NORHANEY B. BAZAR XU-LAW WASSMER vs. VELEZ - G.R. No. L-20089 December 26, 1964 BENGZON, J.P., J.

FACTS: Francisco Velez and Beatriz Wassmer, following their mutual promise of love, decided to get married and set Sept. 4, 1954 as the big day. On Sept. 2, 1954, Velez left a note for his bride-to-be saying that he wants to postpone the marriage as his mother opposes it and that he is leaving. But the next day, Sept. 3, he sent her a telegram and told her that nothing has changed, that he is returning and he apologizes. Thereafter, Velez did not appear nor was he heard from again. Wassmer sued him for damages. Velez filed no answer and was declared in default. ISSUE: Is the case at bar a mere breach of promise to marry? RULING: Surely, this is not a case of mere breach of promise to marry. As stated, mere breach of promise to marry is not an actionable wrong. But to formally set a wedding and go through all the preparation and publicity, only to walk out of it when the matrimony is about to be solemnized, is quite different. This is palpably and unjustifiably contrary to good customs for which defendant must be held answerable in damages in accordance with Art. 21 of the NCC which provides that "any person who willfully causes loss or injury to another in a manner that is contrary to morals, good customs or public policy shall compensate the latter for the damage." DECISION: Affirmed.

THIRD DIVISION GRACE J. GARCIA, a.k.a. GRACE J. GARCIA-RECIO, petitioner, vs. REDERICK A. RECIO, respondent. DECISION PANGANIBAN, J.: A divorce obtained abroad by an alien may be recognized in our jurisdiction, provided such decree is valid according to the national law of the foreigner. However, the divorce decree and the governing personal law of the alien spouse who obtained the divorce must be proven. Our courts do not take judicial notice of foreign laws and judgments; hence, like any other facts, both the divorce decree and the national law of the alien must be alleged and proven according to our law on evidence.

The Case Before us is a Petition for Review under Rule 45 of the Rules of Court, seeking to nullify the January 7, 1999 Decision[1] and the March 24, 1999 Order[2] of the Regional Trial Court of Cabanatuan City, Branch 28, in Civil Case No. 3026AF. The assailed Decision disposed as follows: WHEREFORE, this Court declares the marriage between Grace J. Garcia and Rederick A. Recio solemnized on January 12, 1994 at Cabanatuan City as dissolved and both parties can now remarry under existing and applicable laws to any and/or both parties.[3] The assailed Order denied reconsideration of the above-quoted Decision.

The Facts Rederick A. Recio, a Filipino, was married to Editha Samson, an Australian citizen, in Malabon, Rizal, on March 1, 1987.[4] They lived together as husband and wife in Australia. On May 18, 1989, [5] a decree of divorce, purportedly dissolving the marriage, was issued by an Australian family court. On June 26, 1992, respondent became an Australian citizen, as shown by a Certificate of Australian Citizenship issued by the Australian government.[6]Petitioner -- a Filipina -- and respondent were married on January 12, 1994 in Our Lady of Perpetual Help Church in Cabanatuan City.[7] In their application for a marriage license, respondent was declared as single and Filipino.[8] Starting October 22, 1995, petitioner and respondent lived separately without prior judicial dissolution of their marriage. While the two were still in Australia, their conjugal assets were divided on May 16, 1996, in accordance with their Statutory Declarations secured in Australia.[9] On March 3, 1998, petitioner filed a Complaint for Declaration of Nullity of Marriage [10] in the court a quo, on the ground of bigamy -- respondent allegedly had a prior subsisting marriage at the time he married her on January 12, 1994. She claimed that she learned of respondents marriage to Editha Samson only in November, 1997. In his Answer, respondent averred that, as far back as 1993, he had revealed to petitioner his prior marriage and its subsequent dissolution.[11] He contended that his first marriage to an Australian citizen had been validly dissolved by a divorce decree obtained in Australia in 1989;[12] thus, he was legally capacitated to marry petitioner in 1994. On July 7, 1998 -- or about five years after the couples wedding and while the suit for the declaration of nullity was pending -- respondent was able to secure a divorce decree from a family court in Sydney, Australia because the marriage ha[d] irretrievably broken down.[13] Respondent prayed in his Answer that the Complaint be dismissed on the ground that it stated no cause of action. The Office of the Solicitor General agreed with respondent. [15] The court marked and admitted the documentary evidence of both parties.[16] After they submitted their respective memoranda, the case was submitted for resolution.[17]
[14]

Thereafter, the trial court rendered the assailed Decision and Order.

Ruling of the Trial Court The trial court declared the marriage dissolved on the ground that the divorce issued in Australia was valid and recognized in the Philippines. It deemed the marriage ended, but not on the basis of any defect in an essential element of the marriage; that is, respondents alleged lack of legal capacity to remarry. Rather, it based its Decision on the divorce decree obtained by respondent. The Australian divorce had ended the marriage; thus, there was no more marital union to nullify or annul. Hence, this Petition.[18]

Issues Petitioner submits the following issues for our consideration: 1 The trial court gravely erred in finding that the divorce decree obtained in Australia by the respondent ipso facto terminated his first marriage to Editha Samson thereby capacitating him to contract a second marriage with the petitioner. 2 The failure of the respondent, who is now a naturalized Australian, to present a certificate of legal capacity to marry constitutes absence of a substantial requisite voiding the petitioners marriage to the respondent 3

The trial court seriously erred in the application of Art. 26 of the Family Code in this case. 4 The trial court patently and grievously erred in disregarding Arts. 11, 13, 21, 35, 40, 52 and 53 of the Family Code as the applicable provisions in this case. 5 The trial court gravely erred in pronouncing that the divorce decree obtained by the respondent in Australia ipso facto capacitated the parties to remarry, without first securing a recognition of the judgment granting the divorce decree before our courts.[19] The Petition raises five issues, but for purposes of this Decision, we shall concentrate on two pivotal ones: (1) whether the divorce between respondent and Editha Samson was proven, and (2) whether respondent was proven to be legally capacitated to marry petitioner. Because of our ruling on these two, there is no more necessity to take up the rest.

The Courts Ruling The Petition is partly meritorious.

