dissolution of
(a) When a criminal action is instituted, the
civil action for recovery of civil liability the conjugal partnership of gains, custody of offsprings,
support, and disqualification from inheriting from the
arising from the offense charged is
impliedly instituted with the criminal action, innocent spouse, among others. As correctly pointed out
by the respondent Judge in his Order dated 5 August
unless the offended party expressly waives
the civil action or reserves his right to 1987:
institute it separately;
The unreported case of JERUSALEM vs. Hon.
(b) Criminal and civil actions arising from Roberto Zurbano, Judge of CFI of Antique, et
al., L-11935, April 24, 1959 (105 Phil. 1277)
the same offense may be instituted
separately, but after the criminal action has is not controlling. It applied paragraph C of
Sec. 1, of then Rule 107 of the Rules of
been commenced the civil action can not be
instituted until final judgment has been Court, which reads:
rendered in the criminal action;
After a criminal action has
(c) After a criminal action has been been commenced, no civil
action arising from the same
commenced, no civil action arising from the
same offense can be prosecuted and the offense can be
prosecuted and the same
same shall be suspended in whatever stage
it may be found until final judgment in the shall be suspended, in
whatever stage it may be
found, until final judgment in allowed and had for its grounds the same grounds for
the criminal proceeding has legal separation under the New Civil Code, with the
been rendered. (Emphasis requirement, under such former law, that the guilt of
supplied) defendant spouses had to be established by final
judgment in a criminal action. That requirement has not
The governing rule is now Sec. 3, Rule 111, 1985 Rules been reproduced or adopted by the framers of the
on Criminal Procedure which refers to "civil actions to present Civil Code, and the omission has been uniformly
enforce the civil liability arising from the offense" as accepted as a modification of the stringent rule
contemplated in the first paragraph of Section 1 of Rule in Francisco v. Tayao.5
recover civil liability, in the main, but is aimed at the support pendente lite ordered as too onerous, he can
conjugal rights of the spouses and their relations to each always file a motion to modify or reduce the same. 7
SO ORDERED.
ARTICLE 68
ART 266-A OF RPC, as amended by RA 8353 "1) By a man who shall have carnal knowledge
of a woman under any of the following
REPUBLIC ACT NO. 8353 circumstances:
AN ACT EXPANDING THE DEFINITION OF THE "a) Through force, threat, or intimidation;
CRIME OF RAPE, RECLASSIFYING THE SAME AS A
CRIME AGAINST PERSONS, AMENDING FOR THE "b) When the offended party is deprived of reason
PURPOSE ACT NO. 3815, AS AMENDED, or otherwise unconscious;
OTHERWISE KNOWN AS THE REVISED PENAL
CODE, AND FOR OTHER PURPOSES. "c) By means of fraudulent machination or grave
abuse of authority; and
Be it enacted by the Senate and House of "d) When the offended party is under twelve (12)
Representatives of the Philippines in Congress years of age or is demented, even though none of
assembled: the circumstances mentioned above be present.
"2) By any person who, under any of the
Section 1. Short Title. - This Act shall be known as circumstances mentioned in paragraph 1 hereof,
"The Anti-Rape Law of 1997." shall commit an act of sexual assault by inserting
his penis into another person's mouth or anal
Sec. 2. Rape as a Crime Against Persons. - The orifice, or any instrument or object, into the
crime of rape shall hereafter be classified as a genital or anal orifice of another person.
Crime Against Persons under Title Eight of Act No.
3815, as amended, otherwise known as the "Article 266-B. Penalty. - Rape under paragraph 1
Revised Penal Code. Accordingly, there shall be of the next preceding article shall be punished by
incorporated into Title Eight of the same Code a reclusion perpetua.
new chapter to be known as Chapter Three on
Rape, to read as follows: "Whenever the rape is committed with the use of
a deadly weapon or by two or more persons, the
"Chapter Three penalty shall be reclusion perpetua to death.
"Rape
"Article 266-A. Rape: When And How
Committed. - Rape is committed:
"When by reason or on the occasion of the rape, before or at the time of the commission of the
the victim has become insane, the penalty shall crime;
become reclusion perpetua to death.
"5) When the victim is a child below seven (7)
"When the rape is attempted and a homicide is years old;
committed by reason or on the occasion thereof,
the penalty shall be reclusion perpetua to death. "6) When the offender knows that he is afflicted
with the Human Immuno-Deficiency Virus
"When by reason or on the occasion ofthe rape, (HIV)/Acquired Immune Deficiency Syndrome
homicide is committed, the penalty shall be death. (AIDS) or any other sexually transmissible disease
and the virus or disease is transmitted to the
"The death penalty shall also be imposed if the victim;
crime of rape is committed with any of the
following aggravating/qualifying circumstances: "7) When committed by any member of the
Armed Forces of the Philippines or para-military
"l) When the victim is under eighteen (18) years of units thereof or the Philippine National Police or
age and the offender is a parent, ascendant, step- any law enforcement agency or penal institution,
parent, guardian, relative by consanguinity or when the offender took advantage of his position
affinity within the third civil degree, or the to facilitate the commission of the crime;
common-law spouse of the parent of the victim;
"8) When by reason or on the occasion of the
"2) When the victim is under the custody of the rape, the victim has suffered permanent physical
police or military authorities or any law mutilation or disability;
enforcement or penal institution;
"9) When the offender knew of the pregnancy of
"3) When the rape is committed in full view of the the offended party at the time of the commission
spouse, parent, any of the children or other of the crime; and
relatives within the third civil degree of
consanguinity; "10) When the offender knew of the mental
disability, emotional disorder and/or physical
"4) When the victim is a religious engaged in handicap of the offended party at the time of the
legitimate religious vocation or calling and is commission of the crime.
personally known to be such by the offender
"Rape under paragraph 2 of the next preceding action or the penalty: Provided, That the crime
article shall be punished by prision mayor. shall not be extinguished or the penalty shall not
be abated if the marriage is void ab initio.