First Issue: Proving the Divorce Between Respondent and Editha Samson Petitioner assails the trial courts recognition of the divorce between respondent and Editha Samson. Citing Adong v. Cheong Seng Gee,[20] petitioner argues that the divorce decree, like any other foreign judgment, may be given recognition in this jurisdiction only upon proof of the existence of (1) the foreign law allowing absolute divorce and (2) the alleged divorce decree itself. She adds that respondent miserably failed to establish these elements. Petitioner adds that, based on the first paragraph of Article 26 of the Family Code, marriages solemnized abroad are governed by the law of the place where they were celebrated (the lex loci celebrationis). In effect, the Code requires the presentation of the foreign law to show the conformity of the marriage in question to the legal requirements of the place where the marriage was performed. At the outset, we lay the following basic legal principles as the take-off points for our discussion. Philippine law does not provide for absolute divorce; hence, our courts cannot grant it.[21] A marriage between two Filipinos cannot be dissolved even by a divorce obtained abroad, because of Articles 15[22] and 17[23] of the Civil Code.[24] In mixed marriages involving a Filipino and a foreigner, Article 26[25] of the Family Code allows the former to contract a subsequent marriage in case the divorce is validly obtained abroad by the alien spouse capacitating him or her to remarry.[26] A divorce obtained abroad by a couple, who are both aliens, may be recognized in the Philippines, provided it is consistent with their respective national laws.[27] A comparison between marriage and divorce, as far as pleading and proof are concerned, can be made. Van Dorn v. Romillo Jr. decrees that aliens may obtain divorces abroad, which may be recognized in the Philippines, provided they are valid according to their national law.[28] Therefore, before a foreign divorce decree can be recognized by our courts, the party pleading it must prove the divorce as a fact and demonstrate its conformity to the foreign law allowing it.[29]Presentation solely of the divorce decree is insufficient. Divorce as a Question of Fact Petitioner insists that before a divorce decree can be admitted in evidence, it must first comply with the registration requirements under Articles 11, 13 and 52 of the Family Code. These articles read as follows: ART. 11. Where a marriage license is required, each of the contracting parties shall file separately a sworn application for such license with the proper local civil registrar which shall specify the following: xxx xxx xxx

(5) xxx

If previously married, how, when and where the previous marriage was dissolved or annulled; xxx x x x

ART. 13. In case either of the contracting parties has been previously married, the applicant shall be required to ART. 13. In case either of the contracting parties has been previously married, the applicant shall be required to furnish, instead of the birth or baptismal certificate required in the last preceding article, the death certificate of the deceased spouse or the judicial decree of the absolute divorce, or the judicial decree of annulment or declaration of nullity of his or her previous marriage. x x x. ART. 52. The judgment of annulment or of absolute nullity of the marriage, the partition and distribution of the properties of the spouses, and the delivery of the childrens presumptive legitimes shall be recorded in the appropriate civil registry and registries of property; otherwise, the same shall not affect their persons. Respondent, on the other hand, argues that the Australian divorce decree is a public document -- a written official act of an Australian family court. Therefore, it requires no further proof of its authenticity and due execution. Respondent is getting ahead of himself. Before a foreign judgment is given presumptive evidentiary value, the document must first be presented and admitted in evidence.[30] A divorce obtained abroad is proven by the divorce decree itself. Indeed the best evidence of a judgment is the judgment itself.[31] The decree purports to be a written act or record of an act of an official body or tribunal of a foreign country.[32] Under Sections 24 and 25 of Rule 132, on the other hand, a writing or document may be proven as a public or official record of a foreign country by either (1) an official publication or (2) a copy thereof attested [33] by the officer having legal custody of the document. If the record is not kept in the Philippines, such copy must be (a) accompanied by a certificate issued by the proper diplomatic or consular officer in the Philippine foreign service stationed in the foreign country in which the record is kept and (b) authenticated by the seal of his office. [34] The divorce decree between respondent and Editha Samson appears to be an authentic one issued by an Australian family court.[35] However, appearance is not sufficient; compliance with the aforementioned rules on evidence must be demonstrated. Fortunately for respondents cause, when the divorce decree of May 18, 1989 was submitted in evidence, counsel for petitioner objected, not to its admissibility, but only to the fact that it had not been registered in the Local Civil Registry of Cabanatuan City.[36] The trial court ruled that it was admissible, subject to petitioners qualification.[37] Hence, it was admitted in evidence and accorded weight by the judge. Indeed, petitioners failure to object properly rendered the divorce decree admissible as a written act of the Family Court of Sydney, Australia.[38] Compliance with the quoted articles (11, 13 and 52) of the Family Code is not necessary; respondent was no longer bound by Philippine personal laws after he acquired Australian citizenship in 1992. [39] Naturalization is the legal act of adopting an alien and clothing him with the political and civil rights belonging to a citizen. [40] Naturalized citizens, freed from the protective cloak of their former states, don the attires of their adoptive countries. By becoming an Australian, respondent severed his allegiance to the Philippines and the vinculum juris that had tied him to Philippine personal laws. Burden of Proving Australian Law Respondent contends that the burden to prove Australian divorce law falls upon petitioner, because she is the party challenging the validity of a foreign judgment. He contends that petitioner was satisfied with the original of the divorce decree and was cognizant of the marital laws of Australia, because she had lived and worked in that country for quite a long time. Besides, the Australian divorce law is allegedly known by Philippine courts; thus, judges may take judicial notice of foreign laws in the exercise of sound discretion. We are not persuaded. The burden of proof lies with the party who alleges the existence of a fact or thing necessary in the prosecution or defense of an action.[41] In civil cases, plaintiffs have the burden of proving the material allegations of the complaint when those are denied by the answer; and defendants have the burden of proving the material allegations in their answer when they introduce new matters.[42] Since the divorce was a defense raised by respondent, the burden of proving the pertinent Australian law validating it falls squarely upon him. It is well-settled in our jurisdiction that our courts cannot take judicial notice of foreign laws. [43] Like any other facts, they must be alleged and proved. Australian marital laws are not among those matters that judges are supposed to know by reason of their judicial function.[44] The power of judicial notice must be exercised with caution, and every reasonable doubt upon the subject should be resolved in the negative.

Second Issue: Respondents Legal Capacity to Remarry Petitioner contends that, in view of the insufficient proof of the divorce, respondent was legally incapacitated to marry her in 1994. Hence, she concludes that their marriage was void ab initio. Respondent replies that the Australian divorce decree, which was validly admitted in evidence, adequately established his legal capacity to marry under Australian law. Respondents contention is untenable. In its strict legal sense, divorce means the legal dissolution of a lawful union for a cause arising after marriage. But divorces are of different types. The two basic ones are (1) absolute divorce or a vinculo matrimonii and (2) limited divorce or a mensa et thoro. The first kind terminates the marriage, while the second suspends it and leaves the bond in full force.[45] There is no showing in the case at bar which type of divorce was procured by respondent. Respondent presented a decree nisi or an interlocutory decree -- a conditional or provisional judgment of divorce. It is in effect the same as a separation from bed and board, although an absolute divorce may follow after the lapse of the prescribed period during which no reconciliation is effected.[46] Even after the divorce becomes absolute, the court may under some foreign statutes and practices, still restrict remarriage. Under some other jurisdictions, remarriage may be limited by statute; thus, the guilty party in a divorce which was granted on the ground of adultery may be prohibited from marrying again. The court may allow a remarriage only after proof of good behavior.[47] On its face, the herein Australian divorce decree contains a restriction that reads: 1. A party to a marriage who marries again before this decree becomes absolute (unless the other party has died) commits the offence of bigamy.[48]

This quotation bolsters our contention that the divorce obtained by respondent may have been restricted. It did not absolutely establish his legal capacity to remarry according to his national law. Hence, we find no basis for the ruling of the trial court, which erroneously assumed that the Australian divorce ipso factorestored respondents capacity to remarry despite the paucity of evidence on this matter. We also reject the claim of respondent that the divorce decree raises a disputable presumption or presumptive evidence as to his civil status based on Section 48, Rule 39[49] of the Rules of Court, for the simple reason that no proof has been presented on the legal effects of the divorce decree obtained under Australian laws. Significance of the Certificate of Legal Capacity Petitioner argues that the certificate of legal capacity required by Article 21 of the Family Code was not submitted together with the application for a marriage license. According to her, its absence is proof that respondent did not have legal capacity to remarry. We clarify. To repeat, the legal capacity to contract marriage is determined by the national law of the party concerned. The certificate mentioned in Article 21 of the Family Code would have been sufficient to establish the legal capacity of respondent, had he duly presented it in court. A duly authenticated and admitted certificate is prima facie evidence of legal capacity to marry on the part of the alien applicant for a marriage license.[50] As it is, however, there is absolutely no evidence that proves respondents legal capacity to marry petitioner. A review of the records before this Court shows that only the following exhibits were presented before the lower court: (1) for petitioner: (a) Exhibit A Complaint;[51] (b) Exhibit B Certificate of Marriage Between Rederick A. Recio (FilipinoAustralian) and Grace J. Garcia (Filipino) on January 12, 1994 in Cabanatuan City, Nueva Ecija;[52] (c) Exhibit C Certificate of Marriage Between Rederick A. Recio (Filipino) and Editha D. Samson (Australian) on March 1, 1987 in Malabon, Metro Manila;[53] (d) Exhibit D Office of the City Registrar of Cabanatuan City Certification that no information of annulment between Rederick A. Recio and Editha D. Samson was in its records; [54] and (e) Exhibit E Certificate of Australian Citizenship of Rederick A. Recio;[55] (2) for respondent: (a) Exhibit 1 -- Amended Answer;[56] (b) Exhibit 2 Family Law Act 1975 Decree Nisi of Dissolution of Marriage in the Family Court of Australia;[57] (c) Exhibit 3 Certificate of Australian Citizenship of Rederick A. Recio;[58] (d) Exhibit 4 Decree Nisi of Dissolution of Marriage in the Family Court of Australia Certificate;[59] and Exhibit 5 -- Statutory Declaration of the Legal Separation Between Rederick A. Recio and Grace J. Garcia Recio since October 22, 1995.[60] Based on the above records, we cannot conclude that respondent, who was then a naturalized Australian citizen, was legally capacitated to marry petitioner on January 12, 1994. We agree with petitioners contention that the court a quo erred in finding that the divorce decree ipso facto clothed respondent with the legal capacity to remarry without requiring him to adduce sufficient evidence to show the Australian personal law governing his status; or at the very least, to prove his legal capacity to contract the second marriage.

Neither can we grant petitioners prayer to declare her marriage to respondent null and void on the ground of bigamy. After all, it may turn out that under Australian law, he was really capacitated to marry petitioner as a direct result of the divorce decree. Hence, we believe that the most judicious course is to remand this case to the trial court to receive evidence, if any, which show petitioners legal capacity to marry petitioner. Failing in that, then the court a quo may declare a nullity of the parties marriage on the ground of bigamy, there being already in evidence two existing marriage certificates, which were both obtained in the Philippines, one in Malabon, Metro Manila dated March 1, 1987 and the other, in Cabanatuan City dated January 12, 1994. WHEREFORE, in the interest of orderly procedure and substantial justice, we REMAND the case to the court a quo for the purpose of receiving evidence which conclusively show respondents legal capacity to marry petitioner; and failing in that, of declaring the parties marriage void on the ground of bigamy, as above discussed. No costs. SO ORDERED.

FIRST DIVISION REPUBLIC OF THE PHILIPPINES, Petitioner vs. CIPRIANO ORBECIDO III, Respondent.

DECISION QUISUMBING, J.:

Given a valid marriage between two Filipino citizens, where one party is later naturalized as a foreign citizen and obtains a valid divorce decree capacitating him or her to remarry, can the Filipino spouse likewise remarry under Philippine law? Before us is a case of first impression that behooves the Court to make a definite ruling on this apparently novel question, presented as a pure question of law. In this petition for review, the Solicitor General assails the Decision[1] dated May 15, 2002, of the Regional Trial Court of Molave, Zamboanga del Sur, Branch 23 and its Resolution[2] dated July 4, 2002 denying the motion for reconsideration. The courta quo had declared that herein respondent Cipriano Orbecido III is capacitated to remarry. The fallo of the impugned Decision reads: WHEREFORE, by virtue of the provision of the second paragraph of Art. 26 of the Family Code and by reason of the divorce decree obtained against him by his American wife, the petitioner is given the capacity to remarry under the Philippine Law. IT IS SO ORDERED.[3]

The factual antecedents, as narrated by the trial court, are as follows.

On May 24, 1981, Cipriano Orbecido III married Lady Myros M. Villanueva at the United Church of Christ in the Philippines in Lam-an, Ozamis City. Their marriage was blessed with a son and a daughter, Kristoffer Simbortriz V. Orbecido and Lady Kimberly V. Orbecido. In 1986, Ciprianos wife left for the United States bringing along their son Kristoffer. A few years later, Cipriano discovered that his wife had been naturalized as an American citizen. Sometime in 2000, Cipriano learned from his son that his wife had obtained a divorce decree and then married a certain Innocent Stanley. She, Stanley and her child by him currently live at 5566 A. Walnut Grove Avenue, San Gabriel, California. Cipriano thereafter filed with the trial court a petition for authority to remarry invoking Paragraph 2 of Article 26 of the Family Code. No opposition was filed. Finding merit in the petition, the court granted the same. The Republic, herein petitioner, through the Office of the Solicitor General (OSG), sought reconsideration but it was denied. In this petition, the OSG raises a pure question of law: WHETHER OR NOT RESPONDENT CAN REMARRY UNDER ARTICLE 26 OF THE FAMILY CODE[4]

The OSG contends that Paragraph 2 of Article 26 of the Family Code is not applicable to the instant case because it only applies to a valid mixed marriage; that is, a marriage celebrated between a Filipino citizen and an alien. The proper remedy, according to the OSG, is to file a petition for annulment or for legal separation.[5] Furthermore, the OSG argues there is no law that governs respondents situation. The OSG posits that this is a matter of legislation and not of judicial determination.[6] For his part, respondent admits that Article 26 is not directly applicable to his case but insists that when his naturalized alien wife obtained a divorce decree which capacitated her to remarry, he is likewise capacitated by operation of law pursuant to Section 12, Article II of the Constitution.[7] At the outset, we note that the petition for authority to remarry filed before the trial court actually constituted a petition for declaratory relief. In this connection, Section 1, Rule 63 of the Rules of Court provides: RULE 63 DECLARATORY RELIEF AND SIMILAR REMEDIES Section 1. Who may file petitionAny person interested under a deed, will, contract or other written instrument, or whose rights are affected by a statute, executive order or regulation, ordinance, or other governmental regulation may, before breach or violation thereof, bring an action in the appropriate Regional Trial Court to determine any question of construction or validity arising, and for a declaration of his rights or duties, thereunder. ...