"Whenever the rape is committed with the use of
a deadly weapon or by two or more persons, the "Article 266-D. Presumptions. - Any physical overt
penalty shall be prision mayor to reclusion act manifesting resistance against the act of rape
temporal. in any degree from the offended party, or where
the offended party is so situated as to render
"When by reason or on the occasion of the rape, her/him incapable of giving valid consent, may be
the victim has become insane, the penalty shall accepted as evidence in the prosecution of the
be reclusion temporal. acts punished under Article 266-A."
"When the rape is attempted and a homicide is Sec. 3. Separability Clause. - If any part, Sec., or
committed by reason or on the occasion thereof, provision of this Act is declared invalid or
the penalty shall be reclusion temporal to unconstitutional, the other parts thereof not
reclusion perpetua. affected thereby shall remain valid.
"When by reason or on the occasion ofthe rape, Sec. 4. Repealing Clause. - Article 336 of Act No.
homicide is committed, the penalty shall be 3815, as amended, and all laws, acts, presidential
reclusion perpetua. decrees, executive orders, administrative orders,
rules and regulations inconsistent with or contrary
"Reclusion temporal shall be imposed if the rape to the provisions of this Act are deemed amended,
is committed with any of the ten aggravating/ modified or repealed accordingly.
qualifying circumstances mentioned in this article.
Sec. 5. Effectivity. - This Act shall take effect
"Article 266-C. Effect of Pardon. - The subsequent fifteen (15) days after completion of its
valid marriage between the offended party shall publication in two (2) newspapers of general
extinguish the criminal action or the penalty circulation.
imposed.
Approved: September 30, 1997.
"In case it is the legal husband who is the
offender, the subsequent forgiveness by the wife
as the offended party shall extinguish the criminal
ARTICLE 68 b) acts causing or attempting to cause the
SECTION 3 OF RA 9262 victim to engage in any sexual activity by
force, threat of force, physical or other
harm or threat of physical or other harm or
SECTION 3. Definition of Terms.- As used in this Act, coercion;
(a) "Violence against women and their children" refers to c) Prostituting the woman or child.
any act or a series of acts committed by any person
against a woman who is his wife, former wife, or against a
woman with whom the person has or had a sexual or C. "Psychological violence" refers to acts or
dating relationship, or with whom he has a common child, omissions causing or likely to cause mental or
or against her child whether legitimate or illegitimate, emotional suffering of the victim such as but not
within or without the family abode, which result in or is limited to intimidation, harassment, stalking,
likely to result in physical, sexual, psychological harm or damage to property, public ridicule or humiliation,
suffering, or economic abuse including threats of such repeated verbal abuse and mental infidelity. It
acts, battery, assault, coercion, harassment or arbitrary includes causing or allowing the victim to witness
deprivation of liberty. It includes, but is not limited to, the the physical, sexual or psychological abuse of a
following acts: member of the family to which the victim belongs,
or to witness pornography in any form or to
witness abusive injury to pets or to unlawful or
A. "Physical Violence" refers to acts that include unwanted deprivation of the right to custody
bodily or physical harm; and/or visitation of common children.
B. "Sexual violence" refers to an act which is D. "Economic abuse" refers to acts that make or
sexual in nature, committed against a woman or attempt to make a woman financially dependent
her child. It includes, but is not limited to: which includes, but is not limited to the following:
G.R. No. L-23482 August 30, 1968 Alfonso Lacson (hereinafter referred to as the petitioner spouse)
and Carmen San Jose-Lacson (hereinafter referred to as the
ALFONSO LACSON, petitioner, respondent spouse) were married on February 14, 1953. To them
vs. were born four children, all alive.
CARMEN SAN JOSE-LACSON and THE COURT OF
APPEALS, respondents. On January 9, 1963 the respondent spouse left the conjugal
home in Santa Clara Subdivision, Bacolod City, and commenced
----------------------------- to reside in Manila. She filed on March 12, 1963 a complaint
docketed as civil case E-00030 in the Juvenile and Domestic
Relations Court of Manila (hereinafter referred to as the JDRC)
G.R. No. L-23767 August 30, 1968
for custody of all their children as well as support for them and
herself.
CARMEN SAN JOSE-LACSON, plaintiff-appellant,
vs.
However, the spouses, thru the assistance of their respective
ALFONSO LACSON, defendant-appellee.
attorneys, succeeded in reaching an amicable settlement
respecting custody of the children, support, and separation of
----------------------------- property. On April 27, 1963 they filed a joint petition dated April
21, 1963, docketed as special proceeding 6978 of the Court of
G.R. No. L-24259 August 30, 1968 First Instance of Negros Occidental (hereinafter referred to as the
CFI).