The requisites of a petition for declaratory relief are: (1) there must be a justiciable controversy; (2) the controversy must be between persons whose interests are adverse; (3) that the party seeking the relief has a legal interest in the controversy; and (4) that the issue is ripe for judicial determination.[8] This case concerns the applicability of Paragraph 2 of Article 26 to a marriage between two Filipino citizens where one later acquired alien citizenship, obtained a divorce decree, and remarried while in the U.S.A. The interests of the parties are also adverse, as petitioner representing the State asserts its duty to protect the institution of marriage while respondent, a private citizen, insists on a declaration of his capacity to remarry. Respondent, praying for relief, has legal interest in the controversy. The issue raised is also ripe for judicial determination inasmuch as when respondent remarries, litigation ensues and puts into question the validity of his second marriage. Coming now to the substantive issue, does Paragraph 2 of Article 26 of the Family Code apply to the case of respondent? Necessarily, we must dwell on how this provision had come about in the first place, and what was the intent of the legislators in its enactment?

Brief Historical Background On July 6, 1987, then President Corazon Aquino signed into law Executive Order No. 209, otherwise known as the Family Code, which took effect on August 3, 1988. Article 26 thereof states:

All marriages solemnized outside the Philippines in accordance with the laws in force in the country where they were solemnized, and valid there as such, shall also be valid in this country, except those prohibited under Articles 35, 37, and 38.

On July 17, 1987, shortly after the signing of the original Family Code, Executive Order No. 227 was likewise signed into law, amending Articles 26, 36, and 39 of the Family Code. A second paragraph was added to Article 26. As so amended, it now provides: ART. 26. All marriages solemnized outside the Philippines in accordance with the laws in force in the country where they were solemnized, and valid there as such, shall also be valid in this country, except those prohibited under Articles 35(1), (4), (5) and (6), 36, 37 and 38. Where a marriage between a Filipino citizen and a foreigner is validly celebrated and a divorce is thereafter validly obtained abroad by the alien spouse capacitating him or her to remarry, the Filipino spouse shall have capacity to remarry under Philippine law. (Emphasis supplied)

On its face, the foregoing provision does not appear to govern the situation presented by the case at hand. It seems to apply only to cases where at the time of the celebration of the marriage, the parties are a Filipino citizen and a foreigner. The instant case is one where at the time the marriage was solemnized, the parties were two Filipino citizens, but later on, the wife was naturalized as an American citizen and subsequently obtained a divorce granting her capacity to remarry, and indeed she remarried an American citizen while residing in the U.S.A. Noteworthy, in the Report of the Public Hearings[9] on the Family Code, the Catholic Bishops Conference of the Philippines (CBCP) registered the following objections to Paragraph 2 of Article 26: 1. The rule is discriminatory. It discriminates against those whose spouses are Filipinos who divorce them abroad. These spouses who are divorced will not be able to re-marry, while the spouses of foreigners who validly divorce them abroad can. 2. This is the beginning of the recognition of the validity of divorce even for Filipino citizens. For those whose foreign spouses validly divorce them abroad will also be considered to be validly divorced here and can re-marry. We propose that this be deleted and made into law only after more widespread consultation. (Emphasis supplied.)

Legislative Intent Records of the proceedings of the Family Code deliberations showed that the intent of Paragraph 2 of Article 26, according to Judge Alicia Sempio-Diy, a member of the Civil Code Revision Committee, is to avoid the absurd situation where the Filipino spouse remains married to the alien spouse who, after obtaining a divorce, is no longer married to the Filipino spouse. Interestingly, Paragraph 2 of Article 26 traces its origin to the 1985 case of Van Dorn v. Romillo, Jr.[10] The Van Dorn case involved a marriage between a Filipino citizen and a foreigner. The Court held therein that a divorce decree validly obtained by the alien spouse is valid in the Philippines, and consequently, the Filipino spouse is capacitated to remarry under Philippine law. Does the same principle apply to a case where at the time of the celebration of the marriage, the parties were Filipino citizens, but later on, one of them obtains a foreign citizenship by naturalization? The jurisprudential answer lies latent in the 1998 case of Quita v. Court of Appeals.[11] In Quita, the parties were, as in this case, Filipino citizens when they got married. The wife became a naturalized American citizen in 1954 and obtained a divorce in the same year. The Court therein hinted, by way of obiter dictum, that a Filipino divorced by his naturalized foreign spouse is no longer married under Philippine law and can thus remarry. Thus, taking into consideration the legislative intent and applying the rule of reason, we hold that Paragraph 2 of Article 26 should be interpreted to include cases involving parties who, at the time of the celebration of the marriage were Filipino citizens, but later on, one of them becomes naturalized as a foreign citizen and obtains a divorce decree. The Filipino spouse should likewise be allowed to remarry as if the other party were a foreigner at the time of the solemnization of the marriage. To rule otherwise would be to sanction absurdity and injustice. Where the interpretation of a statute according to its exact and literal import would lead to mischievous results or contravene the clear purpose of the legislature, it should be construed according to its spirit and reason, disregarding as far as necessary the letter of the law. A statute may therefore be extended to cases not within the literal meaning of its terms, so long as they come within its spirit or intent.[12]

If we are to give meaning to the legislative intent to avoid the absurd situation where the Filipino spouse remains married to the alien spouse who, after obtaining a divorce is no longer married to the Filipino spouse, then the instant case must be deemed as coming within the contemplation of Paragraph 2 of Article 26. In view of the foregoing, we state the twin elements for the application of Paragraph 2 of Article 26 as follows: 1. and 2. A valid divorce is obtained abroad by the alien spouse capacitating him or her to remarry. There is a valid marriage that has been celebrated between a Filipino citizen and a foreigner;

The reckoning point is not the citizenship of the parties at the time of the celebration of the marriage, but their citizenship at the time a valid divorce is obtained abroad by the alien spouse capacitating the latter to remarry. In this case, when Ciprianos wife was naturalized as an American citizen, there was still a valid marriage that has been celebrated between her and Cipriano. As fate would have it, the naturalized alien wife subsequently obtained a valid divorce capacitating her to remarry. Clearly, the twin requisites for the application of Paragraph 2 of Article 26 are both present in this case. Thus Cipriano, the divorced Filipino spouse, should be allowed to remarry. We are also unable to sustain the OSGs theory that the proper remedy of the Filipino spouse is to file either a petition for annulment or a petition for legal separation. Annulment would be a long and tedious process, and in this particular case, not even feasible, considering that the marriage of the parties appears to have all the badges of validity. On the other hand, legal separation would not be a sufficient remedy for it would not sever the marriage tie; hence, the legally separated Filipino spouse would still remain married to the naturalized alien spouse. However, we note that the records are bereft of competent evidence duly submitted by respondent concerning the divorce decree and the naturalization of respondents wife. It is settled rule that one who alleges a fact has the burden of proving it and mere allegation is not evidence.[13] Accordingly, for his plea to prosper, respondent herein must prove his allegation that his wife was naturalized as an American citizen. Likewise, before a foreign divorce decree can be recognized by our own courts, the party pleading it must prove the divorce as a fact and demonstrate its conformity to the foreign law allowing it. [14] Such foreign law must also be proved as our courts cannot take judicial notice of foreign laws. Like any other fact, such laws must be alleged and proved. [15] Furthermore, respondent must also show that the divorce decree allows his former wife to remarry as specifically required in Article 26. Otherwise, there would be no evidence sufficient to declare that he is capacitated to enter into another marriage. Nevertheless, we are unanimous in our holding that Paragraph 2 of Article 26 of the Family Code (E.O. No. 209, as amended by E.O. No. 227), should be interpreted to allow a Filipino citizen, who has been divorced by a spouse who had acquired foreign citizenship and remarried, also to remarry. However, considering that in the present petition there is no sufficient evidence submitted and on record, we are unable to declare, based on respondents bare allegations that his wife, who was naturalized as an American citizen, had obtained a divorce decree and had remarried an American, that respondent is now capacitated to remarry. Such declaration could only be made properly upon respondents submission of the aforecited evidence in his favor. ACCORDINGLY, the petition by the Republic of the Philippines is GRANTED. The assailed Decision dated May 15, 2002, and Resolution dated July 4, 2002, of the Regional Trial Court of Molave, Zamboanga del Sur, Branch 23, are hereby SET ASIDE. No pronouncement as to costs. SO ORDERED.

THIRD DIVISION ANGELITA VALDEZ, Petitioner vs. REPUBLIC OF THE PHILIPPINES, Respondent.

x------------------------------------------------------------------------------------x DECISION NACHURA, J.: Before this Court is a Petition for Review on Certiorari under Rule 45 of the Rules of Court assailing the Decision of the Regional Trial Court (RTC) of Camiling, Tarlac dated November 12, 2007 dismissing petitioner Angelita Valdezs petition for the declaration of presumptive death of her husband, Sofio Polborosa (Sofio). The facts of the case are as follows: Petitioner married Sofio on January 11, 1971 in Pateros, Rizal. On December 13, 1971, petitioner gave birth to the spouses only child, Nancy. According to petitioner, she and Sofio argued constantly because the latter was unemployed and did not bring home any money. In March 1972, Sofio left their conjugal dwelling. Petitioner and their child waited for him to return but, finally, in May 1972, petitioner decided to go back to her parents home in Bancay 1 st, Camiling, Tarlac. Three years passed without any word from Sofio. In October 1975, Sofio showed up at Bancay 1st. He and petitioner talked for several hours and they agreed to separate. They executed a document to that effect. [1] That was the last time petitioner saw him. After that, petitioner didnt hear any news of Sofio, his whereabouts or even if he was alive or not.[2] Believing that Sofio was already dead, petitioner married Virgilio Reyes on June 20, 1985. [3] Subsequently, however, Virgilios application for naturalization filed with the United States Department of Homeland Security was denied because petitioners marriage to Sofio was subsisting.[4] Hence, on March 29, 2007, petitioner filed a Petition before the RTC of Camiling, Tarlac seeking the declaration of presumptive death of Sofio. The RTC rendered its Decision[5] on November 12, 2007, dismissing the Petition for lack of merit. The RTC held that Angelita was not able to prove the well-grounded belief that her husband Sofio Polborosa was already dead. It said that under Article 41 of the Family Code, the present spouse is burdened to prove that her spouse has been absent and that she has a well-founded belief that the absent spouse is already dead before the present spouse may contract a subsequent marriage. This belief, the RTC said, must be the result of proper and honest-to-goodness inquiries and efforts to ascertain the whereabouts of the absent spouse. The RTC found that, by petitioners own admission, she did not try to find her husband anymore in light of their mutual agreement to live separately. Likewise, petitioners daughter testified that her mother prevented her from looking for her father. The RTC also said there is a strong possibility that Sofio is still alive, considering that he would have been only 61 years old by then, and people who have reached their 60s have not become increasingly low in health and spirits, and, even assuming as true petitioners testimony that Sofio was a chain smoker and a drunkard, there is no evidence that he continues to drink and smoke until now. Petitioner filed a motion for reconsideration.[6] She argued that it is the Civil Code that applies in this case and not the Family Code since petitioners marriage to Sofio was celebrated on January 11, 1971, long before the Family Code took effect. Petitioner further argued that she had acquired a vested right under the provisions of the Civil Code and the stricter provisions of the Family Code should not be applied against her because Title XIV of the Civil Code, where Articles 384 and 390 on declaration of absence and presumption of death, respectively, can be found, was not expressly repealed by the Family Code. To apply the stricter provisions of the Family Code will impair the rights petitioner had acquired under the Civil Code. The RTC denied the Motion for Reconsideration in a Resolution dated December 10, 2007.[7] Petitioner now comes before this Court seeking the reversal of the RTC Decision and Motion for Reconsideration. In its Manifestation and Motion,[8] the Office of the Solicitor General (OSG) recommended that the Court set aside the assailed RTC Decision and grant the Petition to declare Sofio presumptively dead. The OSG argues that the requirement of well-founded belief under Article 41 of the Family Code is not applicable to the instant case. It said that petitioner could not be expected to comply with this requirement because it was not yet in existence during her marriage to Virgilio Reyes in 1985. The OSG further argues that before the effectivity of the Family Code, petitioner already acquired a vested right as to the validity of her marriage to Virgilio Reyes based on the presumed death of Sofio under the Civil Code. This vested right and the presumption of Sofios death, the OSG posits, could not be affected by the obligations created under the Family Code.[9]