ALFONSO LACSON, petitioner-appellee,
vs. The important and pertinent portions of the petition, embodying
CARMEN SAN JOSE-LACSON, petitioner-appellant. their amicable settlement, read as follows:
Paredes, Poblador, Cruz and Nazareno for respondent-appellant 3. Petitioners have separated last January 9, 1963 when
Carmen San Jose-Lacson. petitioner Carmen San Jose-Lacson left their conjugal
Norberto Quisumbing for petitioner-appellee Alfonso Lacson. home at the Santa Clara Subdivision, Bacolod City, did
not return, and decided to reside in Manila.
CASTRO, J.:
4. Petitioners have mutually agreed upon the dissolution
These three cases (G.R. L-23482, L-23767 and L-24259) of their conjugal partnership subject to judicial approval as
involving the same parties pose a common fundamental issue the required by Article 191 of the Civil Code of the Philippines
resolution of which will necessarily and inescapably resolve all — the particular terms and conditions of their mutual
the other issues. Thus their joinder in this decision. agreement being as follows:
(a) There will be separation of property — course being subject to enforcement by execution
petitioner Carmen San Jose-Lacson hereby writ and contempt.
waiving any and all claims for a share in property
that may be held by petitioner Alfonso Lacson 5. Petitioners have no creditors.
since they have acquired no property of any
consequence. WHEREFORE, they respectfully pray that notice of this
petition be given to creditors and third parties pursuant to
(b) Hereafter, each of them shall own, dispose of, Article 191 of the Civil Code of the Philippines and
possess, administer and enjoy such separate thereafter that the Court enter its judicial approval of the
estate as they may acquire without the consent of foregoing agreement for the dissolution of their conjugal
the other and all earnings from any profession, partnership and for separation of property, except that the
business or industry as may be derived by each Court shall immediately approve the terms set out in
petitioner shall belong to that petitioner paragraph 4 above and embody the same in a judgment
exclusively. immediately binding on the parties hereto to the end that
any non-compliance or violation of its terms by one party
(c) The custody of the two elder children named shall entitle the other to enforcement by execution writ
Enrique and Maria Teresa shall be awarded to and contempt even though the proceedings as to
petitioner Alfonso Lacson and the custody of the creditors have not been terminated.".
younger children named Gerrard and Ramon shall
be awarded to petitioner Carmen San Jose- Finding the foregoing joint petition to be "conformable to law," the
Lacson. CFI (Judge Jose F. Fernandez, presiding) issued an order on
April 27, 1963, rendering judgment (hereinafter referred to as the
(d) Petitioner Alfonso Lacson shall pay petitioner compromise judgment) approving and incorporating in toto their
Carmen San Jose-Lacson a monthly allowance of compromise agreement. In compliance with paragraph 4 (e) of
P300.00 for the support of the children in her their mutual agreement (par. 3[e] of the compromise judgment),
custody. the petitioner spouse delivered all the four children to the
respondent spouse and remitted money for their support.
(e) Each petitioner shall have reciprocal rights of
visitation of the children in the custody of the other On May 7, 1963 the respondent spouse filed in the JDRC a
at their respective residences and, during the motion wherein she alleged that she "entered into and signed
summer months, the two children in the custody of the ... Joint Petition as the only means by which she could have
each petitioner shall be given to the other except immediate custody of the ... minor children who are all below the
that, for this year's summer months, all four age of 7," and thereafter prayed that she "be considered relieved
children shall be delivered to and remain with of the ... agreement pertaining to the custody and visitation of her
petitioner Carmen San Jose-Lacson until June 15, minor children ... and that since all the children are now in her
1963 — on which date, she shall return the two custody, the said custody in her favor be confirmed pendente
elder children Enrique and Maria Teresa to lite." On May 24, 1963 the petitioner spouse opposed the said
petitioner Alfonso Lacson — this judgment of motion and moved to dismiss the complaint based, among other
things, on the grounds of res judicata and lis pendens. The JDRC legality of her agreement with the petitioner spouse respecting
on May 28, 1963, issued an order which sustained the petitioner custody of their children. On February 11, 1965 the Court of
spouse's plea of bar by prior judgment and lis pendens, and Appeals also certified the said appeal to the Supreme Court (G.R.
dismissed the case. After the denial of her motion for No. L-24259), since "no evidence of any kind was introduced
reconsideration, the respondent spouse interposed an appeal to before the trial court and ... appellant did not specifically ask to be
the Court of Appeals (CA-G.R. No. 32608-R) wherein she raised, allowed to present evidence on her behalf." .