Next, the OSG contends that Article 390 of the Civil Code was not repealed by Article 41 of the Family Code.[10] Title XIV of the Civil Code, the OSG said, was not one of those expressly repealed by the Family Code. Moreover, Article 256 of the Family Code provides that its provisions shall not be retroactively applied if they will prejudice or impair vested or acquired rights.[11] The RTC Decision, insofar as it dismissed the Petition, is affirmed. However, we must state that we are denying the Petition on grounds different from those cited in the RTC Decision. Initially, we discuss a procedural issue. Under the Rules of Court, a party may directly appeal to this Court from a decision of the trial court only on pure questions of law. A question of law lies, on one hand, when the doubt or difference arises as to what the law is on a certain set of facts; on the other hand, a question of fact exists when the doubt or difference arises as to the truth or falsehood of the alleged facts. Here, the facts are not disputed; the controversy merely relates to the correct application of the law or jurisprudence to the undisputed facts.[12] The RTC erred in applying the provisions of the Family Code and holding that petitioner needed to prove a wellfounded belief that Sofio was already dead. The RTC applied Article 41 of the Family Code, to wit: Art. 41. A marriage contracted by any person during subsistence of a previous marriage shall be null and void, unless before the celebration of the subsequent marriage, the prior spouse had been absent for four consecutive years and the spouse present has a well-founded belief that the absent spouse was already dead. In case of disappearance where there is danger under the circumstances set forth in the provisions of Article 391 of the Civil Code, an absence of only two years shall be sufficient. For the purpose of contracting a subsequent marriage under the preceding paragraph, the spouse present must institute a summary proceeding as provided in this Code for the declaration of presumptive death of the absentee, without prejudice to the effect of reappearance of the absent spouse. It is readily apparent, however, that the marriages of petitioner to Sofio and Virgilio on January 11, 1971 and June 20, 1985, respectively, were both celebrated under the auspices of the Civil Code. The pertinent provision of the Civil Code is Article 83: Art. 83. Any marriage subsequently contracted by any person during the lifetime of the first spouse of such person with any person other than such first spouse shall be illegal and void from its performance, unless: (1) The first marriage was annulled or dissolved; or (2) The first spouse had been absent for seven consecutive years at the time of the second marriage without the spouse present having news of the absentee being alive, of if the absentee, though he has been absent for less than seven years, is generally considered as dead and believed to be so by the spouse present at the time of contracting such subsequent marriage, or if the absentee is presumed dead according to Articles 390 and 391. The marriage so contracted shall be valid in any of the three cases until declared null and void by a competent court. Article 390 of the Civil Code states: Art. 390. After an absence of seven years, it being unknown whether or not the absentee still lives, he shall be presumed dead for all purposes, except for those of succession. The absentee shall not be presumed dead for the purpose of opening his succession till after an absence of ten years. If he disappeared after the age of seventy-five years, an absence of five years shall be sufficient in order that his succession may be opened. The Court, on several occasions, had interpreted the above-quoted provision in this wise: For the purposes of the civil marriage law, it is not necessary to have the former spouse judicially declared an absentee. The declaration of absence made in accordance with the provisions of the Civil Code has for its sole purpose to enable the taking of the necessary precautions for the administration of the estate of the absentee. For the celebration of civil marriage, however, the law only requires that the former spouse has been absent for seven consecutive years at the time of the second marriage, that the spouse present

does not know his or her former spouse to be living, that such former spouse is generally reputed to be dead and the spouse present so believes at the time of the celebration of the marriage.[13] Further, the Court explained that presumption of death cannot be the subject of court proceedings independent of the settlement of the absentees estate. In re Szatraw[14] is instructive. In that case, petitioner contracted marriage with a Polish national in 1937. They lived together as husband and wife for three years. Sometime in 1940, the husband, on the pretext of visiting some friends, left the conjugal abode with their child and never returned. After inquiring from friends, petitioner found that her husband went to Shanghai, China. However, friends who came from Shanghai told her that the husband was not seen there. In 1948, petitioner filed a petition for the declaration of presumptive death of her husband arguing that since the latter had been absent for more than seven years and she had not heard any news from him and about her child, she believes that he is dead. In deciding the case, the Court said: The petition is not for the settlement of the estate of Nicolai Szatraw, because it does not appear that he possessed property brought to the marriage and because he had acquired no property during his married life with the petitioner. The rule invoked by the latter is merely one of evidence which permits the court to presume that a person is dead after the fact that such person had been unheard from in seven years had been established. This presumption may arise and be invoked and made in a case, either in an action or in a special proceeding, which is tried or heard by, and submitted for decision to, a competent court. Independently of such an action or special proceeding, the presumption of death cannot be invoked, nor can it be made the subject of an action or special proceeding. In this case, there is no right to be enforced nor is there a remedy prayed for by the petitioner against her absent husband. Neither is there a prayer for the final determination of his right or status or for the ascertainment of a particular fact (Hagans v. Wislizenus, 42 Phil. 880), for the petition does not pray for a declaration that the petitioner's husband is dead, but merely asks for a declaration that he be presumed dead because he had been unheard from in seven years. If there is any pretense at securing a declaration that the petitioner's husband is dead, such a pretension cannot be granted because it is unauthorized. The petition is for a declaration that the petitioner's husband is presumptively dead. But this declaration, even if judicially made, would not improve the petitioner's situation, because such a presumption is already established by law. A judicial pronouncement to that effect, even if final and executory, would still be a prima facie presumption only. It is still disputable. It is for that reason that it cannot be the subject of a judicial pronouncement or declaration, if it is the only question or matter involved in a case, or upon which a competent court has to pass. The latter must decide finally the controversy between the parties, or determine finally the right or status of a party or establish finally a particular fact, out of which certain rights and obligations arise or may arise; and once such controversy is decided by a final judgment, or such right or status determined, or such particular fact established, by a final decree, then the judgment on the subject of the controversy, or the decree upon the right or status of a party or upon the existence of a particular fact, becomes res judicata, subject to no collateral attack, except in a few rare instances especially provided by law. It is, therefore, clear that a judicial declaration that a person is presumptively dead, because he had been unheard from in seven years, being a presumption juris tantum only, subject to contrary proof, cannot reach the stage of finality or become final. Proof of actual death of the person presumed dead because he had been unheard from in seven years, would have to be made in another proceeding to have such particular fact finally determined. If a judicial decree declaring a person presumptively dead, because he had not been heard from in seven years, cannot become final and executory even after the lapse of the reglementary period within which an appeal may be taken, for such presumption is still disputable and remains subject to contrary proof, then a petition for such a declaration is useless, unnecessary, superfluous and of no benefit to the petitioner.[15] In Lukban v. Republic,[16] petitioner Lourdes G. Lukban contracted marriage with Francisco Chuidian on December 10, 1933. A few days later, on December 27, Francisco left Lourdes after a violent quarrel. She did not hear from him after that day. Her diligent search, inquiries from his parents and friends, and search in his last known address, proved futile. Believing her husband was already dead since he had been absent for more than twenty years, petitioner filed a petition in 1956 for a declaration that she is a widow of her husband who is presumed to be dead and has no legal impediment to contract a subsequent marriage. On the other hand, the antecedents in Gue v. Republic[17] are similar to Szatraw. On January 5, 1946, Angelina Gues husband left Manila where they were residing and went to Shanghai, China. From that day on, he had not been heard of, had not written to her, nor in anyway communicated with her as to his whereabouts. Despite her efforts and diligence, she failed to locate him. After 11 years, she asked the court for a declaration of the presumption of death of Willian Gue, pursuant to the provisions of Article 390 of the Civil Code of the Philippines. In both cases, the Court reiterated its ruling in Szatraw. It held that a petition for judicial declaration that petitioner's husband is presumed to be dead cannot be entertained because it is not authorized by law.[18]

From the foregoing, it can be gleaned that, under the Civil Code, the presumption of death is established by law[19] and no court declaration is needed for the presumption to arise. Since death is presumed to have taken place by the seventh year of absence,[20] Sofio is to be presumed dead starting October 1982. Consequently, at the time of petitioners marriage to Virgilio, there existed no impediment to petitioners capacity to marry, and the marriage is valid under paragraph 2 of Article 83 of the Civil Code. Further, considering that it is the Civil Code that applies, proof of well-founded belief is not required. Petitioner could not have been expected to comply with this requirement since the Family Code was not yet in effect at the time of her marriage to Virgilio. The enactment of the Family Code in 1988 does not change this conclusion. The Family Code itself states: Art. 256. This Code shall have retroactive effect insofar as it does not prejudice or impair vested or acquired rights in accordance with the Civil Code or other laws. To retroactively apply the provisions of the Family Code requiring petitioner to exhibit well-founded belief will, ultimately, result in the invalidation of her second marriage, which was valid at the time it was celebrated. Such a situation would be untenable and would go against the objectives that the Family Code wishes to achieve. In sum, we hold that the Petition must be dismissed since no decree on the presumption of Sofios death can be granted under the Civil Code, the same presumption having arisen by operation of law. However, we declare that petitioner was capacitated to marry Virgilio at the time their marriage was celebrated in 1985 and, therefore, the said marriage is legal and valid. WHEREFORE, the foregoing premises considered, the Petition is DENIED. SO ORDERED.

FIRST DIVISION [G.R. No. 133778. March 14, 2000] ENGRACE NIAL for Herself and as Guardian ad Litem of the minors BABYLINE NIAL, INGRID NIAL, ARCHIE NIAL & PEPITO NIAL, JR., petitioners, vs. NORMA BAYADOG, respondent. Ncmmis DECISION YNARES_SANTIAGO, J.: May the heirs of a deceased person file a petition for the declaration of nullity of his marriage after his death? Pepito Nial was married to Teodulfa Bellones on September 26, 1974. Out of their marriage were born herein petitioners. Teodulfa was shot by Pepito resulting in her death on April 24, 1985. One year and 8 months thereafter or on December 11, 1986, Pepito and respondent Norma Badayog got married without any marriage license. In lieu thereof, Pepito and Norma executed an affidavit dated December 11, 1986 stating that they had lived together as husband and wife for at least five years and were thus exempt from securing a marriage license. On February 19, 1997, Pepito died in a car accident. After their fathers death, petitioners filed a petition for declaration of nullity of the marriage of Pepito to Norma alleging that the said marriage was void for lack of a marriage license. The case was filed under the assumption that the validity or invalidity of the second marriage would affect petitioners successional rights. Norma filed a motion to dismiss on the ground that petitioners have no cause of action since they are not among the persons who could file an action for "annulment of marriage" under Article 47 of the Family Code. Judge Ferdinand J. Marcos of the Regional Trial Court of Toledo City, Cebu, Branch 59, dismissed the petition after finding that the Family Code is "rather silent, obscure, insufficient" to resolve the following issues: (1) Whether or not plaintiffs have a cause of action against defendant in asking for the declaration of the nullity of marriage of their deceased father, Pepito G. Nial, with her specially so when at the time of the filing of this instant suit, their father Pepito G. Nial is already dead;

(2) Whether or not the second marriage of plaintiffs deceased father with defendant is null and void ab initio; (3) Whether or not plaintiffs are estopped from assailing the validity of the second marriage after it was dissolved due to their fathers death.[1] Thus, the lower court ruled that petitioners should have filed the action to declare null and void their fathers marriage to respondent before his death, applying by analogy Article 47 of the Family Code which enumerates the time and the persons who could initiate an action for annulment of marriage.[2] Hence, this petition for review with this Court grounded on a pure question of law. Scnc m This petition was originally dismissed for non-compliance with Section 11, Rule 13 of the 1997 Rules of Civil Procedure, and because "the verification failed to state the basis of petitioners averment that the allegations in the petition are true and correct." It was thus treated as an unsigned pleading which produces no legal effect under Section 3, Rule 7, of the 1997 Rules.[3] However, upon motion of petitioners, this Court reconsidered the dismissal and reinstated the petition for review.[4] The two marriages involved herein having been solemnized prior to the effectivity of the Family Code (FC), the applicable law to determine their validity is the Civil Code which was the law in effect at the time of their celebration. [5] A valid marriage license is a requisite of marriage under Article 53 of the Civil Code, [6] the absence of which renders the marriage void ab initio pursuant to Article 80(3)[7] in relation to Article 58.[8] The requirement and issuance of marriage license is the States demonstration of its involvement and participation in every marriage, in the maintenance of which the general public is interested.[9] This interest proceeds from the constitutional mandate that the State recognizes the sanctity of family life and of affording protection to the family as a basic "autonomous social institution."[10] Specifically, the Constitution considers marriage as an "inviolable social institution," and is the foundation of family life which shall be protected by the State. [11] This is why the Family Code considers marriage as "a special contract of permanent union" [12] and case law considers it "not just an adventure but a lifetime commitment."[13] However, there are several instances recognized by the Civil Code wherein a marriage license is dispensed with, one of which is that provided in Article 76,[14] referring to the marriage of a man and a woman who have lived together and exclusively with each other as husband and wife for a continuous and unbroken period of at least five years before the marriage. The rationale why no license is required in such case is to avoid exposing the parties to humiliation, shame and embarrassment concomitant with the scandalous cohabitation of persons outside a valid marriage due to the publication of every applicants name for a marriage license. The publicity attending the marriage license may discourage such persons from legitimizing their status.[15] To preserve peace in the family, avoid the peeping and suspicious eye of public exposure and contain the source of gossip arising from the publication of their names, the law deemed it wise to preserve their privacy and exempt them from that requirement. Sdaa miso There is no dispute that the marriage of petitioners father to respondent Norma was celebrated without any marriage license. In lieu thereof, they executed an affidavit stating that "they have attained the age of majority, and, being unmarried, have lived together as husband and wife for at least five years, and that we now desire to marry each other." [16] The only issue that needs to be resolved pertains to what nature of cohabitation is contemplated under Article 76 of the Civil Code to warrant the counting of the five year period in order to exempt the future spouses from securing a marriage license. Should it be a cohabitation wherein both parties are capacitated to marry each other during the entire five-year continuous period or should it be a cohabitation wherein both parties have lived together and exclusively with each other as husband and wife during the entire five-year continuous period regardless of whether there is a legal impediment to their being lawfully married, which impediment may have either disappeared or intervened sometime during the cohabitation period? Working on the assumption that Pepito and Norma have lived together as husband and wife for five years without the benefit of marriage, that five-year period should be computed on the basis of a cohabitation as "husband and wife" where the only missing factor is the special contract of marriage to validate the union. In other words, the five-year common-law cohabitation period, which is counted back from the date of celebration of marriage, should be a period of legal union had it not been for the absence of the marriage. This 5-year period should be the years immediately before the day of the marriage and it should be a period of cohabitation characterized by exclusivity meaning no third party was involved at any time within the 5 years and continuity that is unbroken. Otherwise, if that continuous 5-year cohabitation is computed without any distinction as to whether the parties were capacitated to marry each other during the entire five years, then the law would be sanctioning immorality and encouraging parties to have common law relationships and placing them on the same footing with those who lived faithfully with their spouse. Marriage being a special relationship must be respected as such and its requirements must be strictly observed. The presumption that a man and a woman deporting themselves as husband and wife is based on the approximation of the requirements of the law. The parties should not be afforded any excuse to not comply with every single requirement and later use the same missing element as a pre-conceived escape ground to nullify their marriage. There should be no exemption from securing a marriage license unless the circumstances clearly fall within the ambit of the exception. It should be noted that a license is required in order to notify the public that two persons are