among others, the issue of validity or legality of the compromise
agreement in connection only with the custody of their minor The respondent spouse also instituted certiorari proceedings
children. On October 14, 1964 the Court of Appeals certified the before the Court of Appeals (CA-G.R. No. 32384R), now the
said appeal to the Supreme Court (G.R. No. L-23767), since "no subject of an appeal by certiorari to this Court (G.R. No. L-
hearing on the facts was ever held in the court below — no 23482). In her petition for certiorari dated June 27, 1963, she
evidence, testimonial or documentary, presented — only a averred that the CFI (thru Judge Querubin) committed grave
question of law pends resolution in the appeal." . abuse of discretion and acted in excess of jurisdiction in ordering
the immediate execution of the compromise judgment in its order
The respondent spouse likewise filed a motion dated May 15, of June 22, 1963, thus in effect depriving her of the right to
1963 for reconsideration of the compromise judgment dated April appeal. She prayed for (1) the issuance of a writ of preliminary
27, 1963 rendered in special proceeding 6978 of the CFI, wherein injunction enjoining the respondents therein and any person
she also alleged, among others, that she entered into the joint acting under them from enforcing, by contempt proceedings and
petition as the only means by which she could have immediate other means, the writ of execution issued pursuant to the order of
custody of her minor children, and thereafter prayed the CFI to the respondent Judge Querubin dated June 22, 1963 in special
reconsider its judgment pertaining to the custody and visitation of proceeding 6978 of the CFI, (2) the setting aside, after hearing, of
her minor children and to relieve her from the said agreement. the compromise judgment dated April 27, 1963 and the order
The petitioner spouse opposed the said motion and, on June 1, dated June 22, 1963, and (3) the awarding of the custody of
1963, filed a motion for execution of the compromise judgment Enrique and Maria Teresa to her, their mother. As prayed for, the
and a charge for contempt. The CFI (Judge Jose R. Querubin, Court of Appeals issued ex parte a writ of preliminary injunction
presiding), in its order dated June 22, 1963, denied the enjoining the enforcement of the order dated June 22, 1963 for
respondent spouse's motion for reconsideration, granted the execution of the compromise judgment rendered in special
petitioner spouse's motion for execution, and ordered that upon proceeding 6978. The petitioner spouse filed an urgent motion
"failure on the part of Carmen San Jose-Lacson to deliver the dated July 5, 1963 for the dissolution of the writ of preliminary
said children [i.e., to return the two older children Enrique and injunction ex parte which urgent motion was denied by the Court
Maria Teresa in accordance with her agreement with Alfonso of Appeals in its resolution dated July 9, 1963. The petitioner
Lacson] to the special sheriff on or before June 29, 1963, she spouse likewise filed his answer. After hearing, the Court of
may be held for contempt pursuant to the provisions of Rule 39 Appeals on May 11, 1964 promulgated in said certiorari case
sections 9 and 10, and Rule 64 section 7 of the (old) Rules of (CA-G.R. No. 32384-R) its decision granting the petition
Court." From the aforesaid compromise judgment dated April 27, for certiorari and declaring null and void both (a) the compromise
1963 and execution order dated June 22, 1963, the respondent judgment dated April 27, 1963 in so far as it relates to the custody
spouse interposed an appeal to the Court of Appeals (CA-G.R. and right of visitation over the two children, Enrique and Teresa,
No. 32798-R) wherein she likewise questioned the validity or and (b) the order dated June 22, 1963 for execution of said
judgment. The petitioner spouse moved to reconsider, but his during the marriage shall not take place save in virtue of a
motion for reconsideration was denied by the Court of Appeals in judicial order. (Art. 190, emphasis supplied)
its resolution dated July 31, 1964. From the decision dated May
11, 1964 and the resolution dated July 31, 1964, the petitioner The husband and the wife may agree upon the dissolution
spouse interposed an appeal to this Court, as abovestated, and of the conjugal partnership during the marriage, subject to
assigned the following errors: judicial approval. All the creditors of the husband and of
the wife, as well as of the conjugal partnership, shall be
(1) The Court of Appeals erred in annulling thru certiorari notified of any petition for judicial approval of the
the lower court's order of execution of the compromise voluntary dissolution of the conjugal partnership, so that
judgment. any such creditors may appear at the hearing to
safeguard his interests. Upon approval of the petition for
(2) The Court of Appeals erred in resolving in the dissolution of the conjugal partnership, the court shall
certiorari case the issue of the legality of the compromise take such measures as may protect the creditors and
judgment which is involved in two appeals, instead of the other third persons. (Art. 191, par. 4, emphasis supplied).
issue of grave abuse of discretion in ordering its
execution. In the case at bar, the spouses obtained judicial imprimatur of
their separation of property and the dissolution of their conjugal
(3) The Court of Appeals erred in ruling that the partnership. It does not appeal that they have creditors who will
compromise agreement upon which the judgment is be prejudiced by the said arrangements.
based violates article 363 of the Civil Code. 1äwphï1.ñët
'... For though in particular cases the repugnance of the ... [T]hat the Rules do not require as a ground for
law to dissolve the obligations of matrimonial cohabitation dismissal of a complaint that there is a prior pending
may operate with great severity upon individuals, yet it action. They provide only that there is a pending action,
must be carefully remembered that the general happiness not a pending prior action. 1
of the married life is secured by its indissolubility. When
people understand that they must live together, except for We agree with the Court of Appeals, however, that the CFI erred
a very few reasons known to the law, they learn to soften in depriving the mother, the respondent spouse, of the custody of
by mutual accommodation that yoke which they know the two older children (both then below the age of 7).
they cannot shake off; they become good husbands and
good wives from the necessity of remaining husbands and The Civil Code specifically commands in the second sentence of
wives; for necessity is a powerful master in teaching the its article 363 that "No mother shall be separated from her child
duties which it imposes ..." (Evans vs. Evans, 1 Hag. under seven years of age, unless the court finds compelling
Con., 35; 161 Eng. Reprint, 466, 467.) (Arroyo vs. reasons for such measure." The rationale of this new provision
Vasquez de Arroyo, Id., pp. 58-59). was explained by the Code Commission thus:
The general rule is recommended in order to avoid many from embarrassment and inferiority complex which may
a tragedy where a mother has seen her baby torn away inevitably stain their lives. ..
from her. No man can sound the deep sorrows of a
mother who is deprived of her child of tender age. The If the parties agreed to submit the matter of custody of the minor
exception allowed by the rule has to be for "compelling children to the Court for incorporation in the final judgment, they
reasons" for the good of the child: those cases must purposely suppressed the "compelling reasons for such measure"
indeed be rare, if the mother's heart is not to be unduly from appearing in the public records. This is for the sake and for
hurt. If she has erred, as in cases of adultery, the penalty the welfare of the minor children.".
of imprisonment and the (relative) divorce decree will
ordinarily be sufficient punishment for her. Moreover, her But the foregoing statement is at best a mere hint that there were
moral dereliction will not have any effect upon the baby compelling reasons. The lower court's order is eloquently silent
who is as yet unable to understand the situation." (Report on what these compelling reasons are. Needless to state, courts
of the Code Commission, p. 12). cannot proceed on mere insinuations; they must be confronted
with facts before they can properly adjudicate.