about to be united in matrimony and that anyone who is aware or has knowledge of any impediment to the union of the two shall make it known to the local civil registrar.[17] The Civil Code provides: Article 63: "x x x. This notice shall request all persons having knowledge of any impediment to the marriage to advice the local civil registrar thereof. x x x." Article 64: "Upon being advised of any alleged impediment to the marriage, the local civil registrar shall forthwith make an investigation, examining persons under oath. x x x" Sdaad This is reiterated in the Family Code thus: Article 17 provides in part: "x x x. This notice shall request all persons having knowledge of any impediment to the marriage to advise the local civil registrar thereof. x x x." Article 18 reads in part: "x x x. In case of any impediment known to the local civil registrar or brought to his attention, he shall note down the particulars thereof and his findings thereon in the application for a marriage license. x x x." This is the same reason why our civil laws, past or present, absolutely prohibited the concurrence of multiple marriages by the same person during the same period. Thus, any marriage subsequently contracted during the lifetime of the first spouse shall be illegal and void,[18] subject only to the exception in cases of absence or where the prior marriage was dissolved or annulled. The Revised Penal Code complements the civil law in that the contracting of two or more marriages and the having of extramarital affairs are considered felonies, i.e., bigamy and concubinage and adultery.[19] The law sanctions monogamy. In this case, at the time of Pepito and respondents marriage, it cannot be said that they have lived with each other as husband and wife for at least five years prior to their wedding day. From the time Pepitos first marriage was dissolved to the time of his marriage with respondent, only about twenty months had elapsed. Even assuming that Pepito and his first wife had separated in fact, and thereafter both Pepito and respondent had started living with each other that has already lasted for five years, the fact remains that their five-year period cohabitation was not the cohabitation contemplated by law. It should be in the nature of a perfect union that is valid under the law but rendered imperfect only by the absence of the marriage contract. Pepito had a subsisting marriage at the time when he started cohabiting with respondent. It is immaterial that when they lived with each other, Pepito had already been separated in fact from his lawful spouse. The subsistence of the marriage even where there was actual severance of the filial companionship between the spouses cannot make any cohabitation by either spouse with any third party as being one as "husband and wife". Scs daad Having determined that the second marriage involved in this case is not covered by the exception to the requirement of a marriage license, it is void ab initio because of the absence of such element. The next issue to be resolved is: do petitioners have the personality to file a petition to declare their fathers marriage void after his death? Contrary to respondent judges ruling, Article 47 of the Family Code[20] cannot be applied even by analogy to petitions for declaration of nullity of marriage. The second ground for annulment of marriage relied upon by the trial court, which allows "the sane spouse" to file an annulment suit "at any time before the death of either party" is inapplicable. Article 47 pertains to the grounds, periods and persons who can file an annulment suit, not a suit for declaration of nullity of marriage. The Code is silent as to who can file a petition to declare the nullity of a marriage. Voidable and void marriages are not identical. A marriage that is annulable is valid until otherwise declared by the court; whereas a marriage that is void ab initio is considered as having never to have taken place[21] and cannot be the source of rights. The first can be generally ratified or confirmed by free cohabitation or prescription while the other can never be ratified. A voidable marriage cannot be assailed collaterally except in a direct proceeding while a void marriage can be attacked collaterally. Consequently, void marriages can be questioned even after the death of either party but voidable marriages can be assailed only during the lifetime of the parties and not after death of either, in which case the parties and their offspring will be left as if the marriage had been perfectly valid.[22] That is why the action or defense for nullity is imprescriptible, unlike voidable marriages where the action prescribes. Only the parties to a voidable marriage can assail it but any proper interested party may attack a void marriage. Void marriages have no legal effects except those declared by law concerning the properties of the alleged spouses, regarding co-ownership or ownership through actual joint contribution,[23] and its effect on the children born to such void marriages as provided in Article 50 in relation to Article 43 and 44 as well as Article 51, 53 and 54 of the Family Code. On the contrary, the property regime governing voidable marriages is generally conjugal partnership and the children conceived before its annulment are legitimate. Sup rema

Contrary to the trial courts ruling, the death of petitioners father extinguished the alleged marital bond between him and respondent. The conclusion is erroneous and proceeds from a wrong premise that there was a marriage bond that was dissolved between the two. It should be noted that their marriage was void hence it is deemed as if it never existed at all and the death of either extinguished nothing. Jurisprudence under the Civil Code states that no judicial decree is necessary in order to establish the nullity of a marriage. [24] "A void marriage does not require a judicial decree to restore the parties to their original rights or to make the marriage void but though no sentence of avoidance be absolutely necessary, yet as well for the sake of good order of society as for the peace of mind of all concerned, it is expedient that the nullity of the marriage should be ascertained and declared by the decree of a court of competent jurisdiction."[25] "Under ordinary circumstances, the effect of a void marriage, so far as concerns the conferring of legal rights upon the parties, is as though no marriage had ever taken place. And therefore, being good for no legal purpose, its invalidity can be maintained in any proceeding in which the fact of marriage may be material, either direct or collateral, in any civil court between any parties at any time, whether before or after the death of either or both the husband and the wife, and upon mere proof of the facts rendering such marriage void, it will be disregarded or treated as non-existent by the courts." It is not like a voidable marriage which cannot be collaterally attacked except in direct proceeding instituted during the lifetime of the parties so that on the death of either, the marriage cannot be impeached, and is made good ab initio.[26] But Article 40 of the Family Code expressly provides that there must be a judicial declaration of the nullity of a previous marriage, though void, before a party can enter into a second marriage[27] and such absolute nullity can be based only on a final judgment to that effect.[28] For the same reason, the law makes either the action or defense for the declaration of absolute nullity of marriage imprescriptible.[29] Corollarily, if the death of either party would extinguish the cause of action or the ground for defense, then the same cannot be considered imprescriptible. Juris However, other than for purposes of remarriage, no judicial action is necessary to declare a marriage an absolute nullity. For other purposes, such as but not limited to determination of heirship, legitimacy or illegitimacy of a child, settlement of estate, dissolution of property regime, or a criminal case for that matter, the court may pass upon the validity of marriage even in a suit not directly instituted to question the same so long as it is essential to the determination of the case. This is without prejudice to any issue that may arise in the case. When such need arises, a final judgment of declaration of nullity is necessary even if the purpose is other than to remarry. The clause "on the basis of a final judgment declaring such previous marriage void" in Article 40 of the Family Code connotes that such final judgment need not be obtained only for purpose of remarriage. WHEREFORE, the petition is GRANTED. The assailed Order of the Regional Trial Court, Toledo City, Cebu, Branch 59, dismissing Civil Case No. T-639, is REVERSED and SET ASIDE. The said case is ordered REINSTATED. SO ORDERED. nbb