The use of the word shall2 in article 363 of the Civil Code, coupled
with the observations made by the Code Commission in respect It might be argued — and correctly — that since five years have
to the said legal provision, underscores its mandatory character. elapsed since the filing of these cases in 1963, the ages of the
It prohibits in no uncertain: terms the separation of a mother and four children should now be as follows: Enrique — 11, Maria
her child below seven years, unless such separation is grounded Teresa — 10, Gerrard — 9, and Ramon — 5. Therefore, the
upon compelling reasons as determined by a court. issue regarding the award of the custody of Enrique and Maria
Teresa to the petitioner spouse has become moot and academic.
The order dated April 27, 1963 of the CFI, in so far as it awarded The passage of time has removed the prop which supports the
custody of the two older children who were 6 and 5 years old, respondent spouse's position.
respectively, to the father, in effect sought to separate them from
their mother. To that extent therefore, it was null and void Nonetheless, this Court is loath to uphold the couple's agreement
because clearly violative of article 363 of the Civil Code. regarding the custody of the children. 1äwphï1.ñët
Neither does the said award of custody fall within the exception Article 356 of the new Civil Code provides:
because the record is bereft of any compelling reason to support
the lower court's order depriving the wife of her minor children's
Every child:
company. True, the CFI stated in its order dated June 22, 1963,
denying the respondent spouse's motion for reconsideration of its
order dated April 27, 1963, that . (1) Is entitled to parental care;
... If the parties have agreed to file a joint petition, it was (2) Shall receive at least elementary education;
because they wanted to avoid the exposure of the bitter
truths which serve as succulent morsel for scandal (3) Shall be given moral and civic training by the
mongers and idle gossipers and to save their children parents or guardian;
(4) Has a right to live in an atmosphere conducive One last point regarding the matter of support for the children —
to his physical, moral and intellectual assuming that the custody of any or more of the children will be
development. finally awarded to the mother. Although the spouses have agreed
upon the monthly support of P150 to be given by the petitioner
It is clear that the abovequoted legal provision grants to every spouse for each child, still this Court must speak out its mind on
child rights which are not and should not be dependent solely on the insufficiency of this amount. We, take judicial notice of the
the wishes, much less the whims and caprices, of his parents. His devaluation of the peso in 1962 and the steady skyrocketing of
welfare should not be subject to the parents' say-so or mutual prices of all commodities, goods, and services, not to mention the
agreement alone. Where, as in this case, the parents are already fact that all the children are already of school age. We believe,
separated in fact, the courts must step in to determine in whose therefore, that the CFI may increase this amount of P150
custody the child can better be assured the right granted to him according to the needs of each child.
by law. The need, therefore, to present evidence regarding this
matter, becomes imperative. A careful scrutiny of the records With the view that we take of this case, we find it unnecessary to
reveals that no such evidence was introduced in the CFI. This pass upon the other errors assigned in the three appeals.
latter court relied merely on the mutual agreement of the
spouses-parents. To be sure, this was not a sufficient basis to ACCORDINGLY, the decision dated May 11, 1964 and the
determine the fitness of each parent to be the custodian of the resolution dated July 31, 1964 of the Court of Appeals in CA-G.R.
children. 32384-R (subject matter of G.R. L-23482), and the orders dated
May 28, 1963 and June 24, 1963 of the Juvenile and Domestic
Besides, at least one of the children — Enrique, the eldest — is Relations Court (subject matter of G.R. L-23767) are affirmed.
now eleven years of age and should be given the choice of the G.R. L-24259 is hereby remanded to the Court of First Instance of
parent he wishes to live with. This is the clear mandate of sec. 6, Negros Occidental for further proceedings, in accordance with
Rule 99 of the Rules of Court which, states, inter alia: this decision. No pronouncement as to costs.
... When husband and wife are divorced or living Concepcion, C.J., Reyes, J.B.L., Dizon, Makalintal, Zaldivar and
separately and apart from each other, and the question as Angeles, JJ., concur.
to the care, custody, and control of a child or children of Sanchez and Fernando, JJ., took no part.
their marriage is brought before a Court of First Instance
by petition or as an incident to any other proceeding, the
court, upon hearing testimony as may be pertinent, shall
award the care, custody and control of each such child as
will be for its best interest permitting the child to choose
which parent it prefers to live with if it be over ten years of
age, unless the parent so chosen be unfit to take charge
of the child by reason of moral depravity, habitual
drunkenness, incapacity, or poverty... (Emphasis
supplied).
ARTICLE 68 Thus, on October 11, 1999, Erlinda K. Ilusorio filed with the
Supreme Court an appeal via certiorari pursuing her desire to
G.R. No. 139789 July 19, 2001 have custody of her husband Potenciano Ilusorio. 2 This case was
consolidated with another case3 filed by Potenciano Ilusorio and
his children, Erlinda I. Bildner and Sylvia K. Ilusorio appealing
IN THE MATTER OF THE PETITION FOR HABEAS CORPUS
from the order giving visitation rights to his wife, asserting that he
OF POTENCIANO ILUSORIO, ERLINDA K.
never refused to see her.
ILUSORIO, petitioner,
vs.
ERLINDA K. ILUSORIO-BILDNER, SYLVIA K. ILUSORIO-YAP, On May 12, 2000, we dismissed the petition for habeas
JOHN DOES and JANE DOES, respondents. corpus4 for lack of merit, and granted the petition5 to nullify the
Court of Appeals' ruling6 giving visitation rights to Erlinda K.
Ilusorio.7
x---------------------------------------------------------x
What is now before the Court is Erlinda's motion to reconsider the
G.R. No. 139808 July 19, 2001
decision.8
POTENCIANO ILUSORIO, MA. ERLINDA I. BILDNER and
On September 20, 2000, we set the case for preliminary
SYLVIA K. ILUSORIO, petitioners,
conference on October 11, 2000, at 10:00 a. m., without requiring
vs.
the mandatory presence of the parties.
HON. COURT OF APPEALS and ERLINDA K.
ILUSORIO, respondents.
In that conference, the Court laid down the issues to be resolved,
to wit:
RESOLUTION
(a) To determine the propriety of a physical and medical
PARDO, J.:
examination of petitioner Potenciano Ilusorio;
Once again we see the sad tale of a prominent family shattered
(b) Whether the same is relevant; and
by conflicts on expectancy in fabled fortune.
(c) If relevant, how the Court will conduct the same.9
On March 11, 1999, Erlinda K. Ilusorio, the matriarch who was so
lovingly inseparable from her husband some years ago, filed a
petition with the Court of Appeals1 for habeas corpus to have The parties extensively discussed the issues. The Court, in its
custody of her husband in consortium. resolution, enjoined the parties and their lawyers to initiate steps
towards an amicable settlement of the case through mediation
and other means.
On April 5, 1999, the Court of Appeals promulgated its decision
dismissing the petition for lack of unlawful restraint or detention of
the subject, Potenciano Ilusorio.
On November 29, 2000, the Court noted the manifestation and The fact of illegal restraint has not been proved during the
compliance of the parties with the resolution of October 11, hearing at the Court of Appeals on March 23, 1999.16Potenciano
2000.10 himself declared that he was not prevented by his children from
seeing anybody and that he had no objection to seeing his wife
On January 31, 2001, the Court denied Erlinda Ilusorio's and other children whom he loved.
manifestation and motion praying that Potenciano Ilusorio be
produced before the Court and be medically examined by a team Erlinda highlighted that her husband suffered from various
of medical experts appointed by the Court.11 ailments. Thus, Potenciano Ilusorio did not have the mental
capacity to decide for himself. Hence, Erlinda argued that
On March 27, 2001, we denied with finality Erlinda's motion to Potenciano be brought before the Supreme Court so that we
reconsider the Court's order of January 31 , 2001.12 could determine his mental state.
The issues raised by Erlinda K. Ilusorio in her motion for We were not convinced that Potenciano Ilusorio was mentally
reconsideration are mere reiterations of her arguments that have incapacitated to choose whether to see his wife or not. Again, this
been resolved in the decision. is a question of fact that has been decided in the Court of
Appeals.
Nevertheless, for emphasis, we shall discuss the issues thus:
As to whether the children were in fact taking control of the
First. Erlinda K. Ilusorio claimed that she was not compelling corporation, these are matters that may be threshed out in a
Potenciano to live with her in consortium and that Potenciano's separate proceeding, irrelevant in habeas corpus.
mental state was not an issue. However, the very root cause of
the entire petition is her desire to have her Third. Petitioner failed to sufficiently convince the Court why we
husband's custody.13 Clearly, Erlinda cannot now deny that she should not rely on the facts found by the Court of Appeals. Erlinda
wanted Potenciano Ilusorio to live with her. claimed that the facts mentioned in the decision were erroneous
and incomplete. We see no reason why the High Court of the
Second. One reason why Erlinda K. Ilusorio sought custody of land need go to such length. The hornbook doctrine states that
her husband was that respondents Lin and Sylvia were illegally findings of fact of the lower courts are conclusive on the Supreme
restraining Potenciano Ilusorio to fraudulently deprive her of Court.17 We emphasize, it is not for the Court to weigh evidence
property rights out of pure greed.14 She claimed that her two all over again.18 Although there are exceptions to the
children were using their sick and frail father to sign away rule,19 Erlinda failed to show that this is an exceptional instance.
Potenciano and Erlinda's property to companies controlled by Lin
and Sylvia. She also argued that since Potenciano retired as Fourth. Erlinda states that Article XII of the 1987 Constitution and
director and officer of Baguio Country Club and Philippine Articles 68 and 69 of the Family Code support her position that as
Oversees Telecommunications, she would logically assume his spouses, they (Potenciano and Erlinda) are duty bound to live
position and control. Yet, Lin and Sylvia were the ones controlling together and care for each other. We agree.
the corporations.15
The law provides that the husband and the wife are obliged to live
together, observe mutual love, respect and fidelity.20 The sanction
therefor is the "spontaneous, mutual affection between husband
and wife and not any legal mandate or court order" to enforce
consortium.21
SO ORDERED.
ARTICLE 76 damages per victim to be paid solidarily by them.3 The decision
became final and executory on October 1, 2001.4
G.R. No. 164201 December 10, 2012
Upon motion for execution by the heirs of the deceased, on March
12, 2002 the RTC ordered the issuance of the writ, 5 resulting in the
EFREN PANA, Petitioner,
levy of real properties registered in the names of Efren and
vs.
Melecia.6 Subsequently, a notice of levy7 and a notice of sale on
HEIRS OF JOSE JUANITE, SR. and JOSE JUANITE,
execution8 were issued.
JR., Respondents.
On April 3, 2002, petitioner Efren and his wife Melecia filed a motion
DECISION
to quash the writ of execution, claiming that the levied properties
were conjugal assets, not paraphernal assets of Melecia.9 On
ABAD, J.: September 16, 2002 the RTC denied the motion.10 The spouses
moved for reconsideration but the RTC denied the same on March 6,
This case is about the propriety of levy and execution on conjugal 2003.11
properties where one of the spouses has been found guilty of a crime
and ordered to pay civil indemnities to the victims' heirs. Claiming that the RTC gravely abused its discretion in issuing the
challenged orders, Efren filed a petition for certiorari before the Court
The Facts and the Case of Appeals (CA). On January 29, 2004 the CA dismissed the petition
for failure to sufficiently show that the RTC gravely abused its
The prosecution accused petitioner Efren Pana (Efren), his wife discretion in issuing its assailed orders.12 It also denied Efren’s
Melecia, and others of murder before the. Regional Trial Court (RTC) motion for reconsideration,13 prompting him to file the present petition
of Surigao City in Criminal Cases 4232 and 4233.1 for review on certiorari.
Admittedly, the spouses were married before the effectivity of the Art. 76. In order that any modification in the marriage settlements
Family Code. But that fact does not prevent the application of [A]rt. may be valid, it must be made before the celebration of the marriage,
94, last paragraph, of the Family Code because their property regime subject to the provisions of Articles 66, 67, 128, 135 and 136.
is precisely governed by the law on absolute community. This finds
support in Art. 256 of the Family Code which states: Clearly, therefore, the conjugal partnership of gains that governed
the marriage between Efren and Melecia who were married prior to
"This code shall have retroactive effect in so far as it does not 1988 cannot be modified except before the celebration of that
prejudice or impair vested or acquired rights in accordance with the marriage.
Civil Code or other laws."
Post-marriage modification of such settlements can take place only
None of the spouses is dead. Therefore, no vested rights have been where: (a) the absolute community or conjugal partnership was
acquired by each over the properties of the community. Hence, the dissolved and liquidated upon a decree of legal separation;18 (b) the
liabilities imposed on the accused-spouse may properly be charged spouses who were legally separated reconciled and agreed to revive
against the community as heretofore discussed.15 their former property regime;19 (c) judicial separation of property had
been had on the ground that a spouse abandons the other without
The RTC applied the same reasoning as above.16 Efren and just cause or fails to comply with his obligations to the family;20 (d)
Melecia’s property relation was admittedly conjugal under the Civil there was judicial separation of property under Article 135; (e) the
Code but, since the transitory provision of the Family Code gave its spouses jointly filed a petition for the voluntary dissolution of their
provisions retroactive effect if no vested or acquired rights are absolute community or conjugal partnership of gains.21 None of these
impaired, that property relation between the couple was changed circumstances exists in the case of Efren and Melecia.
when the Family Code took effect in 1988. The latter code now
prescribes in Article 75 absolute community of property for all What is more, under the conjugal partnership of gains established by
marriages unless the parties entered into a prenuptial agreement. As Article 142 of the Civil Code, the husband and the wife place only the
it happens, Efren and Melecia had no prenuptial agreement. The CA fruits of their separate property and incomes from their work or
agreed with this position.17 industry in the common fund. Thus:
Both the RTC and the CA are in error on this point. While it is true Art. 142. By means of the conjugal partnership of gains the husband
that the personal stakes of each spouse in their conjugal assets are and wife place in a common fund the fruits of their separate property
inchoate or unclear prior to the liquidation of the conjugal partnership and the income from their work or industry, and divide equally, upon
of gains and, therefore, none of them can be said to have acquired the dissolution of the marriage or of the partnership, the net gains or
benefits obtained indiscriminately by either spouse during the The provisions of this Chapter [on the Conjugal Partnership of Gains]
marriage. shall also apply to conjugal partnerships of gains already established
between spouses before the effectivity of this Code, without
This means that they continue under such property regime to enjoy prejudice to vested rights already acquired in accordance with the
rights of ownership over their separate properties. Consequently, to Civil Code or other laws, as provided in Article 256."23
automatically change the marriage settlements of couples who got
married under the Civil Code into absolute community of property in Consequently, the Court must refer to the Family Code provisions in
1988 when the Family Code took effect would be to impair their deciding whether or not the conjugal properties of Efren and Melecia
acquired or vested rights to such separate properties. may be held to answer for the civil liabilities imposed on Melecia in
the murder case. Its Article 122 provides:
The RTC cannot take advantage of the spouses’ loose admission
that absolute community of property governed their property relation Art. 122. The payment of personal debts contracted by the husband
since the record shows that they had been insistent that their or the wife before or during the marriage shall not be charged to the
property regime is one of conjugal partnership of gains. 22 No conjugal properties partnership except insofar as they redounded to
evidence of a prenuptial agreement between them has been the benefit of the family.
presented.
Neither shall the fines and pecuniary indemnities imposed upon them
What is clear is that Efren and Melecia were married when the Civil be charged to the partnership.
Code was still the operative law on marriages. The presumption,
absent any evidence to the contrary, is that they were married under However, the payment of personal debts contracted by either spouse
the regime of the conjugal partnership of gains. Article 119 of the before the marriage, that of fines and indemnities imposed upon
Civil Code thus provides: them, as well as the support of illegitimate children of either spouse,
may be enforced against the partnership assets after the
Art. 119. The future spouses may in the marriage settlements agree responsibilities enumerated in the preceding Article have been
upon absolute or relative community of property, or upon complete covered, if the spouse who is bound should have no exclusive
separation of property, or upon any other regime. In the absence of property or if it should be insufficient; but at the time of the liquidation
marriage settlements, or when the same are void, the system of of the partnership, such spouse shall be charged for what has been
relative community or conjugal partnership of gains as established in paid for the purpose above-mentioned.
this Code, shall govern the property relations between husband and
wife. Since Efren does not dispute the RTC’s finding that Melecia has no
exclusive property of her own,24 the above applies. The civil
Of course, the Family Code contains terms governing conjugal indemnity that the decision in the murder case imposed on her may
partnership of gains that supersede the terms of the conjugal be enforced against their conjugal assets after the responsibilities
partnership of gains under the Civil Code. Article 105 of the Family enumerated in Article 121 of the Family Code have been
Code states: covered.25 Those responsibilities are as follows:
Before us is a petition for review of the decision of the Court of On October 30, 1975, Miguel and Cornelia Palang executed a
Appeals in CA-G.R. CV No. 24199 entitled "Erlinda Agapay v. Deed of Donation as a form of compromise agreement to settle
Carlina (Cornelia) Palang and Herminia P. Dela Cruz" dated June and end a case filed by the latter. The parties therein agreed to
3
22, 1994 involving the ownership of two parcels of land acquired donate their conjugal property consisting of six parcels of land to
during the cohabitation of petitioner and private respondent's their only child, Herminia Palang.
4
legitimate spouse.
Miguel and Erlinda's cohabitation produced a son, Kristopher A.
Miguel Palang contracted his first marriage on July 16, 1949 Palang, born on December 6, 1977. In 1979, Miguel and Erlinda
when he took private respondent Carlina (or Cornelia) Vallesterol were convicted of Concubinage upon Carlina's complaint. Two 5
as a wife at the Pozorrubio Roman Catholic Church in years later, on February 15, 1981, Miguel died.
Pangasinan. A few months after the wedding, in October 1949,
he left to work in Hawaii. Miguel and Carlina's only child, Herminia
On July 11, 1981, Carlina Palang and her daughter Herminia
Palang, was born on May 12, 1950.
Palang de la Cruz, herein private respondents, instituted the case
at bar, an action for recovery of ownership and possession with
Miguel returned in 1954 for a year. His next visit to the Philippines damages against petitioner before the Regional Trial Court in
was in 1964 and during the entire duration of his year-long Urdaneta, Pangasinan (Civil Case No. U-4265). Private
sojourn he stayed in Zambales with his brother, not in respondents sought to get back the riceland and the house and
Pangasinan with his wife and child. The trial court found evidence lot both located at Binalonan, Pangasinan allegedly purchased by
that as early as 1957, Miguel had attempted to divorce Carlina in Miguel during his cohabitation with petitioner.
Hawaii. When he returned for good in 1972, he refused to live
1
3) Confirming the ownership of one-half (1/2) portion of 3. Ordering the Register of Deeds of Pangasinan to
that piece of agricultural land situated at Balisa, San cancel Transfer Certificate of Title Nos. 143120 and
Felipe, Binalonan, Pangasinan, consisting of 10,080 101736 and to issue in lieu thereof another certificate of
square meters and as evidenced by TCT No. 101736, Lot title in the name of plaintiffs-appellants.
1123-A to Erlinda Agapay;
No pronouncement as to costs. 7
money to buy the subject riceland. Worth noting is the fact that on
After studying the merits of the instant case, as well as the the date of conveyance, May 17, 1973, petitioner was only
pertinent provisions of law and jurisprudence, the Court denies around twenty years of age and Miguel Palang was already sixty-
the petition and affirms the questioned decision of the Court of four and a pensioner of the U.S. Government. Considering her
Appeals. youthfulness, it is unrealistic to conclude that in 1973 she
contributed P3,750.00 as her share in the purchase price of
The first and principal issue is the ownership of the two pieces of subject property, there being no proof of the same.
11
provided the money for the purchase price and directed that discussed in the preceding paragraph where the need for probate
Erlinda's name alone be placed as the vendee. 14
proceedings to resolve the settlement of Miguel's estate and
Kristopher's successional rights has been pointed out.
The transaction was properly a donation made by Miguel to
Erlinda, but one which was clearly void and inexistent by express WHEREFORE, the instant petition is hereby DENIED. The
provision of law because it was made between persons guilty of questioned decision of the Court of Appeals is AFFIRMED. Costs
adultery or concubinage at the time of the donation, under Article against petitioner.
739 of the Civil Code. Moreover, Article 87 of the Family Code
expressly provides that the prohibition against donations between SO ORDERED.
spouses now applies to donations between persons living
together as husband and wife without a valid marriage, for 15
otherwise, the condition of those who incurred guilt would turn out
to be better than those in legal union.
16